IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1997 FILED October 14, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9601-CR-00019 ) Cecil Crowson, Jr. Appellate C ourt Clerk Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. JOHN P. COLTON, JR. TAURYS K. WALLS, ) JUDGE ) Appe llant. ) (Direct Appeal - Felony Mu rder)
FOR THE APPELLANT: FOR THE APPELLEE:
GERALD SKAHAN JOHN KNOX WALKUP 140 North Third Street Attorney General and Reporter Memphis, TN 38103 WILLIAM DAVID BRIDGERS Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243
WILLIAM L. GIBBONS District Attorney General
J. ROBERT CARTER, JR. Assistant District Attorney 201 Poplar Avenue, Third Floor Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
Appellant Taurys K. Walls was convicted in the Shelby County Criminal
Court on No vemb er 3, 199 5 of mu rder in the p erpetratio n of a felony, to wit:
robbery. The trial co urt sente nced A ppellant to life imprisonment with the
Tennessee Department of Correction and imposed a $50.00 fine to be paid to the
Criminal Injuries Compensation Fund. Appellant presents the following issues
for our con sideration on this direct appeal: (1) whether the evidence was
sufficient to sustain Appellant's conviction for felony murder; (2) whether the trial
court erred in overruling Ap pellant's m otion to su ppress his statem ent given to
police respe cting h is involvement in the murder of Melvin Charles Ferguson; (3)
whether the trial court abused its discretion in prohibiting defense counsel from
questioning the victim's brother about a laws uit that the brothe r had file d in
connection with Ferguson's death; and (4) whether the trial court erred in refusing
Appe llant's request for a supplemental jury instruction to the effect that all
homicides are presum ed to be sec ond degre e murde r.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTUAL BACKGROUND
The p roof sho ws that on June 1 1, 1993 , Appella nt and h is co-defe ndant,
Maurice Banks, 1 fatally shot Melvin Charles Ferguson after Ferguson thwarted
their attempts to rob him. The murder and robbery took place at the Scottish Inn
Motel in Memphis, Tennessee.
At trial, the victim's brother, Mr. Joe Ferguson, explained that at the time
of the murder, the victim had recently retired from the United States Army and
1 App ellant and h is co- defe nda nt we re trie d sep arate ly.
-2- was seeking emp loyme nt in the Mem phis a rea. A lthoug h Melv in Ferguson had
been alternating between his brother's house and h is mother's resid ence in Fort
Smith, Arkansas, the victim moved to the Scottish Inn Motel a few days prior to
his death in order to afford some privacy to Joe Ferguson and his wife. Mr. Joe
Ferguson further testified that as his brother was unemployed, both Joe and his
mother occasionally gave the victim money. However, unknown to either Joe
Ferguson or his mother, the victim used some of this money to purchase cocaine
from various local drug dealers, including Jeffrey Davis.
A few hours before Ferguson's death, Jeffrey Davis accompanied Maurice
Banks to the victim's room at the Scottish Inn Mo tel and sold Ferguson $50.00
worth of cocaine. Mr. Davis testified that after completing the drug transaction,
Maurice Banks dropped Davis at Davis' ap artment an d drove awa y.
Approximate ly thirty minute s later, Mr. B anks re turned to Davis' ap artment
accompanied by Appellant, wh o carried a .38 caliber pistol. Accordin g to Mr.
Davis' testim ony, M aurice Bank s borro wed D avis' .380 sem i-autom atic pist ol.
Banks and Ap pellant the n depa rted. Upon returning to Mr. Davis' apartment one-
half hour later, Appellant informed Jeffrey Davis that he had shot someone at the
Scottish Inn.
On June 16, 1993, Appellant was arrested as a suspect in the Ferguson
murder. Three days later, on June 19, Appellant gave a statement in which he
admitted his involvemen t in Melvin Ferguson's death. In his confession,
Appellant said that on the night of the incident, an individual who he identified as
"Bull" (Mau rice Ba nks) p icked him u p in the parking lot of a Memphis apartment
complex and state d that he knew someone that the two of them could rob.
Appellant told the police that he carried a .38 caliber handgun and that Bull
armed himse lf with a .380 pistol. The two me n drove to the Scottish Inn Motel
-3- and walked to a room on the second floor. After knocking on the door, Appellant
and Mr. Ban ks were admitted by a wom an. The victim was in the motel room
with the woman.
