FILED

August 12, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

APRIL SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9704-CR-00158

)

Appellee, )

) DAVIDSON COUNTY

V. ) 

)

) HON. THOMAS H. SHRIVER, JUDGE

JAMES C. NICHOLS, ) 

)

Appellant. ) (FIRST DEGREE MURDER)

FOR THE APPELLANT: FOR THE APPELLEE:

KARL DEAN JOHN KNOX WALKUP 

District Public Defender Attorney General & Reporter

JEFFREY A. DeVASHER TIMOTHY F. BEHAN

Assistant Public Defender Assistant Attorney General

(On Appeal) 2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

ROBERT M. ROBINSON Nashville, TN 37243

MARY GRIFFIN

Assistant Public Defenders VICTOR S. JOHNSON, III

1202 Stahlman Building District Attorney General

Nashville, TN 37201

(At Trial) NICHOLAS D. BAILEY 

Assistant District Attorney General

Washington Square 

222 Second Avenue North, Suite 500

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, James C. Nichols, appeals as of right from his conviction in

the Davidson County Criminal Court. Following a jury trial, the Defendant was

convicted of first degree murder and was sentenced as a career offender to serve

a life sentence in the Tennessee Department of Correction. In this appeal, the

Defendant argues the following issues:

1) Whether the trial court erred in denying the Defendant’s motion to

suppress statements made to the police;

2) Whether the evidence was insufficient to support the Defendant’s

conviction for first degree murder;

3) Whether the trial court erred in allowing the admission of prior threats

by the Defendant against the victim during the State’s case-in-chief;

and

4) Whether the trial court erred in denying the Defendant’s motions (a)

for an amended instruction on the range of punishment and (b) to strike

the portion of the range of punishment instruction which advises the

jury of the minimum length of time Defendant would serve prior to

parole eligibility. 

We affirm the judgment of the trial court.

I. MOTION TO SUPPRESS STATEMENTS

The Defendant gave several statements to both arresting and investigating

officers on the day of the stabbing, September 24, 1994, and the following day,

September 25, 1994. These statements were made both spontaneously prior to

arrest and after Defendant had been arrested. Defendant claims that he was so

intoxicated while making the statements made on September 24, 1994, that he did
-3-

not voluntarily or knowingly waive his rights as according to Miranda v. Arizona, 384

U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 

Before a Defendant can knowingly and voluntarily waive his Miranda rights,

the Defendant must be “adequately and effectively apprised of his rights.” State v.

Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992)(citations omitted). If the waiver

is made “voluntarily, knowingly and intelligently “then a Defendant may waive his

rights. Miranda, 384 U.S. at 444; 86 S. Ct. at 1612. The burden of proving the

waiver by a preponderance of the evidence at the hearing on the motion to suppress

is on the State. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997). In determining

whether a Defendant has validly waived his Miranda rights, courts must look to the

totality of the circumstances. Middlebrooks, 840 S.W.2d at 326. Recently, in State

v. Odom, 928 S.W.2d 18 (Tenn. 1996), the supreme court held as follows:

The party prevailing in the trial court is entitled to the strongest

legitimate view of the evidence adduced at the suppression hearing as

well as all reasonable and legitimate inferences that may be drawn from

that evidence. So long as the greater weight of the evidence supports

the trial court’s findings, those findings shall be upheld. In other words,

a trial court’s findings of fact in a suppression hearing will be upheld

unless the evidence preponderates otherwise. 

Odom, 928 S.W.2d at 23.

Officer David Howard testified at the suppression hearing that when he arrived

on the scene of the stabbing he entered the Defendant’s home and called to the

Defendant. The house was dark and Officer Howard was using a flashlight to

approach the Defendant in the back of the house. As Howard approached, the

Defendant kept repeating that “[he] stabbed her.” Howard had not directed any

questions towards the Defendant at that time. After Defendant made the
-4-

incriminating statements, Howard handcuffed him and read him his Miranda rights

as he was arrested. Defendant indicated that he understood those rights and that

he did not want a lawyer. Nearly forty (40) minutes later after the other detectives

arrived, the Defendant was sitting in the back of the police car when he stated, “I just

jammed the knife in her ass as far as I could.” Howard described the Defendant as

being in a jovial mood. While Howard thought Defendant had been drinking as he

noticed the odor of alcohol, the Defendant seemed lucid in his comm ents and there

was nothing that indicated his level of intoxication caused him to be unable or

incompetent to understand his rights.

Officer David Imhoff arrived at the scene of the stabbing after the Defendant

had already been arrested and advised of his Miranda rights. Defendant was placed

in the back of Imhoff’s patrol car while Imhoff received information from him to fill out

an arrest report. While Imhoff did not ask Defendant any questions relating to the

stabbing, the Defendant blurted out that “[I] stabbed that goddamn son of a bitch.

She tried to cut me and I took up for myself. I took the knife from her and stuck it up

her ass. I made a mistake. I did it. I’d die if it were fatal, but she is a fat old bitch.”

Investigator Scott Billingsby arrived while the Defendant was still on the scene.

