State v. Marcus Velez

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
DECEMBER 1997 SESSION
January 30, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9611-CC-00488
Appellee, )
) Montgomery County
V. )
) Honorable John H. Gasaway, Judge
MARCUS A. VELEZ, )
) (First Degree Murder)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
Michael R. Jones John Knox Walkup
District Public Defender Attorney General & Reporter
110 Sixth Avenue, West
Springfield, TN 37172 Daryl J. Brand
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
John Wesley Carney, Jr.
District Attorney General
Steven L. Garrett
Helen O. Young
Assistant District Attorneys General
204 Franklin Street, Suite 200
Clarksville, TN 37040
OPINION FILED: _______________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Marcus A. Velez, was convicted by a jury of first degree
murder. Montgomery County Circuit Court Judge John H. Gasaway sentenced
the appellant to life in prison. On appeal, the appellant presents five issues for
our review:
1. Whether the evidence of premeditation and deliberation is
sufficient to support the jury’s verdict.
2. Whether the trial court erred in admitting photographs of the
victim’s body.
3. Whether the judge improperly instructed the jury on the
punishment for first degree murder.
4. Whether the trial court erred in admitting the appellant’s
statements into evidence.
5. Whether the trial court erred in permitting the state to question
witness Michael Bowers about his plea agreement with the
state.
After carefully reviewing the record before us, we affirm the appellant’s
conviction.
On Saturday morning, March 4, 1995, the appellant, seventeen-year-old
Marcus Velez; sixteen-year-old Mike Bowers; a fourteen-year-old friend of the
appellant whom we will refer to as “the minor;” and the victim, eighteen year-old
Kenneth Battisti, drove to the Bowers’ family farm outside of Clarksville. Upon
arrival, the appellant shot the victim twice in the back. Both Bowers and
appellant were charged. Bowers entered into a plea agreement with the state.
The appellant went to trial for first degree murder.
The evidence revealed that Bowers and the minor were good friends of
the appellant. The appellant had been a friend of the victim. All the boys were
involved in a martial arts club at a local recreation center. The appellant and the
victim had a falling out of some sort. The victim made disparaging remarks
about the appellant’s martial arts ability and criticized the appellant for the way
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he treated his mother. The appellant told Bowers and the minor that he was
going to kill the victim and bury the body. The minor testified that the appellant
made up a story to lure the victim to the Bowers’ farm and kill him. The appellant
told the victim that he could make some money for helping out at the Bowers’
farm Saturday morning.
On Friday, March 3, the appellant and the minor went to Bowers’ house
and took a rifle and ammunition to target practice. Bowers later joined them.
The minor testified that while shooting at some boards, the appellant stated that
the bullets would go straight through the victim just as they went straight through
the wood. Later that day, the appellant and the minor went to Buddy Newman’s
house where the appellant stated that he was tired of the victim’s “bullshit” and
that he, the appellant, was going to take care of it. The appellant told Bowers
and the minor that the victim did not deserve to live.
The appellant took the minor home and Bowers spent the night with the
appellant. The next morning, the appellant and Bowers picked up the minor and
the three went to the recreation center for a scheduled sparring match. When no
one showed, the appellant drove to Newman’s house looking for the victim.
Newman said that the victim was at Josh Carrier’s house. The appellant went to
Josh’s house and told Josh and Jamie Donegan that he needed the victim to
work on the farm.
The appellant, Bowers, the minor, and the victim drove to the Bowers’
farm in the appellant’s car. The appellant had Bowers’ rifle and ammunition.
When they arrived, the appellant told the minor and Bowers to get out of the car.
The appellant and the victim drove several hundred yards into the farm property
and got out of the car. The appellant shot the rifle at a tree. Upon hearing the
shot, Bowers and the minor began running toward the appellant. When they saw
the victim standing, they slowed to a walk. The appellant then shot the victim in
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the back. Bowers and the minor ran to the scene where they found the victim
wheezing and groaning on the ground. The minor testified that the appellant
then asked, “Do you want me to shoot him one more time for good luck?” The
appellant shot the victim again in the back.
The appellant laid some brush over the victim, and the three went to the
appellant’s grandfather’s house to get tools to bury the victim. They returned to
the farm and buried the victim in a shallow grave. Some of the residents in an
adjoining field watched the boys through binoculars. The boys returned the
tools, the rifle, and the ammunition. Later, the appellant told his mother and
Josh Carrier that he had taken the victim to the airport because the victim had
personal problems and wanted to run away from home.
