IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
SEPTEMBER 1997 SESSION October 24, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 03C01-9606-CC-00238
Appellee, )
) ANDERSON COUNTY
VS. )
) HON. JAMES B. SCOTT, JR.,
FREDERICK R. PORTER, ) JUDGE
)
Appellant. ) (Attempted second-degree murder;
second-degree murder)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES L. BEACH JOHN KNOX WALKUP
365 Market St. Attorney General & Reporter
Clinton, TN 37716
(At trial and on appeal) MARVIN E. CLEMENTS, JR.
Asst. Attorney General
DEBORAH MURPHY BEACH 450 James Robertson Pkwy.
365 Market St. Nashville, TN 37243-0493
Clinton, TN 37716
(At trial) ROBERT L. JOLLEY, JR.
Special Prosecutor
DAVID HILL P. O. Box 1468
301 E. Broadway Knoxville, TN 37901-1468
Newport, TN 37821-3105
(At trial)
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was charged with the premeditated murder of Gerald Brown,
the felony murder of Gerald Brown, and the attempted premeditated murder of Jerome
Anderson. After a jury trial, he was convicted of the second-degree murder of Gerald
Brown and attempted second-degree murder of Jerome Anderson; following the verdict,
the trial court dismissed the charge of felony murder. After a hearing, the trial court
sentenced the defendant as a Range I standard offender to twenty-five years
incarceration for the murder offense and twelve years incarceration on the attempted
murder offense. The sentences were run consecutively. In this direct appeal, the
defendant raises the following issues:
1. The sufficiency of the evidence;
2. Whether the trial court erred in admitting the defendant’s statement;
3. Whether the trial court should have granted a mistrial after hearing
two jurors discussing a weapon;
4. Improper prosecutorial argument to the jury;
5. Whether the trial court erred in refusing to admit proffered defense
evidence which would have “impeached the integrity of the
prosecution;” and
6. The propriety of his sentence.
Upon our review of the record, we find no merit to any of the defendant’s issues and
affirm the judgment below.
On the evening of February 26, 1993, numerous persons had gathered in
an area near the Scarboro Community Center in Oak Ridge, Tennessee. An argument
broke out between Jerome Anderson, Andre Porter and Robert Smith. During the course
of the argument, Anderson pulled out a pistol and shot three or four times at Andre
Porter, causing a single bullet wound to Porter’s neck. Following these shots, Anderson
and Smith began running from the scene toward the Community Center.
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The defendant was in the vicinity of the argument; Porter was his cousin.
Several eyewitnesses testified that, after Anderson shot Porter, the defendant pulled a
pistol and began shooting toward the direction in which Anderson and Smith were
running. Anderson testified that he had looked back and seen the defendant shooting
at him. Gerald Brown was proceeding in the same direction as Anderson and Smith, but
on a path that put him between them and the defendant. He was killed by a single
gunshot wound with a nine millimeter bullet. Witnesses testified that the defendant had
shot numerous times; the police later found ten nine millimeter shell casings in the area
in which the defendant was alleged to have been standing while he was shooting. The
weapon from which the fatal bullet was fired was not recovered.
The defendant did not testify. However, during the investigation of Brown’s
death, he made a voluntary statement to the police which was admitted into evidence.
This statement included the defendant’s assertion that, “W hen I heard and saw the two
shots fired at my cousin, I looked and saw that [Anderson] was fixing to try and shoot me.
So when I proceeded to run he shot once at me and then I heard many other shots as
I was running.” Nowhere in his statement to the police did the defendant admit that he
had fired any shots. However, Angela Brown, the murder victim’s sister, testified that she
had spoken with the defendant over the phone after her brother was killed, and that he
had told her that he hadn’t shot at her brother but had been “shooting up in the air.”
Derrick Smith testified that the defendant had offered him money to change his statement
in which he reported having seen the defendant pull a gun.
The defendant first contends that the evidence is not sufficient to support
his convictions for attempted second-degree murder and second-degree murder because
the weapon was never recovered (and was, accordingly, never linked to him) and
because there was proof that other people in the same vicinity were or may have been
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armed. He further contends that the proof demonstrates, at most, that he is guilty of
attempted voluntary manslaughter and voluntary manslaughter. We disagree.
When an accused challenges the sufficiency of the convicting evidence, we
must review the evidence in the light most favorable to the prosecution in determining
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, 61
L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to
afford the State the strongest legitimate view of the proof contained in the record as well
as all reasonable and legitimate inferences which may be drawn therefrom. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Questions concerning the credibility of witnesses, the weight and value to
be given to the evidence, as well as factual issues raised by the evidence are resolved
by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict
rendered by the jury and approved by the trial judge accredits the testimony of the
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 State adduced testimony from numerous eyewitnesses that they had
seen the defendant shooting multiple times toward the direction in which Anderson and
Smith were running. Anderson himself testified that he had seen the defendant shooting
at him as he ran. Additional testimony and physical evidence, including blood splatters
and the location of Brown’s body, placed Brown between the defendant and his target,
in the line of fire. Brown was killed by a gunshot wound. That the police never recovered
the murder weapon is not fatal to the State’s case. That others in the area may have
been armed is not fatal to the State’s case. The evidence was sufficient to support a jury
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finding that the defendant shot and killed Gerald Brown in his attempts to shoot and kill
Anderson.
With respect to Brown’s homicide, the jury was instructed on first-degree
murder (both premeditated and felony murder) and the lesser offenses of second-degree
murder, voluntary manslaughter and criminally negligent homicide. It returned a verdict
of second-degree murder. Similarly, with respect to the attempt crime against Anderson,
the jury was instructed on attempted premeditated murder and the lesser offenses of
attempted second-degree murder, attempted voluntary manslaughter and attempted
criminally negligent homicide. It returned a verdict of attempted second-degree murder.
Second-degree murder is defined as “A knowing killing of another.” T.C.A.
§ 39-13-210(a)(1) (1991). “Knowing” is in turn defined as referring “to a person who acts
knowingly with respect to the conduct or to circumstances surrounding the conduct [and]
the person is aware of the nature of the conduct or that the circumstances exist.” T.C.A.
§ 39-11-302(b). A person commits an attempted second-degree murder when he
knowingly acts with the intent to kill his target and his actions constitute “a substantial
step toward the commission” of the murder. T.C.A. § 39-12-101(a)(3). Proof that a
person has deliberately aimed a pistol and shot several times at his intended victim is
sufficient to support a conviction for attempted second-degree murder. In this case,
Anderson testified that, as he had run away from his confrontation with Porter, he looked
back and saw the defendant shooting at him. Jamman T. Booker also testified that he
had seen the defendant shooting “toward the way that [Anderson] and [Smith] was
running.” Two other eyewitnesses also testified that they had seen the defendant
shooting his pistol in the direction toward which Anderson had been running. This was
sufficient evidence on which to support a conviction for the attempted second-degree
murder of Anderson.
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With respect to the defendant’s contention that the evidence supports only
a conviction of the attempted voluntary manslaughter of Anderson, we first note that
voluntary manslaughter is the “intentional or knowing killing of another in a state of
passion produced by adequate provocation sufficient to lead a reasonable person to act
in an irrational manner.” T.C.A. § 39-13-211(a). Although the defendant did not testify,
there was proof that he was Andre Porter’s cousin, and Anderson testified that he thought
the defendant was shooting at him “Because [he] shot his cousin.” Therefore, the
defendant now argues, any shots he took at Anderson were the result of Anderson’s
attack on his cousin and he was therefore shooting “in a state of passion produced by
adequate provocation sufficient to lead a reasonable person to act in an irrational
manner.”
As this Court has previously stated, however, “Whether the [defendant’s]
acts constitute a