State of Tennessee v. Javonte Thomas

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 7, 2016

STATE OF TENNESSEE v. JAVONTE THOMAS

Appeal from the Criminal Court for Shelby County

No. 14-03018 J. Robert Carter, Jr., Judge

No. W2015-01473-CCA-R3-CD - Filed August 16, 2016

The defendant, Javonte Thomas, was convicted by a Shelby County Criminal Court jury

of first degree premeditated murder and sentenced to life imprisonment. In this appeal,

he challenges the sufficiency of the convicting evidence and the trial court‟s denial of his

motion to suppress his statement to police. Following our review, we affirm the

judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER

and J. ROSS DYER, JJ., joined.

Joseph A. McClusky, Memphis, Tennessee, for the appellant, Javonte Thomas.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and Eric Christensen and Neal Oldham,

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

OPINION

FACTS

This case arises out of the February 8, 2014 shooting death of Quintin Fifer, which

occurred in the parking lot of a Memphis hotel as the victim was sitting in the driver‟s

seat of his vehicle with his girlfriend, their two-year-old son, and his brother as

passengers. A tip led the police to the defendant, whose brother, Jeremy Thomas, had

been involved in an earlier dispute with the victim. The defendant was arrested and gave

a statement to police admitting that he shot the victim in retaliation for the victim‟s

having earlier shot his brother. According to his statement, the defendant was riding in a

vehicle with his brother and Darius Love when Mr. Love, who was driving, spotted the

victim, announced that they had to kill him, and followed the victim‟s vehicle until it

turned into the hotel parking lot. At that point, Mr. Love pulled over at a BP service

station and let the defendant out of his vehicle. The defendant followed the victim‟s

vehicle on foot until the victim pulled into a parking spot, shot the victim multiple times,

and then ran back to the BP station, where Mr. Love picked him up. The defendant and

Darius Love were subsequently indicted together for first degree premeditated and felony

murder of the victim. Their cases were later severed, and the State nolle prosequied the

felony murder count of the indictment, leaving the defendant to be tried alone for the first

degree premeditated murder of the victim.

Suppression Hearing

Prior to trial, the defendant filed a motion to suppress his statement to police,

arguing that it was the product of an illegal arrest, in violation of his Fourth Amendment

rights, and was made without the benefit of proper Miranda warnings and as the result of

coercive police tactics, in violation of his Fifth Amendment rights. At the suppression

hearing, Sergeant Eric Kelly of the Memphis Police Department‟s Homicide Bureau

testified that during the course of his investigation he learned that the defendant had a

brother, Jeremy Thomas, who had been shot. He said that Mr. Jeremy Thomas, who

contacted the police wanting to talk about the matter, gave them a statement on April 5,

2014, in which he said that the defendant had shot the victim and that he had been

present.

Sergeant Kelly testified that police officers located the defendant at his home on

April 7 and that he joined them there approximately fifteen or twenty minutes later. He

and his fellow officers informed the defendant what was happening and allowed him to

smoke a cigarette before handcuffing him and placing him in a patrol car for transport to

the homicide office. At the homicide office, Sergeant Kelly again explained to the

defendant what was happening before advising him of his rights. He said he followed his

usual procedure of giving the defendant the advice of rights form and having him read it

aloud, with pauses after each sentence for Sergeant Kelly to ask whether the defendant

understood what he had just read. According to Sergeant Kelly, the defendant‟s only

problem was the word “coercion,” which he was unable to properly pronounce. Sergeant

Kelly testified that he asked the defendant if he knew the meaning of the word and then

explained its meaning to him as follows: “I said that means that I get you up here that I

beat you, that I kick you, have I threatened you with anything and he says no, and then he

signed the form.”

Sergeant Kelly testified that after the defendant signed the advice of rights form,

he “was surprisingly calm and forthright and immediately went to talking about the

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circumstances of the situation that happened.” The defendant‟s statement, which “was

precisely in line with” his brother‟s statement, was reduced to writing and presented to

the defendant for his review. The defendant read the statement, made handwritten

corrections, initialed each page, and signed at the end. Sergeant Kelly began the process

of reading the defendant his rights at 3:56 p.m., and the defendant signed the waiver at

4:01 p.m. and the completed statement at 5:48 p.m. The defendant was offered a soft

drink and bathroom breaks during the time he was in the homicide office and was not

threatened or promised anything in exchange for the statement.

