FILED

May 5, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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 BRADDOCK, ) JUDGE

)

Appellant. ) (Direct Appeal - First Degree Felony

) Murder)

FOR THE APPELLANT: FOR THE APPELLEE:

JAMES BALL JOHN KNOX WALKUP

217 Exchange Attorney General and Reporter

Memphis, TN 38105

MARVIN E. CLEMENTS, JR.

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

WILLIAM L. GIBBONS

District Attorney General

PAUL GOODMAN

JANET SHIPMAN

Assistant District Attorneys

201 Poplar Avenue

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

On Septem ber 12, 1996, a Shelby County jury found Appellant, Darrell E.

Braddock, guilty of first degree felony m urder, criminal attempt: to wit especially

aggravated robbery, criminal attempt: to wit murder in the first degree, and two

counts of aggravated assault. Appellant appeals from his convictions, raising two

issues:

1) whether the evidence presented at trial was legally sufficient to support

the jury’s verdict; and

2) whether the trial court erred in allowing the State, because of the victim ’s

family’s feelings, to withdraw its offer of a plea bargain.

After a review of the record, the judgment of the trial court is affirmed.

FACTS

On January 12, 1994, at approximately 7:12 am, three armed masked men

entered Dan’s Big Star Grocery Store at 3237 Winchester, Memphis, Tennessee.

At the time the men entered, Robby Allen, Jr., Felicia Bailey, Janice Cox, Angela

Adams, Malcolm Clark, and Johnny Russell, along with other employees of the

store, were inside the store. When Robby Allen, who was working in the store’s

office, saw a black male run across the store with a gun drawn, he reached for

his own gun. Before Mr. Allen could draw his gun, Michael Irvin jumped over the

partition between the office and the rest of the store and landed on Mr. Allen’s

shoulder. Irvin was armed. Mr. Allen and Mr. Irvin struggled for control of Mr.

Irvin’s weapon, in the process the weapon fired into the air.
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While Mr. Allen and Mr. Irvin struggled, Appellant had run to cash register

number two where Felicia Bailey, a store employee, was standing. Appellant

pointed his gun at Ms. Bailey and ordered her to get down on the floor. Ms. Bailey

complied. Appellant then turned and pointed the gun at Malcolm Clark, who also

got down on the floor. Mr. Clark identified exhibit 15, a .380 caliber automatic

pistol taken from Appellant’s aunt’s home, as a weapon resembling the gun which

Appellant pointed in his face. 

During the commotion, several shots were fired. One shot came from the

store floor. Another cam e from the gun over which Mr. Allen and Mr. Irvine

wrestled. In the struggle over the gun, Mr. Irvin fell and Mr. Allen fell on top of

him. Mr. Allen reached for a pair of handcuffs that were in the office. As he was

doing so, a gun was extended over the wall into the office and fired into the back

of Mr. Allen’s neck, causing him to lose consciousness.

Once the commotion ceased, Ms. Cox jumped over the back wall of the

office and ran to a phone located in the rear of the store and called 911. Ms.

Adams also called 911 and pulled the store’s alarm.

Mr. Clark crawled along the floor toward the office. He saw Johnny Russell

lying on the floor with a large amount of blood on the floor around him. Mr. Clark

retrieved Mr. Russell’s .357 Smith and Wesson pistol from the floor in front of Mr.

Russell’s body. Mr. Clark then climbed over the wall into the office and

handcuffed Mr. Irvin and also confiscated Mr. Irvin’s weapon, a .25 caliber

autom atic pistol. Mr. Clark picked up Mr. Allen’s .380 caliber Browning pistol. Mr.
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Allen recovered consciousness and gave the store keys to Mr. Clark, who locked

the doors to the store.

Mr. Russell died as a result of a gunshot wound to his back. No bullet or

bullet fragments were found in his body. Mr. Allen was hospitalized for ten days,

recovering from the wound to his neck. A bullet was removed from his body. Mr.

Irvin died as a result of gunshot wounds from a .38 or a .357 caliber revolver.

Appellant made a statement to Sergeant Timothy Cook, of the Memphis

Police Department, which was introduced at trial. In the statement, Appellant

confessed to being involved in the attempted robbery of Dan’s Big Star Grocery.

Appellant said he used a black .380 pistol (introduced at trial as exhibit 15) which

belonged to his aunt. Appellant also stated that Carlos Rice was the third

perpetrator in the robbery, and that he used a long-barreled revolver. Appellant

stated that he took the revolver from Mr. Rice and threw it into a field. A Colt .38

revolver was located by the police in the field indicated by Appellant and was

introduced at trial as exhibit 23. Appellant further stated that Mr. Rice told him

that Mr. Rice had shot the store manager in the back (referring to Mr. Russell)

because otherwise the manager would have shot him.

At trial Mr. Rice testified that he had plead guilty to murder in the

perpetration of a robbery and related charges arising out of the attempted

robbery of Dan’s Big Star. He acknowledged that he is currently serving a life

sentence for those crimes, but stated that he is attempting to obtain postconviction relief from his plea. Mr. Rice testified that he did not have a gun during

the attempted robbery, and denied that he shot Mr. Russell. He said that he
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recognized the .380 automatic (exhibit 15) as Appellant’s aunt’s gun, but said that

Appellant used the .38 revolver (exhibit 23) during the robbery. He further testified

that Michael Irvin planned the robbery. He stated that the plan consisted of Mr.

