# State v. Rathal Perkins > Court of Criminal Appeals of Tennessee · December 10, 1998 URL: https://www.frixlaw.com/law-library/cases/1081988 ## Case - **Court:** Court of Criminal Appeals of Tennessee - **Decided:** December 10, 1998 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1081988 ## Opinion text IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON SEPTEMBE R SESSION, 1998 FILED December 10, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9708-CC-00325 Cecil Crowson, Jr. ) Appellate C ourt Clerk Appellee, ) ) ) HAYWOOD COUNTY VS. ) ) HON. DICK JERMAN, JR. RATHAL PERKINS, ) JUDGE ) Appe llant. ) (First Degree M urder) ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAYWOOD COUN TY FOR THE APPELLANT: FOR THE APPELLEE: CLIFFORD K. McGOWN, JR. JOHN KNOX WALKUP 113 North Court Squ are Attorney General and Reporter P.O. Box 26 Wa verly, TN 37185 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243 CLAYBURN L. PEEPLES District Attorney General 109 East First Street Trenton, TN 38382 OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE OPINION The Defendant, Rathal Perkins, was convicted of first degree murder and sentenced to life imprison ment. He no w app eals h is conv iction, p ursua nt to R ule 3 of the Te nnes see R ules o f Appe llate Pro cedu re. Th e Def enda nt pres ents o nly one issue on appea l: whether the evidence is sufficient to support a finding of premeditation to sustain his convic tion for first degree murder. We affirm the judgm ent of the tria l court. On August 10, 1995, police officer Shawn Williams was dispatched to a field in Brownsville, Tennessee to investigate what he believed was an autom obile accident with injuries. When he arrived at the field, he encountered a greatly upset young man named Courtney Jones and discovered a vehicle with a shattered back window . The officer noticed a man’s leg hanging out of the driver’s side of the vehicle and upon further investigatio n, recognized the man inside the ca r as De noatu s Mur phy, the victim in this case.1 The victim, who had a gunsh ot woun d in his side , was vom iting and u nable to speak. Another police officer arrived shortly after Officer Williams, and the two officers place d the vic tim on the gro und a nd ad minis tered C PR to him u ntil an a mbu lance arrived. The victim wa s then tak en to the h ospital, wh ere he w as pron ounce d dead . At the hospital and briefly while the victim was in the car, Officer Williams had the opportunity to observe the victim’s injuries, which he described as an entrance woun d on th e victim ’s right side and an exit wound on his left side. He also examined the victim’s car and searched the field where it was found. 1 The officer was acquainted with Murphy before the night of the murder. -2- Although the officer found a bullet lodged in the driver’s seat and a .380 caliber shell casing in the back floorboard on the driver’s side, he did not find any type of weapon in or around the vehicle. The officer also noted a stain on the driver’s seat that appeared to be blood. Rathal Perkins, the Defendant, was implicated by a number of witnesses as the shooter. At trial, the Defendant testified and admitted to shooting the victim. Ho wever, oth er facts su rroundin g the incid ent are in d ispute. Courtney Jone s, the vic tim’s cousin, testified that on August 10, 1995, the victim picked him up and they drove to a convenience store in Brownsville called The Mark etplac e, whe re they arrived around eight o’clock p.m. When they arrived at the store, the victim told his cousin he was there to look for Rodney Johnson, for whom the victim had recently sig ned a c riminal wa rrant. 2 Mr. Johnson arrived shortly a fter the v ictim and pulled his car along side th e drive r’s side of the victim’s car. He and the victim began to discuss the warrant. During this discussion, the Defendant pulled his vehicle alongside the passenger side of the victim’s car. At this point, the testimony of those present at The Marketplace that night differs markedly. Courtney Jones testified as follows: When the Defendant pulled alongside the vic tim’s car, the victim “asked [the Defendant] what was the problem ,” to which the Defendant responded, “I’m with my nigger.” By this, the Defendant apparently meant that he was there to side with his friend, Rodney 2 The warrant, which was for aggravated assault, also covered Tracy Taylor, apparently a friend of Rodney Johnson. It alleged that Rodney Johnson had fired a gun at the victim. -3- Johnson. Johnso n told the victim to ignore the Defenda nt, and words were exchanged.3 At Johnson’s suggestion, Johnson and the victim moved their cars across the parking lot; the Defendant followed. Johnson and the victim resumed their discu ssion. Again , the victim a sked the Defen dant, “W