On cross-examination, Sergeant Kelly estimated that the defendant was arrested

around noon and brought to the homicide office before 1:00 p.m. He said that during the

interval before the interview began, he checked on the defendant to see if he needed to

use the bathroom or wanted anything to drink. During the interval between the

defendant‟s signing of the waiver and the completed statement, the defendant made the

statement, the statement was reduced to writing, and the defendant reviewed the written

statement and made his handwritten changes.

Sergeant Kelly acknowledged that the defendant told him that he took special

education classes. He said that fact did not indicate to him that the defendant had any

mental impairment, but instead only a learning disability. He further acknowledged that

he purposefully arrested the defendant without a warrant as part of his “investigative

technique.” He explained: “It was just an aspect of an investigative technique where we

like to try to speak with them before a warrant is actually placed on him. A lot of people

feel that once a warrant is placed on them that it‟s over with.”

At the conclusion of the hearing, the trial court overruled the motion to suppress,

finding that the sergeant had probable cause to arrest the defendant without a warrant and

that the three-hour delay between the defendant‟s arrival at the homicide office and the

start of the interview, and the fifty-six-minute delay between the time the defendant

signed his waiver of rights and the statement, were insufficient to overcome the

defendant‟s will.

Trial

The State‟s first witness at trial was the victim‟s girlfriend, Airelle Strahan, who

testified as follows: At approximately 3:00 or 4:00 p.m. on February 8, 2014, she, the

victim, their two-year-old son, and the victim‟s brother, Jeremy Gray, drove to the

Deluxe Inn on Lamar Avenue to rent a room. After paying for the room, the victim

returned to their car and began driving around the building to their assigned room. She

was in the front passenger seat, their child was in the rear passenger seat behind the

victim, and Mr. Gray was in the rear passenger seat behind her. The victim pulled up to a

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parking space, and they were all about to get out of the vehicle when a gunshot sounded

and the victim grabbed himself and swore. At that point, the driver‟s door of the vehicle

was pulled open and shots began “coming back to back.”

Ms. Strahan testified that Mr. Gray fled from the passenger side of the vehicle and

that she panicked and fled after him, leaving her child behind in the vehicle. She

estimated that she heard as many as twelve gunshots and said that all she saw of the

shooter was his hood and the top of his head. She stated that she did not know the

defendant. She did, however, know of the defendant‟s brother, Jeremy Thomas, because

the victim had told her about an altercation he had had with him. She also knew Jamal

Mister, another man with whom the victim had had an altercation.

The victim‟s brother, Jeremy Gray, testified that he was unbuckling his nephew

from his car seat when he saw a “brown skin[ned]” man wearing a red “hoodie” standing

at the driver‟s door staring at the victim. As the victim looked back at the man, the man

first shot the victim through his car window and then opened the door and shot him

multiple additional times. Mr. Gray testified that he got out of the car and fled to the

nearest neighborhood, where he knocked on doors until someone finally came outside

and called the police.

Mr. Gray testified that the shooter fired thirteen shots. He said he did not know

the defendant and had never seen him. He stated that he informed the police about two

men with whom the victim had had altercations -- Jamal Mister, with whom the victim

had argued almost a year before the victim‟s death, and Jeremy Thomas, with whom the

victim had had a confrontation outside a store sometime “close to October.” He related

that the confrontation with Jeremy Thomas occurred when Mr. Thomas pulled up to the

store and the victim pointed him out to Mr. Gray, who was in the victim‟s vehicle with

the victim and the victim‟s young son. According to Mr. Gray, Mr. Thomas, who

appeared very angry, approached the victim‟s car and “[went] off on [the victim],”

pointing his finger in his face and cursing him. Mr. Gray testified that the victim

responded by asking Mr. Thomas what his problem was and telling him that he had

nothing against him.

Mr. Gray identified a photographic array from which he had picked Jamal Mister

as the man who had shot the victim. He explained that he had not gotten a good look at

the shooter and identified Mr. Mister because everything happened “so fast” and Mr.

Mister was “the only person [he] could think of at the time.” On cross-examination, Mr.

Gray acknowledged that he also mentioned to the police a man named Derek Fifer, a

purported cousin whom the victim had met on Facebook and who had stolen from the

victim a .40 caliber Smith and Wesson pistol that looked very similar to the murder

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weapon. On redirect examination, Mr. Gray testified that, to his knowledge, the victim

did not know the defendant.

Memphis Police Officer Antoine Smith, the first officer on the scene, testified that

the unresponsive victim was in the passenger seat of the vehicle with multiple gunshot

wounds while a one- to two-year-old child was in the rear seat of the vehicle. After

securing the child, he maintained the crime scene and searched for witnesses or videotape

of the incident. He testified that he located and watched the hotel‟s surveillance tape,

which “show[ed] pretty much the whole incident.”

