State of Tennessee v. Shawn Simmons

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 22, 2010

STATE OF TENNESSEE v. SHAWN SIMMONS

Appeal from the Circuit Court for Lincoln County

No. S0800082 Robert Crigler, Judge

No. M2009-01362-CCA-R3-CD - Filed September 23, 2010

Appellant, Shawn Simmons, appeals from his conviction for first degree murder in Lincoln

County. Appellant argues that: (1) the evidence was insufficient to support the conviction;

(2) the trial court erred by instructing the jury on flight; and (3) the trial court improperly

ruled that the State could use prior convictions to impeach Appellant’s testimony in violation

of Tennessee Rule of Evidence 609. After a thorough review of the record, we determine

that the evidence was sufficient to support the conviction. Further, we determine that the

trial court properly instructed the jury on flight where the evidence supported such an

instruction and that the trial court properly ruled that the State could use Appellant’s prior

convictions for impeachment if he chose to testify. Accordingly, the judgment of the trial

court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and

J.C. M CL IN, JJ., joined.

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, Shawn Simmons.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsay Paduch Stempel, Assistant

Attorney General; Charles Crawford, District Attorney General, and Ann L. Filer and Hollyn

Eubanks, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On February 3, 2008, a group of friends and relatives planned to gather at the home

of Keith and Jana Buchanan in Fayetteville, Tennessee to watch the Super Bowl game.

Rodney Howard, Mr. Buchanan’s half-brother, Richard Askins, James Battle, Shevonta

Love, and Stephen Whitaker all planned to watch the game at the Buchanan residence. Early

in the afternoon, the partygoers were sitting in the house when Appellant and Angie Hill

walked into the house. Ms. Hill is the sister of Mr. Buchanan and Mr. Howard. Appellant

walked across the living room and asked Mr. Whitaker to see him outside. Mr. Whitaker

followed Appellant out of the house. Mr. Whitaker came back shortly thereafter, and

Appellant left.

Mr. Buchanan was agitated that Appellant would walk into their house without

acknowledging either him or his wife. Soon thereafter, Appellant walked back into the

house, telling Mr. Buchanan that he had “disrespected” his family for the last time.

Appellant added that Mr. Buchanan was no longer welcome in his home. Appellant told Mr.

Buchanan, “I got you” before he left the residence.

At that point, most of the people at the party left to go home and take showers prior

to the Super Bowl game. After the game started, Mrs. Buchanan informed Mr. Buchanan

that his sister called to tell them that Appellant was beating her.

The two brothers left the house, along with the three other men, in Mr. Howard’s red

Cadillac with twenty-two inch rims. The men left unarmed. On the way to Ms. Hill’s house,

they spotted Ms. Hill and her truck on the side of Hedgemont Avenue. Appellant was

standing next to Ms. Hill’s truck, talking to her.

When they got close to the scene, Mr. Howard threw the car in park and got out. Mr.

Howard threw his hands up in the air, demanding to know what was going on. They all

wanted to know what was going on with Appellant and Ms. Hill. Mr. Buchanan also exited

the vehicle and went around towards Appellant. At that time, a shot was fired that hit Mr.

Buchanan. Ms. Hill exclaimed, “I can’t believe you shot my brother, Shawn!” Mr.

Buchanan was placed back in the car and driven to the hospital where he later died from a

gunshot wound to the upper torso.

A witness living nearby called 911 and reported the incident. Police were dispatched

to the area and witnessed Appellant walking down Wilson Parkway, about 250 yards from

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the crime scene. Appellant began to walk faster when he saw the police and was seen

lobbing an object onto the top of a building. Appellant was wearing a glove on his left hand

and holding a glove in his right hand.

Appellant was subsequently arrested. When the area around the building was

searched, officers located a .38 caliber revolver, one spent casing, and one unspent casing.

During the investigation, police located an empty gun holster at the home of Ms. Hill

and a fanny pack that held shells similar to those used in the shooting. Ms. Hill had not given

Appellant permission to use her weapon. Forensic tests determined that the gun found near

the scene fired the shot that killed Mr. Buchanan. Additionally, Appellant’s shirt indicated

the presence of gunshot primer residue.

