State of Tennessee v. Darius Mack

01/04/2023

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 1, 2022

STATE OF TENNESSEE v. DARIUS MACK

Appeal from the Criminal Court for Shelby County

No. 18-03765 John W. Campbell, Sr., Judge

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No. W2022-00224-CCA-R3-CD

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A Shelby County jury convicted the defendant, Darius Mack, of first-degree premeditated

murder and tampering with evidence for which he received an effective sentence of life

plus three years in prison. On appeal, the defendant argues the trial court erred in denying

his motion to suppress. He also contends the evidence presented at trial was insufficient

to support his convictions. After reviewing the record and considering the applicable law,

we affirm the judgments of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY, JR.

and KYLE A. HIXSON, JJ., joined.

Phyllis Aluko, Shelby County Public Defender; Barry W. Kuhn (on appeal) and Robert

Gowen and Kaitlin Beck (at trial), Assistant Public Defenders, for the appellant, Darius

Mack.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Joey Griffith and Katie

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

OPINION

Facts and Procedural History

This case arises from the murder of Tryeece Fossett, the victim, on October 4, 2017.

As a result, the defendant was indicted for first-degree premeditated murder and tampering

with evidence. Prior to his arrest, the defendant spoke with Sergeant Michael Coburn with

the Memphis Police Department (“MPD”) concerning his possible involvement in the

crimes. The defendant subsequently filed a motion to suppress his statement, and the trial

court conducted a pretrial hearing on August 14, 2020.

I. Motion to Suppress Hearing

MPD Sergeant Michael Coburn testified that on October 4, 2017, he was called to

a homicide scene outside a boarding house on Keystone Avenue. While on the scene,

Sergeant Coburn spoke with two witnesses who informed him that the defendant lived in

a room at the boarding house with his girlfriend, Ashley Brown, that the defendant was on

the scene of the homicide, and that the defendant left the scene when he was told the police

had been called. In addition to speaking with the witnesses, Sergeant Coburn also

recovered surveillance video from the security system of a residence across the street. The

video showed a red Nissan Versa hatchback driving back and forth in front of the boarding

house, a person shooting into a car parked at the end of the driveway of the boarding house,

and the same person returning to the scene and picking up shell casings from the street.

Upon further investigation, Sergeant Coburn discovered that the red Nissan Versa

hatchback from the video was registered to Ms. Brown. After a fifteen-day search,

Sergeant Coburn found the defendant and Ms. Brown living in the red Nissan Versa at the

defendant’s grandfather’s house.

After locating the defendant and Ms. Brown, Sergeant Coburn had them transported

to the police station for questioning. According to Sergeant Coburn, they arrived at the

station around 11:30 a.m. and were placed in separate interview rooms. The defendant was

restrained to a table in his interview room. During this time, officers gave the defendant

pizza and water and allowed him bathroom and smoke breaks.

At 4:40 p.m., Sergeant Coburn advised the defendant of his rights. Sergeant Coburn

had the defendant read aloud the advice of rights form, which included his Miranda1 rights,

initialing by each of his rights, indicating that he understood them. The defendant then

signed the “waiver of rights” section of the form, expressly waiving his Miranda rights.

According to Sergeant Coburn, the defendant was calm, unintoxicated, and not overly

emotional.

At the outset of their conversation, the defendant relayed his biographical

information to Sergeant Coburn, including his date of birth, social security number, and

phone number. The defendant stated he could read and write without glasses, was not

under the influence of any drugs or intoxicants, was not suffering from any mental

disorders, and was not under any physical discomfort that would keep him from

1

See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

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participating in an interview. The defendant noted that he completed twelfth grade, that he

understood he was speaking to law enforcement personnel, and that he had previously been

arrested for domestic violence and for a driver’s license issue. Initially, the defendant

denied shooting the victim but admitted to being at the boarding house and knowing the

victim. However, after being confronted with information to the contrary, the defendant

changed his story and admitted to shooting the victim; yet, the defendant claimed he did so

because the victim first pulled a gun on him. Despite Sergeant Coburn informing the

defendant that they did not find a gun on the victim or in the victim’s car, the defendant

maintained his claim that the victim pulled a gun on him.

