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State v. Hammock10/12/2001
an argument over Defendant's failure to pay for his share of the beer they were consuming. After the victim shoved Rollins over the couch, the Defendant immediately assaulted the victim with his knife handle. Although the State argues that the repeated blows were evidence of premeditation, our supreme court has held that "the fact repeated blows were inflicted upon the victim is not sufficient, by itself, to establish first-degree murder." State v. Brown, 836 S.W.2d at 542. "Repeated blows can be delivered in the heat of passion, with no design or reflect." Id.
Because the trier of fact cannot speculate as to what was in the killer's mind, the existence of facts of premeditation must be determined from the Appellant's conduct in light of the surrounding circumstances. State v. Wright, No. 01C01-9503-CC-00093 (Tenn. Crim. at Nashville, Jan. 5, 1996). The State bears the burden of demonstrating some affirmative evidence to support a finding of premeditation. Brown, 836 S.W.2d at 530. By all accounts, the proof in the record reveals that the intent to assault was formed in passion, i.e., the Appellant reacted to the victim striking Rollins immediately following a dispute over money for the purchase of beer. There was no proof in the record that the Appellant had formed a design or intent to kill the victim prior to his assault. To the contrary, the assault proceeded to a conclusion without any intervening or dispassionate reflection. It was only after the victim's throat was slit that the assault ended. In Brown, our Supreme Court stated:
t has been held several times that the purpose need not be deliberated upon any particular length of time - it is enough if it precede the act, but in all such cases the purpose must be cooly formed, and not in passion, or, if formed in passion, it must be executed after the passion has had time to subside . . . f the purpose to kill is formed in passion . . . and executed without time for the passion to cool, it is not murder in the first degree, but murder in the second degree. State v. Brown, 836 S.W.2d at 539 (quoting Rader v. State, 73 Tenn. 610, 619-20 (1880)).
Based upon these facts, we conclude that there is insufficient evidence to support the jury's findings of premeditation. Accordingly, the Appellant's conviction of first-degree murder cannot stand.
Again, once a homicide has been established, it is presumed to be second-degree murder. State v. Brown, 836 S.W.2d at 543. Tennessee Code Annotated § 39-13-210 (1991) defines second-degree murder as, "a knowing killing of another." Clearly, under the facts of this case, the Appellant acted "knowingly" with an awareness that his repeated and forceful blows to the head and body of the victim were reasonably certain to produce death. Tenn. Code Ann. § 39-11-106(20). We conclude that there is evidence to support "knowing" conduct, and, therefore, a second-degree murder conviction.
CONCLUSION
For the reasons set forth above, we reverse the Appellant's conviction for first-degree murder and modify the judgment of the trial court to reflect his conviction of murder in the second-degree. Accordingly, we remand this case to the trial court for entry of a judgment of conviction in accordance with this opinion and for re-sentencing consistent with the principles of sentencing.
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