According to Appellant's statem ent, after approximately five minutes,
Melvin Fergus on ask ed App ellant and Bull which one of the m "was straight," a
colloquialism mean ing which person had dru gs. Appellant replied that Bull was,
and Mr. Banks and the victim b oth m oved to ward th e restro om. B ull drew his
pistol and apparently demanded that Ferguso n give him m oney. Mr. Ferguson
handed Bull $300.00, went into the bathroom, and closed the door. Once inside,
the victim flushed the toilet and stated that he was going to flush the remainder
of the mon ey.
Mr. Ferguson emerge d from the res troom app roximately one m inute later,
and when Bull asked him the location of the rest of the money, Ferguson replied
that he did not kn ow. Bu ll hit the victim in the h ead w ith his p istol. Mr. Ferguson
blocked the mo tel room door with his body and stated that neither Appellant nor
Bull could leave the room until they returned his money. After trying for several
minutes to persuade Mr. Ferguson to step away from the door, Bull asked the
woman where the victim had put the rest of his money. The wom an info rmed Bull
that the mon ey was unde rneath a bus h plan ted ou tside th e mo tel.
Upon learning the location of the remainder of the money, Bull again asked
Ferguson to move aw ay from the do or. W hen Fe rguso n refus ed, Bu ll fired his
pistol at the victim's leg, and Appellant also shot at him. Appellant told the police
that Ferguson attempted to run down the hallway and away from his assailants.
Howeve r, Bull shot at the victim a few more times, and App ellant fired two more
shots at Fergu son. Ap pellant an d Bull then ran from the building and fled the
-4- scene in Bull's car. Finally, Bull dropped off Appellant at the same apartment
comp lex where the two h ad me t before the incident.
Dr. O'Brian Clea ry Smith, an A ssistant Medica l Examiner for Shelby
County, testified that the victim sustained five bullets and died of multiple gunshot
wounds. Dr. Smith testified that he recovered only one bullet from the victim's
body. He stated that this bullet was located in Mr. Ferguson's abdomen and
identified the bullet as being fired from a .38 caliber pistol. Dr. Smith opined that
the wound from this bullet alone would have been sufficient to cause M r.
Ferguson's death.
Appellant testified on his own behalf at his trial. Though Appellant
conceded his involvemen t in the incident, Appe llant testified that he shot Mr.
Ferg uson in self-defen se. According to Appellant's trial testimony, on the night
of the incident, he accompanied Maurice Banks to the Scottish Inn Motel so that
Mr. Banks could sell drugs to someone residing there. Appellant denied that he
and Mr. Banks ever discussed the possibility of robbing anyone. Instead,
Appellant stated that whe n he and M r. Banks arrived at Mr. Ferguson's room, the
room smelled as though Ferguson and his female companion had been smoking
"crack" cocaine. Mo reover, both the woman and Mr. Ferguson appeared to be
high. Ap pellant furth er testified tha t the victim a sked w ho "was straight."
II. SUFFICIENCY OF THE EVIDENCE
Appe llant's first contention is that the evidence was insuffic ient to s ustain
his conviction for murd er during the perp etration of a robbery because there is no
evidence to dem onstrate that App ellant robb ed Me lvin Fergu son. He further
alleges that the trial cou rt erred in overr uling h is motion for judgm ent of a cquitta l.
We disagree.
-5- T ENN. R. C RIM. P. 29(a) provides in pertinent part, "The court on motion of
a defend ant. . . shall ord er the entry of judgmen t of acquittal of one or m ore
offenses charged in the indictment or information. . . if the evidence is insufficient
to sustain a conviction of such offense o r offense s." Id. When presented with a
motion for judgment of acquittal, the trial court's only consideration is the legal
sufficiency of the evidence. State v. Blanton, 926 S.W.2d 953 (Tenn. Crim. App.
1996). Sufficiency of the evidence is the appropriate standard by which both trial
and appellate courts evaluate the adequacy of the evidence. State v. Cabbage,
571 S.W .2d 832, 836 (Tenn. 197 8).
This Cour t is obliged to review challenges to the sufficiency of the
convicting evidence according to certain well-settled principles. A verdict o f guilty
by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's
witnesses and res olves all co nflicts in the tes timony in favor of the State. State
v. Cazes, 875 S.W.2d 253, 259 (Ten n. 1994); State v. Harris , 839 S.W.2d 54, 75
(Tenn. 1992). Although an accused is originally cloaked with a presumption of
innocence, a jury verdict re move s this pres umptio n and re places it w ith one of
guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proo f rests w ith App ellant to demonstrate the insufficiency of the
convicting evidenc e. Id. On appea l, "the [S]tate is entitled to the strongest
legitimate view of the e vidence as well as all reason able an d legitima te
inferences that ma y be draw n therefrom." Id. (citing State v. Cabbage, 571
S.W.2d 832, 8 35 (T enn. 1 978)) . Wh ere the sufficie ncy of th e evidence is
contested on appe al, the relevant question for the reviewing court is whether any
rational trier of fact could have found the accused guilty of every element of the
offense beyond a reaso nable d oubt. Harris , 839 S.W.2d 54, 75; Jackson v.
Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In
-6- conducting our evalua tion of th e con victing e videnc e, this C ourt is precluded from
reweighing or recons idering the evidenc e. State v. Morgan, 929 S.W.2d 380, 383
(Tenn. Crim. A pp. 199 6); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, this Court may not substitute its own inferences "for those
drawn by the trier of fact from circumstantial evidenc e." Matthews, 805 S.W.2d
776, 779. Finally, T ENN. R. A PP. P. 13(e) provides, "Findings of guilt in criminal
actions whether by the tr ial cou rt or jury s hall be set as ide if the eviden ce is
insufficient to support the findings by the trier o f fact of g uilt beyo nd a re ason able
doubt." See also Matthews, 805 S.W.2d 776, 780.
At the time of this offense, Tenn. Code An n. § 39 -13-2 02(a) provid ed in
pertinent part: "First degree murder is: . . . (2) a reckless killing of another
committed in the perpetra tion of. . . robbery." Tenn. Code Ann. § 39-13-202(a)(2)
(1991, Re pl.).2 Tenn. Code Ann. § 39-11-302(c) provides:
(c) "Reckless" refe rs to a person who acts reckle ssly with respect to circumstances surrounding the conduct or the result of the conduct when the person is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disreg ard constitutes a gross deviation from the standard o f care that an ordina ry person would exercise under all the circumstances as viewed from the accuse d perso n's stand point. Tenn. C ode Ann . § 39-11-302 (c).
Tenn. Code A nn. § 39-13-4 01 defines "robbery" as "the intentional or knowing
theft of property from the person of another by violence or puttin g the p erson in
fear." Tenn . Code Ann. § 39-13-4 01(a). T enn. C ode An n. § 39-11 -402 s tates in
part:
A person is criminally responsible for an offense comm itted by the cond uct of ano ther if: . . . (2) Acting with intent to
2 In 1995, the General Assembly amended the definition of felony murder by dispensing with the requirement that the prosecution prove that the killing was reckless. Tenn. Code Ann. § 39-13-202(a)(2) (1997).
-7- promo te or assist the com miss ion of th e offen se, or to bene fit in the proceeds or results of the offense, the person solicits, directs, aids, or atte mpts to aid a nothe r perso n to co mm it the offense. Tenn. C ode Ann . § 39-11-402 (2).
The State is required to prove each and every element of the charged offense.
Appe llant asserts that there is no evidence to prove that he robbed the
victim because Melvin Ferguson's wallet and over $20.00 were recovered at the
scene. The proof at trial demo nstrated that both A ppellant a nd his co -defend ant,
Mr. Banks, armed themselves with pistols before going to the victim's motel room.
Moreover, in his confe ssion , Appe llant told the police that when Maurice Banks
picked him up, he told Appellant that he knew someone that they could rob.
Shor tly after entering Ferguson's room , Banks drew his pistol and asked the
victim for money. The victim handed Banks $300.00 and then went into the
restroom. After Ferguson emerged from the bathroom, Mr. Ban ks dem anded to
know the locatio n of the remaind er of the m oney. W hen Fe rguson refused to
disclose the location of the money, Banks hit the victim in the head with his pistol.
