State of Tennessee v. Jacob Lee Davis ( 2001 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 18, 2001
STATE OF TENNESSEE v. JACOB LEE DAVIS
Direct Appeal from the Circuit Court for Lincoln County
No. S-9800087 Charles Lee, Judge
No. M1999-02496-CCA-R3-CD - Filed May 8, 2001
Following a jury trial, Defendant, Jacob Lee Davis, was convicted of premeditated first degree
murder, reckless endangerment, and carrying a weapon on school property. The trial court sentenced
him to life imprisonment for the first degree murder conviction and one year each for the reckless
endangerment and carrying a weapon on school property convictions. The trial court ordered that
the latter sentences be served concurrent to the sentence for life imprisonment. On appeal, the
Defendant challenges the sufficiency of the evidence to sustain each of the convictions and argues
that the trial court erred in failing to strike six potential jurors for cause. After a review of the record,
we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right;
Judgment of the Lincoln County Circuit Court Affirmed
THOMAS T. WOODALL , J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT
W. WEDEMEYER , JJ., joined.
John B. Nisbet, III, Cookeville, Tennessee (on appeal); Donna Hargrove, District Public Defender;
A. Jackson Dearing, III, Assistant Public Defender; Raymond W. Fraley, Jr., Fayetteville, Tennessee,
and Rich McGee, Nashville, Tennessee (at trial), for the appellant, Jacob Lee Davis.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General;
W. Michael McCown, District Attorney General; Weakley E. Barnard, Assistant District Attorney
General; and Ann L. Filer, Assistant District Attorney General, for the appellee, the State of
Tennessee.
OPINION
I. FACTS
In 1997, at the start of their senior year at Lincoln County High School, in Fayetteville,
Tennessee, Nick Creson (the victim) and Tonya Bishop had been involved in a two-year relationship.
Creson and Bishop lived in the same neighborhood, attended the same church, and had attended
school together since sixth grade. In the fall of 1997, Creson and Bishop broke up and Bishop began
to date the Defendant. Bishop testified that although she and Creson were no longer dating, they
continued to share a locker, had classes together and often engaged in sexual relations, until some
time following the Christmas of 1997. Bishop further testified that the Defendant was jealous of
Bishop’s continued association with Creson.
In March of 1998, Defendant discovered that Bishop and Creson were having sexual relations
and he confronted Bishop about it. Bishop testified that she and the Defendant had a three to four
hour discussion in her car in the school parking lot, during which the Defendant was crying and
shaking uncontrollably. The next day, Defendant delivered the following letter to Bishop:
Tonya: In case you missed it at break, I want to scream. When someone has
a problem they usually go to friends and lay their head on a shoulder. I don’t have
a shoulder. You told me last night to shut my mouth. Well here it is.
You know I will not leave you and you take advantage of me. I scream in
protest, and you talk about work. I scream because I have the fate to fall for one who
could not be mine, and you talk about the weather. I don’t deserve this, Tonya. From
the beginning I have given you nothing but my all. For what? To be with you. That
is all I have asked. I am faithful, I am true, I am honest. My heart screams, “how
could you?” You talk about you are not at work.
I bleed, and for that he should bleed as well. Justice says he deserves it. I
want to hear his skin sear and pop under fire while I stand in front of him and recite
the lyrics to Soma by the Smashing Pumpkins. I want to put a three inch diameter
hole in his chest from a 12 gauge. I want to dip my finger in his blood and write the
words to the song Mayonnaise on his truck. My friends say I should take his anger
out on you. You know as well as I do I can’t do that. It must go somewhere. Thus
this letter.
Don’t forget. Don’t look innocent and say that I am scaring you. If this
doesn’t show my pain, I will give up. Then I will know you won’t sympathize with
me. Under the circumstances this is a mild reaction. You told me not to keep it
inside. This is what is inside. It’s not all that is inside. Also inside of me is your
heart, the sunshine you are in my life. But it has to rain sometimes. Remember I
love you.
Jacob Davis
Defendant and Bishop continued to date and in April of 1998, the two began to have sexual
relations. Bishop testified that the Defendant seemed happier, although he continued to call her late
at night or early in the morning, thinking that Creson would be at Bishop’s house. Bishop and
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Defendant attended the senior prom together in early May, and again she stated that Defendant
appeared to be happy.
On the evening of May 18, 1999, Bishop and Defendant left work at Shoney’s and went to
Wal-Mart to purchase a pregnancy test for her. While there, Bishop told the Defendant that she had
purchased a pregnancy test with Creson on a prior occasion. Upon hearing this information,
Defendant fell to the floor and began crying and shaking uncontrollably. Bishop was able to console
Defendant and the two left Wal-Mart between 10:30 and 11:00 p.m. Defendant and Bishop went
to Bishop’s house, where they had sexual relations, and Defendant left around 1:00 a.m.
The next morning, Defendant and Bishop met at Shoney’s at 7:00 a.m. and then proceeded
to take their physics final exam at 8:00 a.m. Bishop testified that the Defendant seemed to be in a
good mood. Tiffany Roberts, Defendant’s physics teacher, testified that the Defendant was joking
around with other students. Roberts further testified that the Defendant was the first to finish his
exam and that upon finishing, he asked her for some paper. The Defendant used this paper to write
Roberts a three page letter, in which he berated her style of teaching and the school system. The
Defendant further wrote about the pain he believed Roberts caused him, by discussing matters
involving his relationships with Bishop, with the victim and with other students in Roberts’ physics
class. Defendant also wrote the following in the letter that he delivered to Roberts as he left her class
at 9:45 a.m.:
* * *
If the opinions you have formed of me have been strictly based on my academic
performance I highly regret and resent that you decided to make it a personal matter.
Perhaps you knew what you were doing at the time and perhaps you did not. But you
dealt me a very devastating personal insult earlier this year by discussing my personal
life with that bastard Nicholas Creson (may his soul burn in eternal torment and the
fires of hell itself) and the entire fourth period Physics class. You were a large part
of the greatest pain I have ever known; a pain which nearly caused me to take my
own life. With the help of my family I made it through this.
Before you decide to rip at a student’s life, next time please reconsider. It might save
someone the pain that I have experienced at your hands.
During the next period, approximately 10:00 a.m., Bishop and the Defendant met to clean
out the locker that they shared. Bishop testified that, after they had finished cleaning out their locker,
the Defendant walked her to her next class. As Bishop and the Defendant were walking, Nick
Creson and Cassandra Sharp were walking behind them, when Sharp threw a penny and hit Bishop.
The Defendant heard the penny hit the floor, so he turned around to find Creson standing behind
them. Bishop testified that Creson said a few words to the Defendant, but the Defendant did not say
anything back. Following this incident, Bishop went to her class, while the Defendant went to his
drama class. In her testimony, Sharp stated that she apologized for hitting Bishop, and then she and
Creson walked to class.
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At approximately 11:30 a.m., Bishop was sitting in her pre-calculus class (which she took
with Creson), when the Defendant came to the class looking for Creson. Bishop testified that when
Creson arrived in class, the Defendant stood staring at him. Bishop stated that Defendant “had his
fists clenched beside him, straight down. Just stiff. He had his eyes like in a gaze. Just staring. He
didn’t say anything. He wouldn’t talk. He just watched [Creson] walk into class.” Again, Bishop
attempted to console Defendant. Bishop stated that she did not see Defendant anymore that day,
but later learned that he had left school.
That afternoon, Allan Higgs was sitting in shop class (at approximately 1:45 p.m.) when he
saw the Defendant back his car into a space in the parking lot by the athletic field house. The
testimony at trial showed that Creson was a football player, and every day for the past three years,
he had gone to the field house at 2:00 p.m. for seventh period practice. As the bell rang at 2:00 p.m.
for seventh period, Nick Creson walked toward the field house. Because classes were changing,
there were approximately 100-150 other students in the area surrounding Creson, including Brad
Schrimsher, who was standing directly behind Creson. Cassandra Sharp testified that as she was
walking to meet Creson (it was their custom to walk to seventh period together), she saw the
Defendant step out of his car, raise a rifle to his chest, point it at Creson and fire a shot from a
distance of approximately 30 to 40 feet. Creson fell to his knees, holding his books up as a shield
and pleading with the Defendant to stop shooting. The Defendant moved closer and fired a second
shot, which caused Creson to fall on his back. Defendant continued to approach and fired the third
and final shot down into Creson’s chest. After this final shot, the Defendant placed the gun down
and sat down on the ground near Creson’s body.
Thereafter, the police arrived and arrested Defendant. Detective Bill Wood of the
Fayetteville Police Department testified that he retrieved a box of live ammunition from the front
seat of the Defendant’s car, along with a letter written by the Defendant and addressed to “Friends,
Family, Tonya and all.” The letter stated:
I suppose when anyone reads this, I will be considered mentally insane. Those who
really know me will confirm this is not the truth. Not by my standards. I have
always believed since I was small that I do see the world through a totally unique set
of eyes. However this is not the point here. I don’t know what will happen to me
this evening. I guess this will be goodbye should something happen to myself and I
am not able to speak to those nearest to me.
Detective Wood was also given the murder weapon, a Marlin .22 caliber magnum rifle, which had
been recovered by Ricky Byrant, a teacher at Lincoln County High School. Wood further testified
that the Defendant fully complied with all of his instructions and that Defendant seemed to
understand everything that was asked of him.
The Defendant presented proof from several witnesses, who testified regarding his behavior
prior to the start of his senior year and after he began dating Tonya Bishop. Phyllis Davis,
Defendant’s mother, testified that on one occasion, the Defendant came home nervous and crying
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because he had discovered that Tonya was still having a relationship with the victim. Mrs. Davis
stated that she noticed cuts on the Defendant’s wrists, and the Defendant stated that he was at the
point of suicide. Mrs. Davis explained that she and her husband were able to calm the Defendant.
She further testified that prior to his senior year, the Defendant was a gifted straight “A” student,
active in his school, about to become an Eagle Scout and excited about going to college at
Mississippi State. Mrs. Davis told the jury that, after the Defendant began dating Tonya, he stayed
out late into the night, his grades dropped dramatically, he barely slept and was lethargic all of the
time. Mrs. Davis stated that, in the two days leading up to this tragedy, the Defendant appeared
happy and normal. She further told the jury that her husband kept about four guns in the house,
including the .22 rifle used in this case. She testified that her husband kept the .22 loaded. She also
stated that the Defendant had shot these guns prior to this shooting incident.
The Defendant presented additional testimony from Aletha Lewter, Susan Holder, Amy
Moyers and Teresa Evans, who each testified as to the changes in Defendant’s behavior and attitude
after the start of his senior year and the dating of Tonya Bishop. Further, at trial, there was no issue
as to whether the Defendant shot Nick Creson. In fact, the only contested issue at trial was
Defendant's mental state at the time of the offenses. On this point, the jury also heard testimony
from one psychologist and two psychiatrists.
Dr. William D. Kenner, a specialist in child and adolescent psychiatry, testified on behalf of
the Defendant. Dr. Kenner testified that he interviewed the appellant and reviewed numerous
records concerning the Defendant, including a report from a neuropsychologist, Dr. Pam Auble. He
concurred in Dr. Auble’s conclusion that Defendant was suffering from a severe depressive disorder.
Specifically, he opined that the Defendant was suffering from “major depression, severe, with mood
congruent psychotic features.” The doctor further explained that the Defendant had a “genetic
predisposition” for depression and mental illness, given that his father, paternal grandmother, his
maternal grandmother and his aunt, suffered from severe depression and were hospitalized at some
point for their mental illnesses. Dr Kenner explained:
[I]t is important to recognize that while -- for a week before the shooting, Jacob had
begun to hear voices, and these were voices that were talking to him in whispers. He
thought it was somebody outside of him. And the voices were saying derogatory
things to him.
