### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Marc h 9, 200 4 S es sio n

STATE OF TENNESS EE v . MARTY LAVERN PYBURN

Direc t Appeal from the Circ uit Court for Marion County No. 5601 Thomas W. G raham , Judge

No. M2003- 01090-CCA -R3-C D - F iled Augu st 16, 2004

The a ppellant, Marty

L avern Pyburn, wa s convicted by a jury in the Marion CountyCircuit Court of first deg ree murder a nd sentenc ed to life imprisonment. On appe al, the appe llant challeng es (1) the suffic iency

of the e vidence ; (2) the admission of hi s prior convic tion of ag g ravated robbe ry for impeachme nt purposes; (3) the admission of photo g r a p h s o f th e crime scene ; (4) the e x pert testimony of Dr. Cha

rles Ha rlan; and ( 5) the trial c ourt’s cha rg e to the jury . Upon re view of the rec ord and the pa rt ie s’ br ie fs , w e a ff

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

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Ci r c uit

Co ur t i s A ffirm e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which D AVI D H. W EL L ES and J ERRY L. S MI TH , J J ., joined.

Phili p A. Condra, Jasper, Te nnessee , for the a ppellant, Marty

L avern Pyburn.

Pa ul G . Summe rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Mic ha e l Ma rk ha m, A ssi sta nt A tto rn e y

Ge ne ra l; J . Michae l Tay lor, District Attorney Gene ral; and S herry

Goug er, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I. F ac tu al B ac kgr ound

At trial, Alice Rhea l, the victim’s gr andmother, te stified that when the victim was y oung , he lived in foster care

. Howeve r, upon turning eig hteen y ear s old, the victim moved to Alabama to live with his mot her. Around Thanksg iving of 2000, the victim returne d to Tennesse e to live with the appellant, his natura l father . Mrs. Rheal related that shortly afte r 7:00 p.m. on J anuary 7, 2001, the vic tim te le ph on e d a nda sk e d h e r “ to c ome a ndg e t hi m.” Ac c or din g to M rs . Rh e a l, the vic tim sounded upset and ang ry . Mrs. Rheal ag ree d to pick the victim up at hi s fathe r’s residence , but never ag ain saw him alive.-2-

Virg inia Moore testified that the appellant a nd the vi ctim lived with Moore’s sister, K athy Ba g g ett, and Ba g g ett’s daug hter, in a mobile home at the Jesse J ames Tr ailer Par k. On J anuary

7, 2001, Moore was at hom e with her husband when the appellant a nd the victim came to visit. The

app e lla nt, the vic tim , a ndMo or e ’s hu sb a ndwe nt i nto anothe r r oo m to drink be e r andplay

po ol. Subsequently , the victim informed the a ppellant that he was rea dy to le ave. The a ppellant told the victim to go outside and “wa rm up the car.” When the vi ctim went outside, the appe llant sat down to watch tele vision with Moore. Shortly there afte r, the victim ca me inside and a sked, “D ad, ar e y ou

re a dy to g o?” Th e app e lla nt re pli e d that he wa s n ot y e t r e a dy a ndtol d th e vic tim

that he sh ou ld w a it in the car. The victim returne d to the car. When the vi ctim came back into Moore ’s re sidence , the

app e lla nt c ur se d, a ndhe a ndthe vic tim le ft

. Approxim ately fiftee n minutes la ter, Moore telephoned the appe llant at home. The a ppellant tol d M oo re that he a ndthe vic tim “ w[e re ] int o it .” Th e app e lla nt inf orme d M oo re that he ha d to ld the vic tim to l e a ve , b ut the vic tim re fu se d. Th e app e lla nt tol d Moo re he wa s “f ixing to kill the lit tle MF.” Acc o rd i ng to Moore, the a ppellant then laid the tele phone down, a nd she hung up her telephone.

Sho rt ly the re a ft e r, the app e lla nt t e le ph on e d M oo re a ndtol d h e r that he ha d kil le d th e vic tim

. The a ppellant claimed to ha ve shot the vi ctim betwee n the ey es. Moore testified that the appe llant beg an to cry , and she told him to c all 911. The a ppellant re fused, sa y ing, “ No, he’ s dead.” Moore

a g a i n t o l d t h e ap p e l l a n t t o c a l l 9 1 1
, b u t t h e ap p e l l a n t r e f u s e d
, s a yi n g , “ N o , I’ l l g o t o j a i l

. ” F i n a l l y, Moore told the appe llant that she would ca ll 911.

After hang ing up he r telephone , Moore immediately call ed 9 1 1. Five minutes late r, the appellant tele phoned Moore to ask if she ha d called 911. Moor e re plied that she had spoke n to a 911 operator who wa s g oing to tele phone the a ppellant. Moore tes t i fi ed that while she was on the telephone w ith the appellant, the a ppellant’s telephone “be ep[ed],” indicating another c all. Moore told the appellant, “[P] lease answe r the be ep, it’s 911.” The a ppellant re luctantly

ag ree d to speak to the 911 operator.

On cr oss-examination, Moore conc eded that when intervie wed by Allan Weeks, an investigator with the district attorney g ener al’s office, she did not mention that the appellant had order ed the victim to leave or that t he appellant had said, “I ’m fix ing to kill the l ittle MF.” How ever , Moore c laimed t hat di rec tly afte r the incide nt, she was “ in shock.” Moore stated that she infor med Weeks that the appe llant had i ntended only to frig hten the victim and that she ha d overhe ard the victim making c omments in the backg round.

Caroly n Keahey , a 911 oper ator in Ma rion County
, testified that on the af ternoon of January 7, 2001, she re ceive d a ca ll from a telephone number li sted as belonging to Virg inia Moore. Moore reported that the appellant had shot his son. Moore provided Keahey with the appellant’ s telephone number a nd addre ss. Keahe y contac ted the Marion County Sheriff’ s Depa

rtment and the pa

rame dics

a ndg a ve the m th e app e lla nt’ s a dd re ss. She the n att e mpt e d to tele ph on e the app e lla nt s e ve ra l ti me s, but rec eived a

busy signa l. After te lephoning Moore to ensur e that she ha d t h e right telephone-3-

number, Ke ahey

ag ain telephone d the appe llant. F inally
, the appellant answe red. Keahey asked the appellant if the re ha d been a shooting. The appellant s ai d
, “[Y]es. . . . Com e g et my son.” The appellant informed Kea

hey that he had shot t h e v i ct im in the head with a 30/30 rifle . Keahey testified t hat t he appellant ref used t o chec k to determine if the vi ctim was sti ll breathing . Keahey remained on the telephone with the appellant until an off icer with the sheriff ’s depa

rtment and a n ambulance arrived.

Serg eant B illyR. Pow ell of the Marion CountySheriff’ s Depa rtment testified that at

app ro xima te ly

7:1 2 p .m. on Janu ary

7, 20 01 , he re sp on de d to a ca ll r e g ard ing a sh oo tin g a t a

mob ile home at the Jesse J ames Tr ailer Park. He was the first office r t o arrive at the sce ne. An a mbulance

arrived shortly

there afte r. Serg eant Powell testified that as he walked onto the porch, he obser ved that the door to the mobile home wa s open. Serg eant Powell looked inside a nd observe d the

app e lla nt “ s[i]tt ing in a

c ha ir in the liv ing ro om ar e a ho ldi ng on to a po rt able te le ph on e .” B e c a us e he wa s acqua inted with the appellant, Ser g eant Powell wa lked inside the res i d en ce and asked the appellant what happene d. The appellant responde d, “I shot him. We [ had] been fig hting.” When Se rg e a nt P o w e l l a s k e dt h e ap p e l l a n tw h o mh e h a d s h o t , t h e ap p e l l a n tp o i n t e d t o w ar d a b e d ro om. I n the bedroom, Serg eant Powell observe d the vi ctim’s body on the floor with what appear ed to be a g unshot wound to the head. H e also observed a sma ll knife in the victim’s hand. When Serg eant Powell returne d to the living room, the a ppellant aske d, “I s he dea d? ” Serg eant Powell re plied, “Ye ah, he’ s dead.” Se rgeant Powell testified that without dist urbing the sce ne, the pa rame dics confirme d that the victim was dec ease d.

Serg eant Powell told the appellant to rema in seate d and went outside to radio for assistance

. He then r eturne d to the mobile home and aske d the appe llant ab o u t t h e we apon used to shoot the victim. The appe llant led Serg eant Powell to a small g ree n g un cabine t which containe d “a le ver action 30-30 rifle.” The appellant ha nded the rifle to Serg eant Powell. I n the living r oom, Serg eant Pow e ll o bs e rv e d a

dis c ha rg e d s he ll c a sin g on the floo r. S ergea nt P ow e ll t oldthe app e lla nt t o s it while he took the rifle to his patrol car. Shortly there afte r, Allan Weeks, a n investigator with the district attorney

g ener al’s off

ice, a rrived and Serg eant Powell “tu rned the [crime] scene over to him.” On cr oss-examination, S erg eant Powell ac knowledg ed that whe n he arrived at the crime scene , he observe d items, such as photog raphs, c iga rette butts, and potting soil, “strewn on the f loor.”

Offic er K evin Hubbar d of the Marion CountySheriff’ s Depa rtment testified that on January 7, 2001, he re sponded to a c all at the re sidence of Ka thy Ba g g ett at the Jesse J ames Tr ailer Par k. Shortlyafte r Of

fi ce r Hubbard ar

rived a t the scene , he wa s asked to tra nsport the appe llant to the Gr a nd vie w M e dic a l Ce nte r t o o bta in a sa mpl e of the app e lla nt’ s bloo d for blo oda lc oh ol ana ly sis

. The blood sample wa s drawn in the pr esenc e of O ffice r Hu b b ar d

. After the blood sample wa s obtained, Of

fice r Hubba

rd transported the appellant to the M arion County Sheriff’ s Depa

rtment and g ave the blood sample to I nvestig ator Ha rg is, who sent the sample to the Ten n es see B ureau of I nvestig ation (“TB I ”) c rime labora tory in N ashville for analy sis. At trial, the parties stipulated that the re sults of the blood analy sis revea led that at the ti m e o f t h e offense, the appellant ha d a blood

a lc oh ol c on te nt o f . 13 pe rc e nt. Th e re su lts a lso re ve a le d th e pr e se nc e of the su bs ta nc e B uta lbi ta l in the appe llant’s blood.-4-

Allan Weeks, the investig ator with t h e d i s t ri ct attorne y g ener al’s off

ice, a ssisted in the inv e sti g a tio n o f the sh oo tin g de a th of the vic tim

. Wee ks te sti fi e d that wh e n he arrive d a t the c ri me

sc e ne a t app ro xima te ly

7:3 0 p .m. , h e ob se rv e d th e app e lla nt sit ti ng in a c ha ir in the liv ing ro om. Weeks asked a nother off icer to place the appellant i n a p at ro l car . Upon being advised of the

c ir c ums ta nc e s su rr ou nd ing the of fe ns e , Wee ks a dv ise d the of fi c e rs that the c ri me sc e ne ne e de d to be sec ured. The rea fter, Wee ks photogr aphed and made a diag ram of the i nterior of

the mobile home.

Weeks testified t hat a live round of a mmuniti on was discove red on the floor in the bedr oom in w hic h th e g un c abin e t wa s loc a te d. An e mpt y hu ll wa s disc ov e re d on the fl oo r i n th e liv ing ro om. I n the bedr oom in which the victim’s body was discove red, a p ortion of the window blinds was mis sin g wh e re a

bu lle t ha d s truc k th e bli nd s. A bu lle t f ra g me nt w a s d isc ov e re d o n th e fl oo r b e ne a th the window. Additional f

rag ments were discovere d embedde d in the wall behind the be d. The bullet fra g ments were taken into evidenc e.

Weeks furthe r testified that the victim’s body was ly ing on the floor be tween the foot of the bed and the bathroom. “[A] small straig ht bla de

. . . type knife” was discovere d in the victim’s left hand, and a

sheath was discovere d on the bed. “[R] ed stains [that W eeks] presume[d] to be blood”

wer e discove red on a

bathroom door near the victim’s body

. Weeks also observe d a “r ed substance ” on the window blinds. Weeks testif i ed t h at h e did not discover any “re d type spatter s” in the hallway . Weeks furthe r testified that he observe d “a substanc e” on the bed. On c ross-examination, Weeks conc eded that no samples of these substanc es we re c ollected or submitt ed for

analy sis.

TBI Special Ag ent Dan Roy ce, a fore nsic scientist specialized in firea rm identification, testified that i n the i nstant case he re ceive d sever al items for fir earm identification and c omparison. Ag ent Roy ce r ece ived a rifle which he identified as a Winchester Model 94 30/30 lever action rifle

. He e x plained that the rifle wa s operated by pulling a le ver “ down and f orwa rd,” w hich ac tion loaded

a liv e ro un d in to the c ha mbe r a nd“ c oc ke d” the we apo n. Ag e nt R oy c e fu rthe r e xpla ine d th a t th e ri fl e had sever al safe ty mechanisms. Acc ording to A g ent Roy ce, in or der to f ire the w eapon, the hammer had to be “ cocke d” manua lly , and the leve r had to be pulled into posit ion “ag ainst the stock.”

Ag ent Roy ce te stifi ed that an expended Winchester 30/30 shell casing was submitted for identification. He compar ed the c asing to test bullets fired fr om the rifle. Upon c omparison, Ag ent Roy ce de termined that the c asing “had been fired in this rifle.” Ag ent Roy ce a lso rece ived two bullet fra g ments removed f

rom a be droom wall, one bullet f rag ment found at the ba se of the w all behind the bed, a nd sever al bullet fra g ments rec overe d from the victim’s brain. However , only the fra g ment of “the copper bullet jacke t” removed from the bedroom wall proved valua ble for c omparison. Upon comparison, Ag ent Roy ce de termined t h at “the copper bullet jacket . . . ha d, indeed, be en fire d throug h the bar

rel of this rifle .” Ag ent Roy ce explained that the bullet w as a “ 170 g rain powe r point [which] is a soft point cartridge . . . [wit h] ex posed lea d at the nose f or the p u rp o s e of expanding when it strikes a ta

rg et.”

TBI Special Ag ent Oakle y

McKinney , a for ensic scie ntis t s p e c ia li ze d in la te n t prints, testified that he wa s asked to proc ess the knife discovere d in the victim’s hand for fi n ger p rints. Ag ent-5-

McKinney

rela ted that he did not find any latent prints on the knife. How ever , he testified that it was not uncommon to be unable to find a latent print that may

have be en pre sent when the evidenc e wa s collecte d. He explained that latent prints w ere fra g ile. The print mig ht have be en “w iped off,” or, beca use a la tent print is ninety -eig ht to ninety -nine pe rce nt moist ure, it mig ht have e vaporated.

I nvestig ator Ge ne Ha

rg is of the Marion County

Sh e rif f ’ s D e p a r tm e n t te stified that on J anuary 7, 2001, he wa s called to investig ate the shooting death of the victim. When he arrived at the sc ene, h e a n d Al l an W ee k s i n s p ec t ed t h e m o b i l e h o m e t ak i n g ce rt ai n i t em s i n t o ev i d en ce , i n cl u d i n g a Winchester 30/30 rifle, a

spent shell casing located on the floor in the living room, a nd an unspent shell casing located in the be droom opposite wher e the victim’s body was discove red. In the be dr oo m in wh ic h the vic tim ’s bo dy wa s d isc ov e re d, I nv e sti g a tor Ha rg is c oll e c te d b ull e t f

ra g me nts fr om the wa ll a nd the f

loo r b e hin d th e be d. I nv e sti g a tor Ha rg is s ub se qu e ntl y

su bmi tte d th is evidenc e, as w ell as bullet fra g ments rec overe d from the victim’s brain, to the T BI crime la boratory for identific ation. I nvestig ator Ha rg is also removed the knife fr om the v i cti m’s left hand a nd submitt ed it to the TBI

crime la boratory for late nt print ex aminati o n. A ny lon knife sheath was dis c ov e re d o n th e be d in the be dr oo m w he re the vic tim ’s bo dy wa s lo c a te d. I nv e sti g a tor Ha rg is testified that he obse rved the victim’s body ly ing be tw ee n t h e bed and the bathr oom and “r ed spatters” on the bathroom floor

.

Af te r p ro c e ssi ng the c ri me sc e ne , Inv e sti g a tor Ha rg is r e turne d to the sh e ri ff ’s de pa rt me nt t o interview the appellant. Af ter sig ning a

waiver of his rig hts, th e ap pellant submitted a written
state me nt, wh ic h I nv e sti g a tor Ha rg is r e a d in to the re c or d a s f oll ow s:

Me and [t he victim] had been drinking pretty much all eve ning. [The victim] beg an telling me that I wasn’t much of a fathe r and be g an running his mouth t o me. We had a fig ht in the l iving room wher e he hit me in the j aw. I told him to pack his clothes and leave

. He we nt to his room for a while. [The victim] then gr abbed a 30-30 riflethat was behind the living r oom door and we nt into his room and hollere d, “I ’m g oing to k i l l y o u

. ” At that time I went into his room and took the rifle f rom him. I then went into the living room [and] put the g un behind the stere o speake r. I g ot up, went to the door

. . . to let the dog in. As I wa s sh utt ing the do or

I sa w [th e vi cti m] c omi ng ou t of his room with a knife he ld a

bove his he ad coming towards me, saying he was g oing to kill me. I

rea ched and g rab[bed] the g un and it we nt off. We w e re fa c e to f

a c e a ndhe wa s c omi ng to ward s me. [T he vic tim was] about five or

six fee t from me whe n the g un went off . I went and ca lled Virg inia Moore and told her what happe ned. I then put the g un in .

. . my

ro om.

Acc ording to Investig at o r H ar gi s , t h e a p p el l an tcl ai m ed t h at wh en t h e r i fl e d i s ch ar ged
, h e w as holding it “[a]s if . . . holding a long barr el wea pon.” When demonstrating the manner in which the victim was holding the knife, the a ppellant told I nvestig ator Harg is that the victim was “holding up-6-

[hi s] l eft hand with [ his] fing ers a round the ha ndle of the knife . . . and the blade pointing for war d.” I nvestig ator Ha

rg is testified that althoug h the appe llant claimed to have been struc k in the jaw, he ob se rv e d n o in

jurie s.

Dr. Char les Har lan, the for ensic pa thologist who per formed t he victim’s autopsy , testified that the victim died as a r esult of a g uns h o t wo u n d t o t h e head. Dr. H arla n reported that “[t] he prese nce of

stippli ng i n t h i s p ar t i cular wound indicate[d] that the dist ance from the muzzl e to the skin surfac e [was] somewhere fro m zero to 12 inches.” H e testified that the bullet e ntere d the victim’s head “ in the front part of the rig ht ear ” and exi ted t he back of the head. Acc ording to Dr. Har lan, as soon as the victim wa s shot, he would have be en re ndere d unconscious and w ould have lost volunt ary

control. Dr. H arla n rec overe d fra g ments of a bullet fr om the victim’s brain.

Blood a naly sis revea led t hat t he victim had a blood a lcohol level of .16 pe rce nt, and a dr ug

scre en of the victim’s urine tested positive for tetrahy droca nnabinol (“TH C”), the a ctive ing redie nt in m ar i j u an a. Howeve r, Dr. H arla n explained that urine could test positive for TH C up to eight

wee ks after marijuana had been i ntroduce d into the body . When asked to view photog raphs of the crime sc ene, D r. Ha

rlan identified what appea red to be brain matter

on the bed a nd blood spatter on the bathroom door and window blinds in the bedroom wher e the victim’s body was located. Howeve r, Dr. H arla n testified that he was unable to de termine from the photogr aph the spec ies of the br a in mat ter , and ne ith e r the br a in m a tte r n or the blo odwa s su bmi tte d f or te sti ng . O n c ro sse xami natio n, Dr . H arl a n a c kn ow le dg e d th a t bl a c k p o w d e r w a s n ot p re se nt a

ro un d th e wo un d b e c a us e “the powde r that wa s prese nt in the material c ausing the stippling ha[d] been totally consumed.”

Prior to closing its case -in-chie f, t he State re called A lice Rhea l, the victim’s gr andmother,
to determine if the vi ctim was right-ha nded or left-ha nded. Mrs. Rheal t estified that the victim was rig ht-hande d. On cross-e x amination, Mrs. Rheal acknow ledg ed that she had “quite a bit” of conta ct with the victim from the time he wa s nine to seventee n y ear s old.

Kathy Ba g g ett, the appe llant’s g irlfriend of six teen y ear s, testified on behalf of the a ppellant at trial. She re lated that in J anuary 2001, she and the appellant wer e li ving in a mobile home in the J esse James Trailer Park wit h her daug hter a nd the victim. The victim had moved in shortly befor e Th a nk sg ivi ng the pr e vio us y e ar. B a g g e tt t e sti fi e d th a t on the da y of the sh oo tin g , s he le ft

the mob ile home at 5:00 a.m. to visit her son. Ac cording to Ba g g ett, “[e]very thing wa s normal when [she] left.” Howeve r , w h e n s h e r e tu r n e d
, th e li v in g r o o m w a s in to ta l d is arr a y

. B a g g e tt te s ti f ie d th a t s he had p u rc h as ed t h e 3 0 / 3 0 ri fl e f ro mh erb ro t h er -i n -l aw ap p ro x i m at el y t wo m o n t h s p ri o r t o t h e s h o o t i n g. She k e p tt h e r i f

l e l o a d e d a n d l o c k e d i n a g u n c ab i n e t

. B a g g e t tt e s t i f i e d t h a ts h e h a d p r e vio us ly al l o we d t h e v i ct i mt o b o rr o w t h e r i fl e f o r h u n t i n g.

Ba g g ett testified that betwe en Tha nksg iving a nd Christmas o f 2 0 0 0, “[t] here was a lot of friction” in the h o m e. S h e explained that the victim often a sked the a ppellant for mone y , and the appellant would tell the victim to “g et a job.” B ag g ett explained that the topic of employ ment was “a sour ce of

some disag ree ment betwee n the two of them.” Ba g g ett stated that they also arg ued over the victim’s drinking . Acc ording to Ba g g ett, the appe llant told the victim to move out “more than-7-

once,” but the victim refuse d. Howeve r, the victim had lived with a ne ighbor for a short period of time.

B a g g e tt t e sti fi e d th a t a ft e r C hr ist ma s, the re la tio ns hip be tw e e n the app e lla nt andthe vic tim

worsene d. Additionally , the appe llant was “la id off.” B ag g ett rela ted t hat the appe llant would often g o to her sist er’ s house because “the kids w[ere] starting to drive him cra zy .” Bag g ett testified that
t h e a p p el l an tn ev erd i s cu s s ed wi t h h ert h e d et ai l s o f t h e s h o o t i n g.

On c ro ss- e xami na tio n, B a g g e tt c on c e de d th a t th e app e lla nt a llo we d the vic tim to c on su me alcohol on the da y

of the shooting . She further conce ded that the vi ctim lived with a neig hbor af ter he and the appellant ha d a “he at ed ar gu m en t , ” during which the a ppellant struck the vic tim and

or de re d h im t o le a ve . B a g g e tt s tate d th a t sh e ke pt a ke y to the g un c abin e t on top of the g un c abin e t. The last time B ag g ett rec alled see ing the rifle wa s when the victim borrowed it for hunting . She was

uncertain how many shells were in the rifle be cause she did not know if the victim had re loaded the

wea pon. Ba g g ett acknow ledg ed that whe n she clea ned the bedr oom after the shooting, she observe d

a re d “ g y m ty

pe ba g ” a t th e fo ot o f the be d. Th e ba g app e are d to c on ta in the vic tim ’s c lothe s.

Eunice K ilgor e testified a t t ri al t hat she lived in the Jesse J ames Tr ailer Par ker ne ar the mobile home belong ing to B ag g ett and the appellant. She rela ted that the victim had stay ed at he r trailer on two or

three occa sions, once for ap p ro x i m atelythree wee ks. Kilgor e testified that on J anuary 7, 2001, she re ceive d a telephone call from Virg inia Moore. As a result of that telephone call, Kilg ore w atche d for the a ppellant and the vic tim to return home. They arrived whil e she w as talking to Moore . Kilgor e testified that a s the appe llant and the victim walked to their mobile home, she he ar d wh at “could have bee n arg uing.” Approxim ately fiftee n minutes later, she he ard a “bump.” Shortly

there afte r, the pol i ce an d an ambulanc e ar rived at the mobile home. Kilgor e claimed that she was not interview ed by the police. On c ross-examination, Kilgor e explained that Moore tele phoned her

twice that e vening . M oore te lephoned Kilg ore the first time shortly befor e the app e lla nt a ndthe vic tim arrive d h ome , th e n a g a in a pp ro xima te ly

tw e nty min ute s late r p ri or

to the ar rival of the police and the a mbulance.

Ira Rheal testified t hat he was married to Alice Rheal. Mr. Rhea l testified that on the nig ht of t he shoot ing, the victim called be fore Mrs. Rheal re turned home f rom work. The victim told M r. Rheal that “he had to g et away from t h ere or he’ s g oing to ha ve to kill [ the appe llant] or [the appellant] was g oing to ha ve to kill h i m

. ” T h e v i ctim asked Mr. Rhea l to pick him up at the appellant’ s mobile home, but Mr. Rheal did not go.

The a ppellant testified that in the fa ll of 2000, he lived in the mobile home at the J esse James Trailer Park with Ba g g ett and her daug hter. Prior to Thanksg iving of that y ear , the appe llant had lit tle c on ta c t w ith the vic tim

. Ho we ve r, sh ortly be fo re Th a nk sg ivi ng , h e a sk e d th e vic tim to l ive wi th them. The appellant rela ted that betwee n Thanksg iving a nd Christmas, he and the victim had se vera l “disag ree ments.” The a

ppellant claimed that althoug h the vi ctim was only eig hteen y ear s old when he came to live with them, the vi ctim consumed alcohol reg ularly
, often becoming “mouthy .” The ap p el l an tas k ed t h e v i ct i ms ev er al t i m es n o tt o d ri n k at h o m e, b u t t h e vi ct i mre fu s ed t o s t o p d ri n k i n g.-8-

The a ppellant also ar g ued with the victim about the victim’s choice of fri en d s an d h i s lack of

e mpl oy me nt; ho we ve r, the app e lla nt c la ime d th a t he ha d n o in fl ue nc e on the vic tim . A c c or din g to the app e lla nt, the vic tim

didno th in g bu t st a y

ou t a ll n ig ht. Th e app e lla nt t e sti fi e d th a t prior to Christ ma s, he to ld the vic tim to m ov e ou t of

the mob ile ho me . T he vic tim we nt t o li ve wi th neig hbor Eunice Kilgor e, but re turned a few day s later.

Th e app e lla nt t e sti fi e d that on Janu ary 7, 20 01
, the vic tim a sk e d to g o to E tna Mo un ta in t o shoot the rifle. The appellant told the victim that they would g o when the f ootball game ende d. The appellant took the rifle fr om the g un cabine t and place d it behind the door to the mobile home. The victim and the appe llant then went to Moore’ s house wher e they watche d another

football g ame a nd play e d p oo l. B oththe vic tim a ndthe app e lla nt we re drinking be e r. Whe n th e y fi nis he d p la y ing po ol, the appe llant watche d television with Moore. The victim informed the appellant that he was re ady to leave, and t he appe llant told the victim t o g o outside and wa rm the ca r. The a ppellant testified that the victim came ba ck into the re sidence once or twice a nd insisted on leaving

. T he appe llant fi na lly le ft

.

The a ppellant t estified that as they left Moore ’s re sidence , the victim told the appellant that he wa s ang ry

with the appellant f

or no t t ak i n g him to Etna Mountain. The appe llant claimed that the y c on tin ue d to arg ue du ri ng the dr ive ho me a nd wh e n the y arrive d home , the arg ume nt b e c a me more he ated. The appellant stated, “[The victim] tol d me I wasn’t ne ver a

fathe r to him and I

was

never around a nd he hate d me.” Ac cording to the appellant, the vic tim wrestled the appellant to the floor and struck hi m in the head sever al t imes. When the appellant br oke fr ee of the victim’s g rasp, he told the vi ctim “to go pac k his stuff and ca ll somebody to come g et him. I ’[d] had it with him.” Th e app e lla nt t e sti fi e d th a t th e vic tim g ra bb e d the ri fl e fr om b e hin d th e do or a ndtoo k it

int o h is bedroom. The appellant we nt to the victim’s bedroom, retrie ved the rifle, and place d it back behind the door. The appellant then ope ned the door to allow the dog to come inside the mobile home.

The ap p e ll a n t te s ti f

ie d th a t h e w a s ab o u t to r e tu r n th e r if le to th e g u n c ab in e t w hen he ob se rv e d th e vic tim

sta nd ing in h is b e dr oo m nea r the ha llw a y

wi th a kn if e in h is h a nd . T he vic tim threatened to kill the appellant. The a ppellant picked up the rifle a nd asked the victim to put down the knife. The appellant testified, “ [The victim] lunge d at me like he was going to run at me. That’s wh en t h e gu n we n t o ff

. ” Th e v i ct i mfe l l

. T h e a p p el l an tcl ai m ed t h at p ri o r t o t h e r i fl e d i s ch ar gi n g, he ha d n e ith e r c oc ke d th e ri fl e no r a ime d it a t th e vic tim

.

The a ppellant testified that he looke d into the victim’s bedroom, then we nt into the livi ng room and telephoned Moore. The a ppellant claimed that he did not call 911 bec ause he was “ tore up.” I nstead, he told Moore that he ha d shot the victim and asked he r to ca ll 911. When he finished talking to Moor e, he sat in a cha ir without hang ing up the telephone and beg an to cry . He then he ard the telephone “bee p.” It was the 911 ope rator. H e told the oper ator what had h ap p en ed an d the police ar rived shortly

there afte r. The a

ppellant testified that he returne d the rifle to the g un cabine t sometime after

the shooting. H e re lat ed that af ter the shooting he did not know if the victim was de a d, bu t he sus pe c te d it. Th e app e lla nt re la te d tha t Moor e ha d tel e ph on e d w hil e he a ndthe vic tim

wer e fig hting, but he de nied telling Moor e that he w as “f ix ing to kill the little MF.”-9-

On cross-e x amination, the appellant acknow ledg ed that while at Moore’ s home, he had “ a buzz ” and the victim was intox icated. The appellant conce ded that when he place d the rifle be hind the door, he did not check to se e if it was cocked. He further conce ded that he w as not frig htened when the vic tim threatene d to kill hi m. He believe d the victim was “ j u s t ru n ning his mouth.” Howeve r, the a

ppellant subsequently

testified that he be lieved the victim was going to kill hi m, but maintained that the shooting was a n acc ident. The a ppellant acknowledg ed that when he let the dog in, the vic tim

wa s o n th e c or dle ss t e le ph one in the liv ing ro om. He e xpla ine d th a t th e re wa s o nly one telephone in the residenc e. When asked if he checke d on the victim after the rifle disc harg ed, the appe llant replied, “ I

hollered, he didn’t say

nothing. I

took it he was hurt.” How ever , he cla imed that he d i d n o t k n o w the victim was de ad until Serg eant Powell told him. The appe llant denied telling Moore that he did not want to ca ll 911 because he did not want to go to jail. He a lso denied placing the knife in the vic tim’s hand.

Ba sed upon the for eg oing te stimony , the jury convicted the appellant of first deg ree murder. The trial c ourt imposed a life se ntenc e wi t h the possibilit y of par ole. On appe al, the appe llant challeng es (1) the suffic iency of the evidenc e; (2) the a dmission of his prior conviction of ag g ravated robbery for impea chment purposes; (3) the a dmission of certain photog raphs of the crime scene ; (4) the expert testimony

of Dr. Cha

rles Ha rlan; and ( 5) the trial c ourt’s cha rg e to the jury

.

II. Ana lys is

A. Sufficienc y

of the Evidenc e

The a ppellant ar g ues that the e vidence was insuffic ien t t o s u p p o rt a ver dict of first deg ree pr e me dit a te d mu rd e r. I n a se pa rate iss ue , th e app e lla nt c ha lle ng e s t he tr ial court ’s de nia l of his motions for judgme nt of acquittal. Upon deny ing the appellant’ s motion for judgme nt of ac quittal at the close of the State’s c ase- in-chief , the trial court found, “I believe there is suf ficient e vidence that a jury

could use in t h i s ca s e. I ’m not say ing it’s likely , but I ’m say ing the re is suff icient evidenc e at this time to withstand the motion . . . , so I deny y our motion . . . .” The a ppellant contends that the la ng uag e, “I ’m not saying it’s likely ,” im plied that the t rial cour t found the State’s evidenc e to be insufficient to support a conviction of first deg ree murder. H oweve r, the trial c ourt expli citly stated that the e vidence was suff icient for the j u ry t o consider the char g e of f irst deg ree murder.

I n any event, this court has previously observe d that “[t] he st andar d by which the tria l court de te rm ine s a

mot ion fo r j ud g me nt o f acqu ittal a t th e e ndof a ll the pr oo f i s, in e sse nc e , th e sa me standard w hich applies on appea l in determining the sufficie ncy of t he evidence after a convic tion.” State v. Thompson, 88 S.W .3d 611, 614-15 (Te nn. Crim. App. 2000). Moreove r, “[a] moti on for

a judgme nt of acquittal made at the conc lusion of the proof by the state is waive d when the de fenda nt elec ts to present evide nce on his own behalf.” State v. Ba ll, 973 S.W .2d 288, 292 (Tenn. Crim. App. 1998) (c iting Mathis v. State, 590 S.W.2d 449, 453 (Tenn. 1979)); see also Tenn. R. Crim. P . 29(a)

. Acc ording ly , we will add re s s t h e appe llant’s complaint reg arding the denial of his moti ons for judgme nt of ac quittal as a cha lleng e to the suff iciency of the e vidence

.-10-

When an appe llant challeng es the suff iciency of t h e convic ting e vidence , the standar d for

re vie w b y a n a pp e llate c ou rt is “w he the r, a ft e r vie wi ng the e vid e nc e in the lig ht m os t f a vo ra ble to the prosec ution, any rational trier of fa ct could have found the essential elements of the c rime bey ond

a re a so na ble do ub t.” Jac ks on v. Vi rg ini a , 443 U. S. 307 , 319 , 9 9 S. Ct. 27 81 , 2 78 9 ( 19 79 ); Te nn . R. Ap p. P. 1 3( e ). Th e Sta te is e nti tle d to the str on g e st l e g iti ma te vie w o f the evi den ce an d a ll

rea sonable or le g itimate infere nces w hich may be drawn t here from. State v. Cabba g e, 571 S.W.2d 832, 835 (Tenn. 1978)

. Questions conce rning the cr edibilityof witnesses a nd the weig ht and value to be g iven the evide nce, a s well as all fa ctual issues ra ised by the evidenc e, ar e re solved by the trier of fa ct. I d. This court will not rew eig h or reevaluate t he evidence. State v. Gra ce, 493 S.W .2d 474, 476 (Tenn. 1973) . Be cause a jury conviction re moves the pre sumption of innocence with which a defe ndant is initi ally

cloake d at trial and r eplac es it on appea l with one of g uilt, a convicted defe nda n t h a s th e b u r d e n o f d e mo n s tr a ti n g to th is c o u r t th a t th e e v id e n c e is in s u f f ic ie n t. State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982).

First deg ree murder is de fined in pertinent part as the “pre meditated and intentional killi ng of anothe r.” Te nn. Code Ann. § 39-13-202(a) (1) (2003). Premeditation is define d as “a n act done afte r the e x erc ise of re flec tion and judgme nt.” Tenn. Code A nn. § 39-13-202( d).

“Preme ditation” means that the intent to kill must have be en formed prior to the ac t itself. I t is not nece ssary that the purpose to kill preexis t in the mind of the acc used for any definite period of t ime. The mental state of the acc used at the tim e the a ccuse d alleg edly decide d to kill m ust be car efully

considere d in order to de termine whe ther the

acc used wa s sufficiently

fre e fr om excitement and passi o n as to be capa ble of pre meditation.

I d.

The e lement of pre medit at i o n i s a question of fact for the jury . State v. Davidson, 121 S.W .3d 600, 614 (Tenn. 200 3 ). Alt houg h the jury may not eng ag e in spec ulation, it may infer p r e me d it a ti o n f

r o m th e ma n n e r

a n d c ir c u ms tan c e s s u rr o u n d in g th e k il li n g

. St a te v

. B lan d
, 9 58 S.W .2d 651, 660 (Tenn. 1997) . Our supre me court has delineated seve ral c ircumstance s from which a jury may infer pr emeditation, including , but not lim ited to, declar atio n s o f t h e int ent to kill, the pr oc ur e me nt o f a

we apo n, the us e of a de a dly we apo n up on a n un arm e d vic tim
, the pa rt ic ula r c ru e lty of the kil lin g , p re pa

ratio ns be fo re the kil lin g fo r the pu rp os e of c on c e a lin g the c ri me , a ndc a lmn e ss immediately

afte r the killing. I d. I n Tenne ssee, onc e a homicide has bee n proven, it is presumed to be sec ond deg ree murder, and the burde n is on the State to prove the element of preme ditation sufficie nt to raise the of

fense to first deg ree murder. State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

Viewe d in the l ight most favor able to the S tate, the evidenc e demonstrated that on the day of the murde r, the a

ppellant an d t h e victim wer e ar g uing a s they left Moore ’s re sidence . Moore

su bs e qu e ntl y

te le ph on e d th e app e lla nt at ho me , a nd the app e lla nt inf

orme d he r that he a ndthe vic tim “w[ere ] i nto it” and he wa s “fixing to kill the littl e MF.” The appellant then l aid down the telephone
,-11-

ending their conve rsation. Approximately fiftee n minutes later, the a ppellant t elephone d Moore a nd told her that he ha d killed the victim. The appellant told Moore that he had shot the victim betwee n the e y e s.

I n his statement to police, the appe llant claimed that whe n he obser ved the v i ct i m coming out of his room with a knife held above his he ad, he pic ked up the rifle fr om behind the living r oom door and it “w ent off.” Howeve r, Bag g ett testified t hat she ke pt the rifle loade d and locke d in the g un cabine t. She further

rela ted that she did not observe the wea pon behind the liv i ng room door when she left the mobile home the morning of the m urder

. Moreove r, Ag ent Roy ce te stified that the 30/30 lever action rifle had various safety features and the rifle would not fire without the hammer being manually

cocke d and the leve r being held aga inst the s tock. The evidence also demonstrate d that the victim wa s shot in his r oom. B lood spatter and br ain tissue wer e obser ved in the bedr oom

near the victim’s body , and bullet fra g ments wer e rec overe d from the wall behind the be d. Contrary to the appellant’ s assertion that the victim was five to six fee t away when the rifle dischar g ed, Dr

. Har lan testified that the muzzl e of the rifle was no more than twelve inches from the victim’s head. A knif e wa s d isc ov e re d in the vic tim ’s le ft ha nd , b ut A lic e Rhe a l te sti fi e d th a t th e vic tim wa s r ig hthanded. T he jury

could have rea sonably

inferr ed that the a

ppellant re trieved the ri fl e, en t ere d the victim’s room, and shot the vi ctim in the head at close ra ng e. The appellant’ s statement that he wa s “fixing to kill the l ittle MF,” the procurement of a deadly wea pon, and the failure of the a ppellant
to se ek help for the victim support the finding of preme ditation. W e conc lude that the evide nce w as sufficie nt to support the appellant’s c onviction of first deg ree preme ditated murder

.

B. Prior Conviction

Next, the appellant contends that the trial court err ed by allowing the State t o i n t ro duce evidenc e of his prior c onviction of ag g ravated robbe ry for impea ch m en t p u rp o ses. The a ppellant

conce des that simple robbery is a crime i nvolving dishonesty , but arg ues that the off ense of ag g ravated robbe ry

“sug g ests injury

and violence or threatened vio l en ce,” there by portraying the appellant a s a violent person. The appellant as s erts that the prejudicial ef fec t of the ag g ravated robbery conviction outweig hed its probative va lue on credibility

. The appellant furthe r asse rts that the trial court made no finding as required by Rule 609 of the Te nnessee Rules of Evidence that the prob at i v e v al ue outweig hed any unfair pr ejudicial ef

fec t. The State maintains that the trial c ourt proper ly admitted the evidenc e of the appellant’ s prior conviction of a g g ravated robbe ry to impeach
t h e ap p e l l a n t ’ s t e s t i m o n y.

Rul e 60 9( a ) o f the Te nn e sse e Rul e s o f E vid e nc e pr ov ide s, in p e rt ine nt p art :

For the purpose of attacking the credibilityof a w itness, evidence that the witness has be en convic ted of a crime ma y b e ad m i tted if the following proce dures a nd conditions are satisfied:

(1) The witness must be asked a bout the conviction on

cross-e x amination. . . .T he St at e s ubs equen t l y conc eded t hat t he 1 9 8 3 b urg l ary convi ct i on was a c onvi ct i on for bur gl ar y of an 1

aut om ob i l e.

-12-

(2) The crime must b e punishable by death or imprisonm en t in excess of one y ear under the law

un de r w hic h th e wi tne ss w a s c on victed or, if no t so pu nis ha ble , th e c ri me mus t hav e inv olv e d d ish on e sty

or fa lse state me nt. (3) I f the witness to be impeache d is the acc used in a criminal prosecution, the S tate mus t give the ac cused

rea sonable w ritten notice of the impeaching

c on vic tio n b e fo re tr ia l, and th e c ou rt up on re qu e st must determine that the conviction’s probative value

on cre dibility

o u tw e ig hs its unfair pre

judicial eff

ect on th e s u b s ta n ti v e is s u e s

. T h e c o u r t ma y ru le on the admissibili ty of such proof prior to the trial but in a ny event shall rule prior

to the testimonyof the a ccuse d. I f th e c o u r t m ak e s a

f in a l d e te r mi n a ti o n th a t suc h pr o o f is a d mi s s ib le f

o r im p e a c h me n t p u rp o s e s , the

acc used nee d n ot actually testify at the trial to later challeng e the pr opriety

of the de termination.

“Evidenc e of a

conviction under

this rule is not admissi ble if a pe riod of more than ten y ear s has elapse d betwee n the date of rele ase f

rom con fi n em en t and commenc ement of the action or prosec ution; i f t h e wi t n ess was not c onfined, the te n-y ear period is measur ed fr om the date of conviction ra ther than r elea se.” Te nn. R. Evid. 609(b).

I n d e te rm ini ng wh e the r the pr ob a tiv e va lue of a prior c on vic tio n on th e iss ue of c re dib ili ty is outweig hed by

its prejudicial eff

ect on the substantive issues, “a trial court should ( a) ‘asse ss the simil arity betwee n the crime on trial and the c rime underly ing the impeaching conviction’ a nd (b) ‘ana ly ze the relevanc e the impeaching conviction has to the i ssue of credibility .’” State v. F arme r, 841 S.W .2d 837, 839 (Tenn. Crim. App. 1992) (quot ing N eil P. Cohen et al., Tenne ssee L aw of Evidence § 609.9, at 288 (2d ed. 1990)) . A trial court’s ruling under Rule 609 will not be re verse d on appea l absent an abuse of discretion. State v. B lanton, 926 S.W .2d 953, 960 (Tenn. Crim. App. 1996).

Two months prior to trial, the State filed a No t i ce of Use of Prior Convictions for I m p eachment Purposes, re ly ing upon the appellant’ s 1981 convictions of passing a for g ed i n s t ru m e n t , a 1 9 8 3 c o n v i c t i o n o f b u r g l ar y, a n d a

1 9 9 1 c o n v i c t i o n o f

a g g r a v a t e d r o b b e r y. In a

j u r y- 1

ou t he ari ng a t th e c los e of the Sta te ’s c a se -i n- c hie f, the app e lla nt c hal len ged th e us e of the se

c on vic tio ns fo r i mpe a c hme nt p ur po se s, arg uin g that the 19 81 a nd 19 83 c on vic tio ns we re too re mot e to have a ny

probative value a nd the pre judicial eff

ect of the 1991 conviction of a g g ravated robbe ry outweig hed its probative v al u e on cre dibilit y . The State c oncede d that the 1981 and 1983-13-

convictions wer e outside the ten- y ear period, but cla imed that beca use robbe ry

was a crime invo lv ing dishonesty , it was entitled to question the appel lant reg arding the 1991 ag g ravated robbe ry conviction. The tria l court allowe d the State to use the 1991 a g g ravated robbe ry conviction for impeachme nt purposes, finding the a ggra v ated r obbery conviction to be probative of the issue of

cre dibilit y . The trial c ourt furthe r dete rmined that the probative value wa s not outweig hed by any prejudicia l effe ct, finding ag g ravated robbe ry was not “similar” to first deg ree murder.

Tenne ssee c ourt s have pr eviously rec og nized that ag g ravated robbe ry is a crime of dishonesty . See State v. Caruthe rs, 676 S.W.2d 935, 9 41 (Tenn. 1984) (armed robbe ry ); State v. Goad, 692 S.W.2d 32, 37 (Tenn. C ri m

. Ap p. 1985) (a rmed robbe ry ); State v. J ames P. Stout, No. 02C01-9812-C R -0 0 3 7 6
, 2000 WL 202226, at *15 (Te nn. Crim. App. at J ackson, F eb. 17, 2000) (espe cially

ag g ravated robbe ry ). More over, co n t ra ry t o the appe llant’s assertion, the trial court

c or re c tly de te rm ine d th a t th e pr ior c on vic tio n’ s p ro bativ e va lue wa s n ot o utw e ig he d b y a ny un fa ir pr e jud ic e , f ind ing that “ the thi ng that re a lly hu rt s y ou a s fa r a s pr e jud ic ia l is if the a c t is sim ila r t o the ac t that’s being char g ed and c rime being tried, that’s not the situation here .”

We conclude that the trial court did not abuse its discretion in ruling that the appellant’ s prior convictio n of ag g ravated robbe ry was a dmissibl e as impea chment evide nce. T he appe llant’s

cre dibilit y

was a k ey issue at trial, and the appellant’ s prior convic tion of ag g ravated robbe ry was probative of

his credibility . Moreove r, ag g ravated robbe ry and first deg ree murder are not simi lar offe nses. See S tate v. DeShawn McClenton, W1999-00879-CCA-R3-CD, 2000 W L 987283, at *5 (T e nn . Crim. Ap p. a t Jac ks on , July 11 , 200 0) (c on c lud ing that prior c on vic tio ns of

a tte mpt e d f

ir st de g re e mur de r w e re dis sim ila r t o a g g ra vate d rob be ry a nde sp e c ia lly a g g ra vate d kidn app ing ); Sta te

v. Jef fe ry Jer ma ine Ha nk ins , N o. 02 C01 -9 80 6- CC- 0017 0, 19 99 WL 56 95 76 , a t *9 (T e nn . Crim. App. at Jac k s o n , Aug . 4, 1999) (c oncluding that “the c rime[] of ag g ravated robbe ry . . . [was] not so simil ar to the of

fense of murder

second de g ree as to compel finding of p re judice”) . The prior conviction of a g g ravated robbe ry was admitt ed only for impeachment purpose s, and no deta ils of the of fe ns e we re int

ro du c e d a t tria l.

C. Admissi on of Photogr aphs

Next, the appellant ar g ues that the trial c ourt erred by admitting into evidenc e thre e ph oto g ra ph s o f the c ri me sc e ne . T he de c isi on re g ard ing the a dmi ssi bil ity of ph oto g ra ph s li e s w ith in the so un d d isc re tio n o f the tr ia l c ou rt a ndthat rul in g wi ll not

be ov e rturne d o n a

pp e a l a bs e nt a showing of an a

buse of that discretion. State v. Ba nks, 564 S.W .2d 947, 949 (Tenn. 1978). I n order to be admit ted as evidenc e, a photogr aph mus t be relevant to an issue at trial. Tenn. R. Evid. 402; State v. Br aden, 867 S.W .2d 750, 758 (Tenn. Crim. App. 1993). “‘ I f re levant, the photog raph is not rende red ina dmissibl e because the s ubject portray ed could be described by words; . . . the photog raph

wo uldbe c umu la tiv e;

. . . o r [the ph oto g ra ph ] is g ru e so me or

fo r s ome oth e r r e a so n is lik e ly to i n fl am e t h e j u ry

. ’” C o l l i n s v

. S t at e, 5 0 6 S

. W

. 2 d 1 7 9
, 1 8 5 (T en n

. C ri m

. Ap p

. 1 9 7 3 ) ( q u o t i n g 3 Wharton’s Criminal Evidence § 637 ( 13th ed.))

. Howeve r, re levant photog raphs may be excluded if the ir pr ob a tiv e va lue is s ub sta nti a lly ou tw e ig he d b y

the da ng e r of un fair pr e

jud ic e to the de fe nd a nt. Tenn. R. Evid. 403; Ba nks, 564 S.W .2d at 951.D r

. Ha r l a n t e s t i f i e d t h a t h e w a s t h e “ s e n i o r a c t i v e f u l l t i m e p r a c t i c i n g fo r e n s i c p a t h o l o g i s t i n t h e S t at e of 2

T e n n e sse e ,” ha v ing p e rfo rm e d m o re tha n 2 7 ,0 0 0 a u to p sie s a n d tes tif ie d a t m o re tha n 5 ,0 0 0 trials.

-14- The a ppellant cha lleng es exhibit s 23, 25, and 26, which w ere crime sc ene photog raphs int ro d u ce d over the objection of de fense counsel during the testimony of the investig ators who investigated and photog raphe d the crime scene

. I nvestig ators Weeks and Har g is te stified reg arding
t h e ap p e ar a n c e o f

t h e c r i m e s c e n e w h e n t h e y arri v e d
, i n c l u d i n g t h e l o c a t i o n o f t h e v i c t i m ’ s b o d y. The photog raphs we re a lso used by Dr. Ha rlan to identify

blood spatter and br ain tissue in the bedroom whe re the victim’s body was discovered. Ex hibit 23 is a photogra ph of the ba throom door

near which the victim’s body was located. The photog raph de picts what appe ars to be blood spatter on the door. Exhibit 25 is a photog raph of the victim’s body as it a

ppear ed whe n the offic ers a rrived at the sce ne. B lood is visi ble on the ca rpet be neath the vic tim’s body . Ex hibit 26 is a photog raph of a po rt ion of the be d in the ro om wh e re the vic tim ’s bo dy wa s lo c a te d. Th e ph oto g ra ph sh ow s a substance that appea

rs to be tissue on the bed. H oweve r, neither the blood n o r t h e “t i s sue” w as submitt ed for

analy sis.

We c on c lu de th a t th e tr ia l c ou rt didno t a bu se its dis c re tio n b y

a dmi tti ng the ph oto g ra

ph s. As the State cor

rec tly notes, the photog raphs wer e re levant to prove preme ditation. By introducing the p h o to g r ap h s , th e St a te s o u g h t to e s ta b li s h it s th e o r y th a t “ th e [a p p e ll a n t] h a d e n te red [the victim’s] room, afte r t he arg ument had ende d, and shot him with premeditation.” The photogr aphs also corr ob o ra t ed the testimony of Weeks and Investig ator Ha rg is reg arding the crime scene and provided the jury

with a d escription of the scene . Although e x hibit 25 is duplicative of a nother ph ot ograph of

the vic tim ’s bo dy

wh ic h w a s in tr od uc e d in to e vid e nc e , e xhibi t 25 wa s ta ke n a t a slightly differ ent ang le and included the corner of the bed, thereby demonstrating the location of the vic tim ’s bo dy

in the ro om. Th is i ssu e is w ith ou t me ri t.

D. Expert Testimony

The a ppellant ar g ues that the trial court err ed by allowing Dr. Ha rlan to testify

as an e x pert for th e pu rpose of

ide nti fying blo odsp a tte r andbr a in t iss ue in c ri me sc e ne ph oto g ra ph s. Spe c if ic a lly , th e app e lla nt c ha lle ng e s D r. Ha rl a n’ s q ua lif

ic a tio ns to t e sti fy

a s a n e xpe rt

on the se matters. The appellant further asserts t hat t he testi mony was “ irrele vant, without proper f oundation, and hig hly

prejudicia l.” The State c ontends that Dr. Ha rlan wa s qualified to testify as an e x pert a nd the te sti mon y

wa s r e le va nt.

At tr ia l, the de fe ns e stipula te d th a t D r. Ha rl a n w a s a n e xpe rt

in the fi e ld o f f

or e ns ic pathol o gy

. Howeve r, af ter que stioning Dr. H arla n about the ca use of de ath, the State aske d Dr. 2 Har lan to view exhibit 26, t he crime scene photogr aph of the bed in the room whe re the victim’s bo dy wa s d isc ov e re d. Dr . H arl a n id e nti fi e d w hat app e are d to be “ mul tip le po rt ion s o f b ra in

ma te ri a l” on the be d. De fe ns e c ou ns e l ob je c te d, arg uin g that D r. Ha rl a n w a s n ot q ua lif

ie d to e xpre ss

s u ch an o p i n i o n an d t h e m at er i al h ad n o t b ee n s u b m i t t ed fo r an al y s i s

. Fo l l o wi n g a j u ry -o u th ea ri n g, the trial court de termined that Dr . Har lan was qua lified to testify for the pur

pose of identify

ing the materia l as brain tissue, but he wa s not a llowed to te stify that the bra in tissue was that of a huma n.-15-

There afte r, the State a sked Dr. H arla n to view exhibit s 16 and 23, t h e cr i me sce ne photogr aphs of the w indow blinds a nd the bathroom door in the room wher e the victim’s body was discovere d. Def

ense c ounsel objecte d, ref using to stipul ate that Dr . Har lan was qua lified to testify

as an e x pert in the a

rea of blood spatter. N evertheless, the trial court determined tha t Dr. Ha rlan wa s qualified a nd allowed him to testify that the “re d splatters” on the window blinds and bathroom door

wer e “c onsistent with blood s patter a nd

. . . the m aterial was under pressure in s triking the surfa ce with a ce rtain amount of ve locity .”

“I f scientific , technica l, or other spe cialized knowledg e will substantially assist the trier of fac t to understand the e vidence or to determine a fa ct in i s s u e, a wi tness qualified a s an expert by knowledg e, skill, ex perie nce, tr aining , or educ ation may t es t i fy i n t he form of an opinion or otherwise.” Tenn. R. Evid. 702. An expert may base her opinion upon fac ts or data imparted to or perc eived by

the expert prior to or at a hea ring , and the fa cts or data need not be admissible if they

are the ty pe of f acts or data re asonably

relied upon by

experts in the particular

field. Tenn. R. Evid. 70 3. Th e tr ia l c ou rt

sh a ll d isa llo w t e sti mon y

in the fo rm

of a n o pin ion if

the un de rl y ing fa c ts o r d a ta ind ic a te a la c k o f t ru stw orthi ne ss. I d. Mo re ov e r, e xpe rt te sti mon y

mus t be bo th r e le va nt andre lia ble befor e it ma y

b e a d mi tt e d

. M c D a n ie l v

. CS X T r a n s p

. , I n c

. , 9 5 5 S. W. 2 d 2 5 7
, 2 6 5 ( T e n n

. 1 9 97) “Que stions reg arding the q u alifica tions, admissi bility , rele vancy , and compe tency of expert testimonyare matters left within the broad discretion of the trial court.” State v. Stevens, 78 S.W .3d 817
, 8 3 2 ( T e n n

. 2 0 0 2 )

. T h is c o u r t w il l n o t o v e r tu r n th e tria l c o u r t’ s ru li n g reg arding the admissibili ty

of expert testimony

absent a n abuse of

discretion. I d.

We conclude that Dr. Ha rlan wa s qualified to testify as an e x pert for

the purpose of identify ing the blood spatter and the brain tissue in the crime sc ene photog raphs. Our supreme c ourt has pre viouslyobserve d that an expert witness “may acquir e the ne cessa

ry expertise throug h formal education or life experienc es.” St ate v. Reid, 91 S.W .3d 247, 302 (Tenn. 2002) , cert. denied, 124 S . Ct. 56 (2003). “How ever , the witness must have such supe rior skill, ex perie nce, tr ai n i n g, education, or knowledg e within the particula r are a that his or her de g ree of expertise is bey ond the scope of co m m o n k n owledg e and e x perie nce of the ave rag e per son.” I d. During the jury -out he ari ng , D r. Harl an tes tifie d th a t in a dd iti on to f or e ns ic pa tho log y , h e wa s “ su bs pe c ia lize d” in

ne ur op a tho log y

a ndha d s e rv e d a s th e he a d o f the de pa rt me nt o f n e ur op a tho log y a t th e Un ive rs ity of T ennesse e. More over, D r. Ha rlan testified that he had r ece ived spec ialized training in the a rea

o f b lo o d s p a tt e r , w h ic h tr a in in g w a s “ a p o r ti o n o f e v e r y f o r e n s ic p a th o lo g is t’ s b a c k g r o u nd and
tr a ini ng .” He re la te d, “ I ’v e wo rk e d w ith c e rt a in m e dic a l te c hn olo g ist s w ho ha d s pe c ia l tr a ini ng in [bl ood s p at t er ]
, i n cluding people who tr ained at Scotland Yard a nd I have a certain amount of expertise in that are a bey ond what the normal fore nsic patholog ist would have.”

We further

conclude that Dr. Ha

rlan’s testimony was rele vant and reliable . The c rime sce ne p h o to g r ap h s w e r e in tr o d u c e d in to e v id e n c e d u r in g th e te s ti mo n y o f A ll a n We e k s , o n e of the inv e sti g a tor s w ho ph oto g ra ph e d th e c ri me sc e ne . B y qu e sti on ing Dr . H arl a n a bo ut the ph oto g ra

ph s, the State soug ht to introduce evide nce that the victim had been s h o t in his bedroom. Dr. Ha rlan
te sti fi e d i n g r e a t d e t a i l ab o u t t h e m e t h o d b y w h i c h h e i d e n t i f i e d t h e s u b s t a n c e o n t h e b e d a s br a in tissue, stating that he was a ble to identify

the portion of ce rebr al cortex bythe serie s of ridg es and-16-

valley s of which it wa s composed. When a sked about the red substance on the bathroom door a nd the window blinds, Dr. Har lan’s testimony was limit ed to the fac t that the substance was c onsistent with blood s p at t er. D r. Ha rlan a cknowledg ed that he w as unable to determine the specie s of the brain tissue and tha t neither the br ain tissue nor t he blood was submi tted for analy sis. We conclude that the trial court did not abuse its discretion when it allowed Dr. Har lan t o testify as an expert for the pu rp os e of

ide nti fying blo odsp a tte r andbr a in t iss ue in c ri me sc e ne ph oto g ra ph s.

E. J ury I nstructions

F ina lly , th e app ell ant chal leng e s th e tr ia l c ou rt ’s c ha rg e to the jury . A de fe nd a nt h a s a “constitutional rig ht to a corr ect a nd complete c harg e of the law.” State v. Tee l, 793 S.W .2d 236, 249 (Tenn. 1990) . I n determining whe ther jury instructions are e rrone o us, this court must review the c ha rg e in i ts e nti re ty

a ndon ly inv a lid a te the c ha

rg e if, w he n r e a d a s a

wh ole , it fails to f a ir ly submit t he leg al issues or misleads the jury as to the applicable l aw. State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998) . When the char g e cor rec tly , fully
, and fairly sets forth the a pplicable law , it is not

err or for the trial court to r efuse to g ive a specia l instruc tion r equeste d by a party

. State v. Br own, 53 S.W .3d 264, 281 (Tenn. Crim. App. 2000)

.

The a ppellant first conte nds that the trial court failed to instruct t he jury on the pre sumption of sec ond deg ree murder. “ [A] lleg ed omission s in the char g e must be broug ht to the trial judge ’s

a tte nti on a t tria l or

be re g ard e d a s w a ive d. ” Sta te v. Hay ne s, 720 S .W .2 d 76 , 8 4- 85 (T e nn . Crim. App. 1986). How ever , there is no require ment for a n objection to th e i n cl u sion of an er roneous instruction or otherwise inacc urate char g e. State v

. L y nn, 924 S.W .2d 892, 898-99 (Te nn. 1996). As the Sta te c or

re c tly no te s, the app e lla nt d id n ot o bje c t to the omi ssi on of the ins truc tio n at tria l. Moreove r, the appellant did not raise the issue in his motion for new trial, prec luding c onsideration of the iss ue on app e a l. T e nn . R. Ap p. P. 3 (e ). Re g ard le ss, the iss ue is w ith ou t me ri t.

I n ruling on a similar re quest fo r a j u ry i n struction on the pre sumption of second deg ree murder, this court has previously stated,

[W ]e acknowle dg e our supr eme c ourt’s observation in St ate v. B ro wn , 836 S.W. 2d53 0, 54 3 ( Te nn . 1 99 2) , th a t “ [t]he la w i n Tenne sse e h a s lo n g r e c o g n iz e d th a t o n c e [a ] h o mi c id e h a s b een established, it is presumed to be murde r in the sec ond deg ree .” Howeve r, the import of thi s presumption is that “[t] he st ate bears the bu rd e n of pr oo f on the iss ue of pr e me dit a tio n .

. . su ff

ic ie nt t o e le vate the offe nse to first-degre e murde r.” I d.; see a lso St ate v. Ha ll, 8 S.W .3d 593, 599 (Tenn. 1999); State v. Schafe r, 973 S.W.2d 269, 274 (T en n

. C ri m

. Ap p

. 1 9 9 7 ). T h er ef o re , wh en a tri al co u rt ’s ch ar ge omi ts t h e l a n g u a g e o f

“ p r e s u m p t i o n ” b u to t h e r w i s e c l e ar l y i n f or ms the jury that the S t at e ca rr i es the burde n of proving eac h and eve ry

e le me nt o f f

ir st d e g re e pr e me dit a te d mu rd e r b e y on d a reas on able-17- doubt and also includes a corr ect a nd complete instruction on sec ond deg ree murder, a

criminal def

endant is not entitled to relief

.
State v. Coulter, 67 S.W .3d 3, 68 (Tenn. Crim. App. 2001) (citations omitted); see a lso St ate v. Rob e rt L . L e a c h, Jr., No . M20 01 -01 42 1-CCA- R3- DD , 2 00 3 WL 22 00 26 30 , at * 1 7 ( Te nn . Crim. App. at Na shville, Aug . 25, 2003).

I n the i nstant case , the t rial court did not char g e the jury on the pre sumption of second deg ree murder. Ho we v er , t h e trial court informed the jury that the State was r equire d to prove e ach a nd

every element of

first deg ree murder be y ond a re asonab l e d o u b t

. The trial c ourt also provided a complete a nd acc urate instruction on the lesser- included off ense of secon d deg ree murder. Acc ording ly , we c onclude that the substanc e of the presumption of sec ond d egree murde r wa s addre ssed in the t rial court’s char g e to the j ury

. The appellant is not entitl ed to re lief on this issue.

Next, the app e lla nt c on te nd s th a t th e tr ia l c ou rt faile d to ins truc t th e jury that if the Sta te failed to p r o v e th e e le me n ts o f f ir s t d e g r e e mu r d e r

o r th e le s s e r

- in c lu d e d o f

f e n s e s o f f ir s t d eg ree murder be y ond a re asonable doubt, the jury should r eturn a verdic t of not g uilty

. The State arg ues that the appe llant has waive d this iss ue for failure to c ite authority in support of his contention. See Te nn . R. Ap p. P. 2 7( a )( 7) ; T e nn . Ct . Crim. Ap p. R. 10( b)

. We ag re e wi th the Sta te . Reg ard le ss, thi s iss ue is a lso wi tho ut m e ri t.

Considering the jury

char g e as a

whole, we conclude that the instructions give n by the trial

c ou rt we re a c omp le te a ndc or

re c t c ha rg e of the app lic able la w re g ard ing the Sta te ’s bu rd e n. I n it s

c ha rg e to the jury , th e tr ia l cour t in st ruc te d th e jury onthee le me nts of

fi rs t de g re e mur de r a ndits le sse r- inc lud e d o ff

e ns e s, wh ic h in c lud e d s e c on d d e g re e mur de r, vo lun tary ma ns laug hte r, re c kle ss homicide, and c riminally neg lige nt homicide. The trial c ourt also define d rea sonable doubt and explained that “proof be y ond a re asonable doubt [ was] require d as to eve ry element or

proposition of proof which constitutes a c harg e.”

Con tr ary to t he app e lla nt’ s c on te nti on , th e tr ia l c ou rt ins truc te d th e jury

a s f oll ow s:

Now, ladies a nd g entlemen, if y ou find t h e s t ate ha s proven the de fe nd a nt’ s g uil t be y on d a re a so na ble do ub t on a c ha

rg e in this c a se the n y ou sh ou ld fi nd him g uil ty on that c ha rg e . O n th e oth e r h a nd , if
y ou find the state ha s not proven g uiltybey ond a re asonable doubt on a cha rg e or c ount, then y ou must find the defe n d an t not guilty on tho se c ha rg e s.

Th e tr ia l c ou rt

fu rthe r i ns truc te d th e jury :

[S ]houl d y ou have a rea sonable doubt a s to the Def endant’ s g uilt of first deg ree murder, then y ou will c onsider the lesser in cl u ded of fe ns e s o f s e c on d d e g re e mur de r, vo lun tary ma ns laug hte r, re c kle ss-18- homicide, and c riminally neg lige nt homicide . .

. -- i f y ou have a

re as o n ab l e d o u b tas t o fi rs td egr e e m u r d e rt h en y o u ’r e go i n g t o go d o w n a la d d e r c o n s ideri n g th e n e xt m o s t s e r io u s o f f e n s e

. T h e n e xt one is second de g ree murder. . . . [Y]ou first decide whether y ou think the state ha s met the burden be y ond a re asonable doubt and if y ou fi n d that it did then y ou’d put g uiltythere . I f y ou did not find they p r o v e d i tb e yo n d a

r e a s o n ab l e d o u b t , o f

c o u r s e , yo u p u tn o tg u i l t y.

We c on c lud e that the tr ia l cou rt pr op e rl y c ha rg e d the jury re g ard ing the Sta te ’s bu rd e n o f p ro of . T his iss ue is w ith ou t me ri t.

III. Conclusi on

F ind ing no re ve rs ibl e e rr or , w e a ff ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ NORMA McGEEOGLE, J UDGE