# FILED May 5, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON MARCH SESSION , 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9707-CR-00279 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. CAROLYN WADE BLACKETT DARRELL BRA DDOCK, ) JUDGE ) Appe llant. ) (Direct Appeal -

First Degr

ee Felony ) Murder)

FOR THE APPELLANT : FOR THE APPELLEE : JAMES BALL JOHN KNOX WALKUP 217 Exchange Attorney Generaland Reporter Memphis, TN 38105 MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 WILLIAM L . GIB BONS Distri ct Attorney General PAUL GOODMAN JANET SHIPMAN Assistant District Attorn eys 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION
On Septem ber 12, 1 996, a S helby C ounty jury fo und Ap pellant, Darre ll E. Braddock, guilty of

first degree felony m urder , crimin al attem pt: to wit e spec ially aggravated robbery, criminal a ttempt: to wit murder i n the fi rst degr ee, and t

wo counts of aggravated assaul t. Appel lant ap peals f rom his con vict ions, raisi ng two issues:
1) whetherthe evidence pre sented at trial was leg ally sufficient to support the jury’s verdi ct; and 2) wheth er the tr ial cou rt erred in allowin g the State, beca use o f the victim ’s family’ s feeli ngs, to wi thdraw its offer of a plea bargai n. After a review of the r ecord, the j udgment of the t rial cour t is af firmed.

FACTS On January 12, 1994, at approximately 7:12 am, thr ee armed masked men entered Da n’s Big Star Grocery Store at 3237 Winchester, Memphis, Tennessee. At the time t he men entered, Robby Allen, Jr., Felicia Bailey, Janice Cox, A ngela Adams, Malcolm Clark, and Johnny Russell , along wi th other employees ofthe store, were insid e the store. When Robby Allen, who was working i n the store’s office, saw a b lack ma le run acro ss the sto re with a gu n drawn , h e reac hed for his own gun. Before Mr. Allen coul d draw his gun, Michael Ir vin jumped over

the partit ion between the office and the r est of thestore and l anded o n Mr. Alle n’s shoulder. I rvin was a rmed. Mr. A llen and Mr. Irvin struggle d for control of Mr. Irvin’s weapon, in the p rocess the w eapon fired into the air.-3- W hile Mr. Alle n and Mr. Irvin struggled, Appellant had run to cash register number two where Felici a Bailey, a store employee, was standing. Appellant pointed his gun at Ms. Bailey an d ordere d her to get down on the f loor. Ms. Bailey complied. Appellant t hen turned and pointed the gun at Malcolm Clark, who also got down on the fl oor. Mr. Cl ark identified exhi bit 15, a .380 cali ber au tomati c pistol taken from Appellant’s aunt’ s home, as a weapon resembling the gun which Appe llant pointe d in his face
. During the commotion, several shots were fir ed. One shot came from th e s tore floor. Another cam e from the gu n over which M r. Allen and Mr. Irvin e wrestled. In the strug gle over th e gun, M r. Ir vin fel l and Mr. Al len fellon top of him. Mr. Allen reached for a pair of handcuffs that were i n the offi ce. As he was doing so, a gun was extended over the wall i nto the office and f ired into the back of Mr. Allen’s neck, causing him to lose consciousness.

Once the commotion ceased , Ms. Cox jumped over the bac k wall of the office and ran to a ph one located in the rear of the store and called 911. Ms. Adamsals o ca ll ed 91 1 andpul ledthesto re’ s al arm.

Mr. Clark crawled al ong the fl oor toward t he office. He sa w Joh nny R usse ll lying on the fl oor with a l arge amount ofblood on the floor aroun d him. Mr. Clark retri eved Mr. Russell ’s .357Smith and Wesson pistol f rom the floor in front of Mr. Russ ell’s body. Mr. Clark the n climbed over the wall i nto the office and handcuffed Mr. Irv in and also co nfiscated Mr. Irv in’s weapon, a .25 cali ber autom atic pistol . Mr. Clark picked up Mr. Alle n’s .380 caliber Bro wning pistol. Mr.-4-

Allen recovered consc iousness and gave t he store keys to Mr. Clark, who l ocked the doors to the store.