In his first issue, the appellant argues that the evidence of premeditation
and deliberation is insufficient to support the jury’s verdict. When an appellant
challenges the sufficiency of the evidence, this Court must determine whether,
after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of a crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Tenn. R. App. P.
13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The weight and credibility
of a witness’ testimony are matters entrusted exclusively to the jury as the triers
of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984); Byrge v. State, 575
S.W.2d 292 (Tenn. Crim. App. 1978). On appeal, the state is entitled to both the
strongest legitimate view of the evidence and all reasonable inferences which
may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).
Moreover, guilty verdicts remove the presumption of innocence, enjoyed by
defendants at trial, and replace it with a presumption of guilt. State v. Grace,
493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry the burden of
overcoming a presumption of guilt when appealing jury convictions. Id.-4-
A jury found the appellant guilty of murder in the first degree, which at that
time was defined as “[a]n intentional, premeditated and deliberate killing of
another.” Tenn. Code Ann. § 39-13-202 (Supp. 1994). A premeditated act is
“one done after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-
13-201(b)(2) (1991). A deliberate act is “one performed with a cool purpose.”
Tenn. Code Ann. § 39-13-201(b)(1). Several factors which can support the
findings of premeditation and deliberation include the use of a deadly weapon on
an unarmed victim, declarations of a defendant of an intent to kill, evidence of
the procurement of a weapon, preparations for the concealment of the crime,
and calmness immediately after the killing. State v. Bland, No. 02-S01-9603-CR-
00032 (Tennessee Supreme Court at Jackson, filed December 1, 1997).
The appellant cites to evidence that the shooting occurred during a state
of passion which, he argues, proves the lack of premeditation and deliberation.
Bowers testified that the appellant and the victim were extremely angry and that
they may have been fighting. Bowers also testified that the appellant was acting
very weird and unlike his normal self. The appellant cites to his own statement in
which he described himself as very angry and described the shooting as “just
then, I shot him.”
The evidence is sufficient to support the jury verdict of first degree murder.
The evidence of premeditation and deliberate is substantial. The appellant made
statements before the murder that he was going to kill the victim. He devised a
plan to lure the victim to the Bowers’ farm. He went target shooting. He shot an
unarmed victim twice in the back. He calmly buried the victim in a businesslike
fashion and then fabricated a story to cover up the crime. Statements of intent to
kill are evidence of premeditation as are statements such as “I am going to bury
the body where no one will find it” and “Do you want me to shoot him one more
time for good luck?”
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The appellant next argues that the trial court erred in admitting
photographs of the victim’s body. He contends that the only issue on which
these photos could have been probative was whether the killing was
premeditated and deliberate. The appellant argues that the prejudicial effect of
the photos exceeded their probative value because other evidence established
that the appellant shot the victim twice in the back. Over the objection of the
appellant, the trial court admitted two photographs of the victim through the
testimony of the medical examiner, Dr. Charles Harlan. The trial court ruled that
the photos were probative and corroborative of Dr. Harlan’s testimony that the
victim died of gunshot wounds. The photographs show the bullet entry wounds
to the victim’s back and the bullet exit wounds to the victim’s chest.
Whether to admit photographs is within the sound discretion of the trial
court and will not be reversed on appeal absent a clear showing of an abuse of
discretion. State v. McCary, 922 S.W.2d 511, 515 (Tenn. 1996); State v. Evans,
838 S.W.2d 185, 194 (Tenn. 1992); State v. Banks, 564 S.W.2d 947, 949 (Tenn.
1978). To be admissible, the photograph must be relevant and probative to
some issue at trial. Tenn. R. Evid. 401; McCary, 922 S.W.2d at 515. Even if
relevant, the photograph may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. Tenn R. Evid. 403; McCary, 922
S.W.2d at 515.
The manner in which the victim was killed is relevant to the issues of
premeditation and deliberation. Banks, 564 S.W.2d at 949-50. The appellant
contended at trial that the killing was of a lesser degree than murder.
Photographs showing that the victim was shot twice in the back are relevant and
probative evidence of premeditation and deliberation. Further, as asserted by
the state and found by the trial court, the photos are illustrative aids to Dr.
