### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A pr il 11, 200 6

STA TE OF TEN NES SEE v. LER OY BRIM MER

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. 03-05597 W. M ark Ward, Judge

No. W2005-01932-C CA-R 3-CD - F iled May 4, 2006

A Shelby CountyCriminal Court juryconvicted the appella n t , L er o y Brimmer, of first de g ree preme ditated murder , and the tria l court sentenc ed him to life imprisonme n t

. I n t his appea l, the appellant c laims that the evidenc e is insufficient to support the c onviction. Upon revie w of the

re c or d a ndthe pa

rt ie s’ br ie fs , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which A L AN E. G L EN N , J ., joined. J.C. M C L IN , J

. , n o tp ar t i ci p at i n g.

Gar land Erg uden (on appea l) and Clifford Abeles and Amy May ne (at trial), Memphis, Tenne ssee, for the a ppellant, L eroy

Brimmer.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a nd Re po rt e r; Re ne e W. T ur ne r, As sis ta nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, Di s t ri ct Attorney Gene ral; and Char les Be ll and Chris Scrug g s, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

I. F ac tu al B ac kgr ound

On J anuary

3, 2003, the appellant shot and killed his forty -one- y ear -old estra ng ed g irlfriend, V ic k y Co v in

. A t t

r ia l, T e r e s a

Pe rk in s , th e v ic ti m’ s s is te r , te s ti f ie d th a t th e v ic ti m g r a d u a te d f r om

nu rs i n g s c h o o l a n d s t ar t e d a n e w j o b s h o r t l y b e f o r e h e r d e a t h

. P e rk i n s a n d t h e v i c t i m h a d ac los e rela tionship, and the victim started dating the appe llant in November 2000. Per kins and the

ap p e ll a n t w e r e f

r ie n d s a n d g o t a lo n g w e ll

. Pe rk in s d e s c r ib e d th e v ic ti m’ s a n d th e ap p ellant’s rela tionship as “[u] p and down,” and the c ouple would often br eak up a nd rec oncile. I n November 20 02 , th e vic tim

tol d Pe rkins that he r re la tio ns hip wi th the app e lla nt w a s d e te ri or a tin g . T he vic tim de nie d th a t sh e wa s d a tin g any on e el se , b ut P e rkins la te r l e arn e d th e vic tim wa s d a tin g Re g ina ld Tay lor. The victim aske d the appe llant to move out of her a partm ent. Howe ver, the appellant-2-

re fu se d, a ndthe vic tim

mov e d o ut. On De c e mbe r 2 3, 20 02 , th e vic tim te le ph on e d Per kin s a nd tol d her tha t the appellant ha d reported to th e police tha t the victim had abandone d her c hildren. The victim wa s mad, returne d to he r apartment, picked up her children, a nd left. On Christmas day , the appellant c ame to Perkins’ home for dinner. He told Perkins that the vi ctim had “done hi m wrong ,”
t h at t h e v i ct i m was “r

unning a round,” a nd that he wa s g oing to ha ve to kill her. Perkins wa s

conce rned, but the a

ppellant assure d her tha t he was “ just talking .” The a

ppellant told Perkins, “I ain’t g oing to do nothing like that,” and Per kins did not believe the appe llant was g oing to ha rm the victim. That night, the vic tim and the police we nt to the victim’s and the appe llant’s apartment, and the police made the appe llant leave. On cross-e x amination, Perkins testified t hat t he appe llant was upset that the victim had broken up with him. She said that althoug h the appellant was usually fun

a n d t a l k a t i v e , h e w a s m a d
, i rr a t i o n a l
, a n d “ t a l k i n g c r a z y” o n C h r i s t m a s D a y.

Def lora Clark, the victim’s neig hbor, testified that a bout 5:30 a .m. on J anuary 3, 2003, she

was watching television and hea rd ar g uing outside. She looke d out the window, saw the victim, and he ardthe vic tim sa y , “L e ro y , ple a se le t me g o to wor k. I f I do n’ t go to wo rk I ’m g oin g to l os e my job.” The vic tim got into he r truck, and the appellant was standing near the truck’s passeng er side. Cla rk he arda g un sh ot, te le ph on e d 9 11 , a ndop e ne d h e r a pa rt me nt doo r. She sa w the re ve rs e lig hts

on the vic tim ’s truc k c ome on a nd he ard tw o mor e g un sh ots

. Th e vic tim ’s truc k b a c ke d u p a ndhit
a tre e and a

fenc e. The appellant wa lked ar ound to t he fr ont of the truck, put a g un in his jacket pocket, and calmly walked awa y

. Clark and her boy friend ran to the victim’s tr uck, and Clark saw that the victim wa s slumped over a nd bloody . She hear d a man in the victim’s apa rtment y ell that he wa s locked inside. Clark’ s boy friend took the ke y s out of the truck’ s ignition and unlocke d the victim’s apartment door.

On cr oss-examination, Cl ark a cknowledg ed that she told the police she did not rec og nize the person who shot the vic tim. However
, she said that she was sure that the appe llant was the g unman beca use t he v ic ti m c a ll e d h im b y n a me a n d b e c a u s e Cl ark s a w h im w a lk a w a y f r o m th e v ic tim’s truck a fter the sho o ting. She sa id she g ot a clea r look at the a

ppellant and that he did not say

an y t h i n g t o t h e v i ct i m b ef o re t h e s h o o t i n g.

Reg inald Tay lor testified that he a nd the victim had bee n living tog ether for two or

three

wee ks at the t ime of the shooting . Tay lor met the victim on Thanksg iving Day in 2002, and they be c a me ro ma nti c a lly inv olv e d tw o o r thr e e da y s late r. On De c e mbe r 2 6, 20 02 , T a y lor mov e d in to the vic tim ’s apa

rt me nt. On the mornin g of Janu ary 3, 20 03
, the vic tim g ot r e a dy fo r w or k a ndle ft

. Tay lor hea

rd a g unshot a nd hear d the victim sa y , “L eroy , please let me g o.” Tay lor started g etting dresse d, hear d another

g unshot, and tried to g et out of the a partment by

kicking the door. A ne ighbor unlocked the do o r an d l et Tay lor out of the apa rtment. He sa id that while he and the victim were dating , the appe llant would call his cellular te lephone a nd t h reaten to kill him and the victim. He said that the appe llant also hara ssed them and lef t threa t en i n g m essage s on his telephone’s voice

m ai l

. On cr o s s -e x am i n at i o n , T ay l o r t es t i fi ed t h at h e co n s u m ed al co h o l t h e n i gh tb ef o re t h e s h o o t i n g, but he denied drinking a lcohol befor e testify ing a t the appellant’ s trial. He sa id that he neve r threa tene d th e ap p e ll a n t, th a t h e n e v e r s a w th e v ic ti m te le p h o n e th e ap p e ll a n t, a n d th a t h e d id not hear the appe llant say

anything to the victim bef ore the shooting. J ust before the appe llant shot the-3-

victim, Tay lor looked out a window a nd saw the a ppellant chas e t h e v i ct im around her truck. He

a c k n o w l e d g e d h a v i n g t h r e e p r i o r c o n v i c t i o n s f

o r f o r g e r y.
Deputy Kimberly

Trippett, who wa s assig ned to the F ug itive Squad of the Sheriff’ s Offic e, testified that on the morning of January 3, 2003, the appe llant came i n t o the offic e, stated tha t he wanted to turn himself in, a nd stated that he ha d shot his girlfr iend. Deputy Trippett patted down the appe llant, and the appe llant told her that he had lef t a wea pon in his car. The Memphis Poli ce Depa rtment was then notifie d of the c rime.

Serg eant Er

ic Freema n o f t h e M em p h i s P o l i ce De p ar t m en tt es t i fi ed t h at h e c o l l ec t ed evidence from the appellant’ s car on J anuary 3. Serg eant Trippett found a .38 Spec ial handg un on the front pa sse ng e r s e a t. T he g un c on ta ine d th re e sp e nt s he lls a ndthr e e liv e ro un ds

.

