# FILED
June 3, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON MARCH SESSION , 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9711- CR-00442 ) Appellee, ) ) SHELBY COUNTY V. ) ) ) HON. W. FRED AXLEY,JUDGE OTIS J. WIC KFAL L, ) ) Appe llant. ) (FIRST D EGRE E MU RDER )

FOR THE APPELLANT : FOR THE APPELLEE : CRAIG V. MO RTO N, II JOHN KNOX WALKUP 200 Jefferson , Suite 725 Attorney General& Reporter Memphis, TN 38103 (On A ppea l) J. ROSS DYE R Assistant Attorney General A. C . WHAR TON 2nd Floor, Cordel l Hull Bui lding Distri ct Public

Defender 425 Fifth Avenue North (At Tr ial) Nashvill e, TN 37243 TRENT HALL JOH N W. P IERO TTI Assistant Public Defender District Attorn ey Ge neral LESLI E MOZINGO EDG AR A. PE TER SON , IV Assistant Public Defender Assistant Distri ct Attor ney General Criminal Just ice Center, Suite 201 Criminal Just ice Center, Suite 301 201 Poplar Avenue 201 Poplar Avenue Memphis, TN 38103 Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defe ndan t, Otis J. W ickfall, ap peals as of rig ht his co nvictio n f or first degree murder in the Shelby Coun ty Crimina l Court. D efenda nt was se ntence d to life impri sonment. In this appeal, Defendant r aises the foll owing issues: I. Whether the tri al court er red in denyi ng Defe ndan t’s Motion for Judgment of Acqui ttal bas ed on the eviden ce presented by t he State; II. Whether the tri al court er red in all owing the i ntroducti on of the v i ctim’s blood-staine d shirt to show the trajectory and an gle of the b ullet; III. Whether the tri al court er red in all owing the i ntroducti on of a photograph of a recording l abel depict ing t he slang term for mu rder; IV. Whether the tri al court er red in taking j udicial notice of Califor nia Penal Code sect ion 187 defi ning murder; and V. W hether th e trial court e rred in its jury ins tructions. After a ca reful review of the reco rd, we affirm the judgm ent of the tria l court.

The facts pres ented at tri al revealthat on Apri l 25, 1995, Keena Thomas spent the day with t

wo of her friends and her sev en- mo nth-old daughter. Between 8: 00 and 8:30 that evening, t he group arri ved at the ho me of Ms. T hom as’ 19 -year-o ld boyfri end, Robert Be ckley, the victi m in this case. While at the vi ctim’s home, Ms. Thomas received six or seven messages on her pager from Defendant who was her ex-boyfriend and father of her sev e n-month-old daughter. The messages were a sequence of numbers w hich incl uded the phone number of Defendant’s l ocation f ollowed by 34, 911, and 187. Ms. Thomas knew it was Defendant paging h e r because the number 34 was a code he used when he page d her. Ms. Thom as-3-

testif ied that 911 i ndicated t he urgency of Defendant’s need to speak with her . The followi ng colloquy then took pl ace regarding t he number 187:

State: 187, what si gnificance is that ? Wh at’s that m ean? Ms. Thomas: It

mean -- i t means --we ll l ike in sla ng it means murder. I guess it meanthe was mad or whatever. State: In sla ng it mea ns wha t? Ms. Thom as: Murder. State: What sort of slang does 187 mean murder in? Ms. Thomas: Just like rap songs. State: Are yo u fam iliar with a ny rap artists w ho us e 187 in their music? Ms. Thom as: Uh-huh (Affirmative respon se). State: Who? Ms. Thomas: Spice One. State: Do you know any recordi ng that he has sp ecifica lly using 18 7 in it? Ms. Thomas: Yes. State: W hat? Ms. Thomas: He has a [sic]album tit led 187 He Wrote. State: 187 He Wrote? Ms. Thom as: Uh-huh (Affirmative respon se). State: Have you ever heard t hat cd, th at recordi ng? Ms. Th omas : I heard so me of it. State: Have yo u ever seen the album c over? Ms. Thomas: Yes.
Ms. Thomas di d not m entio n that she knew 187 to mean murder in her wri tten statem ents to po lice or durin g her tes timony a t the prelim inary hea ring.-4- After Ms. Thomas had been paged several times, t he victi m called Defendant and told him that he coul d not speak with Ms. Thomas. About 15 to 20 minutes af

ter this conversati on, the group i nside the vi ctim’s house al l wa lked outside to Ms. Thomas’ car. W hile h er friends and her daughter were si tting in t he car, Ms. Thomas stood in t he open door of her car and conti nued tal kin g tothevi cti m. As the two were talki ng, a car pulled upbehind Ms. Thomas’ car. Ms. Thomas first noticed the car when it came around the corner going extremely f ast and “burning rubber.” Ms. Tho mas testif ied that Def enda nt g ot o ut of t hat car and she tol d th e vi cti m, “[t]here ’s my baby’s daddy. ” Defendanthad a silver gun in hi s hand, and according to Ms. Thom as, he shot the victim without ever sa ying a word. Th re e othe r witnessestestif ied and con firmed Ms. Thomas’ r ecitati on of the event s, but one witness did say

that as Defendant

began to wa lk towards Ms. Thomas and the victim, that h e said, “[b]itch , I told you,” an d then sh ot and killed the victim.

Ms. Thomas testifi ed that she and Defe ndant had dated forapproxi mately t wo and one-half years before br eaking up in September 1994. She said t hat the reason forthe break up was becaus e Defendant had gotten anothe r girl pr egnant during t he
course of their

relati onship and duri ng the pendency of her pregna ncy. In January 1995, Ms. Thomas began a relati onship wit h the victi m. At the ti me she began dating the vict im, she and D efend ant we re still ha ving co ntact a s a res ult of his visitation with their da ughter. She st ated that s he would see Defendant appro ximate ly once ever y two weeks and this was usually at her hom e. Thes e visits apparently

took place up unt il the time of theshooting on Apri l 25, 1995.

Dr. O’Brian Clea ry Smith testified that the victim re ceiv ed a fatal gunshot wound enterin g his lower back and exit ing his l eft chest . He said he bel ieved that-5-

the victim had either bee n bent o ver or lying o n the gro und at the ti me th e bulle t struckhim. In additi on, Dr. Smith testifi ed that the fatal bul let went t hrough the victim’s heart an d caus ed suc h significan t dama ge that th e heart coul d no longer function, thereby causi ng his death.

I. Denialof Defendant’ s Motion for Judgment of Acquit

tal

Defendant conte nds th at the trial court erred in overruli ng his motion f or judgment of acquit

tal at t he close of

the State’ s proof. Specifically, he arguesthat the evide nce w as insuff icient to show premeditation, an element of f irst degr ee murder. In deny ing Defendant’ s motion, t he trialcourt stated the fol lowing:

[ I] f the jury b elieves the pro of that h as be en ad duce d befo re it this last couple of days . They’re the finders of fact. It’s a qu esti on of fact for the j ury to res olve whether it was premeditated or whether it was an act involvi ng pas sion or no passion. A kno wing k illing, for in stanc e. The Cour t will all ow it to go to th e jury based on the [sic] as char ged and the lesser offenses.
We agree. When presented wit h a motio n for jud gme nt of ac quittal, the trial c ourt’s only conside ration is the legal sufficie ncy of the evidenc e. State v. Blanto n , 926 S.W.2d 953 (Tenn. Cri m. App. 19 96). Sufficie ncy of the evidenc e is the ap propriate sta ndar d by which both trialand appellate courts eval uate the adequacy of the evidenc e. State v. Cabbage , 571 S.W.2d 832, 836 (Tenn. 19 78). The duty of t he trialjudge and the review ing court on the determi nation of a motion for a judgment of acq uittal is the same as for a motion for a directe d verdict. See State v. Torrey , 880 S.W.2d 710, 712 (Tenn. Crim. App. 1993). This duty is as foll ows:

The rule for d eterm in ing a motion for a directed verdict requiresthe tri al judge and the reviewi ng court on appeal to look a t all of the evid ence, to take the strongest legitimate view of it in favor of the opponent

of the moti on,-6- and to allow all rea sonab le inferenc es fr om i t in its favor; to discard al l counterv ailingevidence, and if th en, the re is any dispute as to any materialdeterminative evidence, or any doubt as to t he conclusion to be d rawn fr om th e who le evidence, t he motion must be deni ed.
State v. Thompson , 549 S.W .2d 943, 946 (Tenn. 197 7) (citation omitted).

Rule 29(a) of t he Tenne ssee Rules of Crimina l Procedure pr ovides in pertinent part as follows:

The court on motion of a defe ndant . . . s hall order the entry of judgment of

acquittal of one or more offense s charged in the i ndictmentor information . . . i f the evidence is insuffici ent to sustain a convi ction of su ch o ffense or offenses. In the instant case, however, we find the evidence suffic ient to s ustain a conv iction forfirst degree murde r. At the ti me of the offense, fi rst degree murder required t he “intentio nal, premeditated an d deliberate kill ing of another. ” Tenn. Code Ann. § 39- 1 3-202(a )(1) (Supp. 1994) (the element of “deli beration” was omitted as a requirement

from th is statu te on J uly 1, 19 95). Premeditation necessi tates “t he exercise of refl ection and j udgment,” Tenn. Code Ann. § 39 -13-201(b)(2) (Supp. 1994), requiring “a previous ly formed des ign or intent to kill.” State v. West , 844 S.W.2d 144, 147 (Tenn. 1992). Deliberat ion, on th e other hand, i s defined as an act
c ommitted with a coo l purpose and witho ut passio n or provo cation. See Sta te v
. Brown , 836 S.W.2d 530, 54 3 (Ten n. 1992 ); see also Tenn. Code Ann. § 39-13- 201(b)(1) (Supp. 199 4). Deliberat ion also r equires “some peri od of refl ection, during wh ich the m ind is ‘fre e from the influ ence of excite men t, or pas sion.’” Brown , 83 6 S.W.2d at 540 (ci tation omi tted). The element s of p remeditation a nd deliberation a re questionsforthe jury

and may be inferr

ed from the ci rcumstances surr ounding the killing. State v. Gentry , 881 S.W .2d 1, 3 (T enn. C rim. App . 1993).-7- On the night of the murder, Defendant paged Ms. Thomas six to seven times. He inclu ded the numb ers 34, 9 11, and 187 in the pages . Ms. Thomas testif ied that 34 was his personal code, 911 meant that the matter was u rgent , and th at 187 “in slang . . . means murder .” The vic tim call ed Defendant and tol d him to stop pagi ng M s. Thomas. About 20 minutes af ter thi s phone call, Ms. Thomas and the v icti m were standing outside when a car bei ng driven by Defendant came very fast around the corner and stopped just a short di stance from w here th e victim and Ms. Thomas
were standing. Defenda nt got out of the car, pointed a si lver gun at the vict im, and according to one witn ess, said, “Bitch, I told you, ” and the n sh ot t he v ict im. Defendant contends on appeal thatth is was a killing o f pass ion an d there fore it cannot be classif ied as first degree murder. However, fr om the record, it is cl ear that the eviden ce is su fficient to supp ort the tr ial cou rt’s refusal to grant this motion . We find thatthe tri al court properly concl uded that ther e was adequate evi dence for the jury to deter mine t hat De fenda nt was guilty of firs t degre e mu rder. T his issu e is without m erit.

II. Admissibility of Victim’s Blood -Stained Sh irt

Defendant contends in this i ssu e t hat draping the victim’s clothing over a
man nequ in to prove the t rajector y and angle of

thebul let

was donesol ely

to i nfl ame the jury. He argues that this amou nted to cum ulative evidence and wasprejud icial. Howeve r, Defe ndan t did no t objec t to this eviden ce at tria l, and th is issue is therefore deem ed waive d. See Tenn. R . App. P. 36(a).-8- Even if not waived, this issue is without m erit. Wh ether to admit this evidence is within t he discret ion of thetrialcourt and wi ll not be reversed absent a clear showing of an abu se of d iscreti on app earing o n the face of the reco rd. See e.g. , State v. Dicker

son , 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993). The shir t was used to corrobo rate the State’s wit ness who tes tified to the traje ctory and line of the bu llet. Even though Defendant conceded these facts, the State stil l had a ri ght to prove its
case. The trial court did no t abuse its discretion in a llowing the shirt into evidence. This issu e is withou t merit.

III. Admissibil ity of

Photograph

Defendant argues that the intr oduction of

a photograph of a re cording l abel
was irrelevant an d prejud icial to Defe ndant. Specifically, the photograph of t he label depicts a male holding a g un with t he word s “187 He Wrote” on it. Ms. Thomas testified that it w as a rap album by the gro up “Sp ice One .”

Rule 403 of the Tennessee Rules of Evi dence states t hat relevant evidence may be excluded if its prob ative va lue is su bstan tially outwe ighed by dan ger of u nfair prejudice. How ever, R ule 40 1 states that evi dence is relevant i f it has a tendency to mak e the e xistenc e of an y fact tha t is of consequence to t he determinati on of the action more proba ble or le ss pro bable than it woul d wit hout the evid ence. Tenn. R. Evid. 401. W hethe r to adm it this is within t he discret ionary aut hority of the trial court and will not be reversed absent a clear showi ng of an abuse of di scretion appearing on the fac e of the rec ord. See , e.g. , Dickerson , 885 S.W.2d at 92.-9- Ms. Thomas testif ied that Defendant paged her with a sequence of numbers,
one being the number 187. When asked what 1 87 m eant, s he sa id, “W ell, like in slang it means murder.” The photograph admitted was a rap group’s al bum cover entitl ed “187 He Wrote.” The label i s probativ e in that it corr

oborates thetestimony of Ms. T hom as tha t 187 is unde rstood by som e peo ple to be slang for murder. The trialcou rt did no t abus e its disc retion in adm itting this into evid ence . This is sue is without m erit.

IV. Judici al Notice of

Califor nia Penal Code Secti on 187

Defendant contends thatthe trial c ourt er red in ta king ju dicial no tice of a nd in allowingthe intr

oduction of Californ ia Pena l Code s ection 18 7 into evide nce. As with the introduct ion of therecording l abel photograph, Defendant argues t hat the introdu ction o f this penal code secti on was irrelevant an d prejud icial to Defe ndant.

Rule 202 of the Tennessee Rul es of Evidence states in perti nent part t hat the trialcourt “sha ll take judicial n otice of . . . the consti tutionsand statutes of the United States and of every state, territ ory, and other jur isdiction of the United States. . . .” Tenn. R. Evid. 202(a). In or der to expl ain to thejury t hat 187 is a common slang term for murd er, the Sta te had to show som e evidence from where that term came. Penal code section 187 provides i n pertinent

part that

murder is “t he unlawful kill ing of a human being, or a fetus, wit h malice afor ethought.”

We find the evidenceto be highly relevant

to a materialissue. Fur thermore, t he trialcourt was requi red to take judici al notice of s uch an item. See Tenn. R. Evid. 202(a). Thi s issue is without merit.-10- V. Jury I nstructi ons

Defendant c lai ms that the t rial cour t’s j ury inst ruction per taining to range of punishment and parole eli gibility was err or. Defendant

contends that alt hough the issues are identi cal to t he issues deci ded by our supreme court in State v. King , 973 S.W.2 d 586(Ten n. 1 998) , hecan nonethe les s di sti ngui sh h is cas e fr om King
.

In King , the defendan t chall enged the consti tutional ity of Tenn. Code Ann. § 40-3 5-201(b)(2), claiming the statute violated separati on of powers a nd due process . The court upheld t he statute and stated t he following:

We conclude that

Tenn. Code Ann. § 40-35-201( b)(2) does not viol ate the Separation of Powers Clauses of t he Tennessee Constitu tion. Neith er is the statute impe rmiss ibly vague, nor does it require a misleading jury instruct ion. Additional ly, we ar e satis fied that the jury based its ver

dict upon t he law an d evide nce, in accorda nce with the instructions of the trial court. Thus, we find that neit her the Due Process Clause of theUnited States nor the Tennessee Constitut ion was viol ated by the jury i nstructi on given pursuant to the statute.
Id . at 592. Howe ver, the court was careful t

o limit its hol ding to th e circumstances of the case: Significantly, [the jury mem bers] w ere ad ditiona lly

instructed that they

were not to at

tempt to fix punishment forthe offens e and that t he sent e ncing information was ‘for you r i nfo rma tio n only.’ When the trial cour t explains, as it di d here, that

the sentenci ng, pa role , and e arly release information is not to be co nsid ered in the determinati on of guilt or innocence, then certai nly no due process viol ation has occur red. Id. ; but see State v. Jason M. Weiskopf , No. 0201-9611- CR-00381, Shelby Coun ty (Tenn. Crim. App., J ackson, Dec. 4, 1998) (Rule 11 appl icatio n filed by the State on Feb. 3, 1999) (f inding plain err or in the j ury charge because the jury was instru cted-11-

theycould “wei gh and consider the meaning of a sentence of impri sonment”). The jury instruct ion in t he case sub judice , which was substanti ally t he same as the one in King , reads in p ertinent pa rt as follows :

The jury will not attem pt to fix any punishment or sentence forthese offense s. Howeve r, f or your informa tion only, you are info rmed [of] the ra nges of pun is hment as to the offense s . . . .
The supreme court i n King found the ab ove ins truction did no t violate a defen dant’s constitution al rights.
First, Defen dant co ntends that King does not apply to his case beca u se the defendantin King was convicted of a propert y offense, while he has been convicted of murder. Thi s argum ent i s without merit as t he statute does not disti nguish between offenses. Second, Defendant argues that his case is dist inguishabl e from King because the defend ant the re was charged as a per sistent offender and Defendant was n ot. Ho weve r, again there is not a different stan dard depending on t he offend er’s sta tus. T hird, D efend ant alle ges th at his ca se is dis tinguis hable because h e raises new i ssues with r egards to due process. Defendant contends thatthe jury

was given erroneo us calcu lations an d that the ju ry was m isled into believi ng if Defendant was convicted of second d egree m urder that he w ould serve the minimum amount of time. Howe ver, we f ind the trial court’s calcul ations and instruct ions to have be en acc urate un der the a pplicable law. Defendant also ar gues thatthe inst ructions were ambiguous and vague. However, thi s particu lar iss ue was decided in King , and we are bound by t he supreme court’ s ruling.-12- Final ly, Defendant argues t hat the const ituti onal princ iple of separation o f powers was violated. Aga in, this issue was de cided by our su preme co urt in King

. Specifical ly, t he court stated the fol lowing i n regards to t his issue:

Admittedly, the statu te consti tutes an overlappi ng of the legislative power w ith that o f the judi ciary, and it may indeed be close to an improper inf ringement. Yet , having already ackno wledge d the au thority of the le gislature to providea range of punishment instructi on, we must also acknowledge that an expl anation of the r ea lity of early release and p arole is no fur theran encroachment into the judici al functio n. The jury must stil l decide th e issue of guilt or innocence, and the tri al court must stil l decide t he ultimate sentence to be i mposed. Therefore, we conclude that Tenn . Code Ann. § 4 0-35-20 1(b)(2) do es not viola te the Separ a tion of Power s Clauses of t he Tennessee Cons titution. Id . at 589.

Based on all t he foregoing, the judgment of the tri al court i s affirmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ JOSEPH M. TIPTON, Judge