At that point, the defendant’s statement was reduced to writing. The defendant was

again advised of his rights and initialed another form acknowledging the same. The

defendant again stated that he did not want a lawyer and that he would continue answering

questions. The defendant then narrated a statement while a third party typed it out. Upon

completing and reviewing his written statement, the defendant initialed each page and

signed and dated the last.

In addition to the testimony of Sergeant Coburn, the defendant and his grandfather,

Clayburn Anderson, also testified at the suppression hearing. Mr. Anderson testified that

he raised the defendant. According to Mr. Anderson, the defendant was “kind of slow”

and was enrolled in resource classes in high school. The defendant did, however, graduate

high school. Mr. Anderson confirmed the defendant had a job, a girlfriend, and a car;

however, he testified that the defendant “d[oes not] understand what people [are] talking

about a lot of time.” According to Mr. Anderson, if the defendant does not understand

what people are saying, he just agrees with them.

The defendant testified that on October 19, 2017, he was taken to the police station

and questioned about his involvement in the death of the victim. The defendant claimed

that the interrogation process left him tired and frustrated and that several officers came in

and out of the room, banging on the table and threatening to “lock up” Ms. Brown if the

defendant did not confess. The defendant also claimed that one officer opened the door to

the defendant’s interview room so the defendant could hear Ms. Brown crying in her

interview room. Though the defendant admitted he was never physically threatened by the

officers, he claimed he told law enforcement what they wanted to hear in order to end the

questioning. The defendant also claimed he did not ask for an attorney because he did not

know he had a right to have one present.

On cross-examination, the defendant was asked about a previous occasion when he

was questioned by law enforcement concerning his involvement in the rape of a twelve-

year-old girl. Specifically, the defendant was asked if he had been given an advice of rights

form, if he waived his rights, and if he gave a written statement during that interrogation.

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While the defendant remembered officers asking him questions, he denied signing an

advice of rights form, waiving his rights, and making a written statement.

At the conclusion of the hearing, the trial court entered a written order denying the

defendant’s motion to suppress, making the following finding:

From the proof, the [c]ourt finds that the defendant was unequivocal

about waiving his rights and giving a statement to police. A review of the

proof adduced at the hearing indicates that the defendant understood his

rights and was not coerced in any way to waive his Miranda rights. The

[c]ourt finds the admonitions contained in the waiver were adequate under

Miranda v. Arizona, 383 U.S. 4365, 86 U.S. S.Ct. 1602, 16 L.Ed.2d 694

(1966). The [c]ourt finds that at no time during the questioning of the

defendant did the defendant ask for an attorney or refuse to answer questions.

The [c]ourt further finds from the proof that [Sergeant] Coburn neither

coerced, threatened, or in any way forced the defendant to give a statement.

The [c]ourt finds that the defendant was cooperative but evasive in his

answers to police and ultimately gave a statement [that] was extremely self[-

]serving. The State has the burden of proving that the defendant had waived

his Miranda rights by a preponderance of the evidence and the [c]ourt finds

that it has done so.

As to the allegations that law enforcement threatened to lock up the

defendant’s girlfriend as a means of overcoming the defendant[’]s will, the

[c]ourt finds no evidence adduced that supports this claim. As to the

allegation that the defendant had intellectual difficulties that prevented him

from understanding what was going on or made hi[m] susceptible to pressure

is also not supported by the proof. The fact that [the] defendant was in

resource classes while in school does not, in and of itself, prove the defendant

could not make a valid decision about giving a statement to law enforcement.

The proof as a whole that was adduced at the hearing shows that the

defendant understood what was going on and was not compromised by any

mental issues.

II. Trial

In October 2017, the victim, the defendant, and the defendant’s girlfriend, Ashley

Brown, all lived in the same boarding house on Keystone Avenue in Memphis, Tennessee.

A few days prior to the victim’s murder, Ms. Brown claimed that the victim made romantic

advances toward her. According to Ms. Brown, the victim never touched her, but he did

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flirt with her. When Ms. Brown spurned the victim’s advances, he allegedly threatened to

hurt her and the defendant. Ms. Brown told the defendant of the incident and that she no

longer felt safe living at the boarding house. However, the defendant did not appear to

believe her, so Ms. Brown moved out.

