### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON May 10, 2000 Session

STATE OF TENNESSEE v. STANLEY BLACKWOOD

Appeal as of Right from the Circuit Court for Madison County

No. 96-541 Franklin Murchison, Judge

No. W1999-01221-CCA-R3-CD - Filed November 2, 2000

A Madison County Grand J ury indicted the defen dant, Stanley

Blackwood, for

one count of first

degree murder, three counts of attempted first-degree murder, five counts of ag gravated assault, two

coun ts of r eckless endangerment and one count of aggravated bur glary. Following a trial, a jury convictedthe defendant on all counts, and the trial court imposedan effective sentence of life plus twenty-two (22) years inca rceration. On appeal, the defendant contends (1) that the evidence was insufficient to sustain all of the convictions; (2) that the trial court erro neo usl y ins tru cte d th e ju ry; (3) that the trial court erroneously refused to admit results of a poly graph examination; (4) that the trial court should have merged two counts of aggravated assault with two counts ofattempted firstdegree murder; and (5) that the defendant’s sentence was excessive. After a thorough review of the record, we aff

irm the judgment o

f the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court of Madison County is Affirmed

J ERRY L. S MITH , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and R OBERT W. W EDEMEYER , JJ., joined.

Patrick Martin, Jackson, Tennessee, at trial, and Lloyd R. Tatum, Henderson, Tennessee, on appeal, for appellant, Stanley Blackwood.

Paul G. Summer, Attorney General & Reporter, Mark E. Davidson, Assistant Attorney G eneral, Na shville, Tennessee and Jer ry Woodall, D

istrict Attorney

General, Al Ear

ls, Assistant Distric

t Attorney, for appellee, State of Tennessee.1 Since the shooting, Offi cer Jackie Mills

married OfficerGary Benton; acc ordingly,her married na me, and her name at the

time of tr

ial, i s Jackie Mills Bent

on.

-2- OPINION

Factual Backgrou

nd

Bonnie Massengill, the p

rincipal victim in th

is case, lived

with her parents,

Rebecca and Pet

e Car ey, and her two daug

hters, eleven-y

ear-old Crystal Care

y and four-

year-old Su

mmer Massengill in May, 1996. On the evening of May 28, 1996, Ms. Massengill was working on her father’s race

car in a garage o n the property with two friends, Jack Lawrence III and Jerry

Williford, when the defendant came to visit Ms. Massengill. He greeted Mr. Lawrence and Mr. Williford, and then asked Ms. Massengill to ac

company him o

utside. Once outsi

de, the defenda

nt fired two sh

ots at Ms. Massengill,

who fell and scre

amed as she was hi

t. The defendant then fired a third shot into her head after she lay on the ground. The victim’s parents, Rebecca and Pet

e Carey, w

ere inside the hou

se when the shots were fired. After hearing the shots, Pete Carey retrieved a gun and both Pete and Rebecca Carey tried to go outside to help their daughter. While Mr. and Mrs. Carey were outside, the defendant fired several shots at the couple. Mr. and Mrs. Carey ran back in the ho

use where their granddaughters were. Mrs. Carey then called 911, took the two girls and hid inside the house. The defendant then came into the house, yelled “hey,” and shot his gun in the house several times. The defendant went back into the yard, and, at some point, went into the garage, whe re Mr. Williford was hiding. The defendant then threatened Mr. Williford and shot inside the garage. Mr. Williford was
nothit. Officers Gary

Benton, Jackie

Mills, and Barry

Austin, all of the Jac

kson Police Depar

tment, arrived shortly thereafter. 1 Officer Benton told the defendant to drop his weapon, and the defendant responded by shooting twice at the Officers. Police apprehe nded the defendant after he ran out of ammunition. On Septemb er 3, 19 96, a Madison County Grand Jury indicted the defendant as follows : count one, first-deg r ee murder of Bonnie Massengill; count two, attempted first degree murder of PeteCarey; cou

nt three, agg

ravated assault

of Pete Carey; count four, attempted first-degree murder of Rebecca Carey

; count f ive, aggravated assaul t of Rebecca Carey; count six, reckless endangerment of Crystal Car ey; count seven, reckless endangerment of Summer Massengill; count eight, attempted first-degree

murder of Officer Gary Benton; count nine, aggravated assault of Officer Gary Benton;
count ten, aggravated assault of Of ficer Jackie Mills; count eleven, aggravated assault of Officer Barry Austin; and count twelve, aggravated burglary of Pete and Rebecca Carey. The defenda nt was tried on October 14, 1997. At trial, the state’ s first witness was Crystal C arey, Ms . Mass engil l’s ol dest d aught er. In May, 1996, eleven-y

ear-old Crystal was living with her grandparents, Pete and Rebecc a Carey, her mother and her younger sister. On May 28, 1996 at about 10:00 p.m., Crystal and S

ummer were in the house watching telev

ision while her moth

er was outside wor

king on Pete

Carey’s ra

ce car with

so me friends. C rystal testified that she heard two “pops” or loud noises outside. She was not initially startled, because the race car often made loud noises. However, she then heard her mother yell for Mr. Car ey, and that she had been shot. Crystal testified that she went to the back door to see-3-

what had happened. There, she saw the defendant pointing a gun at her m other, and she sa