Offic er Joe Stark of the Me mphis P olice De partment testified tha t he and a nother off icer interviewe d the appe llant on the day of the shooting. Offic er Stark rea d the appe llant his rights, and the appe llant signe d a wa iver of rig hts f orm. The appellant wanted to talk to the police and wa s very

re s p o n s i v e t o t h e o ff

i ce rs ’ q u es t i o n s

. He d i d n o tap p ea r t o b e u n d ert h e i n fl u en ce o f a l co h o l o r d ru gs and g ave a statement. I n the statement, the a ppellant said the following : The appe llant went to the victim’s apartment in order to talk to her and g et some answe rs. Afte r he c onfronted the victim, he fired a war ning shot into the air. T he victim g ot into her truck and backe d up the vehicle , and the appellant shot out the passeng er side w indow. The a ppellant did not see a ny

blood and fire d the g un ag ain. The a

ppellant had not planne d on shooting the v i ct im but took t he g un with him to t he vic tim ’s apa

rt me nt be c a us e he wa s a fr a id o f the vic tim ’s ne w b oy frie nda ndwa nte d to sh oo t hi m. I ns te a d o f s ho oti ng Re g ina ld T a y lor
, the app e lla nt sh ot the vic tim be c a us e sh e wa s mi str e a tin g him
, wa s ta kin g his mon e y , a ndwa s sp e nd ing his mon e y on Ta y lor

. I n h is s ta te me nt, the app e lla nt s a id that “ the g un we nt o ff

” a ndthat th e vic tim

wa s r e sp on sib le for

he r o wn de a th. On c ro ssexamination, Of

fice r Stark acknow ledg ed that the appellant was very cooper ative but upset

. The appellant ne ver told the off icer that h e h ad p l an n ed to kill t he victim. Offic er Stark sa id that the appellant wa s ang ry

but that his ang er ap p ea re d t o be dire cted a t the victim’s boy friend, not the victim. Office r Stark ac knowledg ed that he ma y have a sked the ap p el l an t i f t his was a he at-ofpassion case

.

Dr. O.C. Smit h testified that he perf ormed the victim’s a

utopsy

. The victim ha d two g unshot wounds, one to the rig ht shoulde r and one to the neck. The bullet w hich struck the shoulder tra veled do wn wa rda ndto the le ft . It to re op e n th e vic tim ’s a xilla ry art e ry , w hic h p us he s b loo d in to the arm

. The bull et t rave led i nto the vi ctim’s chest, damag ed her rig ht lung, f rac tured some r ibs, and lodg ed in the skin on her back. As to the neck wound, t he bull et entered the rig ht side of t he nec k, wher e it damag ed some muscles a nd hit some spinal bones. Dr. Smith classified the w ound to the neck a s a fle sh wound. He sa id that he found no powde r burns on the vic tim’s body , ind i ca t i n g that the appellant f

ired the g un at l east twenty -four inches away from the victim or that the bullets tra veled throug h an interme diate sourc e bef ore the y enter ed the victim. He sa id that the victim survived for about two hours af

ter the shooting and that she die d from blood loss and an inability to brea the.-4-

Tomeka D avis testified for the appe llant that she and the vic ti m at t en ded nursing school toge ther a nd beca me frie nds. On Thanksg iving Day in 2002, the victim came to Da vis’ home, wher e sh e me t D a vis ’ b ro the r- in- la w, Re g ina ld T a y lor , f or the fi rs t ti me

. Ab ou t on e we e k la te r, the vic tim told Davis that she and Tay lor had been s eeing eac h other. On t he night of De cembe r 25, 2002, the appellant tele phoned Da vis a nd told her that he w as being forc ed to move out of his and the vic tim’s apartment. At some point, Tay lor moved i n with the vi ctim. Davis continued to ha ve conve rsations wi th the app e lla nt, a ndthe app e lla nt t oldDa vis that th e vic tim ha d be e n ca lli ng him

a ndtaun tin g him about their bre akup.

David B rimmer, the appellant’s brothe r, testified that the a ppellant was “ head ove r hee ls” for the victim, that the couple wa s happy at beg inning of

their re lationship, a n d that the appe llant put the victim “above ev er y t h i n g. ” Toward the e nd of 2002, Da vid Brimmer lear ned the victim was having an af

fair. H e said that he talked with the appellant and that the appellant was de presse d and very upset. He said that the appe llant’s state of mind cha ng ed and tha t the appellant wa s confuse d. The a ppellant told B rimmer that he would not hurt the victim, a nd Brimmer was surprised a bout the shooting.