Memphis Police Officer Christopher Slaughter, a crime scene investigator,

identified numerous photographs and a sketch he had made of the crime scene. He

testified that he collected twelve .40 caliber shell casings, one bullet, and one bullet

fragment from the scene.

Memphis Police Officer Jason Parish, the crime scene investigator who processed

the victim‟s vehicle, identified numerous photographs of the vehicle, including ones

showing a broken driver‟s side window, a broken windshield, and three spent bullets he

collected from inside the vehicle.

Vijay Patel, who was an employee of the hotel on the day of the shooting,

identified a copy of the hotel‟s surveillance videotape from February 8, 2014, which he

provided to the police.

Salem Mohammed, an employee of the Lamar Avenue BP station located across

the street from the hotel, identified the station‟s February 8, 2014 surveillance videotape,

which he provided to the police.

Sergeant Eric Kelly of the Memphis Police Department‟s Homicide Bureau

testified that a tip led police to the vehicle involved in the shooting and its driver, Darius

Love. He said Mr. Love gave a statement identifying one young man as the shooter, but

they were able to quickly eliminate that individual and he was never even brought in for

questioning. They next received information identifying Jamal Mister as the shooter, and

Mr. Mister was charged with the crime. Eventually, however, they received information

that cleared Mr. Mister. Finally, the defendant was developed as the third shooting

suspect in the case.

Sergeant Kelly testified that approximately two months after the shooting, the

defendant gave a statement admitting his role in the crime. He identified the defendant‟s

April 7, 2014 written statement, which was admitted into evidence and published to the

jury. The defendant‟s statement reads in pertinent part:

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I was in a black Nissan Altima with Darius Love and my brother

Jeramy [sic] Thomas. We was leaving out of the Stonehinge [A]partments

where my cousin Yashika lives. We had gone over there to serve her some

weed. When we was coming out of the apartment Darius Love spotted [the

victim] driving and said, “There go the Quintin nigga.” Then he said “we

got to kill him.” Then he turned the car around and we followed him down

Winchester Street. [The victim] turned on Lamar and went to the hotel.

Darius pulled over onto the BP store lot and I got out of the car and walked

across the street towards the hotel. I followed [the victim] around the

parking lot and then he pulled into a parking space. I went up to the car and

shot through the window. I opened the door to the car and I kept shooting

then I ran from the hotel and the black Altima was riding past and pulled

back up to the BP lot and I went and got in. We drove off.

In the statement, the defendant also related that he had been armed with a .40

caliber Smith and Wesson, which he had borrowed from “Psycho” or Theoditis Pitchford;

that he had emptied all but one round from the clip shooting at the victim; that he had

shot the victim because the victim had earlier shot his brother, Jeremy Thomas; and that

he had returned the murder weapon to Theoditis Pitchford after the shooting. The

defendant also told police that he held the rank of “Y.G.,” or “young gangster,” in the 9

Deuce Eastside Bishop gang and that he did not know or recognize the victim until Mr.

Love identified him.

Sergeant Kelly identified the surveillance tapes from the hotel and the BP station,

which were played for the jury as Sergeant Kelly narrated the action. On cross-

examination, Sergeant Kelly acknowledged that the videotapes showed that Darius Love

appeared to be keeping an eye on the defendant‟s actions after letting him out of his

vehicle. He further acknowledged that, according to the defendant‟s statement, it was

Mr. Love who followed the victim‟s vehicle, who pointed the victim out to the defendant,

and who stated that they had to kill the victim.

Dr. Miguel Laboy, the medical examiner who autopsied the victim‟s body,

testified that he found a total of sixteen gunshot wounds on the victim. He said the cause

of death was multiple gunshot wounds and the manner of death was homicide.

Memphis Police Officer Jerry Knowlton testified that on October 19, 2013, he

responded to an aggravated assault call in which Jeremy Thomas, who had a wound to his

right calf, reported that he had been shot by the victim.

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Detective Dexter Craig of the Memphis Police Department testified that he was

assigned the aggravated assault case involving Jeremy Thomas but that Mr. Thomas

refused to prosecute. However, when he asked Mr. Thomas to sign a refusal to prosecute

form, Mr. Thomas responded that he did not want to sign anything and that he was

“straight.”

Memphis Police Officer Douglas Gailey testified that he responded to an active

shooter call at the Oak Court Mall on March 6, 2014, and made contact with a vehicle

involved in the shooting. A pistol was visible in the backseat of the vehicle, which

contained four occupants: Frederick Ware, Dewan Avant, Devarious Foster, and Christy

Bowen.