Irvin taking care of the people in the office, he was to be positioned at register

one and Appellant was to take register two. Mr. Rice testified that he did not

shoot Mr. Allen and did not see Appellant shoot him either.

The State also presented evidence at trial that Appellant’s palm print was

on the car used to convey the perpetrators to and from Dan’s Big Star. A Mr.

Steve Scott of the Tennessee Bureau of Investigation testified that he tested the

Colt. 38, the .25 caliber, the Browning .380 automatic, and the Smith and

Wesson .357 Magnum, and of those guns, the bullet which was taken from Mr.

Allen’s body could only have come from the .38 revolver. He was unable to state

conclusively that the bullet did come from that gun, but ruled out the possibility

that it came from one of the other guns found at the scene.

I. SUFFICIENCY OF THE EVIDENCE

Appellant contends that the evidence presented at trial was not legally

sufficient to support the conviction of criminal attempt: to wit murder in the first

degree. When an appellant challenges the sufficiency of the evidence, this Court

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s witnesses and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W .2d 253, 259 (Tenn. 1994); State v. Harris, 839

S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a
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presumption of innocence, a jury verdict removes this presumption and replaces

it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,

on appeal, the burden of proof rests with Appellant to demonstrate the

insufficiency of the convicting evidence. Id. On appeal, “the [S]tate is entitled to

the strongest legitimate view of the evidence as well as all reasonable and

legitimate inferences that may be drawn therefrom.” Id. (citing State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evidence is

contested on appeal, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reasonable doubt. Harris, 839 S.W .2d at 75; Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In

conducting our evaluation of the convicting evidence, this Court is precluded from

reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 1996); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences “for those

drawn by the trier of fact from circumstantial evidence.” Id. at 779. Finally, the

Tennessee Rules of Appellate Procedure, Rule 13(e) provides, “findings of guilt

in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact beyond a

reasonable doubt.” See also State v. Mathews, 805 S.W.2d at 780.

At trial, the State presented the testimony of Carlos Rice, Appellant’s

cousin and partner in this crime. Mr. Rice testified that he did not carry a gun on

the day of the attempted robbery, and that he did not shoot anyone. He also

stated that Appellant used a .38 caliber revolver during the robbery. Expert
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ballistics testimony revealed that a .38 caliber bullet was recovered from Mr.

Allen’s body.

The offense of first-degree murder, at the time of this crime, required a

showing of an intentional, premeditated and deliberate killing. Tenn. Code Ann.

§ 39-13-202 (1991). A premeditated act is “one done after the exercise of

reflection and judgment.” Tenn. Code Ann. § 39-13-201(b)(2) (1991).

Premeditation can be formed in an instant. State v. Brown, 836 S.W .2d 539

(Tenn. 1992). A deliberate act is “one performed with a cool purpose.” Tenn.

Code Ann. § 39-13-201(b)(1)(1991). Deliberation is present when the

circumstances suggest that the actor contemplated the manner and

consequences of his actions. State v. West, 844 S.W.2d 144, 147 (Tenn. 1992).

On appellate review, questions of fact, contradictions in testimony, and the

credibility of witnesses are left for the jury to resolve. Byrge v. State, 575 S.W.2d

292, 295 (Tenn. Crim. App. 1978). There is ample evidence to support the

conclusion that appellant shot Mr. Allen as Allen got the better of one of

Appellant’s compatriots during the robbery. Clearly, such a shooting was

deliberate and premeditated. This issue is without merit.

II. STATE’S REFUSAL TO OFFER PLEA BARGAIN

Appellant also complains that the family of Johnny Russell blocked an offer

which the State had previously extended to Appellant regarding a plea

agreement. It is well-settled that even in the presence of an agreement, an

Appellant does not have an absolute right to have a plea bargain accepted.

Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971).
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There is also no obligation on the State to offer any benefit or advantage to a

defendant by reason of his pleading guilty, and aside from any agreement that

may exist between a defendant and the State in reference to the entry of the

guilty plea, the ultimate decision to accept or reject any such plea is to be made

by the trial court. William s v. State, 491 S.W.2d 862, 867 (Tenn. Crim. App.

1972). It is also well-settled that any plea bargain offer from the State is

revocable until it is accepted by the trial court. See Mabry v. Johnson, 467 U.S.

504, 104 S.Ct. 2543, 2548, 81 L.Ed.2d 437 (1984). The ultimate decision whether

to accept or reject a particular plea bargain agreement rests entirely with the trial

court. A prerequisite to the effectiveness and enforceability of a plea agreement

is its approval by the court. State v. Todd, 654 S.W.2d 379, 382 (Tenn.1983). In

the matter sub judice, it appears that the State and Appellant had engaged in

plea negotiations, but had not formally entered a plea. Until such time as the trial

court accepts the plea agreem ent, the State is free to rescind any offer it makes.

While withdrawing a plea bargain offer prior to its acceptance by the trial

court may be unacceptable if the withdrawal is premised on some invidious basis

such as race, gender or religion, victim impact is not a prohibited basis for

withdrawing an unapproved plea bargain offer. This issue is without merit.

Accordingly, for the aforementioned reasons, the judgment of the trial court

is affirmed.

____________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

GARY R. WADE, JUDGE