State v. Hollis

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 14, 2010 Session

STATE OF TENNESSEE v. CHUNCY LESOLUE HOLLIS

Direct Appeal from the Circuit Court for Gibson County

No. 8551 Clayburn L. Peeples, Judge

No. W2009-02302-CCA-R3-CD - Filed January 25, 2011

The defendant, Chuncy Lesolue Hollis, was convicted by a Gibson County jury of first

degree premeditated murder and sentenced to life imprisonment. In a timely appeal to this

court, he challenges the sufficiency of the evidence and argues that the trial court erred by

issuing an expanded jury instruction on the element of premeditation. Based on our review,

we conclude that although the evidence was sufficient to sustain the jury’s finding that the

defendant premeditated the killing, the trial court committed reversible error by improperly

commenting on the evidence and giving an incomplete statement of the law in its expanded

premeditation instruction. Accordingly, we reverse the conviction and remand for a new

trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

and Remanded

A LAN E. G LENN, J., delivered the opinion of the Court, in which J.C. M CL IN and D. K ELLY

T HOMAS, J R., JJ., joined.

Larry Copeland (at trial) and Joseph S. Ozment (on appeal), Memphis, Tennessee, for the

appellant, Chuncy Lesolue Hollis.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;

Garry G. Brown, District Attorney General; and Edward L. Hardister and Harold E. (Hal)

Dorsey, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTS

This case arose out of the May 13, 2007 shooting death of Prentice Turner, which

occurred outside the W.J.O. Elks Lodge in Humboldt following an altercation between

members of rival gangs. Several witnesses identified the defendant and Desmond Deshawn

Ragland, also known as “TKO,” as the shooters, and the Gibson County Grand Jury

subsequently indicted both men for the first degree premeditated murder of the victim. The

trial court granted the defendant’s motion to sever his case from Ragland’s, and in June 2009,

the defendant proceeded to trial alone before a Gibson County jury.

State’s Proof

The State’s first witness was Humboldt Assistant Chief of Police Bill Baker, who

described his investigation of the case and identified various items of evidence that were

introduced as trial exhibits. Among these were a photograph of a 2002 blue Toyota Camry

that belonged to the defendant’s former girlfriend, which was marked as Exhibit 23; a tape-

recorded statement that Chief Baker took from the defendant on May 15, 2007; and the

following ballistics items, which were found in the area of the shooting: three 9 millimeter

Winchester cartridge casings, three 9 millimeter PMC cartridge casings, a 9 millimeter

Remington Peters unfired cartridge, a 9 millimeter Winchester unfired cartridge, and a 9

millimeter magazine with four PMC bullets inside.

In the defendant’s statement, which was played for the jury, the defendant related that

there had been arguments all night inside the club between individuals from Jackson and

other individuals from Humboldt. He denied, however, that he participated in the arguments

or the physical altercation that took place outside. He said that he saw an individual known

as TKO at the club that night, but TKO left before the shooting. He also stated that he did

not know the victim.

Chief Baker testified that on the day following the statement, the defendant, who had

a .45 automatic in his possession at the time he was taken into custody, told him that he had

gone to his car and retrieved his weapon when the shooting at the club started but that he had

never fired it. On cross-examination, Chief Baker acknowledged that his investigation

revealed that there were approximately 350 people at the Elks Lodge at the time of the

shooting. He further acknowledged that the witnesses’ physical descriptions of the shooters

were a bit vague, which, he said, he attributed to the chaotic nature of the scene and the early

morning hour at which the shooting occurred.

Sergeant Tony Williams, an investigator with the Humboldt Police Department,

testified that he transported the evidence collected in the case, including the cartridge

casings, cartridges, magazine, a fired bullet that fell out of the victim’s clothing or body in

the emergency room, a bullet recovered from the victim’s body during autopsy, and the

victim’s shirt, to the Tennessee Bureau of Investigation Laboratory for testing. On cross-

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examination, he testified that several witnesses reported that the shooter was a short man with

dark skin and dreadlocks. He said the defendant was developed as a suspect based on

information supplied to a Jackson drug force task officer by an undercover informant who

had reportedly witnessed the shooting.