Memphis Police Officer Adam Pickering, the crime scene investigator who

processed the vehicle associated with the Oak Court Mall shooting, testified that he found

two firearms inside the vehicle, including a Smith and Wesson pistol. He identified the

.40 caliber pistol, which was admitted as a trial exhibit.

Sergeant Shawn Hicks of the Memphis Police Department‟s Tillman General

Investigation Division testified that the victim of the Oak Court Mall shooting was

Theoditis Pitchford, an associate of the four occupants of the vehicle, and that he would

have left with them in the vehicle had he not been shot.

Tennessee Bureau of Investigation Special Agent Forensic Scientist Cervinia

Braswell, an expert in firearms identification, testified that the twelve cartridge casings,

the bullet, and the bullet jacket recovered from the crime scene had all been fired from

the Smith and Wesson .40 caliber pistol. She also determined that the three bullets

recovered during the processing of the victim‟s vehicle were fired from the same pistol.

A bullet core, which had been removed from the victim‟s body during the autopsy, bore

“no markings of comparison value,” and she was unable to make any determinations

regarding its origin.

The defendant elected not to testify and rested his case without presenting any

proof. Following deliberations, the jury convicted him of first degree premeditated

murder, and the trial court sentenced him to life imprisonment.

ANALYSIS

I. Denial of Motion to Suppress Statement

The defendant contends that the trial court erred in denying his motion to suppress

his statement. Specifically, he argues that his warrantless arrest was unconstitutional

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under the Fourth Amendment, asserting that Sergeant Kelly‟s “especially egregious

tactic” of purposefully not seeking an arrest warrant in order to increase the likelihood of

obtaining an incriminating statement, “should not be a valid exception to the warrant

requirement of the Fourth Amendment.” He further argues that the statement was taken

in violation of his Fifth Amendment right against self-incrimination, arguing that it was

“a direct result of psychological coercion while in a vulnerable state.” In support of the

involuntariness of his statement, he cites the fact that he attended special education

classes in school, does not have a high level of intelligence, was unaccustomed to police

interrogation, and was left for hours in “solitude” during the course of the interrogation.

When this court reviews a trial court‟s ruling on a motion to suppress, “[q]uestions

of credibility of the witnesses, the weight and value of the evidence, and resolution of

conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” State

v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing at the suppression

hearing is afforded the “strongest legitimate view of the evidence and all reasonable and

legitimate inferences that may be drawn from that evidence.” State v. Keith, 978 S.W.2d

861, 864 (Tenn. 1998). The findings of a trial court in a suppression hearing are upheld

unless the evidence preponderates against those findings. See id. However, the

application of the law to the facts found by the trial court is a question of law and is

reviewed de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher,

989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

Both the Fourth Amendment to the United States Constitution and Article I,

section 7 of the Tennessee Constitution protect individuals against unreasonable searches

and seizures. See U.S. Const. Amend. IV; Tenn. Const. art. I, § 7. “These constitutional

provisions are designed to „safeguard the privacy and security of individuals against

arbitrary invasions of government officials.‟” Keith, 978 S.W.2d at 865 (quoting Camara

v. Municipal Court, 387 U.S. 523, 528 (1967)). A search or seizure conducted without a

warrant is presumed unreasonable, and evidence obtained as a result will be suppressed

“unless the prosecution demonstrates by a preponderance of the evidence that the search

or seizure was conducted pursuant to an exception to the warrant requirement.” Keith,

978 S.W.2d at 865 (citations omitted).

One of the exceptions to the warrantless arrest of an individual is when an officer

has probable cause for believing that the person has committed a felony. See Tenn. Code

Ann. § 40-7-103(a)(3); State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012) (citing State v.

Hanning, 296 S.W.3d 44, 48 (Tenn. 2009)). “Probable cause . . . exists if, at the time of

the arrest, the facts and circumstances within the knowledge of the officers, and of which

they had reasonably trustworthy information, are „sufficient to warrant a prudent [person]

in believing that the [defendant] had committed or was committing an offense.‟” Echols,

382 S.W.3d at 277-78 (quoting State v. Bridges, 963 S.W.2d 487, 491 (Tenn. 1997)).

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The Fifth Amendment to the United States Constitution provides that “[n]o person

. . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const.

amend. V. The corresponding provision of the Tennessee Constitution states “[t]hat in all

criminal prosecutions, the accused . . . shall not be compelled to give evidence against

himself.” Tenn. Const. art. I, § 9. Thus, to be admissible at trial, a confession made

while under custodial interrogation must be shown to have been freely and voluntarily

given, after the defendant‟s knowing waiver of his constitutional right to remain silent

and to have an attorney present during questioning. See Miranda v. Arizona, 384 U.S.

