State v. Andrew Cole ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1988 SESSION
FILED
September 22, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) CCA NO: 02C01-9712-CC-00461
Appellee, )
) GIBSON COUNTY
VS. )
) Dick Jerman, Jr., Judge
)
ANDREW COLE, ) (Attempted First Degree Murder -
) 1 Count; Attempted Second Degree
Appellant. ) Murder - 1 Count)
FOR THE APPELLANT: FOR THE APPELLEE:
Clifford K. McGown, Jr. John Knox Walkup
113 North Court Square Attorney General & Reporter
P.O. Box 26
Waverly, TN 37185 Clinton J. Morgan
(Appeal Only) Counsel for the State
425 Fifth Avenue North
Tom W. Crider 2nd Floor, Cordell Hull Building
District Public Defender Nashville, TN 37243-0493
107 South Court Square
Trenton, TN 38382 Clayburn Peeples
(Trial and Of Counsel on Appeal) District Attorney General
Larry Hardister
Assistant District Attorney General
110 South College Street, Suite 200
Trenton, TN 38382
OPINION FILED:
AFFIRMED
Robert W. Wedemeyer,
Special Judge
OPINION
On September 16, 1997, the appellant, Andrew Cole, was convicted by a jury of one
count of attempted first degree murder, one count of attempted second degree murder,
one count of aggravated assault and one count of unlawful possession of a firearm. In this
appeal, the appellant’s sole complaint is that the evidence was insufficient to support either
the attempted first degree murder or attempted second degree murder convictions.
Following our review of the evidence, we affirm the convictions.
FACTS
The testimony at trial revealed that one year prior to being released from prison, the
appellant learned that his wife, Tammy Cole, was living with Johnny Crayton. According
to Ms. Cole, the appellant had said upon his release from prison he was going to kill Cole
and Crayton. When the appellant was released from prison, he and Ms. Cole sporadically
dated each other. However, Ms. Cole was still seeing Mr. Crayton.
On the night of December 19 and on the morning of December 20, 1996, the
appellant again threatened to kill both Cole and Crayton. On the afternoon of December
20, Corwyn Williams gave the appellant a ride to Milan Box Company. The appellant told
Williams that he wanted to pick up his wife who worked at the factory. At 3:30 p.m. that
afternoon Ms. Cole had finished her shift at the factory and came out of the building with
her uncle, John Hannah. The two proceeded to Mr. Crayton’s automobile when the
appellant jumped out of Williams’ vehicle, pulled out a gun and ran toward Mr. Crayton’s
automobile. When he reached the vehicle, he began shooting into it.
The first bullet came through the windshield and hit Mr. Crayton in the chest.
Another bullet hit Ms. Cole in the leg while yet another shot hit Mr. Crayton in the back of
the neck. The appellant shot Ms. Cole a second time in the leg. When the automobile
eventually came to rest in a ditch, the appellant fired a final shot before fleeing. Although
Mr. Hannah was not shot, a bullet passed through the rear passenger window.
Officer Jerry Hartsfield arrived on the scene where he determined that one shot had
been fired through the front windshield in front of the driver, one shot had gone through the
left rear passenger window and three shots had gone through the window at the driver’s
door. After retrieving the bullets that had been removed from Ms. Cole’s body, Hartsfield
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took them and the gun to the crime lab. Lab results indicated that the recovered gun was
used to shoot Cole and Crayton. The appellant was found hiding under his girlfriend’s bed.
A .38 semi-automatic pistol was found under the mattress.
The appellant testified that he was married to Ms. Cole when the incident occurred.
He explained that he did not know that Mr. Crayton would be at the factory when he went
to the factory to talk to Ms. Cole. The appellant said that, although he had not planned to
take any action, he “freaked out” when he saw Ms. Cole get in Crayton’s car. The
appellant explained that he carried a weapon daily after an earlier incident in which he was
shot. On cross-examination the appellant admitted that he had two convictions of
aggravated assault and one reckless endangerment. He also admitted that he had
threatened two or three times to kill Ms. Cole; however, he had not gone to the factory with
the purpose of hurting anyone.
On rebuttal, Officer Terry Jones testified that prior to the incident the appellant had
told him that he was “about ready to return to the pen.” He added that if he did return to
prison, it would be because he had shot his wife and her boyfriend.
LEGAL ANALYSIS
The appellant’s only complaint is that the evidence was insufficient to support his
convictions of attempted first degree murder and attempted second degree murder.
When the sufficiency of the evidence is challenged, the standard of review is
whether, after viewing the evidence in the light most favorable to the state, 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, 318 (1979); State v. Evans, 838 S.W.2d 185, 190-91
(Tenn. 1992). On appeal, the state is entitled to the strongest legitimate view of the
evidence and all reasonable or legitimate inferences which may be drawn therefrom. State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This Court will not reweigh the evidence,
reevaluate the evidence, or substitute its evidentiary inferences for those reached by the
jury. State v. Carey, 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995).
In a criminal trial, great weight is given to the result reached by the jury. State v.
Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995). Once approved by the trial court,
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a jury verdict accredits the witnesses presented by the state and resolves all conflicts in
favor of the state. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). A jury’s guilty
verdict removes the presumption of innocence enjoyed by the defendant at trial and raises
a presumption of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The
defendant then bears the burden of overcoming this presumption of guilt on appeal. State
v. Black, 815 S.W.2d 166, 175 (Tenn. 1991).
The appellant’s primary argument is that the evidence was insufficient to prove the
mental state required for either attempted first or second degree murder. Instead, he
argues that the evidence points to attempted voluntary manslaughter.
A. Attempted First Degree Murder
In order to convict the appellant of attempted first degree murder, the State was
required to prove that the appellant, acting with the kind of culpability otherwise required
for this offense acted “with intent to cause a result that is an element of the offense, and
believes the conduct will cause the result without further conduct on the person’s part “ and
that the result intended was the “premeditated and intentional killing of another.” Tenn.
Code Ann. §§ 39-12-101(a) and 39-13-202(a)(1) (1997).
Viewing the evidence in the light most favorable to the State, the evidence showed
that the appellant threatened to kill Ms. Cole on more than one occasion. In fact, he
renewed his threat the evening before the incident and again on the morning of the
incident. With a gun on his person, the appellant asked someone to transport him to the
factory where Ms. Cole worked. When Ms. Cole exited the building, the appellant ran
toward her and fired shots into the car. The appellant paused and shot again. When the
vehicle came to rest in a ditch, the appellant ran over to it and shot at least twice more.
The State had the burden of proving the element of premeditation. Premeditation
necessitates “the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-
201(b)(2). Premeditation includes instances of homicide committed by poison or lying in
wait and requiring a previously formed design or intent to kill. State v. West, 844 S.W.2d
144, 147 (Tenn. 1992).
The proof set out above indicates that the appellant threatened the victim on at least
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three occasions. In addition, the appellant carried a gun with him to the factory on the
afternoon of the incident. Further, the appellant ran toward the vehicle and fired shots into
it. Witnesses testified that the appellant returned to fire additional shots. This evidence
clearly supports the mental elements necessary to prove attempted first degree murder.
The appellant argues that the proof supports his position that he went to the factory
to talk with the victim. It was only when he saw the victim getting into Crayton’s car that
he “lost it.” Further, he claims that he possessed the gun merely for self defense against
another individual. These assertions are merely challenges to the credibility of the
witnesses. Such a determination can only be made by the jury. Here, the jury accredited
the State’s testimony. On appeal, we will not reweigh the evidence or judge credibility.
Accordingly, this issue has no merit.
B. Attempted Second Degree Murder
The appellant also challenges the jury’s verdict finding him guilty of the attempted
second degree murder of Mr. Crayton. Although his attack is somewhat general, it appears
that he is contending that the mental element required for attempted second degree
murder was not supported with sufficient evidence. Instead, he insists that the proof clearly
showed a passionate and impulsive.
To support a conviction of attempted second degree murder, the proof must
establish that the appellant knowingly attempted to kill Crayton, without adequate
provocation and with the belief that his conduct would result in Crayton’s death without
further conduct on his part. State v. Belle, No. 03C01-9503-CR-00094 (Tenn. Crim. App.
Mar. 6, 1996).
The testimony revealed that the appellant knew while in prison that Ms. Cole was
sleeping with Mr. Crayton. Further, upon his release from prison, he knew that Ms. Cole
continued to see Mr. Crayton. In fact, the appellant was also seeing someone else. The
appellant had included Mr. Crayton in his death threats made to Ms. Cole on at least three
occasions. On the afternoon of the incident, the appellant carried a gun with him to the
factory where his wife worked. As Ms. Cole exited work that date and proceeded to
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Crayton’s vehicle, the appellant ran toward the vehicle and fired shots into the window
closest to Crayton. When the car came to a rest in the ditch, the appellant paused and
walked back to the vehicle and fired additional shots. He successfully hit Mr. Crayton with
two of his shots resulting in a lengthy hospital stay.
This record is clear that the appellant acted knowingly. Further, the proof fails to
support adequate provocation. Although he knew Crayton was sleeping with Ms. Cole, the
appellant’s knowledge was long held. He knew while in prison and when he was released.
Nothing in the record indicates that some event happened on the day in question to supply
the provocation and impulsiveness to reduce his actions to attempted voluntary
manslaughter. Again, most of appellant’s complaints are credibility challenges. These
were resolved by the jury in favor of the State. We will not usurp that role. This issue is
similarly without merit.
CONCLUSION
Because this Court has found that the evidence was sufficient to support both
convictions, the appellant’s issues are without merit. Accordingly, the judgment of the trial
court is AFFIRMED.
ROBERT W. WEDEMEYER,
Special Judge
CONCUR:
JOE G. RILEY, Judge
CURWOOD W ITT, Judge
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