The victim then blocked the door to the motel room and announced that no one
could leave un til they returne d his mo ney. Bank s aga in aske d whe re the v ictim
had conc ealed the m oney, and F ergus on's female companion disclosed that the
money was hidden beneath a bush planted outside the mote l. Mr. Banks asked
Ferguson to move away from the doo r, but the victim declined to do so. When
the victim refused to move, both Appellant and Banks began shoo ting the ir pistols
at the victim. Although the victim attemp ted to escape by running down the
hallway and away from his assailants, Appellant and Banks fired more shots at
him. An autopsy revealed that Ferguson died of multiple gunshot wounds, at
least one of which was inflicted by a .38 caliber pistol. In his confession,
Appe llant adm itted firing a .38 caliber ha ndgun at Melvin F erguso n.
-8- From this eviden ce, a rational trier of fact cou ld conclu de that A ppellant,
and his co-defendant, murdered Melvin Ferguson during the course of robbing
him. Additio nally, the jury also could find that in so doing, Appellant disregarded
a subs tantial a nd un justifiable risk that Ferguson would die. Accordingly, the
evidence prese nted a t Appe llant's trial was sufficie nt to su stain h is conviction for
felony murde r.
III. SUPPRESSION OF APPELLANT'S STATEMENT
Appellant next complains that the trial court improperly denied his motion
to suppress his statement to police because the statement was taken in violation
of the Fifth Amendment to the United States Constitution as well as Article I, § 9
of the Tennessee Cons titution. A ppella nt furthe r asse rts that h is statement was
involuntarily given. The record affords no support for Appellant's assertions.
It is well-settled that the trial court's findings of fact in a suppression
hearing are conclusive on appeal unless the evidence prepondera tes against
them. State v. Odom, 928 S.W.2d 18, 23 (Te nn. 199 6); State v. Stephenson, 878
S.W.2d 530, 544 (Tenn. 1994). Our review of the record in this case convinces
us that the trial court's findings are amply supported by the evidence.
The Fifth Am endm ent to the U nited Sta tes Con stitution guarantees that
"No perso n. . . sha ll be com pelled in any c riminal case to be a witness against
himse lf." U.S. Con st. ame nd. 5. Th e Fifth Am endm ent privilege against s elf-
incrimination is applicable to the states through the Fourteenth Amendment.
Malloy v. Hogan, 378 U.S.1, 8 4 S.C t. 1489 , 1492 , 12 L.E d. 653 (1964 ). Article
I, § 9 of the Tennessee Cons titution g uaran tees "T hat in all criminal prosecutions,
the accused. . . shall not be comp elled to give evidenc e again st himse lf." Tenn.
Cons t. art. I, § 9. The court in Stephenson observed that though the federal and
-9- state constitutional provisions are not identical, "the most significant difference
between the provisions is that the test of voluntariness for confessions under
Article I, § 9 is broader and more protective of individual rights than the test of
voluntariness under the Fifth Amendment." 878 S.W.2d 530, 544.
In Miranda v. Arizona, the United States Supreme Court held, "The
prosecution may not use statements, whether exculpatory o r inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates
the use of pro cedura l safegua rds effective to secure the privilege against s elf-
incrimina tion." 384 U.S . 436, 86 S .Ct. 1602, 1612, 16 L.Ed.2d 694 (1966 ).
These procedural safeguards must be undertaken prior to the initiation of any
questioning by law enforcement officials and include the administration of the
Miranda rights to the acc used. Id. An accused may waive these rights, provided
that the waiver is know ingly, intelligently, and volu ntarily ma de. Miranda, 86 S.C t.
1602, 1612. The government bears the "heavy burden" of proving that the
defendant knowingly and intelligently waived his Miranda rights. Id. at 1628 . A
valid waiver will not be presumed simply from the accused's silence after
warnings are administered or from the fact that officers eventually elicited a
confession. Lee v. Sta te, 560 S.W .2d 82, 84 (T enn. Crim. A pp. 1977). H owever,
both our state and fed eral courts have held that abse nt an explicit written waiver,
a waiver m ay be im plied from the facts a nd circum stance s of a case . State v.
Elrod, 721 S.W .2d 820 , 823 (T enn. C rim. App . 1986); North Carolina v. Butler,
441 U.S. 3 69, 99 S.C t. 1755, 1757, 6 0 L.Ed.2d 2 86 (1979).
At the hea ring on A ppellant's motion to suppress his statement, Sergeant
Ron ald Wilkinson of the Memphis Police Department testified that Appellant was
arrested on the afternoon of June 16, 199 3. Sergeant Wilkinson further testified
that he acted as the arresting officer on that day because Sergeant Samuel
-10- Williams, the lead officer on the Ferguson case, was not on duty. Wilkinson
stated that on June 16, he did not attempt to question Appellant respecting the
incident. Additio nally, S ergea nt W ilkinson averre d that if an arrestee requested
an attorney, this would be noted in the arrestee's case file. Finally, he stated that
no such notation existed in Appe llant's file. Sergeant Samuel Williams testified
that on June 19, 1993, Williams had Appellant brought to his office. Willia ms s aid
that he was "sure" that he administered Appellant his Miranda rights before
speaking with him. Sergeant Williams then engaged Appellant in an informal
discussion conce rning the events su rroundin g Melvin F erguso n's death . Finally,
when Appellant "decided he'd tell" Sergeant Williams what Williams "felt was the
truth," Williams asked Appella nt if he wou ld be willing to give a form al statem ent.
When Appellant affirmed his willingness to give a statemen t, Willia ms a gain
advised Appellant of his Miranda rights. A typist transcribed Sergeant Williams'
questions and Appellant's responses. After being read his rights, Appellant
acknowledged that he understood those rights. When Sergeant Williams had
completed Appe llant's interrogation, he asked Appellant to read over the
statement to ensur e its correc tness, to initial every page, and to sign and date the
last page . Appellan t incorrectly d ated his s tateme nt "6/20/93 ."
On cross-examination, Sergeant Williams acknowledged that on the day
that Appellant was arrested, Appellant informed a member of the police
department that he did n ot wish to give a statement and that he knew nothing
about Mr. Ferguson's death. Sergeant Williams also stated that he did not know
whether or not Appellant h ad reques ted an attorney; ho wever, he also explained
that if an arre stee m ade s uch a reque st, this w ould b e note d in tha t perso n's case
file and tha t police wo uld ceas e all ques tioning.
-11- In State v. Crump, the defendant made remarks similar to Appellant's. 834
S.W.2d 265, 266 (Tenn. 1992). There, law enforcement officials administered
Miranda warning s to the de fendan t. Id. at 269. A detective testified that Crump
responded by saying either "I don't have anything to say right now," or "I don 't
have anything to say." Id. at 266. After being informed that he was a susp ect in
another crime different from the one for which he was arrested, Crump replied,
"I don't know a nything a bout tha t." Id. The Tennessee Supreme Court held that
Crum p's statement, "I don't have anything to say," constituted an unequivocal
invocation of his right to re main s ilent and th at police o fficers were obliged to
scrupulo usly honor th is right. Id. at 269-70. The facts of this case are
distinguishable from those in Crump. Crump concerne d the situation whe re
police persisted in attemp ting to question the accused after he had in voked his
right to remain silent. He re, howev er, thre e days elaps ed be fore po lice ag ain
attempted to interrogate Appellant, thereby scrupulously ho noring h is right to
rema in silent. An accused's invocation of the right to rema in silent does not
comp letely preclud e all future a ttempts to reinterrog ate the su spect. see, e.g.,
Michigan v. Mosley, 423 U.S . 96, 96 S .Ct. 321, 36 L.Ed.2d 313 (1975) (holding
that police scrupulously honored accused's right to remain silent by attempting
to reinterr ogate him only after a two-hour interval and the administration of fresh
Miranda warnings).
At the suppression hearing, Appellant testified that he informed police of
his whereabo uts so that he co uld be picked up becau se an officer had
telephoned his grandm other an d stated th at the polic e wante d to interrog ate
Appellant regarding a h it-and-run incident. A ccording to A ppellant's testimon y,
officers transp orted h im to the h omic ide offic e and then h eld him in an interview
room for two to three hours. At some point, an officer asked Appellant whether
-12- he wishe d to give a state men t, and A ppella nt replie d that h e wou ld not do so until
he had spoke n with a law yer.
Appellant further testified that he was again brought to the homicide office
three days later and that he once more refused to give a statement without an
attorney. Despite this refusal, when another officer inquired whether Appellant
wished to give a statement, he agreed to do so. A ccording to Appe llant, after he
gave his statement, he was shackled to a bench for approximately twenty
minutes. An officer b rought A ppellant a statem ent and directed h im to initial each
page and to sign the last page. Appellant alleged that the statement contained
numerous inaccuracies but acknowledged that the signature on the statement
was his ow n. Fina lly, App ellant d enied that he was e ver ad vised o f his
constitution al rights be fore giving h is statem ent.
On cross-examination, Appellant conceded that he had been arrested on
burglary and th eft cha rges o nly one mon th befo re bein g app rehen ded in
connection with the Ferguson homicide. Appellant further admitted that upon
being arrested concerning these earlier charges, he gave a statement after
officers administered Miranda rights to him.
The trial court found, as a matter of fact, that "no coercion, no violence, and
no threats were given or made to the defendant." As the evidence does not
prepon derate against the trial court's factual findings, we decline to disturb them
on appeal. Although Appellant signed no explicit written waiver, a waive r prope rly
may be infe rred fro m the fact tha t Appe llant ac know ledge d und erstan ding h is
rights and then gave a state ment w hich he b oth initialed a nd signe d. State v.
Elrod, 721 S.W .2d 820, 823 (Tenn. Crim . App. 1986 ). The tr ial court p roper ly
denied Appellant's motion to suppress his confession.
-13- IV. CRO SS-EX AMINATIO N OF A W ITNES S TO D EMO NSTR ATE BIAS
Appe llant's third as signm ent of e rror is tha t the trial c ourt im prope rly
excluded evidence of possible bias of a prosecution witness, namely, Mr. Joe
Ferguson. We disagree.
At trial, defense counsel sought to ask the victim's brother about a pending
civil suit wh ich the victim's family had filed against the Scottish Inn Motel arising
out of the same facts being litigated in the criminal prosecution. Apparently, the
lawsu it concerned whether or not the Scottish Inn neglecte d to afford a dequa te
security. Defense counsel argued that the purp ose of the inquiry wa s to
demo nstrate the possible prejudice of Mr. Joe Ferguson against A ppellant
because of Ferguson's financial interest in the civil suit. However, the trial court
ruled tha t this testimo ny was irre levant to the trier of fact and exclude d it.
T ENN. R. E VID. 401 provides, "`Relevant evidence' means evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence ." Id. T ENN. R. E VID. 616 provides, "A party may offer
evidence by cross-examination, extr insic ev idenc e, or bo th, that a witnes s is
biased in favor of or prejudiced agains t a party or an other witn ess." Id. This
Court is aware of cases holding that the trial court improperly prohibited defense
counsel from questioning the victim in a criminal case as to whether he had
brought a civil suit aga inst the accused based upon the acts at issue in the
criminal case. State v. Horne, 652 S.W .2d 916 , 919 (T enn. 19 83). In so holding,
the Horne court observed that "great latitude is allowed on cross-examination,
particu larly cross-examination showing the witness' interest or bias." Id. at 918.
Additionally, "The text writers seem to be in accord that for the purpose of
showing interest, or bias, a witness for the prosecution in a criminal case may be
-14- questioned as to whether he has brought an action against the accused, based
on the acts in volved in the criminal c ase." Id. at 919 (citing C.J.S., vol. 98,
Witnesses, Sec. 5 60; W harton 's Crim inal Evidence, 13th Edition, Torcia, Sec.
436; McCo rmick's L aw of Ev idence , Chap ter 5, Sec . 40.). See also State v.
Robert E. Sm ith, C.C.A. No. 03C01-9203-CR-00067, Hamilton County (Tenn.
Crim. App., K noxville , April 15 , 1993 ) (hold ing that the trial cour t abuse d its
discretion in prohibiting defense counsel in a criminal case from questioning the
victim as to whether or n ot she had filed a civil suit against the accused
predicated up on the facts be ing litigated in the criminal pro secution).
The abo ve-cited cases are distinguish able from the pres ent case . Here,
defense counsel sought to prove Joe Ferguson's possible bias by questioning the
witness regarding a civil suit which Ferguson's family had filed aga inst a third
party--the Scottish Inn. Since it is undisputed that the victim in the case at bar
was the victim of a homicide perpetrated by someone, we fail to see how cross-
examining Joe Fergu son abou t this lawsuit would de monstra te the witness'
possible bias.
V. DENIAL OF REQUESTED JURY CHARGE
Finally Appellant alleges that the trial court improperly refused to charge
the jury that "The law in Tennessee has long recognized that once the homicide
has been estab lished , it is presum ed to be murde r in the sec ond de gree." See
State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992). We disagree.
In State v. Phipps, we explained, "`[A] defendant has a constitutional right
to a correc t and com plete charg e of the law.'" 883 S.W.2d 138, 142 (Tenn. Crim.
App. 1994) (quoting State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)). It is not
error for the trial court to refuse to give a specially requeste d jury instruction so
-15- long as the court's instruction s "correctly, fully, and fairly set fo rth the a pplica ble
law" in the case . Id. See a lso Sta te v. Ke lly, 683 S.W.2d 1, 6 (Tenn. Crim. App.
1984). On appeal, this Court must "review the entire c harge a nd only inv alidate
it if, when read as a whole, it fails to fairly submit the legal issues or misleads the
jury as to the applicab le law."
In the case sub judice, Appellant was charged with the offenses of murder
in the perp etration of a robbe ry and with prem editated first degree m urder.
Howeve r, Appellant was acquitted of premeditated first degree murder and
convicted of murder in the perpetration of a robbery. The trial court gave
instructions for all of th e cha rged o ffense s as w ell as each of their lesser included
offenses. These ins tructions closely followed the jury instructions conta ined in
T.P.I.--CRIM. (4th ed.) § 7.01 et seq. in charging the jury as to first degree
murder and all its lesser included offenses. In explaining its refusal to give
Appe llant's specially requeste d jury instruction, the trial court ack nowled ged its
familiarity with the Brown decision and reasoned that "the charge that the court
will give will adequately cover all degrees of homicide, and the court believes that
if it gave this [requested jury instruction] as is that it would confuse the trier of
fact. . . ."
In State v. Guadalupe S. Mendez, this Court explained:
W e do not read State v. Brown, 836 S.W.2d 530 (Tenn. 1992), as requiring the inva lidation of every first-degree murder case involving the standard T.P.I. jury instructions on first-degree murder. The holding in Brown was based on a sufficiency of the evidence question; our Supr eme Cour t's directive on the jury instruction was directory in nature. C.C.A. No. 01C01-9206-CC-00186, slip op. at 7, Montgomery County (Tenn. Crim. App ., Nashville, April 15, 1993 ).
Although Appella nt's reque sted jury ch arge is an accura te statement of
Tennessee law, the charge given in this case fully and fairly set forth the
-16- elemen ts of first degre e murd er and a ll the lesser d egrees of hom icide. See
State v. Erica Nelms, C.C.A. No. 02C01-9604-CR-00116, Shelby County (Tenn.
Crim. App., Jackso n, May 23, 19 97) (holding that because Appellant was
acquitted of premeditated first degree murder and convicted of felony m urder , it
was not error for the trial court to refu se to charge the jury that once a homicide
has be en esta blished, it is pr esum ed to be murde r in the sec ond de gree). See
also State v. Glenn Mann, C.C.A. No. 02 C01-9 502-C C-000 46, Dye r Coun ty
(Tenn. Crim. App., Jackson, August 16, 1996). More over, like the Ap pellan t in
the Nelms decision , supra, Appellant was convicted of first degree felony murder
and acquitted of premeditated first degree murder. T hus, the trial court prope rly
refused to give the reques ted cha rge. cf. State v. Charles Montague, C.C.A. No.
03C01-9306-CR-00192, (Tenn. Crim. App., Knoxville, November 21, 1994)
(holding that any error resulting from the trial court's failure to give the requested
instruction that a homicide is presumed to be second degree murder was
harmless ).
The judgment of the trial court is affirmed.
____________________________________ JERRY L. SMITH, JUDGE
-17- CONCUR:
___________________________________ DAVID G. HAYES, JUDGE
___________________________________ THOMAS T. WOODALL, JUDGE
-18-