IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
April 28, 1998
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
C.C.A. NO. 03C01-9603-CR-00092
Appellate C ourt Clerk
)
Appellee ) KNOX CRIMINAL
)
v. ) HON. RICHARD BAUMGARTNER,
) JUDGE
THOMAS J. McKEE, )
) First Degree Murder
Defendant/Appellant )
FOR THE APPELLANT FOR THE APPELLEE
Mark E. Stephens Charles W. Burson
Sixth District Public Defender Attorney General & Reporter
R. Scott Carpenter Robin L. Harris
Assistant Public Defender Assistant Attorney General
1209 Euclid Avenue 450 James Robertson Parkway
Knoxville, TN 37921 Nashville, TN 37243-0493
OPINION FILED
AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
OPINION
The defendant was convicted of murder in the first degree and sentenced to
serve life imprisonment with the possibility of parole.
The defendant raised the following issues on appeal:
“I. The evidence presented during trial was insufficient to support finding
of guilt beyond a reasonable doubt.
II. The State’s closing argument was prosecutorial misconduct which
affected the verdict to the prejudice of the appellant.
III. The trial court erred in its charge to the jury.
IV. The introduction of the skull of the deceased resulted in unfair
prejudice and reversible error.
V. The testimony of Randy Bryant and Laura Baird as elicited by the
State constituted prejudice in violation of the trial court’s order.”
FACTS
The defendant, Thomas J. McKee, and the victim, Marilyn Kaye McKee,
became husband and wife on September 21, 1990. However, they eventually
became estranged. On July 31, 1994, an officer of the Lenoir City Police
Department responded to a call at the defendant’s house. During the investigation,
the victim was placed in one patrol car and the defendant was placed in another
patrol car pursuant to arrest. As the defendant walked past the car in which the
victim was sitting, he said to her “I’ll get you for this, bitch . . . I’ll kill you.” The
defendant continued to make threats that he would get even with her and that he
would kill her.
During her estrang ement fro m the def endant, the victim lived with Laura Baird.
In August, 1994, Baird was with the victim at the Loudon County courthouse and
overhe ard the defen dant b egging the victim to com e back to him . W hen th e victim
refus ed and began to leave , the de fenda nt yelled a t her “Yo u’ve do ne it now , bitch, I’ll
kill you.”
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Acco rding to Donn ie Arde n, a fam ily friend of the Mc Kee’s , the de fenda nt’s
wife w as playin g a “m ind gam e” with h er hus band , repea tedly callin g and te lling him
that she loved him , then calling back an d telling him that she h ated him. Ard en heard
some of these messages on the defendant’s answering machine.
As previously mentioned, after the defendant and the victim became
estranged, the victim lived with Laura Baird. Baird w ould not allow the defe ndant to
come to her home or call the victim there. Brenda Bowers, a friend of both the
defendant and the victim, assisted the two in communication with each other. The
victim would call Bowers, then Bowers would page the defendant, and then the
defendant would call Bowers and give her the phone number (usually a pay phone)
where he could be reached. Bowers would give the victim this number, and the
victim would ca ll the defendant.
At about l0:30 a.m. on September 21, 1994, the defendant was at work when
he received a message on his beeper. He left work and went to the nearest phone,
returnin g twen ty to thirty m inutes later. He told co- worke rs that h e had ta lked to his
estranged wife on the phone, that he was going to meet with her, and that there was
a chan ce the y migh t recon cile. He picked up his c arpen ter’s too ls, put th em in his
car, and left work, sa ying that he would m eet with her even if it cost him his job.
September 21st was the couple’s wedding anniversary. Motel records
revealed that on that day the defendant, accompanied by another person, rented and
occupied a room at the Clark Motel in north Knoxville.
At 2:12 p.m. that day, Knox County Sheriff’s deputies were called to Brushy
Valley Road, a coun try road next to a field bordered by a ba rbed-wire fence , where
the victim was found lying dead. She had sustained multiple blows to her head and
numerous scratches that appeared to have been caused by the barbed wire.
A witness had seen a red sporty car speeding away from the area shortly
before the body was found. There is no evidence that the killing occurred in the car
or in the motel.
At 2:30 p.m. that afternoon, while investigators were still at the crime scene,
Arden saw and talked with the defendant at his father’s home. The defendant, who
had a beard, was shaving. The defendant said “he had fucked up, fucked up big
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time.” When Arden asked him to explain, the defendant said he had killed Marilyn.