Billingsby determined that Defendant had previously been advised of his Miranda

rights by Officer Howard. Defendant was transported to the rear of Billingsby’s patrol

car. The first statements Defendant made were, “Blow m y goddamn brains out. I

cut her. I stuck a knife in her.” From that point on, Billingsby questioned the

Defendant regarding the facts of the crime. After transporting the Defendant to the

Domestic Violence Office for further questioning, Defendant was again advised of

his Miranda rights and he signed a waiver of those rights. Defendant indicated he
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understood his rights at that time. He did not request an attorney. Defendant’s oral

statement to the police was taped. In addition to the tape, Defendant wrote a

handwritten account regarding the incident and his involvement. On the following

day, Defendant was again advised of his rights and waived them. Billingsby recalled

that there were no major contradictions between the following day’s statement and

that of the previous evening. 

Billingsby smelled the odor of alcoholic beverages on the Defendant. In

response to the trial court’s questioning, Billingsby stated that the Defendant was not

so intoxicated as to not understand what he was stating. While Billingsby believed

that Defendant was intoxicated at the scene, he could not determine what level of

intoxication Defendant was suffering from. While the Defendant was later more

coherent in regards to questioning, Billingsby thought that he always understood

what was being asked of him and understood his rights. In addition, Billingsby

observed that Defendant’s version of the events which occurred that night has not

changed since his earliest statements at the scene.

Defendant testified that on September 24, 1994, he and the victim had

finished two (2) half gallons of Wild Irish Rose wine. They were consuming the third

when the stabbing occurred. Defendant recalled that the police came to his home

that evening, but he did not recall what was said nor did he recall being advised of

his rights. He did not remember being asked to sign a waiver of rights, although he

admitted that the signature on the waiver of rights form was similar to his own

signature. Defendant did recall sitting in a room with two (2) or three (3) police

officers talking to him, but he could not remember what was discussed. Defendant

recalled giving a statement to the police and signing a waiver of rights form on the
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following day. Defendant admitted he was an alcoholic and drank on a daily basis.

The trial court found that the statements were admissible as they were

voluntarily made. Any statements made prior to Defendant being given his Miranda

warnings were spontaneous and were m ade prior to Defendant’s being placed in

custody. The trial court noted that Miranda provides that warning requirements are

not required if the defendant makes a spontaneous statement before police officers

have investigated or targeted a suspect. See Miranda, 384 U.S. at 478, 86 S. Ct.

at 1630; State v. Brown, 664 S.W .2d 318 (Tenn. Crim. App. 1983), perm. to appeal

denied (Tenn. 1984). 

The trial court reasoned that the only issue was whether the Defendant was

so intoxicated that he did not understand what he was doing to himself by making

these incriminating statements or was incapable of understanding the Miranda

warnings. It found there was no testimony that Defendant was so intoxicated that

he did not understand the warnings.

Considering the totality of the circumstances, the evidence shows that the

Defendant was properly advised of his rights and had the capacity to understand

those rights. While the Defendant’s testimony is contradictory to that of the arresting

officers, the trial court determined that the Defendant made a knowing, voluntary and

intelligent waiver of his rights and accredited the testimony of the police officers.

Intoxication does not render a defendant’s confession invalid if the evidence shows

that he was capable of understanding and waiving his rights. State v. Bell, 690

S.W.2d 879, 882 (Tenn. Crim. App.) perm. to appeal denied (Tenn. 1985). Even if

Defendant were intoxicated at the time of the offense, Defendant made a similar
-7-

statement on September 25, 1995, which he is not seeking to suppress. The

Defendant has failed to meet his burden. See Odom, 928 S.W.2d at 23. The trial

court properly denied the Defendant’s motion to suppress.

II. SUFFICIENCY OF THE EVIDENCE

Defendant argues that there was insufficient evidence to support the finding

that he killed the victim with premeditation and deliberation. When an accused

challenges the sufficiency of the convicting evidence, the standard is whether, after

reviewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal, the

State is entitled to the strongest legitimate view of the evidence and all inferences

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a

verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, the accused has the burden in this court of illustrating why the

evidence is insufficient to support the verdict returned by the trier of fact. State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973).

Questions concerning the credibility of the witnesses, the weight and value to

be given the evidence, as well as all factual issues raised by the evidence, are

resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court

reweigh or reevaluate the evidence. Cabbage, 571 S.W.2d at 835. A jury verdict
-8-

approved by the trial judge accredits the State’s witnesses and resolves all conflicts

in favor of the State. Grace, 493 S.W .2d at 476. 

Mia Ambrose, the niece of the victim, Barbara Sue Oakley, testified that the

victim was visiting in her home in Franklin during the month of August 1994. Prior

to that time, Oakley had been living with Steve Smith for a period of one (1) year.

Ambrose recalled that while Oakley was in her home, the Defendant called her home

looking for Oakley. Oakley and the Defendant had previously resided together for

ten (10) or twelve (12) years. After Oakley and the Defendant spoke, Oakley asked

Ambrose to take her to the Defendant’s home in Nashville. A few days later,

Ambrose and her three (3) year old daughter returned to the Defendant’s home to

visit her aunt. While Ambrose was there, she noticed that Oakley and the Defendant

were drinking heavily. When Oakley drank, Ambrose recalled that she was very

happy. The Defendant repeatedly argued with Oakley regarding her activities,

particularly regarding her relationship with Steve Smith. According to Ambrose,

Defendant was planning to share an apartment in Nashville with Smith. 

