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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
May 2000 Session STATE OF TENNESSEE v. LON ADELBERT PIERCE
Appeal from the Circuit Court for Benton County No. 97-CR690 C. Creed McGinley, Circuit Court Judge

No.W1999-01433-CCA-R3-CD - Filed October 23, 2000

The defendant, Lon Adelbert Pierce, appeals from his conviction of the first degree premeditated murder of Larry Gene Peppers, Sr. He raises numerous issues on appeal. Significant among his appellate issues are his challenge to the sufficiency of the evidence based upon his claim of diminished capacity, his claim that a psychologist is incompetent to give rebuttal testimony on the issue of diminished capacity, and his claim that double jeopardy barred his retrial on first degree murder after the jury at his first trial determined that he was not guilty of the offense, as evidenced by juror affidavits. Because we find no error requiring reversal, we affirm the defendant's conviction. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed. JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W. WEDEMEYER , J.J., joined. Terry J. Leonard, Camden, Tennessee, for the appellant, Lon Adelbert Pierce. Paul G. Summers, Attorney General, Tara B. Hinkle, Assistant Attorney General, Robert G. Radford, District Attorney General, Beth Boswell, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant, Lon Adelbert Pierce, appeals from his conviction of premeditated first degree murder. Pierce's conviction stems from a disagreement with Larry Gene Peppers, Sr., the victim, over payment for a truck Pierce sold him. Pierce was indicted for the premeditated murder of Peppers and the attempted first degree murder of Peppers' son. At a trial in the Benton County Circuit Court, a jury acquitted the defendant of attempted first degree murder and was unable to reach a verdict on the premeditated murder count. Pierce was retried on the premeditated murder count and found guilty. He is presently serving a life sentence for his crime. In this direct appeal, Pierce raises the following issues:

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Whether the evidence sufficiently supports the defendant's conviction in light of his claim of diminished capacity. Whether a psychologist is a competent witness to give expert testimony on the issue of diminished capacity. Whether the trial court erred in admitting photographs of the victim. Whether the trial court erred in failing to admonish the prosecutor for remarks made during closing argument. Whether the trial court properly ruled that evidence of the identity of the individual who assisted the defendant in his flight was relevant and admissible. Whether the trial court properly instructed the defendant to reveal the identity of the individual who assisted him in his flight. Whether double jeopardy barred the defendant from retrial on the offense of first degree premeditated murder after the jury at his first trial, according to ten juror affidavits, determined that he was not guilty of that offense but was unable to agree on his guilt on the lesser offenses charged.

Upon review of the briefs and oral arguments of the parties, the law, and the appellate record, we affirm the judgment of the trial court. In the light most favorable to the state, the evidence at trial demonstrated that sometime around February 20, 1997, the defendant, Lon Adelbert Pierce, sold a truck to the victim, Larry Peppers, Sr., under an informal installment agreement. The defendant has a limited education, and Teresa Peppers, the victim's wife, was to handle the paperwork regarding transfer of title and recording of a lien in Pierce's favor for the unpaid portion of the sale price. Contrary to the agreement, Mrs. Peppers caused title to be transferred on February 20, 1997 without recordation of the lien. Thereafter, the victim failed to make scheduled payments to Pierce. Pierce attempted over the course of several days prior to March 21, 1997 to confront the Peppers, but they successfully avoided him. On March 18, 1997, Pierce called the Decatur County Clerk and informed him that the vehicle's title should have a lien recorded on it. On or about March 19, 1997, Pierce went to the Decatur County Courthouse and talked with several individuals about the situation. No one was able to resolve the issue for him. During a conversation with Danny Turner, the Circuit Court Clerk, Pierce said he would like to take care of the situation the right way, but if that was not possible, he would take care of it his way. Both the defendant and the victim did mechanic work and frequented the North 40 Truck Stop. In the two weeks prior to the victim's death on March 21, 1997, Douglas Glenn Whitfield, who owned the North 40 Truck Stop, was aware that Pierce was upset with the victim for not paying in accord with the installment contract on the truck. Pierce made statements to Whitfield that he would either get his truck or kill the victim. Whitfield recalled that Pierce became increasingly agitated in the week prior to March 21. Beth Mary Podgwaite was an employee of the North 40 Truck Stop. In March 1997, she was aware of Pierce's anger toward the victim over the -2-

sale of the truck. Podgwaite was present when Pierce said that he would take care of the situation however he could, and he would shoot the victim if necessary. On the morning of March 21, 1997, Larry Peppers, Sr., his wife Teresa, and his son Larry Jr. left their home to drive to the North 40 Truck Stop. While traveling along on the highway, they saw Pierce, who turned his car around and followed them to the truck stop. The Peppers went inside, and Pierce followed. Pierce confronted the victim, and the victim tried to back away. Mr. Whitfield was concerned about the disagreement taking place inside his business and asked Pierce to go outside. Pierce complied. When the Peppers finished their business, they went outside. As the Peppers attempted to leave, Pierce approached their vehicle. He and the victim exchanged words. Larry Sr. told Larry Jr. to call the police, and the victim said that Larry Jr. should call the morgue. Pierce said he was going to get a gun. He leaned into his vehicle, which was parked nearby, and retrieved a gun. Twice he pointed the gun at Larry Sr., and Larry Jr. pushed Pierce's arm away. Pierce pointed the gun at Teresa Peppers, and again Larry Jr. pushed Pierce's arm away. As the two struggled over the gun, Pierce fired and wounded Larry Jr. The defendant chased Larry Sr. in the parking lot. Shots rang out, and Larry Sr. fell wounded. The defendant approached Larry Sr. and shot him again as he lay wounded on the pavement.1 Teresa Peppers ran toward the truck stop, and Pierce followed her. Podgwaite, who was working inside the truck stop, heard the defendant say, "Were is she? I'm going to kill her." Whitfield intervened and told Pierce to leave. Pierce went outside and stayed on the premises for about five minutes before driving off. Larry Peppers, Sr. died from his injuries. Larry Peppers, Jr. survived. After Pierce left the truck stop, he changed vehicles and drove to Arkansas. Eventually, he went to Mexico. He lived on the lam for fourteen months but finally surrendered to authorities in Phoenix, Arizona. Prior to surrendering, Pierce talked by telephone with Benton County Sheriff Bobby Shannon. A tape of one of their conversations was played for the jury. In it, Pierce acknowledged killing the victim. He also said, "Yeah, I wanted to kill him. I went plumb nuts." To counter the state's proof, Pierce presented evidence that he was in dire financial condition, and he became very distraught over the victim failing to pay him and the victim's wife failing to record the lien on the truck. Pierce denied having said that he was going to kill the victim; he claimed he actually said the victim was killing him by not paying for the truck. Pierce claimed he had been so anxious over his financial woes that he had not slept for a couple of days before the shooting. He could not remember the last time he had eaten. He claimed that he "lost it" during his confrontation with the victim after the victim said that he had sold the truck and had no intention of paying for it. He further claimed he could not remember what happened next. He vaguely recalled struggling with someone. The next thing he remembered was Mr. Whitfield telling him to get out

Witness accounts varied regarding the total number of shots fired; however, a total of eight spent cartridge casings were recovered.

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of the truck stop. Pierce claimed that at this point, he looked down and saw the gun in his hand. He walked outside and saw Larry Jr. and Larry Sr. on the ground and realized he must have shot them. Pierce testified that after the shooting, he went through a series of vehicle changes during his flight to Arkansas and Mexico. On cross-examination, he was asked who helped him get the pickup truck in which he drove to Mexico. He refused to identify who brought him the truck and to answer whether this individual provided him with money and clothing. In support of a claim of diminished capacity, Pierce presented expert testimony from a psychiatrist and a neuropsychologist that he was suffering from major depression and hypoglycemia related to diabetes on the day of the crime. Additionally, Pierce had a below-average IQ in the borderline mentally retarded range and was diagnosed by the neuropsychologist as having borderline mental functioning. According to the expert proof, Pierce had a history of major depression and suicidal thoughts dating back to 1994. The depression would result in impairment of thinking, talking, concentration and attention. Depressed individuals are easily upset because they feel like they are barely surviving. The defense psychiatrist opined that the money the victim owed Pierce represented a financial "life boat" following a number of financial adversities Pierce had suffered. Regarding hypoglycemia, the psychiatrist testified that individuals who are suffering from hypoglycemia will first lose control of their emotions and passions. The ability to think begins to shut down, and amnesia can result. Ultimately, in severe cases, the brain shuts down. Finally, the defense psychiatrist testified that as a result of the defendant's low IQ, he had diminished ability to think things through. The defense psychiatrist opined that all of these things combined with sleep deprivation resulted in diminished capacity for Pierce to have the capacity to act intentionally. On cross-examination, the defense psychiatrist conceded that Pierce said in the doctor's interview of him that he was going to kill the victim if he did not get his money. In rebuttal, the state presented the testimony of a psychologist who performed a forensic evaluation of Pierce. This expert opined that Pierce was not legally insane at the time of his offense and was not severely clinically depressed. He recounted that in his interview with Pierce, the defendant did not mention anything about lack of memory of the incident, a blackout, or hypoglycemia. The defendant reported to this expert that he was not having trouble with his diabetes. Pierce spoke very negatively of the victim to this psychologist and said that the victim deserved to be shot. The state also presented the rebuttal testimony of a medical doctor, who opined that an individual suffering from hypoglycemia would have difficulty hitting a target or driving. It would be impossible for such an individual to change cars twice and go on a two-day driving spree. Further, it would be impossible for an individual to have hypoglycemia causing amnesia for a two to five minute period of time and then awaken and know what was going on. In surrebuttal, the defense presented evidence that the state's psychological expert evaluated Pierce for only about 30 minutes.

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Pierce was tried initially for the attempted first degree murder of Larry Peppers, Jr. and the first degree murder of Larry Peppers, Sr. The jury acquitted him of attempted first degree murder and was unable to reach a verdict on the first degree murder count. Pierce was retried, and at the second trial the jury convicted him of first degree murder of Larry Peppers, Sr. The trial court sentenced Pierce to life in prison. The defendant appeals from his conviction of first degree murder. I In his first issue, the defendant challenges the sufficiency of the convicting evidence in light of his claim of diminished capacity. The defendant has included a sparse two-sentence argument on this issue in his brief. His argument contains no citation to authority or to the record. This issue is waived. See Tenn. R. App. P. 27(a)(7); Tenn. R. Ct. Crim. App. 10(b). Had this issue not been waived, we nevertheless would have found it without merit. When an accused challenges the sufficiency of the evidence, an appellate court's standard of review is whether, after considering 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 reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990). In determining the sufficiency of the evidence, this court should not reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this court must afford the State of Tennessee the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835. In pertinent part, first degree murder is "[a] premeditated and intentional killing of another . . . ." Tenn. Code Ann.

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