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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
August 11, 2004 Session STATE OF TENNESSEE v. LINDA HERRON
Direct Appeal from the Criminal Court for White County No. CR883 Leon Burns, Jr., Judge

No. M2003-00759-CCA-R3-CD - Filed December 10, 2004

The appellant, Linda Herron, was convicted by a jury in the White County Criminal Court of second degree murder. The trial court sentenced the appellant to eighteen years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting her conviction and the trial court's jury instructions. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed. NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT W. WEDEMEYER , J., joined. David Brady (on appeal), Joe L. Finley, Jr., (at trial and on appeal), and John B. Nisbett, III, (at trial and on appeal), Cookeville, Tennessee, for the appellant, Linda Herron. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William E. Gibson, District Attorney General; and William M. Locke and John Moore, Assistant District Attorneys General, for the appellee, State of Tennessee. OPINION At the appellant's trial, the proof adduced by the State revealed that the appellant and the victim, her husband, Gillis Herron, had a tumultuous relationship. Their twenty-six year marriage was "[r]ough. It was rocky and [marked by] a lot of jealousy, possessiveness, and a lot of fussing, mostly on his part." Several witnesses asserted that the appellant "degrade[ed] [the victim] and put him down in front of other people." Additionally, there was conflicting proof at trial regarding the victim's physical abuse of the appellant. Some of the State's witnesses testified that the appellant never appeared bruised, while other State's witnesses stated that they had seen the appellant bruised. Regardless, one of the State's witnesses, Everett Daniels, recalled that, approximately four to six months prior to the offense, the appellant told him, "I'm going to kill that son-of-a-bitch [the victim]. One of these days I'm going to kill him."

At approximately 6:30 p.m. on August 25, 2001, the day of the offense, Jason Herron, the son of the appellant and the victim, and Jason's wife, Jessica, stopped by the appellant's residence.1 Jason borrowed money from the appellant for cigarettes, and he returned to the residence with change at approximately 8:30 p.m. The appellant came outside wearing only a shirt and underwear. The appellant told Jason and Jessica that the victim was already in bed. Then, she "fussed" with Jason because she wanted Jason to leave his oldest child with her that night. Jason refused because the child had to attend church the next morning. Jason and Jessica left shortly after the conversation with the appellant. Later that night, at approximately 9:00 p.m., the appellant called her mother, Mary Elizabeth Haston. The appellant told her mother, "Come to me, Mama. And hurry. I've done something stupid." Mary contacted her stepson, Kenneth Eugene Haston, to drive her to the appellant's residence. The Hastons arrived at the appellant's residence twenty to twenty-five minutes after the appellant's call. The appellant came out of the back door of the residence, which door led into the laundry room then to the kitchen. Kenneth approached the house and saw the victim sprawled on his back on the floor of the laundry room. "[T]here was no response to him. All he was doing was just laying there gurgling." The victim's head was surrounded by a pool of blood. Additionally, Kenneth saw what he believed to be a bullet hole in the victim's head, and he also saw a gun on the washing machine. Kenneth encouraged the appellant to call 911 emergency services for assistance. Because the appellant did not have a telephone in the house, she and her mother went to a Shell service station that was located one and one-half miles from the appellant's residence. The appellant forewent going to the residence of her next-door neighbor, Officer J.T. King, even though she had used Officer King's telephone in the past. Once they arrived at the service station, the appellant called 911 and asked to speak with Regina Adcock. When the appellant was advised that Adcock was not present, the appellant requested that an ambulance be sent to her home. She stated that someone had been hurt after falling and hitting his head. The 911 call was received at 10:08 p.m. When emergency medical service (EMS) workers arrived, they found the victim lying in the floor of the laundry room and discovered that he had been shot two to three centimeters above his right ear. A large amount of blood circled the victim's head. From the color, temperature, and coagulation of the blood pool, Michael Scott Selby, one of the EMS workers, estimated that the blood had been present for at least fifteen to thirty minutes. Michael Selby knew that Officer King was the appellant's next-door neighbor. Accordingly, Selby requested Officer King's presence at the scene, and he also contacted the 911 dispatch office for additional police assistance. Selby noted that the appellant was not hysterical or crying at this

Many of the witnesses in the instant case share a surname. Accordingly, for clarity, we will be using the first names of the witnesses. W e intend no disrespect to these individuals.

