IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL SESSION, 1998
FILED
STATE OF TENNESSEE, ) April 14, 1998
) No. 02C01-9708-CR-00307
Appellee ) Cecil Crowson, Jr.
Appellate C ourt Clerk
) SHELBY COUNTY
vs. )
) Hon. W. Fred Axley, Judge
JOHNNY O. CLARK, )
) (First Degree Murder)
Appellant )
For the Appellant: For the Appellee:
Tony N. Brayton John Knox Walkup
Asst. Public Defender Attorney General and Reporter
201 Poplar, Suite 2-01
Memphis, TN 38103 Elizabeth T. Ryan
Assistant Attorney General
Criminal Justice Division
AC Wharton, Jr. 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
Edgar A. Peterson
Asst. District Attorney General
Criminal Justice Complex
Suite 301, 201 Poplar Street
Memphis, TN 38103
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Johnny O. Clark, was found guilty by a Shelby County jury of
premeditated first degree murder. He was subsequently sentenced to a term of life
imprisonment in the Department of Correction. In this appeal as of right, the
appellant contends that the evidence is insufficient to support his conviction.
After a review of the record, we affirm the judgment of the trial court.
Background
On the evening of March 14, 1995, a host of people, including family,
acquaintances, and others gathered at the 3171 Nathan Street residence of Betty
Clark. Included in this group was nineteen year old, Deron Cathey,1 the victim in this
case. As was customary, Mrs. Clark allowed various people to spend the night at
her home. Mrs. Clark’s home consisted of a living room, three bedrooms, a kitchen
and a bathroom.2 The only entrance to the house was through the front door and
Mrs. Clark kept the only key. On this particular evening, Jerrekcha Clark, Mrs.
Clark’s granddaughter, and her boyfriend, Robert Patterson, went to sleep in the
living room; Mrs. Clark and Eric Johnson, Jerrekcha’s nine year old son, were
sleeping in the front bedroom; Mose Dire, a family friend, and Deron Cathey
occupied the middle bedroom; and Felix Lockett, “an old guy,” and Tony Valentine,
the appellant’s brother, retired to the rear bedroom. Betty Clark is the mother of the
appellant. Although the appellant usually stayed at his mother’s house, he had
been absent from the residence for the past three days.
1
Deron Cathey is also referred to as Desron, Ron, or Darren in the record. He is also
referred to by his father’s surname, Taylor.
2
Testimony at trial indicated that the living room and one bedroom were located in the
front of the house. A hallway led from the living room to the kitchen. The only access to the two
rear bedrooms was through the front bedroom.
2
At approximately 3:15 a.m., on March 15, Tony Valentine was awakened by
the appellant and Mose Dire in the kitchen. The appellant was getting some
clothes. Valentine noticed that Deron Cathey was in the middle bedroom awake.
Valentine confronted the appellant in the kitchen and asked him to leave the home
because of previous altercations with Deron Cathey. 3 The appellant “was like
wanting to go at [Deron] but I told him not to. . . like he wanted to break at him but I
stopped him.” Valentine then escorted the apparently angry appellant to the front
door of the residence and locked the door.
Sometime later that morning, around 5:00 a.m., the appellant returned to his
mother’s house and began knocking on the front door. Jerrechka and Mrs. Clark
were awakened by the noise. Mrs. Clark told Valentine to let the appellant in the
house. Jerrechka and Mrs. Clark then went back to sleep. The appellant
accompanied Valentine to the rear bedroom where he told his brother, “I’m going to
sleep in my bed.” At this time, Valentine noticed that, although Mose Dire was
asleep in the middle room, Deron Cathey was awake and sitting on the bed.
Valentine then went back to sleep.
Shortly thereafter, the sleeping residents were awakened by the sound of
gunfire. Valentine awoke to find the appellant “bent over and shooting [Deron
Cathey].” Mose Dire observed Deron Cathey laying across the bed with his hands
raised palm up in the air. Cathey was not armed with a weapon and begged the
appellant, “[p]lease don’t do this.” After firing multiple gunshots at the unarmed
Cathey, the appellant ran out the front door of the house. Jerrechka Clark noticed
the front door closing, but was unable to identify the person. Tony Valentine then
called for an ambulance and the police.
3
At trial, Valentine explained that, three days earlier, the appellant and Deron Cathey had
been involved in a verbal argument regarding Phyllis, the appellant’s girlfriend, and money
appare ntly owed to C athey. Cath ey may h ave bee n arm ed with a w eapon during this a ltercation.
The appellant’s mother, Betty Clark, confirmed that the appellant and Deron had been arguing
over som ethin g for abou t a m onth . In the appe llant’s defe nse , she testifie d tha t Cath ey had told
her that he was go ing to kill the ap pellant.
3
Memphis Police Officers Joseph Locastro and J.L. Simpson responded to the
call from the Nathan Street address within two minutes of hearing the dispatch.
They found the victim, Deron Cathey, lying on the floor, between a couch and a bed,
in a bedroom on the east side of the house. The victim had sustained multiple
gunshots wounds. The officers secured the scene, began preliminary
investigations, and identified the appellant as the suspect. However, no weapons
were discovered at the scene nor did the officers locate any spent shells or bullet
holes. All of the witnesses at the scene testified that no weapons were kept in Betty
Clark’s residence, as she forbade them. Around 6:15 a.m, Officer Locastro was
outside on the front porch of the house when he spotted the appellant emerging
from between two houses. The appellant was placed under arrest, but no weapon
was discovered on his person or in the area from which he emerged.
Paramedics from the Memphis Fire Department arrived at the scene at 5:31
a.m. and proceeded to transport the victim to a local hospital. The victim, whose
condition deteriorated in transport, was pronounced dead at 7:54 a.m. Dr. O.C.
Smith performed the autopsy on the victim. He determined that the victim had died
from multiple gunshot wounds. Dr. Smith testified that the victim had been shot four
times: in his right upper lip; in his left back; in his right front chest, and in the
backside of his left upper arm.
At trial, the appellant testified in his own behalf. He stated that he arrived at
3171 Nathan Street at 5:05 a.m. in order to change his clothes. He explained that
[w]hen I reached in my drawer to get my cologne to put on, and
[Deron] stepped up to the door and asked me, say, ‘You ready for you
ass whooping.’ So I just looked at him and he walked off. And when
he walked off, he went to the right where guns are kept there in the
house. And so when I put my cologne back in the drawer, I looked. . .
up, he was coming toward me and I shot him. I shot him as he
stepped into my room coming toward me. . . . I was scared.
4
After the appellant fled the house, he threw the gun in a field located at the
intersection of “Crystal and Baltic.”4 The appellant admitted that he had purchased
the gun, a .38 revolver, earlier that evening for “40 something dollars” from a “guy
named . . . Mac” on the street.
The appellant stated that, three days prior to the shooting, he and Deron had
an argument and the appellant had to escape from the kitchen window because
Deron was armed with a weapon. He believed that “they were planning to get me,
because Deron had hit Phyllis in the eye and broke her glasses and hit her under
here. And she was a friend of mine. . . .” The appellant explained that Deron was
involved in drugs and that drugs were sold out of his mother’s house.
Consequently, he stated that a lot of guns were kept in the residence, hidden in the
air conditioner and under the couch. He alleged that the State’s witnesses lied
during their testimony.
Analysis
The appellant contends that a rational trier of fact could not find, from the
evidence presented at trial, that the appellant acted with premeditation and
deliberation.5 Specifically, he argues that the proof fails to establish that the
homicide was “committed with coolness and reflection and without passion or
provocation.” Thus, he concludes his conviction for premeditated first degree
murder cannot stand. We disagree.
4
The weapon used by the appellant was never recovered.
5
At tria l, the a ppe llant a rgue d self -def ens e. Th e jury, b y their v erdic t, reje cted this th eory,
finding that the killing was not justified. On appeal, the appellant concedes “while [the appellant’s]
fear may not have been enough to give rise to a defense of self-defense, it does indicate that the
appellan t acted in the passion and fea r of the m ome nt. . . . [ergo,] the pr oof wou ld only supp ort a
conviction for second degree murder unless the State could show that premeditation and
deliberation preced ed the stru ggle.”