hat’s the p roblem . . . . [W]hy are you bothering me?” This time the Defendant jumped out of his car holding a gun, saying, “What? What’d you say? What?” He pushed Jones, who was sitting in the passen ger seat of the victim ’s car, out of the w ay and s hot into the victim’s car, s triking the victim in the side . The victim im med iately started his car and sped away while the Defendant kept firing at the c ar, sha ttering th e car’s rear windshield. The victim eventually passed out and lost control of the car, and Jones took control of the vehicle, steering it into the field where the vehicle and the victim were found by Officer Williams. Katanya Smith, a teenager who was at The Marketplace at the time of the shooting, testified that she heard a gunshot while sitting in her parked car just outside of the store. She then turned and saw a man, whom she could not identify, standing outside a car shooting. The car pulled away, and the man shot twice more. The man’s car had been parked next to that of the victim. Witnesses for the defense presented an entirely different version of the events on the night that the victim was killed. Julius Wynder, a friend of the Defendant from M emp his, tes tified that he was riding in the backseat of the 3 It is unclear from Jones’ testimony whether the victim exchanged words with Johnson or the Defendant. However, other witnesses testified that the victim and the Defendant argued on the night of the shooting. -4- Defend ant’s car on the night of August 10, 1995. He testified that when the Defendant arrived at The Marketplace and pulled alongside the victim’s car, the victim 4 said to the Defe ndant, “W hat are you in ou r conversation for? . . . Man, you ain’t even in this thing.” Wynder testified that this “shocke d” the De fendan t, who had no t provoke d the victim . He further testified that when the three cars moved to the other side of the parking lo t, the victim sa id to the Defendant, “Man, I- I’ll blast your ass” and leaned down as if to grab something under th e seat, presu mab ly a gun. Wynder then testified that w hen the victim “wen t for the gun ,” Wynder dropped to the floorboard, heard two shots and then heard the Defendant get back into the car before the D efendant dro ve out of the p arking lot. He did not see the gun for which he believed the victim reached and did not know who fired the shots that he heard. He never spoke with police about the incident, claiming that he was not aware at the time of the shooting that anyone had been shot and that he did not know he was involved in the investigation. David Wo ods, who w as evidently the front-seat passenger in the Defe ndan t’s car on the night of the murder, presented a similar story. He testified that the victim h ad threa tened to “blast” the D efenda nt, to which the Defendant responded, “Don’t reach for your gun.” He claimed that the victim then reached under his seat, and Woods saw the victim’s right hand coming up holding a gun as Woods ducke d down. Like Wynder, Woods testified that he never saw sh ots fired, but unlike Wynder, he testified that he and Wynder discussed the fact that “the boy h ad died .” 4 Wynder used the term “dude” throughout his testimony and never specifically identified the person to whom he referred as the victim, although at one point Wynder did call the person “[t]he dude that’s dead right now.” Based upon his testimony as a whole and the other facts of this case, it is clear that by “dude,” Wynder meant the victim. -5- Rodney Johnson, the man with whom the victim met on August 10, 1995, testified that the victim initiated the confrontation with the Defendant. He testified that he heard two or three sho ts fired. However, he stated that he never saw a gun, that he did not know who fired the shots, and that he did not know anyone had be en hit. At trial, the Defendant claimed that he shot th e victim in self-defense. He testified that the victim told him, “I’ll blow your ass off.” According to the Defen dant, as the victim reache d down and ca me up with a gun, “I jumped out running fearing for m y life shooting . . . . It wasn’t intentional. . . . I wasn’t trying to kill him. I d idn’t even k now I h it him.” T he De fenda nt also adm itted tha t his gun wa s a .380 c aliber pisto l and that h e threw it aw ay after the shooting . After the murde r, the police searched the parking lot of The Marketplace. They were u nable to find any weapons, but they did find two spent shell casings beside the gas p umps which ap peared to match the ca sing fo und in the victim ’s car. There was also a large amo unt of ve hicle glass sc attered in th e parking lot. It appeared to stem from the area where the casings were found, near the gas pump s, and ex tended onto the s treet. The State p resen ts the th resho ld issue of whe ther this Cour t shou ld waive the Defendant’s untimely filing of the notice of appeal and accept the appeal of this case. T he case contains a rathe r lengthy and un usual proce dural history. The trial took place on November 9, 1995. The Defendant filed a Motion for New Trial on December 7, 1995; a hearing on the motion was held , and the motion was overruled on May 13, 1996. Trial counsel for the Defendant withdrew on -6- June 3, 1996. Th e Defend ant, evidently fearing th e loss o f his righ t to app eal, filed some pro se documents, including a Motion for Leave to File Belated Notice of Appe al, a Petition for Post-Conviction Relief, and a Motion to Appoint Counsel for Appe al. 5 The Public Defender was appointed to represent the Defendant on August 22, 1997; on tha t same da y, the Defendant filed a Notice of Appeal from the final judgment entered on December 12, 1995 and from the order of May 13, 1996 denyin g the D efend ant a n ew trial. 6 A Notice of Appeal was filed in the Court of Crim inal Ap peals on Aug ust 29, 19 97. Sub seque ntly, due to a conflict of interest, the Public Defender withdrew from the case; and on October 13, 1997, substitute couns el Clifford McGown was appointed to represent the Defendant on appeal. The Defendant, through appointed counsel, filed an Amended Motion for Ne w Tria l on December 1, 1997, which was denied on January 5, 1998. On January 8, 1998, the Defendant then filed a Notice of Appeal from the final judgmen t entered on December 12, 1995 and from the order entere d on J anua ry 5, 19 98 de nying th e Def enda nt a ne w trial. Rule 4 of the Tennessee Rules of Appellate Procedure states that [i]n an app eal as of rig ht to the . . . Co urt of Criminal Appeals, the notice of appea l required b y Rule 3 s hall be filed w ith and received by the clerk of the trial court w ithin 30 days after the date of entry of the judgment appealed from; however, in all criminal cases the “notice of appeal” document is not jurisdictional and the filing of such document may be waived in the intere st of justice. T he app ropriate appellate court shall be the court that determines wheth er such a waiver is in the interest of justice. 5 Two of the three pro se documents contained in the record are unsigned. The Defendant, through present counsel, Clifford McGown, later moved the trial court to dismiss his Petition for Post-Conviction Relief as having been mistakenly and untimely filed. The trial court dismissed the petition on January 5, 1998. 6 The actual Notice of Appeal incorrectly states that the order denying the Defendant a new trial was entered on May 31, 1996. -7- Tenn. R. App. P. 4(a). Due to the unusual circum stanc es in this case, we wa ive the untime ly filing of the no tice of app eal in the interes t of justic e. W e will therefore proceed to discuss this case on the merits. The Defendant argues that the proof presented by the State is insufficient to sustain the De fendant’s con viction for first degree mu rder. He contends that the State failed to adequately prove the element of premeditation. He argues that the Defe ndan t’s con viction fo r first deg ree m urder shou ld therefore be modified to a conviction for sec ond degre e murde r. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[findings] of guilt in criminal action s whe ther by the trial c ourt or jury sha ll be set aside if the evidence is insufficient to support the finding by the trier of fact beyond a reaso nable doubt.” T enn. R . App. P. 1 3(e). “Qu estions c oncern ing the cre dibility of the witn esse s, the w eight a nd valu e to be given th e evide nce, a s well a s all factual issues raised by the evid ence , are res olved b y the trie r of fact, n ot this Court.” State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) (citing State v. Grace, 493 S.W.2d 474, 476 (T enn. 1 973)) . Nor m ay this Court re-weigh or re-evalua te the evide nce in the record b elow. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978)). A jury verd ict app roved by the tr ial judge accredits the State’s witnesses and resolves all conflicts in fa vor of the S tate. Grace, 493 S.W.2d at 476 (citing State v. Williams, 657 S .W .2d 40 5, 410 (Ten n. 198 3)). On appe al, the S tate is entitled to the strongest legitimate view of the evidence and all inferences -8- therefrom. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982) (citing Cabbage, 571 S.W .2d at 835). Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this Court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fa ct. McBe e v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also Evans, 838 S.W.2d at 191 (citing Grace, 493 S.W.2d at 476); Tug gle, 639 S.W .2d at 914 . Tennessee Code A nnotated § 3 9-13-202 defines first degree murder as “[a] premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13- 202(a)(1). 