IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE SESSION, 1999
FILED
August 19, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9902-CC-00063
Cecil Crowson, Jr.
) Appellate Court Clerk
Appellee, )
) LAUDERDALE COUNTY
V. )
)
) HON. JOSEPH H. WALKER, JUDGE
BARRY DAVIS, )
)
Appe llant. ) (FIRST DE GREE MUR DER)
FOR THE APPELLANT: FOR THE APPELLEE:
GARY F . ANTRICAN PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
JULIE K. PILLOW R. STEPHEN JOBE
Assistant Public Defender Assistant Attorney General
P.O. Box 700 2nd Floor, Cordell Hull Building
Somerville, TN 38068 425 Fifth Avenue North
(At Trial) Nashville, TN 37243
CLIFF ORD K. Mc GOW N, JR. ELIZABETH T. RICE
113 North Court Square District Attorn ey Ge neral
Wa verly, TN 37185
(On App eal Only) JAMES WALTER FREELAND, JR.
Assistant District Attorney General
302 M arket Stre et
Somerville, TN 38068
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Barry Davis, appeals as of right from his convictions in the
Circu it Court of Lau derdale Co unty. Following a jury trial, Defendant was convicted
of first degree murder and assault. The trial court sentenced Defendant to life
imprisonment for first degree murder and to a concurrent sentence of eleven (11)
months and twenty nine (29) days for assault. Defendant presen ts the following two
issue s for rev iew in th is app eal:
1. Was the evidence sufficie nt to su pport D efend ant’s
conviction for first degree murder; and
2. Did the trial court abuse its discretion in permitting
certain rebuttal argument from the State.
After a ca reful review of the reco rd, we affirm the judgm ent of the tria l court.
Sum mary o f the Fac ts
On the morning of December 6, 1997, Defendant went to the home of the
victim, Mary Robinson, and stabbed her 14 times. The victim died as a result of the
multip le stab wounds. The victim was the mother of two of Defendant’s children.
During this offe nse, D efend ant als o wou nded their eig ht year old daughter, Lashona.
Lashona testified at trial that on the morn ing of th e offen se, the only pe ople
home were herself, her younger brother, and the victim (her m other) , who w as still
in bed. Lashona’s fifteen year old brother had already left the home and g one to his
grand moth er’s house. Defendant arrived at the home as Lashona and her brother
were watching cartoons on television. Lashona opened the door and let the
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Defendant into the home. Once inside, Defendant sat down and asked the children
how they were doing. H e went to the kitc hen to get a drink of water and then
returned to the living roo m mo menta rily. Lashon a denie d that De fendan t cooked any
breakfa st, as contrasted by Defendant’s later testimony, because she and her
brother had just finished eating soup when Defendant arrived. Defendant then
proceeded to the bedroom where the victim was, and Lashona heard Defendant ask
the victim if she would take him to Memphis. The victim replied that she did not feel
well. According to L ashona, this w as the extent of the conversation between
Defendant and the victim.
At this point, L asho na he ard ba nging in the bedroom and walked back there
to investigate. Once inside her mother’s bedroom, she saw Defendant stabbing the
victim. Defend ant stabb ed the victim while she was on the bed, then grabbed her
and threw her on the floor, where he stabbed her again. Lasho na attem pted to stop
Defendant from stabbing her mothe r by wrapping h er arms around his wa ist.
Defendant told her to get out of his way and h e pushed her to the floor, cutting her
with the knife in the process.
After the stabbing, Defendant looked through the victim’s purse and retrieved
her keys. As he walked outside to leave, Lashona and her brother followed and
called for him not to leave, but he told them to go back in the house. Defend ant left
in the victim’s car and Lashona called the police.
Depu ty Ted S utton of the Lauderdale County Sheriff’s Department testified
that shortly after the offense he received a phone call from Defendant. Defendant
stated that he had killed the victim and wa nted to turn himself in to the authorities.
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When asked what he had done with the knife, Defendant replied that he had thrown
it out of the car as he drove away from the victim’s residence. Defendant was not
crying an d aske d if the victim w as dea d “for sure .”