On one occasion, Ambrose and Oakley were talking about Oakley’s plans to

leave the Defendant and to return to live with Steve Smith. The Defendant walked

in, having overheard the conversation, and said, “Oh, so you’re thinking about

leaving . . . I don’t think so. It would be over my dead body. You know, I’d kill you

first.” The final day Ambrose was at Defendant’s home, Oakley and Defendant were

arguing and Defendant was throwing things at her. He grabbed a knife, pointed it

at her neck and said he would kill her. Ambrose immediately decided to leave and

begged her aunt to accompany her. A week later, Ambrose learned that Oakley had

been stabbed by the Defendant.
-9-

Joann Leeper, mother of Steve Smith, kept in touch with Oakley after she and

Smith ended their relationship. Oakley came to her home several times and called

often. Leeper went to the Defendant’s home to talk with Oakley because she was

concerned that the Defendant might try to hurt her. While she was there, she met

the Defendant. Oakley assured Leeper that she was alright. On the day of the

stabbing in September, Oakley and Defendant came to Leeper’s home. Oakley and

Leeper were planning a trip to Colum bia to see Smith. Oakley and the Defendant left

Leeper’s home to make some copies, and when they returned they both appeared

to have been drinking. The Defendant appeared angry and agitated when Leeper

and Oakley discussed their plans for visiting Smith the next day. Oakley was

stabbed later that day after leaving Leeper’s hom e. 

Robert Spence, next door neighbor to the Defendant at 22 Waters Avenue,

saw Oakley on September 24, 1994, around 4:00 p.m. Oakley was mowing

Spence’s grass while Spence was working on his car. The Defendant came over in

Spence’s yard and wanted the mower. When Oakley refused to give Defendant the

mower, Defendant told her he would take her in the house and “whoop her ass.”

Oakley shrugged off the comment. Spence observed the couple fighting and

arguing every day, with the Defendant constantly threatening Oakley. Defendant

had threatened to kill Oakley and bragged that he had given her a black eye.

Spence related that Oakley had a black eye every month. 

Spence left his home at 5:45 p.m. on September 24, 1994 and returned at

midnight. As he was driving up the road, he saw the crime scene tape all over the

Defendant’s home. When he pulled in his driveway, he noticed a horrible odor.
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There was a trail of blood from their house to his house, all over his yard, porch, and

door. 

Curly Schmidt lives at 24 Waters Avenue, two (2) houses down from the

Defendant. Prior to September 24, 1994, she did not know the Defendant or Oakley.

On that date, she heard a knock on the door and when she opened it, a woman with

blood all over her blouse stood there. She asked Schmidt to call 911. While

Schmidt called 911, the woman entered her home and sat on the couch. She was

still bleeding and looked sleepy. Schmidt stayed on the telephone until the

ambulance arrived. No one appeared at Schmidt’s home looking for the victim.

Oakley told Schmidt who had stabbed her. 

Officer Mark Chestnutt is a detective sergeant with the Metropolitan Police

Department. During September 1994 he was sergeant over the Patrol Division for

the lower East Nashville area. He responded to a call from the dispatcher that there

had been a stabbing at McCarn Street from an incident of domestic violence. A later

call stated that Oakley was at a location on W aters Street. When Chestnutt arrived,

the ambulance personnel were already there and Oakley was sitting on the couch

being treated for her injuries. After Oakley was placed in the ambulance, Chestnutt

went to the McCarn address where the Defendant was in custody. He noticed the

cut on Defendant’s pinky finger, but when he was treated by Medcom it was not

serious enough to require a trip to the hospital.

Officer David Howard responded to the call from 816 McCarn Avenue on

September 24, 1994. Howard entered the back door and called out for the

Defendant. Defendant was in the living room and it was dark, so Howard used his
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flashlight and ordered Defendant to face away from him. The Defendant repeatedly

stated that he stabbed Oakley. At one point, he blurted out, “I jammed it up her ass

as far as I could.” Howard put the Defendant in handcuffs and read him his Miranda

rights, then asked him for the location of the weapon. The Defendant pointed to a

knife in the floor in front of the refrigerator. The knife had a five (5) or six (6) inch

blade. While the Defendant was laughing and appeared to have been drinking, he

stated that he understood his rights. Howard observed the wound on Defendant’s

pinky finger and saw that it was a small cut. He also saw two (2) knives behind the

kitchen sink that had recently been washed. 

