### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs June 13, 2001
STATE OF TENNESSEE v. THOMAS L. JONES
Appeal as of Right from the Criminal Court for Shelby County

No. 98-09945 John P. Colton, Jr., Judge

No. W2000-01028-CCA-R3-CD - Filed September 24, 2001

The appellant was convicted by a jury in the Shelby County Criminal Court of second degree murder andwas sentenced a

s a vio le nt offender to twenty-one ye ars incarceration in the Tennessee Department

of Correction. On appeal, the appellant raises the following issues for our review: (1) whether the evidence was sufficient to convict the appellant of second degree murder; and (2) whether the trial court erred by refusing to gra nt a mistrial bec ause of improper jury instructions characterizing the appellant’s statement as a confession. Upon review of th e record and the

parties’ briefs, we affi

rm the judgment of

the trial court. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed.

N ORMA M C G EE O G L E , J., delivered the opinion of the court, in which J OE G. R ILEY , J., and C ORNELIA C LARK , S.J., joined.

Brett B. Stein an

d Larry A. Diamond, Memphis , Tennessee, for the appellant, Th

omas L. Jones.

Paul G. Summers, Attorne y General and Reporter; Pet

er M. Coughlan, A

ssistant Attorney

General; William L. Gibbons, Dis trict Attorney

General; and Tom

Hoover, Assistant

District Atto

r ney General, for the appellee, State of Tennessee.
OPINION I. Factual Backgr

ound On t he night of February 23, 1998, the victim, La toya Tribbit, invited her cur ren t boyfriend, De Carlo Pitchfor d, to join her at the Mira

ge, a nightclu

b in Memphis. While at the club, Pi tchford s poke briefly with the appellant, who had previously dated Tribbit and by whom the appellant had a child. Pitchford and the victim remained at the club until approximately 1 a.m. when they left to go to the victim’s home.

Shortly after retiring for the night, Pitchford and th e victim heard the appellant knocking on the door of the victim’s house. The victim asked Pitchford to answer the do or a nd-2-

advise the appellant that she was sleeping. Pitchford followed the victim’s instructions; however, the appellant insisted that the victim come to the door. When the appellant insisted upon speaking withthe victim, she ref

used and telephon

ed the appellant’ s mother to advise her of the appellant’s actions.

Pitchford an d the v ictim then watched through a window as the appellant walked backed to his car, turned around, and then returned to the front door. Pitchford immediat ely ran to the back door and was attemptingto leave the house when he heard a loud “boom.” When he peeked back into the living area, he saw that the appellant had kicked the front door off the hinges and was entering the house with a gun.

The appellant remained

in the house with the victim for about five minutes before the appellant’s mother arrived. Shortly after the appellant’s mother entered the house, Pitchford heard several shots. The appellant then left the house, followed by his mother. Pitchford returned to the house where he found the victim, who had been shot multiple times.

The appellant

was arrested

a short time later at the home of his aunt. He was taken to the pol ice sta

tion where he was advised of his rights. The appellant then gave a voluntary statement outlining his role in the victim’s death. The appellant related that he had seen the vi

ctim at the Mirage and they had

discussed their relationship. Before he left the club, the appellant bought flowers for the v

ictim but was unable

to find her. He left the club at approximately 1:30 a.m. and drove by the victim’s house. When he saw that the d oorwas padlocked, he decided to go home. After arriving home, the appellant looked at photo albums containing pictures of himself, the victim, andthei r child. He t ook a picture of the victim, cut it into pieces, and placed the pieces into an envelope along with a letter which he had written to the victim. He then decided to return to the victim’s home.

