### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ja nua ry 10, 200 6

STATE OF TENNESS EE v . CORY LYN CLARK

Direc t Appeal from the Circ uit Court for Gibson Coun ty

No. 7286 Clayburn Pe eples, Judge

No. W2005-01020-C CA-R 3-CD - F iled Augu st 2, 2006

The de fenda nt, Cory

L y n Clark, was co n v i cted of second de g ree murder ( Class A Fe lony ) and
sentenc ed to twenty

y ear s in the Tennesse e De partment of Corr ection as a violent offende r. The de fe nd a nt c on te nd s on app e a l tha t: 1 ) the e vid e nc e wa s in su ff ic ie nt t o s up po rt

his c on vic tio n b e c a us e he c la ime d s e lf

-d e fe ns e ; 2) the tr ia l c ou rt

imp r o p e rl y

a dmi tte d h is s e c on d s ta te me nt t o p oli c e be c a us e

a ta p e r e c o r d in g o f

th e s tate me n t w a s n o lo n g e r a v a il ab le ; a n d 3 ) th e s e n te nce w a s imp r o p e r

. We

c on c lud e that th e e vid e nc e wa s su ff ic ie nt t o s up po rt

his c onvi cti on , th a t th e de fe nd a nt f a ile d to
prese rve his appea l of t he lost evidenc e by failing to object at trial, a nd that the sentenc e wa s proper

. We a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OHN E VE R E TT W I L L I AMS , J ., delivere d t h e o p i n i on of the c ourt, in which D AVI D G. H AYES and A L AN E. G L EN N , J J ., joined.

D. N a th a n ie l S p e n c e r , B r o w n s v il le
, T e n n e s s e e ( o n ap p e a l)
, a n d Ra ms d a le O ’ D e n e a l, Jackson, Tenne ssee ( at trial), f

or the a ppellant, Cory

L y n Clark.

Paul G. Summers, Attorney Gene ral a nd Reporter ; J . Ross Dy er, A ssistant Attorney Gene ral; Ga

rry G. B rown, District Attorne y Gene ral ; a

n d E laine G. Todd a nd Edwar d L . Har dister, Assistant District Attorney s Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Fa cts and Proce dural History

Th e de fe nd a nt s ho t a nd kil le d Nakia Part e e , th e mothe r o f h is c hil d, du ri ng a n a lte rc a tio n in his be dr oo m. T he de fe nd a nt c la ime d that he sh ot the vic tim in s e lf -d e fe ns e a ft e r the vic tim

a lle g e dly pic ke d u p a

kn if e a ndsta bb e d h im.-2-

At the trial, L ieutenant B ill Bake r, Assistant Chief of Police for Humboldt, testified that he investigated the death of the victim. He wa s off-duty wh en h e l ea rned of the shooting a nd of the
prese nce of the defe ndant with a stab wound at the police department. He said that when he ar rived, Serg eant Tony

Wil liams had secur ed the sc ene a nd Offic er Mike L ewis had beg un an investig ation. Additionally , Melvin Stewart, the de fen d an t ’s uncle, a nd L ouetta Whitehorn, the def endant’ s g randmother , wer e pre sent

. He t es t i fied that they found the victim’s body in the defe ndant’s bedroom b et we en the bed and the dr esser and found the knife ne ar the body , next t o the dre sser. Additionally
, they discovere d a bull et casing benea th the victim’s chest, twelve inches fr om the rig ht

corne r of the be d. The victim had g unshot wounds to the left che ek and to the top rig ht-hand side of t he back of her head. He said they sent the body for a n autopsy . He a lso testified that he did not

rec all seeing blood on the victim’s hands. L ieutenant B aker said the defe ndant came to the police department a fter the incident. Offic er L ewis later rea d the def

endant his Miranda

rig hts and took the defe ndant’s stateme nt in the presenc e of Lieutenant Ba ker at approximately 11:47 p.m. The rec orded
statement wa s play ed for the j ury at trial, and the jurors we re f urnished with a tra nscription to follow

a s th e ta pe play e d. No ob

je c tio n w a s rai se d to e ith e r the play ing of the tape or

the tr a ns c ri pt. L ieutenant B aker

testified that the def

endant indica ted that he was standing with his arms extended when he fired at the victim. He said that the defe ndant indicated that he plac ed the we apon under some shrubbery

at the police station be fore entering, and office rs later found the g un in that location. He said that the TBI ballistics analy sis indicated that the bul let and ca sing w ere discharg ed fr om the

rec overe d wea

pon. He testified that the defe ndant’s only wo u n d was to his arm a nd that he had

su sta ine d n o a

pp a re nt d e fe ns ive wo un ds . T he kn if e wa s su bmi tte d fo r a na ly sis bu t the y we re un able to develop a n yfing erprints from the knife. He further testified that a se cond stateme nt was take n from the de fenda nt a few day s later, but no ta pe re cording was a vailable at trial. A transc ription of the sec ond statement wa s rea d aloud to the jury . He noted tha t during the sec ond statement, the defe nd a n t att e mp te d to e xp la inw h y th e v ic ti m w a s s h o t i n th e b a c k o f th e h e a d a s o p p o s e d to the fac e, as he had orig inally

stated.

