### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE August 2000 Session

STATE OF TENNESSEE v. JAMES MCKINLEY CUNNINGHAM

Appeal from the Criminal Court for Grundy County No. 3096 Buddy D. Perry, Judge

No. M1999-01995-CCA-R3-CD - Filed October 13, 2000

The defendant was convicted by a Grundy County jury of premedi tated first degree murder and sentenced to life. In this

appeal, he chal

lenges: (1) the sufficiency of the evidence; (2) the admission of a photograph of

the victim's body

; (3) the exclusion o

f testimony r

elating to statem

ents made by the victim; and (4) the evidentiary rulings relating to the victim's propensity toward violence. Upon our review of the

record, we find

no reversible er

ror and affirm th

e judgment of the

trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OE G. R ILEY , J., delivered t he opinion of the court, in which J ERRY L. S MITH , J., a nd L. T ERRY LAFFERTY , Sr. J., joined.

Paul Cross, Monteag

le, Tennessee, f

or the appellant,

James McKinley

Cunningham.

Paul G. Summers, Attorney General and Reporter; David H.Findley, As sistant Attorney General; James Michael Taylor, District Attorney Ge neral; and Steven H. Strain, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Defendant

was convicted by a Grundy County jury of premeditated fir

st degree murder and sentenced to life

with the possibility

of parole. He ra

ises the following

issues on appeal:

(1) whether the evidence was sufficient to sustain his conviction; (2) whe the r th e tr ial cou rt e rred in a dmi tti ng a p hot ogra ph o f th e vi cti m's b ody; (3) whether the trial court erre d in excluding testi

mony relatin

g to statements by

the victim; and (4) whether the trial court erred in its evidentiary rulings relating to the victim’s propensit

y toward violence.1 It appears Campbell was unsure when she related the information about the unborn chil d threat to the defendant. She s

tated that

she believed sh

e told him on the

day of the murder,

but admitted i

t could have been af

ter the murder.

2 We conclude the evi

d ence wa s sufficient to sustain the defendant’s conviction, and the trial court committed no reve

rsible error in its

evidentiary rulings. Therefore, the judgment of the trial court is affirmed.

FACTS

It is undisputed that the defendant shot and killed his father on February 19, 1997.

Approximately

one week before the homicide, the defendant w as arrested on c harges of thef

t. An inmate testified that the morning before the homicide, the defendant told him that he was going to kill the "son of

a bitch," refe

rring to his father. Thereafter, the defendant was released on bond.

The defendant’s girlfriend testified that the morn ing before the murd er, she told the defendant his father “trie

d something” with

her while the defendant was in jail. Shefurther testified that, on the night of the murder, she was sleeping with the defendant and awoke to see the defendant’s father standing in the doorway

looking at her. Sh

e then told th

e def endant that his father was “peeking through the blanket" covering the doorway. According to her testimony , the defendant sat up, smoked a cigarette, t

hen retrieved hi

s British Lee

Infield bolt a

ction rifle, went

into the living roo

m, andshot his father while his father was lying on the couch. She testified that there were

several shots with five or six seconds between each shot.

Thereafter, the defendant loaded the body in the trunk of his mother's car , took i t to Monteagle, and dumped the body over a ravine in a remote area. D efendant also burned the couch anddisposed of his

father's clothing and the weapon. The defendant, his girlfriend and mother then left for Oklahoma.

The victim’s body

was not discovere

d until March 23, 19

97. The defenda

nt was arrested i

n Oklahoma

in April of 1997. On the return trip to Tennessee, the

defendant told the

Grundy Count

y Sheriff, “I shot the son of bitch, I should have shot him twenty years ago for what he’s done in the past and what he would do in the future.” The defendant also informed the Sheriff that he had dispos edof the weapon in a nearby lak

e. Subsequently

, the weapon was l

ocated at th

e place the defendant had described.

At trial, the defendant co ntended tha t he was provoked by the victim’ s actions toward h is girlfriend. He testified that on the day of the murder, his girlfriend told him the victim “tried to rape” her. The defendant f

urther testified

that his girlfrie

nd was pregnan

t with his child, and t

hat she told him the victim threate

ned their unborn c

hild if the girlfr

iend told any

one about the incid

ent. 1 The defendant also testified that when he bolted the gun, the victim tried to knock the gun out of his hand and the first

shot missed, but he “

kept shooting” un

til his mother tried t

o take the gun fr

om him

.3

Add iti ona lly, the defendant offered the testimonyof a psychologist who testified that the defendant suffered from post traumatic stress disorder as a result of trauma experienced during the defendant’s childhood.

The defendant’s theory at trial was that he was provoked; theref ore, the homicide was, at most, voluntary manslaughter. The trial court charge d the jury with the offenses

of premeditated

first degree murder, second d

egree murder

, voluntary m

anslaughter a

nd reckle ss ho micide. The jury found the defendant guilty of premeditated first degr ee murder.

I. SUFFICIENCY OF THE EVIDENCE

The defend ant contends the evidence was insufficient to sustain his conviction for premeditated

first degree murder. He claims the evidence showed he was adequa tely provoked; therefore, the evidence only supports a conviction for voluntary manslaughter.

A. Standard of Review

In determining thesufficiency of the evidence, this Court does not reweigh or reevaluate the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee
, 885 S.W.2d 797, 803 (Tenn. 199 4). On appeal, the

state is entitled to t

he strongest

legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. Id. This Courtwill not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant demonstrates that

the facts contained in the record and the inferences which may be drawn therefrom

are insufficient, as a matter of law, for a rational trier of fact to fi nd the accused guilty bey ond a reasonable

doubt. State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Ac cordingly , it is the appellate court

's duty to a

ffirm the convict

ion if the evidence, viewed under these standards, was sufficient for any rational trier of fact to have found the essential elements of the offense beyond a reasonable doub

t. Tenn. R. App. P. 13(

e); Jackson v. Virgini

a , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2

d 560 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994).

B. Premeditation

The applicable definition of first degree murder is “[a] premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation necessitates “a previously formed design or intent to kill,” State v. West , 844 S.W.2d 144, 147 (Tenn. 1992)(citations omitted), and “an act done after the exercise of reflection and judgment . . . [meaning] that

the intent to kill must have been formed prior to the act itself.” Tenn. Code Ann. § 39-13-202(d). It also require s that the accused be “sufficiently free from excitement and passion as to be capabl e of premedi tation.” Id. A homicide, once proven, is presumed to be second degree murder, and the state has the burden of proving premeditation to raise the offense to first degree murder. State v. Nesbit , 978 S.W.2d 872, 898 (Tenn. 1998).4

Although the jury may not enga ge in speculation, it may infer premeditation from the manner andcircumstances of the killing. State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997); State v. Bordis
, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Our Supr eme Court delineated several circumstances that may be indicative of premeditation, including the use of a deadly weapon

upon an unarmed victim, the fact that the killing was parti

cularly cr uel, declaratio

ns of the intent to

kill the victim by the defend ant, the makin g of preparations before the killing for the purpose of concealing the crime, and calmness immediately after the killing. See Bland , 958 S.W.2d at 660.

C. Analysis

Viewing th e evidence in the light most favorable to the state, we must conclude that the evidence was sufficient to support the defendant’s conviction for premeditated first degree murder. While the jury was charged with the law on voluntary manslaughter, it o bvi ous ly re jec ted thi s th eory. This court has previously concluded that it is the jury’s prerogative to reject the defendant’ s claim of provocation. State v. Meade , 942 S.W.2d 561, 564 (Tenn. Crim. App. 1996).

Voluntary

manslaughter is the “intentionalor knowing killing of another in a state of passion produced by adequat

e provocation suf

ficient to lead a r

easonable pers

o n to actin an irrational manner.” Tenn. Code Ann. § 39-13-211(a). Whether the defendant’s acts constitute a killing due to “adequate provocation” is a question for the jury. Statev. Johnson , 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995). The cruci al issue for our cons ideration is wheth

er the evidence

established all of the elements of premeditated first degree murder.

The evidence of pro

vocation came

from the testimony of the defendant and the defendant’s girlfriend. The girlfriend stated that on the morning before the murder, she told the defendant the victim “tried something” with her. However, the jury also heard testimony that the defendant

earlier announced his intent to kill the v ictim. Additionally

, defendant’s g

irlfriend testifi

ed that th e defendant sat on the edge of the bed and smoked a cigarette before retrieving the gun and shooting his father.

At the time of the murder, the victim was lying on the couch and d

id not have a weapon. The defendant testified that when he picked up the gun by his bed, he

intended to shoot the victim. When the first shot missed the

victim, he continue

d to fire until

his mother tried to take the gun out of his hands. Two bullets struck the victim. The jury heard agents from the Tennessee Bureau of Investigation

testify that defendant’s weapon was a bolt action rifle, and the defe ndant’s girlfriend testified that there were five to six seconds between shots. The medical testimony revealed that the victim could have survived for fifteen to thirty minutes before bleeding to death, y et no medical treatment was sought.

We note that concea

lme nt of evi dence after the crime is, alone, in

sufficient to esta

blish premeditation. West
, 844 S.W.2d at 148. How ever, calmness i

mmediately a

fter a crime is

relevant in determining the element of premeditation. Bland , 958 S.W.2d at 660. Here, testimony from the defendant’s girlfriend

and the defendant himself revealed that he had the pre

sence of mind shor

tly5

after the murder

to attempt to distract the neighbors by ye lling at an imag

inary dog and firing shots into the air so that the neighbors would not be curious about the previous shots. He then disposed of the victim’s body in an extremely remote area, dumped the weapon in a nearby lake, burned the couchon w hich h is father was ly ing, and threw a

way the vic

tim’s clothing. He

then fled to Oklahoma. Furthermore, while he was being tra nspor ted from Oklahoma to Tennessee, the defendant stated, “I shot

the son of a bitch, I should have shot him twenty y ears ago for what

he’s done in the past and what he would do in the future.”

We conclude therewas adequate evidence for the jury to conclude the defendant suffi

ciently reflected upon his actions before shooting the victim. See Tenn. Code Ann. § 39-13-202(d). Th us, the jury coul d reject the defendant’s theory of adequate provoc ation. Therefore, in the light mos t favorable to the state, the defendant’s conviction for premeditated first degree murder is supported by the evidence.

II. PHOTOGRAPH S

Prior to trial, the defendant sought to prevent the state from introducing photographs of the victim’s body into evidence. The trial court ruled that close-up photographs of the corpse would not be allowed, but

one long range photograph depicting the scene where the body was found would be admissible. The defendant contends that the photograph should have been excluded.

The admissibility of

photographs is governed by Tenn. R. Evid. 403 and State v. Banks
, 564 S.W.2d 947 (Tenn.1 978). "Although rele vant, evidence m

ay be exclud

ed if its probative

value is substantia lly outweighed by the danger of unfair pre judice, confusion of the issues, or misleading the jury...."

Tenn. R. Evid. 403. Wh

ether to admit a

photograph is wit

hin the discretion

ary author ity of the trial court, a

nd the admission will

not b e reversed absent a clear showing of an abuse of discretion. State v. Dickerson , 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993).

The photograph was not gruesome, horrifying, or inflammat ory. The image of the victim’s body is extremely small and no discoloration or decomposition is distinctly apparent. The photograph

shows the remote a

rea where the b

ody was foun

d. Thus, we conclu

de the trial cour

t did not err in admitting the photograph.

III. EVIDENCE OF P

ROVOCATION

The defendant alleges the

trial court

erroneously excluded evidence that he was acting under adequate provocation. In particular, the de fen dant argues the trial court should have allowed eviden ce of an incident whi ch occurred be

tween the victim a

nd the defendant

’s girlfriend,

Cybil Camp bell, one week prior to the murder. The defendant claims the victim told his girlfriend they

were going to have themselves an “orgy party ,” and the victim then proceeded to masturbate in front of his girlfriend. When Campbell attempted to testify that the defendant’s mother told her that the6

defend ant’s mother informed d efendant at the j ail about this incide nt, the trial court

sustain ed th e state’s hearsay objection. The defendant argues that Campbell should have been allowed to testify to what she was told by

the defendant’s

mother. The defe

ndant argues th

at the statement w

as no t offered for the truth of the matter asserted, but rather was offered as evidence of provocation. The defendant’s moth

er did not testify

at the defendan

t’s trial.

Hearsay is “a statement, other t

han one made by

the declarant w

hiletestifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). The trial court did not err in excluding Campbell’s testimony that the defendant’s mother told her that she had informed the d

efendant of this incid

ent. The evidence would be admissible if offered through the testimony of the defendant’s mother o r by th e defendant. In that event, the evidence would not be offered f

or its truth, but rat

her to establish a

basis for prov ocation of the def endant. However, defendant sought to introduce this evidence through the testimony of Campbell as to what his mother told her. It was then sought to be introduced f

or its truth; namely, that the mother in fact tol d th e def end ant abo ut t he i nci den t. T he ev ide nce w as p rop erl y exc lud ed as hear say.

IV. VICTIM’S PROPENSITY FOR VIOLENCE

The defendant conte

nds the trial cour

t erred in excluding eviden

ce of the victim’s

propensity for violence. T he defense so ught to int roduce the f ollowing: (1) testimony from the victim’s former lawyer regarding the victim’s reputation for violence; (2) defendant’s own testimony regarding an incident of violence by

the victim

against the defendant’s sister; and (3) testimony regarding the rape of the defendant’s girlfriend by the victim. The trial court instructed the def endant that, before introducing evidence of the victim’s propensity for violence, he must first put fort h evidenc e establishing a prima facie cas e of self-defense or that the victim was the first aggressor. The defendant did not allege se

lf-defense; de

fendant f ailed to present evidence that he acted in selfdefense, or that the victim wa s the first aggressor; and

the jury was not instructed on self defense. Regardless,

defendant conte

nds the victim’s pro

pensity for

violence was re

levant to th

e iss ue of provocation.

A. Testimony of the Victim’s Former Attorney

The defendant

contends the victim’s former attorney should have been allowed to testify that the victim had a reputation in the community for violence. See Tenn. R. Evid. 405(a). The trial court concluded the te

stimony was no

t relevant t

o the issue of provoc

ation. We find no er

ror in disallowing the testimony . Self-defense was not an issue. See generally State v. Ruane , 912 S.W.2d 766, 780 (Tenn. Crim. Ap p. 1995) (holding

specific acts of violence by the

victim are admissib

le to corrobor atethe defendant’s assertion that the victim was the first aggressor). I n this case, th e victim’s reputation in the community for violence had no bearing upon whether or not the def endant acted under a dequate pro vocation b ased upon hi s state of m ind at the t ime of the s hooting.7

B. Defendant’s Testi

mony

The defendant argues that he should have been allowed to testify about a specific instance of violence involving

his sister and the v

ictim. However, t

he only statements r

egarding this proposedtestimony were made by defe ns e counsel during the hearing on this issue. It is unclear when the alleged

incident occurred, whether the defendant witnessed the alleged incident, and what, if any, effe ct it had on the def

endant. The defe

ndant made no off

er of proof. Si

nce w e ma y not speculate about this possible testimony, this issue is waived. See State v. Penderg rass , 795 S.W.2d 150, 156 (Tenn. Crim. App. 1989); Tenn. R. App. P. 36(a); Tenn. R. Evid. 103(a)(2).

C. Impeachme

nt of Campbell

The defendant claim

s the trial court e

rred in ruling that testimony regarding the alleged ra pe of his girlfriend, Campbell, by the victim was admissible only for the purpose of assessing Campbell’s credi

bility as a wi

tness.
Campbell testified that on the day of the murder she told the defen dant the victim “tried something” with her, but denied telling him that the victim “tried to rape” her. On the other hand, the defendant

testified that Campbell told him the victim “tired to rape” her. On cross-examination, Campbell denied telling the defense investigator that she told the defendant the victim “tried to rape” her. During the defendant’s case-in-chief, the investigator testified that Campbell said she told the defendant that the victim “tried to rape” her. Following the investigator’s testimony, Campbell was re-called by the defense and testified that she was in fact raped by the victim, but again stated she never told the defendant she had been raped.

(1) Investigator’s Te

stimony

The testim on y given by the investiga tor that Campbell said she told the defendant that the victim “tried to rape” her was admissible under the prior inconsistent statement rule. See Tenn. R. Evid. 613(b). As such, th e te stim ony was admissible for impeachment purposes, but not as substantive evidence. State v. Martin , 964 S.W.2d 564, 567 (Tenn. 1998).

(2) Campbell’s Testi

mony
Campbell’s testimony presents a different problem. The trial court, ove r the state’s objection, alloweddefense counsel to ask Campbell if the victim had in fact raped her. The trial co urt concluded

“the fact that she was raped [goes toward] the fact that she may have told others that.” When Campbell testified she was raped, no limiting instructions were given to the jury by

the trial8

court. Neither counsel in final argument suggested that this evidence was limited in its purpose. However, in the jury char ge the trial court instructed the jury that the testimony “was not admitted

as substantive evidence, but was admitted for the limited purpose of allowing the jury to determine the credibility of Cybil Campbell.”

We do not believe the defendant was prejudiced by this cha

rge. Defendant argues Campbell’ s testi mony that she was raped should b

e considered as

substantive evide

nce since this makes it more likely

that Campbell

told the defendant the victim “tried to rape” her. Regardless, the crucial issue in this case was whether there was adequ

ate provocation f

or defendant’s a

ction. Thus, the critical inquiry was defendant’s state of mind at the time of the murder. Whether Campbell was actually raped does not go toward defendant’s state of mind, but rather his state of mind was caused by what Campbell told him occurred. If the trial court did err in telling the jury this evidence was non-substantive, we note th e charg e also sta ted that it went to Cam

pbell’s c redibilit y. In the conte xt of this case, this mea

nt whether Campbe

ll told defendant th

e victim “tried something

” with her (as she testified), or whether she told the defendant the victim “tried to rape” her (as the defendant testified). Thus, the jury was free to consider Campbell’s testimony that she was raped

in judging her cred ibi lit y as t o wh at s he t est ifi ed s he t old the defe nda nt. If th ere w as an y e rror in the jury charge, it was harmless. Tenn. R. App. P. 36(b).

CONCLUSION

We c onclude the evidence was sufficient to sustain the defendant’s conviction for premeditated

first degree murder and find the trial court committed no reversible error with regard to its evidentiary rulings. Thus, the judgment of the trial court is affirmed.

___________________________________ JOE G. RILEY, JUDGE