Th e app e lla nt t e sti fi e d th a t he wa s th e vic tim’s fia nc é , th a t th e y ha d b e e n in a

re la tio ns hip for a bout f ive y ear s, and that he paid for the victim to g o to nur sing school. Whil e the victim was in sc hool, the appellant paid their bills and boug ht c lothes for the victim’s two minor children, w ho lived with them. I n Dec ember 2002, the vi ctim’s behavior chang ed, and the appellant lea rned she was ha ving a n aff

air. A few day s befor e C hristmas, the victim left the appe llant and her children a nd would not r et u rn t o t heir home. The appellant tele phoned the police and told them to pick up the victim’s children be cause he had to g o to work. On t he night of Decembe r 25, 2002, the vi ctim had the appe llant kicked out of their apartment. After that, the appellant was not himself. He sa id that the victim and Tay lor telephone d him a nd wer e involved in sex ual beha vior over the telephone. T he victim never told the a

ppellant that their relationship was over, and the appellant tried to talk to her

. Howeve r, the victim wo u l d not talk to him. On the night bef ore the shooting, the a

ppellant had a drea m and woke up sw eating . He drove to the victim’s a partment, parke d acr oss the street, wa lked to the apar

tment, an d wa i t ed fo r t he victim to come outside. The a ppellant stated that he was wonder ing “ who is this guy , y ou know, she done throwed up in my fac e.”

The victim ca me outside and lock ed her apartment door. The a

ppellant appr oache d the victim and a s k e d if h e c o u ld ta lk to h e r

. T h e v ic ti m b e g a n y e ll in g a n d r a n ar o u n d h e r tr u c k . The appellant a sked the victim wher e Reg inald Tay lor was, and the vi ctim told the appellant, “H e ain’ t did nothing.” T he appe llant said that his mind “just snapped,” that he pulled out the g un, and that he starte d shooting. He said that he fired four shots and that he fired t he first shot into the air. The victi m go t into her truck, a nd the appe llant shot int o the vehicle . He sa id that he alwa y s car ried a g un on his person and tha t he was not try ing to shoot the victim. He sa id that the victim knoc ked the truc k o ut o f g e ar, that the truc k rol le d ba c kw ard , an d tha t he did no t know he ha d s ho t th e vic tim

. He wa lked away

from sce ne and im m ed i atelydrove to the police department. The appe llant voluntarily

confe ssed to police and told them that he thoug ht he had shot his f iancé . The a

ppellant
t es t i fi ed t h at h e s h o tt h e v i ct i m b ec au s e h e h ad go n e i n t o a ra ge, t h at h e fe l t aw fu l ab o u t t h e s h o o t i n g,-5-

and that he love d the victim. On cross-e x amination, the appe llant testified that he did not like the way the victim had trea ted him and that he wa s “der ang ed.” O n the morning of the sh o o ting, the appellant wa ited about fiftee n minutes for the victim to com e o u t o f her apartment. When he confr onted her , she told him that Tay lor had not done a ny thing. The appellant a cknowledg ed that the victim’s try ing to pr otect Ta y lor ang ere d him. The jury convicted the appellant of first deg ree preme ditated murder

.

II. Ana lys is

Th e app e lla nt c la ims that the e vid e nc e is i ns uf fi c ie nt t o s up po rt

the c on vic tio n, arg uin g that,

a t most, he is g uil ty of se c on d de g re e mur de r or vo lun tary ma ns laug hte r. I n s up po rt of his arg ume nt, he notes that witnesse s testified he was “conf used” and “talking cra zy ” before the shooting a nd that he testified he “just snapped.” The State contends that the evidenc e is suf ficient for a rational jury to conclude tha t the appellant pr emeditated killing the victim. We ag ree with the State.

When an appe llant challeng es the suff ici ency of the c onvicting e vidence , the standar d for revie w is “whe ther, a fter vie wing the evidenc e i n the light most favor able to the pr osecution, any

ratio na l tr ie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble do ub t.” Jac ks on v. Vi rg ini a , 4 43 U.S

. 30 7, 31 9, 99 S. Ct . 2 78 1, 27 89 (1 97 9) ; T e nn . R. Ap p. P. 13 (e ). On app e a l, the Sta te is e nti tle d to the s tr on g e st l e g iti ma te vie w o f the e vid e nc e a nda ll

rea sonable or leg itimate inf ere nces which may be draw n there from. State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978)

. Questions conce rning the cr edibilityof witnesses a nd the weig ht and value to be af forde d the evidenc e, as well as a ll factua l issues raised by the evidenc e, ar e re solved by the j u ryas t ri ero f f

ac t

. S t at e v

. Bl an d
, 9 5 8 S

. W

. 2 d 6 5 1
, 6 5 9 (T en n

. 1 9 9 7 ). T h i s co u rt wi l l n o tre we i gh or reeval u a te th e e v id e n c e

. I d

. B e c a u s e a ju r y c o n v ic ti o n r e mo v e s th e p r e s u mp ti o n o f in n o c e n ce with which a de fenda nt is ini tially cloake d at trial and r eplac es it on appea l with one o f g uilt, a

c on vic te d d e fe nd a nt h a s th e bu rd e n o f d e mon str a tin g to this c ou rt that the e vid e nc e is i ns uf fi c ie nt. State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982).