w her mother bleeding. Crystal stated that she went to get Pete Carey, who got his gun and went out the back door. Mrs. C arey called the police, and then also went outside. While Mr. and Mrs. Carey

were outside, Crystal heard two more shots, after which Mr. and Mrs. Carey came ins ide. Once inside, Mr. and Mrs. Care y took Cry

stal and her s ister into the back bedroom and told her to get down. The next thing Crystal heard was the defendant come in the back door. Crystal testified that the defe nda nt ye lle d “h ey” and fired his gun three or four times into the living room. Crystal hid until the police came and apprehended the defendant. Officer Mike Turner, a Crime Scene Technician and Evidence Custod ian for the Jackson Police Department, was the state’s next witness. He testified that he recovered an empty Glock .40 caliber semiautomatic han

dgun, fifteen ( 15) shell casing s and six(6) bullets and/or bullet fragmen

ts from the crime scene . Three (3) shel l casings were

found inside the ho

use , not fa r from the back door, and there were four (4) bullet holes in the living room wall. Officer Turner testified that, based

on the location of the shell casings and the bullet holes, the shooter stood inside the house when he shotinto the living room. Officer Turner also stated that a “speed loader” and a shoulder ho lster

were recovered from the defendant. Agent Steve Scott of the Ten nessee Bu reau of Investigation testified tha t all of the bullets a nd all of the shell c

asings were .40

caliber, and tha

t all of the shell casings came from the gun recovere d at the crime

scene. He could

not be sure that al

l of the bullets were fired from the gun found on the scene. Next, Dr. Wendy Gunther, an Assistant Medical Examiner and Forensi c Pathologist for Shelby County, testified that she examined Ms. Massengill’s body after Ms. Massengill died. Dr. Gunther told the jury

that Ms. Massengi

ll was shot three tim

es: once in the nost

ril, once in the ar

m, and once in the torso. Dr. Gunther opined that, although Ms. Massengill was alive wh en she received each wound, the gunshot to the head would have proven fatal immediately

. The st at e’s next witness was Jack Lawrence II I. He testified that he was at the Carey residence on May 28, 1 99 6, working on Mr. Carey’s ra

ce car with Jerry

Williford and Bonni

e Massengill

in the garage, when the defendant came to visit. Mr. Lawrence stated that the defendant askedMs. Massengill to accompany him outside, and she did. A minute or two after the defendant and Ms. Massengill

went outside, Mr. Lawrence heard two or three shots being fire d. Mr. Lawrence walkedoutside, and saw Ms. Massengill and the d efendant. Ms. Massengill was lying on the ground, yelling “D

addy, Dadd

y, he shot me,” and the defend ant had a pistol in his hand. Mr. Lawrence ran about three-hundred (300) yards away from the Car eys’ house, but

he heard one or two more shots after he stopped running. Mr. Lawrence did not return until police arr ived. Jerry Willifor

d testified next. On M

a y 28, 1996, Mr. Williford was also working on Mr. Carey’srace car with Ms. Massengill and Mr. Lawrence whe n the defendant cam e to visit. Mr. Williford stated that the defendant asked Ms. Massengill to go outside with him, and she did. Mr. Williford heard a noise that sounded likefireworks, and then heard Ms. Massengill say “Daddy , he shotme” or something

to that effect. Mr

. Williford testifie

d that h e went outside and saw Ms. Massengill

and the defendant, an d the defe ndant had a gun. Mr. Williford stated that he and Mr. Lawrence went back inside the garage, and that Mr. Lawrence ran away. Then, Mr. Williford either

came out or looked out

of the garage, and he saw Pete Carey at the back door . Mr. Carey had a gun, butdidnot fire it. Mr. Car ey told the defendant to put the gun down, but the defendant fired several shots at Mr. Carey.-4-

Mr. Williford testified that he went back in the garage and hid behind a wall in the back

room. The defendant th

en came in the opp

ositeside of

the garage and said “you S.O.B., I am going
to get you too” and then fired his gun in the gara ge. Mr. Williford testified that he was afraid he was going to die. However, the next shots Mr. Williford heard came from outside. Mr. Williford stayed in the garage until police arrived. Rebecca Car ey, Bonnie Massengill’s mother, was the state’s next witness. She testified that

on May 28, 1996,

she was a

t home with her two granddaughters, Crystal Carey and Summer Massengill. Mrs. Carey

testified that Ms. M

assengill, Mr. Will

iford and Mr. L

awrence were

all working in the garage that night, and that her granddaughters were watching television in the house. At about 9:45 p.m., after Mrs. Carey had gone to bed,

her husband, Pete

Carey, ca me home and also
went to bed. Soon after

Mr. Carey came to bed, the couple heard shots outside. Mr. and Mrs. Carey startedto get up when Crystal came in and sai d “[the defenda nt] shot my momma.” Mr. Carey proceeded

to go outside, but M

rs. Carey in

itially stayed behind him and tried to keep her granddaughters from going outs ide. At some point,

Mrs. Carey called 911. Mrs. Carey testified that she finally went outside as Mr. Carey was try ing to come back in. When Mrs. Carey

looked outside, she saw her daughter standing in the back yard, holding her arm with “blood all over her.” Mrs

. Carey pushed the back do

or open, and the de

fendant pointed a

gun at Mrs. Carey and

fired. Scared that she would die, Mrs. Carey dropped to the floor and pulled her granddaughters down with her. She took the girls and crawled in a bedroom to hide. After she hid, Mrs. Carey heard the defendant

come in the back door and yell “hey.” Then, she heard several shots being fired in the house. Mrs. Carey testified that she stayed there until the police came. Mr. Carey, Ms.