Mr. Russell di ed as a res ult o f a gunshot wound to his back. No bul let or bullet fragments were f

ound in his body . Mr. All en was hospital ized for ten days, recoveri ng from the wound to his neck. A bul let wasremoved from his body. Mr. Irvin died as a result of gu nshot wou nds from a .38 or a .357 ca liber revolver.
Appellant

made a statement to S ergea nt Tim othy C ook, o f the Me mph is Police Depa rtment, w hich wa s introduc ed at t rial . In the statement, Appel lant confessed to being involved in the attempted robbery of Da n’s Big Star G rocery. Appellant

said he used a black . 380 pistol(intr oduced at trial as exhi bit 15) which belonged to his aun t. Appellan t also state d that Ca rlos Rice was the th i rd perpetrator in therobbery, and that he used a l ong-barrel ed revolver . Appellant stated that he took th e revo lver from Mr. Ric e and threw it into a fiel d. A Colt . 38 revolver was loca ted by the police in the field indicate d by Ap pellant and w as introducedat tri al as exhibi t 23. Ap pellan t further stated that Mr . Rice to ld him thatMr. Rice had sh ot the s tore m anag er in the back (referrin g to Mr . Russ ell) beca use oth erw isethemana ger woul d hav

e sh ot h im.

At trial Mr. Rice testified that he ha d plead guilty t o m urder in t he perpetrat ion o f a robbery and related charges aris ing out of the attempted robbery of Da n’s Big Star. H e ackn owledg ed that he is currently s erving a life sentence for those c rimes, b ut stated th at he is atte mpting to obtain p ostconvicti on relief

from his pl ea. Mr. Rice testifi ed thathe did not have a gun during t he attemp ted robbery, and denied that he shot Mr. Russel l. He said t hat he-5-

recognized the .380 automatic (exhi bit 15) as Appellant ’s aunt’ s gun, butsaid that Appellant

used the .38 r

evolver (exhibit

23) during t he robbery. He f ur ther test ified thatMichael Ir

vin plannedthe r

obber y. Hestated that the plan consisted of M r. Irvin taking ca re of the pe ople in the office, he w as to be p ositioned at r egist er one and App ellant was to take re gister two. Mr. Ri ce testi fied that he did not shoot Mr. Allen a nd did not see Appellant sho ot him either.

The State also presented evidence at trialthat Appell ant’s pal m printwas on th e car used to con vey the perpetra tors to and from Dan’s Big S tar. A Mr. Steve Scott of t he Tennessee Bureau of Invest igation testified that h e tested th e Colt. 38, the .25caliber, the Browning . 380 automatic, and the Smith and Wesson .357 Magnum, and of those guns , the bullet which wa s taken from Mr. Allen’s body could only have come from the .38 revolve r. He wa s unab le to state
conc lusively that thebullet did co me from that gun, b ut ruled ou t the poss ibility that it came from one of the ot her guns found at the scene.

I. S UFFICI ENCY OF THE EVI DENCE Appellant

conte nds th at the e videnc e pres ented at trial wa s not le gall y suffic ientto support the convict ion ofcriminal attempt: to wit murder in the f irst degree. When an appellant chall enges the suff iciency of the evidence, this Co urt is obliged to review

that ch alleng e acc ording to certa in well-settled principles . A verdictof guil ty by th e jury, approved by t he trialjudge, accr edits th e testimony of the State’ s witnessesand re solves all conf licts in the testim ony in favor of the S tate. State v. Cazes , 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris, 83 9 S.W.2d 54, 75 (Tenn. 1992) . Although an accused i s origina l ly cloaked with a-6-

presumption of innocence, a j ury verdi ct removes thi s presumption and r eplaces it with one of guilt. State v. Tug gle , 639 S.W .2d 913, 914 (Tenn. 198 2). Hence,
on appeal, the burden of proof r ests wi th Appellant

to demonstrate the insuffici ency of the convicting evidenc e. Id. On ap peal, “the [S ]tate is entitled to the strongest legiti mate view of t he eviden ce as well as all r easonable and legitimate inferences that m ay be drawn therefrom.” Id
. ( citing State v. Cabbage , 571 S.W.2d 832 , 835 (T enn. 1 978)) . W here th e suffic iency o f the evid ence is contested on appe al, the relev ant questi on for the r

eviewing cour

t is wheth er any rationaltrier

of fact could have fou nd the accused gui lty of every el ement of the offense beyond a reasonabl e dou bt. Harris , 839 S.W .2d at 75; Jackson v. Virgin ia , 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In conducting ourevalua tion of th e con victing e videnc e, this C ourt is precluded f rom reweighing or recon sidering th e eviden ce. State v. Morgan , 929 S.W.2d 380, 383 (Ten n. C ri m. App. 1996 ); State v . Mathews , 80 5 S. W.2d 7 76, 779 (Ten n. C ri m. App. 1990). Mor

eover, this Cou rt may not substi tute i ts own inferences “for those drawn by the tr ie r of fact from circum stantial evidence.” Id. at 779. Fina lly, the Tennessee Rules of App ellate P roced ure, R ule 13(e) provi des, “fi ndings of guilt in criminalactions whet her by the t rial cour t or jur y shall beset aside if the evidence is insufficient to support the find ings by the trier of fact beyond a reasonab le doubt.” See also State v . Mathews , 805 S.W.2d at 780.