On cr oss-examination, L ieut en an t Ba ker te stified that Reserve Offic er K enny Perry discovere d the wea

pon and turne d it over t o Of fi ce r L ewis. At that time, there was a hair on the

muzz le of the w eapon but it was lost b et we en the re covery of the we apon and the trial. He acknow ledg ed that the evidenc e was compromised and tha t they “should have the hair, but [] do not.” He f urther a cknowledg ed that the tape rec ording of the second state ment was lost. He r eiterated that no fing erprints were fo u n d o n t h e knife . He sa id that the g un was fir ed at c lose rang e and tha t he could not definitively say that the victim, in a strug g le with the def endant, did not turn at the moment that the sh ot wa s fir e d. He sa id that dif fe re nt que sti on s we re a sk e d in the fi rs t a ndse c on d in te rv ie ws

. He sa id that they

asked the location of the g un in the first interview and that the de fenda nt said he didno t w a nt t o w a lk i nto the po lic e de pa rt me nt w ith a g un so he thr e w it in the sh ru bb e ry . He sa id that the def

endant wa s forthrig ht a

bout the location of the wea pon and wa s cooper ative throug hout the int e rv ie ws

.

On re direc t examination, L ieut e n an t B a k e r te s ti f ie d that the transc ript of the sec ond interview

acc urate ly

ref lected the contents of the inter view. He said t h at people do not alway s leave fing erprints. He also said that if the murde r we apon we re he ld close to a for eig n object, it might-3-

become trappe d betwee n the slide and the ba rre l “bef ore it cy cles.” He noted tha t for the de fenda nt’s arms to be outstretc hed, as he admitted they wer e, the v ictim would have to have been at least an arm’s le ng t h awa y

from him. He a lso said that if she had turne d awa y , she would not have posed a thre at to him. On re-cr oss, he testi fied that no prints we re taken fr om the g un. He a g ree d that there

wer e thing s that “could’ ve [been] done differ ently ” and a dmitted that the taped stateme nt should not ha ve be e n lo st.

Th e ne xt wit ne ss t o te sti fy wa s Offi cer Mi ke L e wi s. Of fi c e r L e wi s te sti fi e d th a t he is

c ur re ntl y e mpl oy e d a s a

pa tr ol o ff

ic e r w ith the Col liervi lle Po lic e De pa rt me nt b ut w a s f

or me rl y employ ed as a n investigator with the Humbol d t P o l i ce Depa rtment. He sa id that he was the investigator in the dea th of the victim on October 19, 2002. He sa id that h e wa s working at the
p o l i ce d ep ar t m en t wh en t h e de fe n d an t wa l k ed i n an d s t at ed t h at h e ha d s h o t s o m eo n e at1 1 5 E t h ri d ge Street. The d efendant said that his g irlfriend ha d stabbed him, and Of fice r L ewis testified that he observe d only

the stab wound to the defe ndant’s lef t arm. He testified that he r esponded to the sc ene

a ndfo un d th e vic tim

ly ing de a d o n the fl oo r in the ba c k b e dr oo m. H e sa id tha t Mr . St e wa rt a ndMs. Whit ehorn w ere in the front of the house when he arrived on the scene

. He said that the def endant stated during an intervie w that he r etrieve d the wea pon from a top right drawe r i n the bedr oom. He further said that when the y

arrived
, h e n o t ed that the dr esser draw er w as closed. H e said that the draw er “ was stuffe d with quite a bit of stuff, pape rs, et ce tera ” and that he was not a ble to open the dr a we r w ith on e ha ndbe c a us e it w a s so fu ll.

On cr oss-examination, Office r L ew i s testified that he c ollected the e vidence and took a

rec orded sta t em ent from the de fenda nt. He said that the de fenda nt was coope rative. H e said that he did not ask the de fenda nt if he closed the draw er a nd that he did not take a statement fr om any one else re g arding the dra wer

. He said he also collecte d the knife a nd took photos of the crime sc ene. He wa s unable to lift prints f rom the knife and did not analy ze the g un. He sa id that he conduc ted

a sec ond interview to a sk further questions and t hat he rec orded both statements. He a cknowledg ed that the tape of

the sec ond interview w as re levant, that it was now unavailable
, and that this was the fi rs t ti m e t h a t h e h a d l o s t a t ap e

. H e s a i d t h a t h e w a s n o t i n v o l v e d i n t h e i n t e r v i e w w i t h M e lvi n Ste wa rt

. He a lso sa id that he did no t take pic tur e s o r a sc e rt a in the e xten t of the de fe nd a nt’ s in

jurie s.