As part of the investigation into the victim’s murder, law enforcement was able to

retrieve video of the murder from an across-the-street neighbor’s security system. The

security system had numerous surveillance cameras, several of which were pointed at the

street and the boarding house. According to the video, on October 4, 2017, at 1:24 a.m.,

the defendant, who was driving a red Nissan Versa hatchback, pulled into the driveway at

the boarding house. A few minutes later, the victim, who drove a white Nissan Versa, also

pulled into the driveway and boxed the defendant’s car in. At 2:19 a.m., the defendant left

the boarding house but had to maneuver his car through the front yard in order to get around

the victim’s car and out of the driveway.

At 2:40 a.m., the defendant can be seen walking down Keystone Avenue, crossing

the street to the boarding house, crouching behind the victim’s car, and then shooting the

victim, who was sitting in his car, several times. According to the medical examiner’s

report, the victim was shot two times in the head and two times in the neck. The bullets

penetrated the victim’s brain, chest, spine, and lungs. The victim died as a result of his

wounds. The defendant immediately fled the scene and returned to his car. Then, at 2:47

a.m. and 2:59 a.m., the defendant can be seen driving back and forth down the street,

checking to see if anyone had found the victim’s body.

The defendant eventually left the scene and picked up Ms. Brown. Once with Ms.

Brown, the defendant confessed to her that he had killed the victim. The defendant then

drove Ms. Brown down a back road, where he tried to discard his clothes and one of the

guns he owned. The defendant and Ms. Brown then drove back to the crime scene. Upon

arriving back at the boarding house, the defendant told Ms. Brown to “act like [she] didn’t

know what happened” and “to knock on the window to get everybody[’s] attention and . .

. while [she] was distracting them to get their attention, [the defendant] was go[ing] [to]

pick up the bullet shells.” While Ms. Brown created a distraction, the defendant can be

seen walking to the driver’s side of the victim’s car, opening the door, and picking up shell

casings from the ground. At 4:40 a.m., two witnesses, Pierre McKinney and Tasha

Maxwell, found the victim in his car. At 4:44 a.m., the defendant and Ms. Brown left the

scene after Mr. McKinney announced he was calling 911. At 4:50 a.m., law enforcement

arrived at the boarding house.

When law enforcement arrived at the crime scene, they discovered the victim’s body

and spoke with Mr. McKinney and Ms. Maxwell. They also observed the deceased victim

in the driver’s seat of his car with four bullet wounds to the back of his head and neck. A

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search of the victim’s car produced a cell phone belonging to the victim and one nine-

millimeter shell casing on the ground next to the car. However, no weapon was found on

the victim’s person or in his vehicle.

Based on the information obtained at the crime scene, including witness interviews

and the security video, Sergeant Coburn, the lead investigator, developed the defendant as

a suspect. Sergeant Coburn learned that both the defendant and Ms. Brown lived in the

boarding house and were connected to a red Nissan Versa hatchback. Sergeant Coburn

searched for the defendant and Ms. Brown for over two weeks. Eventually, Sergeant

Coburn found the defendant and Ms. Brown asleep in the red Nissan Versa hatchback at

the defendant’s grandfather’s house and took both of them into custody. Sergeant Coburn

arrested the defendant and Ms. Brown. Prior to his arrest, the defendant sold his second

gun to a third party.

Upon questioning by law enforcement, the defendant gave a statement in which he

ultimately admitted to shooting the victim. The defendant also admitted to returning to the

crime scene with Ms. Brown, where they saw seven or eight men across the street from the

crime scene. After driving down the street, the defendant and Ms. Brown parked their car

behind the victim’s car and exited their car to see if the victim was “still there.” Ms. Brown

then knocked on windows to wake up the other boarding house residents, and “everyone

came out looking inside the [victim’s] car wondering how that happened.” A man named

“Pierre” “said he was going to call law enforcement.” The defendant then claimed he

needed to leave because he had an outstanding warrant.

Finally, the State also introduced evidence that during a post-arrest jail call, the

defendant told Ms. Brown, “I did it for you,” and “don’t let everything I did go to waste.”

At the conclusion of the proof, the jury found the defendant guilty of first-degree

premeditated murder and tampering with evidence. As a result of his convictions, the trial

court sentenced the defendant to an effective sentence of life plus three years in prison.

This timely appeal followed.

Analysis

On appeal, the defendant contends the trial court erred in denying his motion to

suppress. He also contends the evidence presented at trial was insufficient to support his

convictions. The State contends that the trial court properly denied the defendant’s motion

to suppress and that the evidence is sufficient. Upon our review of the record and the

applicable law, we agree with the State and affirm the judgments of the trial court.

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I. Motion to Suppress

The defendant argues the trial court erred in failing to grant his motion to suppress.

Specifically, the defendant contends that law enforcement failed to advise him of his rights

at the “outset.” Additionally, the defendant contends the interrogation was coercive based

on a violation of his Miranda rights, the tactics used by law enforcement, and the

defendant’s inability to understand those rights. However, based on our review, the proof

presented during the hearing does not preponderate against the determination of the trial

court. Accordingly, the defendant is not entitled to relief.

Suppression issues on appeal are subject to a well-established standard of review.

Appellate courts are bound by a trial court’s findings of facts determined after a

suppression hearing unless the evidence preponderates against them. State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996); State v. Matthew T. McGee, No. E2011-01756-CCA-R3-CD,

2012 WL 4017776, at *2 (Tenn. Crim. App. Sept. 13, 2012). “Questions 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.” Odom, 928 S.W.2d at

23. Appellate courts should consider the entire record, affording the prevailing party “the

strongest legitimate view of the evidence and all reasonable inferences drawn from that

evidence.” McGee, 2012 WL 4017776, at *2 (citing State v. Hicks, 55 S.W.3d 515, 521

(Tenn. 2001)); see also State v. Sanders, 452 S.W.3d 300, 306 (Tenn. 2014). However,

applying the law to the factual findings of the trial court is a question of law, which is

reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

The Fifth Amendment to the United States Constitution, applicable to states through

the Fourteenth Amendment, states that “[n]o person . . . shall be compelled in any criminal

case to be a witness against himself.” U.S. Const. Amend. V. Similarly, the Tennessee

Constitution states “that in all criminal prosecutions, the accused . . . shall not be compelled

to give evidence against himself.” Tenn. Const. art. I, § 9. If a suspect is in police custody

“or otherwise [has been] deprived of his freedom of action in any significant way,” law

enforcement must first inform him of his Fifth Amendment rights for any subsequent

confession to later be admissible as substantive evidence. Miranda, 384 U.S. at 444. In

this regard, the United States Supreme Court has said, “[p]rior to any questioning, the

person must be warned that he has a right to remain silent, that any statement he does make

may be used as evidence against him, and that he has a right to the presence of an attorney,

either retained or appointed.” Id. These rights may be voluntarily, knowingly, and

intelligently waived. Id.

The Miranda decision only applies “to the questioning of an individual who has

been taken into custody or otherwise deprived of his freedom by the authorities in a

significant way.” State v. Dailey, 273 S.W. 3d 94, 102 (Tenn. 2009) (quoting Miranda,

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384 U.S. at 478) (internal quotation marks omitted). Accordingly, Miranda warnings are

only required when a suspect is (1) in custody and (2) subjected to questioning or its

functional equivalent. State v. Walton, 41 S.W. 3d 75, 83 (Tenn. 2001). In the absence of

either, Miranda requirements are not necessitated. Id.

The test for determining if an individual is in custody for Miranda purposes is

“whether, under the totality of the circumstances, a reasonable person in the suspect’s

position would consider himself or herself deprived of freedom of movement to a degree

associated with a formal arrest.” State v. Anderson, 937 S.W.2d 851, 855 (Tenn. 1996).

This is a fact-specific inquiry, and our Supreme Court has provided the following non-

exhaustive list of relevant factors:

[T]he time and location of the interrogation; the duration and character of the

questioning; the officer’s tone of voice and general demeanor; the suspect’s

method of transportation to the place of questioning; the number of police

officers present; any limitation on movement or other form of restraint

imposed on the suspect during the interrogation; any interactions between

the officer and the suspect, including the words spoken by the officer to the

suspect, and the suspect’s verbal or nonverbal responses; the extent to which

the suspect is confronted with the law enforcement officer’s suspicions of

guilt or evidence of guilt, and finally, the extent to which the suspect is made

aware that he or she is free to refrain from answering questions or to end the

interview at will.