Appellant was indicted by the Lincoln County Grand Jury for first degree murder. He

was convicted by a jury and sentenced to life in prison. The sentence was ordered to run

consecutively to “all unexpired sentences, including Maury Co. # 7847.”

After the denial of a motion for new trial, Appellant filed a timely notice of appeal.

On appeal, he challenges his conviction, the trial court’s instruction on flight, and the trial

court’s decision to allow the State to impeach his testimony with prior convictions.

Sufficiency of the Evidence

On appeal, Appellant argues that the evidence was insufficient to support the

conviction for first degree murder. Specifically, Appellant complains that the evidence is

“highly circumstantial” and does not support a finding of premeditation. The State, on the

other hand, argues that there was ample evidence of premeditation and that the evidence

supported the conviction.

When a defendant challenges the sufficiency of the evidence, this Court is obliged to

review that claim according to certain well-settled principles. A verdict of guilty, rendered

by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses

and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d

253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the

accused is originally cloaked with a presumption of innocence, the jury verdict of guilty

removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to

demonstrate the insufficiency of the convicting evidence. Id. The relevant question the

reviewing court must answer is whether any rational trier of fact could have found the

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accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.

P. 13(e); Harris, 839 S .W.2d at 75. In making this decision, we are to accord the State “the

strongest legitimate view of the evidence as well as all reasonable and legitimate inferences

that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is

precluded from reweighing or reevaluating the evidence when considering the convicting

proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,

805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own

“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,

805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the

weight and value to be given to evidence, as well as all factual issues raised by such

evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788

S.W.2d 559, 561 (Tenn. 1990).

First degree murder is described as:

(1) A premeditated and intentional killing of another;

(2) A killing of another committed in the perpetration of or attempt to

perpetrate any first degree murder, arson, rape, robbery, burglary, theft,

kidnapping, aggravated child abuse, aggravated child neglect or aircraft piracy;

or . . . .

T.C.A. § 39-13-202(a). Tennessee Code Annotated section 39-13-202(d) provides that:

“[P]remeditation” is 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 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.

An intentional act requires that the person have the desire to engage in the conduct or cause

the result. T.C.A. § 39-11-106(a)(18). Whether the evidence was sufficient depends entirely

on whether the State was able to establish beyond a reasonable doubt the element of

premeditation. See State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593,

599 (Tenn. 1999). Whether premeditation is present is a question of fact for the jury, and it

may be inferred from the circumstances surrounding the killing. State v. Young, 196 S.W.3d

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85, 108 (Tenn. 2006); see also State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000); State v.

Pike, 978 S.W.2d 904, 914 (Tenn. 1998).

Premeditation may be proved by circumstantial evidence. See, e .g., State v. Brown,

836 S.W.2d 530, 541-42 (Tenn. 1992). Our supreme court has identified a number of

circumstances from which the jury may infer premeditation: (1) the use of a deadly weapon

upon an unarmed victim; (2) the particular cruelty of the killing; (3) the defendant’s threats

or declarations of intent to kill; (4) the defendant’s procurement of a weapon; (5) any

preparations to conceal the crime undertaken before the crime is committed; (6) destruction

or secretion of evidence of the killing; and (7) a defendant’s calmness immediately after the

killing. See State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); Pike, 978 S.W.2d at 914-15.

This list, however, 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.” T.C.A. § 39-13-202(d); see Pike, 978 S.W.2d at

914-15; Bland, 958 S.W.2d at 660.

One learned treatise states that premeditation may be inferred from events that occur

before and at the time of the killing:

Three categories of evidence are important for [the] purpose [of inferring

premeditation]: (1) facts about how and what the defendant did prior to the

actual killing which show he was engaged in activity directed toward the

killing, that is, planning activity; (2) facts about the defendant’s prior

relationship and conduct with the victim from which motive may be inferred;

and (3) facts about 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.