The a ppellant was c onvicted of pr emeditated f irst deg ree murder, which is defined a s “the preme ditated and intentional killin g o f an o t h er.” Tenn. Code A nn. § 39-13-202( a)( 1). A pe rson “act s i n t en t i onally

with respec t to . . . a result of the c onduct when it is the per son’s conscious objective or

desire to . . . c ause the result.” Te nn. Code Ann. § 39-11- 302(a). Tenne ssee Code Annotated se ction 39-13-202( d) def ines “pre meditation” as “ an ac t done af ter the e x erc ise of ref lection and judg ment.”

“Preme ditation” means that the intent to kill must have be en formed pr ior to the a c t it se lf . It is no t necess ary that th e pu rp os e to kill pre- exis t in the mind of the acc u s ed fo r any definite pe riod of time. T h e m e n t a l s t a t e o f

t h e a c c u s e d a tt h e t i m e t h e a c c u s e d a l l e g e dly decide d to kill must be car efully considere d in order to de termine whether the ac cused w as s u fficie ntly fre e fr om excitement and passion as to be c apable of pre meditation.-6-

The e lement of pre meditation is a question of fac t for the jury

. S t at e v . Davidson, 121 S.W .3d 600, 614 (Tenn. 2003) . Al t h o ug h the jury may not eng ag e in spec ulation, it may infer preme ditation from the manne r an d circ umstances surr ounding the killing. B land, 958 S.W.2d at 660. Specifica lly , the following fac tors have b ee n u s ed to support a jury ’s infer ence of preme ditation: (1) the appellant’ s prior re lationship to t he victim which mig ht sugg est a motive for the killing; ( 2) the a

ppellant’s dec lara tions of intent to kil l; (3) the appe llant’s planning activities befor e the killing; ( 4) the manne r of the ki lling, including the appe llant’s using a deadly wea pon upon an unarmed victim, killi ng the victim while the victim is retre ating or attempting esca pe, or killing t he victim in a particularly crue l manner; a nd (5) the a ppellant’s deme anor be fore and af ter the ki lling, including a calm deme anor immediate ly afte r the killing. See State v. Pike, 978 S.W .2d 904, 914-15 (Te nn. 1998). Additionally , this court has sug g ested that fa cts conc erning the prior rela tionship between the appellant and the victim from whic h motive could be infe rre d is indicative of pre meditation. See State v. Gentry , 881 S.W .2d 1, 5 (Tenn. Crim. App. 1993)

.

Viewe d in the light most favor able to the State, the e vidence establishes that the a ppellant and the victim had a n “up and dow n” re lationship and that the victim had the police r emove the appellant f

rom their apa

rtment. Reg inald Tay lor immedi at el y m o ved in with the victim, which ang ere d the appe llant. I n the wee ks befor e the shooting , the appe llant t o l d T er es a P erkins and Reg inald Tay lor that he wa s g oing to kill the victim. On the morning o f J an u ar y 3 , 2003, the

app e lla nt dr ov e to the vic tim ’s apa rt me nt, pa

rk e d h is c ar a c ro ss the str e e t, w a ite d f or the vic tim

to come outside, c onfronted he r, and f ired a war ning shot int o the air. When the unarmed victim got into her truck a nd tried to flee from the a ppellant, he shot he r twice. He then c almly walked a way from the sc ene a nd drove to the s h eriff’s depa rtment. Althoug h the appe llant claimed at tria l that he did not know he ha d shot the vi ctim, Deputy Trippett t estified that the appe llant walked into the office and told her that he shot his gir lfriend. At tria l, the appellant a dmitted he was a ng ry with the victim about their brea

kup and about he r re lationship with Tay lor. We conclude that the evidenc e

overw helming supports the jury ’s finding that the appellant intentionally , and with pre meditation, killed the victim.

III. Conclusi on

B a se d u po n th e re c or d a ndthe pa rt ie s’ br ie fs , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ NORMA McGEE OGLE, J UDGE