When Arden asked if he was sure she was dead, the defendant said “yes, she
ought to be.” Arden testified that the defendant said his wife had called him that
morning and they had agreed to meet. The defendant also said they had gone to a
motel and made love. Later that afternoon, the defendant had asked his wife to
move back in with him and she had refused. The defendant said she told him that
she was living with another man and “that’s when it [the killing] happened.” Arden
testified that the defendant said the victim had told him she loved him as they drove
to the motel.
The defendant had asked Arden to take the license plate off his red Camaro
and hide the car, which Arden did. But when the defendant asked Arden to provide
him with an alibi for the time of the killing, Arden refused and told him to turn himself
in. The defendant answered that he needed to talk to a lawyer.
The defendant’s red Camaro was found where Arden had put it. An unsigned
anniversary card, which read “For My Wonderful Wife . . .,” was found inside the car,
and the defendant’s carpentry tools were found in the back seat. The victim’s car
was found at Powell Shopping Center with non-perishable groceries in the trunk
along with a cash register receipt which indicated she had purchased the groceries
at Food City at 11:48 a.m. on the day of her death.
The day after the victim was killed, the defendant’s attorney brought him to
the Knox County Sheriff’s Office. The defendant had several scratches on his arms
that resembled the scratches on the victim’s body.
Autopsy revealed that the victim’s death was caused by at least twelve blows
of massive force to the head and neck. In order to determine the type of instrument
used, the medical examiner decapitated the body of the victim and sent the head to
the University of Tennessee for cleaning and examination. Through this procedure,
it was determined that death was caused by a circular blunt instrument, most likely a
hammer. There were numerous fractures of the skull, a fracture on the facial area,
and one blow which fractured three vertebrae in the victim’s neck. A small metal
fragment was found in the victim’s brain. There was extensive bruising and swelling
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of the hands, most likely caused by the victim’s attempt to defend herself from the
blows.
We will address the sufficiency of the evidence issue last.
STATE’S OPENING AND CLOSING ARGUMENTS
First Complaint - State’s Opening Argument
The defendant says the State erroneously and prejudicially argued to the jury
in two aspects. First, the defendant says the District Attorney General in opening
argument to the jury attempted to anticipate that the defendant would argue the
victim invited the attack upon her. The defendant objected to the argument and the
trial court overruled the objection. We see no error.
It is not improper for the State to say what it thinks the accused will argue to
the jury, so long as the statements are not so far removed from the evidence in the
case as to make such arguments patently improper or inflammatory.
We conclude that the State’s argument in this regard is not improper.
Second Complaint - State’s Closing Argument
The defendant asserts also that the State erroneously argued that the actions
of the defendant of shaving, concealing his car, and asking a friend to supply an
alibi after the killing were evidence of a premeditated and deliberate killing.
The argument of the District Attorney General was an improper assertion of
how these facts could be weighed by the jury. Concealment of evidence is not
sufficient to show a premeditated or deliberated killing. State v. West, 844 S.W.2d
144 (Tenn. 1992).
However, the defendant may not obtain a new trial upon this basis. The
defendant did not make a contemporaneous objection to this argument as required
for relief. Tenn. R. App. P. 36(a). The defendant did not object until after the State
had closed its argument.
Further, the trial judge upon request of the defendant instructed the jury that
the actions of the defendant after the killing were not evidence of the defendant’s
intent or state of mind at the time of the killing.
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The State relies upon the case of State v. William Singleton, Jr., No. 03C01-
9406-CR-00221, Claiborne County (Tenn. Crim. App. Mar. 13, 1995), to say the
actions of the defendant were sufficient to show premeditation and deliberation.
The major issue in Singleton appears to be the concealment of the body. Although
the court in Singleton recognized the general rule, as stated in State v. Brown, 836
S.W.2d 530 (Tenn. 1992), that such acts are not sufficient to establish first degree
murder, the court said “in this case” the jury could consider the concealment of the
body on the issue of whether the killing was first degree murder. However, the body
of the victim was not concealed in this case. We must assume therefore that the
holding in Singleton is limited to the particular act of concealing a body and thus is
not a general attempt by the court to overturn the general rule established by the
Supreme Court in Brown.
We conclude the State’s argument as set out in the defendant’s second
complaint was improper, but both the failure of the defendant to enter a
contemporaneous objection to the argument and the instruction of the trial court on
the law applicable to the argued facts diffused any taint created by such argument.