2 Wayne R. LaFave, Substantive Criminal Law § 14.7(a) (2d ed. 2003).

In the case at hand, the jury concluded that Appellant acted with premeditation when

shooting Mr. Buchanan. Several of the circumstances listed by our supreme court from

which a trier of fact can infer premeditation were present in the facts presented to the jury.

Appellant used a deadly weapon, the gun, to kill the unarmed victim. In addition, there was

testimony that Appellant told the victim that he had “disrespected” his family for the last

time. Appellant also told the victim, “I got you.” There was also evidence that immediately

after the murder, Appellant walked away from the scene and lobbed something onto the roof

of a building. The murder weapon was later found in a location consistent with being thrown

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onto the roof of the building and later sliding off. Ms. Hill testified that Appellant did not

have her permission to use the gun that was normally stored under her mattress.

As stated above, the trier of fact determines the credibility of the witnesses, any issues

of fact, and the weight to be given the evidence presented at trial. Pruett, 788 S.W.2d at 561.

The jury clearly found that Appellant acted both intentionally and with premeditation when

he shot the victim in the torso. We conclude that when the evidence is viewed in a manner

that favors the State, there is sufficient evidence to support the jury’s verdict with regard to

the first degree murder conviction.

Instruction on Flight

Next, Appellant complains that the trial court improperly instructed the jury on flight

where there was “no evidence” to support the charge. The State disagrees.

“It is well-settled in Tennessee that a defendant has a right to a correct and complete

charge of the law so that each issue of fact raised by the evidence will be submitted to the

jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citing State

v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); 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)).

In order for a trial court to charge the jury on flight as an inference of guilt, there must

be sufficient evidence to support such instruction. There is sufficient evidence to support a

jury charge on flight where there is proof of “‘both a leaving the scene of the difficulty and

a subsequent hiding out, evasion, or concealment in the community, or leaving the

community for parts unknown.’” State v. Burns, 979 S.W.2d 279, 289-90 (Tenn. 1998)

(quoting State v. Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989)); see also State v.

Franks, No. W2003-0003-CCA-R3-CD, 2003 WL 22351024, at *3 (Tenn. Crim. App., at

Jackson, Oct. 14, 2003), perm. app. denied, (Tenn. Jan. 4, 2004). The State can satisfy the

subsequent hiding out, evasion, or concealment requirement by introducing evidence from

which a jury might infer such action. State v. Terrance Wilks, No.

W1999-00279-CCA-R3-CD, 1999 WL 1097832, at *4 (Tenn. Crim. App., at Jackson, Nov.

22, 1999) (citing Payton, 782 S.W.2d at 490; Rogers v. State, 455 S.W.2d 182, 186-87 (Tenn.

Crim. App. 1970)). “Any contradictory evidence that serves to rebut the [S]tate’s proof

merely raises a question for the jury to resolve.” Id. (citing Hall v. State, 584 S.W.2d 819,

821 (Tenn. Crim. App. 1979)). This Court has explained that:

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The law makes no nice or refined distinction as to the manner or method of a

flight; it may be open, or it may be a hurried or concealed departure, or it may

be a concealment within the jurisdiction.

State v. Whittenmeir, 725 S.W.2d 686, 688 (Tenn. Crim. App. 1986) (quoting Rogers v.

State, 455 S.W.2d 182, 187 (Tenn. Crim. App. 1970)). It is proper for the trial court to

instruct the jury on flight when the issue has been raised by the proof. See State v. Kendricks,

947 S.W.2d 875, 885-86 (Tenn. Crim. App. 1996) (explaining jury instruction on flight is

proper statement of the law).

In the case herein, the trial court instructed the jury that:

The flight of a person accused of a crime is a circumstance, which,

when considered with all the facts of the case, may justify an inference of

guilty. Flight is the voluntary withdrawal of oneself for the purpose of evading

arrest or prosecution for the crime charged. Whether the evidence presented

proves beyond a reasonable doubt that the defendant fled is a question for your

determination.