Special Agent Steve Scott of the Tennessee Bureau of Investigation, an expert in

firearms identification, testified that he determined that three of the cartridge cases were fired

by one firearm while the other three were fired by a second firearm. He further determined

that the two bullets recovered from the victim’s body were fired through the barrel of the

same gun and that a gunshot to the victim’s back was fired at close range.

The State’s next five witnesses, who were patrons of the Elks Lodge at the time of the

shooting, all identified the defendant from photographic spreadsheets they were shown by

the police during the course of the investigation. Lakosha Manley testified that she was

standing outside the club shortly after midnight on May 13, 2007, when she saw two of her

former high school classmates, Desmond Ragland and Pete Harris, accompanied by the

defendant, exiting a Toyota Camry. On cross-examination, she testified that she described

the defendant to the police as having dreadlocks and wearing a white t-shirt and plaid shorts.

On redirect examination, she said that sometime after the shooting she saw the defendant’s

photograph in a newspaper, recognized him as the third man she had described to the police,

and contacted Chief Baker with the information.

John Epperson testified that he was outside the Elks Lodge talking with a friend in a

Suburban when he saw the defendant and Desmond Ragland walk to a Toyota Camry, where

the defendant retrieved a handgun from under the dashboard. The defendant stuck the gun

in his pants, and he and Ragland headed back toward the door to the club. Approximately

five or ten seconds later, Epperson heard a loud commotion followed by several gunshots.

Next, Ragland and the defendant came running back to the Toyota and the defendant,

brandishing the gun, ordered Epperson’s friend to move his “damn truck,” which was

blocking their exit. Epperson identified Exhibit 23 as the Toyota Camry from which the

defendant had retrieved the gun.

Cameo Pankey, a friend of the victim’s, testified that the defendant and some men

from Jackson got into an altercation with some other men at the club. According to his

testimony, the Jackson men were escorted outside but returned. At that point, the lights

inside the club were turned on and the Jackson men were again escorted outside. About three

minutes later, Pankey and the victim left the club and the victim was approached by TKO,

as some other Jackson men, including the defendant, surrounded the pair. TKO took a swing

at the victim, and the two men then started fighting.

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Pankey testified that, until a bald-headed man fired a gunshot, he stood by to make

sure that no one jumped the victim. At that point, he ducked back into the club. He said he

heard approximately six or seven gunshots in total, and he peeked out the door to witness the

defendant standing over the prone victim and shooting him at “point blank” range.

Larae Simpson testified that as the victim was fighting with another man outside the

door to the club, the defendant walked rapidly past her toward his car and returned with a gun

in his hand. At about the same time, a friend pulled her around the corner and she heard

gunshots. On cross-examination, Simpson acknowledged that she first heard the gunshots

as the defendant was walking back to the scene and that she never saw the defendant fire his

gun.

Ranette Pettigrew testified that she was dancing outside the club when the defendant

walked past her saying that “he was going to get his stuff out of the car.” The defendant then

went to a Toyota Camry, retrieved a pistol, returned, and fired approximately three shots into

the air. Pettigrew stated that she hid behind a car and from that position heard approximately

six more gunshots. When she emerged after the shooting had stopped, she saw the victim

lying in front of the door and the defendant and some other young men walking toward the

parking lot.

Marquita Anderson, the defendant’s former girlfriend, identified Exhibit 23 as her

2002 blue Toyota Camry, which the defendant borrowed at 7:00 p.m. on May 12, 2007, and

returned at 9:00 or 9:30 a.m. on May 13, 2007.

Dr. Thomas Deering, the forensic pathologist who conducted the autopsy of the

victim’s body, testified that the victim died of multiple gunshot wounds. The victim had four

gunshot wounds, caused by either three or four separate bullets: a gunshot wound that started

in his right neck and ended with a bullet in his left shoulder; a gunshot wound to the front of

the right shoulder that exited at his back; a gunshot wound to the back that exited on the right

side of the abdomen; and a gunshot wound in the back of the right hand that exited the front.

Ranata Spinks testified that she was partying at the Elks Lodge early on the morning

of May 13, 2007 when she saw her brother and TKO engaged in an argument. She said that

some individuals pulled her brother to the back of the club, and she followed TKO outside,

where she saw him start fighting with the victim. The victim eventually ended up on the

ground, and the defendant came up, pointed his gun down at the victim, and fired. Spinks,

who fled at that point, was unable to say how many shots were fired, whether the defendant

was the first person to shoot, or exactly how the victim ended up on the ground.

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Courtney Thomas testified that sometime after midnight on May 13, 2007, he

witnessed a verbal altercation inside the club between the defendant and Robert Spinks. He

said that one man escorted Spinks to the back of the club while another man escorted the

defendant outside. Thomas stated that he later exited the club to find the victim fighting with

Ragland, also known as “TKO,” while the defendant and others stood guard to ensure that

it remained a one-on-one fight. He said that after approximately ten minutes of fighting, the

victim ended up on the ground and the defendant stood over him and shot him two or three

times.

Chief Baker, recalled by the State, testified that Desmond Ragland was known by the

nickname “TKO.”

Defendant’s Proof

Nicky Dean, the defendant’s brother-in-law, testified that the defendant had a .45

caliber chrome or silver handgun at the time he was arrested. On cross-examination, he said

he had no idea whether the defendant owned or had access to a nine millimeter weapon.

Elgin McKinley, who was the “House Chairman” of the Elks Lodge on May 13, 2007,

testified that he came back into the club from outside, noticed an altercation taking place at

the front door, and turned on the light. He then sent Robert Spinks to the back of the club

and escorted three other men outside to the parking lot. As he was walking back, the victim

exited the club and one of the three men that McKinley had just escorted outside, a man in

dreadlocks, ran past him and began fighting with the victim. McKinley testified that he was

on the phone with the police when he heard gunshots. When the shooting stopped and he

emerged from his position of cover, he saw the victim lying on the ground. McKinley

estimated that the fight at the door started within twenty seconds of the time he escorted the

men to the parking lot and that the shooting occurred one to two minutes later. He also

estimated that there were 175 to 200 people present at the club when the shooting occurred.

Terrence Anderson testified that the episode began with a verbal altercation that

escalated into a physical fight inside the club. He said that he and his friends went out the

front door and the fight then moved outside. At that point, the defendant and TKO ran past

him toward the parking lot and then returned with guns. According to Anderson, the

defendant fired his weapon into the air while TKO fired two to three shots at the victim.

Chauncey Ross, another eyewitness to the shooting, testified that the perpetrators of

the victim’s murder were a “light skinned fellow with braids” and a “dark skinned tall dude,”

neither of whom was present in the courtroom. On cross-examination, Ross denied that he

had earlier told the prosecutor that he would not testify against the defendant or Ragland

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because they were fellow Gangster Disciple members. He also denied having told Chief

Baker that the first two shots were fired by a dark-skinned five foot, six inch tall man with

“low cut hair.” He acknowledged he had four prior convictions for possession of cocaine

with intent to distribute, as well as a conviction for escape.

The defendant’s final proof consisted of James Reed’s statement to the police, which

was read into evidence by stipulation of the parties. In the statement, Reed said that TKO

told him that he had shot and killed a man at a club in Humboldt following an altercation

between TKO’s Gangster Disciple brothers and “a bunch of Crips.”

ANALYSIS

I. Special Jury Instruction on Element of Premeditation

The defendant first contends that the trial court committed reversible error by

improperly commenting on the evidence in its expanded jury instruction on premeditation.