On re direc t examination, he testi fied that during the first interview, the defe ndant s tated that the vic tim

wa s f a c ing him whe n h e sh ot h e r. Of

fi c e r L e wi s f

urthe r t e sti fi e d th a t he su bs e qu e ntl y le arn e d th a t the vic tim ha d be e n sh ot in the ba c k of the he a d. He a g a in te sti fi e d that he didno t a sk the def endant if he shut the dresser drawer
, but the defendant did not indicate that he shut the drawe r in relaying his ve rsion of t he ti me l ine of events a s they occur red. H e said the hospital tre ated a nd rele ased the d ef

en d an t

. On re -cr oss, he testified that he did not ac company the def endant to the ho sp ita l.

The ne x t witness was Serg eant Tony Wil liams of the Humboldt Poli ce D epartme n t

. He testified that he wa s the first officer t o re s p o n d t o the crime scene . He sa id that he found four subjects in front of th e h o use whe n he ar rived a nd that they

indicated that the vic tim was in the-4-

bedroom. He said that the victim h ad a bleeding head w ound. He c alled the pa rame dics who verifie d that the victim was dea d.

Next, R eser ve Officer Kenny Perry of t he Humboldt Police Depa rtment testified that he we nt to assist Serg eant Williams i n responding to the crime sc ene. H e said that they secur ed the sc ene a nd the vehicle that the def

endant dr ove to the station. He te stified that he discove red the wea pon underne ath some shrubbe ry outside the station, approxim ately eig ht to ten-fee t from the vehic le.

Nex t , M el vin Stewart, Jr., testified that he lives at 115 Etheridg e and that he is the defe ndant’s uncle

. He was at the house on the night that the vic tim was killed. He said he sa w the defe ndant, the victim, and their c hild in the y ard betwee n 7:00 a nd 7:30 p.m., but he did not overhea r the ir c on ve rs a tio n. He te sti fi e d that the de fe nd a nt b ro ug ht the c hil d in to the ho me , th a t th e vic tim

re turne d a bo ut h a lf a n h ou r l a te r, a ndthat sh e “ did n’ t lo ok re a l ha pp y .” Ste wa

rt sa id that the vic tim went into the bedroom, and he hear d “a pop.” Then the defe ndant came out of t he bedr oom, said the victim had cut him, and told him to “see about the baby .” He said that the defe ndant left but did not
say wher e he w as g oing. H e also said that he never saw a g un. He went into the be droom and g ot the baby . He sa id that his mother, L ouetta W hitehorn, arrived at the hom e and that the police ar rived sh ortly the re a ft e r. He didno t kn ow wh a t th e de fe nd a nt d id a ft e r g oin g ou tsi de . H e sa id tha t hi s mother we nt into the bedroom but that she did not touch or m ove any thing. He said he did not hear the def endant c ry

out in pain before the “pop.”

On cr oss-examination, he ag ain s aid t he defenda nt broug ht the child into the house and that neither the d efendant nor the vic tim “seem[ed] t oo happy .” He said that he saw the victim on the floor af ter he went i n t o g et the child and that he did not believe the c hild realized what ha d happene d. He did not r emember if the defe ndant came back to g et key s but he hear d the ca r lea ve. He ha d never

hear d the def

endant a nd victim arg uing prior to t h is incident. He said that the de fe nd a nt t oo k c are of the c hil d “e ve ry tim e that [ the vic tim ] ne e de d h im t o. ” He sa id tha t th e c hil d has ce rebr al palsy . He did not hea r the victim say

why she ca me bac k the sec ond time.

On redirect ex amination, he estim ated that the defendant kept the child seven or eig ht times betwee n the time he and the victim ended their r elationship in April and the time of the vic tim’s death. He did not reca ll giving the police a statement after the incident. He said that he “may have” told the police that he was “half -aslee p” and dozed off when the victim and def endant we re in the be dr oo m.

The ne x t witness to testi fy wa s Christie Ball. She testified that she was a t the victim’s

apa rt me nt o n th e da y

that sh e di ed. She arrive d a ro un d 6 :00 p. m. t o a c c omp a ny the vic tim

to Jac ks on , T e nn e sse e , to a tte ndHo me c omi ng fe sti vit ie s a t L a ne Col le g e . Sh e sa id the de fe nd a nt c a me to the apartment shortly afte r she arrived. She hear d the vi ctim repe atedly tell the defendant to lea ve, and she be lieved that he w as bring ing their child back to the victim. She said that the victim pushed him out of the door and that he hit the door and left. She said he left the child and took the victim’s

c e llu lar p ho ne . Sh e said that the vic tim le ft to re tr ie ve he r ce llu lar p ho ne a t th e de fe nd a nt’ s h ou se and to take the child to her mother’ s house in Milan.-5-

Next, Denetta B ry son t es t i fi ed that she wa s a close f riend to the victim. She said that the rela tionship between the vic tim and defe ndant ende d approximately seven months b ef

o re the

v i ctim’s death. She r eca lled that in May 2002, she wa s with the victim when the def endant
approa ched he r and the y

beg an ar g uing. She sa id the defe ndant told the victim that “if he couldn’t have he r that, y ou know, he would kill her.” The victim also let her listen to phon e messag es left by the def endant a pproxi mately

one we ek bef

ore her death in which he expressed ang er tha t she was
g oin g ou t, c ur se d a t he r, a ndthr e a te ne d to kil l he r. Th e de fe nd a nt c a lle d th e vic tim mor e tha n th irty times in a forty -five minute spa n in w hich she hear d the defe ndant “y elling, scre aming , and cur sing.” During cross-e x amination, she testified that she spoke to the police a bout the phone conve rsations and messag es. She said she did not know if the office rs listened to the messag es or if they obtained the vic tim ’s c e llu lar p ho ne re c or ds

.
Next, L y nn Ba iley

testi fi ed t hat she wa s a cousin of the victim but did not know the defe ndant. She said that af ter the de fenda nt and the victim ended their rela tionship, t he victim tried to develop a soc ial life. Ba iley testified that she had listened to a pproxi mately nine messag es on the victim’s cellular phone , one of w hich indicated that if the defe ndant could not have the victim, no one could.

Next, Tang i Ba iley

testified that she was a cousin of t he victim and that they worke d toge ther fo r t wo a nd a ha lf to thr e e y e ars

. She sa id that the de fe nd a nt a ndvic tim ha d e nd e d th e ir

re la tio ns hip six months prior to the victim’s death and that they had arg ued from that time until her death. She said that she hea

rd a voic e mail m essag e lef t by the def endant on the vic tim’s phone in which he implied that the vic tim wa s not a nswering the phone beca use she was having sex wit h another man. She also stated that the de fenda nt would show up at the victim’s place of work une x pecte dly afte r their bre akup.

During cross-e x amination, Ms. Ba iley admitted that t h er e was never an alter cation at the vic tim ’s job sit e . Sh e c la ime d th a t th e vic tim wo ulda sk

he r i f she ha d see n th e de fe nd a nt o ut w ith oth e r w ome n a ndthat sh e re sp on de d th a t sh e ha d see n him out on se ve ra l oc c a sio ns . O n r e dir e c t, she said that the v i ct i m ’s m o t h er usually kept the child whe n the victim went out and that the defe ndant only

kept him overnig ht “twice or so.”

Next, L ieutenant B aker

was re called a nd testified that the def endant state d in his int ervie ws that he had le ft messag es on the victim’s ce llular phone regar d i n g t heir son but denied that he threa tened to kill her or himself.

The ne x t witness to testify was Dr . Teresa Campbell, assistant medica l examiner to the
reg ional fore nsic ce nter in Memphis. She testified that her autopsy on the v i cti m determined tha t the cause of de ath w as a co n t act g unshot wound to the head. She sa id that there w as no drug s or alcohol in the vic t i m ’s s y s t em at t he time of de ath. She said that the e ntranc e wound wa s the top ri g ht o f the ba c k o f the he a d a ndthat the e xit wo un d w a s in the le ft c he e k. She te sti fi e d th a t a “conta ct wound” indicated that the muzz le of the g un was a g ainst the skin at the time the g un was fired. She sa id that the injuries wer e consistent with a hard contac t w ound, which indicate d pressure-6-

applied to the skin at the time of discha rg e. On c ross-examination, she said that the victim had no injuries other than the g unshot w ounds and that she c ould not determine the position of the de fenda nt

or the vic tim

fr om the inj ur ie s.

Th e Sta te re ste d it s c a se , a ndthe de fe nd a nt p re se nte d a mot ion fo r a jud g me nt o f a c qu itt a l, wh ic h w a s o ve rr

ule d. Th e de fe ns e be g a n th e ir pr oo f b y c a lli ng a n a c qu a int a nc e of the de fe nd a nt.

Andre a Vinson testified that she ha d a six -y ear rela tionship wit h the def

endant. She said that during her r elationship with the defe ndant, the victim follow ed t h em i n a vehicle at a hig h rate of speed, forc ing the defe ndant to stop and speak with the victim. She said that they arg ued on a se cond

oc c a sio n o uts ide a

L on g John Silv e r’ s r e staur a nt.

On cr oss-examination, she testified that the def endant dated both women at the sa me time. She said that the def

endant c alled her

on the nig ht of the victim’s dea th. She further stated that she

was un able to h e ar the c on ve rs a tio n b e tw e e n th e de fe nd a nt a ndvic tim a t th e L on g John Silv e r’ s. On re dir e c t, s he state d th a t sh e tol d th e truth a s b e st a s sh e re me mbe rs

.
Next, the defenda nt te stified on his ow n behalf

. He said that he is twenty -eig ht y ear s old and that he and the victim have one c hild, J acor ey . He sa id that he and the victim broke up and g ot back toge ther often. He acknow ledg ed that he was seeing Andre a Vinson and the victim at the same time. He said that the day befor e she died, he and the victim ate lunch at L ong J ohn Silver’s. He sa id the vic tim dr op pe d th e ir

c hil d o ff a t 11 :00 a .m. on the da y

of he r d e a th. He c ut the c hil d’ s h a ir , g a ve him a bath, a nd fed him. He then took the child to his g randmother ’s house and borrowe d her van. He said that he we nt to ge t ga s and to tell the victim he was g oing to take the child to J ackson.

When he arrived at the vi ctim’s apartment, Christie Ba ll let him in beca use t he victim was in the bathroom. He said that the victim a ccuse d him of try ing to bring the child back a nd that she told him t o g et t h e ch i l d ’s belonging s. He we nt out and g ot the car seat a nd bag . He sa id she continued fussing at hi m and pushed him into the entertainment cente r. He said that she kicke d the door and hit him in the leg . He said she threw her cellular phone at him, but it m issed and we nt out the do or . H e re tr ie ve d th e ph on e a ndloo ke d th ro ug h th e nu mbe rs sto re d in it wh e n he re turne d to his house. He sa id the victim came ove r to retrieve the phone . He said he bega n to walk down the
street a nd, w h e n h e c a me c lo s e to th e h o u s e , th e v ic ti m arr iv e d a n d th e y ar g u e d f o r a f e w more minutes. He then took the c hild into t he house, a nd the vi ct i m drove a way . He sa id he did not expect her to c ome bac k, but she retur ned in thirty to thirty -five minutes. He sa id that they beg an arg uing a nd that she hit him in the head. He claimed that he pushed her into the dresser , wher e she
g rabbe d a knife

. They continued to sc uffle, and the victim stabbe d him in the arm. He sa id he then

rea ched into the dr esser

and retrieved his handg un. He sa id the victim threatene d to kill hi m, he g ot of f the be d, a ndthe n p us he d a nd sh ot the vic tim

. He sa id tha t his inte nti on wa s to shoo t th e vic tim but not to kil l her. The defe ndant said he the n walked out a nd told h i s u n cl e M ar v i n what had happene d and told him to get the c hild. He said that he attemp t ed t o fl ag d o wn a car but wa s

unsucce ssful and we nt b ac k i nto the house, g ot the victim’s key s, and drove her c ar to the police de pa rt me nt. He thr e w the g un in the sh ru bb e ry a ndwe nt i ns ide . H e c la ime d h e wa s no t tr y ing to-7-

hide the g un, but he was ne rvous. Once inside, he told an officer that “[his] baby ’s mother stabbe d [him ] an d [he ] sho t he r. ” An a mbu la nc e too k the de fe nd a nt t o th e ho sp ita l f or tr e a tme nt. He sa id that afte r his trea tment, he was r eturne d to the jail where he g ave a statement to the police of w hat had happe ned. He said that the dresser drawer was not hard to pull out and that he did not close the draw er. H e said he rec alled that in the sec ond interview, the questioning of fice r wa s try ing to g et him to admit t hat his arm wa s fully extended, but he re fused. He s ai d t h at h e did not make threa tening phone ca lls to t he victim. Finally , he stated tha t it took eight stitches to close his stab wound.

During cross-e x amination, the defe ndant testified that he shot the victim. He said that the only wound he r ece ived was a st ab wound to his upper le ft biceps. He indicated that the knif e penetr ated a

pproxi mately

one inch into hi s arm through a long- sleeve d cotton shirt. He wa s treate d

a nd re le a se d fr om the Hu mbo ldt Ho sp ita l Eme rg e nc y Roo m. He c la ime d th a t th e vic tim sw ipe d h im

acr oss the fac e “like a mug g ing.” He de nied that mug g ing is a sign of disrespec t in the Africa nAmeric an community . He sa id that he was able to ope n the draw er with one hand. He said that the victim called him a “mother f-- ker” among other things and that she had the knife in her rig ht hand and “mug g ed” him with he r left. He said that she stabbe d him after he pushed her awa y twice. He

sa id that he did no t thi nk the vic tim wo uld sta b him

. He a lso sa id that he tol d the po lic e that he did

no t kn ow wh e re he sh ot the vic tim . H e a lso c ou ld n ot e xpla in h ow the dr a we r g ot c los e d. He did not call f or help whe n the victim rea ched f or the knife . Finally , he said that a t the time of the incident he a nd the victim were still car ry ing on a

phy sical re lationship.

The State then r eca lled L ieutenant Ba ker for rebuttal testimony . On direc t examination, he
te sti fi e d th a t th e tr a ns c ri pt t o th e de fe nd a nt’ s se c on d s ta te me nt w a s s ub sta nti a lly c or re c t. H e sa id that he didno t no tic e a ny blo od on the b e d w he n h e ins pe c te d th e c ri me sc e ne . O n c ro ssexamination, he said that he di d n o t rec all a pre vious instance whe re the tape of an intervie w was lost in a murder c ase.
Finally , the State ca lled Serg eant De nnis W rig ht of the Humboldt Poli ce D epa rt m en t

. He said that he wa s prese nt during Andre a Vinson’s int ervie w. He said that Ms. Vinson stated i n the interview tha t the defe ndant kept his g un in a bag under the bed.

After deliberation, the jury

returne d a ver dict of g uiltyfor the char g e of murder in the second deg ree . The c ourt then set a se ntencing hearing f or De cembe r 2 0
, 2 0 0 4, at which time the c ourt sentenc ed the defe ndant to se rve twenty -y ear s in the Depa rtment of Corre ction as a violent off ender

.

An a ly sis

On appe al, the def

endant arg ues that: 1) the evidenc e was not suf ficient to support the verdic t of g uiltyof the off

ense of second deg ree murder and that the State failed to ne g ate his the ory of selfdefe nse; 2) the c ourt err ed in fa iling to g rant a ny relief for the loss of evidenc e by the State; and 3) he wa s se nte nc e d impr op e rl y . We wi ll a na ly ze e a c h is su e ind ivi du a lly a s f oll ow s.-8- I . Sufficienc y

The de fenda nt arg ues that the State fa i l ed t o n eg ate his theory of self- defe nse bey ond a

rea sonable doubt. To support his theory , he re lies upon the case of State v. Renner , 912 S.W .2d 701 (Tenn.1995) , which dis cusses the “ true man” doctrine w here one nee d not retre at from the thr eate ned attack of another even thoug h one may safe ly do so. I d. at 703-04. The “ true man” doctrine ha s been

c od if ie d a t T e nn e sse e Cod e An no ta te d s e c tio n 3 9- 11 -6 11 (2 00 5) . H e re , th e de fe nd a nt m ist ake nly
arg ues that the “ true man” doctr i ne is applica ble bec ause he claims that he did not provoke the confr ontation w ith the victim a nd further claims that he was in da ng er of bodily injury beca use he had bee n stabbed with a knife . Renner sta tes that the “true man” doctrine is only applicable when the def endant is: 1) without fault in provoking the conf rontation, 2) in a plac e whe re he has a la wful rig ht to be, and 3) is the re place d in a rea sonably appar ent dang er of imminent bodil y

harm or de ath. I d. There is no dispute that the defe ndant was in a place where he had a lawful right to be. He was in his bedroom in his own home. Howeve r, we conclude that this is the only part of the test that he satisfies and that he is not entitl ed to application of the “tru e man” doctrine to justify his criminal responsibility

.

There was a n abundanc e of te stimonyto support that the defe ndant and vi ct i m h ad been
eng ag ed in hea ted ar g uments throug hout the day of t he incident. The defenda nt was unha ppy that the vic tim ha d p la ns that e ve nin g , a ndhe we nt a s f ar a s to re ne g e on his a g re e me nt t o w a tc h th e ir child in order to disrupt the victim’s socia l activity . Whil e he attempted to return t h e ch i l d to the vic tim , h e sto le he r c e llu lar p ho ne , to ok a loo k a t th e nu mbe rs sto re d in the ph on e , a ndma de c a lls to some of those numbers. Rea liz ing that the defe ndant had take n her phone , the victim confronte d him. The arg ument continued, and the parties separ ated. The n, upon rea liz ing that the defe ndant had place d calls on her phone, the victim a g ain approa ched the defe ndant, and t h e a rgum ent

esca lated. B eca

use of his ac tions, we conc lude that the def endant wa s responsible for provoking the

c on fr on ta tio n. On ly

a pe rs on wi tho ut f

a ult ma y a va il h ims e lf

to the “ true ma n” do c tr ine . B e c a us e he wa s a t f

a ult , th e de fe nd a nt c a nn ot n ow c la im j us tif ic a tio n f or his a c tio ns

.

The fina l prong of t he test is that the def endant is plac ed in a r easona bly appar ent dang er of imminent bodil y

harm or death. We c onclude that the proof at trial demonstra ted that the def endant was not in a position to fea r injury or death at the time he shot a nd killed the victim. He claims that he wa s sitt i n g o n his bed when the victim gr abbed a knife a nd stabbed his arm. Howeve r, the testimonyreve aled that there was no blood found on the bed to e vidence a stabbing occur red the re. Further, no fing erprints of the victim we re found on the knife. Whil e this is not conclusive e vidence that the victim did not stab him, when viewe d with the other e vidence it is reasonable for the jury to d e te rm ine that th e vic tim wa s n ot r e sp on sib le fo r the inj ury to the arm

of thede fe nd a nt.

This court does not rew eig h or reevaluate t he evidence in determining suff iciency . State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdic t, once a

pproved by

the trial judg e,

acc redits the State’s witnesse s and re solves all conflicts in fa vor of the State. State v. Big bee, 885 S.W .2d 797, 803 (Tenn. 1994) . Acc ording ly , the State is entitled to the strong est leg itimate view of the e vidence and all leg itimate and reasonable infere nces which may be dra wn there from. I d. It-9-

is our duty

to affirm the convictio n i f t h e evide nce, vie wed unde r the a ppropriate standards, w as sufficie nt for any rational trier of fac t to have found the essential elements of the offe nse bey ond a

re a s o n ab l e d o u b t

. S e e T e n n

. R

. A p p

. P

. 1 3 ( e ) ; Ja c k s o n v

. V i r g i n i a , 4 4 3 U

. S

. 3 0 7
, 3 1 9
, 9 9 S. Ct

. 2781, 2789 (1979); State v. Elkins, 102 S.W .3d 578, 581 (Tenn. 2003)

. Although the evidenc e of the defe ndant’s g uilt is circ umstantial in nature, cir cumstan tial evidenc e alone may

be suff icient to support a convic tion. St ate v. Gr eg ory , 862 S. W.2d 574, 577 (Tenn. Crim. App. 1993 ); State v. Tharpe , 726 S.W .2d 896, 899-900 (Te nn. 1987). The circ umstantial evidence , howeve r, m ust exclude every other re asonable theory

or hy pothesis other than g uilt. Tharpe, 726 S.W.2d at 900. I n addition, “ it must establish such a ce rtainty of g uilt of the ac cused a s to convince the mind bey ond a re asonable doubt that [the defe ndant] is t he one w ho committed the crime.” I d. (citations omitted).

“Whether the ‘true man’ rule applies i n a par ticular c ase is a matter to be de termined by the jury . The jury deter mines not only whether a conf rontation has occ urre d, but also which per son was the ag g ressor. It also decide s whether the def endant’ s bel i ef in imminent dang er w as re asonable
, whether the forc e used was rea sonable, and whether the defe ndant was w ithout fault.” Renner , 912 S. W. 2 d a t 7 0 4

. We c o n c lu d e th a t b e c a u s e th e ju r y f o u n d th e d e f

e n d a n t g u il ty o f s econd de g ree murder, it re

jected his theory

of self- defe nse. Be cause it is our dut y to aff irm the conviction if the evidenc e, viewe d under the appropriate standa rds, was suf

ficient for any rational trier

of fa ct to have found the e ssential elements of the offe nse bey ond a reasonable doubt, we must aff irm the judg ment of the tr ia l c ou rt

in the ins ta nt c a se . T he jury re je c te d the de fe nd a nt’ s th e ory of se lf -d e fe ns e be c a us e they acc redited the State’s witnesses’ testimony that discredited the def endant’ s theory . There was no blood on the bed. The victim was killed by a conta ct g unshot wound to the back of the hea d as sh e wa s a tte mpt ing to e xit th e ro om a nd , p re su ma bly , th e ho me . F urthe r, the de fe nd a nt’ s c re dib ili ty

was a ttacked be cause it was pointed out that he lied to the police about the ma nner in whic h he shot the victim. He told them that he shot her in the fac e t h o u gh t h e autopsyreve aled that the f acia l

wo un d w a s a n e xit wo un d. I t is po ssi ble that th e jury , q uit e simply , d id n ot be lie ve that th e vic tim stabbed the de fenda nt nor did she pos e any threa t to the defe ndant to justify a theory of self- defe nse.

We conclude tha t the State di d neg ate the de fenda nt’s theory of self- defe nse and tha t the evidenc e wa s sufficient to esta blish the certa inty

of g uilt of the acc used.

I I . L ost Evidence

The de fenda nt arg ues t hat t he trial court erre d in allowing the State to introduce his sec ond
state me nt t o p oli c e be c a us e the a ud io t ape of the state me nt h a d b e e n lo st. He su g g e sts that th e los s of the tape preve nted him from re ceiving a fa ir trial. Upon revie w of the trial tra nscript, it appea rs that the def

endant failed t o object to the i ntroduction of t his statement at trial and has thus waived his right to pre sent this issue on appeal. The failure to make an obje ction at trial results in a waiver
on appea l. T enn. R. A pp. P. 36( a); State v. Thornton, 10 S.W .3d 229, 234 (Tenn. Crim. App. 1999) ; State v. Gre en, 947 S.W.2d 186, 188 (Tenn. Crim. App. 1997); State v. L ittle, 854 S.W.2d 643, 651-10-

(T e nn . Crim. Ap p. 19 92 ). B e c a us e the de fe nd a nt fa ile d to ob je c t wh e n the Sta te mov e d to ha ve his second state ment admitted into evidence , he has w aived a ppeal of this iss ue.

I I I . Sentencing

“When re viewing sentenc ing issues . . . the appellate court shall conduct a de novo re view on the re cord of

such issues. Such re view shall be c onducted with a pr esumption that the determinations made by

the court from which the a ppeal i s t ak en are c orre ct.” T.C.A. § 40- 35- 40 1( d) . “ Ho we ve r, the pr e su mpt ion of c or re c tne ss w hich a c c omp a nie s th e tr ia l c ou rt ’s a c tio n is conditioned upon the af

firmative showing in the re cord that the trial court c onsidered the sentenc ing principles and a ll r eleva nt f acts and circ umstances.” State v. Ashby
, 823 S.W .2d 166, 169 (Tenn. 1991).

I n conducting our re view, we must consider the defenda nt’s potential for r ehabilitation, the trial and sente ncing hearing e vidence , the pre sentenc e re port, the s entenc ing principles, sentenc ing

a lte rn a tiv e arg ume nts , the na tur e a nd c ha ra c te r of the of

fe ns e , the e nh a nc ing a ndmit ig a tin g fa c tor s,

a n d th e d e f

e n d a n t’ s s tate me n ts

. T

. C. A

. § § 4 0

- 3 5

- 1 0 3 ( 5 )
, - 2 1 0 ( b ) ; A s h b y , 8 2 3 S. W. 2 d a t 1 6 9

. We

are to a lso re c og nize that th e de fe ndant be ars “ the bu rd e n o f d e mon str a tin g that th e se nte nc e is improper.” Ashby , 823 S.W .2d at 169.

He re , the de fe nd a nt arg ue s that the mit ig a tin g fa c tor s th a t he su bmi tte d to the c ou rt sh ou ld have been applied by the court. He corr ectly arg ues that the court did not rule which mi tigating fac tors did or did not apply in this case beca use t he trial court sim ply stated t hat “[ t] he C ourt sees

no rea son that -- ne ither mitigating fa ctor nor a g g ravating f actor that would justify

moving a way from the presumptive sentenc e” and sentenc ed the defe ndant to twe nty y ear s in the penitentiary . The State arg ues that the submitted mitigating fac tors wer e not applica ble.

Th e de fe nd a nt s ub mit te d th e fo llo wi ng mit ig a tin g fa c tor s f or the tr ia l c ou rt ’s re vie w p ri or to

se nte nc ing , c od if

ie d a t T e nn e sse e Cod e An no ta te d s e c tio n 4 0- 35 -1 13 (2 00 5) : 2) The de fenda nt acted unde r strong provocation; 3) Su b s ta

n ti a l gr ounds exi st tending to e x cuse or justify the def endant’ s criminal conduct, thoug h failing to establish a def ense; 11) The de fenda nt, although g uiltyof the c rime, co m m i tted the offe nse under

su c h u nu su a l c ir c ums ta nc e s th a t it is un lik e ly that a su sta ine d in te nt t o v iol a te the law motivated the c riminal conduct; and 13) Any other fa ctor c onsistent with the purposes of this chapte r. The we ight a ssigne d to enhanc ement and mitig ating fac tors is ge nera lly l ef t t o the trial court’s discretion. State v. L eg g s, 955 S.W .2d 845, 848 (T en n. Crim. App. 1997). The c ourt did not specific ally

addre ss any of t he factors ra ised by the def endant, but it did make a bla nket statement that no mitigating or enhanc ement fac tors would justify moving f rom the pre sumptive sentence . The
tr ia l c ou rt c on sid e re d th e mit ig a tin g fa c tor s a ndc ho se to g ive the m li ttl e we ig ht, if a ny . T his is

su ff ic ie nt t o s a tis fy th e statuto ry re qu ir e me nt. We c on c lud e that th e tr ia l c ou rt didno t e rr

in-11-

determining that the mitigating fac tors submitt ed bythe def endant a re not a pplicable to modify

the defe ndant’s sente nce.

Conclusion

Ba sed on the for eg oing a nd the re cord a s a whole, w e af firm the judg ment of the trial

c ou rt

.

___________________________________ J OHN EV ERETT WI LL I AMS, J UDGE