Officer Chris Bailey of the Ripley Police Depa rtmen t respo nded to Las hona ’s
emergency call. Upon arriving at the residence, Lashona and her younger brother
were screaming “Barry stabbed my mama.” Officer Bailey located the victim in the
bedroom but could not find a pulse. He testified that there were not typical
indications of a struggle in the be droom. S pecifically, furniture and lam ps were all
in their normal places. There was blood on the bed, the floor, and splattered on the
walls of the bedroom. Officer Bailey later saw Defendant at the hospital at which
point Defendant kept repeating that he did not mean to kill the victim. Defendant
was crying at this time.
Terry Jordan , an investigator with the Ripley Police Department, also
responded to the scene. He s aw Lasho na with her face bandage d and tears
streaming down her face saying, “Don’t let my mama die.” Investigator Jordan later
recovered a blood-stained steering wheel cover from the victim’s vehicle. Jordan
took a statement from Defendant, during which Defendant said he had thrown the
knife out of the victim’s car into the median on the Highway 51 bypass. Defendant
helped search the area but the weapon was not located. However, Investigator
Jordan retraced Defendant’s path of flight from the scene the following day and
located the knife in a ditch on the side of the road only half a mile from the victim’s
residen ce. Jorda n also rec overed a fork.
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Fore nsic testing revealed the presence of human blood on both the knife and
the fork. Additionally, an autop sy reve aled th at the vic tim died a s a res ult of m ultiple
stab woun ds. Th ere we re four teen s tab wo unds in all, one to the head, thr ee to the
neck, two to the a bdom en, and eight to the back. S ome o f the stab wou nds were
more than six inches in depth. The victim also had contusions on the left upper
chest. She had no defensive wounds.
Joseph Lee, a longtime acquaintance of Defendant, testified that he had been
working with Defendant during the week preceding the killing. During that week,
Defendant repea tedly talk ed ab out ho w mu ch he loved th e victim and s aid tha t if he
could not have her then nobody else could either. He repeatedly stated that he was
going to kill the v ictim, b ut Lee did no t take h im seriously. Lee testified that he saw
Defendant with a knife on the morning of the stabbing saying that he was going to
sharpe n the knife becau se he h ad to “take care of so me bu siness.”
On cross-examination, Lee admitted that the victim was his second cousin.
He also admitted that he did not give police a statement until January 28, 1998,
more than one month after the killing. He said that he had not done so because the
police had not asked him for a statement. Lee also admitted that he did not mention
seeing Defendant with a knife during his statement, but stated that he simp ly did not
have a chance to write everyth ing down that he wanted to. Lee denied having
approached Defendant’s sister and asking her what had happened during the killing.
Alonzo Pickett, a neighbor of Defendant’s sister and an acquaintance of
Defen dant, testified that Defen dant wa s living with his (Defendant’s) sister and her
boyfriend in early De cemb er of 199 7. Pickett testified that on the day before the
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stabbing, Defen dant visited Pickett and asked if he could borrow a file to sharpen a
knife. Defendant sharpened the knife and then left. Pickett te stified that the knife
identified as the murde r weapo n resem bled the k nife Defendant had sharpened at
his home. On cross-examination, Pickett admitted that he could not positive ly
identify the knife. In c ontrast to Defendant’s later testimony, Pickett also stated that
Defendant had never borrowed his tools before.
Ricky Henderson, the boyfriend of Defendant’s sister, testified that on the day
before the killing, he and Defendant had a conversation about guns. Defendant
indicated that he might like to purchase a shotgun. Defendant stated that
Hen derso n’s single shot shotgun was not good enough, but seemed interested in
Hen derso n’s father’s three-shot shotgun. However, the asking price was too high
for Defendant. Henderson also sa w De fenda nt leave their reside nce w ith a kn ife in
his back pocket on the day before the killing. The knife rese mbled the knife
identified as the m urder we apon. Henderson said that Defendant had asked him not
to mention anything about their shotgun conversation. On cross-examination,
Hende rson stated that he had seen Defendant leave on the morning of the killing
and tha t he did no t see a kn ife in his bac k pocke t.
