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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE, v. GARY LAMAR MCBRIDE.
Direct Appeal from the Circuit Court for Davidson County No. 97-D-2164 J. Randall Wyatt, Judge

No. M1999-00319-CCA-R3-CD - Decided April 7, 2000

The defendant/appellant, Gary Lamar McBride, appeals as of right from a conviction for murder second degree by a Davidson County jury. The Davidson County Criminal Court imposed a sentence of sixteen (16) years in the Department of Correction. The defendant presents three appellate issues: 1. Whether the trial court erred in allowing the defendant's statement to be read to the jury and not suppressing the same. 2. Whether the trial court erred in not finding that the proof adduced at trial by the State is in conflict with the physical facts rule applicable to criminal cases. 3. Whether the evidence adduced at trial was sufficient to convict the defendant of murder second degree. Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed. LAFFERTY, SR. J., delivered the opinion of the court, in which WELLES, J., and WOODALL , J., joined. Jack A. Butler, Nashville, Tennessee, for the appellant, Gary Lamar McBride. Paul G. Summers, Attorney General and Reporter, and Elizabeth T. Ryan, Assistant Attorney General, for the appellee, State of Tennessee. OPINION At trial, Detective Alfred E. Gray, III, Metro Police Department Homicide Bureau, testified that he went to the scene of the death of Michael Wright. He stated that the crime scene was the 500 block of 13th Avenue North near the Jo Johnston Public Projects in Davidson County. From the photographs taken at the crime scene, Detective Gray identified a live .45 caliber round, three (3) spent casings from a .45 caliber, a second live round .45 caliber that had been run over, the victim and the victim's car. The next day, Detective Gray stated that he returned to the crime scene and found some car keys belonging to a Cadillac. He testified that he received information that some people in a white Cadillac were responsible for the shooting. The white Cadillac was recovered at the crime scene and dusted for fingerprints. Detective Gray stated that a fingerprint of the defendant was recovered from the car. According to Detective Gray, the material in the Cadillac indicated that

the defendant attended Pearl-Cohn High School. He testified that the defendant had contacted a school police officer and told the officer that he (the defendant) wanted to see Detective Gray. When Detective Gray arrived at the school, the defendant advised him that some people were trying to say that he (the defendant) had something to do with a murder, but he was not there. Detective Gray stated that when he told the defendant about finding his car keys at the scene, the defendant became upset and told Detective Gray about the incident. Detective Gray advised the jury of the defendant's account of his meeting with the victim, Michael Wright: [H]e went on to tell -- to tell me that guy robbed him a week ago, robbed him for about five or ten dollars. And every time this guy would see him after that he would always just keep harassing him, hounding him, telling him, hey, we okay, it's cool. He said that he thought this guy was following him. He said on another occasion he was over to his brother's, and he saw the victim just parked outside his house. He -- he said that he thought that his brother was going to be robbed or he was just going to come in there and rob the house that he was living in or where he was staying with his brother. He also was telling me about his nephew. Like I said, he was upset and telling me about his nephew. He told me about prior, when he was playing basketball, and this guy, the victim was following him there also. He's telling me that his brother didn't have anything to do with it, but he wasn't going to let anything happen to his brother or his nephew. *** Well, he said that he saw the day that he was over to his mother's house at John Henry Hale, he saw the -- he saw the victim going to his car. And he said he armed hisself [sic] with a .45, because he thought the victim would be armed. And he went over to talk to the victim to ask him why he was going -- why this guy was just constantly messing with him. He said an argument -- the guy got to arguing about it. And then the guy raised his shirt. And he said he saw a gun.... [H]e just started shooting at him. He said, then the guy was running on all fours, meaning his hands and knees into the field. He said he ran him down. And he knew that -- he knew that with the .45 that he could put him down. So he said he had to take care of his business. And he shot the victim once. Detective Gray stated that he did not find a gun around the victim and about forty (40) to fifty (50) people were standing around the crime scene. The detective testified that the victim was known to carry a gun. Sergeant Dana Lyon with the Metro Police Department testified that on May 12, 1997, he

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went to the crime scene on 13th Avenue North, Jo Johnston area, regarding a shooting. He stated that while walking through a field adjacent to the street, he found a male, who had been shot in the back of the head and leg, lying on the ground. Sergeant Lyon stated that he found no weapons near the area of the body. David S. Levitt of the Nashville Fire Department testified that he was dispatched to a field off 13th Avenue and Jo Johnston. After examining a male, about 30, Mr. Levitt determined that the male was dead. In searching the body, Mr. Levitt found some money and a small pocket knife, but no weapon. Detective Clifford William Mann with the Metro Police Department testified that he was dispatched to the crime scene and observed a male laying in an open grassy area off 13th Avenue. Detective Mann stated that he did not see a weapon in the area. In canvassing the area, Detective Mann stated that it was difficult to obtain any information, due to the residents' fear of retaliation. Andrew Levan Fleming testified that he was a friend of Michael Wright, the victim. He stated that he saw the victim leaving through the front door of 523 13th Avenue. Approximately three (3) minutes later, Mr. Fleming heard gunshots. He looked out of the door and saw a group of men at the end of the sidewalk. Mr. Fleming heard one of the men say, "No, Man." Mr. Fleming testified that he did not know if the victim had a gun with him that night, but the victim was known to carry a gun. In rebuttal by the State, Mr. Fleming testified that he talked to the defendant about his upcoming testimony in court. This conversation took place at the Jo Johnston Market Store. He stated that the defendant, his brother, Aaron ("Muffin") McBride, Tasha Adams, the defendant's mother, and two other males were present. One of the males had a gun imprint under his jacket. Mr. Fleming told the defendant and his brother that he did not know anything. He stated that he felt threatened and afraid but admitted no specific threats were made. Tammy Sherese Samuels testified that she was on her way to the store on 13th Avenue North. She stated that she heard the words, "You got me," then a gunshot, and the words, "Help me." She stated that she did not see anything. It was stipulated by the State and the defendant that the autopsy findings of Dr. Bruce Levy, a pathologist, would establish that Michael Wright, age 25, had been shot twice, once in the right thigh above the knee and once in the back of the skull. Dr. Levy determined that the cause of death was a gunshot wound to the head. In his defense, the defendant testified that, at the time of the incident, he was sixteen (16) years of age and attended Pearl-Cohn High School. He stated that he had known Michael Wright for about four (4) years. On April 26, 1997, the defendant stated that he and his date, Shasta Webb, were on their way to a prom when they were accosted by Mr. Wright. Mr. Wright had a gun and asked for the defendant's money. The defendant gave Mr. Wright approximately fifty ($50) to sixty ($60) dollars. On another occasion, the defendant testified that he was going to a Slam Dunk