The law makes no precise distinction as to the manner or method of

flight; it may be open, or it may be a hurried or concealed departure, or it may

be a concealment within the jurisdiction. However, it takes both a leaving the

scene of the difficulty and a subsequent hiding out, evasion, or concealment

in the community, or a leaving of the community for parts unknown, to

constitute flight.

If flight is proved, the fact of flight alone does not allow you to find that

the defendant is guilty of the crime alleged. However, since flight by a

defendant may be caused by a consciousness of guilty, you may consider the

fact of flight, if flight is so proven, together with all of the other evidence

when you decide the guilt or innocence of the defendant. On the other hand,

an entirely innocent person may take flight and such flight may be explained

by proof offered, or by the facts and circumstances of the case.

Whether there was flight by the defendant, the reasons for it, and the

weight to be given to it, are questions for you to determine.

Reviewing the evidence elicited at the trial herein, we note that the evidence clearly

shows a leaving of the scene of the difficulty. Despite this fact, the evidence of an evasion

from police is somewhat less obvious. There was testimony that Appellant walked away

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from police at a brisk pace when they approached and was seen lobbing something onto the

top of or over a building. However, soon thereafter, Appellant turned himself in to the

authorities relatively close to the scene of the shooting. At trial, the trial court itself noted

that it was arguable whether the instruction was justified but indicated that the charge would

not be prejudicial to Appellant if it was given in error.

After a review of the evidence, we determine that there was arguably enough evidence

of flight to fairly raise the issue for the jury’s determination. Regardless, even if it was error

for the trial court to give the flight instruction, such error was harmless beyond a reasonable

doubt. As noted by our supreme court in State v. Smith, 893 S.W.2d 908 (Tenn. 1994):

Even if an instruction on flight should not have been given, any error is not

reversible. The Court instructed the jury that whether the Defendant fled was

a question solely for their decision, that they need not infer flight, and that

flight alone was insufficient to prove guilt. This, coupled with the

overwhelming proof of Defendant’s guilt, renders any error as to the flight

instruction harmless.

Id. at 918.

Like the court in Smith, the trial court herein instructed the jury that whether the

defendant fled was a question for its determination and that flight alone was not sufficient

to find the defendant guilty. The overwhelming proof of Appellant’s guilt renders any error

in giving the flight instruction harmless. See also State v. Willie Hall, No. W2008-01875-

CCA-R3-CD, 2010 WL 57190, at *9 (Tenn. Crim. App., at Jackson, Feb. 18, 2010)

(determining that even where proof was “tenuous” of defendant’s flight, the trial court’s

decision to give the jury an instruction on flight was harmless in light of the overwhelming

evidence of defendant’s guilt).

Admissibility of Prior Convictions

Lastly, Appellant complains that the trial court erred by ruling that the State could

“use prior convictions for impeachment purposes when the convictions were over ten years

old” in violation of Rule 609(b) of the Tennessee Rules of Evidence. Appellant specifically

notes his prior convictions for criminal simulation, theft under $500, and sale of counterfeit

cocaine. The State contends that the trial court did not abuse its discretion.

Under Rule 609 of the Tennessee Rules of Evidence, a witness’s credibility may be

impeached by prior convictions if certain criteria are met. Among the criteria is that the

crime must be punishable by death or at least a one year imprisonment or involve dishonesty

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or false statement. Tenn. R. Evid. 609(a)(2). In addition, the conviction must not have

occurred more than ten years before the current proceedings, and if it is more than ten years,

there must be sufficient notice to the defense for it to be used. Tenn. R. Evid. 609(b).

Tennessee Rule of Evidence 609(b) provides in pertinent part:

Evidence of a conviction under this rule is not admissible if a period of more

than ten years has elapsed between the date of release from confinement and

commencement of the action or prosecution; if the witness was not confined,

the ten-year period is measured from the date of conviction rather than release.

