State v. James Nichols

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED APRIL SESSION, 1998 August 12, 1998

Cecil W. Crowson Appellate Court Clerk STATE OF TE NNE SSE E, ) C.C.A. NO. 01C01-9704-CR-00158 ) Appellee, ) ) DAVIDSON COUNTY V. ) ) ) HON. THOMAS H. SHRIVER, JUDGE JAMES C. NICHOLS, ) ) Appe llant. ) (FIRST DEGREE MURDER)

FOR THE APPELLANT: FOR THE APPELLEE:

KARL DEAN JOHN KNOX WALKUP District Public Defender Attorney General & Reporter

JEFFREY A. DeVASHER TIMO THY F . BEHAN Assistant Public Defender Assistant Attorney General (On A ppea l) 2nd Floor, Cordell Hull Building 425 Fifth Avenue North ROBERT M. ROBINSON Nashville, TN 37243 MAR Y GR IFFIN Assistant Public Defenders VICTO R S. JO HNS ON, III 1202 Stahlman Building District Attorney General Nashville, TN 37201 (At Tr ial) NICHOLAS D. BAILEY Assistant District Attorney General Washington Square 222 Second Avenue North, Suite 500 Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION

The Defendant, James C. Nichols, appeals as of right fro m his convic tion in the Davidson County Criminal Court. Following a jury trial, the Defendant was convicted of first degree murder a nd was se ntenced as a career offend er to serve a life senten ce in the T ennes see De partme nt of Corre ction. In this a ppeal, the Defendant argues the following issues:

1) Wh ether the trial court erre d in deny ing the Defen dant’s m otion to suppress statements made to the police;

2) Whether the evidence was insufficient to support the Defendant’s conviction for first degree murder;

3) Wh ether the trial court erred in allo wing the admis sion of prio r threats by the De fenda nt aga inst the victim d uring the State ’s case-in -chief; and

4) Whether the trial court erred in denying the Defendant’s motions (a) for an amended instruction on the range of punishment and (b) to strike the portion of the range of punishment instruction which advises the jury of the m inimum length of tim e Defe ndant would serve prior to parole e ligibility.

We affirm the ju dgme nt of the trial co urt.

I. M OTION TO SUPPRESS STATEMENTS

The Defen dant ga ve severa l stateme nts to both arresting a nd inves tigating officers on the day of the stabbing, September 24, 1994, and the following day, September 25, 1994. These statements were made bo th spon taneou sly prior to arrest and after Defe ndant had been arrested. Defendant claims that he was so intoxicated while ma king the s tateme nts made on September 24, 1994 , that he did

-2-not volunta rily or knowingly wa ive his rights as according to Miranda v. Arizona, 384 U.S. 43 6, 86 S. C t. 1602, 16 L. Ed. 2d 694 (19 66).

Before a Defendant can knowingly and voluntarily waive his Miranda rights, the Defendant must be “adequately and effectively apprised of his rights.” State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992)(citations omitted). If the waiver is mad e “volu ntarily, kn owing ly and in telligently “then a Defe ndan t may w aive his rights. Miranda, 384 U.S. at 444; 86 S. Ct. at 1612. The burden of proving the waiver by a preponderance of the evidence at the hearing on the m otion to suppress is on the State . State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997). In determining whether a Defendant has validly waived his Miranda rights, cou rts mus t look to the totality of the circums tances . Middlebrooks, 840 S.W.2d at 326. Recently, in State v. Odom, 928 S.W.2d 18 (Tenn. 1996), the supreme court held as follows:

The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence. So long as the gre ater weig ht of the evid ence s upports the trial court’s findings, those findings shall be u pheld. In other words, a trial court’s find ings o f fact in a supp ressio n hea ring will b e uph eld unless th e eviden ce prep ondera tes other wise.

Odom, 928 S.W.2d at 23.

Officer David Howard testified at the suppression hearing that when he arrived on the scene of the stabbing he entered the Defendant’s home and called to the Defen dant. The house was dark and Officer H oward w as using a flashlight to approach the Defendant in the back of the house. As Howard appro ached, the Defe ndant kept rep eating tha t “[he] stabb ed her.” H oward h ad not d irected any questions towards the Defe ndant a t that time. After Defendant made the

-3-incriminating statements, Howard handcuffed him and read him his Miranda rights as he was arrested. Defendant indicated that he understood those rights and that he did not want a lawyer. Nearly forty (40) minutes later after the other detectives arrived, the Defendant was sitting in the back of the police car when he stated, “I just jammed the knife in her ass as far as I could.” Howard described the Defendant as being in a jovial mood. While Howard thought Defendant had been drinking as he noticed the od or of alc ohol, th e Def enda nt see med lucid in h is comm ents and there was nothing th at indicate d his level o f intoxication c aused him to be unable or incompetent to understand his rights.

Officer David Imhoff arrived at the scene of the stabbing after the Defendant had already been arrested and advised of his Miranda rights. Defendant was placed in the back of Imhoff’s patrol car while Imhoff received information from him to fill out an arrest rep ort. While Imhoff did not ask Defendant any questions relating to the stabbing, the Defendant blurted out that “[I] stabbed that goddamn son of a bitch. She tried to cut m e and I took u p for m yself. I too k the k nife from her an d stuc k it up her ass. I made a mistak e. I did it. I’d die if it were fatal, but she is a fat old bitch .”

Investigator Scott B illingsby arrived while the Defendant was still on the scene. Billingsby determined that Defendant had previously been advised of his Miranda rights by Officer Howard. Defendant was transported to the rear of Billingsby’s patrol car. The first sta temen ts Defen dant m ade we re, “Blow m y godda mn bra ins out. I cut her. I stuck a knife in he r.” From th at point on, Billingsby questioned the Defendant regarding the facts of the crime. After transporting the Defendant to the Dom estic Violence Office for further questioning, Defendant was again advised of his Miranda rights and he signed a waiver of those rights. Defendant indicated he

-4-understood his rights at that time. He did not request an attorney. Defendant’s oral statement to the police was taped. In addition to the tape, Defendant wrote a handwritten account regarding the incident and his involvement. On the following day, Defe ndan t was a gain advised of his rights and waived them. Billingsby recalled that there were no major contradictions between the following day’s statement and that of the p revious e vening.

Billingsby smelled the odo r of alcoho lic beverag es on the Defen dant. In response to the trial court’s questioning, Billingsby stated that the Defendant was not so intoxicated as to not understand what he was stating. While Billingsby believed that Defenda nt was intoxicated a t the scene, he could not dete rmine wha t level of intoxication Defendant was suffering from. W hile the Defend ant was later m ore coherent in regard s to ques tioning, Billing sby thou ght that he always understood what was be ing aske d of him a nd und erstood his rights. In addition, Billingsby observed that Defendant’s version of the events which occurred that night has not changed since his earliest statements at the scene.

Defendant testified that on September 24, 1994, he and the victim had finished two (2) half gallons of Wild Irish R ose wine. T hey were co nsuming the third when the stabbing occurred. Defendant recalled that the police came to his home that evening, but he did no t recall w hat wa s said nor did he recall being advised of his rights. He did not remember being asked to sign a waiver of rights, although he admitted that the signature on the waiver of rights form was similar to his own signature. Defendant did recall sitting in a room with two (2) or three (3) police officers talking to him, but he could not remember what was discussed. Defendant recalled giving a statem ent to the police and signing a waiver of rights form on the

-5-following day. Defendant adm itted he was a n alco holic a nd dra nk on a daily basis.

The trial court found that the statements were adm issible as they were volunta rily made. Any statements made prior to Defendant being given his Miranda warnings were s ponta neou s and were m ade p rior to D efend ant’s b eing p laced in custody. The trial co urt noted that Miranda provides that warning requ irements are not required if the defen dant mak es a spon taneous sta tement be fore police officers have investigate d or targe ted a sus pect. See Miranda, 384 U.S. at 478 , 86 S. C t. at 1630; State v. Brown, 664 S.W .2d 318 (Tenn . Crim. A pp. 198 3), perm. to appeal denied (Tenn . 1984).

The trial court reasoned that the only issue was whether the Defendant was so intoxicated that he did not understand what he was doing to himself by making these incriminating statements or was incapable of understanding the Miranda warnings. It found there was no testimony that Defendant was so intoxicated that he did not understand the warnings.

Considering the totality of the circumstances, the evidence shows that the Defendant was properly advised of his rights and had the capacity to understand those rights. While the Defendant’s testimony is contradictory to that of the arresting officers, the trial court determined that the Defendant made a knowing, voluntary and intelligent waiver of his rights and accredited the testimony of the police officers. Intoxication does not ren der a d efend ant’s c onfes sion in valid if the evidence shows that he was capab le of unde rstanding and wa iving his rights . State v. Bell, 690 S.W.2d 879, 882 (T enn. Crim. A pp.) perm. to appeal denied (Ten n. 198 5). Eve n if Defendant were intoxicated at the time of the offense, Defendant made a similar

-6-statement on September 25, 1995, which he is not seeking to suppress. The Defendant has failed to meet h is burden . See Odom, 928 S.W.2d at 23. The trial court properly denied the Defendant’s motion to suppress.

II. S UFFICIENCY OF THE EVIDENCE

Defendant argues that the re was insufficient evidence to support the finding that he killed the victim with p remed itation and deliberatio n. W hen an accused challenges the sufficiency of the convicting evidence, the standard is whether, after reviewing 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 reason able do ubt. Jack son v. V irginia, 443 U.S. 307, 319 (1979). On appeal, the State is entitle d to the strong est leg itimate view of th e evide nce a nd all in ferences therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, th e acc used has th e burd en in th is court of illustrating why the evidence is insufficien t to suppo rt the verdict re turned b y the trier of fac t. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 19 82); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 19 73).

Questions concerning the credibility of the witnesses, the weight and valu e to be given the evidence, as well as all factual issues raised by the evide nce, are resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). N or may this cou rt reweig h or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdic t

-7-approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts in favor of the State. Grace, 493 S.W .2d at 476 .

Mia Ambrose, the niece of the victim, Barbara Sue Oakley, testified that the victim was visiting in her home in Franklin during the month of August 1994. Prior to that time, Oakley had been living with Steve S mith for a period of one (1) year. Ambrose recalled that while Oakley was in her home, the Defendant called her home looking for Oakley. Oakley and the Defendant had previously resided together for ten (10) or twelve (12) years. After Oakley and the Defendant spoke, Oakley asked Ambrose to take he r to the Defendant’s ho me in Na shville. A few days later, Ambrose and her three (3) year old daughter returned to the De fendan t’s home to visit her aunt. While Ambrose was there, she noticed that Oakley and the Defendant were drinking heavily. Wh en Oakley d rank, Am brose recalled that she was ve ry happy. The Defendant repeatedly argued with Oakley regarding her activities, particu larly regarding her relationship with Steve Smith. According to Ambrose, Defen dant wa s plannin g to shar e an ap artmen t in Nash ville with Sm ith.

On one oc casion, A mbros e and O akley we re talking a bout O akley’s pla ns to leave the Defenda nt and to return to live with Steve Smith. The Defendant walked in, having o verhear d the con versation , and said , “Oh, so you’re thinking about leaving . . . I don’t think so. It would be over my dead body. You know, I’d kill you first.” The final day Ambrose was at Defendant’s home, Oakley and Defendant were arguing and Defendant was throwing things at her. He gr abbe d a kn ife, poin ted it at her neck and said he would kill her. Ambrose immediately decided to leave and begged her aunt to accom pany her. A week later, Ambrose learned that Oakley had been s tabbed by the De fendan t.

-8-

Joann Leeper, m other of Steve Smith, kept in touch with Oakley after she and Smith ended their relationship. Oakley came to her home several times and called often. L eepe r went to the De fenda nt’s ho me to talk with Oakley because she was concerne d that the Defe ndant mig ht try to hurt h er. W hile she was there, she met the Defenda nt. Oakley assu red Leepe r that she was a lright. On the day o f the stabbing in Septe mber, O akley an d Defe ndant c ame to Leeper’s home. Oakley and Leeper were pla nning a trip to Colum bia to see Smith. Oakley and the Defe ndant left Leep er’s home to make some copies, and when they returned they both appeared to have been drinking. The Defendant appeared angry and agitated when Leeper and Oakley discussed their plans for visiting Smith the next day. Oakley was stabbe d later that d ay after leav ing Lee per’s hom e.

Robert Spence, next door neighbor to the Defendant at 22 Waters Avenue, saw Oakley on September 24, 1994, around 4:00 p.m. Oakley was mowing Spen ce’s grass while Spence was w orking on his car. Th e Def enda nt cam e over in Spen ce’s yard and wanted the mo wer. When Oakley refused to give Defendant the mower, Defendant told h er he wo uld take h er in the ho use an d “whoo p her as s.” Oakley shrugged off the comment. Spence observed the couple fighting and arguing every day, with the Defendant constantly threatening Oakley. Defendant had threatened to kill Oakley and bragged that he had given her a black eye. Spen ce related that Oak ley had a black eye every m onth.

Spence left his home at 5:45 p.m. on September 24, 1994 and returned at midnig ht. As he was driving up the road, he saw the crime scene tape all over the Defe ndan t’s home. Whe n he pulled in his driveway, he noticed a horrible odor.

-9-There was a trail of blo od from their house to his house, all over his yard, porch, and door.

Curly Schmidt lives at 2 4 W aters Avenu e, two (2) houses down from the Defen dant. Prior to Septem ber 24, 1994 , she did not kno w the Defen dant or Oa kley. On that date, she heard a knock on the door and when s he ope ned it, a wo man w ith blood all over her blouse stood there. She asked Schmidt to call 911. Wh ile Schmidt called 911, the woman entered her home and sat on the couch. She was still bleeding and looked sleepy. Schmidt stayed on the telephone until the ambulance arrived. No one appeared at Schmidt’s home looking for the victim. Oakley told Sch midt wh o had s tabbed her.

Officer Mark Chestnutt is a detective sergeant with the Metropolitan Police Depa rtment. During September 1994 he was sergeant over the Patrol Division for the lower E ast Na shville area. He respon ded to a call from the dispatche r that there had been a stabbin g at McC arn Stree t from an incident o f dome stic violence . A later call stated that Oakley was at a location on W aters Street. When Chestnutt arrived, the ambulance personnel were already there and Oakley was sitting on the couch being treated for her injuries. After Oakley was placed in the am bulanc e, Che stnutt went to th e McC arn add ress wh ere the D efenda nt was in c ustody. He noticed the cut on Defendant’s pinky finger, but when he was treated by Medcom it was not seriou s eno ugh to require a trip to th e hos pital.

Officer David Howard responded to the call from 816 McCarn Avenue on September 24, 1994. Howard entered the back door and called out for the Defen dant. Defe ndan t was in the living room and it w as da rk, so H oward used his

-10-flashlight and ordered Defendant to face away from him. The Defe ndan t repea tedly stated that he stabbed Oakley. At one point, he blurted out, “I jammed it up her ass as far as I could.” Howard put the Defendant in handcuffs and read him his Miranda rights, then asked him for the location of the weapon. The Defendant pointed to a knife in the floor in front of the refrigerator. The knife had a five (5) or six (6) inch blade. Wh ile the De fendan t was laug hing an d appe ared to have been drinking, he stated that he understood his rights. Howard observed the wo und o n Def enda nt’s pinky finger and saw that it was a small cut. He also saw two (2) knives behind the kitchen s ink that ha d recen tly been w ashed .

Detective David Imhoff was working in the patrol division on the date of the incident. He first received a call of a stabbing on McCarn Street and then a related call at Waters Avenue. When Imhoff arrived on the scene at Waters Avenue, Oakley was lying on a gurney being taken out of the house. Imhoff then walked over to McCarn Street where Officer Howa rd was h olding the Defen dant. Defendant was placed in Imhoff’s patrol car, and then Imhoff got in his car and began to fill out an arrest report. Howard advise d Imh off that D efend ant ha d bee n advis ed of h is Miranda rights. Wh ile Imhoff filled out the rep ort, Defendant stated, “I stabbed that goddamn son of a bitch. She tried to cut me and I took up for myself. I took the knife from her an d I stuc k it up her ass. I m ade a m istake. I did it. I’d die if it were fatal. She is a fat old bitch.” Imhoff was not questioning the Defendant when he made that statement. Imhoff later re move d him from h is car a nd pla ced h im in Detective Scott Billingsby’s vehicle to be transported. Imhoff observed a small cut on Defe ndan t’s pinky finger. Im hoff we nt insid e the D efend ant’s home and observed blood thr ougho ut the resid ence a nd a kn ife on the k itchen floo r.

-11-

Scott Billingsby works as a detective in the Domestic Violence Division. He arrived on the scene at 7:23 p.m. As the lead investigator, he spoke with the officers already presen t and exa mined the hou se and the evide nce. Billingsby noticed that at the kitchen table, a strugg le had evidently taken place as there was sugar and a bag of chips strewn about on the floor. There was blood in the floor and a partially open silverware drawer w ith blood on it. A trail of blood led to the back door from the kitchen table, and another trail of blood led from the table throu gh the d en into the living room where the telephone was located. Two knives found near the kitchen sink appeared to have blood residue on them.

The Defendant was still on the scene and Billingsby was advised by Officer Howard that Defendant had previously been advised of his constitutional rights. The first thing the Defendant stated to Billingsby was, “ Blow my goddamn brains out. I cut her. I stuck her.” At that point, Billingsby began to question Defendant and Defen dant told h im there were two “cuttings” in the kitche n.

Billingsby removed Defendant from the scene and took him to the Department of Domestic Violence. Once they arrived at the unit, Billingsby again advised Defendant of his constitutional rights and then Defendant executed a written waiver acknowledging that he understood his rights. Throughout the night, Defendant became unclear regarding exactly where the stabbings occurred. Defendant was consistent during questioning that Oakley cu t him and the n he “stuck” he r. Sometimes Defendant stated that he took the knife away from Oakley and “stuck” her with it, and at o ther time s he state d that he obtained another knife and then “stuck” he r. Tape s were m ade of D efenda nt’s statem ents to the police, and these

-12-tapes were played for the jury as evidence. Defendant also wrote a handwritten statement during the course of the questioning. The statement reads as follows:

Me and my w ife were in the kitchen as near as my recollection recalls. She cut me with a pearing [sic] knife and I took it away from her and stuck it in her gut. She immediately ran out the back door and I went and called 911 for emergency because I love my wife.

Thank you! Jam es Ca rl Nicho ls

The following day, Billingsby was notified that Oakley was not expected to live. The Homicide Unit was advised of the crime and Billingsby met with Dete ctive D avid Miller who took over the investigation. He and Miller again spoke with the Defendant on September 25, 1994. Miller advised Defendant of his constitutional rights and Defendant agreed to talk with them. Defendant stated that he and Oakley were at the table when they became involved in a n argum ent. Oakley cut him on the finger so he got up, walked into the kitchen to obtain a knife and then stuck her with the knife once. Throughout all the questioning, Defendant only recalled stabbing Oakley one (1) tim e.

Detective David Miller led the homicide investigation of Oakley’s death. After being advised of the situation, Miller an d Billingsb y interviewe d the De fendan t. Defendant was advised of his constitutional rights and told the detectives that he had been home drinking th at day. He was sitting at the kitche n table with Oakley when they got into an argum ent, althou gh he c ould no t be sure what the argument was about. Defendant got up from the table, went over to the drain rack, got a knife and stabbed her. Defendant also said his finger had been cut but was not sure if Oakley cut it or how it got cut.

-13-

Joe Minor, special agent for the Tennessee Bureau of Investigation and the Fore nsic Servic es Div ision, re ceived blood sam ples from a knife in volved in this case. Only one (1) knife found at the scene had e noug h bloo d from which to obta in a sample. A blood sample was also obtained from the Defendant. A DNA profile was done on the Defendant, and it was determined that the blood on the knife did not match the Defendant’s.

Dr. William Miles was working in the emergency room when Oakley was brought into Va nderb ilt Hospital. When she arrived, Oakley was combative and her blood pressure and oxygen levels were extremely low. Dr. Miles established I.V. lines and used a breathing tub e and a m echanical ven tilator to control her airway. In order to provide Oakley with the rapid introduction of fluids into her body that she needed in order to survive, he established a central venous line underneath her clavicle. While it was impossible to determine how much blood Oakley had lost by the time she arrived at the emergency room, it was obvio us by he r near de ath condition that she h ad lost a g reat dea l of blood.

Oakley had three wounds. She had a several inch wound to her upper chest close to the left side of her collarbone which was through the muscle and into the chest cavity itself. She had two (2) wounds to her abdomen, both in the left quadrant of the be lly. All three (3) wounds were stab wounds. In order to assess the seve rity of her chest wound, Dr. Miles in serted a chest tub e to determine what bleeding had occurred within the chest wall. After she was stab ilized to the po int that s he co uld be transported for surgery, she was taken to surgery to address the bleeding from the abdom en. Prior to surgery, given the amount of injuries and Oakley’s degree of

-14-obesity, Dr. Miles estimated a fifty (50) to seventy-five (75) percent chance that she would n ot survive.

During surgery, Dr. Miles found that the two (2) stab wounds to Oakley’s abdomen were the most life-threatening. In add ition to five (5) inch es of O akley’s own body tissue, the stab wound had penetrated the diaphragm muscle, the stomach, and both the large and small intestines all the way through to the pancreas gland. It would req uire a gre at deal of fo rce for the wea pon to g o to this de pth through someone as large as Oakley. Dr. Miles stated that each of these three (3) wounds were potentially life threatening. Any time there are injuries of this degree to a person the size of Oakley, there is a high potential for an inc rease in mo rtality. He estim ated he r chanc es for surv ival after surg ery at fifty (50) pe rcent.

W hile Oakle y’s bloo d pres sure a nd vital s igns h ad sta bilized , she w as no t in stable condition. She was monitored closely, particularly due to her low intake of oxygen. Shortly before 9:00 a.m. on September 25, 1994, Oakley became agitated and was thrashing about. She was given a sedative and was given more fluid. When her bloo d press ure drop ped to an extremely low level, Dr. Mile s was ca lled to her bedside because she had turned blue. A needle was inserted into her chest and some fluid came back, so Dr. Miles made an incision to drain the fluid from her chest. Oakley’s heart stopped beating. The fluid was present in her chest because the catheter inserted in to her ch est became dislodged. This dislodging is a recognized risk factor for this type of injury and this treatment. While Dr. Miles worked for a long period of time to revive Oakley, she suffered another cardiac arrest. As a result, even after being revived, she suffered severe brain damage due to the low level of oxygen to the brain . Oakley w as, in fact, nearly brain dead. Even

-15-with deep stimulation, she would barely move her head which was evidence of significant abnormal brain disfunction. Her p rogno sis wa s very g rim an d her fa mily was notified . Her fa mily determined that if her heart stopped, she was not to be revived. Oakle y’s hea rt rate a nd vital s igns su bseq uently deteriorated and stopped.

Dr. Jesse Giles conducted the autopsy of Oakley on October 1, 1994. He summarized her anatomical diagnoses as three (3) penetrating stab wounds, severe obesity, no preexisting detected cardiovascular disease, and post ac ute exploratory chest and abdomen surgeries. He found the cause of death to be complications of stab wounds of the chest and the abdomen. He listed Oakley’s obesity as a contributing factor. Oakley’s blood loss, pancreas injury, decre ased lun g function to the left side , and h igh blo od alc ohol a ll set into motion the increased lack of oxygen to the brain. The complications were foreseeable risks for someone in her condition to encounter during the course of treatment. Dr. Giles determined the manner of death to be hom icide.

The S tate rested its case-in-c hief.

Dr. Mona Gretel Case Harlan testified that she reviewed the medical record of Oakley , including th e autop sy report, the post-m ortem p hotogra phs, the d eath certificate and the emergency medical service and hospital records. Following her review of all the records, Dr. Harlan concluded that even though Oakley had additional risk factors for being prone to serious injury and death from stab wounds due to her obesity and alcohol abuse, she did not die as a result of obvious complications from the wounds such as infection, blood loss, or blood clots. Instead, she died as a result of a brain injury from the low oxygen to the brain caused by a

-16-dislodged chest tube. D r. Harlan stated that this was not an expected complication of having a right subclavian catheter inserted, but that it can happen. Wh ile the doctors did find the dislodge d catheter, the ca theter was dislod ged for too long a period of time. Ultimately, Dr. Harlan found that she died as a complication of the treatm ent of th e stab woun ds, a c omp lication caus ed by th e hos pital.

The Defendant testified tha t he wa s living w ith his m other a nd O akley in September 1994. On September 24, 1994, he and Oakley awoke and went to a church rumma ge sale. On th e way hom e, Oakley drove to the liquor store to get a drink. The Defendant resisted but eventually agreed and bought a half gallon of wine. They went home and drank the wine while they worked around the house and Oakley mowe d the fron t yard of the ir next doo r neighb or, Rob ert Spence . Ms. Leeper called and asked them to take some papers to the drug store and make photocopies, so they drove to her home and then went to the drug store . When they left the drug store, he and Oakley bought another half gallon of wine at the liquor store. They dropped off the papers and returned home around 2:00 p.m. They drank the wine at home, then returned to the liquor store for another half gallon of W ild Irish Ros e.

They were sitting at home at the kitchen table drinking wine and talking when Oakley asked Defendant to borrow $50.00 from his boss. Defendant refused and they began to argu e. Oa kley be cam e ang ry, picke d up a knife o ff the tab le and cut the Defendant’s hand. When that occurred, he grabbed her by the wrist and she started to dig the knife into the back of his wrist. He got out of his chair and Oakley grabbed the front of his shirt. Th e Defe ndant p anicked and gra bbed a nother k nife lying on the counter. H e stuck her w ith the knife, cutting her acro ss the shou lder,

-17-so that she would let go of him. Oakley dropped her knife and threw her hands up in the air, then the De fendant stepp ed away an d dropped his knife to the floor. Defendant ran to the bedroom and called for an ambulance. After he called 911, he went back into the kitchen to look for Oakley and she was gone. He looked outside for her and then waited for the police to arrive.

The Defen dant co uld not remember what he said specifically to the police after they got to the scene or during their ques tioning tha t night bec ause h e “was p retty drunk.” He reca lled being in the police car and going to V anderb ilt Hospital to get stitches in his finger. D efenda nt could n ot reme mber w hat actually occurred that night until he sobered up the next day, September 25, 1994, around 1:00 p.m. when he aga in talked to the police .

Ruby Bird, the D efenda nt’s moth er, was living with her son a t 816 McC arn Street in September 1994. She was away visiting a friend at the time the stabbings occurred becau se the D efenda nt and O akley we re getting d runk ea rlier that day. Bird was afraid of Oakley when she drank. Six (6) weeks prior to the stabbing of Oakley, Bird called the police because the Defendant was drunk and m ade thre ats toward his moth er. During cross-examination, Bird denied telling the police that the Defendant had threatened to shoot his wife . How ever, s he did admit that Defendant had thre atened to “elimina te” her [Bird ] for running her mo uth.

The Defen dant co ntends that the evidence does n ot establish the elem ents of premeditation and deliberation requir ed to support the verdict for first degree murd er. At the time of the offense, first degree murder was “an intentional, premeditated and de liberate killing o f another.” Tenn. Code Ann. § 39-13-

-18-202(a)(1)(1991 Supp.). “Prem editation” is “an act done after the exercise of reflection and judgment,” meaning the “intent to kill must h ave bee n forme d prior to the act itself.” Id. at (d). The purpose to kill need not pre-exis t in the d efend ant’s mind for any de finite period of time. Id. In addition, the defen dant’s m ental state must be carefu lly cons idered to dete rmine if the de fenda nt was “sufficie ntly free from excitement a nd passion as to be cap able of prem editation.” Id.

“Deliberation” requires some period o f reflection su ch that the mind is free from the influen ce of excite ment o r passion . State v. Brown, 836 S.W.2d 530 (Tenn. 1992). Also, deliberation req uires that the killing be do ne with a “c ool purp ose,” meaning the defend ant is free fro m the p assions of the m omen t. State v. West, 844 S.W.2d 144 (Tenn. 1992). Both the elements of premeditation and deliberation are jury questions which may be inferred from the circumstances surrounding the killing. State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. A pp. 199 3), perm. to appeal denied (Tenn. 1994). Rep eated blows may serve as circumstantial evidence of mu rder in the first degree if such blows are inflicted as the result of premeditation and deliberatio n, and n ot in the he at of pass ion. Brown, 836 S.W.2d at 542.

There was a mple evidence in this case to support the jury’s finding of premeditation and deliberation. Reviewed in the light most favorable to the State, the evidence in this case reflected that the Defendant and Oakley had a violent history. Robert Spence testified that the Defendant often threatened Oakley and that she suffered a black eye every month. Mia Ambrose, Oakley’s niece, testified that in the week prior to Oakley’s death, she had heard the De fenda nt threa ten to k ill Oakley and sa w him p ut a knife to her thro at. The Defendant’s mother had also filed a police report in which she advised the police that the Defendant had threatened

-19-the life of Oakley and herself. Declaration s by a defendant of his intent to kill Oakley may be indica tive of both p remed itation and deliberatio n. Brown, 836 S.W.2d at 541-42. The Defendant’s constant threats and abusive conduct toward s Oak ley is a fact of their prior relationship from which motive m ay be infe rred by the jury to prove premeditation and deliberation. State v. Bord is, 905 S.W.2d 214, 222 (Tenn. Crim. A pp., perm. to appeal denied (Tenn. 199 5).

The Defendant testified at trial that he and Oakley were having an argument when she cut his pinky finger. He got up, walked away from the table towards the sink, retrieved a knife from the drawer, walked back over to the table and then stabbed Oakley three (3) times. Dr. Miles testified that a great dea l of force must have been used to produce injuries of this type upon a wom an the size of O akley. The fact that the Defendant procured the knife he used to inflict the stab wounds upon Oakley is a circumstan ce from wh ich the jury could have reasonably inferred premeditation and de liberation. Brown, 836 S.W.2d at 541. T here is not a s pecific amount of time req uired to form deliberatio n. Gentry, 881 S.W.2d at 3-4. The jury could reasonably have inferred from the Defendant’s actions that Defendant was acting with premeditation, pursuant to his previous threats, and with deliberation, having sufficie nt time to con temp late the consequences of his actions while he walked over to the drawer to retrieve the knife and having a cool purpose when he returned to the table and stabbe d Oak ley violently thre e (3) time s. Any reconciliation in conflicts between the testimony of the Defendant at trial and his prior statem ents to the po lice is a ma tter entruste d exclusive ly to the trier of fac t and no t this court. State v. Sheffie ld, 676 S.W.2d 542, 547 (T enn. 19 84); Byrge v. S tate, 575 S.W.2d 292 (Ten n. Crim. App . 1978).

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As no one was at home other than the Defendant, it may be inferred that the Defendant was the one who washed the knives he used to inflict the stab wounds. Defe ndan t’s actions of washing the knives, while not necessarily proof of premeditation and deliberation, discredited his theory of self-defense as set forth in his statem ents to the police and his testimony to the jury. See West, 844 S.W.2d at 148. The jury is entitled to reject the Defendant’s theory in favor of the State ’s proof. See State v. Grace, 493 S.W .2d 474 , 476 (T enn. 19 73).

Defendant subsequ ently argues that he did no t have the menta l capacity to form the req uired in tent to k ill Oakley due to his intoxication. Other than the testimony of the Defend ant, the record is devo id of any proof that the Defendant was intoxicated to the point to negate any specific intent. W hile some p olice officers testified that Defendant had obviously been drinking, they also stated that he was coherent and capable of understanding his actions at the scene of the stabbing. The defense of intoxication negating specific intent is a question of fact for the jury. State v. Givens, 631 S.W.2d 720, 721 (Tenn. Crim. A pp., perm. to appeal denied (Tenn. 1982). The jury’s find ings st and a nd ac credit the testimony o f the arresting officers rather than that of the Defendant. Having fou nd that the re were s ufficient facts to prove the eleme nts of first deg ree mu rder, this issu e is withou t merit.

III. A DMISSION OF PRIOR BAD ACTS OF THE DEFENDANT

The Defendant argues that the trial court erred in allowing the admission of prior threats by the Defendant against Oakley . Specifically, the Defendant objected to the testimony of Mia Ambrose regard ing the Defe ndan t’s threa ts to kill O akley if she left him wh ile pointing a knife at he r throat. He also obje cted to the testimony

-21-of their next-door neighbor, Robert Spence, who testified that D efend ant rep eated ly threatened and abused Oakley, even as late as the day of the stabbing when Defendant told Oakley that he would take he r in the house and “w hoop h er ass.” Defendant further objects to the trial court’s assistance to the State during the hearing determ ining the a dmiss ibility of the testimony of Spence. Over the objections of defe nse c ouns el, the tria l court ruled such testimony admissible as evidence of other crimes, wrongs or acts under Rule 404(b) of the Tennessee Rules of Evidence. Even if the testimony was admissible under Rule 404(b), Defendant contends that the probative value of such evidence is outweighed by the danger of unfair prejudice.

“Evidence of other crimes , wrongs, or acts is not admissible to prove the character of a person in order to s how ac tion in con formity with the char acter trait.” Tenn. R. Evid. 40 4(b). However, in the exceptional case another crime may arguably be relevant to an issue other th an the accu sed’s charac ter. Id., Advisory Commission Com ments ; citing State v. Parton, 694 S.W .2d 299 (Te nn. 1985). Issues such as identity, motive and common scheme or plan, intent or rebuttal of accident or mistake are such exceptional cases. Id. Three (3) conditions must be satisfied before allowing such evidence:

1) The court upon reque st mu st hold a hea ring ou tside th e jury’s presence;

2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence; and

3) The cou rt must exclude the evidence if its p robativ e value is outweighed by the danger of unfair prejudice.

Tenn. R . Evid. 404(b)(1), (2) and (3).

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Upon objection by the De fendan t, the trial court held a hearing outside the presence of the jury regarding the testimony of Mia Ambrose as to prior threats the Defendant made tow ards Oak ley. Following the hearing, the trial court determined that such testimony was admissible on the basis that “as [it] understood the rules of evidence, this is admissible.” As the trial court failed to determine and state on the record the material issue to which the issue was relevant and failed to find that the probative value of the evide nce w as no t outwe ighed by the d ange r of unfa ir prejudice, our determination of the admissibility of the evid ence will be based upon the evide nce pre sented at the jury ou t hearing . State v. DuBose, 953 S.W.2d 649, 653 (Ten n. 1997).

Evidence must be relevant and probative to some issue at trial and must “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. During the jury out hearing, Mia Ambrose testified that while she stayed in the Defendant’s home, she witnessed incidents during which the Defendant threatened to kill Oakley because she was planning to leave him. Also, Ambrose testified that Defendant pointed a knife at Oakley and said he was going to kill her. T hese threats occu rred ap proxim ately on e and a half weeks prior to the stabbing. For the jur y to convict the Defendant of first degree murder, the State was required to prove inte nt, premed itation and deliberatio n. Thes e threats go both to the D efend ant’s intent and motive a s relevan t to establish materia l issues. Violent acts indicative of the relationship between the victim of a violent crime and the defendant prior to the commission of the offens e are rele vant to sh ow inten t. State v. Smith , 868 S.W.2d 561, 574 (Tenn. 1993). Furthermore, while such evidence

-23-may have been prejudicial, the evidence was highly relevant to material issues and did not intro duce any ex traneo us issu es to th e jury. Dubose, 953 S.W.2d at 655. On the basis of this record, the pre judice was n ot unfa ir and th is court concludes that the probative value of Ambrose’s testimony was not outweighed by the danger of unfair prejudice.

The testimony of Robert Spence in which he stated that Defendant threatened Oakley on the day of the stabbing and repeatedly abused and threatened Oakley prior to that occasion was also determined admissible by the trial court following a jury out hea ring. Bec ause th e trial court co mplied with the requireme nts of R ule 404(b), our sta ndard of review is abuse of discretion. Dubose, 953 S.W.2d at 652. Similar to our reasoning above, these threats are admissible to prove the Defendant’s motive and intent for proof of the elements of deliberation and premeditation. Furthermore, the evidence was not unfairly prejudicial and was probative of mate rial issues. T his issue is without m erit.

Defendant argue s the tria l court im prope rly assiste d the S tate in admitting the testimony of Robert Spence which viola ted his righ t to a fair trial. Defendant did not object at trial du ring the jury out hearing. Failure to make a contemporaneous objection waives co nsidera tion by this co urt of the issu e on ap peal. See Tenn. R. App. P. 36(a); Teague v. State, 772 S.W .2d 915, 926 (Tenn. Crim . App. 1988 ), perm. to app eal denied. (Tenn . 1989); State v. Killebrew; 760 S.W.2d 228, 235 (Tenn. Crim. App.), perm. to appeal denied. (Tenn. 1988). In addition, the Defendant failed to include this issue in his motion for new trial. Therefore, this issue has been waived. Tenn. R. App . P. 3(e); see State v. Clinton, 754 S.W.2d 100, 103 (Tenn. Crim. A pp.), perm. to appeal denied. (Tenn . 1988). Even if the issue we re

-24-not waived, we fail to see from our review of the record that the Defendant was prejudiced due to the trial court’s questioning of a witness during a jury out hearing.

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IV. J URY INSTRUCTIONS

In his second issue, Defendant claims th e trial co urt erre d in de nying h is motions (1) for an amended instruction on the range of punishment and (2) to strike the portion of the rang e of punishm ent instruction which advises the jury of the minimum length of time the De fenda nt wou ld serve prior to parole eligibility. Defendant argues this potion of the instruction is unconstitutional. The following instruction was give n to the jury:

The punishm ent for the o ffense is life im prisonm ent, life imprisonment without the possibility of parole or death by electrocution. The State, however, is not seeking the death penalty or life imprisonment without the possibility of p arole an d, therefore, should you return a verdict of guilty the C ourt will imp ose a life se ntence .

The jury will not attempt to fix any sentence. However, you may weigh and co nsider the mean ing of a se ntence of impriso nmen t.

You are further informed that the minimum number of years a person sentenced to imprisonment must serve for this offense before reaching the earliest release eligibility date is 25 years.

Whether a defendant is actually released from incarcera tion on the date when first eligible for release is a discretionary decision made by the Board of Paroles and is based on many factors. The Board of Paroles has the autho rity to require a defend ant to serv e the entire sentence impos ed by the Court.

The trial cou rt gave similar instruc tions o n all less er inclu ded o ffense s, includ ing the ir earliest release eligibility dates.

Defe ndan t’s trial counsel filed a motion to charge the jury on the range of punishment and a motion to exclude an instruction on parole eligibility as required by Tennessee Code Annotated section 40-35-201. The trial court overruled the Defendant’s motion regarding the exclusion of that information but granted the

-26-motion on charging the jury on ran ge of p unish men t. W hile Defendant now claims this instruction was unconstitutional and violated his due process rights, we decline to find that the trial court erred. The statute does not violate the doctrine of separation of powers no r does it deprive the Defendant of his right to a fair trial pursuant to his right of due process, therefore, the statute is constitutional under the circumstances of this case . State v. Howard E. King, No. 02-S-01-9703-CR-00021, ___ S.W .2d ___ , slip op. at 2, S helby C ounty (T enn., Jac kson, Ju ly 6, 1998 ).

Similar to the defendant in King, Defendant relies upon Farris v. Sta te, 535 S.W.2d 608 (Tenn. 1976), in a rguing th at this statute is uncon stitutionally vag ue. In Farris , the instruction given “provided no reasonable guidance as to the ramifications of the parole system .” King, No. 0 2-S-0 1-970 3-CR -0002 , slip op. at 10. Converse ly, the statute in question here does not leave the jury to speculate about the benefits of the parole system, but requires the Departme nt of Corre ction to compute exact figures to determ ine the ap plication of va rious facto rs relevan t to release eligibility. Id. Jurors are provided with “explicit, objective, and unambiguous guidance s ufficient to overcom e any allegation o f vagueness .” Id. at 11.

Also, the Defendant contends that the instru ction vio lated h is rights to a fair trial by an impartial jury based upon a misleading and inaccurate portion of the jury instructions. Similar to the defendant in King, the Defendant in the case sub judice compares jury instructions charg ed to his jury on sen tencing to those jury instructions in State v. Cook, 816 S.W .2d 322 (Tenn. 1991). The jury instructions given on the range of punishment in Cook were no t proper as the jury w as on ly instructed on Ra nge I pu nishm ent whe n the de fendan t was actually su bject to punishment as a Ran ge II offend er. King, No. 02-S-01-9703-CR-00021, slip op. at

-27-13. Defendant’s jury instructions in the case sub judice informed the jury as to the shortest and longes t possible senten ces for each o ffense charg ed to the jury. Additionally, the jury was instructed as to the minimum portion that D efend ant wo uld serve before becoming eligible for parole. The jury in this case was p roper ly instructed as to the requ iremen ts of the sta tute. Id. Under the circumstances of this case and the jury instructions given under Tennessee Code Annotated section 40-35-201(b)(2 ), the Defendant was not de prived of his due p roces s right to a fair trial. Id. at 17.

Finally, the Defendant claims that the statute in question is invalid based upon Farris as an exercise by the legislature in judicial auth ority. As our suprem e court has noted, “[H]aving a lready ac knowle dged th e autho rity of the legislature to provide a range of punishment instruction, we must also acknowledge that an explanation of the reality of early release and parole is no further an encroachment into the judicial function.” King, No. 02 -S-01 -9703 -CR- 0002 1, slip op. at 8. As the jury must decide the issue of guilt or innocence and the trial court must determine the ultimate sentence, Tennessee Code Annotated section 40-35-201(b)(2) does not violate the Sepa ration of P owers C lauses o f the Ten nesse e Con stitution. Id.

We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

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___________________________________ GARY R. WA DE, Presiding Judge

___________________________________ L. T. LAFFERTY, Special Judge

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