Massengill’s fa

ther, died of natu

ral causes befo

re the trial,

so the state read Mr. Carey’stestimony from the defendant’s preliminary he aring to the jury. Mr. Carey testified at the preliminary hearing that he was in bed around 10:00 p.m. on May 28, 1996. Mr. Carey hea rd
gu n shots fired outside, an d he looked out his wi

ndow. He could not s

ee anything

, but one of his granddaughters came in his room an d told him that his daughter had been shot. Mr. Carey went out the back door and saw his daughter with blood on her shirt. The defendant was on top of her. Mr. Carey told the defendant to get off of Ms. Massengill, and the defendant shot at Mr. Carey three or four times. Mr. Carey

testified that he went back in the house, and the defendant came in after the

m. Mr. Carey went to one bedroom, while Mrs. Carey took her grandchildren

and went to another. The defendant yelled “hey” and shot into t he house seve ral times. Mr. Carey waited until the police came, and he told them that the defendant was in back of the house. Jackson Police Officer

Barry Austin was the

next to testify. Officer Austin told the jury that

on May 28, 1996, at approximately 10:15p.m., he was dispatched to the Carey r

esidence along

with Officer Jackie Mills and Officer Gary Benton. The Officers we nt to the front of the residence where they were met by Pete Carey. Mr. Carey told the Officers that someone was in the back of the residence with a gun and that someone ha d been shot. Offic er Austin followe

d Officer Bent

on to the back of the residence. Before they g ot there, however, O fficer Aus tin heard a gunshot and, scared of receiving serious bodily injuries, took cover behind the corner of the house.Officer Benton continued toward the gar age. Officer

Austin then got up a

nd walked across

the driv eway and he heard another shot. He looked in the backyard and saw two people, one of whom was the defendant, lying on the ground. The defendant had an automatic pistol in his hand. The pistol’s slide was lockedback, indic a ting that the pistol was out of ammunition. Officer Austin advised the other-5-

Officers of the defendant’s location and proceeded to approach the defendant. He told the defendant
to drop his gun, and the defendant did so. Officer Austin and the other Officers proceeded to arrest the defendant. Officer Gary Ben

ton of the Jackson Poli

ce Department t

estified ne xt. Officer Benton testified that on May 28 , 1996, he receiv ed a report of sm

all arms fi re at the Carey residence. Officers Benton, Austin and Mills were dispatched to investigate. Officer Benton testified that when he and the other

Officers arrived at the residence, they we re greeted by Pete Carey

, who was standing in front of the house. Mr. Carey told the Officers that “he shot one of them” and indicated that “he”

was in back of the house. Officer Benton went toward the back of the house with Officers Austin and Mills behind him. He saw Ms. Massengill lying on the grou nd and the defendant, armed with a pistol, lying on top of her. Officer Benton told the defendant to drop the gun, and the defendant fired
at the Officer. Officer Benton, scared for his life, ran for cover, at which t

ime he heard ano

ther shot. Then, Officer Au stin approached the defendant, who by this time was out of ammunition. The Offi cers the n to ok t he d efen dan t in to c ust ody. The state’s next witness was Jackie Mills. She also testified that she was dispatched to the Carey residence on Ma

y 28, 1996. Of

ficer Mills told the

jury that whe

n the Officers w

ent be hind the house to investiga

te, Officer Be

nton told the defendant to dro p the gun. Then, O

fficer Mills heard a gunshot, and sheand the other Officers “scattered.” Although she did not know where the shotcame from,Officer Mills wa s scared for her

life. Officer M

ills heard another gunshot before the Officers apprehended the defendant. She told the jury that, af ter the defendant

was apprehended, she tried to help Ms. Massengill. Ms. Massengill was bleeding, but still breathing. Then, paramedics arrived and took over. The state’s final witn

ess was Of

ficer Calvin Scott of the Jackson Police Department. On May 28, 1996, Office

r Scott was dispatc

hed to the Carey residence. When Officer Scott arrived at the residence, the defend ant had already been taken into custody . Officer Scott testified that he
tra nsported the defendant to t he police station.

Officer Scott re

covered a should

er holst er, a .4 0 caliber round of ammunition, and a “magazine speed loader” from the defendant’s person. The state rested. The defendant testified on his own behalf. He told the jury that he and Ms. Massengill had datedin the past. He stat ed that, on May

28, 1996, he went to

the Carey s’ house to give M s. Massengill

a gun to use for p

rotection. He told

the jury that

when he arrived at the Careys’ house, he found Ms. Massengill working on Mr. Carey’s race car in the gara ge. The defendant

said that he

saw Mr. Willi ford and Mr. Lawrence in the garage with Ms. Massengi ll, and he said

hello to them. The d efendant showed Ms. Massengill his gun, and he injected a round of ammunition into the chamber so that Ms. Massengill could see how the gun operated. Next, he ejected that round, picked the bullet up and put it in his pocket. He then chambered another round. The defendant claimed that Mr. Williford and Mr. Lawrence asked the defendant why he had a gun, and he replied “don’t worry about it.” He asked Ms. M

assengill to acc

ompany him

outside, which she did. The defendant testified that, as they were walking, he lifted the gun up and joking ly pretended that he was

“taking [Ms. Massengill] hostage or hijac king her – just a f

unny gestu

re – we both

kind of chuckled about it.” He told the jury that

Ms. Massengill the

n reached out to p

ush the barrel away from her, the two bu mped together and her hand slid forward and pushed his hand which was on the trigge r. The-6-

defendant testified that the

gun went off twic

e and scared him.

