# State of Tennessee v. Darius Mack

> Court of Appeals of Tennessee · January 4, 2023

URL: https://www.frixlaw.com/law-library/cases/9351946

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** January 4, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge J. Ross Dyer
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
___________________________________

No. W2022-00224-CCA-R3-CD
___________________________________

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).
-2-
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.
-3-
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
-4-
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
-5-
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.

-6-
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,
-7-
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
-8-
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
-9-
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
- 10 -
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9351946. Public record. Not legal advice.