5
When there is a challenge to the verdict based on the sufficiency of the
evidence, this court must review the evidence in the light most favorable to the
prosecution and determine whether “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.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253,
259 (Tenn. 1994); Tenn. R. App. P. 13(e). We do not reweigh or reevaluate the
evidence; these are issues resolved by the trier of fact. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Furthermore, a guilty verdict accredits the testimony
of witnesses for the State and a presumption of guilt replaces the presumption of
innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant
bears the burden of proving that the evidence was insufficient to support the jury
verdict in his case. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
On the date of this offense, first degree murder not committed in the
perpetration of a crime required proof of the “intentional, premeditated and
deliberate killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (1994 Supp.). A
death caused by another is presumed to be second degree murder. State v. Brown,
836 S.W.2d 530, 543 (Tenn. 1992). Thus, the State must prove premeditation and
deliberation to raise the offense to first degree murder. Id. Premeditation
necessitates “the exercise of reflection and judgment,” Tenn. Code Ann. § 39-13-
201(b)(2) (1991), “includ[ing] instances of homicide committed by poison or lying in
wait,” and requiring “a previously formed design or intent to kill.” State v. West, 844
S.W.2d 144, 147 (Tenn. 1992). Deliberation, on the other hand, is defined as a
“cool purpose . . . formed in the absence of passion.” Brown, 835 S.W.2d at 538
(citations and internal quotations omitted). Deliberation also requires “some period
of reflection, during which the mind is free from the influence of excitement.” Id.;
see also Tenn. Code Ann. § 39-13-201(b)(2).
6
The elements of premeditation and deliberation are questions for the jury and
may be inferred from the circumstances surrounding the killing. State v. Gentry, 881
S.W.2d 1, 3 (Tenn. Crim. App. 1993), perm. to appeal denied, (Tenn. 1994).
Because the trier of fact cannot speculate as to what was in the killer’s mind, the
existence of facts of premeditation and deliberation must be determined from the
appellant’s conduct in light of the surrounding circumstances. State v. Wright, No.
01C01-9503-CC-00093 (Tenn. Crim. App. at Nashville, Jan. 5, 1996). Although
there is no strict standard governing what constitutes proof of premeditation and
deliberation, several relevant circumstances are helpful, including: the use of a
deadly weapon upon an unarmed victim; the fact that the killing was particularly
cruel; declarations by the defendant of his intent to kill; the making of preparations
before the killing for the purpose of concealing the crime; and the procurement of
weapons immediately prior to the killing. State v. Bland, 958 S.W.2d 651, 660
(Tenn. 1997) (citing Brown, 836 S.W.2d at 541-542). Additional factors from which
a jury may infer premeditation and deliberation include planning activities by the
appellant prior to the killing, the appellant’s prior relationship with the victim from
which motive may be inferred, and the nature of the killing from which it may be
inferred that the manner of killing was so particular and exacting that the defendant
must have intentionally killed according to a preconceived design. Gentry, 881
S.W.2d at 4-5 (citation omitted).
Reviewing the present case in the light most favorable to the State, the
appellant and the victim had an oral argument three days prior to the homicide. See
Gentry, 881 S.W.2d at 5 (while motive is not an element of the offense, its proof
may reflect upon the elements of premeditation and deliberation). The appellant
purchased a weapon within several hours of the incident. He also was aware that
Deron Cathey had been staying at his mother’s Nathan Street residence. See
Brown, 836 S.W.2d at 541 (facts about what the defendant did prior to the killing
which show he was engaged in planning activity support an inference of
7
premeditation and deliberation). At 3:00 a.m. the next morning, he went to his
mother’s house, where his brother, Tony Valentine, instructed him to leave because
the appellant “was . . wanting to go at [Deron] Cathey.” He returned several hours
later and found Deron Cathey unarmed in the middle bedroom. See Bland, 958
S.W.2d at 660. Tony Valentine and Mose Dire witnessed the appellant shoot Deron
multiple times despite Deron’s pleas. Gentry, 881 S.W.2d at 4-5. The weapon was
fired at close range. The appellant ran out of the house and subsequently threw the
weapon in a vacant field. See West, 844 S.W.2d at 148 (fact that defendant
disposed of weapon immediately after shooting supports theory that homicide was
committed in the absence of passion).
From these facts, we conclude that a reasonable trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Accordingly,
the judgment of conviction for the offense of first degree murder is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
________________________________
WILLIAM M. BARKER, Judge
________________________________
JOE G. RILEY, Judge
8