The State could have argued the acts of concealment to show the defendant
was the person who killed the victim. However, in this case, there was no claim by
the defendant that he did not kill the victim.
THE INSTRUCTION TO THE JURY
Premeditation and Deliberation
The defendant contends the trial court failed to distinguish between the
elements of premeditation and deliberation in the instructions given to the jury. The
record does not support this claim.
The record shows the trial judge connected the elements of premeditation
and deliberation one time in the instruction. The coupling in that instance was not
erroneous. The trial judge was explaining how excitement applies in assessing the
elements of premeditation and deliberation. We see no error in this connection.
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The record shows the trial judge clearly and properly instructed the injury on
the difference between premeditation and deliberation as required. State v. Brooks,
880 S.W.2d 390 (Tenn. Crim. App. 1993).
We need not address the State’s unpersuasive argument that any error in the
instruction was harmless error.
The defendant asked the trial judge to charge the jury by several requests.
The requests numbered 4, 5, and 6, which were rejected by the trial judge, dealt
with various definitions of what constituted voluntary manslaughter. The trial judge
allowed the defendant to argue the facts which he claimed made the instructions
valid. The trial judge properly charged the jury on voluntary manslaughter. Further,
the requests submitted by the defendant border closely upon a comment on the
evidence.
The defendant also complains that the trial judge did not properly charge the
jury on how they were to weigh the concealment of evidence as it relates to
premeditation and deliberation. The record shows the trial judge gave a full
instruction to the jury in this regard. When the trial judge has given a correct and
sufficient instruction to the jury, the refusal to give requested instructions is not error.
State v. Story, 608 S.W.2d 599 (Tenn. Crim. App. 1980). We find no error in the
instruction given by the trial judge on the matter raised by the defendant’s requests
numbered 4, 5, and 6, and we reject the defendant’s claim as to the refusal of the
trial judge to give the instruction.
The defendant also argues the trial judge was in error for not instructing, at
his request, the jury that a homicide when shown is presumed to be murder in the
second degree.
The defendant was attempting to convince the jury that he was guilty of
manslaughter. The State was attempting to convince the jury that the defendant
had committed first degree murder. The State has the burden of proving the
defendant committed the offense and the degree of the offense, i.e. murder in the
first degree, murder in the second degree, or voluntary manslaughter. If the
defendant’s requested instruction had been given, the burden of proof would have
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been as follows. The burden would be on the State to elevate the offense from
second degree murder to first degree murder. And, the defendant would have the
burden of reducing the crime to voluntary manslaughter.
The instruction sought by the defendant, though the rule in days gone by, fell
to the holding of the United States Supreme Court in Sandstrom v. Montana, 442
U.S. 510 (1979), that any instruction which shifts the burden from the State to the
defendant to show an element of the offense is constitutionally impermissible. In
State v. Bolin, 678 S.W.2d 42 (Tenn. 1984), our Supreme Court espoused the same
rule.
We find the trial judge correctly refused to give the instruction.
INTRODUCTION OF THE SKULL
The defendant contends the introduction of the victim’s skull to show the
injuries sustained was error because its prejudicial effect outweighed its probative
value, because it was an inaccurate depiction of the injuries suffered by the victim,
and because it was unnecessary to introduce the skull into evidence.
The introduction of the skull into evidence is not unique to this trial. Such
evidence has been allowed before in this State and in other jurisdictions.
In State v. Morris, 641 S.W.2d 883 (Tenn. 1982), the Supreme Court
approved the use of a skull to show the nature and type of injuries sustained by the
victim. In State v. Cazes, 875 S.W.2d 253 (Tenn. 1994), the Supreme Court held
the introduction of the skull was proper as it aided in identifying the weapon used in
the murder. Further, it appears in Cazes that the introduction of the skull is relevant
to identify the accused as the perpetrator of the crime.
In State v. King, 718 S.W.2d 241 (Tenn. 1986), and in State v. Sexton, 724
S.W.2d 371 (Tenn. Crim. App. 1986), the Supreme Court and the Court of Criminal
Appeals held such evidence was admissible to show premeditation and deliberation.
We believe the validity of these views is brought into question by the decision in
State v. Brown, which expresses the view that repeated blows are not sufficient by
themselves to show first degree murder because repeated blows may be delivered
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in the heat of passion with no design or reflection. 836 S.W.2d 530 (Tenn. 1992). It
appears therefore that there must be something more than an attempt to show first
degree murder apparent to justify the introduction of the skull. In this case,
however, we find the introduction of the skull was relevant to show the nature of the
injuries inflicted upon the victim and thus relevant to show the defendant’s intent at
the time he inflicted the blows.