Harlan’s testimony. The probative value of the photographs, taking into
consideration other evidence that the victim was shot twice in the back, is not
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substantially outweighed by any prejudicial effect that they may have had on the
jury. The photographs are not gruesome or shocking as suggested by the
appellant. The body was not in an altered condition. The photographs show
only the victim’s back and chest. The photos do not show the victim’s head and
show very little, if any, blood around the victim’s wounds. We find no reversible
error regarding the trial court’s decision to admit the photographs into evidence.
The appellant next argues that the judge improperly instructed the jury on
the punishment for first degree murder. The appellant argues that the trial court
should have instructed the jury that if the appellant was sentenced to life
imprisonment that he would serve a minimum of twenty-five years in prison
before being eligible for parole consideration. Tennessee Code Annotated §§
39-13-204(e)(2) & -207(a) (Supp. 1995) provide in relevant part that in a first
degree murder case in which the state seeks the punishment of death or life
without the possibility of parole, the trial court must instruct the jury that a
defendant who is sentenced to life imprisonment shall not be eligible for parole
until the defendant has served twenty-five full calendar years of such sentence.
In the case at bar, the state did not file a notice of intent to seek the death
penalty or life without the possibility of parole. Therefore, the court was not
required under these sections to so instruct the jury. When no such notice is
filed and the defendant is found guilty of first degree murder, the court imposes
the sentence of life imprisonment. Tenn. Code Ann. § 39-13-208(c) (Supp.
1995).
The appellant also cites Tennessee Code Annotated § 40-35-201(b)(1)
(Supp. 1995) which provides: “[i]n all contested criminal cases, except for capital
crimes which are governed by the procedures contained in 39-13-204 and 39-13-
205, upon the motion of either party, filed with the court prior to the selection of
the jury, the court shall charge the possible penalties for the offense charged and
all lesser included offenses.” As the state points out, the appellant never filed a
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motion requesting the court to instruct the jury on applicable penalties for first
degree murder and all lesser included offenses. Therefore, the trial court was
not required by this section to instruct the jury. This issue is without merit.
The trial court’s instruction to the jury on the applicable penalties benefits
the appellant. The court instructed the jury that the punishment for first degree
murder was life imprisonment; for second degree murder, not less than fifteen
years and not more than sixty years incarceration; and for voluntary
manslaughter, not less than three years and not more than fifteen years
incarceration. In State v. Cook, 816 S.W.2d 322 (Tenn. 1991), our Supreme
Court observed that the jury’s knowledge of how lengthy a sentence generally
inures to the benefit of the defendant. Here, the jury was most likely left with the
impression that the defendant would never be eligible for parole if convicted of
first degree murder. It seems to this Court that the jury would have considered
the sentence for first degree murder, life imprisonment, as a much harsher
sentence than if the judge had informed the jury that the appellant would be
eligible for parole in twenty-five years.
The appellant next argues that the trial court erred in admitting his
statements into evidence. The appellant made statements at the time of his
arrest and gave a videotaped statement approximately one hour later. The
appellant filed a motion to suppress his statements as involuntary because he
was not informed of his constitutional rights. At the suppression hearing, the trial
court found that the appellant’s statements at the time of his arrest were
spontaneous and not the result of questioning by the police. The court further
found that the appellant was fully advised of his constitutional rights before giving
the videotaped statement and that he made a knowing and intelligent waiver of
his rights.
A trial judge’s factual findings on a motion to suppress must be affirmed
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on appeal unless the evidence preponderates otherwise. State v. Tuttle, 914
S.W.2d 926, 931 (Tenn. Crim. App. 1995). The credibility of witnesses is for the
judge as trier of fact. Id. The evidence at the suppression hearing consisted
primarily of the testimony of the arresting officer Detective Cliff Smith and the
appellant. Detective Smith testified that he arrested the appellant for murder at
approximately 9 p.m. on Sunday night. Detective Smith testified that he advised
the appellant that he had the right to remain silent, that he had the right to an
attorney, and that if he could not afford an attorney that one would be appointed
to him. Detective Smith failed to inform the appellant that anything that the
appellant said could be used against him at trial. Detective Smith testified that
thereafter the appellant stated that he had “the gun.” Smith asked, “You have
the gun?” The appellant replied, “No, Joey has the gun.” When the appellant’s
roommate started to call Joey, the appellant told her to stop calling because Joey
did not have the gun. The appellant then said that he did not want to talk
anymore. Detective Smith testified that at that point he stopped all questioning.
Several moments later, the appellant told Detective Smith, “I want to talk to you.”
Detective Smith thought that the appellant meant that he wanted to talk to the
detective out of the presence of the other officers so he moved the appellant
down the hallway. Detective Smith told the appellant that he would do what he
could do to help him. The appellant said that he shot the victim because the
victim had said certain things about the appellant. The appellant testified that
Detective Smith read him his rights and then immediately asked where is the
gun. The appellant testified that Detective Smith then said, “We can help you,
let us help you.” The appellant testified that it was only then that he asked the
Detective Smith if he could talk to him. Shortly thereafter the appellant was
taken to the criminal justice center where he was read his rights and where he
signed the standard admonition and waiver form. The appellant stated on the
videotape that he understood his rights and that he wished to waive them. At
approximately 9:48 p.m. the appellant gave a videotaped statement.
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In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme
Court formulated warnings that must be given to a suspect before the
commencement of custodial interrogation. Miranda requires law enforcement
officers to warn suspects that they have the right to remain silent; that anything
said can and will be used against them in court; that they have the right to
consult with a lawyer and to have the lawyer with them during interrogation; and
that if they cannot afford one, then one will be appointed. The need for Miranda
warnings, however, is limited to custodial interrogations. Any statement given
voluntarily without any compelling influences is admissible in evidence whether
or not Miranda warnings are given first. State v. Brown, 664 S.W.2d 318, 320
(Tenn. Crim. App. 1984). The fundamental import of the privilege while an
individual is in custody is not whether he or she is allowed to talk to the police
without the benefit of warnings and counsel, but whether he or she can be
interrogated. Miranda, 384 U.S. at 478. Volunteered statements of any kind are
not barred by the Fifth Amendment. Id.; see also State v. Goodman, No.
01C01-9512-CC-00423 (Tenn. Crim. App. at Nashville, filed March 13, 1997);
State v. Chambless, 682 S.W.2d 227 (Tenn. Crim. App. 1984);
We find no merit to this issue. The trial court’s duty was to assess the
credibility of the appellant and Detective Smith at the suppression hearing. The
judge accredited the testimony of Smith. The appellant’s statements were not
elicited through custodial interrogation but rather were voluntary. Thus, Detective
Smith’s failure to advise the appellant at the time of the arrest that anything said
could be used against him in court was not fatal to the admission of the
statements because the statements were voluntary. Furthermore, the appellant
was fully advised of his constitutional rights before giving his videotaped
statement. The appellant stated on the video that he was informed of and
understood his constitutional rights. The appellant signed a waiver of rights form
voluntarily waiving his rights before he was interrogated by Detective Smith.
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Finally, the appellant argues that the trial court erred in permitting the
state to question witness Michael Bowers about his plea agreement. Bowers
agreed to testify truthfully in exchange for the state’s recommendation that the
court accept his plea of guilty to facilitation of first degree murder. The appellant
argued in the trial court that this testimony was prejudicial because it suggested
a predetermination of first degree murder. The appellant argued that the
testimony violated the jury’s duty to determine the degree of murder committed.
The trial court shared the appellant’s concern but held that the terms of the
agreement were admissible because the plea agreement was not an
adjudication but rather a suggestion to the court. At trial, the state elicited
testimony that Bowers had been charged with first degree murder and that, in
exchange for his truthful testimony, the state would allow him to plead guilty to
facilitation of first degree murder. The court quickly corrected the state, saying
that the plea agreement was a recommendation to the court. The state further
clarified this for the jury saying that the state had agreed to the plea agreement,
subject to the court’s approval. Bowers’ agreement with the state was relevant to
the issue of Bowers’ credibility. The risk of unfair prejudice to the appellant did
not substantially outweigh the probative value of Bowers’ testimony. This issue is
without merit.
CONCLUSION
After careful consideration of the issues presented by the appellant, we
affirm his conviction of first degree murder.
_____________________________
PAUL G. SUMMERS, Judge
CONCUR:
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______________________________
JOSEPH B. JONES, Presiding Judge
______________________________
WILLIAM M. BARKER, Judge
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