Detective David Imhoff was working in the patrol division on the date of the

incident. He first received a call of a stabbing on McCarn Street and then a related

call at Waters Avenue. When Imhoff arrived on the scene at Waters Avenue,

Oakley was lying on a gurney being taken out of the house. Imhoff then walked over

to McCarn Street where Officer Howard was holding the Defendant. Defendant was

placed in Imhoff’s patrol car, and then Imhoff got in his car and began to fill out an

arrest report. Howard advised Imhoff that Defendant had been advised of his

Miranda rights. While Imhoff filled out the report, Defendant stated, “I stabbed that

goddamn son of a bitch. She tried to cut me and I took up for myself. I took the

knife from her and I stuck it up her ass. I made a mistake. I did it. I’d die if it were

fatal. She is a fat old bitch.” Imhoff was not questioning the Defendant when he

made that statement. Imhoff later removed him from his car and placed him in

Detective Scott Billingsby’s vehicle to be transported. Imhoff observed a small cut

on Defendant’s pinky finger. Im hoff went inside the Defendant’s home and observed

blood throughout the residence and a knife on the kitchen floor. 
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Scott Billingsby works as a detective in the Domestic Violence Division. He

arrived on the scene at 7:23 p.m. As the lead investigator, he spoke with the officers

already present and examined the house and the evidence. Billingsby noticed that

at the kitchen table, a struggle had evidently taken place as there was sugar and a

bag of chips strewn about on the floor. There was blood in the floor and a partially

open silverware drawer with blood on it. A trail of blood led to the back door from the

kitchen table, and another trail of blood led from the table through the den into the

living room where the telephone was located. Two knives found near the kitchen

sink appeared to have blood residue on them.

The Defendant was still on the scene and Billingsby was advised by Officer

Howard that Defendant had previously been advised of his constitutional rights. The

first thing the Defendant stated to Billingsby was, “ Blow my goddamn brains out.

I cut her. I stuck her.” At that point, Billingsby began to question Defendant and

Defendant told him there were two “cuttings” in the kitchen. 

Billingsby removed Defendant from the scene and took him to the Department

of Domestic Violence. Once they arrived at the unit, Billingsby again advised

Defendant of his constitutional rights and then Defendant executed a written waiver

acknowledging that he understood his rights. Throughout the night, Defendant

became unclear regarding exactly where the stabbings occurred. Defendant was

consistent during questioning that Oakley cut him and then he “stuck” her.

Sometimes Defendant stated that he took the knife away from Oakley and “stuck”

her with it, and at other times he stated that he obtained another knife and then

“stuck” her. Tapes were m ade of Defendant’s statements to the police, and these
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tapes were played for the jury as evidence. Defendant also wrote a handwritten

statement during the course of the questioning. The statement reads as follows:

Me and my wife were in the kitchen as near as my recollection recalls.

She cut me with a pearing [sic] knife and I took it away from her and

stuck it in her gut. She immediately ran out the back door and I went

and called 911 for emergency because I love my wife.

Thank you!

James Carl Nichols

The following day, Billingsby was notified that Oakley was not expected to live.

The Homicide Unit was advised of the crime and Billingsby met with Detective David

Miller who took over the investigation. He and Miller again spoke with the Defendant

on September 25, 1994. Miller advised Defendant of his constitutional rights and

Defendant agreed to talk with them. Defendant stated that he and Oakley were at

the table when they became involved in an argum ent. Oakley cut him on the finger

so he got up, walked into the kitchen to obtain a knife and then stuck her with the

knife once. Throughout all the questioning, Defendant only recalled stabbing Oakley

one (1) time. 

Detective David Miller led the homicide investigation of Oakley’s death. After

being advised of the situation, Miller and Billingsby interviewed the Defendant.

Defendant was advised of his constitutional rights and told the detectives that he had

been home drinking that day. He was sitting at the kitchen table with Oakley when

they got into an argument, although he could not be sure what the argument was

about. Defendant got up from the table, went over to the drain rack, got a knife and

stabbed her. Defendant also said his finger had been cut but was not sure if Oakley

cut it or how it got cut. 
-14-

Joe Minor, special agent for the Tennessee Bureau of Investigation and the

Forensic Services Division, received blood samples from a knife involved in this

case. Only one (1) knife found at the scene had enough blood from which to obtain

a sample. A blood sample was also obtained from the Defendant. A DNA profile

was done on the Defendant, and it was determined that the blood on the knife did

not match the Defendant’s.

Dr. William Miles was working in the emergency room when Oakley was

brought into Vanderbilt Hospital. When she arrived, Oakley was combative and her

blood pressure and oxygen levels were extremely low. Dr. Miles established I.V.

lines and used a breathing tube and a mechanical ventilator to control her airway.

In order to provide Oakley with the rapid introduction of fluids into her body that she

needed in order to survive, he established a central venous line underneath her

clavicle. While it was impossible to determine how much blood Oakley had lost by

the time she arrived at the emergency room, it was obvious by her near death

condition that she had lost a great deal of blood. 

Oakley had three wounds. She had a several inch wound to her upper chest

close to the left side of her collarbone which was through the muscle and into the

chest cavity itself. She had two (2) wounds to her abdomen, both in the left quadrant

of the belly. All three (3) wounds were stab wounds. In order to assess the severity

of her chest wound, Dr. Miles inserted a chest tube to determine what bleeding had

occurred within the chest wall. After she was stabilized to the point that she could

be transported for surgery, she was taken to surgery to address the bleeding from

the abdomen. Prior to surgery, given the amount of injuries and Oakley’s degree of
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obesity, Dr. Miles estimated a fifty (50) to seventy-five (75) percent chance that she

would not survive. 

During surgery, Dr. Miles found that the two (2) stab wounds to Oakley’s

abdomen were the most life-threatening. In addition to five (5) inches of Oakley’s

own body tissue, the stab wound had penetrated the diaphragm muscle, the

stomach, and both the large and small intestines all the way through to the pancreas

gland. It would require a great deal of force for the weapon to go to this depth

through someone as large as Oakley. Dr. Miles stated that each of these three (3)

wounds were potentially life threatening. Any time there are injuries of this degree

to a person the size of Oakley, there is a high potential for an increase in mortality.

He estim ated her chances for survival after surgery at fifty (50) percent. 

While Oakley’s blood pressure and vital signs had stabilized, she was not in

stable condition. She was monitored closely, particularly due to her low intake of

oxygen. Shortly before 9:00 a.m. on September 25, 1994, Oakley became agitated

and was thrashing about. She was given a sedative and was given more fluid.

When her blood pressure dropped to an extremely low level, Dr. Miles was called to

her bedside because she had turned blue. A needle was inserted into her chest and

some fluid came back, so Dr. Miles made an incision to drain the fluid from her

chest. Oakley’s heart stopped beating. The fluid was present in her chest because

the catheter inserted into her chest became dislodged. This dislodging is a

recognized risk factor for this type of injury and this treatment. While Dr. Miles

worked for a long period of time to revive Oakley, she suffered another cardiac

arrest. As a result, even after being revived, she suffered severe brain damage due

to the low level of oxygen to the brain. Oakley was, in fact, nearly brain dead. Even
-16-

with deep stimulation, she would barely move her head which was evidence of

significant abnormal brain disfunction. Her prognosis was very grim and her family

was notified. Her family determined that if her heart stopped, she was not to be

revived. Oakley’s heart rate and vital signs subsequently deteriorated and stopped.

Dr. Jesse Giles conducted the autopsy of Oakley on October 1, 1994. He

summarized her anatomical diagnoses as three (3) penetrating stab wounds, severe

obesity, no preexisting detected cardiovascular disease, and post acute exploratory

chest and abdomen surgeries. He found the cause of death to be complications of

stab wounds of the chest and the abdomen. He listed Oakley’s obesity as a

contributing factor. Oakley’s blood loss, pancreas injury, decreased lung function to

the left side, and high blood alcohol all set into motion the increased lack of oxygen

to the brain. The complications were foreseeable risks for someone in her condition

to encounter during the course of treatment. Dr. Giles determined the manner of

death to be homicide. 

The State rested its case-in-chief.

Dr. Mona Gretel Case Harlan testified that she reviewed the medical record

of Oakley, including the autopsy report, the post-mortem photographs, the death

certificate and the emergency medical service and hospital records. Following her

review of all the records, Dr. Harlan concluded that even though Oakley had

additional risk factors for being prone to serious injury and death from stab wounds

due to her obesity and alcohol abuse, she did not die as a result of obvious

complications from the wounds such as infection, blood loss, or blood clots. Instead,

she died as a result of a brain injury from the low oxygen to the brain caused by a
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dislodged chest tube. Dr. Harlan stated that this was not an expected complication

of having a right subclavian catheter inserted, but that it can happen. While the

doctors did find the dislodged catheter, the catheter was dislodged for too long a

period of time. Ultimately, Dr. Harlan found that she died as a complication of the

treatment of the stab wounds, a complication caused by the hospital.

The Defendant testified that he was living with his mother and Oakley in

September 1994. On September 24, 1994, he and Oakley awoke and went to a

church rummage sale. On the way home, Oakley drove to the liquor store to get a

drink. The Defendant resisted but eventually agreed and bought a half gallon of

wine. They went home and drank the wine while they worked around the house and

Oakley mowed the front yard of their next door neighbor, Robert Spence. Ms.

Leeper called and asked them to take some papers to the drug store and make

photocopies, so they drove to her home and then went to the drug store . When

they left the drug store, he and Oakley bought another half gallon of wine at the

liquor store. They dropped off the papers and returned home around 2:00 p.m.

They drank the wine at home, then returned to the liquor store for another half gallon

of Wild Irish Rose. 

They were sitting at home at the kitchen table drinking wine and talking when

Oakley asked Defendant to borrow $50.00 from his boss. Defendant refused and

they began to argue. Oakley became angry, picked up a knife off the table and cut

the Defendant’s hand. When that occurred, he grabbed her by the wrist and she

started to dig the knife into the back of his wrist. He got out of his chair and Oakley

grabbed the front of his shirt. The Defendant panicked and grabbed another knife

lying on the counter. He stuck her with the knife, cutting her across the shoulder,
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so that she would let go of him. Oakley dropped her knife and threw her hands up

in the air, then the Defendant stepped away and dropped his knife to the floor.

Defendant ran to the bedroom and called for an ambulance. After he called 911, he

went back into the kitchen to look for Oakley and she was gone. He looked outside

for her and then waited for the police to arrive.