We are further satisfied the trial judge properly allowed the skull to be
introduced because the forensic expert testified she would have difficulty in showing
the extent of the injuries from pictures or diagrams. We also note that the trial judge
did not allow the skull to be passed to the jury.
We conclude, therefore, that the trial court properly allowed the skull to be
introduced under the rule which excludes evidence if its prejudicial value far
outweighs its probative value. State v. Banks, 564 S.W.2d 947 (Tenn. 1978). In
this case, the prejudicial value of the introduction of the victim’s skull did not
outweigh it probative value.
The defendant further contends the skull was an inaccurate depiction of the
victim’s injuries because a piece of bone was missing from the cheek area from
where the victim had apparently sustained a previous injury. This was explained by
the forensic expert out of the presence of the jury. There is nothing to show the jury
saw the place where the bone was missing nor was there any showing they were
influenced by this. We see no basis for excluding the skull by reason of this.
The defendant further says the trial judge should not have allowed the use of
the skull because he had filed a timely request for Notice of Intention to Use
Evidence pursuant to Rule 12(d)(2) some days prior to trial and yet was not notified
of the State’s intent to use the skull until the first day of the trial.
It appears from this record that the District Attorney General and the
defendant’s attorney learned at approximately the same time that the body of the
victim had been decapitated and the skull was available for use at the trial. The
time of the knowledge of the evidence exonerates the State from any attempt to
surprise the defendant at trial. That alone, however, does not answer the question
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of whether the late revelation results in prejudice to the accused if the evidence is
introduced. This is determined of course by whether, given adequate time, the
defendant could reasonably refute the veracity of the evidence offered, explain the
evidence in a manner to show it has no relevancy on the issues to be found, or
make acceptable stipulations as discussed in Banks which would make the
introduction of the evidence unnecessary.
The record in this case shows the following: the defendant never denied he
caused the victim’s death; the deceased received massive blows; the expert
witness, Dr. Elken, stated that there were twelve blows suffered by the victim; and
the forensic pathologist, who reconstructed the evidence, said the victim received at
least seven blows.
The defendant contends now that if he had been given notice of the State’s
intent to use the skull, a stipulation as to the manner of death could have been
entered and thus obviated the need to introduce the skull.
Looking back at this issue as we are able to do, we find that the purpose for
which the skull was introduced would not have been nullified by such a stipulation
because the probative value of this evidence was greater than its prejudicial effect.
Therefore, there would have been no error in admitting the skull even in the face of
a stipulation as that suggested by the defendant.
TESTIMONY OF OFFICER BRYANT AND LAURA BAIRD
The defendant claims that the testimony of Officer Bryant and the testimony
of Laura Baird concerning the arrest of the defendant on a previous domestic
altercation between the defendant and the victim should have been excluded
because it did not qualify for admission under Rules 404, 608, or 609 of the
Tennessee Rules of Evidence or in accordance with the use of prior arrests in the
decision of this Court in State v. Bordeis, 905 S.W.2d 214 (Tenn. Crim. App. 1995).
We find the testimony of Officer Bryant is admissible for two reasons. First,
the defendant did not object to the introduction of the testimony when given. In fact,
this record does not show any objection. The defendant may not now predicate an
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error upon this basis. State v. Copenry, 888 S.W.2d 450 (Tenn. Crim. App. 1993);
Adams v. Manis, 859 S.W.2d 323 (Tenn. Crim. App. 1993). Second, we think the
testimony of Officer Bryant was relevant on an essential issue of the crime charged
in this case. The State had the burden of showing premeditation for a conviction in
this case. In the course of the arrest, the defendant made statements that he would
kill the victim. Proof material to the issues under review is not incompetent because
the defendant has committed other crimes. Lacey v. State, 506 S.W.2d 809 (Tenn.
Crim. App. 1974).
The only testimony Laura Baird gave in this regard was that she was aware of
the arrest made by Officer Bryant, about which he had testified. W e find no error in
this.
SUFFICIENCY OF THE EVIDENCE
Our standard of review when the sufficiency of the evidence is questioned on
appeal is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
This means that we may not reweigh the evidence, but must presume that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from
the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
At the time of the offense in this case, an intentional, premeditated, and
deliberate killing of another constituted first degree murder. See Tenn. Code. Ann.