After

he left his house, t

he appellant rea

lized that he did not h

ave his gun with him. He returned to his house, retrieved the gun, and drove to the victim’s house. When the victim refused to let him into the house, he walked back to the car, intending to leave. However, as he was leav ing, he heard the victim

and Pitchford laughing, and he changed his mind. He got out of his car and went back to the front door. When the victim refused to open the door, he kicked it off its hinges and went inside. The victim, who was hiding under the bed, came out, and they walked to the kitchen. They talkedabout their

relationship for a few minutes. The appellant alleged that when his mother arrived, the vic

tim grabbed the gun he was holding and they began “‘tusslin’ over

it.” He claimed that his finger was on t

h e trigger, he heard a shot, and “she let go of the gun a nd it went off two more times.” The appellant related that as he started to leave the kitchen, “I said to myself, if she ain’t dead, I wasgonna make sure she was.” The appellant then shot the victim in the “jaw or ear.” The victim raisedher head and said “naw,” and the appellant shot her again in the back of the head. The victim died of m

ultiple gunshot wo

unds. II. Analysis A. Sufficiency of the Evidence-3- On appeal, the appellant alleges that the evidenc e is no t sufficient to supp ort his conviction of second degree murder, insisting that this is a classic case of voluntary manslaughter. The appellant claims that he acted in a fit o

f passion brough

t about by see

ing his “paramou

r” with another man, causing him to feel “cuckolded.” Therefore, he contends that a rational jury could only have concluded that he was guilty of voluntary manslaughter, not second degree murder.

Wh en an accused challenges the sufficiency of the evidence, an appellate court’s standardof revi ew is whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 324, 99 S. Ct. 2781, 2789 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Ten n. 1985); Tenn. R.

App. P. 13(e). This

rule applies to findings of guilt based upon direct evidence, circumstantial evide nce, or a co mbination of both direct and circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled on other grounds by , State v. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000).

In determining the sufficiency of the evidence, this court should n ot re-weigh or reevaluate

the evidence, State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990), nor may this court substitute its inferences for those drawn by the trier of fact from the evidence, State v. Buggs , 995 S.W.2d 102, 105 (T enn. 1999); Liakas v. State , 286 S.W.2d 856, 859 (Tenn. 1956). Questions concerning the credibility

of the witnesses, the weight and value of the evidence, a

s well
as all factual iss

ues rai sed by t he evidence are resolved by the trier of fa ct. Liakas , 286 S.W.2d at 859. Again, this court must afford the State of Tennessee the strongest leg itimate view of the evidence contained in

the record as well as all reasonable inferences which may be drawn from the evidence. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict against a defendant
removes the presumption of innocence and raises a presumption of guilt, a conv i cted criminal defendant bears the burden of

showing that the evidence was not legally sufficient to sustain a guilty verdict. Id.

In this case, the evidence, taken in the li ght most favorab le to the State, cle

arly supports the finding by the jury that the appellant committed second degree murder. Second degree murder is defined as “[a] knowing killing of another.” Tenn. Code Ann. § 39-13-210(a)(1) (1997). We note that “[a] per

son acts knowingly with respect to a result of the person’s conduct when the person is aware that the

conduct is reason

ably certa in to cause the result.” Tenn. Code Ann. § 39-11- 302(b) (1997). In contrast, Tenn. Code Ann. § 39-13-211 (a) (1997) provides that “[v]oluntary manslaughter

is the intentional or

knowing killing o

f another in a sta

te of passi on pr oduced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.”

Again, we conclude that

the evidence is su

fficient to support the jury’s determination that the appellant

committe d second degree murder. The evidence shows that the appellant encountered

the victim and Pitchf

ord at the Mirage club on the evening of the offense. He had a brief, unremarkable conversation w i th Pitchford and, so me time later, spok

e with the victim. Testimony

of Pitchford and the victim’s mother established that the victim and Pitchford had been dating for more than two y ears. The appel

lant was aware o

f their relationship, and

he had also

been-4-

involved in other re lationshi ps. Pitchford testified that when the appellant came to the door, the appellant did not appear excited but was acting“normal.” Notably, although the appellant testified that he was upset, he a

dmitted that when he

left his home to go to the victim’s home, he realized that he did not have his g

un and returned h

ome to retrieve it

. When the appellant entered the victim’s home, he spoke with her reg ardi ng their relationship. He characterized the shooting as anaccident. Perhaps most telling is the appellant’s admission that, after the initial shots, he made a calculated decision to kill

the victim, say

ing, “I said to myself, if sh

e ain’t dead, I

was gonna make

sure she was.” A

fter shooti

ng the victim, the appellant threw the gun into the river.

The jury was ins tructed on second degree murder, voluntary manslaug hter, and reckless homicide. They obviously rejected the appe llant’s argument

that he killed the victim

while in a state of passion produced by adequate provocation. This was their rig ht. In distinguishing seconddegree murde

r from voluntary

manslaughter, t

his court has said that the degree of homicide in the killing is for

the jury to determine. Wilson v. State , 574 S.W.2d 52, 55 (Tenn. Crim. App. 1978); see also State v. Williams , 38 S.W.3d 532, 539 (T enn. 2001). This iss

ue is without merit.

B. Failure to Declare a Mistrial In his next issue, the appellant argues that the trial court erred when it refused to grant
a mistrial after i mproperly instructing the jury. He contends that, by instruc ting the jury that the statement given by the appellant was a confession, t he trial cour t used language which was an impermissible comment on the evidence.

A mistri al should be declared in criminal cases only in the event that a man ifes t necessity requires such action. Statev. Millbrooks , 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). In other words, a mist

rial is an appropriate remedy when a trial cannot continue or a miscarriage of justice would result if it did. State v. McPherson , 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). The decision to

grant a mistrial lies within the sound discretion of the trial court, a

nd this court will notinterfer e with the exercise of that discretion absent clear abuse appearing on the face of the record. See State v. Hall , 976 S.W.2d 12 1, 147 (Tenn . 1998) (cit ing State v. Adkins , 786 S.W.2d 642, 644 (Tenn.1990)). Moreover, the burden of establishing the necessity for mistrial lies with the party seeking it. State v. Williams , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

The reco rd r efl ect s th at t he t ria l ju dge g ave t he fo llo win g ins tru cti ons to t he j ury: Evid ence of a confession has been introduced in this cas e. A confession is a statement

by the defendant that he engaged in conduct which constitutes the c rime cha rged and is an acknowledgment of guilt itself. The court

has ruled that the

confession is a

dmissible in evidence, but it is you r duty to judge its truth. In so judging, y ou should consider the ci r cumstances under which the confession was obtainedas well

as any evidence which contradicts all or part of the statements

made. You must consider all the statements made by the-5- defendant,

whether favorable or un

favorable to him, and you must not disregard any of them wit hout go od r eason. If the evidence in the
case leads you to believe that the confession or any part of it is untrue
or was never made, you

should disregard it or that portion which you do not believe.

You are the sole j udge of what weight sh ould be given to th

ose portions of the conf

e ssion which y

ou believe, and y

ou should consider them along with

all other evidence in the case in determining the defendant’s guilt or innocence.

Article VI, section 9 of the Tennessee Constitution specifically provides that “[t]he Judges shall notcharge juries with respect to

matters of fact, but may state the testimony and de clare the law.” The purpose of this provision is to avoid giving “the jury any impression as t

o [the judge’s] feelings or ... mak[ing] any statement which might reflect upon the weight or credibility of evidence or which might sway the jury.” State v. Suttles 767 S.W.2d 403, 407 (Tenn. 1989). Nonetheless,

the trial judge h

as a duty to

give a complete charge of the law applicable to the

facts of the case. State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986).

We are unable to conclude that the instructions given by the trial court were improper
or that the court erred by failing to declare a mistrial. The trial court correctly noted that evidence of a confession had been introduced. It is undisputed that the appellant admitted to police officers that he shot the victim six times and his statement was introduced at trial. The details surrounding the killing were explicitly outlined by the appellant in the statement. The trial cou rt made no commentsregarding its opinion of the statement. The court’s instructions clearly advised the jury that it was their duty

to determine the tru

th of the confessi

on and the circums

tances surround

ing it, and, should they d

etermine that the

confession or an

y part of it w

as untrue, they

should disregar

d it. Add iti ona lly, the jury wa

s advised that they

were the sole jud

ge of what weig

ht should be given

to the confession and that all other evidence in the case should be considered along with the confession in determining g

uilt or innocence. This issue is without merit.
III. Conclusion Having concluded that there is sufficient evidence to support the conviction and that the trial court did

not err by r

efusing to gra

nt a mistrial, we af

firm the judgmen

t of the trial cour

t.

___________________________________-6- NORMA McGEE OGLE, JUDGE