Id. The defendant bears the initial burden of proving custody for the purposes of Miranda

before the burden shifts to the State to prove the voluntariness of the statement. State v.

Moran, 621 S.W.3d 249, 258 (Tenn. Crim. App. 2020).

While it is clear that the defendant was taken into custody at 11:30 a.m. when he

was transported to the police station and placed in an interview room, he was not questioned

by law enforcement until after he was advised of and waived his Miranda rights at 4:40

p.m. Accordingly, contrary to the defendant’s claim, there was no Miranda violation as

the defendant was not questioned until after he was advised of and waived his rights.

At the suppression hearing and on appeal, the defendant suggests that he was

interrogated by law enforcement upon arriving at the police station, and therefore, he

should have immediately been advised of his right at that point. However, our review of

the record does not support the defendant’s claim. Sergeant Coburn testified that though

the defendant arrived at the station at 11:30 a.m. and was placed in an interrogation room,

he was not questioned until after he was advised of and waived his Miranda rights. More

specifically, after Sergeant Coburn testified that they presented the defendant with an

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advice of rights form, had the defendant read the form out loud, and the defendant signed

the form at 4:40 p.m. prior to the defendant giving a statement, the State asked Sergeant

Coburn directly, “And is this before y’all began talking to him, or after y’all began talking

to him?” In response, Sergeant Coburn unequivocally stated, “Before.” Therefore,

contrary to the defendant’s claim, the record makes clear that the defendant was not

questioned by law enforcement until after he was advised of and waived his Miranda rights.

Therefore, the defendant’s Miranda rights were not violated, and he is not entitled to relief.

In addition to claiming his Miranda rights were violated, the defendant also claims

his statement was the result of coercion and, therefore, not voluntary. Again, the defendant

suggests he was interrogated from the time he entered the police station at 11:30 a.m. until

he signed his formal written statement at 9:12 p.m. However, as discussed supra, the

record does not support the defendant’s claim. Rather, the defendant was not questioned

until after he was advised of and waived his rights for the first time at 4:40 p.m. We would

also note that the defendant was again advised of and waived his rights a second time prior

to giving his formal written statement. Accordingly, as we have previously concluded, the

defendant’s Miranda rights were not violated.

Apart from our inquiry into the defendant’s waiver of his Miranda rights, we must

also determine whether his subsequent statement or confession was voluntarily given.

See Dickerson v. United States, 530 U.S. 428, 432-33 (2000) (indicating that the test to

determine the voluntariness of a statement is distinct from the determination concerning a

defendant’s waiver of his Miranda rights). In determining the voluntariness of a

confession, the essential inquiry is whether a suspect’s will was overborne so as to render

the confession a product of coercion. Id.; see also State v. Smith, 933 S.W.2d 450, 455

(Tenn. 1996) (“The test of voluntariness for confessions under article I, § 9 of the

Tennessee Constitution is broader and more protective of individual rights than the test of

voluntariness under the Fifth Amendment.”).

In order to determine the voluntariness of the defendant’s statement, we must

consider the totality of the circumstances surrounding the statement, including “both the

characteristics of the accused and the details of the interrogation.” State v. Climer, 400

S.W.3d 537, 568 (Tenn. 2013) (quoting Dickerson, 530 U.S. at 434). The circumstances

relevant to this determination are:

[T]he age of the accused; his lack of education or his intelligence level; the

extent of his previous experience with the police; the repeated and prolonged

nature of the questioning; the length of the detention of the accused before

he gave the statement in question; the lack of any advice to the accused of

his constitutional rights; whether there was an unnecessary delay in bringing

him before a magistrate before he gave the confession; whether the accused

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was injured[,] intoxicated[,] or drugged, or in ill health when he gave the

statement; whether the accused was deprived of food, sleep[,] or medical

attention; whether the accused was physically abused; and whether the

suspect was threatened with abuse.

Id. (alterations in original) (quoting State v. Huddleston, 924 S.W.2d 666, 671 (Tenn.

1996)).

Our review of the record affirms the trial court’s finding that the defendant’s

statement was voluntary and uncoerced. Sergeant Coburn testified that the defendant was

not under the influence of any intoxicants, appeared calm, and was not overly emotional.

According to Sergeant Coburn, the defendant told him that he did not suffer from any type

of mental disorder, graduated from twelfth grade, and understood he was speaking to law

enforcement. Moreover, officers gave the defendant multiple advice of rights forms which

the defendant read out loud and signed each time, and at no time did the defendant indicate

he wished to exercise his rights and terminate the interrogation or speak with a lawyer.

Officers also provided the defendant with food, water, and bathroom and smoke breaks

while he was in custody. Finally, as previously noted, the trial court explicitly accredited

Sergeant Coburn’s testimony of the events of the interrogation, including discrediting the

defendant’s claim that officers “banged on the table” and threatened to arrest his girlfriend

unless he confessed, and the trial court concluded that the “defendant understood what was

going on and was not compromised by any mental issues.”

This proof, taken together, confirms that the defendant’s statement was not

“extracted by any sort of threats or violence, nor obtained by any direct or implied

promises, however slight, nor by the exertion of any improper influence” or law

enforcement overreach. Bram v. United States, 168 U.S. 542, 542-43 (1987). Accordingly,

under the totality of the circumstances, it is clear the defendant’s statement to law

enforcement was voluntary and was not a product of

coercion. See Climer, 400 S.W.3d at 568. The defendant is, therefore, not entitled to relief.

II. Sufficiency of the Evidence

When the sufficiency of the 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, 190-91 (Tenn.

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

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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. 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 has 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, 405 S.W.2d 768, 771 (Tenn. 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).

A. First-Degree Murder

As relevant here, first-degree murder is “[a] premeditated and intentional killing of

another[.]” Tenn. Code Ann. § 39-13-202(a)(1) (2012). A person acts intentionally “when

it is the person’s conscious objective or desire to engage in the conduct or cause the result.”

Tenn. Code Ann. § 39-11-302(a) (2012). 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 pre-exist in the

mind of the accused for any definite period of time.” Tenn. Code Ann. § 39-13-202(d)

(2012). Additionally, “[t]he 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.

Premeditation “may be established by proof of the circumstances surrounding the killing.”

State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Moreover, there are several factors

which tend to support the existence of premeditation, including the use of a deadly weapon

upon an unarmed victim, the fact that the killing was particularly cruel, declarations of an

intent to kill by the defendant, evidence of procurement of a weapon, the making of

preparations before the killing for the purpose of concealing the crime, and calmness

immediately after the killing. Id. Whether premeditation is present in a given case is a

question of fact to be determined by the jury from all of the circumstances surrounding the

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killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003) (citing Suttles, 30 S.W.3d

at 261; State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998)).

Viewed in the light most favorable to the State, the evidence presented at trial

reveals that the defendant confessed to the murder on three separate occasions. First, the

defendant confessed to his girlfriend, Ms. Brown, minutes after the murder. Then, though

he claimed the victim pulled a gun on him first, the defendant confessed to Sergeant

Coburn. Finally, on a recorded phone call from jail, the defendant told Ms. Brown, “I did

it for you.”

In addition to the defendant’s confessions, the video from the neighbor’s security

system shows the defendant leave the boarding house in a red Nissan Versa. Then,

according to the defendant’s own statement, he returned to the boarding house and saw the

victim sitting in his car in the driveway. Rather than confront the victim directly, the

defendant parked his car down the street and walked back to the boarding house. Per the

video, the defendant snuck up on the victim’s car, crouched behind the car so as not to be

seen by the victim, and then fired several shots into the victim’s car, hitting the victim four

times in the back of the head and neck area. Then, after shooting the victim, the defendant

failed to render aid and calmly left the scene. Later, the defendant and Ms. Brown returned

to the scene, and the defendant attempted to retrieve the shell casings from the scene.

Additionally, the defendant further attempted to cover up his crime by disposing of his

clothing and both of the guns he owned. Finally, the proof revealed that the victim was not

armed at the time of the murder.

Based on the recited evidence, a reasonable jury could conclude that the defendant

intentionally and with premeditation shot and killed the victim. The defendant procured a

weapon; he used that deadly weapon on an unarmed victim; he stalked his victim; and he

then shot his victim numerous times in the back. After shooting the victim, the defendant

failed to render aid and calmly walked away from the scene. Finally, the defendant

returned to the scene to remove his spent shell casings and disposed of his clothing and any

guns connected to him, including the murder weapon, in an attempt to cover up his

involvement in the victim’s murder. Accordingly, the evidence is sufficient to sustain the

jury’s finding of premeditation and verdict of first-degree murder.