At trial, the State prese nted the tes timon y of Ca rlos R ice, Ap pellan t’s
cous in and partner in this crime. Mr. Rice testified that he did not car ry a gun on the day of the attempted robbery, and that he did not shoot anyone. He also st ated that Appellant us ed a .38 caliber re volver during the rob bery . Expert-7-

ballisti cs testim ony reveal ed that a .38 ca liber bullet was recove red from M r. Allen’s body.

The offense of

first-degr ee mu rder, at the time of

this cr ime, requir

ed a showing of an inte ntiona l, premeditated an d deliberate kill ing. Tenn. Code Ann. § 39-13-20 2 (1991 ). A premeditated act i s “one done after the exercise of refl ect ion and judgm ent.” Tenn. C ode Ann . § 39-13-201 (b)(2) (1991). Premedi tation can be formed in an insta nt. State v . Brown , 836 S.W .2 d 53 9 (Tenn
. 199 2). A deli berate act i s “one performed with a cool purpose.” Tenn. Code Ann. § 39 -13-201(b)( 1)(1991). Deliberat ion is present when the circumstancessuggest that the actor contemplated t he manner and consequences of his actions. State v. West , 844 S.W.2d 144, 147 (Ten n. 1992). On appe ll a te revi ew, question s of fact , contradi ctions i n testimony, and the credibility of witness es are left for the jury to resolve. Byrge v. S tate , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). There i s ample ev ide nce to support the
c onclu sion that appel lant shot Mr. Allen as Allen got the better

of one of Appe llant’s compa triots during the ro bbery. Clearly, such a shooting was deliberate and pre medita ted. This issue is with out me rit.

II. STATE ’S REF USAL TO O FFER PLEA B ARGAIN Appellant

also complains

thatthe famil y ofJohnny Russell blocked an offer which the St ate had previ ously extended to Appell ant regardi ng a plea agreement
. It is

well-set

tled that even in the p resence of an agr eement, an Appellant

does not ha ve an absolute right to ha ve a plea bargai n accepted. Santo bello v. New York , 404 U.S. 257, 92 S.Ct. 495, 498, 30 L.Ed .2d 427 (197 1).-8-

There is also no obl igation on the State to offer any benefit o r adv antage to a defendantby reason of hi s pleading gui lty, and aside fr om any ag reement that may exist bet

ween a defendant and t he State in refer ence to the ent ry of t he guilty plea, the u ltimate de cision to accept or rej ect any such pl ea is to be made b y the t rial court. William s v. State , 491 S.W.2d 862, 867 (Tenn. Crim. App. 1972). It is

also wel l-settled th at any p lea ba rgain o ffer from the Sta te is
revoc able until it is accep ted by the trial court. See Mabry v. Johnson , 467 U.S. 504, 104 S.Ct. 2543, 2548, 81 L.Ed.2d 437 (1984). The ul timate deci sion whether to accep t or reject a p articular ple a barga in agree ment re sts entirely with t he trial court. A prereq uisite to the e ffectivenes s and e nforcea bility of a plea agr eement is its approva l by the cou rt. State v. Todd , 654 S.W .2d 379, 382 (Tenn.19 83). In the matte r sub ju dice, it a ppea rs that th e State and A ppella nt had enga ged in plea negotiati ons, buthad not formally en ter

ed a ple a. U nti l s uch ti me as the tri al court acce pts the plea a greem ent, the State is free to rescind any of fer it makes.

While withdrawi ng a plea bargai n offer prior to its acceptance by the trial court may be unacceptable if the wit hdrawal is premised on som e invidio us ba sis such as race, gen der or re l igion, victim i mpact is not a pr ohibited basis for withdraw ing an un approve d plea ba rgain offer. T his issue is without m erit.
According ly, for the af oremen tioned reason s, the judgme nt of the trial court is affi rmed.

____________________________________ JERRY L . SMI TH, J UDGE-9-

CONCUR:

___________________________________ JOE B. JONES, PRESI DING J UDGE

___________________________________ GARY R. WADE, JUDGE