Over defense counsel’s vigorous protests, the trial court granted the State’s request that it

provide the jury with an additional definition of premeditation. The court, therefore, issued

the following instruction, which apparently consisted of its own modified version of the

State’s proposed instruction:

Factors which might, if proven, tend to indicate the existence of

premeditation include declarations previously made by a defendant of an intent

to kill, evidence of procurement of a weapon by a defendant prior to a killing,

use of a deadly weapon upon an unarmed victim, particular cruelty of a killing,

infliction of multiple wounds, destruction or secretion of evidence of a killing

and a defendant’s calmness immediately after a killing. Should you find

evidence of any such factor, you should give it such weight and value as you

think it deserves along with all the other evidence in the case.

The defendant argues that because the instruction incorporated facts that had been

introduced into evidence and directed the jury on the conclusion to reach based on those

facts, it constituted an impermissible comment upon the evidence in violation of article VI,

section 9 of the Tennessee Constitution, which provides that “[j]udges shall not charge juries

with respect to matters of fact, but may state the testimony and declare the law.” He further

argues that the instruction was also misleading because it did not contain a complete, full,

and accurate statement of the law. In support, he cites State v. Brandon Compton, No.

E2005-01419-CCA-R3-CD, 2006 WL 2924992, at *9 (Tenn. Crim. App. Oct. 13, 2006),

perm. to appeal denied (Tenn. Feb. 26, 2007), in which this court ruled that the trial court

erred in issuing a similarly worded special jury instruction. The State agrees that the special

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instruction contained an incomplete statement of the law. The State contends, however, that

the error was harmless because, unlike in Compton, in which this court reduced the

defendant’s first degree murder conviction to second degree murder, there was substantial

proof in the case at bar to support the jury’s finding of premeditation.

Defendants have a “constitutional right to a correct and complete charge of the law.”

State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Accordingly, trial courts have the duty to

give “a complete charge of the law applicable to the facts of the case.” State v. Davenport,

973 S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citing State v. Harbison, 704 S.W.2d 314,

319 (Tenn. 1986)). When reviewing challenged jury instructions, we must look at “the

charge as a whole in determining whether prejudicial error has been committed.” In re Estate

of Elam, 738 S.W.2d 169, 174 (Tenn. 1987); see also State v. Vann, 976 S.W.2d 93, 101

(Tenn. 1998). A charge is prejudicially erroneous “if it fails to fairly submit the legal issues

or if it misleads the jury as to the applicable law.” Vann, 976 S.W.2d at 101; State v.

Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). “The misstatement of an element in jury

instructions is subject to constitutional harmless error analysis.” State v. Faulkner, 154

S.W.3d 48, 60 (Tenn. 2005).

The special jury instruction in Compton read:

The elements of premeditation and deliberation are questions for the

jury that may be established by proof of the circumstances surrounding the

killing. There are several factors that tend to support the existence of these

elements which include: declarations by the defendant of an intent to kill,

evidence of the procurement of a weapon, the use of a deadly weapon upon an

unarmed victim, the particular cruelty of the killing, infliction of multiple

wounds, preparation before the killing for concealment of the crime,

destruction or secretion of the evidence of the murder, and calmness

immediately after the killing.

2006 WL 2924992, at *6 (footnote omitted). In that case, we concluded that the instruction

was a misstatement of the law because five of the factors listed in the instruction were

incomplete:

The Appellant is correct in his assertion that when applying the factor

regarding procurement of a weapon, it is settled law that the evidence must

show that the weapon was procured for use against the victim of the crime.

[State v.] Jackson, 173 S.W.3d [401,] 410 n.5 [(Tenn. 2005)]; [State v.] West,

844 S.W.2d [144,] 148 [(Tenn. 1992)]. As noted, simply procuring or carrying

a weapon is not a basis for inferring premeditation to kill a specific victim.

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Likewise, it has been held that the State may not rely solely upon a defendant’s

acts of concealment of evidence after the crime to establish premeditation.

West, 844 S.W.2d at 148; [State v.] Long, 45 S.W.3d [611,] 621 [(Tenn. Crim.