***
[In] Jacob’s case, he couldn’t hear exactly what they were saying, but they were saying
bad things about him. Occasionally they would say his name. And when he was
alone and there was no possibility of anybody, you know, actually whispering, then
he -- it really scared him.
And as these events began to unfold, the voices would be loud at sometimes and more
urgent and angry and so forth, and less so in others. And they were particularly
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intense when he was at Wal-Mart and that was happening. And then they quieted
down some. They started coming back very loudly after the penny incident and so
forth.
Dr. Kenner further noted that the Defendant was experiencing, “what’s invariably called
emotional high-jacking, in which an individual is taken over by his emotions” and also auditory
hallucinations. Dr. Kenner opined that Defendant “was already out of touch with reality before th[e]
incident at Wal-Mart came up.”
Finally, Dr. Kenner opined that Defendant’s capacity to premeditatedly and intentionally
shoot Creson “was severely, very severely impaired.” Moreover, Kenner opined that mental
capacity:
is never -- I think it is never totally extinguished in anyone, but I think [Jacob] was
operating on automatic. He was severely impaired at that time.
***
And further difficulty in -- with reflecting and deliberating comes from the fact that
he was psychotic. He had difficulty distinguishing between what were his thoughts
and what were external sensory input, so that he heard these voices like as if someone
were whispering to him or about him. But these were really his thoughts. So that
grasp on reality had really slipped from him. And so that, again, has very severe
consequences when it comes to trying to think logically, because it, again, is like
thinking in a dream. You know, you just can’t put things together like they ought to
be. And that is how someone like Jacob Davis would be functioning at that time.
In rebuttal, the State presented the testimony of Dr. Sam Craddock, a psychologist employed
by the Forensic Services Division of the Middle Tennessee Mental Health Institute. According to
Dr. Craddock, the Defendant was admitted under the institute’s 30-day in-patient evaluation
procedure and was evaluated by the institute for approximately twenty-seven (27) days (April 20 to
May 17, 1999). On the basis of this evaluation and the social history compiled by Rebecca Smith,
a psychiatric social worker employed by the Forensic Services Division, Dr. Craddock opined the
that the Defendant:
was experiencing a depressive disorder at the time. Was not severe to where I
considered him to be psychotic or out of touch with reality or unable to accurately
perceive reality. Nor to an extent that he was unable to form an intent.
He conceded that he had difficulty in rendering an opinion, since the team at the institute did not
see the Defendant until eleven (11) months after the shooting incident. Dr. Craddock also opined
that any auditory hallucinations experienced by the Defendant were due to “self-imposed” or
“voluntary” sleep-deprivation. He concluded that, at the time of the murder, Defendant was capable
of forming the requisite intent for premeditated first degree murder.
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Dr. Rokeya Farooque, a psychiatrist employed by the Forensic Services Division, concurred
in Dr. Craddock's opinion that Defendant was suffering from some “depressive disorder not
otherwise specified.” Dr. Farroque opined that ‘at the time of the incident [Defendant] was not
suffering from any kind of mental disease or defect that is going to make him incapable of forming
intent.” Moreover, she rejected Dr. Auble's and Dr. Kenner's diagnoses that Defendant was suffering
from “major depression congruent with psychotic features” and that Defendant was suffering from
auditory hallucinations. Dr. Farroque explained that interviews with Defendant and his friends and
family reflected that at times the Defendant was sad and often felt bad, particularly since he was in
jail facing such serious charges. Due to Defendant’s depressive feelings, she diagnosed him as
having some “depressive disorder not otherwise specified.” She further explained that her interviews
and testing of the Defendant revealed that the Defendant only complained once about hearing
someone calling his name or whispering to him, which she did not believe was consistent with
hallucinations (i.e., “. . .when [people] hear voices and the voices talk with them continuously or
torment them, talk among themselves; argue among themselves.”).
