The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
Nov. 19, 1997
MAY SESSION, 1996
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) No. 02C01-9511-CR-00336
Appellee, )
) SHELBY COUNTY
vs. )
) Hon. L. T. Lafferty, Judge
MALUNDA L. MYERS, )
) (First Degree Murder)
Appellant. )
SEPARATE CONCURRING OPINION
I concur with my colleague's conclusion that the evidence was insufficient
to establish the elements of first degree murder.
The facts of this case are heinous. The appellant beat, kicked and
stomped a defenseless human being to the extent that death resulted. This was
neither a fight nor an attempt to defend oneself from violent physical aggression.
This was simply a brutal and savage one-sided beating.
On a sufficiency of the evidence review, we must affirm if the facts give
rise to legitimate inference supporting the jury's findings. Otherwise, we merely
supplant the jury's inferences with those of our own.
The facts in the case sub judice may lend themselves to a reasonable
inference that the appellant intended to kill the victim. Had the appellant simply
intended bodily harm, he could have ceased the savage beating either after the
first blows or after the victim assumed a modified fetal position and pleaded for
his life. The appellant, however, apparently had another agenda. That agenda
may well have supported the jury's finding of first degree murder.
Nevertheless, in light of State v. Brown, 836 S.W.2d 530, 543 (Tenn.
1992), I am constrained to concur in the majority's decision. I therefore conclude
that the appellant is guilty of murder in the second degree.
________________________________
PAUL R. SUMMERS, Special Judge
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