He claimed that after the first two shots, Ms. Massengill fell and grabbed the defendant’s hands, and the gun went off a third time. At that time, Mr. Carey came out of his house. The defendant claimed that he saw Mr . Carey and told him to get help. T he defendant t hen tried to let Ms. Massengill lay down, but he accidentally

fell on top of her. The defendant claimed that this upset Mr. Carey, who was now armed witha pistol. Mr. Carey told the defendant to get off Ms. Massengill. The defendant claimed that Mr. Carey then

fired his pistol at th

e defendant In response, the defendant shot hi s g un in the air twice to frighten Mr. Carey. The defendant’s strategy worked, and Mr. Car ey went back

into the house. Next, the defendant testified that he heard something behind him, and he was afraid that Mr. Lawrence or Mr. Williford were going to “charge him,” so he shot twice toward

the garage a

rea to prevent an attack. The defendant claimed that after he shot toward the garage, he decided to go for help. He went over to the garage area to find Mr. L awrence or

Mr. Williford, but had no luck. Then, the defendant

saw Mrs. Carey

walking near Ms

. Massengill, and he told Mrs. Carey to go for help. When Mrs. Carey failed to respond, the defendant “shot a couple of shots up in the air to scare her to get her to go back inside the house.” Mrs. Carey ran back into the house. Th e defenda nt claimed that he went to lie beside Ms. Massengill where he told her that everything

would be fine. However, the defendant testified that he became frustrated when help did
notarrive quickly enough. At some point the defendant re

loaded his gun, a

nd went to the house

to

use the telephone to call for help. He claimed that he started to worry about Mr. Carey being in the house with a gun, so he s

hot three or four

times at the gas g

rill n ear the back door. Then, the defendant went to the back do

or. He opened the

door and ye

lled “hey,”

but no one answer

ed him. The defendant saw a television inside the house. He testified that he decided to shoot the television

so that someone would get help. The defendant shot the televi sion three times. Although the defendant admitted shooting into the house, he claimed he never actually e ntered the house. The defendant testif

ied that he then we

nt back into the bac

k yard and l

aid down next

to Ms. Massengill. He claimed that he heard a noise, so he fired two shots to keep anyone from “char ging him.” After the second shot, the defendant ran out of ammunition. Police Officers then came and arrested the defendant. Next, the defendant called three character witnesses, Marcus Smith, Karen Mainor d, and Mike McFarland, all of whom testified that the defen dant had a good reputation for truth and

vera cit y. Following the character witnesses, the defense rested. Finally , the state called Rebecca Carey on rebuttal. She testified that Ms. Massengill wore a short-sleeved shirt the night she was murdered.

Sufficiency

On appeal, the defendant

claims that the evidencewas insufficient to support his convictions for counts one, two, four, eight, nine, ten, eleven and twelve. Where the sufficiency of the evidence is contested on appeal, the re levant question for the reviewing court is whether any rationa l trie r of fact could have found the accused guilty of e very element of the offense beyond a reasonable doubt. Ten n. R. Ap p. P. 13(e); State v. Harris , 839 S.W.2d 54, 75 (Tenn.1992). The state is entitled to the strongest legitimate view of the evidence as-7-

well as all reasonable and legitimate inferences that may be drawn therefrom. Statev. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). In conducting our evaluation of the convicting evidenc e, this Court is precluded from reweighing or reconsidering the evidence. State v. Morgan , 929 S.W.2d 380, 383 (Tenn. Crim. App. 1 996); State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Furthe rmore, a verdict of guilty by the jury , approved by the trial judge, accredits the testimonyof the state's witnesses and resolves all conflicts in t he testim ony in favor of the state. Statev. Cazes
, 875 S.W.2d 253, 259 (Tenn. 1994). Although an acc used is originall

y cloaked w

ith

a presumption of innocence, a j ury verdict removes this presumption and replaces it with one of guilt. State v. Tuggle

, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the insufficiency of the convicting e vidence. Id. The defendant first

claims that the evi

dence was insuff

icient to support his conviction for the first-degree

murder of Bonnie Massengill because the state failed to prove (a) that

the defendant had
any motive for the killing and (b) that the killing was premeditated. First-degree murder is defined

as a “premeditated and intentional killing of another.” Tenn. Code Ann. § 39 -13-202 (a)(1). “‘Premeditation’ means that the intent to kill must have been formed prior to the act itself. It is not
necessary that the purpose

to kill pre- exist in the mind of the accused for any definite period of time.” Id. , § 39-13-202 (d). Moreover, premeditation is a question of fact for t he j ury; it may be in ferredfrom the circumstances surrounding the killing. State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. App. 1 993). In this case, the defendant testified that he and Ms. Massengi