App. 2000)]. The same has been found to be true with regard to the infliction

of multiple wounds, as our supreme court has held that “repeated blows can be

delivered in the heat of passion, with no design of reflection.” [State v.]

Brown, 836 S.W.2d [530,] 542 [(Tenn. 1992)]. Finally, our supreme court in

Jackson impliedly held that the factor regarding the declaration of an intent to

kill referred to a declaration of an intent to kill a specific victim, rather than to

a general statement. Jackson, 173 S.W.3d at 409. Additionally, though not

argued by the Appellant, the factor of use of a deadly weapon upon an

unarmed victim has also been addressed and found, standing alone, to be

insufficient to establish premeditation. [State v.] Tune, 872 S.W.2d [922,] 925

[(Tenn. Crim. App. 1993)].

Thus, while these factors provided to the jury by the special instruction

recite those factors enumerated by the Tennessee Supreme Court in [State v.]

Nichols, [24 S.W.3d 297, 302 (Tenn. 2000)] and Jackson as appropriate factors

for consideration as to the presence of premeditation at trial, case law has

expounded upon their application and has concluded that certain of these

factors are insufficient in and of themselves to warrant a finding of

premeditation. Moreover, the form of the special instruction and the specific

language, “There are several factors that tend to support the existence of these

elements which includes . . . [,]” comes perilously close to the constitutional

prohibition of the trial judge commenting upon the evidence. See Tenn. Const.

art. VI, § 9. After review, we conclude that instructing the jury with regard to

the factors, without also instructing on their expanded application, could have

misled the jury as to the applicable law. Thus, the jury instruction, as given,

failed to give a complete and accurate instruction of the applicable law.

Id. at *7.

In this case, we, likewise, conclude that the almost identically worded special

instruction issued by the trial court contained an incomplete statement of the law and was

therefore misleading to the jury. In addition, we agree with the defendant that it constituted

an impermissible comment by the trial court upon the evidence. In its defense of the special

instruction, the trial court stressed that the language came directly from the opinions of our

supreme court. The court also expressed its concern that juries, without such a special

instruction, have no “clue” as to which factors to consider in support of premeditation. The

quoted language, however, developed in the context of our supreme court’s evaluation of the

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sufficiency of the evidence in first degree murder cases to determine whether there was

sufficient proof, from all evidence presented, by which a rational jury could have reasonably

inferred premeditation. The list of factors is “not exhaustive and serves only to demonstrate

that premeditation may be established by any evidence from which the jury may infer that the

killing was done ‘after the exercise of reflection and judgment.’” State v. Rodney E.

Howard, No. M2009-02081-CCA-R3-CD, 2010 WL 3774544, at *9 (Tenn. Crim. App. Sept.

29, 2010) (quoting Tenn. Code Ann. § 39-13-202(d)); see also State v. Leach, 148 S.W.3d

42, 54 (Tenn. 2004). In our view, by instructing the jury on specific factors, many of which

were present in the case, that “might, if proven, tend to indicate the existence of

premeditation,” the trial court moved beyond providing a mere statement of the law and into

the area of commenting on the evidence by directing the jury’s attention to certain aspects

of the proof presented in the case.

The State contends that the special instruction falls within the category of a harmless,

non-structural, non-constitutional error, asserting that there was substantial evidence in

support of premeditation and that “there can be no doubt that the jury would have convicted

the defendant of premeditated first degree murder even if the trial court had denied the

State’s requested instruction.” We respectfully disagree. Because the instruction misstated

the element of premeditation, it falls within the category of a non-structural constitutional

error that requires reversal of the conviction unless harmless beyond a reasonable doubt. See

State v. Paul Wallace Dinwiddie, Jr., No. E2009-01752-CCA-R3-CD, 2010 WL 2889098,

at *10 (Tenn. Crim. App. July 23, 2010) (citing Hedgpeth v. Pulido, 129 S. Ct. 530, 532

(2008)), perm. to appeal dismissed (Tenn. Oct. 15, 2010). In such a case, “‘[t]he inquiry .