§ 39-13-202(a)(1) (1991). Our criminal code defined a deliberate act as “one
performed with a cool purpose” and a premeditated act as “one done after the
exercise of reflection and judgment.” Tenn. Code. Ann. § 39-13-201(b)(1)(2) (1991).
In State v. Brown, our Supreme Court stated that deliberation required some period
of reflection, without passion or provocation, and concluded that the “deliberation
necessary to establish first degree murder cannot be formed in an instant.” 836
S.W.2d 530, 539, 543 (Tenn. 1992). Premeditation requires a showing of a
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previously formed design or intent to kill. State v. West, 844 S.W.2d 144, 147
(Tenn. 1992).
The existence of the separate and distinct elements of premeditation and
deliberation is a question of fact to be decided by the jury. See Brown, 836 S.W.2d
at 541-42. In this respect, the determination of the state of mind necessary to
establish the elements of first degree murder may be shown by circumstantial
evidence. Id. at 541; State v. Burlison, 868 S.W.2d 713, 717 (Tenn. Crim. App.
1993). However, a jury may not find an element of the offense if there is not
evidence to support the theory of the state. See West, 844 S.W.2d at 147.
The evidence in this case shows the defendant and the victim were married
on September 21, 1990. Shortly before the death of the victim, they became
estranged. On two occasions before the death of his estranged wife, the defendant
made statements that he would kill the victim. One of the statements was made at
the time the defendant was arrested in the course of a domestic dispute. The other
statement was made at the Loudon County courthouse after a hearing involving the
defendant and the victim. We are satisfied that the evidence of the statements
made by the defendant could support a finding of premeditation in this case.
The record shows that on the date the victim was killed, she, as was
customary, initiated a call to make contact with the defendant. The defendant met
the victim, and they went to a motel where they were involved in sexual activity.
After the defendant and the victim left the motel, the defendant asked the victim to
return to him. The victim told the defendant she could not because she had a
boyfriend with whom she was living. The evidence shows the victim was living with
the boyfriend in the home of Laura Baird. The defendant then killed the victim and
drove away.
The question becomes whether the evidence is sufficient to show the
defendant deliberated the killing of the victim. We think not.
The jury may draw inferences from the circumstances surrounding a killing to
find deliberation. Such inferences must, however, be based upon the evidence in
the case which reasonably could lead one to reach a conclusion. As stated in State
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v. West, 844 S.W.2d 144 (Tenn. 1992), the jury cannot construct a theory based on
no evidence at all. We find little evidence in this record for a finding of deliberation.
The State argues that the defendant was aware that the victim was living with
another man at the time of the killing. The State bases this upon the testimony of
Officer Bryant. We cannot find any testimony of this witness which shows the
defendant was aware of the victim’s boyfriend. Officer Bryant testified that he
arrested a person in December 1994 who said he was the victim’s boyfriend. This
was three months after the killing. Laura Baird, the woman with whom the victim
and the boyfriend lived, did not testify that the defendant knew of the boyfriend prior
to the date of the killing.
The State further says the defendant mentioned the boyfriend on the date of
the murder. However, these statements were made by the defendant after the
killing, and the defendant was quoting what his estranged wife had revealed to him
about the existence of the boyfriend.
The State further argues that the evidence shows the defendant deliberated
before killing the victim because he placed his tools in his car before going to meet
her. This theory is based upon the fact that the defendant did not customarily carry
his tools in his car.
It is fairly common knowledge that carpenters and other artisans own and
carry with them their own tools. Further, it is the general course for carpenters to
carry their tools in a tool belt from their home to their job and back. In the context of
this case, we do not think the State’s theory is valid.
The time between when the defendant talked with the victim and left the job
site in Loudon around 10:30 and 11:00 a.m. and when the victim bought groceries at
a grocery store in Knox County at 11:48 indicates the defendant drove his car
directly from the job site to where he met the victim. It more logically follows that his
tools were in the car in the normal course of the defendant’s routine rather than by a
diabolic intent by the defendant to arm himself prior to meeting his estranged wife.
Further, the evidence shows the defendant made no effort to disguise himself
when he registered at the motel. The defendant gave his correct name, address,
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driver’s license number, and vehicle tag number. All of this belies a pre-determined
and deliberate journey to Knox County to kill his estranged wife.
We find the evidence in this case falls short of meeting the test in State v.
Brown, 836 S.W.2d 530 (Tenn. 1992), that deliberation cannot be formed in an
instant and that the proof must show the homicide was committed with a cool
purpose and without passion or provocation.
The decision in Brown clearly shows that premeditation and deliberation do
not have a synomous meaning. There may be one without the other. One may
premeditate and kill in a heat of passion without deliberation, and such killing would
not be murder in the first degree because at the time of the killing the mind of the
accused would be incapable of acting with coolness and deliberation.
We conclude the evidence in this case is closely akin to the evidence in State
v. Thornton, 730 S.W.2d 309 (Tenn. 1987), where the Supreme Court reduced a
conviction from murder in the first degree to voluntary manslaughter.
In Thornton, the defendant and his wife were estranged. The defendant was
attempting to reconcile with his wife. The defendant went to the home that he and
his wife had shared. He discovered his estranged wife engaged in sexual
intercourse with a man he did not know. The defendant shot the man in the hip.
The man died later from infection which resulted from the bullet wound. The
Supreme Court held, after citing various cases involving sexual acts of a spouse
with another, that the passion of any reasonable person would have been inflamed
and intensely aroused by the discovery of his estranged wife involved in intercourse
with a strange man and that such would reduce the crime to voluntary
manslaughter.
In the case before us, the defendant and the victim had met at the victim’s
behest and had gone to a motel to engage in sexual intercourse. It seems only
reasonable that the defendant’s desire to reconcile with his wife had taken a positive
turn. When the defendant’s estranged wife informed him she could not return to him
because she had a boyfriend with whom she was living, the normal human reaction
from the defendant would be to react passionately and without reflection, and such a
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response defies the conclusion that the defendant acted coolly and with reflection
when he killed his estranged wife.
We are of the opinion, however, as expressed in the dissenting opinion in
Thornton, that there is sufficient evidence to show the defendant acted with malice
when he killed his estranged wife and that the evidence is sufficient to find the
defendant guilty of second degree murder. We therefore reduce the conviction of
the defendant to second degree murder and remand the case to the trial court for
sentencing on that offense.
John K. Byers, Senior Judge
CONCUR:
Joseph M. Tipton, Judge
Paul G. Summers, Judge
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
April 28, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9603-CR-00092
)
) Knox County
v. )
) Honorable Richard Baumgartner, Judge
)
THOMAS J. McKEE, ) (First Degree Murder)
)
Appellant. )
SEPARATE OPINION
I concur with most of the reasoning and the results reached in Judge Byers’
opinion. However, I respectfully disagree with his view that the evidence is insufficient
to prove a deliberate and premeditated murder.
The defendant contends that the evidence does not prove that he killed the
victim with premeditation and deliberation, showing instead that he acted in a heat of
passion. In support, he argues that the repeated blows to the victim’s head show that
his actions were a result of a sudden rage initiated by the victim’s rejection of him.
Judge Byers follows suit and presents a view of the evidence that rationally
supports the defendant’s assertions. However, the fact that the evidence could lead
one to agree with Judge Byers’ view of it does not focus our review upon the necessary
inquiry. That inquiry is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
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Ct. 2781, 2789 (1979). In such an analysis, we may not reweigh the evidence, but must
presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978).
At the time of the offense, an unlawful, intentional, premeditated and deliberate
killing of another constituted first degree murder. See T.C.A. § 39-13-202(a)(1) (1991).
A deliberate act was defined as “one performed with a cool purpose,” and a
premeditated act as “one done after the exercise of reflection and judgment.” T.C.A. §
39-13-201(b)(1) and (2) (1991). In State v. Brown, 836 S.W.2d 530, 539, 543 (Tenn.
1992), our supreme court stated that deliberation required some period of reflection,
without passion or provocation, and concluded that the “deliberation necessary to
establish first degree murder cannot be formed in an instant.” Premeditation requires a
showing of a previously formed design or intent to kill. State v. West, 844 S.W.2d 144,
147 (Tenn. 1992).
The existence of the elements of premeditation and deliberation is a question of
fact to be decided by the jury. See Brown, 836 S.W.2d at 541-42. In this respect, the
state of mind elements necessary to establish first degree murder are typically shown
by circumstantial evidence. Id.; State v. Burlison, 868 S.W.2d 713, 717 (Tenn. Crim.
App. 1993). That is, circumstances such as the use of a deadly weapon upon an
unarmed victim, a particularly cruel killing, and threats to kill the victim are relevant to
prove the perpetrator’s state of mind with regard to premeditation and deliberation. See
Brown, 836 S.W.2d at 541.
Judge Byers looks to the events immediately surrounding the killing. That
evidence reflects that the defendant met with the victim and rented a motel room.
While at the motel, the defendant and the victim engaged in consensual sexual
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intercourse. As they were driving away from the motel, the defendant asked the victim
to move back with him. When she told him no and explained that she was living with
another man, the defendant stopped the car and he and the victim got out. The proof
reflects that the defendant obtained a circular, blunt instrument from his car, went
toward a fence located eight to ten feet away, and killed the victim by inflicting at least
twelve blows of great force to her head.1 The numerous blows caused several fractures
to the vertebrae and the victim’s neck and to her skull.
These facts could lead to a conclusion that the killing acts occurred while the
defendant was in an emotional state. However, this does not necessarily negate first
degree murder. Strong feelings and excitement can co-exist with premeditation and
deliberation. State v. McAfee, 784 S.W.2d 930, 932 (Tenn. Crim. App. 1989).
“‘However, passion does not always reduce the crime since a man
may deliberate, may premeditate, and may intend to kill after premeditation
and deliberation, although prompted and to a large extent controlled by
passion at the time. If the design to kill was formed with deliberation and
premeditation, it is immaterial that defendant was in a passion or excited
when the design was carried into effect.’”
Leonard v. State, 155 Tenn. 325, 337-38, 292 S.W. 849, 852 (1927) (quoting from 29
C.J., Homicide, § 100 at 1116-17); see also Franks v. State, 187 Tenn. 174, 179, 213
S.W.2d 105, 107 (1948).
A most telling point in the present case is the fact that the defendant on more
than one occasion threatened to kill the victim. On July 31, 1994, police responded to a
call involving a domestic dispute between the defendant and the victim. Immediately
after the defendant was arrested, he looked at the victim and stated, “I’ll get you for this,
bitch” and “I’ll kill you.” After the defendant was put into a patrol car, he stated at least
three or four more times that if it was the last thing he did, he would get even with the
1
I concur with Judge Byers that the skull was admissible, primarily because it was relevant as
tending to prove that the defendant intended to kill the victim. Absent the defendant stipulating or
conceding before the jury that he intended to kill the victim, the victim’s skull was the best evidence of
the severity of the attack for intent purposes.
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victim and would kill her. Also, during August 1994, the defendant again threatened the
victim at the courthouse when the victim told him that she would not come back to him.
He responded, “You’ve done it now, bitch. I’ll kill you.” Within two months of this threat,
the defendant killed the victim after she refused to reconcile with him.
I believe that the foregoing facts justify the jury rationally concluding beyond a
reasonable doubt that the defendant deliberately decided to kill the victim if she chose
not to continue the relationship. This type of conditional threat followed by a killing
upon fulfillment of the condition shows reflection and planning. See, e.g., State v.
Morris Ray, No. 01C01-9201-CC-00025, Bedford County (Tenn. Crim. App. Mar. 1,
1993), app. denied (Tenn. July 6, 1993) (upholding first degree murder conviction when
the defendant expressed the intent to kill the victim if a criminal warrant were issued
and the killing occurred after a warrant issued); cf. Leonard, supra. Under such
circumstances, the presence of passion would not negate the fact that the design to kill
was formed with deliberation and premeditation. The conviction for first degree murder
should be affirmed. I am authorized to state that Judge Paul G. Summers concurs in
this opinion.
__________________________
Joseph M. Tipton, Judge
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
April 28, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9603-CR-00092
)
) Knox County
v. )
) Honorable Richard Baumgartner, Judge
THOMAS J. McKEE, )
) (Murder in the First Degree)
Appellant. )
SEPARATE OPINION
I concur with Judge Tipton’s separate opinion. I also agree with most of
the reasoning and the results reached in Judge Byers’ opinion. However, I
respectfully disagree with Judge Byers’ view that the evidence is not sufficient to
prove a deliberate and premeditated murder. The facts of this case justify the
jury’s rational conclusion beyond a reasonable doubt that the defendant
deliberately killed the victim. Therefore, I vote to affirm the conviction of murder
in the first degree.
__________________________
PAUL G. SUMMERS, Judge
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State v. McKee
Combined Opinion