IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 1998 SESSION FILED November 25, 1998
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appe llate Court C lerk ) C.C.A. No. 02C01-9707-CR-00273 Appellee, ) ) Shelby County v. ) ) Honorable W. Fred Axley, Judge JOE A. IVY, ) ) (Murder First Degree) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Paula Skahan John Knox Walkup 140 North Third Street Attorney General & Reporter Mem phis, TN 38103 425 Fifth Avenue, North Nashville, TN 37243-0493
Douglas D. Himes Assistant Attorney General 425 Fifth Avenue, North Nashville, TN 37243-0493
WilliamL. G ibbons District Attorney General 201 Poplar Avenue, Suite 301 Mem phis, TN 38103
Johnny McFarland Assistant District Attorney General 201 Poplar Avenue, Suite 301 Mem phis, TN 38103
OPINION FILED: __________________________________
AFFIRMED
L. T. LAFFERTY, SENIOR JUDGE OPINION
The appellant, Joe A. Ivy, referredhereinas the defendant, appeals as of right from a judgment of the
Shelby County Crim Court as a result of a jury finding himguilty of murder first degree. In accordance with inal
the jury’s verdict, the trial court sentencedthedefendant tolife imprisonment with the possibility of parole. The
defendant presents seven (7) issues for appellate review:
1. Whether the trial court erred when it ordered the defendant to provide the State with his attorney work product as prepared by his neuropharm acology expert.
2. Whether the trial court erred by refusing to allow the defendant to call the co-defendant as a witness in defendant’s case-in-chief.
3. Whether the trial court erred when it ruled as irrelevant the testimony of the defendant’s proffered expert witness.
4. Whether the trial court erred when it refused to allow the defendant’s lay witness to testify in the form of an opinion.
5. Whether the verdict is contrary to the law and the evidence presented at trial.
6. Whether the trial court erred when it refused to give the defendant’s requested jury instruction concerning a cocaine-induced m ental condition.
7. Whether the trial court erred as a matter of law when it refused to give the defendant’s requested jury instruction concerning premeditation, deliberation, and specific intent.
After a reviewof the evidence in this record, both parties’ briefs, and the applicable law, we affirm the
trial court’s judgment.
FACTUAL BACKGROUND
In April, 1996, the Shelby County grand jury returned an indictment against the defendant for murder
first degree. Since there is an allegation of insufficiency of evidence to support the conviction of murder first
degree, a review of the evidence in this record is necessary.
On the night of October 9, 1995, the defendant shot Calvin Hill twice with a shotgun, the second shot
after Hill had fallen to the ground. Dr. O. C. Smith, forensic pathologist and medical exam for Shelby iner
2 County, testified he conducted an autopsy on October 13, 1995 on Calvin Hill and determined Hill had died
frommultiple gunshot wounds. Dr. Smith found three gunshot wounds, one to the left side of the head, one
to the left chin, and one to the left chest. The wound to the left chin could be consistent with the victimlying
on his back. Dr. Smith testified he did not find any evidence of cocaine in the victim’s body, but agreed that
the victim could have ingested cocaine on the night of October 9, 1995. D Smith, inhisautopsy, founda prior r.
shotgun wound to the victim’s chest. Dr. Smith determined that the shotgun blasts occurred more than three
feet from the victim.
Michael Dean testified he was at the defendant’s home on October 9, 1995. Dean, the defendant,
Kevin Price, and a man known to Dean as “Darrell” were cooking out, drinking, and smoking some “weed.”
Dean testified he, the defendant, Price, and Darrell left in Dean’s mother’s car for the M Stop on Getwell init
Road. Across the street fromthe Minit Stop was Chuck’s Barbecue. The defendant told Dean, “Pull in here
so I can talk to this guy.” Dean pulled into an alley between Chuck’s and a bookstore. The defendant yelled
out the window “Come over here and let m -- let m holler at you.” As the man approached the car, Dean , e e
testified the defendant got out of the car and shot the man twice with a shotgun. The man was on the ground
when the defendant shot him the second time. The defendant got back in the car and told Dean, “Take me
to my mother’s house.” Dean did so and the defendant talked to his mother for five minutes. Then, the
defendant had Dean take himto Forrest City, Arkansas. Dean testified he left the defendant and Darrell at
a house off a dirt road. Dean did not see the defendant take the shotgun with him. Dean testified the
defendant shot the victim because “he thought he would kill himfirst. Moose [the defendant] just said that he
had been threatened by himbefore and that if he didn’t kill him first, the Calvin guy would kill him.”
Kevin Price testified he attended a cookout at the defendant’s house on October 9, 1995. Price was
drinking vodka and others at the house were using cocaine. Price testified he did not know how much the
defendant drank that day, but he believed the defendant used som powder cocaine. Price testified he e
accompanied Michael Dean, the defendant, and Darrell McKinney to the store. Dean drove, the defendant
was in the front passenger seat, andPrice and McKinney werein the backseat. When they arrived at Chuck’s
Barbecue, the defendant called Hill to the car. The defendant got out and Price heard two gunshots. Price
saw the defendant get back in the car with a gun. As Dean drove off, Price looked back and saw Hill on the
ground. Price testified he had known the defendant for ten years, and for the last four years they drank and
3 did a variety of drugs together.
Spencer Briggs, a patrolm with the M an emphis Police Department, testified he and his partner were
patrolling the parking lot behind Chuck’s Barbecue and Tamm Bookstore because of recent car thefts and y’s
burglaries. Whilepullingintothealley between the buildings, Officer Briggs observed a m standingbeside ale
a van, which was owned by an employee of Chuck’s Barbecue. Officer Briggs and his partner circled the
parking lot and pulled into another parking lot to monitor the van. Officer Briggs heard two shotgun shells fire.
Both officers immediately went to the scene where they found Calvin Hill lying on his left side with a gunshot
wound to the head. Officer Briggs identified Hill as the male he saw by the van. Officer Briggs did not see the
shooter.
Mark Bennett testified he and his father live eight m southof Forrest City, Arkansas on a rock road. iles
On the night of October 9, 1995, Bennett testified he heard someone knocking at his window. Bennett looked
out and saw the defendant and Darrell McKinney. Bennett went out on the porch and McKinney said “they
was in trouble, wanted my help . . . and Moose [the defendant] said he shot somebody.” The defendant
wanted some blankets and food to enable him to hide out. While going to Bennett’s truck to get the blankets,
the defendant said he “shot somebody, he fell down and he shot him again.” The next morning Bennett told
his father w had happened and his father called the sheriff. Bennett described the defendant as being hat
scared that night.
In behalf of the defendant, M Ashley Jones testified she was living with the defendant, D s. arrell
McKinney, and Sum D on Vanuys Street. Ms. Jones testified the defendant consumed either a fifth of mer are
vodka or whiskey and a gramof cocaine every day. Ms. Jones knewCalvin Hill and described two occasions
whenthe defendant and Hill had experienced problems. On the first occasion, M Jonestestifiedthat Hill and s.
another man cam to the defendant’s home to buy some cocaine. The defendant gave Hill the cocaine and e
Hill left, but later returned stating “it wasn’t no good.” Jones described Hill as being very angry. Jones told the
defendant what had occurred.
On the second occasion, M Jones testified that Summ Dare beeped her and the defendant to s. er
come home. When they arrived at the house, Calvin Hill was there. The defendant and Hill got into an
4 argument and the defendant pushed H outside, where H grabbed a metal rake and struck the defendant ill ill
four or five times. The defendant ran into the house, got a knife, and returned. Then, the defendant picked
up some hedge clippers and threw them at Hill who was running down the street. Ms. Jones testified, after
this episode, the defendant sat in the house doing drugs and drinking.
Lisa Preslar testified shewas living with her father onNew WillowRoad in 1994. Ms. Preslar recalled
an occasion when Calvin H came to their home and got out of the car w a stick in his hand. Hill wanted ill ith
her father. M Preslar testified Hill told her father that he (Hill) wanted his money and “if nobody was there by s.
12:30 with the money, he was com back and shooting up in the house and didn’t care who he hit.” Ms. ing
Preslar testified she left immediately, went to the defendant’s home, and told the defendant what had
happened.
Lisa Blakely testified she and the defendant dated four to five years and had one child. Prior to
October, 1995, Ms. Blakely lived with her father, but saw the defendant almost every day. The defendant
usually cameto her house about 10:00p.m and was usually drunk. Also, the defendant’s cocaine usage had .
increased. M Blakely testified, just before October 9, 1995, the defendant seemed upset, withdrawn, and s.
expressed his concern that the man he was having problem with had followed himto her hom s e.
John Carl Scheeper, an attorney and Vietnam veteran, testifiedhe had represented the defendant in
other legal matters. Prior to October 9, 1995, M Scheeper testified he and the defendant met to discuss his r.
other legal cases and the defendant told him, “Jack, I’m having a problem.” Mr. Scheeper described the
defendant as being scared and having fear in his eyes. Mr. Scheeper quoted the defendant, “He’s been
following me around all the tim He’s bugging me. I don’t know what to do about it, Jack.” e.
Ms. Adriane Goodwin testified she, the defendant, Ashley Jones, and Summer Dare lived at the
Vanuys Street address on October 9, 1995. Ms. Goodw testified a cookout began about 12:30 p.m. and in
seven to eight people attended, including thedefendant. A number of fifths of vodka was consumed between
12:30 p.m and 8:30 p.m. Around 4:00 p.m., Ms. Goodw the defendant, Kevin Price, and Summer Dare . in,
shared a gram of cocaine. M Goodwin recalled the defendant, Michael Dean, Kevin Price, and Darrell s.
McKinney leaving that evening and did not see them again.
5 Ms. Summer D testifiedshe, the defendant, AshleyJones, andDarrell McKinney shared the house are
at the Vanuys address in October, 1995. Ms. Dare described the defendant as a heavy drinker, and he used
cocaine every day if he had it. Ms. Dare testified that Calvin Hill appeared at the house one evening looking
for the defendant. Hill barged in the house and asked her to call the defendant. Soon thereafter, the
defendant and Ashley Jones arrived at the house. M Dare testified the defendant and Hill got into a fight s.
outside where Hill beat the defendant with a rake. Two nights later, Calvin Hill again came to her house with
two carloads of people. Dare called 911 for assistance.
Ms. Dare testified she was ill on October 9, 1995 and spent most of the day in bed. M Dare was s.
aware of the cookout and that a significant amount of liquor andbeer hadbeen consumed. She arose around
4:00 p.m and sharedsome foodwith the defendant. Ms. Dare testified the defendant and others were “rowdy .
. . . pretty loaded up on alcohol and drugs, too, I’msure, m themhyper.” W the police arrived later that ade hen
night, Ms. Dare observed cocaine residue on the mirrors in the bedroom.
Jonathan Joseph Lipm neuropharmacologist expert, testified he interviewed the defendant in an,
Novem 1996 to determine the effects of drugs on the defendant’s brain at the time of the offense. From ber,
the interview, Dr. Lipm determined the defendant began using m an arijuana at age 8 or 9, drinking liquor to
intoxication at age 14, and abusing LSD at age 16. Later in life, the defendant abused other drugs,
methamphetamine and cocaine. At the time of the offense, the defendant was drinkingall the tim and using e
a gram of cocaine a day. Dr. Lipman testified, in his opinion, the defendant was not psychotic, but the
defendant was fearful and preoccupiedwith his fears. Dr. Lipmantestified the defendant had a genuine reason
to fear the victimwho was in fact making the defendant’s environment fearful. The use of cocaine increased
this fear.
Dr. Lipman testified that before the shooting the defendant had obtained a shotgun which he hid in
the house. If the defendant had to leave the house in a car, the defendant took the shotgun with him. At the
time of the offense, Dr. Lipman calculated the defendant’s blood-alcohol content at .25 percent. Dr. Lipman
testified the defendant remembered being out of the car and Hill walking toward him. The defendant sensed
increasing threat as Hill approached, and the defendant was convinced that his life had run out. Before the
defendant realized it, Hill was dead. Dr. Lipm testifiedthat thedefendant’sjudgment was seriously impaired an
6 at the tim of the offense. e
The defendant elected not to testify in his own behalf.
APPELLATE ISSUES
A. Attorney Work Product
The defendant contends the trial court erred in ordering the defendant to provide an attorney work
product prepared by Dr. Jonathan J. Lipman one week prior to trial for the benefit of the State. The State
counters the trial court was not in error, in that Dr. Lipman’s “confidential” letter was discoverable pursuant to
Tenn. R. Crim. P. 16(b)(1)(B).
The defendant contends, in his brief, the trial court ordered Dr. Lipman’s report to be given to the
State under the authority of State v. Nichols, 877 S.W.2d 722 (Tenn. 1994). If there was a formal hearing
on the merits of this issue, a record of the hearing was not submitted to this court, other than an exhibit “A”
marked for appellate review. When an accused seeks appellate reviewof an issue in this court, it is the duty
of the accused to prepare a record which conveys a fair, accurate, and complete account of what transpired
with respect totheissuewhich forms the basis of the appeal. Tenn. R. App. P. 24(b); State v. Bennett, 798
S.W.2d 783 (Tenn. Crim. App. 1990), cert. denied, 500 U.S. 915, 111 S.Ct. 209, 114 L.Ed.2d 98 (1991);
State v. Roberts, 755 S.W. 833, 836 (Tenn. Crim. App.), per. app. denied (Tenn. 1988). However, the
motion for a new trial raised this issue and we elect to consider the merits of this issue.
Tennessee Rule of Criminal Procedure 16(b)(1)(B) provides that:
Reports of Examinations and Tests. If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon com pliance with such request bytheState, thedefendant, on request of theState, shall perm the it State to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments m ade in connection with theparticular case, or copies thereof, w the possession ithin or control of the defendant which the defense intends to introduce as evidence in chief at the trial or which were prepared by a witness whomthe defendant intends to call at the trial when the results or reports relate to the witness’s testimony.
7 Tennessee Rule of Criminal Procedure 16(b)(2) provides:
(2) Information not Subject to Disclosure. Except asto scientificand medical reports, this subdivision does not authorize the discovery or inspection of reports, mem oranda, or other internal defense documents made by the defendant, or the defendant’s attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by State or defense witnesses, or by prospective State or defense witnesses, to the defendant, the defendant’s agents or attorneys.
The defendant arguesDr. Lipman’sletter of November 9, 1996 differsin two aspects from the holding
in Nichols, 877 S.W.2d at 729-30. He contends one difference is that Dr. Lipman’s information was
“preliminary observations and conclusions” until additional information was available. The second difference
is the defendant’s statements to Dr. Lipm were privileged com an munications within the scope of Tennessee
Rule of Criminal Procedure16(b)(2). In Nichols, our Supreme Court concluded that when a psychologist or
psychiatrist does not prepare asummary report, but instead relies onextensivememoranda to recordnot only
observations and hypothesesbut also evaluations, such recordsarediscoverable under R 16(b)(1)(B). “To ule
allow the defendant to evade the reciprocal discovery rule [by making noformal report and claiming that mere
‘notes’ are undiscoverable] would effectively nullify themeaning of Rule 16(b)(1)(B). . . .” State v. Bell, 690
S.W 879, 883 (Tenn. Crim. App.), per. app. denied (Tenn. 1985). .2d
From a review of Dr. Lipman’s testimony and Dr. Lipman’s letter of November 9, 1996, we conclude
that the expert’s testimony tracks substantially the letter of November 9, 1996. The record establishes that
the trial court granted the defendant’s specific request that Dr. Lipm be hired for an evaluation as to the an
effect of drugabuse on the brainand testifyin support of hisconclusions. Inhistestimony, Dr. Lipman admitted
he had not finalized a report and in essence adopted his eight-page letter as a report. Under these facts, we
findthetrial court didnot commit error in orderingDr. Lipm letter to be given tothe State. Thereis no m an’s erit
to this issue.
B. Failure of Trial Court to Permit Co-Defendant to Testify
The defendant contends the trial court was in error by not allowing a co-defendant, Darrell McKinney,
8 to testify as to the validity of the defendant’s claim of self-defense. The State argues the trial court did not
abuse its discretion in honoring the co-defendant’s claim of self-incrimination.
The indictment in this cause alleged that Joe Ivy and James McKinney1 murdered Calvin Hill on
October 9, 1995. The defendant contends the defense questioning would not have incriminated McKinney,
thus his invoking of the privilege was neither within the meaning nor purpose of the Fifth Amendment.
The co-defendant, Jam McKinney, was awaiting trial for the m es urder of Calvin Hill and was
represented by counsel. In a jury-out hearing on the relevance of McKinney testifying, McKinney invoked his
Fifth Amendment privilege upon advice of counsel. The defendant failed to convince the trial court that
McKinney’s testimony w relevant to the issue on trial and refused thedefendant the right tocall this witness. as
In State v. Dicks, 615 S.W.2d 126, 129 (Tenn. 1981), our Supreme Court concluded “wherethere
is a conflict between the basic right of a defendant to compulsory process and thewitness’s right against self-
incrimination, as in this case, the right against self-incrimination is the stronger and paramount right” (quoting
Frazier v. State, 566 S.W.2d 545, 551 (Tenn. Crim. App. 1978); United States v. Johnson, 488 F.2d
1206 (1st Cir. 1973)). It is the duty of the trial court to determine whether a witness has properly invoked his
or her Fifth Amendment right against self-incrimination. We will not disturb such determination unless a plain
abuse of that authority constitutes grounds for reversal. State v. Zirkle, 910 S.W.2d 874, 890 (Tenn. Crim.
App.), per. app. denied (Tenn. 1995). The record clearly establishes that the co-defendant, after
counseling with his attorney, elected to invoke his privilege against self-incrimination. Since McKinney had
not been tried for this offense, his exposure w great.2 We find the trial court did not abuse its discretion in as
permitting James McKinney to invoke his Fifth Amendment right and not testify. There is no merit to this issue.
C. Expert Testimony of Attorney John Carl Scheeper
The defendant contends the trial court erred in not permitting John Carl Scheeper to testify on the
1 The trial testimony established that James McKinney and “Darrell McKinney” are one and the same person. 2 We note the defendant wished to support his claim of self-defense through McKinney’s testimony. However, tw other passengers, M o ichael Dean and Kevin Price, friends of the defendant, testified at trial.
9 subject of fear as an expert pursuant toTennessee Rule of Evidence 702. The State argues the trial court did
not abuse its discretion in denying such expert testimony.
In a novel approach, the defendant alleges Mr. Scheeper should have been permittedto testify on the
subject of fear. Tennessee Rule of Evidence 702 provides:
Testimonyby experts. If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education m testify in the form of an opinion ay or otherwise.
The defendant contends Scheeper has a special knowledge of fear that the average person does not
have. This experience is based on Scheeper’s serving in Vietnam as a m ber of the Third 39th Battalion of em
the Ninth Infantry Division in the Mekong Delta, and in playing poker. The trial court ruled, “That is so
farfetched, I can’t allowit.” Although the trial court did not permit Scheeper to testify as an expert, Scheeper
was permitted to testify as to the fear he saw in the defendant’s eyes when discussing the problem the s
defendant was having with Calvin Hill. The qualifications, admissibility, relevancy, and competency of expert
testimony arematters entrusted to the sounddiscretionof the trial court. State v. Ballard, 855 S.W.2d 557,
562 (Tenn. 1993). We find the trial court was well within its discretion in declining to find Scheeper an expert
on the subject of fear. There is no merit to this issue.
D. Defense Lay Witness Opinion
The defendant contends the trial court erred by sustaining the State’s objection to the testimony of a
lay witness, Lisa Blakely. The State argues the witness was permitted to testify as to her descriptions and
opinion of the defendant’s state of mind.
Tennessee Rule of Evidence 701(a) provides:
If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.
10 Blakely’s testimony was:
BY MS. SKAHAN:
Q. You were saying what kind of conversations you were having with Joe Ivy.
A. Yes, ma’am.
Q. Could you tell us again, please?
A. I really don’t remem what was said. I m ber ean, I rem ber him em always coming to me and talking about he didn’t know what he was going to do because of him and he was scared. I mean, there was times he would com to my house and was upset. e
MR. MCFARLAND: Your Honor, may we approach? I’m objecting.
THE COUR You are objecting to? T:
MR. MCFARLAND: Her testimony now is not what he said, what hetold her.
MS. SKAHAN: I can phrase it so that she can describe what she observed about her, if that would be acceptable with the Court.
THE COU She can do that. But she is telling the jury he was upset, and RT: that is not -- you can’t consider that.
MS. SKAHAN: Okay.
THE COURT: All right.
Q. What you can talk about are your observations, what Joe said to you, but not your conclusions, okay?
A. Okay.
Q. What made you make that last statement? What did you observe about Joe?
A. I mean, I don’t know what you’re saying really.
TH C E OURT: W did you see when you looked at him hat ?
A. What did I see when I saw him?
Q. Yes, ma’am.
A. I saw, I mean, him being upset. I mean, I don’t know.
In other portions of Blakely’s testimony, she testified the defendant was distant, scared, and upset.
At first blush, it appears the trial court would not permit the witness, Blakely, to testify that the defendant was
11 upset. However, in a follow-up question, the trial court asked the witness what she saw in looking at the
defendant. We believe the trial court did permit thewitness to relate tothejury her opinion that the defendant
was upset. State v. Wingard, 891 S.W.2d 628, 636 (Tenn. Crim. App. 1994). There is no m to this erit
issue.
12 E. Sufficiency of Evidence
The defendant argues the evidence presented tothejury showed there w sufficient provocation on as
the decedent’s part to warrant the defendant acting in self-defense, and the evidence is insufficient as a matter
of law to warrant a guilty verdict of murder first degree. The State contends the facts in therecord in this case
fully support the guilty verdict of murder first degree.
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 (Tenn. 1982); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.), per.
app. denied (Tenn. 1996). Initially, a defendant is cloaked with the presumption of innocence. Tuggle,
639 S.W at 914. However, a jury conviction removes the presumption of innocence and replaces it with .2d
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 reevaluate 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, 61L.Ed.2d 560(1979); State v. Cazes, 875S.W 253, 259 (Tenn. 1994). .2d
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.), per. app. denied (Tenn. 1990).
At the time of this offense, October 9, 1995, the State was required to establish that murder first
degree was “a premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1).
Premeditation “is an act done after the exercise of reflectionand judgment.” Tenn. Code Ann. § 39-13-202(d).
Although the indictment alleged the additional elem of deliberation, thetrial court properly chargedthe jury ent
to consider the elements of intent and premeditation based on the evidence. The defendant killed Calvin Hill
13 with two shots from a shotgun, one of which while the victim was on the ground. The defendant had an
ongoing feud with Hill, even to the extent of buying a shotgun. The defendant believed it necessary to kill Hill
before Hill killed him. On the night of the murder, the defendant secreted the shotgun in Dean’s car and upon
seeing Hill, thedefendant called himto Dean’scar. The defendant got out of the car with the shotgun and shot
Hill once in the head and then once in the chin and chest. The defendant fled to avoid prosecution. The jury
in this case heard the defendant’s theory that he acted in self-defense, which was rejected by the jury. Thus,
the jury resolves the weight and credibility to be given to each witness. Cabbage, 571 S.W.2d at 835.
Viewing this evidence in the light most favorable to the State, the evidence was sufficient for a rational trier of
fact to conclude beyond a reasonable doubt that the defendant intentionally killed Hill after reflection and
judgment. There is no merit to this issue.
F. Failure to Give Jury Instruction on Cocaine-Induced Mental Condition
The defendant contends the trial court erred in not giving a requested jury instruction approved in
State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). The State argues the trial court was correct
in denying the special jury instruction submitted by the defendant.
Thedefendant insists the trial court’s instruction on intoxication, whiletechnically accurate as including
cocaine abuse, did not reflect the differences between the defendant’s use of alcohol and cocaine. Thus, the
trial court should have instructed the jury as to the separate issues which impaired the defendant’s capacity
to form intent, premeditation, and deliberation.
A defendant has a constitutional right to a correct and complete charge of the law. State v. Teel,
793 S.W 236, 249 (Tenn. 1990); Phipps, 883 S.W.2d at 142. A trial judge should properly instruct the .2d
jury on the law governing issues raised by the evidence introduced at trial. State v. McAfee, 737 S.W.2d
304, 308 (Tenn. Crim. App. 1987). W the trial judge gives instructions that correctly, fully, and fairly set hen
forth the applicable law, it is not error to refuse to give a special requested instruction. State v. Bohanan,
745 S.W.2d 892, 897 (Tenn. Crim. App. 1987), per. app. denied (Tenn. 1988). We must reviewthe entire
charge and only invalidate it if, when read as a whole, it fails to fairly subm the legal issues or m it isleads the
jury as to the applicable law. Phipps, 883 S.W.2d at 142.
14 Our review of the record indicates the defendant submitted a number of special requested jury
instructions. Apparently, the defendant submitted a special jury instruction, regarding his mental condition,
reflecting the holding in State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). However, the
defendant has failed to include this special instruction in the record for proper appellate review. Thetrial court
denied the special request on the basis the defense charge of intoxication sufficiently applied to both alcohol
and cocaine intoxication. We believe the defendant’s reliance on Phipps, supra, is misplaced. In Phipps,
883 S.W.2dat 149, thiscourt founderror in the trial court’s jury instructionprecludingthe jury fromconsidering
the expert testimony relating to the defendant’s mental state on the element of intent. That is not the facts in
this case. The defendant provided the jury with a significant quantity of evidence concerning the defendant’s
usage of alcohol and cocaine on October 9, 1995 to negate the element of an intentional killing of Calvin Hill.3
As part of the charge on intoxication as a defense, the trial court stated, “Intoxication means disturbance of
mental or physical capacity resulting from the introduction of any substance into the body.” W find the jury e
instruction as a whole instructed the jury that evidence of intoxication could negate the requisite mental state.
There is no merit to this issue.
G. Trial Court’s Failure to Give
Requested Jury Instruction on Elements of Murder First Degree
The defendant contends the trial court failed to give a special requested jury instruction to the effect
that once a homicide has been established it is presumed to be murder in the second degree. The State
argues that the jury instructions given to the jury clearly stated the applicable law.
The defendant requested the trial court to charge the jury:
The law in Tennessee is that once a homicide has been established it is presumed to be murder in the second degree. Accordingly, the State bears the burden of proof on the elements of prem editation and deliberation sufficient to elevate the offense to murder first degree.
3 A review of the recordestablishes thedefendant forcibly arguedto thejury the amount of alcohol and cocaine consum by the defendant on the date of the offense. Emphasis was placed on howsuch ingestion ed could negate the defendant’s mens rea for the offense of several criminal homicides.
15 The trial court declined to give this special request holding that the separate instructions on murder
first degree and murder second degree werethe appropriate procedure. The defendant puts great emphasis
on the ruling in State v. Brown, 836 S.W.2d 530 (Tenn. 1992), delineating the distinctionsbetween murder
first and murder second degree. We agree with the defendant that historically Tennessee lawhas recognized
that once a homicide has been established, it is presumed to be murder second degree. At the time of this
offense, the elem of deliberation was not an essential element of m ent urder first degree. At the time of this
offense, October 9, 1995, the State wasrequired toestablishthat murder first degreewas“a premeditated and
intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation “is an act done after the
exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d). Although the indictment alleged the
additional element of deliberation, the trial court properly charged the jury to consider the elements of intent
and premeditation based on the evidence. The jury instructions on first degree murder clearly set forth the
elements the State was required to prove beyond a reasonable doubt. W find any error inrefusing togive the e
special instruction as requested was clearly harmless error. State v. Antonio M. Byrd, Shelby County
No. 02C01-9508-CR-00232 (Tenn. Crim. App., Jackson, December 30, 1996). We find no merit to this issue.
The trial court’s judgment is affirmed.
________________________________________ L. T. LAFFERTY, SPECIAL JUDGE
CONCUR:
___________________________________ JOHN H. PEAY, JUDGE
___________________________________ DAVID G. HAYES, JUDGE
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