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Byford v. State2/28/2000
constituting the killing, it is willful, deliberate and premeditated murder."
The majority notes that " eliberation remains a critical element of the mens rea necessary for first-degree murder, connoting a dispassionate weighing process and consideration of consequences before acting," and that " n order to establish first-degree murder, the premeditated killing must also have been done deliberately, that is, with coolness and reflection." The majority relies on State v. Brown, 836 S.W.2d 530, 539 (Tenn. 1992) with approval in support of this proposition. In my view, defining deliberation and premeditation in terms of an elaborate weighing process or "cold calculation" may very well define many types of premeditated murder out of existence and tacitly overrule our prior rulings on this issue in Williams and Witter. Further, although the instruction proposed by the majority does not actually require "coolness" or "cold calculation" as a condition of proof of deliberation or premeditation, the majority's language quoted above supported by the Tennessee decision in Brown will arguably require that district courts, upon request, give special jury instructions defining this category of first-degree murder in these terms.
As noted by the majority, the evidence in this case is clearly sufficient to establish willfulness, deliberation, and premeditation on Byford's part. Thus, Byford's conviction should be sustained under the majority analysis and the analysis in this separate concurrence.
As noted above, the use of the Kazalyn instruction does not mandate reversal.
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