Defendant offered the testimony of his sister, Denise Estes. Estes testified
that she a sked Defe ndan t to sha rpen th e knife at Alon zo Pic kett’s in order to repair
her cable television. Estes also testified that Joseph Lee, contrary to his earlier
testimony, had indeed approached her and asked her what had happened during the
killing.
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Defendant testified on his own behalf. He stated that he had a good
relation ship with the victim and that they had arranged to go to Memphis together on
the mornin g of the killing . Defe ndan t called the victim to con firm the ir trip the night
before. He called from another women’s house, but told the victim that h e was a t a
phone booth. The victim, who had caller identification on her telephone, hung up on
Defen dant.
Defendant came to the victim’s residence the next day. He confirmed
watching television w ith the childre n for a sho rt time. Contr ary to L asho na’s
testimony, however, Defendant stated that he went into the kitche n and fixed him self
and his three-y ear-old s on a sa ndwich . Defenda nt state d that h e kne w the vic tim
was still mad, and when he went to her bedroom door, she rushed him with a knife.
He said that they scuffled and that he took the knife from her and laid it on a d resser.
They continued to scuffle and the victim eventu ally bit Defendant. At that point, she
retrieved the knife from the dre sser. D efend ant wa s cut o n his h ands in the process
of defending himself, but eventually disarmed the victim. At that point, Defendant
stated that the victim slapped him and rushed at him with a fork.
Defendant testified that he “just clicked” and attacked the victim. He did not
recall exactly what happened or how badly the victim was injured. Afterwards, he
fled in pan ic because Lashona had already called an ambulance, and ac cording to
Defenda nt, the police were a lready hunting for h im on an u nrelated ma tter.
Defendant denied any intention to kill the v ictim. H e also denie d havin g told
Joseph Lee that he was going to kill the victim. He admitted having gone to Alonzo
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Picke tt’s to use his file, but in contrast to Pickett’s testimony, stated that he borrowed
Pickett’s tools all he time.
On cross-examination, Defendant stated that during his ten-to-twelve year
relation ship with the victim, that he had pursued relationships with other women and
had even fath ered ch ildren with o ther wom en. He denied being concerned about the
victim seeing o ther me n. Defendant admitted that in his sta teme nt to po lice, he did
not indicate that the victim had rushed him with the knife and bitten him. In contrast
to Lashona’s testimony, he also denied having retrieved keys from the victim’s purse,
instead indicating that he retrieved the keys fro m the top of a spea ker. H e did a dmit
to having picked up the fork from the bedroom floor before fleeing the house. He
also admitted to prior convictions for selling cocaine.
I. Sufficiency of the Evidence
In this issue, Defendant challenges the sufficiency of the evidence supporting
the jury’s verdict in reg ard to first degree premeditated murder. Defendant contends
that the evidence p resented at trial supported, at most, a conviction for a lesser
offense rather tha n first degree prem editated mu rder.
When an accused challenges the sufficiency of the convicting evidence, the
standa rd is whe ther, after rev iewing the evidenc e in the light m ost favora ble to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S. 307, 31 9 (1979).
This standard is applicable to findings of guilt predicated upon direct evidence,
circumstantial evidence or a combination of direct and circumstantial evidence.
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State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the
State is entitled to the strongest legitimate view of the evidence and all inferences
therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a
verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the
evidence is insufficien t to suppo rt the verdict re turned b y the trier of fac t. State v.
Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grace, 493 S.W.2d 474, 476
(Tenn. 19 73).
Questions concerning the credibility of the witnesses, the weight and valu e to
be given the evidence, as well as all factual issues raised b y the evidence, a re
resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court
reweigh or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835 . A jury verdict
approved by the trial judge accredits the State’s witnesses and resolve s all conflicts
in favor of the State. Grace, 493 S.W .2d at 476 .
First degree murde r is a "prem editated a nd intentio nal killing of an other."