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Contest when he was again approached by the victim. The victim came up to the car the defendant was in, raised his shirt, pulled a gun, and asked for the defendant's money. The defendant gave the victim approximately fifty ($50) to sixty ($60) dollars. The defendant stated that he did not call the police about these two robberies, because the victim had threatened his life. The defendant stated that the victim stalked him at various places. The victim threatened to harm not only the defendant, but his family and particularly his mother. The defendant testified that, on one occasion, the victim tried to rob Carl Holder. When Mr. Holder tried to run, the victim shot him. The defendant also testified that the victim entered the home of Van Hammond, taped up Mr. Hammond's wife, and then shot Mr. Hammond. In another incident, the defendant stated that the victim attempted to rob the cousin of Robert Moore and shot the cousin in the face. On the day of the incident, the defendant testified that he was at his mother's home and saw the victim getting into his car. The defendant approached the victim and asked the victim if he could have a word with him. The victim got out of his car, and the two exchanged words. The victim then got upset and raised his shirt. The defendant saw that the victim had a weapon. The defendant grabbed his gun and shot at the victim. The victim ran, stooping, while the defendant was shooting at him. The defendant testified that the victim appeared to be trying to get his gun out. The defendant chased the victim, who fell over a branch in the field. The victim was on his back and appeared to be reaching for something, so the defendant fired again. Prior to the encounter, the defendant stated that he had no intention of killing the victim. The defendant testified that he has always been cautious of the victim. In cross-examination, the defendant denied that the victim was crawling on his hands and knees on the ground, as reportedly told to Detective Gray. The defendant admitted that he said "he had to take care of his business." Also, the defendant admitted that he was driving a white Cadillac that evening when he lost his keys. Carl Holder testified that he had known Michael Wright for twelve (12) years. In November, 1995, he stated that Mr. Wright had followed him from a store and demanded some money. When Mr. Holder refused to give the victim his money, the victim pulled a gun and shot Mr. Holder. The witness stated that he ran, but Mr. Wright caught him and took his money. Mr. Holder testified that Mr. Wright had a .44 or .45 caliber weapon. Mr. Holder told the defendant about this incident. Phyllis A. Richardson, mother of the defendant, testified that she had known Michael Wright for about five (5) years and that he had a violent reputation. Mrs. Richardson testified that Mr. Wright had an altercation with Mr. Calvin Crump, her employer. Mrs. Richardson testified that she would close the club owned by Mr. Crump at about 4 a.m. and take Mr. Crump's money home with her. In April, 1997, Mrs. Richardson stated that Mr. Wright told her that he knew she worked at the club at night, that she closed the club at 4 a.m., and that he was going to catch her before she got home. Mrs. Richardson testified that this encounter with Mr. Wright scared her, and, as a result, she stayed with her daughter for a few days. She stated that she did not tell her son about this encounter with Mr. Wright. Shasta Webb testified that she had known Michael Wright for about three (3) years. On April

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26, 1997, she stated that she and the defendant were going to a prom and "Little Bit," the victim, raised his shirt to the defendant and demanded his money. The defendant gave Mr. Wright his money. Ms. Webb stated that she was scared but did not tell the police, because Mr. Wright threatened to kill her and the defendant if they told anyone. LEGAL ANALYSIS PART A SUFFICIENCY OF EVIDENCE Since the defendant raises a sufficiency of evidence issue, we elect to address the issues in reverse order. The defendant contends that the facts in this case are insufficient to find him guilty beyond a reasonable doubt in the face of his assertion of self-defense. Further, the defendant asserts that the evidence overwhelmingly constituted self-defense, thus, a complete defense to the offense of murder. The State counters that the evidence fully supports a conviction for second degree murder. When reviewing a trial court's judgment, the appellate court will not disturb a verdict of guilty unless the facts in the record and inferences which may be drawn from it are insufficient as a matter of law for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Tenn. R. App. P. 13 (e); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Brewer, 932 S.W.2d 1, 17 (Tenn. Crim. App. 1996). Initially, a defendant is cloaked with the presumption of innocence. Tuggle, 639 S.W.2d at 914. However, a jury conviction removes the presumption of innocence and replaces it with one of guilt, so that, on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. Id. In determining the sufficiency of evidence, this Court does not reweigh or re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate court's duty to affirm the conviction, if the evidence viewed under these standards was sufficient for any rational trier of fact to have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). This rule is applicable to findings of guilt predicated upon the direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). The pertinent part of Tennessee Code Annotated

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