The Defendant could not remember what he said specifically to the police after

they got to the scene or during their questioning that night because he “was pretty

drunk.” He recalled being in the police car and going to Vanderbilt Hospital to get

stitches in his finger. Defendant could not remember what actually occurred that

night until he sobered up the next day, September 25, 1994, around 1:00 p.m. when

he again talked to the police. 

Ruby Bird, the Defendant’s mother, was living with her son at 816 McCarn

Street in September 1994. She was away visiting a friend at the time the stabbings

occurred because the Defendant and Oakley were getting drunk earlier that day.

Bird was afraid of Oakley when she drank. Six (6) weeks prior to the stabbing of

Oakley, Bird called the police because the Defendant was drunk and made threats

toward his mother. During cross-examination, Bird denied telling the police that the

Defendant had threatened to shoot his wife. However, she did admit that Defendant

had threatened to “eliminate” her [Bird] for running her mouth. 

The Defendant contends that the evidence does not establish the elements

of premeditation and deliberation required to support the verdict for first degree

murder. At the time of the offense, first degree murder was “an intentional,

premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-13-
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202(a)(1)(1991 Supp.). “Premeditation” is “an act done after the exercise of

reflection and judgment,” meaning the “intent to kill must have been formed prior to

the act itself.” Id. at (d). The purpose to kill need not pre-exist in the defendant’s

mind for any definite period of time. Id. In addition, the defendant’s mental state

must be carefully considered to determine if the defendant was “sufficiently free from

excitement and passion as to be capable of premeditation.” Id. 

“Deliberation” requires some period of reflection such that the mind is free

from the influence of excitement or passion. State v. Brown, 836 S.W.2d 530 (Tenn.

1992). Also, deliberation requires that the killing be done with a “cool purpose,”

meaning the defendant is free from the passions of the moment. State v. West, 844

S.W.2d 144 (Tenn. 1992). Both the elements of premeditation and deliberation are

jury questions which may be inferred from the circumstances surrounding the killing.

State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993), perm. to appeal denied

(Tenn. 1994). Repeated blows may serve as circumstantial evidence of murder in

the first degree if such blows are inflicted as the result of premeditation and

deliberation, and not in the heat of passion. Brown, 836 S.W.2d at 542.

There was ample evidence in this case to support the jury’s finding of

premeditation and deliberation. Reviewed in the light most favorable to the State,

the evidence in this case reflected that the Defendant and Oakley had a violent

history. Robert Spence testified that the Defendant often threatened Oakley and that

she suffered a black eye every month. Mia Ambrose, Oakley’s niece, testified that

in the week prior to Oakley’s death, she had heard the Defendant threaten to kill

Oakley and saw him put a knife to her throat. The Defendant’s mother had also filed

a police report in which she advised the police that the Defendant had threatened
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the life of Oakley and herself. Declarations by a defendant of his intent to kill Oakley

may be indicative of both premeditation and deliberation. Brown, 836 S.W.2d at

541-42. The Defendant’s constant threats and abusive conduct towards Oakley is

a fact of their prior relationship from which motive may be inferred by the jury to

prove premeditation and deliberation. State v. Bordis, 905 S.W.2d 214, 222 (Tenn.

Crim. App., perm. to appeal denied (Tenn. 1995).

The Defendant testified at trial that he and Oakley were having an argument

when she cut his pinky finger. He got up, walked away from the table towards the

sink, retrieved a knife from the drawer, walked back over to the table and then

stabbed Oakley three (3) times. Dr. Miles testified that a great deal of force must

have been used to produce injuries of this type upon a woman the size of Oakley.

The fact that the Defendant procured the knife he used to inflict the stab wounds

upon Oakley is a circumstance from which the jury could have reasonably inferred

premeditation and deliberation. Brown, 836 S.W.2d at 541. There is not a specific

amount of time required to form deliberation. Gentry, 881 S.W.2d at 3-4. The jury

could reasonably have inferred from the Defendant’s actions that Defendant was

acting with premeditation, pursuant to his previous threats, and with deliberation,

having sufficient time to contemplate the consequences of his actions while he

walked over to the drawer to retrieve the knife and having a cool purpose when he

returned to the table and stabbed Oakley violently three (3) times. Any reconciliation

in conflicts between the testimony of the Defendant at trial and his prior statements

to the police is a matter entrusted exclusively to the trier of fact and not this court.

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); Byrge v. State, 575 S.W.2d

292 (Tenn. Crim. App. 1978).
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As no one was at home other than the Defendant, it may be inferred that the

Defendant was the one who washed the knives he used to inflict the stab wounds.

Defendant’s actions of washing the knives, while not necessarily proof of

premeditation and deliberation, discredited his theory of self-defense as set forth in

his statements to the police and his testimony to the jury. See West, 844 S.W.2d at

148. The jury is entitled to reject the Defendant’s theory in favor of the State’s proof.

See State v. Grace, 493 S.W .2d 474, 476 (Tenn. 1973). 

Defendant subsequently argues that he did not have the mental capacity to

form the required intent to kill Oakley due to his intoxication. Other than the

testimony of the Defendant, the record is devoid of any proof that the Defendant was

intoxicated to the point to negate any specific intent. While some police officers

testified that Defendant had obviously been drinking, they also stated that he was

coherent and capable of understanding his actions at the scene of the stabbing. The

defense of intoxication negating specific intent is a question of fact for the jury. State

v. Givens, 631 S.W.2d 720, 721 (Tenn. Crim. App., perm. to appeal denied (Tenn.

1982). The jury’s findings stand and accredit the testimony of the arresting officers

rather than that of the Defendant. Having found that there were sufficient facts to

prove the elements of first degree murder, this issue is without merit.

III. ADMISSION OF PRIOR BAD ACTS OF THE DEFENDANT

The Defendant argues that the trial court erred in allowing the admission of

prior threats by the Defendant against Oakley. Specifically, the Defendant objected

to the testimony of Mia Ambrose regarding the Defendant’s threats to kill Oakley if

she left him while pointing a knife at her throat. He also objected to the testimony
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of their next-door neighbor, Robert Spence, who testified that Defendant repeatedly

threatened and abused Oakley, even as late as the day of the stabbing when

Defendant told Oakley that he would take her in the house and “whoop her ass.”

Defendant further objects to the trial court’s assistance to the State during the

hearing determining the admissibility of the testimony of Spence. Over the

objections of defense counsel, the trial court ruled such testimony admissible as

evidence of other crimes, wrongs or acts under Rule 404(b) of the Tennessee Rules

of Evidence. Even if the testimony was admissible under Rule 404(b), Defendant

contends that the probative value of such evidence is outweighed by the danger of

unfair prejudice.

“Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity with the character trait.”

Tenn. R. Evid. 404(b). However, in the exceptional case another crime may

arguably be relevant to an issue other than the accused’s character. Id., Advisory

Commission Comments; citing State v. Parton, 694 S.W.2d 299 (Tenn. 1985).

Issues such as identity, motive and common scheme or plan, intent or rebuttal of

accident or mistake are such exceptional cases. Id. Three (3) conditions must be

satisfied before allowing such evidence:

1) The court upon request must hold a hearing outside the jury’s

presence;

2) The court must determine that a material issue exists other than

conduct conforming with a character trait and must upon request state

on the record the material issue, the ruling, and the reasons for

admitting the evidence; and

3) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b)(1), (2) and (3).
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Upon objection by the Defendant, the trial court held a hearing outside the

presence of the jury regarding the testimony of Mia Ambrose as to prior threats the

Defendant made towards Oakley. Following the hearing, the trial court determined

that such testimony was admissible on the basis that “as [it] understood the rules of

evidence, this is admissible.” As the trial court failed to determine and state on the

record the material issue to which the issue was relevant and failed to find that the

probative value of the evidence was not outweighed by the danger of unfair

prejudice, our determination of the admissibility of the evidence will be based upon

the evidence presented at the jury out hearing. State v. DuBose, 953 S.W.2d 649,

653 (Tenn. 1997).

Evidence must be relevant and probative to some issue at trial and must

“make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” Tenn.

R. Evid. 401. During the jury out hearing, Mia Ambrose testified that while she

stayed in the Defendant’s home, she witnessed incidents during which the

Defendant threatened to kill Oakley because she was planning to leave him. Also,

Ambrose testified that Defendant pointed a knife at Oakley and said he was going

to kill her. These threats occurred approximately one and a half weeks prior to the

stabbing. For the jury to convict the Defendant of first degree murder, the State was

required to prove intent, premeditation and deliberation. These threats go both to

the Defendant’s intent and motive as relevant to establish material issues. Violent

acts indicative of the relationship between the victim of a violent crime and the

defendant prior to the commission of the offense are relevant to show intent. State

v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993). Furthermore, while such evidence
-24-

may have been prejudicial, the evidence was highly relevant to material issues and

did not introduce any extraneous issues to the jury. Dubose, 953 S.W.2d at 655.

On the basis of this record, the prejudice was not unfair and this court concludes that

the probative value of Ambrose’s testimony was not outweighed by the danger of

unfair prejudice.

The testimony of Robert Spence in which he stated that Defendant threatened

Oakley on the day of the stabbing and repeatedly abused and threatened Oakley

prior to that occasion was also determined admissible by the trial court following a

jury out hearing. Because the trial court complied with the requirements of Rule

404(b), our standard of review is abuse of discretion. Dubose, 953 S.W.2d at 652.

Similar to our reasoning above, these threats are admissible to prove the

Defendant’s motive and intent for proof of the elements of deliberation and

premeditation. Furthermore, the evidence was not unfairly prejudicial and was

probative of material issues. This issue is without merit.

Defendant argues the trial court improperly assisted the State in admitting the

testimony of Robert Spence which violated his right to a fair trial. Defendant did not

object at trial during the jury out hearing. Failure to make a contemporaneous

objection waives consideration by this court of the issue on appeal. See Tenn. R.