. . is not whether, in a trial that occurred without the error, a guilty verdict would surely have

been rendered, but whether the guilty verdict actually rendered in this trial was surely

unattributable to error.’” Id. at *11 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279

(1993)). Here, the proof of premeditation, although sufficient to sustain the jury’s verdict,

was not overwhelming, and we are simply unable to conclude that the erroneous jury

instruction did not have a “substantial and injurious effect or influence in determining the

jury’s verdict.” Hedgpeth, 129 S. Ct. at 531 (citation omitted). We, therefore, reverse the

conviction and remand for a new trial. Although our determination on this issue renders

moot the defendant’s sufficiency of evidence claim, we will nonetheless address it because

of the possibility of further appellate review.

II. Sufficiency of the Evidence

The defendant next challenges the sufficiency of the evidence in support of the

element of premeditation, arguing that the proof showed that the shooting occurred “during

a heated argument that evolved to a physical fight” and that had the jury “not been directed

to facts that ‘tend’ to indicate premeditation[,] they could have very well have passed upon

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first degree murder and considered a lesser charge.”

When the sufficiency of the convicting evidence is challenged, the relevant question

of the reviewing court 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); see also Tenn.

R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall

be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt

beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State

v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

All questions involving the credibility of witnesses, the weight and value to be given

the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the

trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in

favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our

supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212

Tenn. 464, 370 S.W.2d 523 (1963)).

“A jury conviction removes the presumption of innocence with which a defendant is

initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has

the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982).

First degree murder is “[a] premeditated and intentional killing of another[.]” Tenn.

Code Ann. § 39-13-202(a)(1) (2006). “Premeditation” is defined in our criminal code as

an act done after the exercise of reflection and judgment. “Premeditation”

means that the intent to kill must have been formed prior to the act itself. It is

not necessary that the purpose to kill pre-exist in the mind of the accused for

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any definite period of time. The mental state of the accused at the time the

accused allegedly 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 premeditation.

Id. § 39-13-202(d).

Whether premeditation exists in any particular case is a question of fact for the jury to

determine based upon a consideration of all the evidence, including the circumstantial

evidence surrounding the crime. See State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000); State

v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Pike, 978 S.W.2d 904, 914 (Tenn.

1998). As previously discussed, our supreme court has listed a number of factors which, if

present, may support the jury’s inference of premeditation. Among these are the defendant’s

declaration of an intent to kill the victim; the use of a deadly weapon upon an unarmed victim;

the establishment of a motive for the killing; the particular cruelty of the killing; the infliction

of multiple wounds; the defendant’s procurement of a weapon, preparations to conceal the

crime, and destruction or secretion of evidence of the killing; and the defendant’s calmness

immediately after the killing. Jackson, 173 S.W.3d at 409; State v. Thacker, 164 S.W.3d 208,

222 (Tenn. 2005); Leach, 148 S.W.3d at 54; Nichols, 24 S.W.3d at 302; Bland, 958 S.W.2d

at 660.

Viewed in the light most favorable to the State, the evidence established that the

defendant, who was not an active participant in the physical fight that took place between the

victim and Ragland, went to his car, retrieved his gun, returned to the scene of the fight, and

then fired multiple gunshots at the prone victim, including at least one at point blank range.

There was no evidence that the victim was armed, and the pathologist who performed the

autopsy of his body determined that one of the gunshots he sustained was fired at close range

to his back. This evidence was sufficient to support a finding of premeditation. We conclude,

therefore, that the evidence was sufficient to sustain the defendant’s conviction for first

degree premeditated murder.

CONCLUSION

Based on our review, we conclude that the evidence was sufficient to sustain the

defendant’s first degree premeditated murder conviction but that the trial court erred by

issuing an expanded definition of premeditation. We further conclude that the error was not

harmless beyond a reasonable doubt. Accordingly, we reverse the conviction and remand for

a new trial.

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ALAN E. GLENN, JUDGE

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