7 Premeditation is defined 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 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. § 39-1 3-202 (d). “‘Pre med itation’ is the proc ess sim ply of thinking about a proposed killing before engaging in the homicidal co nduct . . . ,” State v. Brown, 836 S.W.2d 530, 540-41 (Tenn. 1992) (quotin g C. To rcia, W harton ’s Crim inal Law § 140 (14th e d. 1979)). Premeditation is a question of fact to be resolved by the jury. State v. Anderson, 835 S.W.2d 600, 605 (Tenn. Crim. App. 1992). “As is usually the case, a dete rmina tion of a culpa ble mental state, such as premeditation, must be 7 Tennessee Code Annotated § 39-13-202 also presents two other types of first degree murder which are not at issue in the present case. See Tenn. Code Ann. § 39-13-202 (a)(2)-(3). -9- inferen tially made from the circumstances surrounding the killing.” State v. Burlison, 868 S.W .2d 713 (Tenn . Crim. A pp. 199 3); see State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). Thus, premeditation may be shown by circum stantial evid ence. Brown, 836 S.W .2d at 541 . The following circumstanc es have been re lied upon in Tenn essee courts to prove premeditation: “(1) the victim was retreating or attempting to escape when shot; (2) the victim was unarmed and offered no provoc ation,” State v. Martin , 702 S.W.2d 560, 562-63 (Tenn. 1985 ) (citations o mitted), overruled on other grounds, Brown, 836 S.W.2d at 543; and (3) the victim “sustained repeated blows or shots.” Hous ton v. State , 593 S.W .2d 267 , 273 (T enn. 19 80), overruled on other grounds, Brown, 836 S.W.2d at 543.8 The procure ment o r use of a deadly weapon may also be relevant to the question of prem editation. State v. Bush, 942 S.W.2d 489, 501 (Tenn. 1997 ); Burlison, 868 S.W .2d at 718 ; see Brown, 836 S.W.2d at 541.9 8 In Houston v. State . . . the only circumstance relied upon by the majority to establish premeditation and deliberation was the fact that the victim had sustained “repeated shots or blows” . . . Logically, of course, the fact that repeated blows (or shots) were inflicted on the victim is not sufficient, by itself, to establish first- degree murder. Repeated blows can be delivered in the heat of passion, with no design or reflection. Only if such blows are inflicted as the result of premeditation and deliberation can they be said to prove first-degree murder. . . . Certainly, more than the mere fact of “repeated blows” must be shown to establish first-degree murder, and to the extent that the opinions in Houston and Martin can be read to hold otherwise, they are expressly overruled. Brown, 836 S.W.2d at 542, 543 (citations omitted). We read this to mean that repeated shots, standing alone, are not sufficient to support a finding of premeditation; however repeated shots may be considered in conjunction with other circumstances to support a finding of premeditation. We note incidentally that the requirement of deliberation is now abolished under our current first degree murder statute. See Tenn. Code Ann. § 39-13-202. 9 Specifically, our supreme court stated in State v. Brown that “[r]elevant circumstances recognized by other courts around the country have included the fact ‘that a deadly weapon was used upon an unarmed victim; [and] . . . that weapons with which to commit the homicide were procured . . . .” Brown, 836 S.W.2d at 541 (emphasis added). -10- W e will now review the facts of the case before us. The Defendant arrived at the scene of the crime with a g un in h is vehic le. His p urpos e was appa rently to assist his friend who was involved in a dispute with the victim. He got out of his vehicle holding his gun. He shot at least two times into or at the victim’s car and fired at least one of those shots at the victim’s car as the victim s ped awa y. In addition, police could find no weap on wh ich be longe d to the victim at the crime scene, in the vic tim’s ca r, or in the field where the victim was discovered. Whether these facts show premeditation is a classic question of fact for consideration by the jury. Upon review of the testimony presented at trial, the jury eviden tly concluded that the testimony of the Defendant and other witnesses for the defense w as dubious . We w ill not disturb this conclusion on app eal. W e believe that the evidence presented to the jury was sufficient to support a finding of prem editation. The jud gmen t of the trial cou rt is accord ingly affirme d. ____________________________________ DAVID H. WELLES, JUDGE CONCUR: ___________________________________ PAUL G. SUMMERS, JUDGE ___________________________________ JOE G. RILEY, JUDGE -11- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1081988. Public record. Not legal advice.