Tenn. Code Ann. § 39-13-202(a)(1). Premeditation "is an act done after the exercise
of reflection a nd judg ment," and it means that "the intent to kill must have been
formed prior to the act itself." Tenn. Code Ann. § 39-13-202(d). Furthermore, it is not
necessa ry that the purpose to kill pre-exist in the mind of the accused for any definite
period of time. The mental state of the accused at the tim e the a ccus ed alle gedly
decided to kill must be carefully considered in order to determine whether the
accused was sufficiently free from excitement and passion as to be capable of
premed itation. Tenn. Co de Ann. § 3 9-13-202(d ).
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The element of p remeditation is a question for the jury a nd "m ay be
established by proof of the circumstances surroundin g the killing." State v. Bland,
958 S.W .2d 651, 660 (Tenn. 199 7) (citing State v. Brown, 836 S.W.2d 530, 539
(Tenn. 1992)), cert. denied, 118 S. C t. 1536 (1 998); see also State v. Pike, 978
S.W.2d 904, 91 4 (Ten n. 1998 ). Our su preme court ha s identified s everal factors
tending to demon strate existence of p remedita tion, inc luding : the us e of a d eadly
weapon upon an unarmed victim; the particular c ruelty of the killing; declarations by
the defend ant of an in tent to kill; evidence of procu remen t of a weapon; preparations
before the killing for concealment of the crime; and calmness immediately after the
killing. Bland, 958 S.W.2d at 660 (citing Brown, 836 S.W.2d at 541-42, and State v.
West, 844 S.W .2d 144 , 148 (T enn. 19 92)); Pike, 978 S.W .2d at 914 -15.
Applying the above principles to the instant case, we find that the evidence
presented was sufficient to sustain a co nviction for first degree prem editated mu rder.
Defendant spok e of killing the victim during the week before the killing, stating that
if he could not have her, nobody else would either. He considered procuring a
shotgun on the day before the killing, but could not afford to do so. Instead,
Defendant took a knife, identified by witnesses as resembling the murder weapon,
and sharpe ned it, stating that he had “to take care of some business.” Defendant
went to the victim’s reside nce e arly on a Satu rday m orning , when only the victim and
their two young children were there. Upon entering the home, he watched television
with the children for a short time, drank a glass of water, and then proceeded to the
victim’s bedro om w here th e victim was still in the bed. Defendant asked the victim
to take h im to M emp his an d the vic tim told Defe ndan t that sh e did not feel we ll.
Defendant then be gan sta bbing the victim. He stabbed her on th e bed, thr ew her to
the floor, and then continued stabbing her on the floor. When their young daughter
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attempted to stop Defendant, he told her to get out of his way and injured her in the
process. Defen dant s tabbe d the vic tim a total of fourteen times, with some wounds
penetrating more than six inches deep. After stabbing the victim, Defendant
retrieved keys from her purse and drove away in her car. He then discarded the
murder w eapon ou t the window of the car.
After viewing the evidence in a light most favorab le to the prosecu tion, there
was more than sufficient evidence for the jury to have found that Defendant
intentio nally and with premeditation killed the victim. Defendant claimed at trial that
he “just clicked” when the victim allegedly attacked him. However, it was for the jury
to determine if the Defendant’s testimony was persuasive, and by their verdict they
obviou sly did not find it to be. See Pappas, 754 S.W.2 d at 623 . We find that a
rational jury could have indeed reasonably rejected Defendant’s version.
Accordingly, the evidence was legally sufficient to support Defendant’s conviction for
first degree premeditated murd er bey ond a reaso nable doub t. This issue is without
merit.
II. Rebuttal Argument
Defendant argues in this issue that the State’s rebuttal argument exceeded
the proper scope. He contends that the State’s rebuttal argument constituted
prosecutorial misconduct which requires reversal of his conviction and a remand for
a new tria l.
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In Ten ness ee, it is well-settled that in reviewing allegations of prosecutorial
misco nduct, the test to b e applied by the ap pellate co urt is to asce rtain "whether
such cond uct co uld ha ve affec ted the verdict to the pre judice of the defen dant."
State v. Smith, 803 S.W.2d 709, 710 (Ten n. Crim. App . 1990) (citing Judge v. State,
539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)). In Judge, 539 S .W .2d at 3 44, this
Court articulated five factors to be utilized by appellate courts when evaluating
claims of prosecutorial misconduct during closing argument. The Tennessee
Suprem e Court approved of and adopted this five-factor analysis in State v. Buck,
670 S.W.2d 600, 609 (Tenn. 1984). These five factors include: "'(1) the conduct
complained of viewed in context and in light of the facts and circumstances of the
case; (2) the curative me asures un dertaken by the court and the prosecution; (3) the
intent of the pros ecutor in m aking the improp er statem ent; (4) the cumulative effect
of the improper conduct and any other errors in the record; and (5) the relative
streng th or we akne ss of th e cas e.'" Id. (quoting Judge, 539 S.W .2d at 344 ).
In Coke r v. State, this Court explained that "[t]rial courts have substantia l
discretionary authority in determining the propriety of final argument. Although
counsel is genera lly given wide latitude, courts must restrict any improper
comm entary." 911 S.W.2d 357, 368 (Tenn. Crim. App . 1995) (citing Sparks v. State,
563 S.W .2d 564 (Te nn. Crim. Ap p. 1978)). The broad discretion accorded to trial
courts in controlling the argument of counsel "will not be reviewed absent abuse of
that discretion ." Smith v. State, 527 S.W .2d 737 , 739 (T enn. 19 75). See also State
v. Payton, 782 S.W.2d 490, 496 (Tenn. Crim. App. 1989). Nevertheless, “closing
argument ‘must be temperate, must be predicated on evidence introduced during the
trial of the cas e and m ust be pe rtinent to the issues being tried.’” State v. Sutton, 562
S.W.2d 820, 823 (Tenn. 1978) (citation omitted). Tennessee law does provide that
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the State’s rebuttal closing argument, which is at issue here, is limited to the subject
matter covered in the State’s initial closing argument and the defendant’s closing
argum ent. Tenn. R . Crim. P . 29.1(b); see also State v. Houston, 688 S.W.2d 838,
841 (T enn. C rim. App . 1984).
In the case sub judice, the State’s initial closing argument focus ed ge nerally
on the elem ents of the h omic ide offe nse a nd urg ed the jury that the on ly valid issue
in the case was the degree of that homicide. Defendant then responded that the
State had not carried its burden of demonstrating premeditation beyond a
reaso nable doubt. He then attacked the State’s reliance of testimony from
witnesses, such as Alon zo Picke tt and Ric ky Hen derson . Finally, h e poin ted to h is
own testim ony in s uppo rt of his claim that the evidence showed his behavior was
irrational and not premeditated. In rebuttal, that State focused on showing that the
testimony of Defenda nt was simp ly not credible and pointed out several
circumstances which as sailed D efenda nt’s credib ility. For examp le, the State
pointe d out that Defendant had prior convictions. However, the State seemed to
prima rily focus in rebuttal on the testimony of othe r credib le witnes ses, sp ecifica lly
Lashona Davis, whose testimony differed substantially from Defendant’s. Defendant
objected stating that he had n ot brou ght ou t any sp ecific details about her testimony
during his closing argument. Defendant incorrectly argued that the State was limited
to the scope of only his closing argu ment fo r its rebuttal ar gume nt. See Tenn. R.
Crim. P. 29.1(b ). Regardles s, the trial court overruled the objection. The State then
continued to question the credibility of Defendant, concluding by pointing out that
Defe ndan t had n eglec ted to te ll the po lice m uch o f what h e testifie d to at tria l.
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We find that the pro sector’s a rgume nt was fair re buttal to defen se co unse l’s
remarks. See Sutton, 562 S.W.2d at 823-24. Accordingly, under the circumstances
of this case, we find n o reversible error.
Based on all the for egoing , we affirm th e judgm ent of the tria l court.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
DAVID H. WELLES , Judge
___________________________________
NORMA McG EE OGLE, Judge
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