ll had been lovers

. Ar med with a pis tol, the defendan t went to visit Ms. Mass engill at her hom

e. He asked her

to accompany

him outside, and she

did. There, he sho

t her in ths stomach,

in the arm, and

in the face. When her family t

ried to intervene

, the defendant s

hot at them. Ind

eed, when the pol

i ce tried t o apprehend

the defendant,

he shot at the police. Furthermore, while proof of motive may help prove premeditation or intent, it is not an element of first-degree murder. SeeTenn. Code Ann. § 39-13- 202 (a). Thus, lack

of proof of motive does not affect our sufficiency determination. I n short, the

c ircumstances of the killing, taken as a whole, justify an inference of pre meditation. Gentry , 88 1 S.W.2d at 4-5. Sim ila rly, the defendant argues that the evidence was insufficient to support his convictions for the attempted first-degree murders of Pete and Rebecca Carey and the attempted first-deg ree murder of Officer Gary Benton. Tenn. Code Ann. § 39-12-101 define s criminal attempt a

s follows: (a) A person commits cr

iminal attempt who, a

cting with the kind

of culpability

oth erwis e required for the offense:

(1) Intentionally engages in a ction or causes a resu

lt that would constitu

te an offense

if the circumstances surrounding the conduct were as the person believes them to be;

(2) Acts with intent to cause a result that is an el ement of the offense, and believes the conduct will cause the result without further conduct on the person's part; or

(3) Acts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.-8-

Tenn. Code Ann. § 39-13-101. Thus, to support a charge of attempted first-degree murder , the
state must prove that

the defendant intended to murder the victims with premeditation, and that the defendant act ed to accomplish th e murder. Here

, the evidence sh

owed that the def

endant went to Mr. and Mrs. Carey’s house armed with a pistol. After Mr. and Mrs. Carey tried to a id thei r daughter, the defendant shot at the couple several times. Then, he went into the house and fired the
weapon several times in the house. Although the defendant testified that he o nly s hot at t he C areys in order to warn them and only shot inside the house t o force someone to call the police, the jury apparently did not believ e him. The ev idence supp orts the ju ry’s finding. The evidence also

supports the jury’s finding that the defendant attempted to murder Officer Benton. Officer Benton

testified that, after he told the defendant to drop his gun, the defendant fired
at the Officer. While Officer Benton attempted to flee, the defendant f ired anothe r shot. Alt hough the defendant now c

laims that “the sole

reason the defendant fired his weapon in the direction of the officers was to prevent an attack by a member of the Carey family,” the jury chose not to believe the defe nda nt’ s te sti mon y. The defendant next claims that the evidence was insufficient to supporthis convictions for aggravated

assault of Officers Benton, Mills and Austin. Ho wever, the defe ndant has failed t

o provide any argument in support of his contention. In any event, agg ravated assault, as charged here, is caused where a

defendant intent

ionally or kn

owingly ca

uses another to re

asonably fear imminent bodily injury and uses or displays a weapon. Te nn. Code Ann. §§ 39-13-101 (a)(2), -102 (a)(1)(B). In this case, the defendant shot in the direction of the police officers as they tried to apprehend the

m, and all three testified that they feared imminent bodily injury. Given the circumstances, we have no doubtthat the Officers’ fear was reasonable. Thus, the evidence w as suffi cient to support the defendant’s convictions for aggravated assault. Fin all y, the defendant claims that the evidence was insufficient to support his conviction for the aggravated

burglary of Pete and Rebec

ca Carey’ s house. Aggra vated burglar

y is defined a s entering a habitation without the owner's effective consent and with the intent t

o commit a

fel ony, in this case attempted murder and aggravated assault. Tenn. Code Ann. §§ 39-14-402, -403. In this
case, although the def

endant admitted th

at he shot inside the

house, he claimed

that he never ac

tually entered the house. However, his was the only testimony to that eff ect. Mr. and Mrs. Car ey both testified that the defendant entered the house before he fire d his weapon. Furthermore, police recovered several shell casings fr

om in side the house. Finally, Officer Turner guesse d that the shooter had been inside th

e house based on the placement

of the shell casin

gs and the bullet h

oles. The state presented sufficient evidence for the jury to find that the defendant entered the

house with the intent to commit a fe lony with a g

un and thus committe

d aggravate

d burglary . This issue is without merit.

Jury Instructions A. The defenda

nt next claims that the tria

l court erred by

refusing to

instruct the jury to consider the defenses of self-defense, necessity, and mistake of fact. To support his claim that he was entitled
to a self-defense instruction, the defendant points to his own testimony that Mr. Carey shot at the defendant after the defendant

accidentally shot Bonnie Massengill. Thus, he argues, he only fired his weapon at

the Careys

in self-defense . The defendant a lso argues that his trial testimony showed-9-

that he fired “sever

al shots around the

premises and also

in the Careys’ T.V. in hopes that this would compel someone to

call for help

for Bonnie.” The defendant claims that this testimony supported

a jury instruction on necessity. Finally , the defendant testified that he only shot at the police officers because he heard a sound and intended to “dissuade an attack.” He claims that he did not know that he was firing at police officers, because his hearing was impaired and he could not hear

the officers tell ing him t o dr op t he gu n. T hus , th e def end ant argu es t hat thi s te sti mon y sup por ted a ju ryinstruction on mistake-of-fact. It is well-se ttled that the trial co urt has the duty of giving a correct and complete charge of the law applicab le to the facts of the case, and that the defendant has the right to have every issue of fact raised by the evidence and material to the defe n se submitted to the jury upon proper instructions by the trial c

ourt. State v. Teel , 793 S.W.2d 236, 249 (T enn. 1990); State v. Bryant
, 654 S.W.2d 389, 390 (Tenn. 1983). The defendant is correct that se

lf-defense, ne

cessity and mistake of fact are not affirmative defenses. Rather, they are merely defenses; if the evidenc e fairly rai ses a defense, the trial court must submit the def ense to t he jury and must instruct the jury that any reasonable

doubt on the existence of the defense requires acquittal. Tenn. Code Ann. §§ 39-11-203, -502, -609, -611; State v. Bult , 989 S.W.2d 730, 733 (Tenn. Cri m. App. 1998); State v. Culp , 900 S.W.2d 707, 710 (Tenn. Crim. App. 1994); State v. McPherson , 882 S.W.2d 365, 374 (T enn. Crim. App. 1994). The jury should not have been instructed on the law of self-defense. Tennessee defines selfdefense as follo

ws: A person is justified in threatening or using force against another person when and
to the degree the person reasonably believe s the force is immediately necessary

to protect against the othe

r's use or attempted use of

unlawful force . The person must have a reasonable belief that there is an imminent danger of death or serious bodily inj ury. The danger cr

eating the belie

f of imminent death

or serious bodily

inju r y must be real, or honestly believed to be real at the time, and must be founded upon reasonable grounds.

Tenn. Code Ann. § 39-11-611(a). Here, the defendant testified that he believed he was under attack because Mr. Carey shot at him. However, the defendant claimed that he only fire

d his own gun in the air after he w as attacked ; he denied s hooting at anyone. Therefore, notwithstanding the improbability

of the defendant’s testimony, he was not entitled to a self-defense instruction, because even according to his own testimony, he did not intentionally fire at anyone. Moreover, even if

the jury believed that the defendant believed he was under a ttack and fired at Mr. Carey

to wardoff the attack, a self-defense instruction would not have been warranted. As quoted above a self-de

fense instruction is warranted where “the person reasonably believes the force is immediately necessary to protec t against the other’s use or attempt ed u se of unlawful force.” Tenn. Code Ann. § 39-11-611(a)(emphasis added). Here, Mr. Carey’s alleged use of force was not unlawful. Tenne

ssee Code Annotat

ed section 39-11- 612 provides A person is justified in threatening or using force a gainst another to protect a third person if:-10-

(1) Under the circumstances as the person reasona

bly believes them to be, the person would be justified under § 39-11-611 in threatening or using force to protec

t against the use or attempted u

se of unlawful fo

rce reasonably

believed to

be threatening the third person sought to be protected; and

(2) The person reas

onably believes that the

intervention is

immediately

necessary

to protect the third person.

Tenn. Code Ann. 39-11-612. According to all of the wi tnesses, including the defendant, the defendant had already shot Ms. Massengill when Mr. Carey exited the house. Thus, even assuming Mr. Carey used force against the defenda nt, his use of force was lawful. Sim ila rly, we do not agree with the defenda

nt's argument

that the facts in

this case support a trial court instruction on the defense of necessity. The defense of necessity is available when: (1) the person reasonably be li eves the conduct

is immediately

necessary

to avoid imminent harm; and

(2) the desirability

and urgency of

avoiding the har

m clearly o

utweigh, acco

rding to

o rdinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct.

Tenn. Code Ann. § 39-11-609. Under this section, conduct which would ordinarily be criminal is justified if the accused reasonably

believes that the conduct is necessary to avoid imminent harm. In other words, to be entitled to the defense of necessity, the defendant must sho w an immediately necessary ac tion, justifiable

because of an imminent

threat, where th

e action is the only

means available

to avoid the harm. State v. Watson , 1 S.W.3d 676, 678 (Tenn. Crim. App. 1999 ). In this case , the defendant testified that he fired his gun several times in order to fo

rce someone to

phone the police. However, the defendant neve r testified that he thought that firing his gun was the onlymeans available to

summon hel p. In deed , ev en i f th e def end ant act ual ly be lie ved tha t gun sho ts w ere n eces sar y t o

summon help, it strains credibility to accept that the defendant’s belief was reasonable. Under these circumstances we cannot

find error in the trial court’s decision not to instruct the jury regarding the defe nse of n eces sit y. Fin all y, we reject the de

fendant’s conte

ntion th at the trial court should have instructed the jury about the “mistake of fact” defense. The defe ndant claims that the instruction was warranted because he did not realize that he was shooting at police o fficer s. Thus, he argu es that he fairly raisedmistake of

fact as a defen

se to the aggr

avated assaults a

nd attempted murde

r of the officer

s. Mistake of fact is availa

ble as a defense

if it negate s the ne cessary culpable mental state of the accused. Tenn. Code Ann. § 39 -11-502. Here,

the defendant ha

s not raised the de

fense, because

he claimedthat he shot into the air, not at the police officers. In other words, if the jury believed the defendant, there would be no culpable mental state to negate. Furthermore, even if the jury believed that the de fendant fired at police because he mistakenly thought his police were attackers, he would still not have been entitled to a mistake of fact defense instruc

tion, because his b

eliefs, even if r

easonable, would

not have justified

his actions.-11-

Like Mr . Car ey, the polic

e were acting

in defense of a th

ird person; thus, th

eir use of force

would not have been unlawful. Tenn. Code Ann. 39-11-612.

B. Next, the defendant claims that the t r ial court should have instructed the jury to consider voluntary mansl aughte

r as a lesser offense of first-degree murder and attempted voluntary manslaughter

as a lesser offense of attempted first-degree mur de r. Because the defendant did not raise this issue in his motion for new trial, the issue is waived. T.R.A.P. 3(e). We note that the defe

ndant’s rights ha

ve not been vitiate

d by this waiver. The proof did not warrant a jury instruction regarding voluntary manslaughter or attempted voluntary manslaughter, because a trial court must

in struct the jury on lesser-included offenses only if the evidence at trial is legally sufficient to support a conviction for the lesser offense. State v. Burns , 6 S.W.3d 453, 464 (Tenn. 1999). In this case, the evidence adduced at trial did no t support a voluntary manslaughter charge because there was no proof that the defendant

was provoked. “Voluntary manslaughter is the intentional or knowing killing of another [committed] in a state o f passion pro duced by ad equate provocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code Ann. § 39-13-211. The defendant testified that he accidentally shot Ms. Massengill, and that the other shots were mere warnings. Therefore, even if the defenda nt’s testimonywas believable, there was absolutely

no evidence whatsoever

of provocation. Cf

. State v. Ruane , 912 S.W.2d 766, 783 (Tenn. Crim. App. 1995)(holdin g that the trial court’s fai lure to instruct jury regarding voluntary manslaughter required reversal even where there was only slight evidence of provocation). Furthermore, regarding

the murder of

Bonnie Massengill, the trial court instructed the jury
to consider first-d

egree murder

, second-degr

ee murder, rec

kless homicide and

criminally

negligent homicide. Regarding the attemptedmurders of Pete Carey, Rebecca Carey , and Officer Benton, the
court instructed the jur

y to consider

att e mpted first-degree murder and attempted second-degree murder. Where the record clearly shows that the defendant was guilty

of the greater

offense and is devoid of any evid

ence permitting

an inference o

f guilt of the lesser

offense, it is not e

rror to fail to charge on a lesser

offense. Sta te v . Boyd , 797 S.W. 2d 589, 593 (Tenn. 1990 )(citing State v. King
, 718 S.W.2d 241, 245 (Tenn.1986)). See also
, State v. Willia m s , 977 S.W.2d 101, 106 (Tenn. 1998)(holdin

g tha t “trial court's

erroneous failu

re to charge v

oluntary ma

nslaughter is ha

rmless beyond a reasonable doubt because the jury's verdict of guilt on the greater of fense of first degree murder and its disinclination to consider the lesser included offense of second degree

murder clearly demonstrates that it certainly would not have re tur ned a verdict on voluntary manslaughter.”) The jury rejected the defendant’s contention that he acted re cklessly, negligently or

even kno win gly. Thus, the trial court’s failure to instruct on voluntary manslaughter was not error. See Boyd , 797 S.W.2d at 593 (holding that, in a first-degree murder prosecution, a trial court’s failure
to instruct

on voluntary

manslaughter w

as not error whe

re jury wa

s instructed to

consider seconddegree murder but convicted of first-degree murder). This issue is without m erit.

Polygraph Results Prior to trial, the defendant moved the trial court to admit results of a polygraph examination. The trial court denied the motion, and the defendant now claims that the trial court erred. He further claims that a per se ban on the admission of polygraph results as evidence is outdated un der2 Although our analysis is based on Article I, § 10 of the Tennes see Consti tution, the resul

t would be the

same under the federa l double jeopardy clause, bec ause an a nalysis un der the fed eral doub le jeopard y clause is lim ited to the Blockburger test. United Stat es v. Dixon , 509 U .S. 688, 7 03-05 , 113 S. C t. 2849, 1 25 L. E d. 2d 55 6 (1993 ).

-12- McDaniel v. CSX Transportation , 955 S.W.2d 257 (Tenn. 1997). In Tennessee, it is well-settled that the results of a polygraph

examination are not admissible as evidence in a criminal prosecution. Irick

v. State
, 973 S.W.2d 643, 652 (T enn. Crim. App. 1998

); Statev. Campbell , 904 S.W.2d 608, 614 (Tenn. Crim. App. 1995). This “u nwavering prin ciple . . . even applies to prevent the criminal defendant from introducing polygraph evidence that would be helpful to his case.” Cohen, Paine and Shep peard, Tennessee Law o f Evidence, § 401.34 at 142 (3d ed. 1 995)(citi ng State v. Irick , 762 S.W.2d 121, 127 (Tenn. 1988)). The defendant has not pointed to anything in the Tennessee Rules of Evidence or case law that requires us to abandon this well-settled principle. This issue is without merit. Double Jeopardy The defendant next cla

ims that the trial co

urt should have mer

ged count two wit

h count three (attemptedmurder and

aggravated

assault of Pete

Carey, respectively) a

nd count four with count five (attemptedmurder and aggravated assault of Rebecca Carey , respectively). He claims that the charges violated his constitutional protection against double jeopardy because the facts supporting the attempted murd

er charges we

re the same fac

ts that supported th

e aggravate

d assault charg

es. 2 To determine whe

ther multiple convi

ctions are permit

ted, this Court must: (1) conduct an analysis of the statutory

offenses pursuant to Blockburger v. United States , 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (193 2); (2) analyze the evidence used to prove the offenses; (3) c onsider whether there were multiple victims or discrete acts; and (4) compare the purposes of the respective
statutes. State v. Denton , 938 S.W.2d 373, 381 (Tenn. 1996). Under Blockburger , one must determine whether eachoffense requires proof of an additional fact which the othe r does not. Aggravated assault requires proof that a defendant intentionally or knowingly

caused another to reasonably fear imminent bodily injury and

use s or dis pla ys a weapon. Tenn. Code Ann. §§ 39-13-101 (a)(2), -102 (a)(1)(B). The offense of attempt to commit first-deg ree murder requires proof that defen

dant unlawfully

attempted to

kill the victim and th

at the attempt to kill was intentional an

d preme ditated. Ten n. Code Ann. §§ 39-12-101, 39-13-202 (a)(1). Aggravated assault requires proof that defendant caused the victim to bodily injury ; attempted first deg re e murder does not. Attempted first degree murder requires proof that

defendant intend

ed to kill his victim; whereas, aggravated assault does not. Application of the Blockburger

test indicates that the legislature intended to allow separate punishments for these offenses. State v. Adams
, 973 S.W.2d 224, 229 (Tenn. Crim. App. 1997). Our analysis of evidence used to prove the offensesis gu ide d by Denton , 938 S.W.2d at 373. Denton specifically

addresses the du

e process issues i

nherent in a doubl

e jeopardy

analy sis b y evaluating the specific evidence used to prove each offense. Id. at 383. In that case, the state relied

on exactly the same evidence to establish both an aggrava ted assault and an attem

pted vol untary manslaughter

charge. Id. That is not the case here. In order to establish a tte mpted first-degree murder, the s tate relied on the evidence that the defendant fired his gun at the Carey s when they-13-

came out of the house. However, the defendant also entered the house after the above incident and firedhis gun inside the house. That se parate incident

was sufficient to

establish agg

ravated assault independent of the evidence used to establish attempted first-degree murder. Moreover, although the purposes of statutes are similar, i.e., to protect the person, nearly any
two criminal offense

s can be consider

ed of singular p

urpose if viewed broadly

enough. See State

v. Lawrence , 995 S.W.2d 142, 146 (Tenn. Crim. App. 1998). Finally, although al l of th e charges

arose from one course of conduct, discrete acts support each of the charges. See Duchac v. State
, 505 S.W.2d 237, 240 (Tenn. 1973). Thus, the trial court correctly failed to merge the aggrava te d assaults of Pete and Rebec ca Carey w

ith the attempted f

irst-degree m

urders o f Pete and Rebecca Carey. This

issue is without meri

t.

Sentencing The defendant was sentenced to twenty-two (22) y ears for the attempted murder of Officer Benton. The court found that the defendant was a “dang erous offender” and accordingly ordered that sentence ser ved consecutively to the other counts, all of which were ordered to be served concurrently to each other . On appeal, the defendant challenges the imposition of conse

cutive sentence

s. "When reviewing sentencing issues . . . the appellate court shall conduct a de novo review on the record of such issues. Such review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are c orrect." Tenn. Code Ann. § 40-35-40 1(d). "Howev er, the pres umption o f correctnes s which acco mpanies th e trial cour t's action is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principl es and all relevant facts an d circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider all the evidence , the presentence report, the sentencing principles, the enhancing and mitigating factors, arguments of counsel, t he defendant 's statemen ts, the nat ure and chara cter of the o ffense, and t he defendant 's potential for reh

abilitation. Tenn.

Code Ann. §§ 40-35- 103(5), -210(b) ; Ashby , 823 S.W.2d at 169. "The defendant has the burden of demonstratin g that the sentence is imp roper." Id. Consecutive sentencing is governed by Tennessee Code Annotated section 40-35-115. The trial court has the discretion to order consecutive sentencing if it finds that one or more of the required statutory criteria exist. State v. Black , 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Further,

when imposing con

secutive sentenc

ing based on a fi

nding that a def

endant is a "dangerous offender", the court is required to determine whethe r the consecutive sentences (1) are reasonably

related to the se

verity of th

e offenses commi

tted; (2) serve to

protect the public from further criminal conduct by the offender; and (3) a re congruent with general principles of sentencing. State v. Lane , 3 S.W.3d 456, 461 (Te nn. 1999); State v.. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995).

In this case, although the trial court made no explicit reference to the Wilkerson factors, its findings satisfy the criteria articulated in that case. First, consecutive sentences are reasonably

related to the se

verity of th

e defendant's

offenses. As the

trial court noted,

this was a case involving several victims and numerous crimes, the most severe of which was the murder of Bonnie Massengill. The defendant “was shooting or threatening various individuals at random . .-14-

. [and did so] until police arrived. When the police arrived, the defendant was still ready and willing to shoot, an

d he did shoot.” Sec

ond, consecutive

sentences are r

equired in this ca

se in order to protect the public from further criminal conduct by the defe ndant. There were eight victims in this case, several of whom were police officers. The trial court also noted that “[c]rimes of violence are a real problem [in our community]. It’s got to stop.” Fina lly, we find that consecutive

sentencing in thi

s case is congr

uent with gener

al principles of se

ntencing. This case could have resulted in a wholesale massacre of numerous victims. Clearly , consecutive sentencing was

proper given th

e seriousness of t

hese crimes. This

issue has no merit. Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE