### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J anuary 8, 2002 STATE O F TENN ESSEE v. ROBIN D AVIS Direct Appeal from the Criminal Court for Shelby County Nos. 99-05481, 99-00752 John P. Colton, Jr., Judge

No. W2000-03137-CCA-R3-CD - Filed March 25, 2002

The defendant was convicted of first degr ee premeditated murder and theft over $1000, rec eiving a life sentence for the mur der conviction and a consecutive two-year sentence for the theft conviction. Following th e denial of his motio n for a ne

w trial, he filed a

timely noti ce of ap

peal to this court. In addition to challenging the sufficiency of the evidence as to his murder conviction, he argues that the trial court erred by allowing the prosecutor to misstate law during voir dire; in not allowing defense counselto question potential jurors about their personal experiences with crime; in allowing h

earsay evidenc e to be prese

nted at tr ial; in allowing the State to introduce evidence of uncharged

crimes; and in allowing the prosecutor to make improper statements during closing argumen t. Based u

pon our re

view of th

e recor d, we af firm the j udgment of

the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined.
Leslie I . Ballin, Me

mphis, Ten

nessee, for the a

ppellant , Robin Dav

is.
Paul G. Summers , Attorne y Gener al and Re

porter; J. Ross Dyer , Assistan t Attorne y Gener al; William L. Gibbons , Distric t Attorne y Gener al; and Lo

rraine Craig, As si stant District Attorney General, for the appellee, State of Te nnessee. OPINION
The defenda

nt, Robin Da

vis, was convicted by a Shelby County Criminal Court j ury of fi rst degree premeditated murder for killing thevictim, fifty-seven-year-old Carroll Holman, and of theft of prope rty over $1000 but under $10,000, for stealing the victim’s 1984 GMC pickup truck. The following issues ar e prese nted in the

defenda nt’s appe al:
I. Whe ther the trial court erred during voir dire by allowing State’s counsel to tell the potential jurors that premeditation-2- can be formed

in an instant and that the burden of proof is on the Defendant to prove self-defense ; II. Wh ether

the trial court erred during voir dire by refusing t o allow defense counselto question potential jurors about the ir persona l experi ences w ith crime s; III. Whether

the verdi ct was contrary to the evidence that was adduced at trial in that

the evidence, considered in its totality, preponderated

in favor of the innocence of the accused rather than his gu

ilt;
IV. Whethe r

the trial court er red by allowing Stat

e’s witne ss, Eunice H olman, to

testify to two distin

ct hear say state

ments without an evidentiary exception;
V. Whether

the trial co ur t erred

by allowing the State to introduce evidence of other crimes for which the D ef endant was not charged, where the Defenda ntwas found at [ the] time of his arre st in possession of a brown bag containing marijuana, scales a

nd gloves, and wher

e Defe ndant ga ve a formal statement to police wherein he made r efere nce to those items;
VI. Whether

the trial court er red by all owing the State to make improper statements during closing a rgument, where counsel was allowed to describe voluntary manslaug hter as when a p arent reacts after witnessing their child being raped, a n d wh ere co unsel implied that Defendant had already given a statement although he did not testify at trial.

FACTS
On the morning of May 16, 1998, t he victim and his wife were awakened by the sound of the engine s tarting in their pickup truck. Looking out the balcony of their bedroom, they saw the defendant sitting in the driver ’s seat, backing t he tr uck o ut of their

drivewa y. When th

e victim yelled, the defendant got out of the truck and ran. Telling his wife to stay inside, the victim took off in pu rsuit, driving the couple’s Toyota Corolla and taking his pistol with him. Soon thereafter, neighbors heard gunshots and discovered the victim on the ground beside the open driver’s door of his car, dying from a gunshot wound to the chest. The defendant admitted in a statement to police that he had sh ot the vic ti m, but claimed t hat it was only after the victim had first tried to rob and shoot him.-3-

The defendant’s trial was held from January 18-22, 2000. The victim’s widow, Mrs. Eunice Holman, testified that she and the victim were awakened by the sound of their truck’s engine at 6:45 or 6:46 a.m., and that it was approximately fifteen minutes later, as she was walking down the street in search of her husband, when someone came to tell her that he had been shot. She had been aware that her husband owned a gun but had not known w

here he kept it, a nd had not

seen him r

etrieve it as he left the house. According to Mrs. Holman, the victim was not known to carry a weapon. She testified that the d

efenda nt was dre ssed in a w

hite shirt and blue jeans, and was carryinga brown bag under his arm. On cross-examination, she said that she had not telephoned the police whe n she saw the defendant breaking into the truck.
Edward L. Matthews, Jr., the victim’s neighbor, testified that he was putting oil in his car on the morning of

May 16, 1998, w hen the vi ctim, dre ssed in a n ightshirt a

nd nightca

p, pulled u

p in front of his hous e. The vi ctim said t hat a bald-he aded man

dressed in a white T -shirt and dark pa nts had just tried to steal his truck, and asked if he had seen anyone matching that description. Matthews repliedthat he had not. The victim then said that if Matthews saw the man, he sho uld n ot do anything other than call the police. Matthews testified that he spoke with the victim for four or five minut es and that the victim did not appear to be enraged. As he talked with the victim, he saw a pistol lying on the passenger seat of the victim’s car. A few minutes after the victim drove away, Matthews heard “about seven shots.” He describe d the sounds he heard as “pow-p o w, pow-powpow-pow[,]” indicating that he heard two gunshots, followed by a slight hesitation, and then more gunshots. After hearing the gunshots, he drove his car to the intersection of Finley and Boeingshire, where he discovered

the victim lying in the street beside his Toyota. The driver’s door was open, and the left rear

passenger window was shattered. Matthews said that the victim took one breath, “and that was it.”
On cross-e

xaminatio n, Matthe ws ackno wledged th at the victim had

not asked

him to immediate

ly telephone the police. He fur the r acknowledged that, in a statement to police, he had said that he had at first thought he heard “about ten shots[ .]” On r

edirec t, Matthew s testifie d that it is possible to

hear ec hoes fro m a gunshot , and that it could have been more

or less tha

n seven shots that he heard fired. Roger Brown, who lived at 1986 Finley, testified that he and his wife were awakened on the morning of the murder by a series of gunshots that sounded as if they were coming into their front room. He said that

he hear d one guns hot, which woke him, followed by a hesitation, and then four more shots, which sounded “like pow, pow-pow-pow-pow.” From their kitchen window, he and his wife could see a vehicle in the street outside their house, a nd a man lying on the ground beside it. After calling 91 1, he ran outside, where he found the victim lying face down be side the open driver’s door of

his vehicle. The victim did not appear to be breathing and had no detectable pulse. Brown said that he looked in the victim’s car as he waited for the police and ambulance to arrive, and saw a pistol lying on the passenger seat. On cross-examination, Brown acknowledged that he could not be sure exactly how many gunshots he heard.-4-

Vincent Gordon, w

ho lived w ith his godmother at 4 403 Boeing shire, te st ified that he was awakened by the sound of “seven to eight shots” on May 16, 1998. When he looked outside, he saw the defendant, who was carrying a brown bag and a

gun, climb

a fence into a neighbor’s yard and then run through the yard and down Boeingshire toward Shelby Drive. After watching the defendant run down the s treet, G ordon we nt with his godmother to the corner of Finley and Boeingshire, where he saw the victim lying facedown on the ground beside the open driver’s door of his vehicle. He said that the left rear passenger window was sha ttered, and that he saw a gun lying on the fro nt passenger seat of the vehicle. On cross-examination, he ac knowledged that in the statement he gave to police immediately after the shooting, he had estimated the number of gunshots he had heard as “[n]ine to ten.”
Gordon’s godmother, Joyce Franklin, testified that she was on the way to her laundry room on the morning of May 16, 1998, when she was startled by the sound of “a lot of gunshots[.]” When she went outside, she saw a man across the street carrying a brown ba g and a nickel-plated revolver “darting in and out from house to house[,]” and then h eading dow n Boeingshire toward Shelby Drive. She later directed a police office r to the area in which she had seen the man run. Memphis Police Officer Robert Lee Thompson testified that he discovered the de f endant, dressedin a white t-shirt “spackled with blood,” walking southbound on Boeingshir

e approx imately 100 yards fr

om Shelby D rive, an d that he p laced hi m under arrest. When the defenda nt asked why he was being arrested, Officer Thompson told him that it was beca use he fit the description of a shooting suspect. Officer Thompson testified that the defendant first tried to convince him he had the wrong ma

n, and the

n told him tha

t th e victim ha d tried to rob him. On cross-examination, Officer Thompsonacknowledged that the defendant had said the victim had tried to r ob and shoot him, and that was the reason he shot the victim. Officer Thompson further testified that he f ound marijuana and money in the defendant’s po cket, and a pistol and a brown bag containing marijuana underne atha tract or trailer truck, approximately ten or fifteen fe et from where he arrested the defendant.
C aptain Phi l Nason, a crime scene investigator who processe d the scene of the shooting, testified that there was blood on the side of the driver’s seat of the victim’s car, on the bottom of the seat, and on the headrest. He also found blood on the outside of the car, smeared down the side of the vehicle near the gas tank, and on the ground beside the driver’s side rear whee l, near the victim’s bloody nightcap and house shoe. A si x-shot .35 7 Smith and Wesson revolver, with six empty casings in the cylin der, wa s lying on the front p assenge r seat. Captain Nason could not determine when the weapon had last b een fir

ed. To his knowledg e, a guns h ot residue tes t was not performed on the victim. He testified that the window of the driver’s door of the vehicle wa s down, and that he had not finge rprinted the pistol. Memphis Fi re Department Paramedic Bradford Denham testified that the victim was not breathing and had no pulse when he arrived at the sce ne. Emergency wor

ke rs performed resuscitation procedu

res and t ranspor ted him to the hospital, but the victim’s breathing andheartbeat were never restored.-5-

Officer Shan Alan Tracy of the Crime Scene Unit identified the brown bag a nd the pistol that were recovered from underneath the tr actor trailer truck. He testified that the brown bag contained, among other items, 16.7 grams of marijuana, and that t he gun wa s a six-sh ot Smith and Wesson .38 revolver that contained five spent casings and one live round.
Lieutenant

Edward C ash testif

ied that th

e defendant was brought to his office on May 16, 1998, where he read him his rights and had him sign a waiver of rights for m befo re taking his statemen t. Lieutenant

Cash identified the defendant’s signed statement, which was introduc ed into evidence , and read it aloud for the jury. When asked why he shot the victim, the defendant explaine d:
I was walking down Boeingshire and he pulled up in a blue

like faded li

k e purple newer mo del small c ar like N issan or T oyota Tercel and he a sked me what was my name and what was I doing and a sked me to stop. I stopped and he pulled his pistol and I started running and he started shooting. I fell, got up and seen the blood on my shirt and I thought I had been shot. I got up and opened my eyes and he was still shooting. I closed them and I opened them back up and I had my gun in my

hand and like a rush, I was shaking and the gun was smoking.
Later in his statement, when asked why he thought the victim shot at him, the defendant answered, “I didn’tfeel he had a reason but I did try to steal his truck.” The defendant explained that he had needed transportation because he f eared he would be robbed for the money a nd marijuana that he was carrying. Sergeant Sammie Ha

rold Ballard t estified he was pr

esent wit h Dr. O.C. Smith and Paule tte Sutton on May 18, 1998, when they examined the victim’s vehicle at the Crime Scene Office

. He said that both th

e driver ’s and fr

ont passe nger’s w indows of

the vehic le were down, and agreed that it would have been possible for someone in the driver’s seat to shoot out either side without doing damage to the vehicle.
Dr. Cynthia Gardner, the Assistant Med ical E xaminer for Shelby County, performed the autopsy of the victim’s body. She testified that the victim was killed by a dis tant gunshot wound in which the bullet entered his body on his left upper arm, traveled through hi s chest, b

reaking his first rib, seve ring his left caro tid arter

y, and lac erating

his esopha

gus, and c ame to rest in a muscle on the right side of his neck. The victim also suffered abrasions on his nose, brow, chee k, upper lip, and chin, consistent with th e patter n caused by a pers on who fa

lls on his fa

ce while unconsc ious. Dr. Gardner estimated that a person with a severed carotid artery would lose consciousness in “under a minu te[,]” an d that someone with the type of injuries that the victim suffered would, without medical interve

ntion, die within a f

ew minute s. From her

examina tio n of the wo und track, she determinedthat the victim’s arm was d own at his side when he was shot. She could not, however,1 Ro yse te stif ied that the mutil ated bull et was “consi stent in desi gn” with eit

her Remington or Winchester ammunition. O f the five spent casi ngs and one l ive r ound in t he defenda nt’s gun, f

our were Fe deral , one wa s Remington, and one was Winc hest er. The spent casi ngs i n the vi cti m’s gun were a ll manufact ured by S mit h and Wesson. -6- tell in what position the victim’s arm had been at any time other than the instant he was shot. Dr. Gardner explained that she had not performed a gunshot residue test on the victim to try and determine if he hadfired the pistol because she was aware that the victim had handled a gun, which, in itself, w ould have

caused a positive gunshot re sidue tes t result. Additiona lly, she sa id that since gunshotresidue on the victim’s hands could have come off during the resuscitation efforts that were made on his behalf, the absence of such residue would not nec essarily mean that he had not fi red his weapon. Finally, a positive result could result from his being in the vicinity of a weapon being fired. Accord ingly, Dr. Gardne

r could no t say whe

ther the victim had

fired hispistol. Dr. O’Brian Cleary Smith, the interim Medical Examiner for Shelby County, testified that he recovered two bullet fragments from the victim’s car – one from the doorpost between the front and rear doors on

the right side of the vehicle, and another from the r

ight rea r passen ger door . His investigation led him

to conclu de that bo th bullets came from outside the vehicle. He said that the bulletrecove

red fro m the door

post ente red fro m the left

side of the vehic le, throu gh the left rear passenger door, whi le the bullet recovered from the right rear door entered from the right side of the vehicle. Based upon his observation and participation in the autopsy of the victim, Dr. Smith agreed that the victim’s arm had been down at his side at the moment he was shot. He acknowledged on c ross-ex amination that he could not determine in what position the victim’s arm had been at any other time.
Tennessee Bureau of Inves tigation Fir earms Expert Robert Daniel Royse conducted tests on the weapons, bullets, and bullet casings involved in the shooting. He testified that he had been ab le to conclusi vely determine that the bullets recovered from the victim’s body and from the right rear door of the vehicle had been

fired from the weapon that was identified as the defendant’s. The third bullet, reco vered from the right rear door trim, was too mutilated for him to conclusively identify its source, and he had been unable to exc lude either gun as having fi red that bullet. Th

e bullet w as, however, inconsistent with bullet casings found in the victim’s gun, while consiste nt with at le ast some of the casings found in the defendant’s gun. 1 Although Royse could deter mine that the victim’s gun had not been c leaned s ince the last time it

was fired, he could not determine when it had last been fired. According to his testimony, there is no scientific way to deter mine how long it has been since a weapon has been fir ed.
The State’s final witness was Paulette Sutton, an expert in forensic serology and blood stain pattern interpretation. She testified that her examination of the victim’s car and of photographs of the crime sceneled her to conclude that the victim was seated in an upright position in the driver’s seat, with the driver’s door closed, when he was shot. Because the victim would have been bleeding “profusely” from his wound, andshe found no evidence of blood anywhere inside the car other than2 T.P.I. - Crim . 7.01 (b) (5 th ed .) states, in p art, that “ [p]re me ditation me ans th at the in tent to kill must have been

formed prior to the act i tself. It is not necessary that the purpose to kill pre exist in t he mind of t

he accus ed for any definit e period of time.” -7- on the driver’s seat and on the inside of the driver’s door, she concluded that the victim ca me direc tly out of the driver’s door after he was shot. No witnesses were presented on behalf of the defendant.
ANALYSIS
I & II. Voir Dire
The defendant contends in his first two i ssues tha t the tria l court e rred by t he manne r in which it al lowed voir dire of the jury to be conducted. He argues that the tr ial court allowed the prosecutor

to misstate the law by telling potential jurors that premeditation may be f ormed in an instantand that the burden t o prove self-defense was on the def endant, and improperly denied defense counsel’s request to question potential jurors about their personal experienc es with crime. Withoutconceding that the prosecutor misstated the law, the State argues that any prejudice which may have re sulted fr

om the pro secutor ’s remar ks w as cured by the trial court’s instructions to the jury. The St ate f

urther argues that the trial court did not abuse its discretion in limiting the scope of defense counsel’s questions to the potential jurors. We agree with the State.
The purpose of voir dire is to ensure that jurors se ated at tr

ial are c ompetent , unbiased, and impartial. See State v. Mann , 959 S.W.2d 503, 533 (Tenn. 1997), cert. denied , 524 U.S. 956, 118 S. Ct. 2376, 141 L. Ed. 2d 743 (1998). The trial court is granted broad discretion to decide the manner in which v oir dire will be con ducted, a nd its dec isions in thi s regar d will not be disturbed on appeal absent a showing of abuse of discretion. See State v. Stephenson , 878 S.W.2d 530, 540 (Tenn. 1994). We review the defendant’s first two issues, therefore, under an abuse of discr etion standard. A. Alleged Misstatements of Law
As his first

issue, the defendant contends that the prosecutor erroneously informed potential jurors during voir dire that premeditation may be formed in an instant, and that the burden of proof to prove self-defense is on the defenda nt. He argues that the pro secutor ’s s tatement s “clea rly prejudiced” his case, and asserts that neither misstatement wa s cured by the trial court. During voir dire, the prosecut or read , although not identifying it as such, the pattern jury instruction then in

effect for “premeditation.” 2 Following her reading of the pattern jury instruction, the prosecutor the

n made comments whi ch drew objectio ns from the

defenda nt:-8- So you have an intent to kill that’s done after you make a decision to do it. You think about it, you decide to do it, and you take the act to do it. That is premeditated murder.
And there are a couple of things in there I’d like to point out to you. One, the decision to kill does not have to exist for any presc ribed time. It c ould be weeks, it could be hou rs, it c ould b e minutes, it could be

seconds, as long as you have made a decision and then you take the act to do it. MR. BALLIN: Judge, may we approach?
THE COURT : Yes. (A bench conference wa s held as follows.)
MR. BALLIN: I

wan t to voice an objection to this line of questioning. It’s my recollection–it’s been a while since I rea d Mack Brown, but Ithink Mack Brown did away with premeditation being formedin an instant as Ms. Craig is describing it. I wanted to voice that objection now.
MS. CRAIG: Well, Jud

ge, I’d j ust say tha

t actuall y what the

case says is exact

ly that, there’s no prescribed amount of time and that’s all I’m saying. As long as there is time to make a decision and to act on it and th at’s all it says.
MR. BALLIN: I don’t

have any objection with that comment but it was going further to get it down to seconds. It’s up to thejury to decide.
MS. CRAIG: It i s up to th e jury, Judge, but there’s nothing improper in what I said.
THE COURT: We

ll, I’m goin g to hit

the jury probably several times before

the trial is over wi

th th at the fa

ct that what

y’all say is good and nice

and all that but the

y take the law from me. So I think we can cure it that way. And you can come back on your voir dire. MS. CRAIG: Thank you, Judge. (Said bench conference was c oncluded.)-9- MS. CRAIG: So as I was saying, it does not have to exist in the mind of the killer for any l ength of time prescribed by law. Does everybo dy under stand tha t? (No response.)
As long as you can thi nk abou t it, make a decision to do it, and then do it.
V ery shortly thereafter, as the prosecutor discussed the possibility that the jury would be charge d on self- defense , the follo wing exc hange oc curred :

Includedin a plea of not guilty may be the defense of selfdefense. And the ju dge is goin g to instruct you on self-defense. And I am not going to go into everything on that charge. So if the judge instructsyou on self-de

fense, t here ar e going to b e sever

al things, several hurdles someone has to overcome who is claiming selfdefense. It’s not a – MR. BALLIN: Objection, Your Honor.
THE COURT : All right. MR. BALLIN: May we approach? THE COURT: Yes, sir. (A bench conference wa s held as follows.)
MR. BALLIN: I object to that question as a misstatement of the law. The burd

en of pro of is alwa

ys on the Sta

te a nd if the p

roof is such that the court

decidesthat it is fa

irly rais ed, then t

he State m

ust prove really that it did not occur in self-d efense beyond a reasona ble doubt. And that’s the law.
MS. CRAIG: No, that’s not the law. If he’s relying on a defense, there has to be credible proof in the record t o that defen se. I don’t have to prove the absence of self-de fense. I don’t hav e to prove the absence of any def

ense. I don’t have to prove the absence of alibi defense.
I mean, you can’t just say–and a l l I’m going to say about selfdefense, keeping in mind the judge’s instruction as to your ta king all-10- of these matters under advisement, is therehas to be proof raised that there was forc e used by

the victim , that his actions wer e reaso nable under the circumst ances, and he didn’t provoke it. All three things listed, one, two, three in that charge.
THE COURT: Well, I think we might be gettin g a little b it into argument here. Using the law and telling them about the law and getting into argument because we don’t knowwhether I’m going

to charge self-defense– MS. CRAIG: Right. And that’s what I said to them, Judge.
THE COURT: And if you try to restrict the jury at this point, it’s going to be diff

icult. You

might just

g et into the fact that it may or may not be charged. MS. CRAIG: All right. And –
THE COURT: And generally what it’s about. I think you might needto save that till final argument. If the court does desire or does in fact charge

it, we ca n get into it . At this point this is getting a little bit outside of voir dire on that type situation. (Said bench conference was c oncluded.)
MS. CRAIG: And if [sic] the judge may, as I said earlier, may or may not charge self-defense, and if he does charge self- def

ense, I think in his charge will be things that have to be raised by the proof before you can find someone not guilty by self-defense.
MR. BALLIN: Same objection. That’s an improper comment of the –
MS. CRAIG: Jud

ge, it is not. And I would appreciate going up to the bench instead of

doing wha

t is comple

tely impro

per in accusing me of improper conduct in front of the jury.
THE COURT: All right. Here’s what we’re going to do. Now, lawyers we’re going to do this. I’m going to let the State go ahead and say what they want to say but, juro rs, the statements and argumen ts of these lawyersare inte

nded tohelp you in

understanding the evidence and applying the law in the case bu t th ey are not evidence. And if any statements were made that you believe ar e not-11- supported by the evidence, you may and should disregard them. Do you understand? (No response.) All right. Go ahead.
MS. CRAIG: Tha

nk you, Jud

ge. And, a

gain, Judg e Colton wi ll instruct you on the

law, and

if he instr

ucts you on something differe ntly than I tell you now, it will be your duty to disregard what I’ve said and to go with what the judge instructs you.
The first specific statement by the prosecu tor durin g voir dir

e to which the defense objected was that “the deci sion to kill does not ha ve to exis t for any

prescr ibed time. It could b e weeks , it could be hours, it could be minutes, it could be seconds[.]”
The defendant argues that the prosecut or’s re ma rks improperly suggested to the jury that premeditation may be formed in an “instant,” ignoring the fact that the prosecutor’s actual statement was, in part, that “the

decision to kill . . . [could] exist for . . . seconds.” However, Webster’s Third International Dictionary 1171 (1993) defines “instant” as “an infinitesimal space of time,” which is clearly less than “s eco nds.” To suppor t his argument, the

defenda nt cites State v. Brown , 836 S.W.2d 530 (Tenn. 1992), in which our supreme court held that the element of deliberation requires “time to reflect.” Id. at 540. However, the defendant’s reliance on Brown is misplaced. The murder statute in effect at thetime of the killing in Brown included elementsof both

premeditation, which our supreme court re cognize d may “ar is e instantan eously,” id. , and deliberation, which the court determined, “ cannot

be formed in an instant.” Id. at 543 (e mphasis in o

riginal) . In orde

r to avoid confusion, and to ensure that juries considered both elements, the Brown court conclud ed that it would be prudent to abandon the jury instruction that “premeditation may be formed in

an instant.” The court explained:

It is consist ent with th

e murder statute a nd with ca se law in Tennessee to instruct the jury in a first-degree murder case that no spe cific period of time need elapse between the def endant’s formulation of the design to kill and the execution of that plan, but we conclude that it

is prudent to abandon an instruction that tells the jury that “premeditation may be formed in an instant.” Such an instruction can only result

in confusion, given the fact that the jury must also be charged on the law of deliberation. If it was not clear from the opinions emanating from thisCourt within the last h alf-ce ntury, it is now abundantly cl ear tha

t the delib eration

necessa ry to esta blish firs tdegree murder cannot

be formed in an instant.
Id. (emphasis in original).3 The act ual j ury char ge was not tra nscri bed in t

he cas e, but

a copy of t

he jury in structio ns w as inclu ded in the techn ical rec ord

. -12- The defendant in the instant case was charged under the statute th at is curr

ently in effec t in Tennessee, which no l o ng er includes the element of deliberation. See Tenn. Code Ann. § 39-13- 202(a)(1) (1997) (defining first degree murder a s “[a] prem editated and intentional killing of another”). The

prosecu tor’s re marks in th

is case o n intent a

nd preme ditation w ere con sistent wit h boththe statutory provision on first degree murder, see Tenn. Code Ann. § 39-13-202(d) (1997) (“It is not nece ssary tha

t the purp ose to kill p

re-exi st in the mind o f the ac cused fo r any def initeperiod of time.”), and with case law. See State v. N ichols , 24 S.W.3d 297, 302 (Tenn. 2000) (recognizing that element o f preme ditation “ is capab le of insta ntaneousformatio n”); Brown , 836 S.W.2d at 540 (“intent (and perhaps even premeditation) may . . . arise instantaneously”). We note further that no claim was made that the trial court did not instruct the jury pr operly as to the homicide charge. Thus, we conclude that the prosecutor did not misst

ate the law a s the def

endant a rgues, bu t, even if this were the case , the err

or was ha rmless. The prosecutor’s remarks on self-defense are more proble matic. Among the elements that th e State must prove beyond a reasonable doubt in order to convict someone of an of fense i n Tennessee is “[t]he negation of any defense to an offense . . . if admissible evidence is introduced supporting the defense[.]” Tenn. Code Ann. § 39-11-201(a)(3) (1997). If evidence exists to warrant an instruction on self-defense, the burden is on the State, and not the defe ndan t, to show that the def endant does not meet the requirements for the defense. See State v. Ro bert Lee Patte e , No

. M2000-00257-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 329, at *41-42 (Tenn. Crim. App. May 3, 2001). In this case, the prosecutor’s initial statement that ther e w ere “several hurdles” for the defendant to overcome could have been interpreted by the jury as p lacing the burden on the defendant to prove s elf-de fense. H owever , any err or that ma y have re sulted wa s immediat ely cured by the trial

court’s inst

ructio n that the jury was not to consider the statements of the attorneys as evidence, followed by the prosecutor’s reminder that the trial court

would provide the appropr iate law. In addition to the trial court’s instruction, which it re pea ted at least once during voir dire, defense counsel later read the venire members the pattern jury instructions onself-defense. At the conclusion of the trial, the trial court repeated that the law was to come from the court and charged the jury on s elf-def

ense, including the appropriate instructions on the burden of proof. 3 We may presume that the jury followed the instructions of the trial court, see State v. Williams , 977 S.W.2d 101, 106 ( Tenn. 199 8), and, doing so, c onclude t hat this iss ue is without merit. B. Questions Allowed on Voir Dire
The defendant raises as hi s s econd issue whether the trial court erred by r efusing to allow defense counsel to question venire members regarding their persona l experiences with crime. Several of the venire members indicated during voir dire that they had been victims of crimes. W

ith no objection raised by the prosecutor, defense counse l elicited from

each of these me mbers spe cific-13-

information about the nature of the crimes, when they had occur red, and how the venire members had reacted, including whether or not the y had cal led the police. During defense counsel’s questioning, one of the venire members revealed tha t, after calling the polic e when he discovered that his house had been burglarized, he had, himself, gone down the street to get one of the men who had perpetrated the crime. When defense counsel asked the potential jury member if he had taken a gun with him, the prosecutor objected, arguing that defense c ounsel was impro perly at tempting to weave t he fact s of the de fendant ’s case

into his voir

dire. Ask

ed by the t

rial cou rt how far h e intended to go with his questions, defense counsel responded that he was “going to go fur t her[,]” and suggested that the trial court let him ask the members “this question. And that is, if they were the victim of a crime, what is the pre ferabl e respon se, to call the police, [or] take matters in their own hands.” The trial court refused the request , li miting the s cope of d efense counsel’ s question s to “what [the venire members] did when they discove red a crime.”
We find no abuse of

discreti on by the tr

ial cour t in this matter. Although Rule 24(a) of the Tennessee Rules of Criminal Procedure provides that the trial court “shall permit questioning by the parties for th e purpose of discovering bases for challenge f or cause and enabling an intelligent exerci se of pere

mptory ch allenge s[,]” the trial c ourt, in itsdiscretion, “controls the questions that can be asked to k

eep the v oir dire withinrelevant bounds.” Statev. Richar d Hale Au stin , No. W1999- 00281-CCA-R3-DD, 2001 Tenn. Crim. App. LEXIS 162, at *61 (Tenn. Crim. App. Mar. 6, 2001). In spite of

the manner in which the defendant frames this issue on appe al, the record shows that he was allowed to extensively question potential juro rs regardi ng their personal experiences with crime, including what their individual reactions had bee n. The an swers to t

hese and other questions which defense counsel and the prosecutor were allowed to a sk should have been sufficient to reveal an y latent biases or prejudices on the part of the jurors. We c onclude, therefore, that the trial court did notimpermissibly intrude upon the scope of defense counsel’s voir dire examina tion by refusing to allow him to ask prospective jurors their opinion regarding the prefer red response to a crime.
This issue

is without me

rit. III. Sufficiency of the Evidence
As his third issue, the defendant challenges the sufficiency of the evidence in support

of his murder conviction, arguing that the evidence was insufficient for any rational trier of fact to f ind him guilty of premeditated murder beyond a reasonable doubt. He concede s that he fired the shot that killed the victim but asserts that the evidence at his trial, including testimony from wi tnesses ind icating that at least seven shots were fired, supports the conclusion that the killing occurr e d during an exchange of gunfire betwee n himself and the victim, rather than as the result of premeditation and deliberation. The State argues that the evidence at the defendant’s trial, viewed in the light most favorable to the State, was more than sufficient to support his conviction for firs t degree premeditated murder.
When the sufficiency of the convicting evidence is raised as an issue on appeal, the relevant question of the re

viewing c ourt is “w

hether, after viewing the

evidenc e in the lig

ht most fav orable-14-

to the prosecution, any rationa l trier of fact could have f

ound the e ssential e

lements of

the offe nse charged beyond a reasonable doubt.” Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See also State v. Evans , 838 S.W.2d 185 , 190-92 (Tenn. 199 2); State v. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficie nt to support the findings by the trier of fact of guilt beyond a reasonable doubt.”) . This rule applies to findings of guilt based on direct evidence, circumstantial evidence , or a combination of

direct and circumstantial evidence. See State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).
When determining the sufficiency of the evide nce, thiscourt doe s not rewe igh or re evaluat

e the evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. A pp. 1990). All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987 )

. “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:
This well-se

ttled rule rests on a sound foundation. The trial judge and the jury see the witness es face to face, hear their testimony and observe their demeanor

on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibi lity to be give

n to the te stimony of witnesses. In the tr ial forum alone is ther e human atmosphere and the totality of the evidenc e canno t be repr

oduced w ith a writt

en reco rd in this Court. Bolinv. State , 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v . State , 212 Tenn. 464, 370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence wi th which a defendant is i nitially cloak ed and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).
The defendant

was convicted of first degree premeditate d murder, which is defined as “[a] premeditated

and intentional killing of another[.]” Tenn. Code Ann. § 39-13-202(a)(1) (1997). For the purposes of this offense:

“[P]remeditation” is an act done af ter t he exercise of reflection and ju dgment. “Premeditation” means that the intent to kill must have been formed prior to the act itself. It is not necessary that the purpo se to kill pre- exist in the

mind of the

accuse d for any

definite period of time. The mental state of the accused a t the ti me the accused alleged ly decided

to kill must be

caref ully consi dered in

order to determine whether the accused was sufficiently free

from excitement and passion as to be capable of premeditation.-15-

Id. § 39-13-2 02(d). “ ‘Intenti onal’ re fers to a person who acts intentionally with respect to the nature of the conduct

or to a re sult of the

conduct w

hen it is the

person’ s conscious object ive or de sire to engage in the conduct or cause the result.” Te nn. Code Ann. § 39-11-302(a) (1997).
In Tennessee, a

homicide is presumed to be second degree murder, a nd the State bears the burden of proving the element of premeditation necessary to eleva te the crime to first degree murder. See State v. W

est , 844 S.W.2 d 144, 147 (Tenn. 199 2); State v. Brown , 836 S.W.2d 530, 543 (Tenn. 1992). The presence of premeditation is a question of fact for the jury to determine based upon a consideration of all

the evidence. See State v. Suttles , 30 S.W.3d 252, 261 (Tenn.), cert. denied , 531 U.S. 967, 121 S. Ct. 401 , 148 L. Ed. 2d 310 (2000). Premeditation may be inferred from ci rcu mstantial evidence surrounding the crime, including the manner and c ircumstances of the killing. See State v. Pike , 978 S.W.2d 904, 914 (Tenn. 1998); State v. Addison , 973 S.W.2d 260, 265 (Tenn. Crim. App. 1997). The circumstantial evidence of premeditation must, howe

ver, be “ so strong and coge

nt as to exclude every other reasonable hypothesis save the guilt of the defenda nt, and that beyo nd a rea sonable doubt.” State v. Crawford , 470 S.W.2d 610, 612 (Tenn. 1971). The defendant asserts in his br ief that a first degree murder conviction in Tenne ssee requires proof of premed it ation and deliberation. However, as we have previously discussed, deliberation is no longer an element of first degree murder in Tenne ssee. Based upon our review of the record, we c onclude that the evidence in this case wa s sufficient for a rational trier

of fact to find the defendant guilty of first degree premeditated murde r beyond a reasonable doubt. Viewed in the light most favorable to the State, the evidence established that the defendant shot the victim as the victim sat in the driver’s seat of his car, with his gun lying beside him on the passenger seat. Drs. Gardner and Smith b oth testified that the wound track revealed that the victim’s a

rm was down at his side when he was shot. The State’s bloodstain pattern expert, Paulette Sutton, found no evidence of blood on t he gun or o n the passenger seat of the vehicle, as would b e expec ted had th e victim reached over to s et the gun down aft er being shot. Among the circumstances that may be indicative of premeditation are “‘facts a bout the defendant’s prior relationship and conduct with the victim from which motive may be inferred[.]’” State v. Bordis , 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995) (quoting 2 W. LaFave and A. Scott, Jr., Substantive Criminal Law , § 7.7 (1986)) (emphasis in original). Here, the victim’s wife testified that the defendant looked straight up at her and the victim after ge tting out of their truck. The defendant revealed in his statement to police that he recognized the victim as the man from

whom he had tried to steal a truck. Thus, there was sufficient evidenc e to support the State’ s theory tha t with premeditation the defendant shot the victim in order to avoid detection or arrest for his earlier crime.
The defendant contends that the evidence established that he and the victim excha nge d gunfire before the victim’s death, which supports a finding of second degree, rather than first degree, murder. In support of this contention, he cites testimony o f witness es indica ting that a t least seven shots were fi

red, alo ng with the

number of

empty ca sings found in his and th e vict im’s wea

pons. Howeve r, the evidence w ould suppo rt a finding of seve

ral possib le these s.-16-

First, we no te th at, although the State’s firearms expert could determine that the victim’s weapon had not

been cleaned after

its last use, he could not determine when it had last been fired. Thus, all, some, or n one of the spent ca sings in the

victim’s p istol could

have re sulted fr

om shots firedby the victim during the incident. The testimony does not permit a determination to be made in this regard. Furthermore, since none of the witnesses who heard the shooting was ab le to test ify with absolute certa inty re garding the number of gunshots that were fired, the question of whe ther the victim fired an y shot s at all cannot be resolved. Edward Matthews testified that he he ard “about seven shots,” but admitte d that it is p ossible to hear echoes from a gunshot, and that he could have heard more or less than seven shots. Two men who were closer to the scene of the shooting, Roger Brown and Vincent Gordon, were both asleep when the shooting began. Brown, whose home was closest to the scene, thought that he heard five guns hots but admitted that he could not be sure of the exact number. Gordon tes t ified that he heard seven or eight, but admitted that he had ear lier estimated the number as nine or ten. Gordon’s godmother, Joyce Franklin, merely testified that she heard “a lot of gunshots,” without indicating an exact number. This testimony, coupled with the fact that the defe ndant’s a nd the vic tim’s pistol s each c ontained five ca sings, would

have allowed the jury to reasonably conclude that the victim did n ot fire a

t the def endant, and that the defendant shot the victim intentionally and with premeditation.
This issue

is without me

rit. IV. Hearsay Evidence
The defendant next contends that the trial court erre d in allowing two separate hear say statemen ts into evidence. During the State’s case-in-chief, Mr s. Holman test ified tha t the victi m said to her as they were awakened on the morning of his murder, “That sounds like the truck starting up[.]” When lat

er aske d why she h ad left her home a nd gone to

the scene of the shooting, she explainedthat it wa s becaus e a neigh bor told he

r “that a man had beenshot and that he was looking for . . . the family of

the man whose truck had trie d to be stol en.” Defense c ounsel obj ected to both statemen ts as inadmissible hearsay evidence. The trial court overruled the objections, ruling that the victim’s statement fell under the excited utterance e xception to t he hea rsay rule, and that the neighbor’s statemen

t was not o ffe red to prove the truth of the matter asserted. We agree with the State that the trial court’s rulings in this matter were proper. “‘Hearsay’ is a statement, other than one made by the dec larant w

hile testifying at the trial or hearing , offer

ed in evid ence to p rove the truth of th

e matter asserted .” Tenn. R. Evid. 801(c). Hearsay statemen

ts are ge nerally inadmissible at trial unless they fall under one of the recognized exceptions to the hearsay rule. See Tenn. R. E

vid . 802. One s uch exception is the “excited utterance,” defined as “[a] statement relating to a startling eve nt or condi tion made while the declarant was under the stress of excitement caused by the e vent or co ndi tion.” Tenn. R. Evid. 803(2). Our supre me court ha s turned to Tennessee Law of Evidence to explain the “twofold” rationa le for a dmitting thiskind of sta

tement int

o evidenc e:-17- “First, since this exception applies to stateme nts where it

is likely there was a lack of reflection–and potential fabr ication–by a

declarant who spontane ously exc laims a sta tement in r

esp o nse to an exciting event, there is little likelihood, in theo ry at lea st, of insincerity. . . . Second , ordinarily the statement is made while the memory of t h e event is s till fresh

in the declarant’s mind. This means thatthe outof-court statement about an event may be more accurate than a

much later in-court description of it.”
Statev. Gordon , 952 S.W.2d 817, 819-20 (Tenn. 1997) (quoting Cohen, Paine & Sheppeard, Tennessee Law of Evidence , § 803(2).1, at 532 (3d ed. 1995)). Thus, for the victim’s statement in this case to fall under the exci ted utterance exception to the hearsay rule, it must have been made under the stress or excitement of a startling event or condition and have been related to that eve nt or condition. See id. ; State v. Land , 34 S.W.3d 516, 528-29 (Tenn. Crim. App. 2000). Mrs. Holman testified that the victim made the state ment immed

iately upon their being awakened from sleep by the unexpec ted sound o f their tr uck star ting in th e driveway below their bedroom. Given her testimony that she and the victim live d alone, th is would ha

ve cert ainly bee n a startl ing event

. Accordingly, we conclude that the trial court did not err in a llowing the statement in under the excited utterance exception to the rule aga inst hearsay.
We also conclude that the trial court properly admitted the secondstatement as relevant nonhearsay evidence. The trial transcript revea ls that the State did not offer th e stateme nt to prove that the victim’s truck

had been stolen, but instead to show why Mrs. Holman left her home to go to the location of the shooting. The transcript furt her rev eals that the tr

ial cour t acquie sced in de

fense counsel’s request that a limiting instruction, regarding the purpose of the evidence, be given to the jury. During the State’s direct examination of Mrs. Holman, the following exchange occurred: Q. And did you at some point leave yo ur home and go to Finley and Boeingshire, the corner of Finley and Boeingshire?
A. Yes. Q. Why did you do that? Why did you go to that location? A. Because a person came and said they w ere looking for – MR. BALLIN: Object, Your Honor, as to what the person said. THE COURT: All right. That’s – MS. CRAIG: Judge, this is not for the truth of the matter asserted but to explain to the jury why Ms. Holman went to that area.-18- THE COURT : All right. I’ll allo w it. MS. CRAIG: Thank you, Judge.
MR. BALLIN : Your Hon or, would you instru ct the jur

y that it is not being offered for the truth of the matter. THE COURT: This is not being offered here a s – for the tru th, ladies and gentlemen of the jury. This is just to allow t he case to move on. The w itn ess, the pe rson who said this is not here and the objection was made because that person could not be – is not present and could – the Defe nse could not cross-examine or ask them questions

. But the Court’s going to allow it to allow the matter – the case to move on. So you may ask the question. MS. CRAIG: Thank you, Judge.
BY MS. CRAIG: Q. Why did you go to that location, Ms. Holman?
A. Because I was told that a ma n had been shot and that he was looking for – the man that came to me said he was looking for the family of the man whose truck had tried to be stolen. MR. BALLIN: Judge, c an I – same objection, Your Honor. We’re past the point of now being --
MS. CR AIG: Well, Jud ge, if we ’re goin g to have a n argume nt, may we approach?
THE COURT : All right. Well, the Court’s going to allow it and I think that this all happened in a sequence of ev ents out th ere and I’m going to allow it and I’ll note the exception of Defense.
The transcript shows that the State did not offer the neighbor’s statement, or even intend to offer it, as substantive evidence of the defendant’s guilt, and that the trial cour t, wi th its ins truction to the ju ry, made it clear that the evidence was not to be consider ed as proof of the truth o f the matt e r asserted. We conclude that the statement was not hearsay and that the trial court, therefore , did not err in allowing it into evidence.-19-

This issue

is without me

rit.
V. Evidence of Other Crimes
As his fifth issue, the defendant contends that the trial court erred

in admitting evidence of an uncharged crime, namely, his possession of marijuana, in violat ion of Rule 404(b) of the Tennessee Rules of Evidence. Rule 404( b) provid es as follows:
Other Crimes, W

rongs, or Acts. Evidence of other

crimes, w

rongs, or acts is not

admissible

to prove t he char acter o f a pers on inorder to show action in conformity with the character trait. It may, however, be admissible for other purposes. The conditions which mu st be satisfied before allowing such evidence are : (1) The court upon request must hold a hearing outside the jury’s presence; (2) The court must determine that a material issue exist s other than conduct conforming with a character traitand must up on reque st state on the record the material issue, the ruling, and the re asons for admitting the evidence; and (3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.
Genera lly, this rule is one of ex clusion, a nd eviden ce that a n accused has comm

itted some oth er crime or bad act independent of that for which he is charged is inadmissible, even thoug h i t may be a crime or act of t he same c haract

e r as that for which the accused is on trial. See State v. Howell , 868 S.W.2d 238, 254 (Tenn. 1993). If, however, evidence that a defendant has committed a crime separate from the one for which he is being tried is relevant to some matter actually in issue in the case ontrial and if its probative value is not outweighed by the danger of its prejudicial effec t, the evidence may be admitted. See id. “Only in an exceptional case will another crime, wr ong, or bad act be r

elevant to an issue other than the accused’s charac ter. Such exceptional cases include identity, intent, motive, opportunity, or rebuttal of mistake or accident.” State v. Drinkard , 90 9 S.W.2d 13, 16 (Tenn. Crim. App. 1995).
Before Office

r Thompson

te stified in this cas e, the tr ial cour t held a ju

ry-out he aring to determine the admiss ibility of e vidence as to the d efenda nt’s posse ssi ng marijuana. The State argued that the evidence was relevant to corrobor ate the defendant’s statement of motive, explaining why he was in the neighborhood and had attempted to steal the victim’s truck, and that its probative value outweighed its prejudicial effect. Defense counsel a rgued that the evidence was not relevant to show motive because

the defendant was not contesting the theft issues in the case. In respo nse, the St ate argued that every issue was in contention unless the defendant pleaded guilty to the offense, which4 With re spect to t he the ft c harge, the defendant st ood mute, a nd the t

ria l cour t, pursua nt t o Rule 11 of the Tennessee R ules of Criminal Procedure, entered a plea of no t guilty on his behalf. -20- he had not done. 4 At the conclusion of the hearing, the trial court determined that the evidence was admissible

under Rul e 404, sta

ting:
All right, law

yers, tha nk you for

your stat ements. The court has heard the proof of the witness in this case, Mr. Thompson, and statemen ts of th e Defens e and the State. And the court will find under Rul e 404 that the evidence of marijuana is probative and of value to the jury in their fin dings in thiscase. T he court will also find that that’s done because of what the court has heard about other statemen ts and als o the proo f to this point. The co u rt further will for the record state that we will enter an instruction to the jury

on crimina

l conduct which wil l tell them not to use this in their deliberations if there is something deliberated at the time that we end this trial.
When the trial court has substantially complied with the require ments of Rule 404(b) , this court re views its d

ecision to admit or e

xclude e vidence under an abuse of discretion standard. See Statev. Dubose , 953 S.W.2 d 649, 652 (Tenn. 199 7). The tr ial court in

this case conducted the ap propriat e jury-out hearing and stated for the record tha t it was finding the evidence probative. However, the record

does not reflect that the trial court made the require d determination regarding the probative value of the evidence versus its prejudicial effect, if any. Accordingly, we review t his issue de novo , without any deference to the trial court’s dec ision. See id.
Based upon our review, we conclude that the trial court did not err in admitting the marijuana i nto evidence in this case. The defendant told police that he ha d tried to steal the victim’s truc k because he was carrying marijuana a nd cash, and fea

red he w ould be ro

bbed as he walke d to his home. The evidence was, therefore , relevant to the issue of the defenda nt’s motive

and inten

t. Furthermore, we find that its probative value far outweighed any prejudicial effect

it may have had. The defenda

nt’s position th

roughout the trial was that there was an exchange of gunfire between himself and the vi ctim, with t

he victim shooting at him first. When arrested by Officer Thompson, and later in his statement at the police station, he clai m ed that he had shot at the victim after the victim first tried to rob and shoot him. We therefore agree with the State that evidence showing that the defenda

nt carr ied marij uana wou

ld have te nded to sup

port h i s theory of the case, rather than unfairly prejudice the jury against him. Further, we note that in the defendant’s opening st atement, it was admitted that he “had a .38 revolver,” and argued t

hat he fi red five shots with the victim firing six. Since there was no proof that the defendant was lawfully carrying a loadedpistol, it appears that even the defense which he wante d-21-

to present admitted at least a violation of Tennessee Code Annotated Section 39-17-1307, unlawful carrying or possession of a weapon.
This issue

is without me

rit. VI. Closing

Argument
As his final issue, the defendant contends that the trial court erre d in allowing the prosecutor to make improper

comments to the jury during closing argument. He argues that the prosecutor wa s allowed to provide an erroneous example of voluntary manslaughter, and improperly imply that the defendant was re quired to m ake a statement in the case. The State argue s that the prosecutor’s comments were not error and, further, that any error that may have occurred w as cured by the trial court’s instructions to the jury.
Defens e counsel objected to two portions of the prosecutor’s rebuttal argument. The f irs t occurred as the pr osecutor argued t hat the f acts did not supp ort a

finding of voluntary manslaughter: Voluntary manslaug hter is a k illing, but t

he perso n who kills i s provokedto su ch an ext ent that a reasonable person would do an irration al act. You know, say a man walks in and sees somebody rapin g his child. Would that be a provocation that a reasonab l e person might act and even kill? I submit to you yes.
The second occurred as the prosecutor disc ussed the defendant’s expression of remorse in h i s statement to police : “Well, that’s garbage. That’s about as true as these self-serving statements he makes to th e police. An d he’s got to make some kind of statement to help himself, because they caught him with the murder weapon.”
The standard of re v iew for d etermining whethe

r a trial court al lowed too

much latit

ude in closing argument is abuse of discretion. See State v. H all , 976 S.W.2d 121, 157 (Tenn. 1998) (citing State v. Sutton , 562 S.W.2d 820, 823 (Tenn. 1978)), cert. denied , 526 U.S. 1089, 119 S. Ct. 1501, 143 L. Ed. 2d 654 (1999). Having reviewed the entire record, including the closing arguments of the prosecu

tor and de fense c ounsel, w e can find no abus e of discretion in the manner the trial court handled closing arguments in this case. Following defense counsel’s objection in each instance, the trial court immediately instructed the jury that the statements, arguments, and remarks of the lawyers wer e not evide

nce, an d that it sho

uld disre gard any

statemen ts that we

re not sup

ported by th e eviden ce. At the conclusion of the trial, the court issued appropriate jury instructions, including instructions on voluntary manslaughter and on the defendant’s right not to testify. We conclude, therefore, that this issue is also without merit.-22- CONCLUSION
Based on the foregoi ng reaso ning and a uthoritie s, we af

firm the j udgment of

the trial court.

___________________________________ ALAN E. GLENN, JUDGE