The defendant focuses his argument on his claim that the victim threatened Ms.

Brown and that the victim pulled a gun on the defendant. However, the jury heard this

testimony, including the fact that no gun was found on the victim or in the victim’s car,

and by its verdict of guilty, rejected the defendant’s claim. As noted supra, “[a]ll 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. Pappas, 754 S.W.2d at 623. Accordingly,

the evidence supports the jury’s verdict, and the defendant is not entitled to relief.

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B. Tampering with Evidence

Next, the defendant contends the evidence is not sufficient to support his conviction

for tampering with evidence. More specifically, the defendant argues that the State failed

to establish that he retrieved the spent shell casings from the crime scene after the defendant

“formed a belief that an investigation was pending or in progress.” The State submits the

evidence is sufficient to support the conviction. Upon our review of the record and the

applicable law, we agree with the State and affirm the jury’s verdict.

Relevant here, Tennessee Code Annotated section 39-16-503(a)(1) sets forth the

following definition of tampering with evidence:

(a) It is unlawful for any person, knowing that an investigation or official

proceeding is pending or in progress to:

(1) Alter, destroy, or conceal any record, document or thing with intent to

impair its verity, legibility, or availability as evidence in the investigation or

official proceeding[.]

Tenn. Code Ann. § 39-16-503(a)(1).

The statute requires the State to prove “timing, action, and intent” beyond a

reasonable doubt. State v. Hawkins, 406 S.W.3d 121, 132 (Tenn. 2013) (quoting State v.

Gonzales, 2 P.3d 954, 957 (Utah Ct. App. 2000)). “The ‘timing’ element requires that the

act be done only after the defendant forms a belief that an investigation or proceeding ‘is

pending or in progress.’” Id. (emphasis added); see also State v. Smith, 436 S.W.3d 751,

763 (Tenn. 2014). “The ‘action’ element requires alteration, destruction, or concealment.”

Hawkins, 406 S.W.3d at 132. To “conceal” a thing means “to prevent disclosure or

recognition of” a thing or “to place [a thing] out of sight.” Id. (citing State v. Majors, 318

S.W.3d 850, 859 (Tenn. 2010)). For “intent” to be established, the proof must show that

through his actions, the defendant intended “to hinder the investigation or official

proceeding by impairing the record’s, document’s or thing’s ‘verity, legibility, or

availability as evidence.’” Id. (quoting Tenn. Code Ann. § 39-16-503(a)(1)). Tampering

with evidence is a “specific intent” crime. Id. (internal citations omitted).

The defendant focuses his argument on the “timing” element of tampering with

evidence, claiming that he did not know an investigation was pending or in progress.

Though the evidence supporting the defendant’s conviction on this charge is not lengthy,

it is sufficient to sustain the jury’s verdict.

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Here, the State alleged that the defendant tampered with evidence by removing the

shell casings while knowing an investigation was pending or in progress. Initially, we note

that the defendant drove by the boarding house several times after the murder in order to

see if anyone had discovered the body. Once the defendant determined the victim had not

been discovered, he returned to the scene, had Ms. Brown create a diversion, and retrieved

his spent shell casings from around the victim’s vehicle. Reasonable minds can conclude

that the defendant was checking the scene because he knew that the moment the body was

discovered an investigation would commence and he needed to retrieve any evidence, i.e.

the shell casings, before it did. Additionally, reasonable minds can also conclude that the

defendant removed the shell casings from the scene in order to hide his identity as the

shooter. Finally, after retrieving his shell casings, the defendant was informed by Mr.

McKinney that he had called the police. At that moment, the defendant knew for certain

that an investigation was pending. And, it was also at that moment that the defendant left

the scene with the shell casings.

Based on the foregoing, it is clear the defendant knew an investigation into the

victim’s death was pending at the time he removed evidence of his crime—the shell

casings—from the scene. Therefore, the evidence was sufficient for a rational trier of fact

to find the defendant guilty of tampering with evidence, and we affirm the defendant’s

conviction.

Conclusion

For the aforementioned reasons, the judgments of the trial court are affirmed.

____________________________________

J. ROSS DYER, JUDGE

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