436, 444 (1966).

Under the Fifth Amendment, a confession is involuntary when it is the result of

coercive action on the part of the State. Colorado v. Connelly, 479 U.S. 157, 163-64

(1986). Our supreme court has concluded that “the test of voluntariness for confessions

under Article 1, § 9 is broader and more protective of individual rights than the test of

voluntariness under the Fifth Amendment.” State v. Crump, 834 S.W.2d 265, 268 (Tenn.

1992). In order for a confession to be considered voluntary in Tennessee, it must not be

the result of “„any sort of threats or violence, . . . any direct or implied promises, however

slight, nor by the exertion of any improper influence.‟” State v. Smith, 42 S.W.3d 101,

109 (Tenn. Crim. App. 2000) (quoting Bram v. United States, 168 U.S. 532, 542-43

(1897)). Courts look to the totality of the circumstances to determine whether a

confession is voluntary. State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996).

In denying the defendant‟s motion to suppress his statement, the trial court found

that Sergeant Kelly had probable cause to arrest the defendant without a warrant and that

the delays in the interview process were insufficient to overcome the defendant‟s will and

cause him to make a statement that he otherwise would not have made. The record

supports these determinations. Whether or not Sergeant Kelly chose to use the

“investigative technique” of not first seeking an arrest warrant does not change the fact

that he had probable cause, which included his knowledge of Jeremy Thomas‟ statement

implicating the defendant in the crime, at the time of the warrantless arrest.

As for the defendant‟s claim that he was coerced into making the statement by his

hours in solitude and his vulnerable mental state, we note that Sergeant Kelly‟s

testimony, which was implicitly accredited by the trial court, was that he periodically

checked on the defendant during the time he was alone in the interview room, that the

defendant was “calm,” “forthright” and unhesitant in his statement, that the defendant

was not promised or threatened anything in exchange for his statement, and that the

defendant did not appear to have any mental disability. We further note that the

defendant is able to read and write and indicated on the waiver of rights form that his

highest level of education was the twelfth grade. In sum, there was no evidence that the

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defendant‟s statement was the fruit of an illegal arrest or was not voluntarily and

knowingly made after the defendant was properly advised of his rights and executed a

valid waiver of those rights. Accordingly, we conclude that the trial court properly

denied the defendant‟s motion to suppress his statement to police.

II. Sufficiency of the Evidence

The defendant also contends that the evidence is insufficient to sustain his

conviction for premeditated first degree murder, arguing that the evidence, at most,

supports only a conviction for voluntary manslaughter. In support, he cites, among other

things, the fact that Mr. Love pointed out the victim, announced the intention to kill the

victim, and monitored the defendant‟s actions during the shooting. The defendant argues

that he was “used by his brother and [Mr. Love],” who “worked [him] into a frenzy” in

order to have him kill the victim, a man he did not know and had no reason to harm. The

State argues that the evidence was more than sufficient to sustain the jury‟s verdict, and

we agree.

In considering this issue, we apply the rule that where 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.

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Bolin v. State, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 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).

To sustain the conviction, the State had to prove beyond a reasonable doubt that

the defendant committed a first degree premeditated and intentional killing of the victim.

See Tenn. Code Ann. § 39-13-202(a)(1). “Premeditation” 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 preexist 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. § 39-13-202(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). 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. State v. Jackson, 173 S.W.3d

401, 409 (Tenn. 2005); State v. Thacker, 164 S.W.3d 208, 222 (Tenn. 2005); State v.

Leach, 148 S.W.3d 42, 54 (Tenn. 2004); State v. Nichols, 24 S.W.3d 297, 302 (Tenn.

2000); Bland, 958 S.W.2d at 660.

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

defendant, whose brother had apparently been shot by the victim during an earlier

altercation, was riding in a car with his brother and Mr. Love when Mr. Love and his

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brother spotted the victim and Mr. Love saw the opportunity of exacting revenge by

killing the victim. The evidence further established that the defendant, armed with a

borrowed weapon, got out of the vehicle when Mr. Love pulled over at the service

station, followed the victim‟s vehicle, approached the driver‟s side door, and fired

multiple shots at the defenseless victim before fleeing the scene and later returning the

weapon to the person from whom it was borrowed. This evidence is more than sufficient

to support a finding that the shooting was premeditated. We conclude, therefore, that the

evidence is sufficient to sustain the defendant‟s conviction for first degree premeditated

murder.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the

trial court.

_________________________________

ALAN E. GLENN, JUDGE

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