App. P. 36(a); Teague v. State, 772 S.W.2d 915, 926 (Tenn. Crim. App. 1988),

perm. to appeal denied. (Tenn. 1989); State v. Killebrew; 760 S.W.2d 228, 235

(Tenn. Crim. App.), perm. to appeal denied. (Tenn. 1988). In addition, the

Defendant failed to include this issue in his motion for new trial. Therefore, this issue

has been waived. Tenn. R. App. P. 3(e); see State v. Clinton, 754 S.W.2d 100, 103

(Tenn. Crim. App.), perm. to appeal denied. (Tenn. 1988). Even if the issue were
-25-

not waived, we fail to see from our review of the record that the Defendant was

prejudiced due to the trial court’s questioning of a witness during a jury out hearing.
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IV. JURY INSTRUCTIONS

In his second issue, Defendant claims the trial court erred in denying his

motions (1) for an amended instruction on the range of punishment and (2) to strike

the portion of the range of punishment instruction which advises the jury of the

minimum length of time the Defendant would serve prior to parole eligibility.

Defendant argues this potion of the instruction is unconstitutional. The following

instruction was given to the jury:

The punishm ent for the offense is life imprisonment, life imprisonment

without the possibility of parole or death by electrocution. The State,

however, is not seeking the death penalty or life imprisonment without

the possibility of parole and, therefore, should you return a verdict of

guilty the Court will impose a life sentence. 

The jury will not attempt to fix any sentence. However, you may weigh

and consider the meaning of a sentence of imprisonment.

You are further informed that the minimum number of years a person

sentenced to imprisonment must serve for this offense before reaching

the earliest release eligibility date is 25 years.

Whether a defendant is actually released from incarceration on the date

when first eligible for release is a discretionary decision made by the

Board of Paroles and is based on many factors. The Board of Paroles

has the authority to require a defendant to serve the entire sentence

imposed by the Court.

The trial court gave similar instructions on all lesser included offenses, including their

earliest release eligibility dates.

Defendant’s trial counsel filed a motion to charge the jury on the range of

punishment and a motion to exclude an instruction on parole eligibility as required

by Tennessee Code Annotated section 40-35-201. The trial court overruled the

Defendant’s motion regarding the exclusion of that information but granted the
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motion on charging the jury on range of punishment. While Defendant now claims

this instruction was unconstitutional and violated his due process rights, we decline

to find that the trial court erred. The statute does not violate the doctrine of

separation of powers nor does it deprive the Defendant of his right to a fair trial

pursuant to his right of due process, therefore, the statute is constitutional under the

circumstances of this case. State v. Howard E. King, No. 02-S-01-9703-CR-00021,

___ S.W .2d ___ , slip op. at 2, Shelby County (Tenn., Jackson, July 6, 1998). 

Similar to the defendant in King, Defendant relies upon Farris v. State, 535

S.W.2d 608 (Tenn. 1976), in arguing that this statute is unconstitutionally vague. In

Farris, the instruction given “provided no reasonable guidance as to the

ramifications of the parole system.” King, No. 02-S-01-9703-CR-0002, slip op. at 10.

Conversely, the statute in question here does not leave the jury to speculate about

the benefits of the parole system, but requires the Department of Correction to

compute exact figures to determine the application of various factors relevant to

release eligibility. Id. Jurors are provided with “explicit, objective, and unambiguous

guidance sufficient to overcome any allegation of vagueness.” Id. at 11.

Also, the Defendant contends that the instruction violated his rights to a fair

trial by an impartial jury based upon a misleading and inaccurate portion of the jury

instructions. Similar to the defendant in King, the Defendant in the case sub judice

compares jury instructions charged to his jury on sentencing to those jury

instructions in State v. Cook, 816 S.W .2d 322 (Tenn. 1991). The jury instructions

given on the range of punishment in Cook were not proper as the jury was only

instructed on Range I punishment when the defendant was actually subject to

punishment as a Range II offender. King, No. 02-S-01-9703-CR-00021, slip op. at
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13. Defendant’s jury instructions in the case sub judice informed the jury as to the

shortest and longest possible sentences for each offense charged to the jury.

Additionally, the jury was instructed as to the minimum portion that Defendant would

serve before becoming eligible for parole. The jury in this case was properly

instructed as to the requirements of the statute. Id. Under the circumstances of this

case and the jury instructions given under Tennessee Code Annotated section 40-

35-201(b)(2), the Defendant was not deprived of his due process right to a fair trial.

Id. at 17.

Finally, the Defendant claims that the statute in question is invalid based upon

Farris as an exercise by the legislature in judicial authority. As our suprem e court

has noted, “[H]aving already acknowledged the authority of the legislature to provide

a range of punishment instruction, we must also acknowledge that an explanation

of the reality of early release and parole is no further an encroachment into the

judicial function.” King, No. 02-S-01-9703-CR-00021, slip op. at 8. As the jury must

decide the issue of guilt or innocence and the trial court must determine the ultimate

sentence, Tennessee Code Annotated section 40-35-201(b)(2) does not violate the

Separation of Powers Clauses of the Tennessee Constitution. Id. 

We affirm the judgment of the trial court.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:
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___________________________________

GARY R. WADE, Presiding Judge

___________________________________

L. T. LAFFERTY, Special Judge