### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 20 , 2003 Ses sion
STATE OF TENN ESSEE v. DUAN E BRIAN BROOKS
Appeal from the Criminal Court for Sullivan County No. S43,678 Phyllis H. Miller, Judge

No. E2002-02040-CCA-R3-CD July 10, 2003

Th e defendant, Duane Brian B rooks, was convicted of first degree murder and senten ced to lif e imprisonme

nt. In thi s appeal , the defendant asserts that the trial court erroneously instructed the jury
as to the culpable mental states for first and second deg ree murder and fa

iled to provide an instruction on causa

tion. Be cause it

is our vie w that any

error w ith reg ard to the ju ry instructions
can be classified as harmless beyond a reasonable doubt, the judgment of the trial court is affirmed. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

G ARY R. W ADE , P.J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and J AMES C URWOOD W ITT , J R ., JJ., joined. Stephen M. Wallace, Assistant Public De fender , for the

appella nt, Duane Brian B rooks.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry , Assistant Attorney Gene ral; and Barry P. Staubus, Assistant District Attorney Genera l, for the appellee, State of Tennessee.
OPINION

On January 17, 2000, the victim, Carol Hendrickson, disappeared from her home. Later, her body was discovered inside her car, which was submerged in Fort Patrick Henr y L ake in Sullivan Co un ty. She had been stran gled to d eath. The defendant, who was the victim's foster son, admitted the ki llin g. At trial, the proof established that when the victim did not arrive for work as scheduled

on January 17, her co-worker, Nancy Burgess, telephoned the victim's re sidence. After r eceivi ng a busy signal, Ms. Burg ess telephoned the victim's son s, Kevin a nd David Hendrickson, in an unsuccessful effort t o ascer tain the victim's w

hereab outs.
David Hendrickson, who initially knew the defendant fr om scho ol, testified that the defendant came to l ive wi th the Hendrickson family a s a foster child when the defendant was-2-

seventeen. He recal led that on the morning of his mother's disappearanc e, one of the victim's coworkers notified h

im that the

victim had

not arriv ed for w ork. Afte r telephoning the victim and receiving a busy signa

l, David Hendrickson and his wife, April, drove to the victim's house. When they arrived, they

noticed tire tracks next to t he sidewal k and discovered that the victim's car was miss ing. Inside the residence , they noticed that the c offee table and a rug ha d been moved, a telephone was missing, and some Christmas presents had been taken. The victi m's purs e was als o missing and her dog, which was normally unrestrained, was shut inside a room.

On th e n ex t d ay, David He ndrickso n and his si

blings g athere d at the vi ctim's h ouse to dis cuss her disappearance. When the defendant arrived, he asked them whether they thought he had killed the victim and stated that the victim would "be okay ." There were scratches on the defendant's face and neck, which the defenda nt cla imed to ha

ve rece ived duri ng a fig

ht. A new t

attoo wason his forear m.
Alicia Hendrickson, the victim's daughter, testified tha t th e victim had informed the defendant that she hadaddedhim as a beneficiary to her life insurance policy so that he would feel like a member

of the family. She rec alled that although the defendant had traditionally celebrated Christmas with the H endrick son family , he ha d not done s o the C hrist mas ju st bef ore th e vict im's death. She stated that

all of the family members purc hased presents for the defendant, which the victim kept at her house. She noted that a number of items, including several pieces of jewelry a nd a coin collection, were missing from the victim's house. The victim's high school ring, which had been k ept in a lock box, was al so mi ssin g. According to Ms. Hendrickson, when the defendant arrived at the victim's residence on the day after her disappearance , he said, "Thepolice think . . . that you think I

killed your mom." Afte

r informing the defenda

nt t hat she did, in fact, believe he had killed the victim, the defendant responded, "I'd kill my self first." After seeing scratches on the defendant's neck, she pulled his shirt down and saw "nothing but scratches on his che st."

Kevin Hendri ckson , the v icti m's oldest son, testified that after the victim's disappearance , he attempted to locate the defendant, whom he had not seen in a y ear, but was unable

to do so. During the meeting

at the vic tim's hou se the following day , he heard the defendant say , "I can't believe you all think that I killed Mom." When Kevin Hendrickson commented tha t only the defenda

n t' s Christmas present s and birthday prese nts had been taken, the defendant denied being responsible for the theft but acknowledged that he had bee n at the victim's residence the night befor e he r disappearance. The defendant claimed that he had g one to the residence to talk to the victim about
a problem he was havi ng with his girlfriend. Kevin Hendrickson testified that the victim did not approve of the defendant's g irlfriend. Gay Vern Moore, pay

roll and per sonnel ma

nager for Sulliva

n County , testifie d that the victim
was a county employ

ee. According to Ms. Moore, the victim had a life insurance policy

in the amount of $43,00 0.00 that w as part o f her em ploy ment bene

fits package. The

defendant was one of th e n am ed be ne fi ci ar ie s o f t he po li cy.-3-

Lieutenant Reece Christian of the Sullivan County Sheriff' s Department, who investigated the victim's disappearance, questioned the defendant and his friend, Jared Fagert. At that time, the defendant gave a statemen t wherein he ack

nowledg ed being

at the vic tim's re sidence

until 4:00 a .m. on the day before her disa ppeara nce but de nied either harm

ing the v ictim or ta king the missing it

ems. The defendant

told the lieutenant that he had received the scratche s to his face and neck during an altercation at a Johns on City bar. After the interview, Lieutenant Christian interviewe d a number of the defend ant's friends in an unsuccessful attempt to verify the defendant's claim that he had bee n injured in a bar fi ght.

Several days later, L

ieutenant Christian received a message from the de fendant : "This is Duane Brooks. I want

to know wh at the hell's go ing on. I 've be en stripp ed of all my friends and I want to talk to you." The lieutena nt and another officer went to the residence where the defe ndant
was staying a nd saw Fa gert' s car pa rked beh ind the hou se. The d

efenda nt and Fa gert a greed to separa te interviews at the Sheriff's Department and on this occasion, the defendant admitted that he had not been in a bar f

ight but claimed that he h ad been injured during the robbery of another individua l. He also asked

if t he police had determined whether the victim's c redit cards had been used.

As part

of his investigation, Lieutenant Christian discovere d a number of items takenfrom the victim's home in an area near For t Patrick Henry L

ake. It appear

ed that someone had

attempted to burn the

m. The vic tim's hig

h school r ing was among th

e charr ed rema ins.

Detective Joey

Strickler , who ques tioned the defenda nt shortly after Lie utena nt Ch rist ian's interview, testified that after waiving his rights, the defendant

admitted t

hat he ha d killed the

victim and dumped her body in the lake . The defendant acknowledge d that Jared Fagert dropped him off
near the victim's home at approximately 2:00 a.m. The victim, who was dressed in her pajamas, let him inside but , accor

ding to th e defendant, bec ame angry when she learned that he was dating a girl of whom she did not approve. He claimed that when he tried to lea ve, the victim

grabbed his arm and he "tur

ned arou nd and sta rted cho king he r with [his] hands." The defendant asserted that he had been involve d in a sexua l relationship with the victim in the past, but denied having any sexual contact with the victim on the night of her death. The defendant a lso confessed that he "reached down between the sofa and chair and got . . . a cor d or a rope and wrapped

it around her neck and pulled it. I used both hands to pull it. She wasn't fighting me when I put the cord around her neck. . . . I believe she was de ad."

The defend ant st ated t hat he carrie d the b ody to th e backs eat of t he vic tim's car and returned to the house, taking her purse, cash, a lockbox, s ome jewe lry , a cordl ess phone, and some Christmas present s. He also a

dmitted usi ng one o f the vic tim's cr edit c ards t o purc hase gas olin e for Fage rt's car and burning the remaining items near the water. He stated that he drove the victim's car to the edge of the lake , rolled the w indows down, and then "got out of the car and put the c ar in drive." According to the defenda

nt, "[t]he c ar floa

ted a little bit over to

the right about twenty

yards and the

n it went down." He stated that Fag ert then picked him up and the two watched the ca r sink-4-

underne aththe water. On the following day , the defendant and Fage rt paid for matching tattoos from the cash taken from the victim's purse.

Allen Linko

us, coo rdinator for the Sullivan County Sheriff' s Office Underwater I nves tigation Team, discovered the victim's car during a n underwater search of For t Patri ck Henr y L

ake. According to Linkous, the car was upside down in thirteen feet of water a pproximate

ly sixty-six feet from the shore . The veh

iclewas removed from the water by wrecker. Divers also found a metal lockbox a couple of miles from where the victim's car wa s discovered.

Dr. Ellen Walle

n, who per

formed a n autopsy , testified that the victim died as a result of "asphy xiadue to man

ual and li gature

strangulation." She explained that t he body wa s well-preserved because it had been submerged in c old water since her death.

I The defendant contends that the state's burden of proof was lessened by the inclusion of an
erroneous definition of intentional. He claims that because first deg ree mur der is a result-of-conduct offense, the trial court erred by providing the statutory definition of intentional that relate s to natureof-conduct

offenses, thereby

depriving him of the right to trial by jury . The state concedes that the trial court should not have provided the nature-of-conduct de finition of intenti onal but a sserts that the err or is har mless bey ond a rea sonable d

oubt.

The trial cou

rt has a d uty "to give a co mplet e charge of the law applicable to the facts of a case." State v. Harbison , 704 S.W.2d 314, 319 ( Tenn. 198 6); see also Tenn. R. Crim. P. 30. "[The] defendant has a constitutional right to a correct and complete charg e of the law." State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). Our law requires that all of the elements of each off ense be described and defined in connection with thatoffense. See State v. Cravens , 764 S.W.2d 754, 756 (Tenn. 1989). Jury instructions must, how ever , be rev iewed in th e cont ext o f the o verall charge rather than in isolation. See Sandstrom v. Montana , 442 U.S. 510 (1979); see also State v. Phipps , 883 S.W.2d 138, 1 42 (Tenn . Crim. App . 1994). A charg e is preju dicial er

ror "if it fails t o fairl y submit the legal issues or if it misleads the jury as to the ap plicable la w." S tate v. Hodges , 944 S.W.2d 346, 352 (Tenn. 1997). Any omission in the instructions in reference to an element of the offense which might lessen the burden of proof placed up on the st ate is constitutional error and requires a new trial unles s t he error is harmless beyond a reasonable doubt. State v. Walker , 29 S.W.3d 885, 893-94 (Tenn. Crim. App. 1999). Here, the trial court provided the following instructions reg arding first degree mur der:

For you to find the

defenda nt guilty of this off

ense, the St ate must have proved bey ond a rea sonable d

oubt the e xistence o f the foll owing e ssential e lements: (1) that the defendant unlawfully killed the alleged victim; and (2) that the defendant acted intentionally ; and (3) that the killing was premeditated.1 "[A] person act s knowin gly w ith respect to th e conduct or to circumstances sur rounding the conduct when the person is aware of the nat ure of the conduct or that the circumstances exi st." Tenn. Code Ann. § 39 -11-302(b).
-5- A person a

cts intentionally with respect to the nature of the conduct or to a

result of the conduct when it is the person's conscious objective or desire to eng age in

the conduct o r cause the result.

A premeditated act is one done after the exercise of reflection and judg ment

. Premeditation means that the intent to kill must hav e been form ed prior to the act itself. It is not

necessary

that the purpose to kill preexist in the mind of the accused for any definite pe

r iod of ti me. The mental state of the accused at the time he allege dly decided to kill must b e carefully

considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation. If th

e desig n to kill was f

ormed wit

h premed itation, it is immaterial that the acc used m ay have been in a st ate of p assio n or ex citem ent wh en the design
was car ried into e

ffect. Further

more, pr emeditat ion can be

found if t he decis ion to kill is first formed during the heat of passion, but the accused commits the act after the passion has subsided.

In State v. Pa

g e , 81 S.W.3d 781 (Tenn. Crim. App. 2002), a panel of this court held that because second degree murder is a result-of-conduct offense , the trial court erred by including the nature-of-cond

u ct and nature-of-circumstances 1 definitions of knowingly. F urther, the panel determinedthat the error could not be classified as harmless bey ond a reasonable doubt because the defend ant's mental state was a contested issue at trial. Id. at 789-90 . In o ther ca ses addr essing t his issue, this court has determined that error with rega rd to the definition of

the culpa ble mental sta

te may qualify as har

mless beyond a re asonable doubt where mens rea is not a disputed issue at trial. See, e.g. , State v. Th

eron Da vis , No. W2002-0044 6- CCA-R3-CD (Tenn. Crim. App., at Jackson, May 28, 2003).

As indicated, the defendant was convicted of first de gree premeditated murder, wh ich requires that the d

efenda nt act inte nt io na ll y. In State v. A

ntoinette Hill , No. E2001-02524-CCA-R3- CD (Tenn. Cr

im. App., a

t Knoxville, Dec. 13, 2002), the defenda nt, who wa s convict

ed of fir st degree murder, complained

that the trial court erroneously provided the nature-of-conduct definition of intenti onally . A panel

of this court determined that the trial court should not have provided the natur e-of- conduct

definition of intentional because first degree pr emeditated murder, like second degree murder, is a result-of-conduct offense. The pa nel ruled, however, that because the defendant had been co nvicted o f first de gree m urder, w hic h re quires a

finding that the d

efenda nt acted with premeditation, the err

or could b e classif

ied as ha rmless bey ond a rea sonable doubt. Id. , slip op. at 6.
Here, the defendant never asserted that he acted other than

intentionally when he killed the victim and insteadasserted that he did not act with premeditation. In fact, during closing argument defense counsel conceded that the defendant killed the victim and stated, " It was an intentional act."-6-

Further, by i ts ve rd ic t, th e j ur y in this ins tance c oncluded that the d

efenda nt acted with premeditation, that is to say that he display ed a previously formed de sign or intent to kill. See State v. West , 844 S.W.2d 1 44, 147 (T enn. 1992 ); Antoinett e Hill , slip op. at 6. Implicit in a finding of premeditation is that it was the defendant's desire to cause the result of his conduct, i.e. the death of the victim. Because the jury determined that the defendant acted with the design to kill, it is our view that the inclu sion of the

nature- of-cond

uct defi nition of in

tentiona l would be

harmlessbeyond a reasonable doubt. See Antoinett e Hill , slip op. at 6.

The defenda

nt also contends that the trial court erred by providing the nature-of-conduct and natu re- of-circumstances definitions of the culpable mental state of knowing in its instructions on seconddegree murder. He asserts that the erroneous definition compounded the trial court's error withregard to the erroneous def inition of intentional. As indicated, the defendant conceded that he acted intentiona

lly. Additiona

lly, the jury

necessa rily determin ed that the defendant act e d wi th premeditation when he killed the victim. It is our view th at a finding of premeditation encompasses
a finding that

the defendant acted knowingly . In consequence , any err or with regard to the

definition of knowing would qualify

as harmless beyond

a reasonable doubt. See id. ; see also Page , 81 S.W.3d at 789.

II Fi na ll y, the de fendan t, cit ing State v. Farner , 66 S.W.3d 188, 206 (Tenn. 2001), asserts that the trial court committed reversible error by failing to provide a jury

instruction on causation. The state subm its that the cau se of the victim'sdeath wa s not conte sted at tr ial and th us any error is harmlessbey ond a rea sonable d oubt.

In Farner , the defendant was convicted of criminally negligent homicide and

other offenses
as a result of his participation in a drag race with the victim. Our supreme c ourt ruled that "causation is an eleme

nt of eve ry homicide offense and the jury

should be so instructed." The high court went on to say, however , that "[i]n the vast majority of cases, c ausation

is not dispu

ted, so omitting this ins truction would be con sidered harm less error." Id. Here, the defendant admitted strang ling th e victim, placing her

dead body in her

car, and rolling the car into the lake. The victim'scause of

death
was not a conteste d issue at trial. I n conseq uence, the trial

court' s failure

to instruc t the jury

as to cause of death qualifies as harmless bey ond a reasonable doubt. See id. Accordingly , the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE