# FILED
August 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 03C01-9706-CR-00219 Appellee, ) ) Cumberl and Coun ty ) ) Honorable Leo n C. Burns, Jr., Jud ge ) RICHARD LEE FRANKLIN, ) (Second Degree Murder) ) Appellant. )

FOR THE APPELLEE: FOR THE APPELLANT Michael M. Raulston John Knox Walkup Attorney at Law Attorney General & Reporter 4701 Hixson Pike Hixson, TN 37343-4818 Michael J. Fahey, II Assistant Attorney Gener al Larry M. Warner Criminal Justice Div ision Attorney at Law 425 Fifth Avenue N 204 North Main Street Nashville, TN 37243 Crossville, TN 38557 William Edward Gibson District Attorney General David A. Patterson Assistant District A

ttorney General 145 S Jefferson Avenue Cookeville, TN 38501-3424

OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge

O P I N I O N-2- Richard Lee Franklin, the appellant, was originally convicted of first degree murder in the shootin g death of David Kirkl and. The trial court granted the appellant’s motion for a new trial because of procedural errors. The appellant was retried and convicted by a jur y of second degree murder i n the Cumberland County Criminal Court. He was sentenced to twenty-two years in the Tennessee Department of Correcti on. He appeals and raises ten issues for our review. We affirm the judgment of the tr ial court.
The facts as established by the state’s witnesses ar e as follows. During an evening in November 1992, David Kirkland, the victim, and his gi rlfriend, Michelle Burnette, we nt to Bob’s Bar in Cumberland County. Once inside, they then began playing pool against the appellant and his wife. The bet was for a beer. When M ichell e failed to call a pocket

on her fi rst sho

t, the ap pellant

’s wife swore at her. As the g ame continued, the appellant’s w ife continued to swear at the victim and his girlfriend under her breath. After losing the game, the victim and his girlfriend w

ent to the bar to buy beers for the appellant and his wife. The appellant’s wife approached them and said, “F--- y ou.” The victim then responded, “You can take thos e ‘f--- yous’ and sti ck them up your ass!” The appellant heard the victi m’s comment and began to approach the victim and Michelle who wer

e moving toward the fro nt door.
Larry Walker, a friend of the victim’ s, saw the appellant mov ing toward the victim with a cue s

tick. Walker confronted the appellant and the tw o began fighting. Willard Kennedy, the bart ender, pulled Walker off the appellant. The appellant yelled at his wife to get his gun and then ran outside of the bar. The bartender locked the front door. The appellant went to his v ehicle, ripped open the glove compartment, and got his weapon.

In the meantime, the bartender broke up the fight and ordered ever yone to leave the bar. As the bar tender opened the front door, the appell ant pushed-3- his way inside and a

sked, “Where did the son of a bitch go?” The v ictim, who was beside the door, said, “Her e I am.” Th e appella nt reache d around Kennedy, lifted his gun, and shot the v ictim in the chest. The vi ctim fell to the floor and was dead within moments.
According to the appellant’ s testimony, the victim started the verbal confrontation. The appellant testif ied that he went to get his gun because his wife was being beaten. The appellant testified that the g un discharged accidentally when th e victim struck the appe llant with a cue stic k. He was vigorously cr

oss-examined by the stat e. The jury accredited the testimony of the state’s witnesses.
In his first issue, the appel lant contends that his retri al violates his ri ght to be free from double jeopardy. He contends that a defendant who has been convicted cannot be retri ed on the same charge when the verdict is set asi de due to errors which were no fault of the defendant. W e disagree. “The double jeopardy guarantee affords thr ee separate constitutional pr otections against: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conv iction; and 3) multiple puni shments for the same offense.” State v. Harris , 919 S.W.2d 2d 323, 328 (Tenn. 1996) (citing North Carolina v. Pearce , 395 U.S. 711, 716 (1969); State v. Mounce , 859 S.W.2d 319, 321 (Tenn .1993)). When a defen dant obtains a new tria l on some basis other than insufficiency of the evidence, double jeopardy does not preclude a retrial of the defendant. Id. This issue is witho ut merit.
In his second issue, the appel lant argues that the trial court made improper comments during v oir dire. In response to a line of questioning by the defense, a prospective juror asked how jurors w

ere to judge the case if the st ate provided witnesses under oath and the defense presented no w itnesses. In response to the question, the trial court explaine d that a defense can be presented through the cross-examination of the state’s witnesses, that the jury-4- was responsible for assessing a witness’ credibility, and that the defendant did not need to testify in order to deny the existence of the e lements of the crime. As the state argues, the appel lant has waived this issue by failing to obj ect to the trial court’s remarks . T.R.A.P. 36(a); State v. Renner , 912 S.W.2d 701, 705 (Tenn. 1995). Furthermore, w e find no error in the court’ s remarks, the aim of which was to ensure that the appellant received a fair trial.
The appellant argues in issues three and four that the trial court erred in failing to direct a v

erdict of acquittal at the c lose of the state’s proof and at the close of all the proof. The appellant primarily argues that the state failed to establish that the cause of the v ictim’s death was the g unshot wound inflicted by the appellant. This Court w ill not disturb a ver

dict of guilt for lack of sufficient evidence unless the facts cont ained in the record and the infer ences, which may be drawn from the facts, are ins ufficient for a rational trier of fact to find the defendant guilty beyond a r easonable doubt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).
The state introduced through the testimony of police inves tigator, Benton Threet, a certified copy of the death certificate of the victim from the Cumberland County Health Department w hich shows the cause of death as a “gunshot wound to the chest.” The death c ertificate was signed

by pathologist, Dr . James Barnawell. The state also presented the testimony of Michelle Burnet te, Willard Kennedy, and Larry Walker to establi sh that the appellant shot and ki lled the victim. The appellant contend s that the evidence of causation is insufficient because the death certificate is not trustworthy. He explains that Dr. Barnawell testified that he did not examine the deceased , was not in town when the victim was at the Cumberland County Medical Center, and did not perform an autopsy. The appellant relies on Dr. Barnawell’s testimony that there could be

other causes of death such as severe or sudden myocardial infarc tion, brain stem hemorrhage, or stroke. D r. Barnawell also tes tified that, after looking at al l the medical records and photos, he determined and was sure that the cause of-5- death was a gunshot wo und to the chest. Dr. Barnaw ell was entitled to r

ely on the victim’s history

and case file to form his opinion. Cole v. State , 512 S.W.2d 598, 601 (Tenn. Crim. App. 1974). Additionally, the lay testimony alone is sufficient to establish that the v ictim died of a gunshot wound . The cause of death need not be proven by ex pert testimony. McCord v. State , 278 S.W.2d 689, 691 (Tenn. 1955); Bryant v. State , 503 S.W.2d 955, 958 (Tenn. Crim. App. 1973). The proof is overw helming that the victi m died from the gunshot wound inflicted by the appellant. These issues are without merit.
In issue five, the appellant contends that the trial cour t erred in admitting the death certificate as proof of the caus e of death. The appellant objected to the admission of the certificate bec ause the methods used to prepare the information in the certificate w ere untrustworthy. The appellant offered the testimony of Dr. Barnawell in support of his objection. As previously stated, Dr. Barnawell did not perform an autopsy on the deceased. Dr.Barnawell testified that he relied on the medical examiner’s report and the emergency room report to establish his opinion tha t the victim died of a guns hot to the chest. We find no error with the cour

t’s admission of the death certificate. The state maintains that the certificate is an ex ception to the hearsay rul e under Tennessee Rule of Evidence 803(8). We agree. The certificate is a record of the Tennessee Department of Public Health. D r. Barnawell’s testimony verified that the death certificate offered into evidenc e was the same certificate that he completed and signed. This issue is without merit.
In issue six, the ap pellant claims t hat the trial cou rt erred in admitt ing a diagram of the crime scene int o evidence which w

as introduced through the testimony of Investigat or Threet. The appellant objected t o the admission of the diagram because it was not drawn to scale. H e cites Tennessee Rule of Evidence 801, but he does not ex plain why the alleg ed error requires r eversal. Threet testified that the diagram was not drawn to scale but that it did accurate ly depict the location of certain items as he observed them. Ther e was no abuse of-6- discretion by the tri al court in admitting the diagram. There is no show ing of prejudicial error. This issue is without merit.
In issue seven, the appellant contends that the trial court imprope rly instructed the jury th at they may infer the cause of death. The court instructed the jury that when a w

ound from which death might ens ue is inflicted with the intent to kill, you may infer that death following that wound was caused by such wound. If one so infers, the defendant s hould show that death resulted from some other cause not attributabl e to the defendant. The court further ins tructed the jury that the burden to prove the cause of death never shifts from the state. The jury in structio ns read as a whole fa irly infor ms the jur y of the ap plicable law. There is no showing of prej udicial error. The ev idence of the cause of death was overwhelming. This

issue is without meri

t.
In issue eight, the appell ant argues that during c losing argument, the stat e improperly argued that

the appellant was presumed g uilty. The state argued that “And when you go back to the jury room, that w itness that goes back w ith you, which is the presumption of guilt, he has a hard time going with you.” As the state argues, the appel lant has waived this issue by failing to obj ect to the court’s remarks. Moreover, the state’s remark did not likely affect the result of the appellant’s trial becaus e the trial court instr

ucted the jury that the appel lant was presumed innocent and becaus e the evidence of the appellant’s guilt was overwhelming. This

issue is without meri

t.
In issue nine, the appellant ar gues that the trial cour

t erred in not allowi ng the appellant to voir dir e the jurors individ ually about their know ledge of the case. Before trial, a newspaper article about upcoming murder trials appeared on the front page of a local paper. The art icle mentioned that the appellant had been tried and convicted of first degree murder in his fir st trial. Citing the article, the appellant made a motion for indiv idual voir dire. To s

ave time, the court said that it would prefer the defense to v oir dire on all issues

except knowledge of the-7- case, and then proceed with individual voir dire of the jurors. The defense counsel agreed to the procedure and made no objection. Later, counsel requested, and was gr

anted, the chance to individ ually voir dir e the jurors as to sp ec if ic kn ow le dg e of t he

ca se . T he

tr ia l c ou rt al lowe d i nd iv id ua l v

oi r d ir e. We fail to understand how the court denied the appellant the right to individually voir dire prospective jur

ors. There is nothing in the record, including an objection, and nothing in the appellant’s brief beyond a conclusory statement, to indicate any prejudicial err

or. This issue is w

ithout merit.
Finally, the appellant argues that the trial court erred in failing to apply various mitigating circumstances. We assume that th e appellant refers to his account of the shooting as “I got hit in the face and the gun w ent off.” The state interprets the appellant’s argument to be that the trial court erred in failing

to consider that the appellant’s tooth was knocked out duri ng the barroom brawl as a mitigating factor in det ermining the appellant’s s entence. Appellant’s brief on this issue is inadequate . We find no merit to either interpretation of the appellant’s grievanc

e. The appellant’s sentence is affirmed.
Finding no reversible error, we affirm the judgment of the trial court which approved the convicti on and the sentence.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

_____________________________ JERRY L. SMITH, Jud ge-8- _____________________________ CURWOOD W ITT, Judge