State v. Brown

OPINION

This capital case arose from the death of four-year-old Eddie Eugene Brown and the subsequent conviction of his father for first-degree murder, as well as for child neglect. 1 After careful review, we have reached the conclusion that the evidence introduced at trial is not sufficient to support a conviction for first-degree murder, We therefore hold that the defendant’s conviction must be reduced to second-degree murder.

1. Factual Background

The victim in this case, Eddie Eugene Brown, was born in early February 1982, the son of defendant Mack Edward Brown and his co-defendant, Evajean Bell Brown, who were not living together at the time of Eddie’s birth and were later divorced. Evajean was not able to nurse Eddie immediately after his birth because she was hospitalized with hypotoxemia.

According to his pediatrician, this hospitalization and inability to nurse may have contributed to Eddie’s being, as the doctor described him, a “failure to thrive baby.” When the physician first saw Eddie on March 17, 1982, at a little more than five weeks old, the infant was in good health but smaller than the median for his age. Mack and Evajean were still separated at that time, and relations between them eventually worsened to the point that Eva-jean asked the pediatrician to change Eddie’s name on his records to Justin Michael Brown. Because Eddie had not begun to talk by age two-and-a-half, he was referred to the University of Tennessee Speech and Hearing Clinic. The clinic’s report indicates that by age three years and four months, he was not yet toilet-trained and could speak single words, but not whole sentences. Evajean brought Eddie to see his pediatrician on November 5, 1984, because, as the doctor testified, she said he had fallen down fifteen carpeted stairs the night before. Although the physician found no injuries consistent with such a fall, he did note that Eddie’s penis was red, swollen, and tender to the touch. His medical records do not give a reason for this condition. Eddie’s last visit to his pediatrician’s office was on October 16, 1985, *534 with his mother and father, who by that time had reconciled.

According to a Department of Human Services social worker who had investigated the Brown home, Eddie was a hyperactive child with a severe speech problem. She reported that he also had severe emotional and behavioral problems. As an example of his behavior, she reported that during her visit, he ran down the hall directly into a wall.

Defendant Mack Brown’s relationship with Evajean Brown appears to have been influenced by his dependent personality, a condition confirmed by the diagnoses of the staff of the Middle Tennessee Mental Health Institute and the Helen Ross McNabb Center. In describing Mack and Evajean’s relationship, Mack’s mother stated that he appeared to do everything Evaje-an wanted him to do and that he seemed to be afraid of her. A witness who visited them when Eddie was taken to the hospital on April 10, 1986, indicated that they sat close to one another holding hands and that whenever Evajean got up, he followed her. Mack’s mother testified that they remarried in the summer of 1985.

Mack had been living with his wife and his son for less than a year when Eddie died. The Brown’s next-door neighbor testified that, at around 3:40 a.m. on April 10, 1986, she heard yelling and screaming in their apartment. She distinctly heard a man’s voice say, “Shut up. Get your ass over here. Sit down. Shut up. I know what I’m doing.” She also heard a woman’s voice say, “Stop, don’t do that. Leave me alone. Stop don’t do that.” She testified that the fight went on for 30 minutes and that she heard a sound which she described as a “thump, like something heavy hit the wall.” The only other evidence introduced concerning the events of that morning was the tape of Evajean’s call for an ambulance. At 8:59 a.m. she telephoned for help for her son, stating that he “fell down some steps and he’s not breathing.”

The paramedics who answered the call tried to revive Eddie but were unsuccessful. His heartbeat was reestablished at the hospital, but as it turned out, he was already clinically brain-dead. One of the treating nurses later testified that at that point, Eddie was being kept alive only for purposes of potential organ donation.

Various examinations indicated that the child had suffered two, and possibly three, skull fractures. The CT scan revealed a hairline fracture in the front right temporal portion of his skull, as well as a blood clot and swelling in that area of the head. The scan also revealed the possibility of a second fracture in the middle of the frontal bone. 2 Finally, blood coming from Eddie’s ear indicated that he had a fracture at the base of his skull which had caused an injury to the middle ear. Although no basiliar skull fracture appeared on the X-rays or CT scan of Eddie’s skull, expert testimony established that such fractures generally are not revealed in these ways.