Evidence of a conviction not qualifying under the preceding sentence is

admissible if the proponent gives to the adverse party sufficient advance notice

. . . and the court determines in the interests of justice that the probative value

of the conviction . . . substantially outweighs its prejudicial effect.

Id. For purposes of Rule 609(b), in the situation where multiple consecutive sentences are

not imposed simultaneously, the “date of release” is the date on which the sentence expires.

State v. Thompson, 36 S.W.3d 102, 110-11 (Tenn. Crim. App. 2000).

In determining whether the probative value of a prior conviction on the issue of

credibility outweighs its unfair prejudicial effect on the substantive issues, a trial court should

first analyze whether the impeaching conviction is relevant to the issue of credibility. See

State v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003). Moreover, “[i]mpeachment cannot be

a ‘mere ruse’ to present to the jury prejudicial or improper testimony.” State v. Jones, 15

S.W.3d 880, 892 (Tenn. Crim. App. 1999) (quoting State v. Roy L. Payne, No. 3C01-9202-

CR-45, 1993 WL 20116, at *2 (Tenn. Crim. App., at Knoxville, Feb. 2, 1993)). Finally,

upon request, the court must determine that the probative value of the prior conviction on the

issue of credibility outweighs its prejudicial effect on substantive issues. Tenn. R. Evid.

609(a)(3). A trial court’s decision under this rule will not be overturned absent an abuse of

discretion. State v. Mixon, 983 S.W.2d 661, 675 (Tenn. 1999).

In the case herein, Appellant complains that the trial court erred in ruling that the State

could use three prior convictions Appellant received in 1994 to impeach his testimony should

he testify. On April 25, 1994, Appellant was convicted of theft and sentenced to eleven

months and twenty-nine days. On June 27, 1994, Appellant was convicted of criminal

simulation and received a sentence of one year incarceration. On the same day Appellant

received a one year sentenced for selling counterfeit cocaine. These are the three prior

convictions Appellant argues erroneously ruled admissible for impeachment purposes. All

three of these sentences were concurrent with each other and concurrent with a sixteen year

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sentence for attempted first degree murder. This sixteen year sentence was to run

consecutively to a six year sentence received on April 25, 1995, for aggravated assault. All

of this resulted in an effective sentence of twenty-two years. Appellant was placed on parole

on January 10, 2007. As noted previously, in cases such as this with multiple relatively short

sentences set to run concurrently with each other and with a significantly lengthier sentence

and the convictions carrying the shorter sentences are the ones to be used for impeachment,

the “date of release” focuses on the expiration of the shorter sentences rather than actual

release from the lengthier sentence. State v. Thomas, 36 S.W.3d 102, 110-11 (Tenn. Crim.

App. 2000).

In the instant case it appears that the sentences for the impeaching offenses, all from

1994, would have expired within approximately one year of being imposed. Thus, these

1994 sentences are more than ten years from the commencement of the prosecution in this

case. However, this does not end the inquiry because Rule 609 allows convictions more than

ten years old if a criminal defendant receives sufficient notice to contest the admissibility of

such evidence and the “trial court determining in the interests of justice that the probative

value of the convictions supported by specific facts and circumstances substantially

outweighs its prejudicial effect.” Tenn. R. Evid. 609(b).

The State complied with the notice requirements set forth by Tennessee Rule of

Evidence 609 with regard to the convictions at issue. The record further reflects that the trial

court adequately considered the specific facts and circumstances in ruling that in the interest

of justice the probative value of these convictions substantially outweighed any danger of

unfair prejudice to Appellant. We agree. The convictions at issue are totally dissimilar to

the charge in the instant case and they are all crimes involving dishonesty. We conclude that

the trial court did not abuse its discretion in deeming these convictions admissible for

impeachment purposes. Moreover, the evidence of Appellant’s guilt is overwhelming; and,

considering the entire record before us, we would not be able to find, as mandated by Rule

36(b), that the error “more probably than not affected the judgment or would result in

prejudice to the judicial process.” Accordingly, Appellant is not entitled to relief on this

issue.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

___________________________________

JERRY L. SMITH, JUDGE

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