II. ANALYSIS
A. Sufficiency of the Evidence
The Defendant argues that the evidence is insufficient to support his convictions for
premeditated first degree murder, reckless endangerment, and possession of a weapon on school
property. With respect to each of his convictions, Defendant contends that there is insufficient
evidence to support a finding that he acted with intent, because he lacked the mental capacity to form
the requisite mens rea for each conviction. The state argues that the evidence is sufficient to sustain
each of the Defendant’s convictions. Specifically as to the first degree murder conviction, Defendant
argues that he did not have the mental capacity to form the premeditation necessary to commit the
crime. We will first address the sufficiency of the evidence relating to Defendant’s capacity to form
the requisite intent for each crime, and then the sufficiency of the convicting evidence as to each
crime.
When evaluating the sufficiency of the evidence, we must determine whether “any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State
v. Keough, 18 S.W.3d 175, 180-81 (Tenn. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). We are required to afford the prosecution the
strongest legitimate view of the evidence in the record as well as all reasonable and legitimate
inferences which may be drawn from the evidence. State v. Keough, 18 S.W.3d at 181 (citing State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). Questions regarding the credibility of the
witnesses;the weight to be given the evidence; and any factual issues raised by the evidence are
resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
At trial, the Defendant did not present an insanity defense, which would have been an
affirmative defense to each of the charges. The Defendant argued that, because of his mental
condition, he lacked the requisite intent to commit first-degree murder, reckless endangerment and
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carrying a weapon on school property. However, we observe that most, if not all of the testimony
presented by the defense focused on negating the premeditation element of first degree murder. The
Defendant presented testimony from several witnesses who testified to the changes in his behavior
and attitude toward’s school and life. The Defendant also offered the testimony of Dr. Kenner, who
testified that, at the time Defendant committed these crimes, he was suffering from a severe
depressive disorder. Dr. Kenner opined that this depressive disorder “severely impaired” the
Defendant’s capacity to premeditatedly or intentionally kill the victim.
To rebut Dr. Kenner’s testimony, the State presented testimony from Dr. Craddock, who
testified that the Defendant was sleep deprived and depressed, but he was capable of forming the
requisite mens rea for premeditated first degree murder. Dr. Farroque also testified on behalf of the
State, and stated that she was of the opinion that the Defendant was not suffering from a mental
disease or defect which would have rendered him incapable of forming the requisite mens rea.
Further proof showed that the Defendant wrote a letter, in which he stated, “I suppose when anyone
reads this, I will be considered mentally insane. Those who really know me will confirm this is not
the truth.” The testimony of Tonya Bishop, Tiffany Roberts and Amy Moyers reflected that, on the
morning of the shooting, the Defendant appeared normal and was joking with other students.
The jury determined that, at the time of these offenses, the Defendant was not suffering from
any mental condition, which may have lessened his capacity to form the intent to commit the charged
offenses. A jury verdict, approved by the trial judge, accredits the witnesses for the state and
resolves any conflicts in the testimony favorably for the state. State v. Eaves, 959 S.W.2d 601, 604
(Tenn. Crim. App. 1997). The evidence was sufficient to prove, beyond a reasonable doubt, that
the Defendant had the capacity to form the requisite intent to commit premeditated first degree
murder. We also find that the proof established that the Defendant possessed the capacity to form
the requisite intent to commit the other crimes stemming from this episode -- reckless endangerment
and carrying a weapon on school property.
Having found that the Defendant was of sufficient mental capacity to form the required intent
for the crimes charged, we next determine whether the State presented sufficient proof to establish
that Defendant committed these crimes beyond a reasonable doubt. We find that the proof was
sufficient.
1. Premeditated First Degree Murder
First degree murder is defined as “[a] premeditated and intentional killing of another.” Tenn.
Code Ann. § 39-13-202(a)(1) (1997). 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-
106(a)(18) (1997). “‘[P]remeditation’ is an act done after exercise of reflection and judgment.”
Tenn. Code Ann. § 39-13-202(d) (1997). The statute further provides that “[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. Yet, while premeditation requires that “the intent to kill must have been
8
formed prior to the act itself,” “[i]t 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) (1997).
Moreover, the element of premeditation is a question for the jury which may be inferred from
the circumstances surrounding the killing. State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App.
1993). Tennessee courts have delineated several circumstances that may be indicative of
premeditation, including the use of a deadly weapon upon an unarmed victim, Bland, 958 S.W.2d
at 660, facts from which motive may be inferred, State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim.
App. 1995), and calmness immediately after the killing, Bland, 958 S.W.2d at 660.
It is uncontested that the Defendant harbored feelings of jealousy and hatred for Nick Creson,
which were shown through the letters Defendant wrote to Tonya Bishop and his teacher, Tiffany
Roberts. In the letter written to Bishop, Defendant specifically stated that he wanted to “hear
[Creson’s] skin sear and pop under fire.” Defendant also stated that he wanted “to put a three inch
diameter hole in [Creson’s] chest from a 12 gauge.” Detective Bill Wood testified that he retrieved
a Marlin .22 caliber magnum rifle from the crime scene. The proof further established that
Defendant fired the rifle from thirty to forty feet away, then again from fifteen feet away. Finally,
while the victim pleaded for his life, Defendant shot him at close range in the chest. Dr. Charles
Harlan, the medical examiner, testified that the victim died from three gunshot wounds-- two shots
to the chest and one to the abdomen. Based on this evidence, a reasonable jury could have concluded
that the Defendant intentionally and with premeditation killed Nick Creson.
2. Reckless Endangerment
The evidence is also sufficient to support a conviction of reckless endangerment. Reckless
endangerment occurs when a person “recklessly engages in conduct which places or may place
another person in imminent danger of death or serious bodily injury” and is a felony when committed
with a deadly weapon. Tenn. Code Ann. § 39-13-103. A person acts recklessly when he is aware
of, but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the
result will occur. Tenn. Code Ann. § 39-11-302(c). “The risk must be of such a nature and degree
that its disregard constitutes a gross deviation from the standard of care that an ordinary person
would exercise under the circumstances as viewed from the accused person's standpoint.” Id.
In this case, in order to support the conviction for reckless endangerment, the proof must
show that Defendant acted recklessly by firing shots into a crowd of students and that Defendant’s
conduct placed or could have placed other students in imminent danger of death or serious bodily
injury. Tenn. Code Ann. § 39-13-103(a). The evidence presented shows that at the time of the
shooting, students at Lincoln County High were changing classes. Also, the record reflects that the
shooting occurred in the parking lot, and that approximately 100 to 150 students were in this parking
lot area at the time of the shooting. Brad Schrimsher testified that he was approximately thirty to
forty feet directly behind Creson when the Defendant fired the first shot. After this shot, Schrimsher
felt a burning sensation on his face and experienced a small amount of bleeding. Dr. Harlan testified
that the two gunshot wounds to the victim’s chest passed through the victim’s body; one shot exited
9
through the victim’s back shoulder blade. Thus, it can reasonably be inferred that one of the two
exiting bullets grazed Schrimsher’s face. The Defendant was aware of the other students within the
proximity of the shooting, but consciously disregarded the possibility of bodily injury or death to any
of these students. Therefore, based upon the evidence, we find that the proof was sufficient to
convict the Defendant of reckless endangerment.
3. Carrying a Weapon on School Property
The evidence was sufficient to support the Defendant’s conviction for carrying a weapon on
school property. Tennessee Code Annotated section 39-17-1309 (b) specifically states that:
(1) It is an offense for any person to possess or carry, whether openly or
concealed, with the intent to go armed, any firearm, . . . . on any public or
private school campus, grounds, recreation area, athletic field or any other
property owned, used or operated by any board of education, school, college
or university board of trustees, regents or directors for the administration of
any public or private educational institution.
(2) A violation of this subsection is a Class E felony.
Intent may be inferred from both direct and circumstantial evidence. State v. Washington, 658
S.W.2d 144, 146 (Tenn. Crim. App. 1983). The necessary intent to support a conviction for carrying
a weapon with the intent to go armed may be proven by circumstances surrounding the carrying of
the weapon. See Cole v. State, 539 S.W.2d 46, 49 (Tenn. Crim. App. 1976); Bennett v. State, 530
S.W.2d 788, 792 (Tenn. Crim. App. 1975). The purpose of going armed should be gathered from
the facts of each particular case. Hill v. State, 298 S.W.2d 799 (Tenn. 1957).
At trial, the proof showed that the Defendant left school and went to his home to retrieve the
firearm. Then, the Defendant returned to the school with the gun. The Defendant got out of his car
with the gun and approached the victim. As he neared the victim, the Defendant began shooting.
The final shot was at close range. Then, the Defendant sat next to the victim’s body with the gun
on the ground next to him. There was overwhelming proof that the Defendant carried the weapon
on school property with the intent to go armed.
B. Failure to Excuse Jurors for Cause
The Defendant contends the trial judge erred in failing to excuse six (6) potential jurors who
stated they could not consider mitigating evidence, specifically, evidence of Defendant’s mental state
at the time of the shooting. We disagree.
From the record, it appears that defense counsel waived this issue at the motion for a new
trial. The transcript reflects the following colloquy:
The Court: Do you wish to address all of the issues which you have raised?
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Mr. Fraley [Defense Counsel]: That is the argument for each and every one of
them, Judge.
The Court: I also note that there is error cited on certain jurors.
Mr. Fraley: On the 3 or 2?
Mr. McCown [Prosecutor]: 6 of them.
The Court: In your motion filed on August 13th apparently you feel that error was
committed in not excusing six.
Mr. Fraley: I am waiving that, Judge. As it turned out I don’t think it has merit.
The Court: All right. Apparently Mr. Fraley is relying at least in this court in his
argument primarily upon the sufficiency of the evidence.
Since defense counsel opted not to raise this issue at the motion for new trial, the issue is
waived and cannot be raised for the first time on appeal. See Tenn. R. App. P. 3(e); see also State
v. Zonge, 973 S.W.2d 250, 257-58 (Tenn. Crim. App. 1997). Even absent waiver of this issue, we
find that the trial court properly qualified the six potential jurors. Initially, these six potential jurors
stated they would have trouble considering certain mitigating evidence. However, the trial judge
asked them additional questions, and each responded that he or she could follow the law and
appropriately weigh the evidence presented in this case. The trial court accepted the potential jurors’
answers and found them to be qualified. See State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993)
(finding that the qualification of prospective jurors is within the sound discretion of the trial court).
Further, the record reflects that five (5) of the potential jurors, while not stricken for cause, were
removed by the Defendant’s use of his peremptory challenges. The trial court’s decision to not
exclude the remaining juror, Lakisha Greenberg, was not an abuse of discretion.
The judgment of the trial court is AFFIRMED.
___________________________________
THOMAS T. WOODALL, JUDGE
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 18, 2000
STATE OF TENNESSEE v. JACOB LEE DAVIS
Direct Appeal from the Circuit Court for Lincoln County
No. S-9800087 Charles Lee, Judge
No. M1999-02496-CCA-R3-CD
JUDGMENT
Came the Appellant, Jacob Lee Davis, by and through counsel, and also came the Attorney
General on behalf of the State, and this case was heard on the record on appeal from the Circuit
Court of Lincoln County; and upon consideration thereof, this court is of the opinion that there is no
reversible error in the judgment of the trial court.
It is, therefore, ordered and adjudged by this court that the judgment of the trial court is
affirmed, and the case is remanded to the Circuit Court of Lincoln County for execution of the
judgment of that court and for collection of costs accrued below.
Because it appears to the court that the Appellant, Jacob Lee Davis, is indigent, costs will be
paid by the State of Tennessee.
PER CURIAM
Thomas T. Woodall, Judge
Jerry L. Smith, Judge
Robert W. Wedemeyer, Judge
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