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time. Selby did not detect any indication that first aid had been attempted prior to the arrival of EMS. The victim was taken to Erlanger Hospital where he later died. Police arrived at the residence shortly before EMS left with the victim. During a brief inspection of the house, Officer Tony Copeland with the Sparta Police Department found a gun on the bed in the back bedroom of the house. Officer Copeland recalled that the appellant "was very apologetic. She just kept telling me that it was an accident, that she was sorry." Allen Selby, an investigator with the Sparta Police Department, arrived at the scene after the victim was taken to the hospital. He stated that he found a loaded revolver in the master bedroom. The gun was an R.G. Industry .22 caliber revolver which was loaded with five live rounds. Additionally, there was evidence that the gun had been loaded with six rounds, but one of the rounds had been fired. Investigator Roy Gooch photographed the appellant the morning following the incident. The appellant told Investigator Gooch that her face was bruised, but he was unable to detect any bruises on the appellant's face. However, Investigator Gooch did photograph a large, purple bruise on the appellant's right arm. Dr. Charles Warren Harlan conducted the autopsy of the victim. He stated that the victim was six feet and one inch tall and weighed 208 pounds. Dr. Harlan found that a bullet entered the victim's head three inches below the top of his head. Additionally, Dr. Harlan observed five inches of stippling around the wound, suggesting that the bullet had been fired ten to twelve inches from the victim's head. Moreover, the "bullet traveled straight from right to left. There's no upward or downward deviation. There's no right or left deviation. It just went straight across." The bullet was recovered from the left parietal lobe of the victim's brain. Further, Dr. Harlan noted that there was no indication of alcohol in the victim's blood or urine; however, the fluids did contain trace amounts of methamphetamine. At the conclusion of Dr. Harlan's testimony, the State rested its case-in-chief. The defense proof was based primarily on the claims of defense witnesses who alleged that the victim frequently physically abused the appellant. The appellant contended that the victim beat her often, but she did not want to leave him because she was afraid of embarrassing the victim's family. Additionally, the appellant opined, "I guess I loved his blood." The appellant stated that the victim's abuse began four to six years prior to the offense, a time which coincided with the start of the victim's methamphetamine usage. On the day of the offense, the victim and the appellant argued about their son Jason. The victim pushed the appellant into a bedpost, bruising her arm. The appellant decided to leave until the situation cooled. However, the victim followed the appellant into the kitchen, blocking her exit from the back door of the home. The appellant got a drink of water from the kitchen sink, and the victim threw one of his shoes at her. The appellant did not say if she was struck by the shoe.

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Afterward, the appellant sat at the kitchen table, and the victim "smacked" her across the face with his other shoe. The victim told her, "You'd better get that gun out [of your purse] and you'd better shoot me because I am going to hurt you." The appellant responded, "I think I will." The appellant then pulled from her purse a gun that the victim's aunt had given him six months prior, which gun the victim insisted the appellant carry in her purse. The appellant turned the gun toward the "pool room" and cocked it, thinking that she would "scare him, to make him, you know, to get him where he wouldn't hurt me." The appellant could not recall if the victim charged her, but she recalled, "I shut my eyes and came around and it just went off." The appellant claimed that she was seated and the victim was standing when the shot was fired. She stated that she heard "the little bang," then saw the victim fall at her feet. She wondered, "What have I done?" The appellant called her mother, and Mary and Kenneth Haston arrived shortly thereafter. The Hastons urged the appellant to call 911, and she did so. Soon, help arrived. The appellant stated that she was five feet and two or three inches tall. She could not explain how the bullet traveled straight through the victim's brain if the shooting occurred when she was sitting and the victim was standing. The appellant also could not explain why she called her mother for assistance at 9:00 p.m., but she failed to call for medical assistance until more than one hour later. Further, the appellant could not relate why she did not call for help from Officer King's home. Moreover, when asked why she told 911 that someone had fallen instead of mentioning the gunshot wound, the appellant opined that she must have been "hysterical." From the foregoing proof, the jury found the appellant guilty of the indicted offense of second degree murder. The trial court sentenced the appellant to eighteen years incarceration. The appellant timely appealed, challenging the sufficiency of the evidence and the correctness of the trial court's instructions to the jury. II. Analysis A. Sufficiency of the Evidence On appeal, a jury conviction removes the presumption of the appellant's innocence and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to this court why the evidence will not support the jury's findings. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no "reasonable trier of fact" could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). Accordingly, on appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. See State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are

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resolved by the trier of fact, and not the appellate courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). To sustain the appellant's conviction for second degree murder, the State was required to prove that the appellant knowingly killed the victim. See Tenn. Code Ann.

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