The CT scan showed a cerebral edema, or swelling of the brain, which was more pronounced on the right side of the brain than the left, and which had shifted the midline of Eddie’s brain toward the left. The pathologist who performed the autopsy noted the presence of vomit in Eddie’s lungs and explained that swelling in the brain can cause vomiting. He theorized that repeated blows to Eddie’s head caused cerebral hemorrhages and swelling. According to the expert, this pressure in the skull resulted in Eddie’s aspiration of his own vomit and his ultimate death. He testified further that the swelling process could have taken as long as four or five hours to a day, or as little as 15 minutes. 3

A neurological surgeon testified that Eddie’s brain injuries were, at least in part, *535 consistent with contrecoup 4 injuries, which occur when the head is violently shaken back and forth. The surgeon explained that there is a limited amount of fluid between the brain and the skull. That fluid generally serves as a shock absorber, but when the skull and brain are moving at a sufficient velocity and the skull suddenly stops, the fluid is not an adequate buffer between the delicate brain tissue and the hard skull surface. As he described this phenomenon at trial, “when the skull stops the brain slaps up against it,” resulting in severe bruising and swelling of the brain.

In addition to his cranial and cerebral injuries, Eddie had several internal injuries. When Eddie’s internal organs were removed for donation, the county medical examiner observed hemorrhaging in the duodenum section of his intestine. He testified that such localized hemorrhaging was consistent with a blow by a fist to the upper portion of the abdomen. Additionally, blood was found in the child’s stool and urine, and his liver enzymes were elevated. There was testimony to the effect that these conditions may have resulted from cardiac arrest, but that they are also consistent with blows to the abdomen, liver, and kidneys.

Finally, Eddie had bruises of varying ages on his face, scalp, ears, neck, chest, hips, legs, arms, buttocks, and scrotum. He had a large abrasion on his shoulder, scratches on his neck and face, and a round, partially healed wound on his big toe which, according to one of his treating nurses, was consistent with a cigarette burn. 5 He had lacerations on both his ears at the scalp. He had linear bruises consistent with being struck with a straight object. The autopsy revealed an old lesion at the base of his brain which was evidence of a head injury at least two weeks before his death. X-rays revealed a broken arm which had not been treated and which had occurred three to five weeks before his death. The injury to his arm was confirmed by a witness who had noticed his arm hanging limply and then later noticed it in a homemade sling.

The defendant’s statement to the police verified the fact that Eddie’s broken arm was never properly treated, but Mack Brown also told them that he had tried to help Eddie by making a splint for his arm himself. He explained that he did not take Eddie for medical treatment because he was terrified that no one would believe that he and his wife had not inflicted this injury on the child. He could not explain the old bruises on Eddie’s body. He stated that although sometimes they disciplined Eddie by spanking him, they did attempt to discipline him in, as he described it, “alternative ways” such as sending him to his room to let him know that they were upset and wanted him to mind.

Brown’s statement indicates that around two or three o’clock on the morning of April 10, 1986, he and his wife both spanked Eddie because Eddie had urinated and defecated on the floor. The defendant admitted to another spanking, after he had sent Eddie to bed, and after he and his wife had a fight over money. As the defendant described it, it was during this spanking that his “mood began to kind of snap and let go.” He said that he remembered going to Eddie’s bedroom and remembered ordering Evajean out of the room. Although he denied remembering anything other than spanking Eddie’s bottom with the open part of his hand, he stated that he was afraid he had beaten Eddie during the time that everything “went blank." The only thing he clearly recalled before that point was Eddie “staring at [him] mean” and saying, “I hate you! I hate you!” He stated that his next memory was of going downstairs and hearing Eddie behind him, falling onto the landing and into the door.

When the police questioned the defendant, his right hand was badly swollen. He explained that several days prior to *536 April 10, he had injured his hand while working on his car and had sought medical treatment at Fort Sanders Hospital. They put a splint on his hand and gave him pain medication. He denied having struck Eddie with his right hand, stating that “[i]t hurts so bad there ain’t no way.” The hospital’s records indicate that on April 3, the defendant’s hand was x-rayed and splinted. The records do not indicate that there was any break in the skin on the hand.

With the consent of the defendant, the police searched the apartment and recovered numerous items stained with blood consistent with Eddie’s blood type, including an adult pajama top, a brown paper bag from the living room floor, and several towels and wash cloths. Police also found a bandage under the kitchen sink which was stained with blood consistent with Eddie’s blood type. The blood on this bandage material was on the outside near the adhesive tape, not on the inner surface, which would have been next to the skin of the person wearing the bandage. The pants the defendant was wearing at the time of his arrest also had blood stains on them that were consistent with Eddie’s blood type. A number of other items collected from the apartment tested positive for human blood, but the type of blood could not be determined because there was too little blood or they had been washed. These items included the couch cover, a pillow case and sheets taken from Eddie’s bed, paint chips from the wall in Eddie’s room, a child’s undershirt and socks, and a three-by-five inch section of the living room rug.

The defendant’s low level of intellectual functioning has been evident in nearly every phase of his life. His mother’s testimony indicated that, as a baby, he was slow in learning to walk, a condition she blamed on head injuries he might have sustained when he was delivered using forceps. At age 12, he was considered by school officials to be educably mentally retarded. His school records for 1964 indicate an IQ of 55, using a Lorge-Thorndike test. In 1966, while 14 years old and still in the third grade, he was tested again. His verbal score was 56 and his non-verbal score was 75, for a total score of 62. In 1968, his verbal score was 53 and his non-verbal score was 76, for a total score of 60. After his arrest, he was evaluated at Middle Tennessee Mental Health Institute and scored 75 on the Wexler Adult Intelligence Test. Because there was some evidence that the defendant might be malingering, the clinical psychologist who performed the test at MTMHI testified that he felt that the test results did not reflect the defendant’s true abilities and suggested that a rough estimate of his capabilities might be five to ten points higher. 6

The defendant also has a documented history of mental and emotional problems. On a neighbor’s recommendation, he sought help through the Helen Ross McNabb Center between the time of his divorce and his remarriage. The staff there diagnosed him as having recurrent major depression and a dependent personality, a condition characterized by inadequacy in decision-making and a tendency to allow another person to accept the major responsibilities for his life. At that time, he showed symptoms such as crying, appetite loss, sleep problems and numbness, tingling and headaches, among other things. He had made suicidal gestures but never a serious attempt on his own life.

After his arrest he was placed at the Middle Tennessee Mental Health Institute for observation from June 10 through July 29, 1986. While there he was diagnosed as having a dysthymic disorder, that is, a depressive neurosis, and a dependent personality. Experts at MTMHI concluded that he was not psychotic and that although he did have a significant personality disorder and was probably borderline mentally retarded, the degree of his retardation was not sufficient to establish an insanity defense. This diagnosis was confirmed during the defendant’s second visit to MTMHI from April 4 through May 6, 1988, for a competency evaluation. The staff reiterated that the defendant’s handicapping *537 feature is his low intellect. These findings were also confirmed by the staff of the Helen Ross McNabb Center, which provided follow-up care to the defendant after his release from MTMHI.

2. Sufficiency of the Evidence

We are asked first to decide whether the evidence was sufficient to support the verdict of first-degree murder. The defendant argues principally that premeditation was not shown. He also contends that adequate weight was not given to the fact that another adult (Eddie’s mother) was in the home and that Eddie had sustained injuries in the past while she had sole custody of him. Further, the defendant questions whether the state carried its burden of proving his sanity.

Our consideration of the sufficiency of the evidence is governed by the “well-settled rule that all conflicts in testimony, upon a conviction in the trial court, are resolved in favor of the State, and that upon appeal the State is entitled to the strongest legitimate view of the trial evidence and all reasonable or legitimate inferences which may be drawn therefrom.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). Nevertheless, the record must demonstrate that the state carried its burden at trial of establishing that the homicide in question was, indeed, first-degree murder. In this case, we conclude, the prosecution failed to discharge its burden.

Addressing the least complex of the defendant’s allegations first, we note that the question of relative criminal responsibility for the victim’s death, as between Mack Brown and Evajean Brown, was essentially one of credibility for the jury’s determination. We find no basis to disturb the jury’s determination in this regard.

We also conclude that the state carried its burden on the issue of the defendant’s sanity. The defense expert who reviewed the defendant’s history and attempted to interview him concluded that the defendant met the criteria for the insanity defense in Tennessee because he was suffering from depression with psychotic features. Although the state s psychological experts conceded that the defendant was chronically depressive and might be mentally retarded, they concluded unequivocally that his condition did not rise to the level of insanity, under the standards of Graham v. State, 547 S.W.2d 531, 543 (Tenn.1977). This conflict in testimony must be resolved in favor of the state’s theory, based on the jury’s verdict of guilt as approved by the trial judge. See State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.1978).

But even though the defendant failed to establish insanity as an absolute defense to homicide in this case, his mental state was nevertheless relevant to the charge of first-degree murder, to the extent that it related to the necessary elements of that offense. The statute in effect at the time of the homicide in this case defined first-degree murder as follows:

Every murder perpetrated by means of poison, lying in wait, or by other kind of willful, deliberate, malicious, and premeditated killing, or committed in the perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or the unlawful throwing, placing or discharging of a destructive device or bomb, is murder in the first degree.

T.C.A. § 39-2-202(a) (1982). Based upon our review of the record, we conclude that the evidence in this case is insufficient to establish deliberation and premeditation. Hence, the defendant’s conviction for first-degree murder cannot stand. However, we do find the evidence sufficient to sustain a conviction of second-degree murder.

At common law, there were no degrees of murder, but the tendency to establish a subdivision by statute took root relatively early in the development of American law. The pattern was set by a 1794 Pennsylvania statute that identified the more heinous kinds of murder as murder in the first degree, with all other murders deemed to be murder in the second degree. Some states have subdivided the offense into three or even four degrees of murder, but *538 since the enactment of the first such statute in 1829, Tennessee has maintained the distinction at two. 7 It is one which this Court has found to be “not only founded in mercy and humanity, but ... well fortified by reason.” 8 Poole v. State, 61 Tenn. 289, 290 (1872).

From the beginning, the statutory definition of first-degree murder required the state to prove that “the killing [was] done uñllfully, that is, of purpose, with intent that the act by which the life of a party is taken should have that effect; deliberately, that is, with cool purpose; maliciously, that is, with malice aforethought; and with premeditation, that is, a design must be formed to kill, before the act, by which the death is produced, is performed.” Dale v. State, 18 Tenn. (10 Yer.) 551, 552 (1837) (emphasis added). Because conviction of second-degree murder also requires proof of intent and malice, the two distinctive elements of first-degree murder are deliberation and premeditation.

Even as early as 1872, however, prosecutors and judges had apparently fallen into the error of commingling these two elements by using the terms interchangeably. In Poole v. State, supra, for example, Justice Turney expounded upon the statutory distinction between deliberation and premeditation and the need to maintain them as separate elements of the first-degree murder:

It is the defining words of the statute that make the offenses [of first- and second-degree murder] and distinctions between them, definitions and distinctions in the control of the Legislature— control it has exercised, and the Courts are bound by it.

It is too late, after the words of the Act have been so long, uniformly and plainly construed, to attempt to make any two of its words have the same meaning — a meaning of equally forcible import — so as to excuse or do away with the employment of one in an indictment for murder in the first degree....

[As we noted in Dale v. State] ‘... proof must be adduced to satisfy the mind that the death of the party slain was the ultimate result which the conquering will, deliberation and premeditation of the party accused sought,’ making a marked distinction and independence between the terms ‘deliberation’ and ‘premeditation ’ and excluding the idea of the substitution of the one for the other, or of the tautology in their use.

Id. 61 Tenn. at 290-92 (emphasis added).

In Poole, the issue was whether the indictment, which was drawn in the language of common-law murder, was sufficient to charge statutory first-degree murder, given the fact that it included “no word or sentence charging a cool purpose, [deliberation being] an indispensable ingredient in murder in the first degree.” Id. at 293. As Justice Turney noted, “[willfulness, malice and premeditation may exist without that cool purpose contemplated by the statute as construed,” id., and if so, the result is second-degree murder, not first.

Intent to kill had long been the hallmark of common-law murder, and in distinguishing manslaughter from murder on the basis of intent, the courts recognized, in the words of an early Tennessee Supreme Court decision, that

[t]he law knows of no specific time within which an intent to kill must be formed so as to make it murder [rather than manslaughter]. If the will accompanies the act, a moment antecedent to the act itself which causes death, it seems to be as completely sufficient to make the of-fence murder, as if it were a day or any other time.

*539 Anderson v. State, 2 Tenn. (2 Overt.) 6, 9 (1804). Of course, the Anderson opinion predates the statutory subdivision of murder into first and second degrees. But the temporal concept initially associated in that case with intent, i.e., that no definite period of time is required for the formation of intent, was eventually carried over and applied to the analysis of premeditation. Hence, by the time the opinion in Lewis v. State was announced in 1859, the Court had begun the process of commingling the concepts of intent, premeditation, and deliberation, as the following excerpt demonstrates:

The distinctive characteristic of murder in the first degree, is premeditation. This element is superadded, by the statute, to the common law definition of murder. Premeditation involves a previously formed design, or actual intention to kill. But such design, or intention, may be conceived, and deliberately formed, in an instant. It is not necessary that it should have been conceived, or have preexisted in the mind, any definite period of time anterior to its execution. It is sufficient that it preceded the assault, however short the interval. The length of time is not of the essence of this constituent of the offense. The purpose to kill is no less premeditated, in the legal sense of the term, if it were deliberately formed but a moment preceding the act by which the death is produced, than if it had been formed an hour before.

40 Tenn. (3 Head) 127, 147-48 (1859) (emphasis added).

It is this language (“premeditation may be formed in an instant”) for which Lewis is frequently cited. See, e.g., Turner v. State, 119 Tenn. 663, 108 S.W. 1139, 1142 (1908). What is often overlooked is the following language, also taken from Lewis:

The mental state of the assailant at the moment, rather than the length of time the act may have been premeditated, is the material point to be considered. The mental process, in the formation of the purpose to kill, may have been instantaneous, and the question of vital importance is — was the mind, at that moment, so far free from the influence of

excitement, or passion, as to be capable of reflecting and acting with a sufficient degree of coolness and deliberation of purpose; and was the death of the person assaulted, the object to be accomplished — the end determined upon.

Lewis, 40 Tenn. at 148 (emphasis added).

Hence, perhaps the two most oft-repeated propositions with regard to the law of first-degree murder, that the essential ingredient of first-degree murder is premeditation and that premeditation may be formed in an instant, are only partially accurate, because they are rarely quoted in context. In order to establish first-degree murder, the premeditated killing must also have been done deliberately, that is, with coolness and reflection. As noted in Rader v. State, 73 Tenn. 610, 619-20 (1880):

When the murder is not committed in the perpetration of, or attempt to perpetrate any of the felonies named in the [statute], then, in order to constitute murder in the first degree, it must be perpetrated by poison or lying in wait, or some other kind of willful, deliberate, malicious, and premeditated killing; that is to say, the deliberation and premeditation must be akin to the deliberation and premeditation manifested where the murder is by poison or lying in wait — the cool purpose must be formed and the deliberate intention conceived in the mind, in the absence of passion, to take the life of the person slain. Murder by poison or lying in wait, are given as instances of this sort of deliberate and premeditated killing, and in such cases no other evidence of the deliberation and premeditation is required; but where the murder is by other means, proof of deliberation and premeditation is required. It is true it 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 coolly formed, and not in passion, or, if formed in passion, it must be executed after the passion has had time to subside.... [I]f the purpose to kill is formed in passion ..., and executed *540 without time for the passion to cool, it is not murder in the first degree, but murder in the second degree.

(Emphasis added.)

The obvious point to be drawn from this discussion is that even if intent (or “purpose to kill”) and premeditation (“design”) may be formed in an instant, deliberation requires some period of reflection, during which the mind is “free from the influence of excitement, or passion.” Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, 868 (1966).

Despite admonitions in the opinions of the Tennessee Supreme Court during the nineteenth century and early part of the twentieth century regarding the necessity of maintaining a clear line of demarcation between first- and second-degree murder, 9 that line has been substantially blurred in later cases. The culprit appears to be the shortcutting of analysis, commonly along three or four different tracks.

One of those has been the same error decried by Justice Turney in 1872, i.e., the use of the terms “premeditation” and “deliberation” interchangeably, or sometimes collectively, to refer to the same concept. Thus, in Sikes v. State, 524 S.W.2d 483, 485 (Tenn.1975), the Court said: “Deliberation and premeditation involve a prior intention or design on the part of the defendant to kill, however short the interval between the plan and its execution.” While this statement focuses on premeditation, nowhere in the brief discussion that follows is there any reference to the coolness of purpose or reflection that is required under the older cases to establish deliberation as a separate and distinct element of first-degree murder. But if deliberation was given little attention in Sikes, it was not even discussed in State v. Martin, 702 S.W.2d 560 (Tenn.1985), perhaps because the litigants failed to raise the issue. In Martin, the Court confined its first-degree murder analysis to the elements of premeditation, willfulness, and malice, even though the theory of defense suggests that lack of proof of deliberation was equally relevant to the discussion. Id. at 562-63.

Another weakness in our more recent opinions is the tendency to overemphasize the speed with which premeditation may be formed. The cases convert the proposition that no specific amount of time between the formation of the design to kill and its execution is required to prove first-degree murder, into one that requires virtually no time lapse at all, overlooking the fact that while intent (and perhaps even premeditation) may indeed arise instantaneously, the very nature of deliberation requires time to reflect, a lack of impulse, and, as the older cases had held at least since 1837, a “cool purpose.” Dale v. State, supra, 18 Tenn. at 552.

This trend toward a confusion of premeditation and deliberation has not been unique to Tennessee. It was for a time reflected by the commentators. In Clarke v. State, supra, 402 S.W.2d at 868, the Court quoted from the 1957 edition of Wharton’s Criminal Law and Procedure as follows:

“Deliberation and premeditation involve a prior intention or design to do the act in question. It is not necessary, however, that this intention should have been conceived at any particular period of time, and it is sufficient that only a moment elapsed between the plan and its execution_”

A more recent version of Wharton’s Criminal Law, however, returns the discussion of premeditation and deliberation to its roots:

Although an intent to kill, without more, may support a prosecution for common law murder, such a murder ordinarily constitutes murder in the first degree only if the intent to kill is accompanied by premeditation and deliberation. ‘Pre *541 meditation’ is the process simply of thinking about a proposed killing before engaging in the homicidal conduct; and ‘deliberation’is the process of carefully weighing such matters as the wisdom of going ahead with the proposed killing, the manner in which the killing will be accomplished, and the consequences which may be visited upon the killer if and when apprehended. ‘Deliberation’ is present if the thinking, i.e., the ‘premeditation,’ is being done in such a cool mental state, under such circumstances, and for such a period of time as to permit a ‘careful weighing’ of the proposed decision.

C. Torcia, Wharton’s Criminal Law § 140 (14th ed. 1979) (emphasis added).

To the same effect is this analysis of the distinction between first- and second-degree murder found in 2 W. LaFave and A. Scott, Substantive Criminal Law § 7.7 (1986):

Almost all American jurisdictions which divide murder into degrees include the following two murder situations in the category of first-degree murder: (1) intent-to-kill murder where there exists (in addition to the intent to kill) the elements of premeditation and deliberation, and (2) felony murder where the felony in question is one of five or six listed felonies, generally including rape, robbery, kidnapping, arson and burglary. Some states instead or in addition have other kinds of first-degree murder.

(a) Premeditated, Deliberate, Intentional Killing. To be guilty of this form of first-degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words ‘premeditate’ and ‘deliberate’ as they are used in connection with first-degree murder. Perhaps the best that can be said of ‘deliberation’ is that it requires a cool mind that is capable of reflection, and of ‘premeditation’ that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.

It is often said that premeditation and deliberation require only a ‘brief moment of thought’ or a ‘matter of seconds,’ and convictions for first-degree murder have frequently been affirmed where such short periods of time were involved. The better view, however, is that to ‘speak of premeditation and deliberation which are instantaneous, or which take no appreciable time, ... destroys the statutory distinction between first and second-degree murder,’ and (in much the same fashion that the felony-murder rule is being increasingly limited) this view is growing in popularity. This is not to say, however, that premeditation and deliberation cannot exist when the act of killing follows immediately after the formation of the intent. The intention may be finally formed only as a conclusion of prior premeditation and deliberation, while in other cases the intention may be formed without prior thought so that premeditation and deliberation occurs only with the passage of additional time for ‘further thought, and a turning over in the mind.’ (Footnotes omitted; emphasis added.)

One further development in Tennessee law has tended to blur the distinction between the essential elements of first- and second-degree murder, and that is the matter of evidence of “repeated blows” being used as circumstantial evidence of premeditation. Obviously, there may be legitimate first-degree murder cases in which there is no direct evidence of the perpetrator’s state of mind. Since that state of mind is crucial to the establishment of the elements of the offense, the cases have long recognized that the necessary elements of first-degree murder may be shown by circumstantial evidence. Relevant circumstances recognized by other courts around the country have included the fact “that a deadly weapon was used upon an unarmed victim; that the homicidal act was part of a conspiracy to kill persons of a particular class; that the killing was particularly cruel; that weapons with which to commit the homicide were procured; that the defendant made declarations of his intent to kill the victim; or that preparations were made *542 before the homicide for concealment of the crime, as by the digging of a grave.” Wharton’s Criminal Law, supra, at § 140. This list, although obviously not intended to be exclusive, is notable for the omission of “repeated blows” as circumstantial evidence of premeditation or deliberation.

In Tennessee, the use of repeated blows to establish the premeditation necessary to first-degree murder apparently traces to Bass v. State, 191 Tenn. 259, 231 S.W.2d 707 (1950). There the Court, after noting that “[b]oth premeditation and deliberation may be inferred from the circumstances of a homicide,” id., 231 S.W.2d at 711, went on to list a series of facts from which the Court concluded that the victim’s death constituted first-degree murder. The first (but not the only) such circumstance mentioned was that “the deceased was not only struck and killed by a blow from an iron poker but apparently from the number and nature of his wounds, was beaten to death by a whole series of blows.” Id. While the Bass court did not interpret the fact of repeated blows to be sufficient, in and of itself, to constitute premeditation and deliberation, subsequent cases have done so. In Houston v. State, for example, the only circumstance relied upon by the majority to establish premeditation and deliberation was the fact that the victim had sustained “repeated shots or blows.” 593 S.W.2d 267, 273 (Tenn.1980).

The culmination of this development is probably best represented by the analysis in State v. Martin, supra, 702 S.W.2d at 563, where the Court said:

Repeated blows or shots may support an inference of premeditation. See Houston v. State, 593 S.W.2d 267, 273 (Tenn.1980). It is also possible that the jury could have found that during the struggle [with the victim] appellant decided to kill the victim, only a moment of time being required between the plan to kill and its execution. Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, 868 (1966).

Logically, of course, the fact that repeated blows (or shots) were inflicted on the victim is not sufficient, by itself, to establish first-degree murder. Repeated blows can be delivered in the heat of passion, with no design or reflection. Only if such blows are inflicted as the result of premeditation and deliberation can they be said to prove first-degree murder.

In bringing three of the previously discussed threads together — recognition of “repeated blows” as sufficient evidence of premeditation, invocation of the rule that “premeditation can be formed in an instant,” and omission of any discussion of deliberation as a necessary element of murder in the first degree — the Martin decision represents a substantial departure from the traditional law of homicide. It also undercuts older Tennessee cases such as Rader v. State, supra, 73 Tenn. at 620, which emphasized that intent to kill, if formed during a deadly struggle, would support only a conviction for second-degree murder, unless the state could show that premeditation and deliberation had preceded the struggle.

Since the opinion in Martin, the Tennessee General Assembly has rewritten the state’s homicide statute. In addition to certain felony-murder provisions, T.C.A. § 39-13-202(a)(l) defines first-degree murder as “[a]n intentional, premeditated and deliberate killing of another.” The mens rea elements of deliberation and premeditation have been further emphasized by the inclusion of definitional sections in T.C.A. § 39-13-201(b), as follows:

(1) “Deliberate act” means one performed with a cool purpose; and

(2) “Premeditated act” means one done after the exercise of reflection and judgment. Premeditation may include instances of homicide committed by poison or by lying in wait.

Without commenting on the validity of the result we reached in Martin v. State, we can only conclude that the legislature’s enactment of the provisions set out above should have the effect of steering the courts back onto the right track in their analysis of the law of homicide. And although the 1989 legislation predates the offense in this case, we believe it is worth emphasis here, because it clearly repre *543 sents the legislature’s intent that the courts of Tennessee should adhere to long-established rules of law and that we should abandon the modern tendency to muddle the line between first- and second-degree murder. Certainly, more than the mere fact of “repeated blows” must be shown to establish first-degree murder, and to the extent that the opinions in Houston and Martin can be read to hold otherwise, they are expressly overruled.

Moreover, even though the Sentencing Commission Comments to T.C.A. § 39-18-201 indicate that the definition in subsection (b)(2) “permits that ‘premeditation may be formed in an instant,’ ” citing Taylor v. State, 506 S.W.2d 175 (Tenn.Crim.App.1973), we think it is time to recognize, as Justice Brock argued in Everett v. State, that “[m]ore than a split-second intention to kill is required to constitute premeditation,” which “by its very nature is not instantaneous, but requires some time interval.” 528 S.W.2d 25, 28-29 (Tenn. 1975) (Brock, J., dissenting; emphasis in original).

It is consistent with the murder statute and with case law in Tennessee to instruct the jury in a first-degree murder case that no specific period of time need elapse between the defendant’s formulation of the design to kill and the execution of that plan, but we conclude that it is prudent to abandon an instruction that tells the jury that “premeditation may be formed in an instant.” Such an instruction can only result in confusion, given the fact that the jury must also be charged on the law of deliberation. If it was not clear from the opinions emanating from this Court within the last half-century, it is now abundantly clear that the deliberation necessary to establish first-degree murder cannot be formed in an instant. It requires proof, as the Sentencing Commission Comment to § 39-13-201(b) further provides, that the homicide was “committed with ‘a cool purpose’ and without passion or provocation,” which would reduce the offense either to second-degree murder or to manslaughter, respectively.

This discussion leads us inevitably to the conclusion that Mack Brown’s conviction for first-degree murder in this case cannot be sustained. The law in Tennessee has long recognized that once the homicide has been established, it is presumed to be murder in the second degree. Witt v. State,