### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs O

ctober 2, 2001
STATE OF TENNESSEE v. MAURICE LYDELL PURDY Direct Appeal from the Circuit Court for Obion County No. 6-310 William B. Acree, Jr., Judge

No. W2000-00460-CCA-R3-CD - Filed November 9, 2001

The defendant, Maurice

Lydell Purdy, wa

s convicted of second de gree murder an d given a Range I sentence of 19 years. There was no direct appeal. Within a year of the conviction, the defe ndant filed a petition for post-conviction relief. After the trial court denied relief, this court reversed and granted a delayed appeal. See Maurice Ly dell Purdy v.

State , No. 02C01-9807-CC-00211 (Tenn. Crim. App., at Jackson, Apr. 7, 1999). In this delayed appeal, the def endant challenges the sufficiency of the evidence. The judgment of convic tion is affirmed. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
G ARY R. W ADE , P.J., delivered the opinion of the court, in which J OSEPH M. T IPTON and R OBERT W. W EDEMEYER , JJ., joined. David L. Hamblen, Union City, Tennessee, for the appe llant, Maurice Lydell Purdy

. Paul G. Summers, Attorney General & Reporter; T.E. Williams, III, Assistant Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
On June 23, 1996, the defendant shot and killed the victim, Demetrius Davis, in retaliation for a beating the victim had administered to the defendant's mother on June 19, 1996. The victim had also kicked the defendant's sister in the face on June 20, 1996. The defend ant's cousin, Ta

mmy Bolden, called the defe

ndant and told him ab

out the beatings.

Additionally, she informed him that the victim had again thr eatened harm to his mot her, stati ng that he had "whooped [t he defendant 's sister] and was gonna whoop [the defenda nt's mother]." Th

e victim, who was sh

ot near his residence, suffered one wound to the wrist and three to the back. W h ile acknowledg

ing his responsibility

for the shooti ng, the defendant, who was charged with first degree murder, maintained at trial that the homicide qualified as voluntary manslaughter.-2-

A panel of

this court granted a delayed appeal based upon the state statutory right to one level of appellate revie

w and the guara

ntee of a similar r

ight by the U

nit ed States Constitution. See Purdy , No. 02C01-9807-CC-00211, slip op. a t 6; see also Collins v. State , 670 S.W.2d 219, 221 (Tenn. 1984) (cit ing Douglas v. Califo rnia , 372 U. S. 353 ( 1963); Ross v. Moffitt, 417 U.S. 600 (1974)). The panel concluded that after the original trial, the defendant's attorn ey had failed to properly secure his waiver of the right to direct appe al.
In this delayed appeal, the defendant complains that while the evidence w as suffi cient to support a conviction for v

oluntary ma

nslaughter, it w

as insufficient to

support the convic tion for second degree murder. The defendant acknowledges that the state introduc ed a c onfession indi cating that he had contemplated the murder for several days bef ore firing the fatal shots, but he contends that the jury rejected the evidence of premeditation by returning a verdict of second degree murder. The defendant arg

ues that a comprom

ise verdict is inappropria te and that the judgment should be modified to voluntary manslaughter based upon the remaining proof. The defendant asserts that "the real provocation occurred on Sunda y immediatel y prior to the shooting" when

he observed his mother's "swollen face and the cut above her ey e."
At t rial, the state established that the defendant, joined by two other men, drov e fro m Tiptonville

to Union City after learning of the victim's misconduct. The defendant, armed with a .38 caliber revolver, found the victim at his apartment complex and ran after him when he tried to flee. The defendant confessed that he had shot the victim until he ran out of ammunition. Ten witnesses testified on behalf of the state. Three witnesses testified on behalf of the defense.
On appeal, the state is entitled to the strongest l

egitimate view o

f the evidence a

nd all inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony , and the reco ncili ation of conflicts in the evidence are matters entrusted exclusively to the jury as the trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). The relevant question is whether, after reviewing the evidence in th e light most

favorable to

the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable do

ubt. Tenn. R. App. P. 1 3(e); State
v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). This court may neither reweigh nor reevalua te the evidence; nor may

this court substitute its inferences for those drawn by the trier of fact. Liakas v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). The evidence is sufficient when a rational trier of fact could conclude that

the defendant is g

uilty bey ond a reasonable

doubt. Jackson v. Virgini a , 443 U.S. 307, 319 (1979). The defendant has the burden of demonstrating that the evidence is not sufficient when there is a challenge to the sufficiency of the e vidence. State v. Tuggle

, 639 S.W.2d 913, 914 (Tenn. 1982).
Second degree

murder is defined as "a knowing killing of another . . . ." Tenn. Code Ann. § 39-13- 210; see Sta te v. Collins , 986 S.W.2d 13 (Tenn. Crim. App. 1998); State v. Gray , 960 S.W.2d 598 (Tenn. Crim. App. 1997) . Volunta ry manslaughter is, of course, a lesser included of fense of second degree murder. State v. Ruane , 912 S.W.2d 766 (Tenn. Crim. Ap p. 1995)

. Voluntary

manslaughter is defined as "the intention al or knowing killing of another in a state of-3-

passio n pr oduced by adequate provocation sufficient to lead a rea sonable person to act in an irrational manner." Tenn. Code Ann. § 39-13-211.
In this instance, the jury received instructions on both second degree murder and voluntary manslaughter. There was evidence of provocation and evidence that the defendant

armed himself, drove several miles to a neighboring city, and then pursued the fleeing victim be

fore shooting him in the back. The jury is presumed to have followed the instructions of the trial court which, in this case, were properly given. See State v. Newsome , 744 S.W.2d 911, 915 (T enn. Crim. App. 1987). It was the prerogative of the jury to assess the cre

dibility of the

witnesses, to weigh the evidence, and to determine the appropriate degree of homicide. On occasion, a jury will exercise its prerogative by determining that the defendant is guilty of a lesser offense, even in light of proof of the greater offense. SeeTenn. Const. art. I, § 19 ("the jury shall ha

ve a right to dete

rmine the law and t

he facts, under the direction of th

e court . . . in all

criminal cases" ); see also, e. g. , State v. Allen , 692 S.W.2d 651, 653 (Tenn. Cri

m. App. 1985); State v. Ray Vance , No. 01C01-9610-CC-00425 (Tenn. Crim. App., at Nashville, Dec. 3, 1997), app. for perm. to app. denied , (Tenn., S ept. 21, 1998); State v. Sherman David Lawson , No. 03C01-9107-CR-192 (Tenn. Crim. App., at Knoxville, Feb. 6, 1992)

. That is not the case here. The evidence was sufficient to support the jury 's verdict. Accordingly, the judgment of conviction for second deg ree murder is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE