# FILED
August 13, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON APRIL 1997 SESSI ON
STATE OF TENNESSEE, ) ) Appellee, ) No. 02C01-9605-CR-00140

) ) Shelby County v. ) ) Honorable Chris Cra ft, Judge ) ANTHONY E. RICHARD SON, ) (First degree murder) ) Appellant. )
For the Appellant : For the Appellee : Joseph S. Ozment Charles W. Burson 217 Exchange Avenue Attorney General of Tennessee Memphis, TN 38105 and Deborah A. Tullis Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 John W. Pierotti, Jr. District Attorney General and Jerry R. Kitchen Assistant District A

ttorney General 201 Poplar Avenue Memphis, TN 38103

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Anthony E. Richardson, ap peals as of right from his conviction by a jur

y in the Shelby County Criminal Court for first degree murder. The trial court sentenced the defendant to life imprisonment with the possibility of parole. On appeal, the defendant presents th e following issues:

(1) whether theevidence is sufficient to support the first degree murder convicti on; (2) whether the trial cour t erred by

not de claring a mistrial when the p ro secutor made biblical referenc es during his closing argument; and (3) whether the trial cour t properly charged the jury with the flight instruction. We hold that the evidence is suf ficient and that the trial court did not commit reversible error. We affirm the judgment of the trial cour t.

This case involves the June 1, 1994, shooting death of Terr y Gilliard at the LeMoyne Gardens Apartments in Memphis, Tenne ssee. The victim was shot six times by two individuals. The defendant and Earline Jackson were charged with first degree murder. Before the defendant's trial, Earline Jackso n pled guilty to shooti ng the victim, but the record does not reflect the particular offense to which she pled.
Robert Flynn, the vi ctim’s first cousin, testified that he saw the defendant and the victim arguing

on the day of the shooting. F lynn stated that he could not hear what the two were arguing about. He testified that after the defendant a nd the victim stopped arguing, he and the v ictim walked away . Flynn testified that a few minutes later, they ran into the defendant. He said that the defendant and the v ictim started scuffling and swearing at each other for two or thr ee minutes, but neither one hit th e other. He testified that the defendant r an off, shouting that he would be ba ck.3 Mr. Flynn testified tha

t he and the victim starte d walking to his hous

e and went between two bui ldings. He said that th e defendant jumped out with a gun. Flynn said that he and the victi m ran in different directions and that the defendant chased the victim. Flynn tes

tified that although he did not s ee the victim get shot, he saw the defendant point the gun at the vic tim and heard a shot fired.
Dorothy Jackson testified that she was sitting under a tree with Rose Smart, who is the defendant's aunt, and a woman nam ed Linda. She said that Robert Flynn, the victim, Lee-Lee, who was a friend of the victim, and a young boy came by the tree. She said that Rose tried to play with the boy, but he did not want to play. Ms. Jackson testified that the v ictim said to the boy, "Tell that bitch don't play w

ith you." She said that the defendant came to her defense a nd that the defendant argued with the victi m. Ms. Jack

son said that

she told them

not to argu e and that Flynn, the v ictim, Lee-Lee, and the young boy went one way and the defendant went the other.

Ms. Jackson testified that th e victim, Flynn, and Lee-Lee returned. She said that the victim ask ed Rose where the defendant w as, but none of the women answered. She testified that she saw the victim go in the same direction that the defendant had gone earlier. She sa id that about five or ten minutes later, she saw the defendant running from the direction that the victim, Fly

nn, and Lee-Lee had gone. She said that a few minutes later, the defendant ran back, this time carrying a pistol. Ms. Jackson said that she heard s everal gunshots and that she and Linda took the children into the house.

Ms. Jackson testified that s he went to where she hear d the gunshots and that she saw the victim lying on the ground, bleeding. She said that as she went toward him, Earline Jackson came out and told Lee-Lee to get back. She testified that Earline Jackson fired one shot at the v ictim from behind a concrete w all, walked to wi

thin ten or4

fifteen feet of him, and fired twice more. She said that by this time,Lee-Lee had walked away. She testified that neither the vi ctim nor Lee-Lee had a gun but th at when Flynn came back after the shooting, he had a gun.

Brenda Mack testified that she witnessed the shooting while she was leaning out her kitchen w indow. She said that she w as speaking to Linda, w ho was on the grass below her second floor apartment. She testified that she saw the defendant shoot the victim once as th e victim was runni ng away from the defendant. She t estified that after fir

ing the firs

t shot, the de

fendant ran aw

ay, came back and cursed the victi m, and then shot the victim a second time as he lay on the g round.

Ms. Mack testified that after the defendant ran off the second time, Earline Jackson came out of her apartment, loc ked her door, walked dow n some steps, and fired a shot at the victim. She said that the first shot mis sed. She testified that Earlin e Jackson moved closer to the victim and shot him tw ice, once in the leg and again in the back. Ms. Mack said tha t the victim was beg ging for his life.
Frankie Sanford, a thirteen-y ear-old girl from the nei ghborhood, testified that she was riding her bicycle when s he saw the defendant shoot the vi ctim in the back. She said that she saw the defendant shoot once and then she saw a woman shoot the vi ctim.

Teresa Taylor testified that s he was in her kitchen w hen she heard a noise outside. She said that s he looked out her kitchen w indow and saw the defendant chasing and cursing the victim. She testified th at the victim got caug ht in her clothesline at about the same time that the def endant shot the victim in the back. Ms. Taylor stated that the defendant shot the victim two more times before he ran away. Ms. Taylor testified that she saw Dorothy Jackson and Lee-Lee approach the victim5

after he had been shot. She said that Ea rline Jackson came out and tol d Lee-Lee to get away. She stated that neither the victim no r Lee-Lee had a gun.

Nicole McKinley, the victim's girl friend, testified that on the day before the shooting, she was dri

ving the victim's car when she had an acci dent. She said that she was returning to her

apartment when the car she w as driving hit a y

ellow Cadillac belonging to Earline J ackson's husband, Vernon. She tes tified that Vernon and Earline Jackson had just left the car when she hit it. Ms. McKinley testified that when the victim got home later that evening, he went to talk to Vernon and Earline Jackson. She said that he returned about ten minutes l ater and said everythi ng was resolved.

Ms. McKinley testi

fied that at the time of the shooting, she was hanging clothes o n a line in her backya rd. She te stified that she heard som eone say, "Somebody been hit," before she saw the defendant chasing the vic tim and before she saw and heard the defendant shooting at the victim. She said that the defendant shot the victim three or four times, the first from about twenty feet and the others from about twelve feet from the vic tim. Ms. McKinley testified that Earline Jacks on then shot the victim, got into her

car, and left. Ms. McKin ley testified that after Earl ine Jackson left, she went to the victim, who was trying to say something but could not. Although Ms. McKinley testified that she did not see Lee-Lee either dur ing or after the shooting,she stated that she had seen Lee-Lee and R obert Flynn with the victim earlier i n the day.
Memphis Police Officer William Harsley testified that he had tagged a gun found in the yellow Cadi llac. Officer Harsley said that the gun contained tw o live rounds and four spent casings.

Dr. O'Brie n Cleary Sm ith, Assi stant Med ical Exami ner for S helby Coun ty, testified that he performed an autopsy on the victim. He state d that he determined that6

the victim suffered six g unshot wounds, and he identified e ach one by a letter, A through F. Dr. Smit h said gunshot wou nd A entered th e front of th e neck, went throu gh the victim's windpipe, and fractured a portion of the victim's spine. He said that this wound, by itself, wo uld have bee n fatal to the v ictim.
Dr. Smith testified that guns hot wound B was a superfic ial wound that entered at the front of the neck. He stated th at gunshot wound C entered the victim's back. Dr. Smith said that gunshot wound D, by i tself, could have been fatal to the victim. He said that i

t entered the victim's l ower back, went thr ough one kidney, and punctured his abdominal aorta. Dr. Smith testified gunshot wound E was a grazing wound to the victim's

upper arm. He said that g unshot wound F was a fles h wound and the bullet had entered the back s ide of the victim's leg and traveled up his thig h.
Dr. Smith testified that gunshot wounds A and D could have been lethal, but it was possible for a victim to survive either one with rapid medical intervention. He could not say whether either wound by itsel f was certain to be fatal. H e testified that the cause of death was multiple gunshot wounds. He sai d that he had no way of determining which w

ound was the actual cause of death of the victim.

Dr. Smith testified that he recovered five bullets fro m the body, one for each wound except gunsho t wound E, which w

as the grazing w

ound. He said that the bullets were two di

fferent calibers. The parties stipulated that the bullet that ca used gunshot wound D was from the revolver rec overed from the yellow Cadillac and the other four bullets were from another gun that was unknow n.
Rose Smart testified that on the day of the shooting she was outs ide with Dorothy Jackson and a lad y named Montgomery w hen the victim, Robert F lynn, and a young boy came by. She said that as they passed by, she spoke to the boy, and the7

victim told the boy, "Tell that bitch don't speak to y ou no more." She testified that she said, "You can't tell me what to do, " to which the victim re plied, "You keep on talking, I'm going to dump you on y our head like I dumped that bitch around there." She testified that the defendant had approached the m by this time and told the v ictim, "You ain't fixing to keep on t

alking to my auntie li ke that." She said that the v ictim and Flynn turned around and came towards the defendant. She testified that she tol d the defendant to leave, and he did. She s tated that the victim and Fl ynn also left, but in the opposite direction.

Ms. Smart testified that the victim and Flynn returned and that the victim asked her where the defendant w as. She said that the vic tim said he would see her later a nd then h e left with Fly nn, headi ng the s

ame way that the defendant

had left earlier. She testified that she saw the defendant come back from that direction and he was dusty. She said she saw the victim, Flynn, and Lee-Lee following the defendant. She testified that the defendant then turned a nd started shooting. She sai d that at that point, she ran into a neighbo r's house.

Ms. Smart testified that after the shooting stopped, she saw Flynn and Lee-Lee kneeling near the v ictim. She said that Fly nn had two guns, and he passed one of them to Lee-Lee. She testified that s he did not see Nicole McKi nley, but she heard someone shouting, "Go get Nicole."
Dorothy Jackson testified that she saw Robert Flynn with a gun. She said that she saw Flynn about five minutes after the defenda nt shot the victim and while Earline Jackson was getting into the yellow Cadillac. She testified that he came back running with a gun in his hand. She said Fly nn never got near the body but was pacing back and forth. She said that Lee-Lee was also there, but she did not see him touch the victi m.8 The defendant testified that on the day of the s hooting, he was outside with Rose Smart and her fri ends. He said that the vi ctim came by with Robe rt Flynn, Lee-Lee, and a young boy. The defendant testified that he argued w ith the victim, but he left when his aunt told him to leave. He testified that he went to pick up a pair of short pants, and when he returned, he passed by the victim, Flynn, and Lee-Lee. He said that the victim sw

ung at him, and the two fought.
The defendant testified that after the fight w as over and as he was leaving, the vic

tim threatened him. He said that he was scared and that he w ent to get his gun, which he had hi dden nearby. He stated that he returned and saw Lee-Lee pass something to either the victim or Flynn. He testified that although he d id not see any of the others with a g un, he shot because he feared for his l ife. He denied killing the victim. He testified that he shot in self-defense. T he defendant testified that he did not shoot the victim in

the back, and

the victi m was stil l standing after he shot him.

The defendant testified tha t he ran away after he shot the victim because he was scared. He stat ed that he left because he heard other s hots and thought that the victim or his frien ds were going to c ome after him. He said that he thre w the gun away after the shooting . He said that two hours after the shooting, he found out that the victim had died. The defendant tes tified that he did not wait ar ound for the police to show up after the shooting because he was afraid that if he r emained at the scene with a gun, he might be shot or g et beaten. The defendant stated that five day s after the shooting, he voluntari ly turned himself in to the police.

The defendant testified that he had a gun to pr otect himself. He said that he lived in an area where others would come to shoot or to harm the residents. He testified that he had witness ed violence and had seen numerous murders in the area where he lived. He

said that he bought his firs t gun when he was tw

elve years old.9 Verlene Reynolds testified that she was in her house when she heard shots. She said that she ran outside and saw Earline J ackson shoot the victim. She stated that after Earline Jacks on left, she saw Lee-Lee. She t estified that Lee-Lee had a gun and that she told Lee-Lee tha t he better get rid of it before the police got there. She said that th e ambulance a rrived about thirt y-five to forty minu tes after the shooting.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence is insufficient to convict him because his actions wer e not the cause of the victim's death. He argues that the ac tion of Earline Jackson was the intervening cause. He asserts that gunshot w ound A was not an absolutely fatal wo und and that the victim could have survived i

f not for gunshot wound D inflicted by Ea rline Jackson. He also asserts that Earline Jac kson's actions were not foreseeable and w ere not events that woul d naturally flow from his conduct. The state contends that there is s ufficient evidence that the defendant fatall y shot the victim.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecution, any rational trier of fact could have found the es sential elements of the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Thi s means that we may not rew eigh the evidence, but must presume that the jury has resolv ed all conflicts in the testimony and drawn all reasonable i nferences from the evidence in fav or of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Under this stan dard, the state is entitled t o the strongest legiti mate view of the evidence and all reasonabl e inferences which may be drawn from it. Cabbage , 571 S.W.2d at 835. That is, the testimony favoring the state is accredited and all10

conflicts are resolved in favor of the state's theory

. See State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); State v. Hatchett , 560 S.W.2d 627, 63 0 (Tenn. 1978).

In order to sustain a cri minal conviction for firs t degree murder, the evidence must establish that the defendant 's actions or conduct caused the victim's death. Generally, this is established by show ing that the victim's

death was the natural and probable result of the defendant's unl awful act. See State v. Barnes , 703 S.W.2d 611, 614-15 (Tenn. 1985); State v. Ruane , 912 S.W.2d 766, 774 (Tenn. Crim. App. 1995). Our court has held th at in order to convict a defendant, it is not necessary that the defendant's act be the sole cause o f death nor the most immediate cause of death. State v. Roberson , 644 S.W.2d 696, 69 8 (Tenn. Crim. App. 1982). "It is only necessary that the defendant unlawfully co ntributed to the death of the deceased." Id

.

In Roberson , the defendant was convicte d of involuntary manslaug hter when the ninety-yea r-old man that he beat during a robbery died three w eeks after the beating. Id . at 697-98. The treating phy sician stated that the immediate cause of death was bronchial pneumonia, w hich the victim contrac

ted while in the hospital

. Id . The doctor testified that but for the beating, the victim w ould not have died of pneumonia. Id . This court held that the "v ictim's death was the natu ral and probable result of the defendant's unlawful acts." Id . In Barnes , our supreme court noted the holding in Roberson in determining that the death of a ninety-one-year-ol d woman, who died of complications from pneumonia, wa s directly caused by

the man who beat her. Barnes , 703 S.W.2d at 615.

In the light most favorabl e to the state, the evidence s hows that the defendant caused the death of the victim.The evidence shows thr ough the assistant medical examiner's testimony that the gunshot wound attributed to the de fendant was11

fatal. The evidence further show ed that although there was no way of determining which wound was the actual cause of death, the assistant medical examiner essent ially attributed death to both gunshots . As the Roberson court noted, the defendant's act need not be the sole cause of death and a co nviction will be upheld if the defendant unlawfully contributed to the victim's death. 644 S.W .2d at 698. Under these circumstances, we conclude that a rational trier of fact could fin d beyond a reasonable doubt that the defendant caused the death of the v ictim and was guilt

y of first degree murder.

II. BIBLICA L REFERENCES

The defend ant contends that the trial cou rt erred by not decla ring a mistrial when the pros

ecutor cited the Bible in i ts closing argument. The defendant argues that the biblical references were improper and prejudicial. The state c ontends that the biblical references do not constitute revers ible error unless they clearly affected the jury's verdi ct.

During the state's rebuttal closing argument,the following occurr ed: [PROSECU TOR KITC HEN'S CLOS ING]: You know, the judge is going t

o charge you the law

about flight. But the good book, ladies and gentl emen, also talks about someone's flight, the flight o f a person. [DEFENSE COUNSEL]: Y our Honor, I'm going t

o object and ask to approach the benc h. THE COURT: All right, sir. [DEFENSE COUNSEL]: I don't know what passage he is about to read from the Bible, Your Honor, but I would suggest that saying that God's law should convic

t this man or if he is implying any

thing of that nature, th at the good book says this man, if he runs he is guilt y, or the goo d book sa ys that he killed this man, I thi nk that is really pus hing it. That is not -- the law is not the Bibl e, Your Honor. The law is th e law the state of Tennessee has pas sed by the Tennessee legislature, and I would suggest that he is treading on ground that i s improper and that he is pulling on their religious beliefs as to whether

or not to convict this man. And12 I would ask that he put the Bible away a nd not be allowed to do that. THE COURT: Mr. Kitchen. MR. KITCHEN: Your Honor, I am commenting on the evidence, and I am bringing in a pa ssage that states that "The wicked will flee when no man pursueth" -- [DEFENSE COUNSEL]: Your Honor. MR. KITCHEN: -- "andthe righteous will stand as bold as a lion." That is a comment on flight. That's putting it in another way. That's all I'm doing -- [DEFENSE COUNSEL]: Your Honor, it's saying -- MR. KITCHEN: -- andI have a right to comment on the evidence. [DEFENSE COUNSEL]: -- saying that the Bible, God's word, God's book says that if y ou flee you are the wick ed, Your Honor, that is improper. TH E COURT: Let me say this. I think one of the problems, Mr. Kitchen, is that some of the jurors may think that the law in the scripture is higher th an my law. And I agree with [defense counsel] that I think we might

-- we are treading reversible grounds here. Youcan discuss it with them, butI'd ask you no t to read f rom the B ible as au thority.

. . . [MR. KITCHEN'S CLOSING]: Ladie s and gentlemen, the wicked will flee -- [DE F ENSE COUNSEL]: Your Honor, may I approach the bench? THE COURT: Yes , si r. Excuse me, ladies and gentlemen. [DEFENSE COUNSEL]: Your Honor, I'm going t o move fora mistrial. They know he got that directly out of that Bi ble. He went back and s aid exactly what he was going to say. Anybody that has had any

reading of the Bible knows that's in there. They saw

him put the Bible down. They saw him reading it before he said it, Your Hono r. I call for -- I would ask for a mistrial at this ti me. THE COURT: That will be denied. [DEFENSE COUNSEL]: Thank y ou. THE COURT [ADDRESSING THE JURY]: Ladies and gentlemen, just so you will understand what we are doing here,13 when I told you that the only law that you could g et would b e from the Court's instructi ons, that also means that you cannot use the Bible or the Talmud or the Torah or any kind of holy work as law. Regardles

s of this Court's opinion as to scripture or whatever el se, we can't, sin ce we have separation of church and state in here, we have to try these cases on the law that is established by courts rather than l aw establishe d b y holy works. Mr. Kitchen can comment to you on what he believes is true about the world and nature and in the proof. But you are not in any way to ac

cept some other

work as higher auth ority forpurposes of deciding this case only, than the law the Court is going to giv

e you. All right. Mr. Kitchen, you may proceed. [MR. KITCHEN'S CLOSING]: Ladie s and gentlemen, the judge wi ll charge

you about fli ght which simp l y says to a degree that if so meone l eaves the scene of an incident that you can take that into consideration as to an inference of the person's guilt. "The wicked will flee when no man pursueth, but th e righteouswill stand as

bold as a lion." Whatdoes that mean? What are you hiding? Why did you throw aw ay the gun? Why di d you hide out for five days? Get your story straight? See if anybody was going to identify you? Maybe no one is go ing to talk because ever yone will be too sc

ared because we live in suc h a danger ous comm unity. Our supreme court has recognized that closing argument is a valuable privilege for both the state and the defense and tha t counsel is afforded wide latitude in presenting final argument t o the jury. See State v. Cribbs , 967 S.W.2d 773, 783 (Tenn. 1998); State v. Cone , 665 S.W.2d 87, 94 (Tenn. 1984). When a prosecutor's argument goes beyond the latitude afforded, the test f or determining if reversal is required is whether the impropriety "affected the verdict to the prej udice of the defendant." Harrington v. State , 215 Tenn. 338, 340, 385 S.W.2d 758, 759 (1965). Factors relevant to that determination include:

1. The conduct complained of viewed in context and in light of the facts and circumstances of the cas e. 2. The c urative measures undertake n by the court and the prosecution.14 3. The intent of the prosecutor in maki ng the improper statement. 4. The cumulat ive effect of the improper conduct and any other errors in the rec

ord. 5. The relative streng

th or weakness of the case. Judge v. State , 539 S.W.2d 340, 34 4 (Tenn. Crim. App. 1976).

In Cribbs , the defendant argued that it w as prosecutorial misconduc t for the prosecutor to use the passage, "whatever a man sows, so shall he reap," in his argument during the sentencing phase. 967 S.W .2d at 783. The court stated, "It is well-established in

Tennessee law that references to biblical passages or religious law during the course of a cri minal trial are inappropr iate." Id . at 784. However, the court concluded that the biblical references did not affect the verdi ct to the prejudice of the defendant. Id

.

In this ca se, the st ate wante d to put th e flight i nstructi on into p erspecti ve for the jury. The evidenc e showed that the defendant left the sce ne after the shooting. The defendant testified as to why h e left the scene. Without the biblical referenc e, the state could properly c

omment on this evidence and the si gnificance of flight. We note that the trial court gav

e a curative instruction to the jury but sti ll permitted the state to use the biblical passage.We also note that there was overw helming evidence of the defendant's guilt. We conclude that the improper argument did not affect the verdi ct to the substantive prejudic e of the defendant.
We must note, though , that this c ourt has pre

viously reviewe d the same prosecutor for using the Bi ble and making biblical r eferences during closing argument. While discussing flight during closing argument in State v. Alfonzo E. Anderso n and Barry Woodley , No. 02C01-9419-CR-00243, Shelby County (Tenn. Cr im. App. Sept. 20, 1995), app . denied as to Anderson (Tenn. May 6, 1996), the pr osecutor quoted15

from the Bible and stated, "This is the real law book." Sli p op. at 8. After objection, the trial court instructe

d the jury that this w

as just closing arg ument and that they were to consider only what they heard in the case. Id . Following the tr ial judge's admonition, the prosecutor made another bri ef reference to the same biblical pas sage. Id . The Anderson court held that the prosecutor 's conduct did not constitute reversible error because the prosecutor's comments were limited in scope , the trial court gav e a curative instructi on, and the defendant had not shown how he was prejudiced by

the comments.
In this respect, we has ten to add that the fact that we hol d the error to be harmless in the present case should not be taken as precedent for similar improper argument in the future. We note that Anderson was decided approximat ely two months before the trial in the present case began. Our supreme court has sta ted that “it is inappropriate for the appellate courts to preside over the creation of a body of ‘harmless error law’” ari sing from the continued failure o f a trial court to meet procedur al requirements. State v. Gorman , 628 S.W.2d 739, 740 (Tenn. 1982). We believe it to be similarly inapprop riate for a continuing prac tice of prosecutors using biblical references during trial . At some point, the need to preser ve the integrity of the judicial process will req uire that the continued practi ce not be subject to the harmles s error rule.

III. FLIGHT INSTRU CTION The defendant contends that the rule allow ing the jury to hear an instruction on flight should be reconsidered. He argues that a flight instruction is undu ly prejudicial consideri ng the defendant's age (six teen years old) and immatur ity. Also, he argues that public polic y should favor indiv

iduals voluntarily

turning themselves i n to the police, particularly

when they do so after they have time to reflect on their actions and only a short time has elap sed after the crime was committed. The jury was ch arged with the following

instruction on flight:16 The fli ght of a

person accused of a crime is a circumstance which, when conside red togethe r w ith all the facts of the case, may justify an i nference of guilt. Flight is the vol untary withdrawal of onese lf for th e purpos e of eva din g arrest or prosecution for the cri me charged. Wheth er the evidence presented proves beyond a reasonabl e dou bt that the defendant fled is a question for y our determination. The l awmakes no nice or refined disti nction as to the manner or method of a flight; it may be open, or

it ma y be a concealmentwithin the jurisdi ction. However, i t takes both a leaving the scene of the difficulty and a sub sequent hiding out, evasion, or concealment in the community, or a leav ing of the community for parts unknow n, to constitute flight. If flight is proved, the fact of flight alone does notallow you to find that the defendant is guilt y of the crime a lle ged. H owever, since flight by a defendant may be caus ed by a consciousness of guilt, you may con sider the fact of flight, if flightis so proven, together with all of the other evidence when you decide the guilt or innocence of the defendant. On the other hand, an en tirely innocent person may take flight and s uc h flight may be explaine d by proof offered, or by the facts and circumstances of the case. Whether there was flight by the defendant, the reasons forit, and the weight to be given to it, are questions for you to determine.
In State v. Smith , 893 S.W.2d 908 (Te nn. 1994), our supreme court reviewed the effect of a flight instruction when the defendant abandoned a stolen car filled with stolen goo

ds and remained free for one year. Id . at 918. The defendant murdered an elderly w

oman while burglari zing her home. Id . at 911-12. As the defendant was leaving, the car he took from the victi m became stuck in the mud near the victim's house. Id . at 911. A police officer, res ponding to another call, noti ced the car as he drove by the

area. Id . After the officer returned from the cal l, he checked the car and found that the engine w as still warm. Id . Our supreme court held that the facts led to a reasonable inference that the defendant saw the police cr uiser drive by w

ith its lights flashing and abandoned the car stuck in the mud. Id . at 918. The court held that there was also evid ence that the defendant concealed himself. Id . Although not holding that the flight in struction given w as error, the court addres sed the issue of the effect of a flight instruction given in error:17 Even if an instruction on flight should not have been given, any

error is not reversible. The Court instructed the jury that whether the Defendant fled wasa question solely for their decision, that they ne ed not infer flight, and that flig ht alone was insufficient to prove gui lt. This, c oup led with the overwhelming

proof of Defendant's guilt, renders any error as to the flight instruction harmless. Id

.
In the present case, the evi dence shows that after the defendant sh ot the victim, he left t he scene. The evidence also sho ws that two hours af ter the shootin g, the defendant knew the victi m had died, but he still remain ed hidden in the community for five days. We conclude that a flight i nstruction was war ranted.
The defendant argues that the fa cts and circumstances in this case are such that the flight instruction should not have been given. He asserts that public policy should not penalize those that voluntarily tur

n themselves in to the poli ce. In this case, the flight instruction pointed out to the jury that innocent persons m ay take flight, and it was up to the jury to

determine whether there w as flight, the reasons for the fli ght, and the weight to be giv

en to it. Just as the instr uction allowed an inference of guilt from flight, it also instruc

ted that the evidence, facts, and circumstances may show that an innocent person may take flig ht.

The evidence shows that the defendant was young, li ving in a dangerous neighborhood, and was sca red. The Smith court held that it was up to the jury to determine the meaning and the w eight of this type of evi dence. 893 S.W.2d at 918. We conclude that the f light instruction properly charged the jury with their duty and did not unduly prejudice the defendant.

In consideration of the foregoing and the record as a whole , we affirm the defendant's conviction for first degree murder.18 ______________________________ Joseph M. Tipton, Judge CONCUR:

___________________________ David G. Hayes, Ju dge
(Not Participating) William M. Barker, Judge