### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE December 13,

2000 Session

STATE OF TENNESSEE v. ROBERT LE E PATTEE

Direct Appeal from the Criminal Court for Sumner County

No. 239-1999 Jane Wheatcraft, Judge

No. M2000-00257-CCA-R3-CD - Filed May 3, 2001

The defendant, Robert Lee Pattee, appeals as of right following his convic tion by a jury in the Sumner County Crimina

l Court for first

degree murder. The

trial court sentenced Defendant to life imprisonmentin the Department of Correction. Defendant raises the following issues in this appeal: (1) whether the trial court er red b y r efusing to instruct the jury on the lesser-included offense of voluntarym anslaughter; (2) whether the trial court erred when it determined Defenda nt’s suicide
notewas inadmissible at trial; and (3) whether the evidence of premedit ation was suffici

ent to convict him of first

degree murder. After a

thorough review of the record, we affirm the judgment of the trial court

. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Affirmed.

T HOMAS T. W OODALL , J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER , J., joined, and J OSEPH M. T IPTON , J., filed a concurring opinion.

John P. Cauley, Franklin, Tennessee, ( on appeal) and Lionel R. Barrett, Jr. and Jefre S. Goldtrap, Nashville, Tennessee, (at trial) for the appellant, Robert Lee Pattee.

Paul G. Summers, Attorney General and Reporter; David H. Findley , AssistantAttorney Ge

neral; Lawre nce Ray Whitley, District Attorney General; and Wayne Hya tt, Assistant District Attorne y General, for the appellee, State of Tennessee.

OPINION

FACTS

Defendant

was convi c ted of first degree murder for the shooting death of his wife’s boyfriend, Dennis Wayne Cope (“Wayne”), a forty -eight-year-old retired Marine. At trial, Ronald David Cope, the victim’s brother, testified that he and Wayne were partners in a siding and gutter-2-

bu siness. Ronald became sus picious when Way

ne did not show up fo

r work at 7 :00 a.m. o n February 5, 1999. On a

typical day

, Wayne did no

t arrive until

later, but he had a

greed to come in early that morning. Ronald had tried to contact Wayne by te lephone the previous evening, but Wayne had not returned

his c alls. When W ayne d id n ot a rri ve ea rly o n Feb ruar y 5 th , Ronald attempted to contact

Wayne’s fiancé, Jennifer. Although Jennifer and Wayne we

re both married to other people, they were pursuing divorces and planned to marr y when their divorce proceedings were completed. Jennifer

was due to return

from her vacati

on that week, so

Ronald assumed that Wayne

was with her and had merely forgotten to come to work ear ly. When Jennifer called la ter that afternoonand informed Rona ld that she was still ou

t of town, Ronald be

came concerned and drove to Wayne’s house.

When Ronald arrived at Wayne’s house at approximately 2:30 p.m. on Fe bruary 5, 1999, the first thing he noticed

was that Wayn

e’s truck was pa

rked in the driveway. This was unusual. Wayne alw ays parked his

truck in the garage when he was at home. Next, Ronald discovered that the side door to the garage was locked. This was odd also. Wayne usually left this door unloc

ked because he would not be able to

hear if someone knocked on it. After repeatedly beating on the door without

an answer, Ronald

walked around the perimeter of the house, knocking on various windows to elicit

a response in the event

that someone was inside. When this proved fruitless, Ronald looked around for a key. Finding none, he kicked the door in.

The door inside the garage furnished access to the house and was normally always locked, butRonald found it unlocked that afternoon. Af tersearching the

entire house, Rona

ld left a note requesting that Wayne c

all him as soon as pos sible . In the drivew ay, Ronald discovered a set of unfamiliar

sunglasses. He then decided to check with the neighbors to f ind out whether they had

seen or heard anything out

of the ordinary. None were home. At this point, Ronald telephoned the police.

A police officer arrived fifteen minutes later and began to search the house. Di scovering nothing of any sig

nificance, the o

ffic erleft but Ronald continued to look around. A man named “Junior” who worked for Ronald and W ayn e came by the house and helped Ronald search. They noticed spots resembling blood stains on the side of Wayne’s truck. The men also discovered “drag marks” characterized by

flattened areas where the grass appeared to be “lay ing down.” The marks led to a “crawl area” underneath the house. Inside the crawl area the two men discovered Wayne’s body hidden underneath what appeared to be a styrofoam cushion. Ronald immediately telephoned the police.

Ronald further testifie

d that Wayne d

id not keep a gun a

t his h ouse. To his knowledge, Wayne owned a .22 calib

er rifle and a sh

otgun, but he kep

t both of hisguns at his

parents’ house. Wayne’s height was six feet, one inch, and he weighed 190 pounds. Wayne had a black belt in one of the martial arts, but Ronald was uncertain which one.

Robert Fohrd, a patrol officer with the Hendersonville Police Department, testified that on February 5, 1999, he was dispatched to 146 Luna Lane (Wayne’s

residence address) on a “suspicious-3-

incident call.” Fohrd

was met at the residence by Ronald Cope, who informed him that his brother, Wayne, was missing. After Ronald explained to Fohrd the circu ms tances which ca used him to suspect foul play, they searched the house but initially found nothing unusual. Fohrd returned to the police department to file

a missing persons

report and talk

with his supervisor, who requested that Fohrdmeet him back at Wayne’s house. Meanwhile, Ronald had telephoned the police to report that he discovered his brother’s body. Fohrd info rmed his superviso r of the discover

y and retur

ned to the victim’s house to secure the crime scene. When Fohrd arrived, the bod y was lyi ng on the basement floor, wrapped i

n purple cloth and tied up with a yellow extension cord. He did not see the body during his initial investigation because it had been covered with what appeared to

be carpet padding.

Twenty-nin

e-year- oldJames Lee Pattee testified that he was the son of D efe ndant and Jennifer, who were still married but had been living separately since September or October of 1998. When they first separated, Defendant had con tinued to live in the house that he and Jennifer had ownedtogether in Franklin, Kentucky. Jennifer had moved into an apart ment closer to her job in Nashville. James saw his mother and father tog

ether only o

nce after they

separated. On th

is occasion, Jennifer had come to visit James at his apartment. When Defendant a rrived, she immediately

became fright

ened and nervou

s. Jennifer was aware that James owned a gun and asked him to hide it. Later, in January of 1999, Jam es learned t hat Jenni fer had been s eeing a man named Wayne Cope but he never met him.

James testified that Defendant owned a .38 caliber Rossi revolver, a .22 rifle, and a shotgun. Defendant

had owned

the .38 for as long

as James could reme

mber. The last

time James saw the .38 was sometime in September, October, or November of 1998, when James and Defendant shot the .38 and the shotgun at some old, metal barrels in Defendant’s back ya rd.

James testified that he learned of Wayne’s death from his grandpare

nts. They inf

ormed him that Wayne had be

en killed and his fa

ther was a suspec

t. Afte r James he ard the news, he asked Defendant

whether or not he had killed Wayne and Defendant replied, “No.” They

did not discuss the subject further.

BrianScott Smith, an employee of Nashville Electric Service (“NES”), testified that he had known Defendant for seventeen years. They had both worked for NE S but Defendant was forced to quit after he was inju

red on the job in Aug

ust 1998. In February 1999, Smith received a phone callfrom Defendant reques ting that he “run an address .” Defendant tol d Smith that he wante

d to check the address of a

man who was interested in selling a “wave runner” or jet ski. Smith had no

reason to disbeli eve Defendan t, so he fou nd the addre ss and gave it to him. Al though Smith did not remember

the specific nam

e Defendant g

ave him to “run,” h

e did recall that t

he address

he gave to Defendant matched the one he already had.

Larry Stevens, a systems analyst at NES, testified that in Februar y 1999, the N ES security division told him that the Hendersonville police wanted to know whether anyone had requested data

on a man named Cope on or about February 3. A sy stem check revealed that someone had accessed-4-

Dennis Wayne Cope’s address at 11:15 p.m. on February 3, 1999. The system report also revealed that the data was requ est ed b y NES’s emergency line department and that Brian Scott Smith was working in this department on the evening of February 3, 1999.

James Edgar Spearman, a security manage r for BellSouth telephone company, testified that part of his job is to act as custodian of the company’s telephone records for M iddle Tennes see. Ac cording to the records, Defendant telephoned the number 502-586-3909 at 11:38 p. m. on Februar y 4, 1999, but received

no answer. (The phone number belonged to Jennifer; she had moved bac k to Franklin, Kentucky by the time the homicide oc curred.)

Shirley Forrest, a detective with the Hendersonville Police Department, testified that she was the lead investigator on the homicide case concerning Way ne Cope. Forrest arrived

at the victim’s residence, 146 Luna Lane, at approximately 5:30 p.m. on F ebruary 5, 1999. Initially, Forrest noted that reddish-brown st

ains consistent wit

h the appearance of blood stains were present on the outside of the house, the driveway, and the passenger side of the vic tim’s truck. Next, she not iced that a flattenedarea in the grass formed a trail leading from behind the house to the rear door of the house, which in turn led to

the basement crawl space where the victim’s body was discove red. Additional bl ood-like stains were located on the inside and outside of the doorway to the crawl spac e and on the carpet and sewer pipes inside. Entering the res idence , Forrest observed that most of the areas towardthe back of th

e house had been “disturbed.” In addition, more reddish-brown stains were found on the closet door, the carpeting in the hallway, and outside the bathroom and bedroom. In the garage, the police discovered blood-like stains on the wall, one of the steps, and on the tip of a latex glove found

on the garage

floor. Bullets we

re recovered

from the floor in

the front room and the wall in the dining area. The bullet hole in dining area wall had been covered up with a decorative plate.

Forrest

testified that the victim’s body was wrapp ed in a p urple velour bedspread with a yellow electrical c ord looped several times around the victim’s neck and body. Forrest could see

moss and bits of grass on the victim’s legs and forehead. The victim’s head and face showed multiple scrapes, cuts, abrasions and bruises. The victim’s ab domen exhi bited a gunshot wo und with another, different type of wound located immediately to the right of it. Forrest testified that the second wound indicated that the weapon and victim were in very close contact at the time the gun

was discharged. When the body was transported to another location for autopsy , Forrest observed

a total of three bullet

holes: an entrance wound on the left side of the abdomen below the rib cage;

a coinciding exit wound on the victim’s back, indicating a slig

htly downward angle of flight; and a third entrance wound on the victim’s back, below the shoulder blade. Because of the magnitude of th e investigation and resulting processing, the police requested the Tennessee Bure au o f Investigation (“TBI”) send its mobile crime sce ne unit to assist.

Defendant’s name had s urfacedat the beginning of the police investigation as a result of inquiries regarding the identities of persons who may have ha d a motive fo r harming Way ne. Approximately

four days later, Forrest and two other officers w ent to interview Defendant at the Gallatin Marina where he was living on a houseboat. When Forrest told Defendant that he wanted-5-

to talk to him about something that recently happened in Hendersonville, Defendant replied tha the was unaware that anything had happened and the n “just started talking.”

Defendant

told Forrest that hehad discovered some love letters written to his wife by a man named “Wayne.” After

discovering the letters, Defendant confronted Jennifer but told her that he didnot want to

know anything about the man. Afterward, on the Monday after Christmas, Defendant moved into a houseboat he owned. On January 19, 1999, Defendant recei ved divorce p apers and became very d epre sse d. T he fo llo win g Su nda y, January 24 th , Defendant became so alarmed by his depressive state that he threw away his .38 caliber handgun “for his own safety,” bec ause he was afraid that he would harm himself. Defendant told Forrest that he dismantled the gun and placed the various pieces into separate plastic bags. Afterward, he put each of the bags i nto differe nt garbage

cans throughout the ma

rina, and then ca

st the bullets

into the lake. He explained that he discarded the gun in this fashion so that children wo uld not be able to

find it. Defenda

nt further told Fo

rrest that he contacted the NES employee assistance program the next day to get psy chiatric help. He said that he w as n ot a ngry; he merely wanted “order” in his life. During the interview, D efendant favored his left hand which had

a tremor. Forre

st further notice

d that Defendant

also had a fairly substantial gouge at the ba

se of his right thu

mb as well as vario

us other scrapes

on his hands.

When asked to r elate his activities as they occurred during the week that Way ne was discovered

dead, Defendant told Forrest that he had an appointment with his ps ychiatri st on Wednesday

and, after thinking a bit more, that he also tried to work on his boat because it was nice “that day.” When Forrest asked him what day he meant by “that

day,” Defendant answered February 4 th

. He c ontin ued by explaining that he hurt his hand working on the boat’s engine, then che cked his calendar for other things that may have occu rred o n “that day.” At this point, Forrest had not mentioned to Defendant any specific day or time regarding the homicide. When qu estioned specifically about Wayne’s death, Defenda

nt stated that he did

not know any

thing about it–he d

id
notknow anything

about the man, his last name or where he lived, and he had never met him or been to his house or talkedto him. Days la ter, on Februar

y 11, Defen

dant called For

rest to tell her that he re called talking t

o a neighbor nam

ed “Downs” on the

evening of Fe

bruary 4 a

nd that he spok e with some other neighbors on the morning of February 5.

Defendant

signed a statement (the gist of which contained the above information an d was read into evidence at trial), and then gave the police permission to search his boat. Pursuant to the search, the police discovered three latex-type gloves similar

to the type of glove found at the murder

scene and some clothing

with reddish-brow

n stains. Defenda

nt agreed to

be fingerprinted and give the police hair and blood samples. Later, on February 23, Forrest obtained an

arrest warrant and a search warrant for Defendant’s boat. A second search revealed a .38 caliber handgun and forty-five rounds of ammunition hidden behind a drawer in the kitchen.

Larry Braddon, a store manager at Friedman’s Arm y-Na vy in Nashville, testified that on February 16, 1999 (twelve d

ays after Cope’s murder) D

efendant purchased a .38 caliber “D avis” pistol.-6-

Ray DePriest, a fore

nsic scientist

working for the TBI, testified that he specialized in th

e field of serol ogy (the study of human body fluids) and DNA analysis. Specifically, his job entailed comparing stains collected from a crime scene to known blood standards through the use of

s erologicaland/or DNA profiling methods. DePriest belonged to a TBI crime sce ne un it whic h typically consisted of

several TBI agents with extensive tra ini ng in spe cia liz ed ar eas: spe cif ica lly,

a firearms expert,

a latent finger

print examiner, a mi

croanalys t, and a serologist DNA expert, such as DePriest.

On February

5, the TBI re

ceived a reque

st from the Hender

sonville Police Dep

artment to assist local law enforcement in co llecting and processing evi dence. The TBI crime unit arrived shortly thereafter an

d began proce

ssing the exterior

of the victim’s hous

e. The DNA profi

le results indicatedthat the blood sampl es recovered f

rom the stains foun

d on the victim’s tru

ck belonged to Defendant. DePriest further testified that theprobability of someone else’s bl

ood having the sa

me profile as Defendant’s was less than one in six billion. The same profiling test was performed on blood samples recovered from a latex glove tip, a vacuum cleaner from inside the house, a belt from the victim’s pants found lying on the bedroom floor, the carpet from the hallway, and the clothing taken from Defe

ndant’s boat. All sa

mples contained bl

ood belonging to

Defendant.

Teri Arney, a T

BI forensic

chemist assigne

d to work in

firearms identification, testified that sh e was a member

of the TBI crime unit called to process the crime scene on Fe bruary 5, 1999. Arney testified that the bullets recovered from the victim’s body

and the crime scene were all fired from a Rossi, Ruger, FIE, or similar make of .38 caliber revolver. Bec ause of the mutilated condition of the bullets, however , Arney cou

ld not tell whether all of the bullets recovered from the crime scene were fired from the same gun. Arney further testified that the victim’s stomach wound

was inflicted from a very close range, i.e., t he bull et hole was characteristic of a “contact or nearcontact” shot. By con

trast, the bullet w

ound to the victim’s b

ack was inflicte

d from a dist ance of approximately five feet or more.

Oakley McKinney, a

TBI forens

ic expert in

the area of

latent fingerprint processing, testified that he was also a member of the TBI crime unit called to assist the Hender s onville police. McKinney

processed a palm print

recovered from the door to the basement where the victim’s body was discovered.

The print belong

ed to the right ha

nd of Defendant.

Dr. Charles Harlan, a fore n sic pathologist, testified that he performed an autopsy on the victim, Wayne

Cope. The cause o

f death was found

to be gunshot woun

ds to the chest and abdomen. Dr. Harlan testified that the vict im su ffered a total of three gunshot wounds, two wounds of entry and one of

exit, which were c

aused by two

gunshots. Specif

ically, the shot to the chest

entered the upper left portion of the abdomen, forty-eight inches above the heel, and e xited above the back of the left hip bone, forty-two inches above the heel. The trajectory of the bullet through the bod y shows a downward angle of travel (a six-inch drop from entrance to exit wound). The wound to the victim’s back entered be

low the tip of the le

ft scapula (shoul

der blade) and d

id not exit. Inste

ad, this bulletlodged in the victim’s spinal canal. The wou nd to the chest was fatal because it caused bleeding as it passed through the lung and also

cut the small

intestine in three

places which wou

ld-7-

cause a fatal infection at a subsequent time. By contrast, the bullet which entered the victim’s back would have caused paralysis from the waist down if he had lived. Dr. Harlan further testified that abrasions present on the vic tim’s face, hand

s, and legs were

consistent wit

h in juries which could have occur red be fore, durin g, or w ithi n fift een mi nutes of the victi m’s de ath. In sum, the victim’s collective injuries indicated that he was shot twice and then, at or about the time he died, dragged by the feet so

that his face was rubbed against either carpet or asphalt. At some point afterward, the victim was also dragged by his head so that his feet beca me similarly scraped.

The defendant, Robe

rt Lee Pattee

, Jr., testified that

he and his wife, Jen

nifer, moved to Franklin, Kentucky in October of 1997. In July of 1 9 98, Jennifer went b ack to work in Nas

hville

a nd rented an apar

tment close to her j ob. When Defenda nt helped her move

her belo ngings an d asked her for a

key to her n

ew apartment,

she re spond ed “No .” It was at this point that Defendant feared their marriage was over. In the weeks immediately following Jennifer’s move, she would frequently

return to Kentucky on weekends but this did not last long. Within a few months she was coming home less and less. On A ugu st 30, 1998, Defen dant was injured o

n the job and forc

ed to quit working. In November

he underwent surgery, and in December of 1998 the house that he and Jennifer had owned accidentally burned down. Defendant then moved into the houseboat which he had purchased in June of 1998.

Defendant le arned that Jennifer was seeing Wayne during the wee k after Christmas 1998. Jennifer had since returned to Franklin, Kentucky to live close to her parents. While Defendant was helping Jennifer move back, he found two love letters and a picture of a man. The back o

f the photo

was signed “Wayne.” Defendant testified that he c onfronted Jenn ifer with the fact that he “knew about Wayne,” but told her he did not want to know anything mor e about him.

Defendant

testified that, in January of 1999, he received divorce papers and this devastated him. The next Sunday

he placed a gun

in his mouth and was a

bout to pull the trigger when he looked up and saw a photo of his grandchildren. At this, he changed h is mind and dismantled his gun, placing the pieces in different bags for disposal in various garbage receptacles. He claimed that he didnot want anyone to see him toss a gun into the water. Defendant threw the bullets into the lake.

Shortl y thereafter, Defendant was returning from a shopping trip when he obs erved Jennifer’ s
car. Defendant testified that he followed it to 146 Luna Lane, wrote down the addr ess, and then drove back

to his boat. Later on, Defendant drove by the a ddress again. This time he stopped and looked in the mailbox to learn the name of the occupant. Then, to satisfy his “curiosity ,” Defendant calleda friend at NES to verify the name and address and find out if Dennis Wayne Cope owned any other property. At this time, Defendant had been tryi ng fo r days , un suc cess ful ly, to contact his wife
to inform her that her car insurance was about to be cancelled. He had conclude d that she was out of town since her car remained parked in front of her house. On the evening of February 4, 1999, he telephoned her again but received no answer. After he hung up a tapp rox ima tel y 12:15 a.m., Defendant

drove over to 146 Luna L ane to talk to Wayn

e about Jennifer, “

hoping that he wo

uld understa nd [Defendant’s] point of view.” Defendant claimed that he had no knowledge of thei r plans to be married.-8-

When Defendant arrived at Wayne’s residence on L una Lane, he knocked on the front door several times before he heard anyone respond. The door was still closed when Way ne asked who it was. Defendant told him. Then Wayne asked Defendant what he wanted, and

Defendant replied that he wanted to talk to Wayne about his wife. Wayne asked whether Defendant had any weapons
on him. De fendant replied, “No,” but Wayne said, “I know you’ve got a gun.” After Def endan t informed Way

ne that he had go

tten rid of it, Way

ne told Defendan

t “to go around to the side door by the garage. ” Defendant d id as he ask

ed and stood there for a while. When Wayne opened the door, he made D efendant pull up h is shirt and pant leg

s to reveal that he

had no weapons on h

im. Wayne let Defendant inside, then patted him down in a further search for weapons before they went into the kitchen to talk.

Once in the kitchen, Defendant told Wayne that he still loved his wife and would apprec iate it if Wayne would not see

her anymore. D

efendant testifi

ed that this stateme

nt made Wayne

“really mad.” Wayne then showed Defendant some photographs of Jennifer with his family. One showed J ennifer talki ng on the phone and wearing nothing but a shirt. The following words were on the back: “We got don

e early, so

we made love till 2: 30.” Defendant claimed that this “

hit” him.

Meanwhile, Wayne had come up behind Defendant with a pistol. He put it in Defendant’s face and said, “I’ ll take care of th is problem of Jennife

r’s right now.”

Defendant t

est ified that he then grabbed the gun with his right hand and they started w restling. (Defendant

was left-handed, but he claimed that his left hand had been injured.) As Defendant struggled to keep the gun pointed away from him, it went off. When this happened, Wayne moaned and loosened his gri p on Defen dant. Defendant thoug ht he “saw [his] chan

ce” to get awa

y. As he trie

d to run out o f th e house, however, Wayne caught him in the hallway and hit him in the back of the head “with a

pistol

or something.” As Defendant “went down,” Wayne “continued to beat on [Defendant] there on the tip and on the back of [his] head. Then he kicke d [him] in the ribs . . . wh ere he had troub

le with [his] accident.” At so

me point, Defenda

nt was able to use b

oth feet to push Wayne

off of him and try to escape again . But Defendant had only re

ached the kitche

n when Wayne

“hollered for [him

] to stop or he – he was going to shoot [hi m] right the re.” Defendant stopped. When he turned around, Wayn e po inted his gun at him and said, “This is going to work out just right, you know.” Wayne explain

ed to Defendant that he was going to kill him, and then claim that Defendant broke into his house so he was forced to shoot him in self-defense . Wayne furt her expounded that

, since his gun had the serial numbers removed from it, Wayne planned to tell the police that the g un belonged to Defendant. Wayne was raising the gun to Defe n dant’ s head as he talked, but then he stepped on a cat or something and fell over. As Wayne fell, Defendant threw something “like a

cell phone” at him whic

h had been sitting

on a table

near by. The gun went off, and Defendant felt the bullet sail past his ear.

Wayne had hit his head and was laying there motionless, so Defendant got the gun out of his hand and said, “Stop right now.” At this, Wayne got up, knocked Defendant down again and started kicki ng him. Defendant testified that he kept telling Wayne to stop because Defenda nt now h a d possession of the gun. Wayne did not stop, however. Instead, he went into the kitchen and returned wit h a k nif e. A s he lun ged a t De fend ant , De fend ant ste ppe d aw ay, butWayne only lunged at him-9-

again. The second time, D efendant tried t

o shoot him in th

e shoulder as he went by. Defendant claimedthat this accounted for the victim’s back wound. After Wayne was shot the sec ond time, he fell back into the garage and Defendant heard no further

sound or movement. When Defendant finally peered into the garage, Wayne wa s lying face down in a pile of boxes. Defendant checked for a pulse but found none.

De fendant

testified that he did not call the police because he was “scared.” He looked for his glasses and discovered them laying in the hallway , smashed to pieces. Defendant fel t that he needed some time and did not want to leave Wayne lying ther e, so he rolled the body up in a bedspread. Defendant claimed that “never once did he abuse [Wayne].” Instead, he a pologized to him as he tied an extension cord around the dead body. Defe ndant could not drag Wayne’s body through the garage door because Wayne ’s truck was parked too close, so Defendant moved his truck. He reached into the cab, put the truck into neutral, and pushed it out of the way. Since Way ne was
a “pretty he

althy fellow

,” it then took Defendant approximately an hour to drag him the length of the hou se t o th e cra wl s pace whe re he hid the bod y.

Defendant

testified that the bloodfound on the truck and in the house came from a wound
to his thumb. He tried to stop the bleeding by putting on a pair of latex gloves that he car ried around in his toolbox. The pl ate covering the bullet hole was pla ced there by

Defendant in an e

ffort to straightenup the scene after he killed Wayne. Defendant thought he was merely

replacing the p

late he had knocked down

during the skirmi

sh. He did not know th

at a bullet hole wa

s u nder neath it because he had broken his glasses and cou ld not see well. The vacuum cleaner had also been knockeddown, so he set it upright. Defendant left Wayne’s house at approximately 3:30 a.m. He droppedthe gun and the knife into the Cumberland River from the bridge on

Highway 1 09 on his way back to

his boat.

Defendant

claimed that, initially, he did not fear Wayne and that he never intended to

kill him buthe did begin to fear

for his life when Wayne started waving his gun around. Defendant testified that he did not have a gun with him when he went to t alk wit h Wa yn e. Defendant purchased a weapon after the killing, on February 16, because he was had received numerous anonymous phone calls from people who would hang up when he answered. In addition, people had been driving up to his boat at night

and shining their

headlights

into the cabin. Defendant “figured somebody was after [him] for what happened to [Wayne].”

During cross-examination , Defendant expla

ined that he went to

see Wayne p

erso nally
, instead of speaking to him by telephone, because some things “have to be sa id in person.” Defendant deniedthat he went to Wayne’s house expecting to find Jennifer or to catch his wife with another

man. Defendant admitt

ed that the morning

after the killing, he met his friend s for breakfast

just like he did every Frida

y a s though nothing was wrong. Defendant also admitted that when he was questioned about the killing he falsely told everyone , including the police and his son, that he knew nothing about the

incident.

ANALYSIS-10- I. Jury Instructions

Defendant

contends that

the trial court er

red by ref using his reques

tto instruct the jury on the lesser-included

off ens e of v olu nta ry ma nsl augh ter . Sp eci fic all y, Defendant argues that the evidence

was sufficient to support a conv iction for vol untary manslaughter and therefore, under State v. Burns
, 6 S.W.3d 453 (Tenn. 199 9), he was entitle

d to instructions for

the lesser-inclu

ded o ffense. W

e disagree.

Defendant

was indicted for f

irst degree murder, Tenn. Cod e Ann. § 39-13-202

, which is defined, in part, as the “premeditated and intentional killing of another.” Specifically, defendant was charged with “unlawful, feloni ou s, intentional and p remeditated killin

g” of the victim,

Dennis Wayne Cope . Voluntary manslaughter differs, in part, from first deg ree murder in that it is the “intentional or knowing killing of another in

a state of passion produced by adequate provocation sufficient to lead a reasona

ble person to

act in an irrational manner.” Tenn. Code Ann. § 39-13-211 (1997) (emphasis added).

“A trial court's du

ty to charge jurie

s as to the law of ea

ch offense ‘inc

luded’ in an indictment has been statutorily mandated in this State for some time.” State v. Burns , 6 S.W.3d 453, 464 (Tenn.1999); see also Tenn. Code Ann. § 40 -18-110(a) (19

97) (obligating

the trial judge to

charge “the jury as to allof the law of each offense included in the indictment, without any request on the part of the defendant to do so”). Defendant’s argument fails for two reasons.

First, Defendant was not entitled to instructions for voluntary manslaug hter as a lesserincluded offense under Burns

. Voluntary ma nslaughter is cl

early a le sser-included of

fense of first degree and second

degree murder. State v. Dominy , 6 S.W.3d 472, 477, n.9 (Tenn. 1999). Neither party disputes this. However, our supreme court’s decision in Burns does not require the trial court
to instruct the jury on all lesser-included offenses of the charge d offense. Under Burns , whether a lesser-included

offense should be charged is a two-step analysis. I ni tiall y, the trial c

ourt must determine whether any evidence exists which reasonable minds co uld accept as to the lesser-included offense. Bu rns , 6 S.W.3 d at 469. When making this determination

, the trial court is

obligated to view the evidence liberally in the light most favo

rable to the existen

ce of the lesser

-included offen

se withoutmaking any judgments on the credibility of s uch evidence

. Id. Next, the trial cour t must determine whether the evidence, when viewed in t his ligh t, is legally

sufficient to supp

ort a conviction for the lesser-included offense. Id.

The record reveals that, after the conclusion of proof and before instructing the jury , the trial
court heard arguments from Defendant and the State regarding the proposed instructions. The State argued then, as it does in its

brief to this Court,

that the proof add

uced at trial was

insufficie

n t to sustain a con vic tio n fo r vo lun tar y m anslaughte r. The trial court agreed, finding that the evidence presented at trial did not show

“that passionate

response that . . . calls for

the voluntary manslaughter instruction.” As the trial court pointed out, “at no time . . . did [Defendant] say he was upset. He said

. . . he was [at the victim’s house] to discuss the matter.” And, when Defenda nt was aske d whether he felt better or worse the day after he killed the victim, he stated mer ely that he felt “n o-11-

different.” Thereafter, the trial court concluded that to find Defendant guilty of v olun tary manslaughter would require a “strained interpretation” of the evidence.

After a review of the record, we concur with the trial court’s conclusion that Defendant was notentitled to a jury instruction for voluntary manslaughte r. The record

contains no evidence which reasonable

mind s coul d accept as to the crime of voluntary manslaughter, eve n when viewed l iberally in the light most favorable to the existence of such crime and without making any judgments

con cern ing c redi bil ity. Defendant’s testimony at trial was aimed to support his claim of self-defense. As the trial court observed above, at no time did Defendant provide evidence that his actions were the result of “ adequat e provocation.” Even Defendant

’s reaction to the

photo of his half-dressed

wife, complete with sexually-explici t comm entary on the back, failed to suggest that Defendant

was operating under the requisite “state of passion” for volun tary mansl

aughter. Defendant testified only that the photo “kind of really hit [him] right there.”

Sec ond ly, even if it were error not to instruct the jury

on voluntary manslaughter, such error would be deemed to be harmless. See State v. Williams , 977 S.W.2d 101, 106 (Tenn. 1998) (“the trial court's erroneous failure to charge voluntary manslaughter was harmless bey

ond a reasonable doubtbecause the jury's verdict of guilt on the gr eater offense of first degree mu rder and its disinclination to consider the lesser-included offense of second degree

murder clearly demonstrates that it certainly would not have returned a verdict on voluntary manslaughter”). For the forgoing reasons, Defendant is not entitled to relief on this issue.

II. Admissibility of Evidence

Defendant

argues that the trial court’s failure to allow Defenda

nt to introduce his suic

ide note into evidence at

trial constituted error. Defendant contends that the State’s method of impeachment transformed

the character of his suicide n ote f rom a “self-serving” hearsay statement to a pr ior consistent statement which was then necessary and,therefore, admissible to rehabilitate Defendant at trial. We disagree.

Regarding admissibility of evidence in general, “[i]t is well-established that trial courts have broaddiscretion in determining the admiss ibility of evi dence, and t heir rulin gs will not be reversed absent an abuse of discretion.” State v. Stinnett , 958 S.W.2d 329, 331 (Tenn.1997). Out of court
statements

are generally not admissible because they are considered

to be hearsay. See Tenn.R.Evid. 801, 802. This includes prior consistent statements offered to bolster the witness’ credibility. See Farmer v. State , 296 S.W.2d 879, 882 (Tenn. 1956); State v. Bra ggs , 604 S.W.2d 883, 885 (Tenn. Crim. App. 1980).

An exception exists when the prior consistent statement is offe

red to rehabilita

te a witness after a witness has been i

mpeached by

a prior inconsiste

nt statement,

or when insinuations of recent fabricationhave been made or deliberate falsehood implied. See Farmer , 296 S.W.2d at 882; State

v. Tizard , 897 S.W.2d 732, 746 (T enn. Crim. App. 1994

); Stat e v. Benton , 75 9 S.W.2d 427, 433 (Tenn. Crim. App.1988). The witness’ testimon y must have been attacked to the extent that the-12-

witness’ testimony needs rehabilitating. Benton , 759 S.W.2d at 434. And, where a prior consistent
statement is introducedinto evidence at trial, it must have been made before the inconsistent one. See Tizard , 897 S.W.2d at 746; Ne il P. Cohen et al., Tennessee Law of Evidence § 803(1.1).3 (3d ed. 1995).

When Defendant was first questioned by the police regar ding the victim’s death, he denied having any knowledge of the crime or the victim. Subsequentl y, the police

gathered evid

ence against Defendant

and obtained a warrant

for his arrest. On April 27, 1999, while Defendant was in jail, he wrote and mai led a su ici de n ote befo re at tem pti ng, u nsu cces sfu lly, to commit suicide. The suicide
notecontainedDefendant’s sum mary of the

events leading

to the killing, including his fight with the victim and claim of

self-defense. After obtaining the note, the State filed a pre-trial motion in limine
to prohibit Defendant from referring to or introducing the suicide note at trial and Defendant acquiesced. The trial court granted the State’s motion.

After the State ’s cross-examination of Defendant at trial, Defendant requested a jury -out hearing to reargue admissibility of the suicide note on the ground that the State rendered it a “prior quasi consistent stateme

nt” when it questioned Defendant. Specifically, Defendant arg ued that the prosecutor’s statement wherein he claimed that Defendant “never once told anyone

that this man was lying, wrapped up, in his own home down in his crawl space . . . ,” effectively “opened the door” for Defendant

to introduce rebuttal evidence that he did, in fact, tell someone about the killing when he wrote the note. Defendant also asserted that the note was necessary to rehabilitate Defendant after the State’s implication that Defendant’s self-defense argument was a recent “fabrication.”

The State responded

that Defendant “

misread the conte

xt” of its questions, i.e ., the State had onl y pointed out that on the day after Defendant committed the killi ng, he went about his business as though nothing h ad happened and without a word to anyone about the homicide. The trial court ag ree d with th e State, commenting that the State’s interpretation was “the context in which the Court took it,” but also consented to reread the transcript and hear further argument bef ore ruling on the matter. After doing so, the trial court denied Defendant’s request, finding that “it was fairly clear . . . that the door was not opened.”

After a review of the record, we agree with the trial court

that the State’s line of questioning did not “open the do

or” to allow Defe

ndant’s note

into evidence for purposes of rebuttal. Neither didthe State’s comments infer that Defendant’s claim of self-defense was a “r ecen t fabrication” requiring rehabilitation. Co nversely, t

he record reve

als that the Sta

te asked Defendant if the discovery o

f his palm print at the murder scene on February 22, 1999 (seven mon

ths prior to trial)

was what caused him to change his story from alibi to self-defense. This statement opposes any implication that Defendant onl y “rec ent ly” concocted the self-defense theory. Thus, the trial court did not abuse its discretion when it refused to admit Defendant’s note into evidence.

Last ly, Defendant’s sui

cide note could

not be used to refute the inconsistent statements he made to the police concerning an alibi, since any and all statements wher ein Defendant claimed

he

was acting in self-defense clearly occur red subsequent to

the alibi claims. Where a prior consistent statement is introduced at trial, it must have been made before the inconsistent statement to be-13-

admissible. See Tizard , 897 S.W.2d at 746; Neil P. Cohen et al., Tennessee Law of Ev iden ce § 803(1.1).3 (3d ed. 1995). Defendant is not entitled to relief on this issue.

III. Sufficiency of the Evidence

Defend ant

argues that the evidence of premeditation presented at trial was insuffici ent t o convict him of first d

egre e murder. In

a similar vein, De

fendant contend

s that the evidenc

e fairly raised the is sue of self-def ense and that the S

tate failed to ca

rry its lawf

ul burden to disprov

e it

. Therefore, because the State failed both to prove premeditation and to negate Defendant’s claim of self-defense

beyond a re

asonable doubt, Defendant asse

rts that the judgme

nt of the trial cour

t must be reversed. We disagree.

The proper

inquiry for an appellate court determining the sufficiency of evidence to support

a conviction, is whether, considering the evidence in alight most favorable to the prosecution, any rational trier of

fact could have found t

he essential ele

ments of the crime

beyond a re

asonable doubt. See J ackson v. Virgin

ia , 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2

d 560 (1979); State v. Hall
, 8 S.W.3d 593, 599 (Tenn. 1999). “A guilty verdict by t

he jury, ap

proved by th

e trial court, ac

credits the testimony of

the witnesses for the State and resolves all conflicts in favor of the prosecution’s theory.” St ate v. Bland , 95 8 S. W.2 d 65 1, 6 59 ( Ten n. 1 997 ). Q ues tio ns a bou t th e cre dib ili ty o f witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence are resolved by the jury, not this Court. Id. Nor may this Court substitute its inferences drawn from circumstantial evidence for those dra wn by the trier of fact. See Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956).

The standardfor appellate reviewis the same whether the conviction is based upon direct or circumstantial evidence. See Statev. Vann , 976 S.W.2d 93, 111 (Tenn. 1998). A conviction may be based entirely on circumstantial evidence where the fa cts are "so clearly interwov en an d connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant alone." Statev. Smith , 868 S.W. 2d 561, 569 (Tenn. 1993 ) (quoting State v. Duncan , 698 S.W.2d 63, 67 (Tenn.1985)). A verdic t of guilt removes the presumption of innocence and replaces it with a presumption of guilt, an d on appeal t he defendant has the burd en of illus trating why the evidence is insufficient

to support the verdict rendered by the jury

. Id. ; see also State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In contrast, the State on appeal is entitled to the strongest legitimate view of the trial evide nce an d all reasonable and legitimate inferences which may be drawn from the evidence. See Hall , 8 S.W.3d at 599; Bland , 958 S.W.2d at 659.

A. Premeditation

First degree murde

r is defined, in pa

rt, as “the preme

ditate d and inte ntional killing of another.” Tenn. Code Ann. § 39 -13-202(a)(1)

(1997). “Premed

itation” is described as “an

act done-14-

after the exercise o f reflection an d judgment.” Id. § 39-13-202(d). To find a defendant guilty of premeditated

murder, “the intent to kill must have been formed prior to the act

itself,” and it must be determinedthat “the accuse d was sufficientl

y free fr om excitement and pa

ssion as to be capa

ble of premeditation.” Id. “Intentional” refers to a person who acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person’s conscious objective or desire to engage in the conduct or cause the result. Id. § 39-11-302.

Because premeditation entails proof of a state of mind about which there may be no direct evidence, “cases have lon g recognized t

hat the necess ary

elements of first degree murder may be shown by circumstantial evidence.” State v. Brown , 836 S.W.2 d 530, 54 1 (Tenn. 1992). Premeditation is a question of fact to b e det erm ine d by t he j ury. State v. Suttles , 30 S.W.3d 252, 261 (Tenn. 2000). And, the jur y may i nfer premedita

tion from the manne

r and circumst

ances of th

e killing. See State v. Pike , 978 S.W.2d 904, 915 (T enn. 1998); State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997); State v. Bordis , 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Our supreme court has enumerated several factors that may support the existence of p reme ditation and deliberation, includi ng: (1) declarations by the defendant of an intent to kill, (2) evidence of pr ocurement

of a weapon, (3) th e use of a d eadly weapon upon an unarmed victim, (4) the particular crue lty of the killing, (4) infliction of multiple wounds, (5) preparation before the killing for concealment of the crime, (6) destruction or secretion of evidence of the

murder, and (7) c

almness immediate

ly after the killing. State v. Nichols , 24 S.W.3 d 297, 302 ( Tenn. 2000 ) (citatio ns omitte d). Althou gh deliberation is no longer an element of firs t degree murder in Tennessee, the two elements were considered

s imilar

. See id. (factors used by the court were relevant to either pr emeditation, deliberation, or both). The primary difference is timing. Premeditation is capable

of instantaneous formation, while deliberati on required some

period of reflection, during which the mind was “free from the influence of

excitement, or pas s ion.” Id. (citing State v. Brown , 836 S.W.2d 530, 540 (Tenn.1992)).

Here, the evidence at trial presented at least three of the above factors from which the jury could infer premeditation. First, Defenda nt used a deadly

weapon on an unarmed victim. There was only one gun, and De

fendant possesse

d it when he shot the

victim. Although th

e victim was able
to arm himself with a k

nife at a later po

int inthe struggle (according to Defendant’s version of selfdefense), the first bullet wound was the primary cause of death according to the testimony of Dr. Harlan. Second, Defenda nt inflicted multiple

wounds on the victim

, one in the back a

nd another in the abdomen. Third, calmness after the killing, is made apparent by Defendant’s testimony that he went home, cleaned up, then met his friends for coffee. Other related factors include D efendant’s stalking his wife as she drove to the victim’s house; his snooping through the victim’s mail to verify his identity; and his confirming the victim’s address through his contact at NES. I n their totality, the aforementioned

circumstances are sufficient for a jury to infer that De fendant’s account of his own gun’s disappearance was untrue and that Defendant, instead, took his gun to the victi

m’s house with the intent to kill him and d id so, dis p osing of the gun afterward so that he later found it necessary to buy a replacement. Whether or not premeditation existed is a jury que stion, and Defendant has
notmet his burden of ill

ustrating why

the evidence is in

sufficient to

support their decision regarding this matter.-15-

B. Self-Defense

Defendant

also contends that the evidence pre sented at trial fairly raised the issue of selfdefense as a justification

for his crime and

, thus, the State

was required by

law to negate th

is defense beyond a reasonable do

ubt. Defendant ass erts that his conviction should be reversed because the State failed to carry this burden. We disagree.

In Tennessee, “a person is justified in threatening or using force against anothe r person when and to the degree

the person reaso

nably believes the for

ce is immediately

necessary to protect agai

nst the other's use or attempted use of unlawful force.” Tenn. Code Ann. § 39-11-611(a) (1997). The person must have “a reasonable belief that there is an immine nt danger of de ath or serious bodi

ly injury.” Id. Furthermore, “[t]he danger creating the belief of imminent death or serious b

odily injury must be real, or honestly believed to be real at the time, and must be founde d upon reasonable grounds. Id. No person may be convicted of an offense unless the prosec ution proves, be yond a

reason able doubt, “[t]he nega tion of any de

fense to an offe

nse defined in this

title if admissible evidence is introduced supporting the defense . . . .” Id. § 39-11-201(a)(3). Self-defense qualifies

as such a defense. Id. § 39-11-610; State v. Belser
, 945 S.W.2d 776, 782 (Tenn. Crim. App. 1996). And, “[t]he issue of the e xistence of a defe

nse is not submitted to the jury unless it is fairly raised by the proof.” Tenn. Code Ann. § 39-11-203(c).

Since the tria

l court grant ed Defendant’s request to submit instructions to the jury on the issue of self-defense, we find any question rega rding whether the d efen se was fairly raised was previously

settled in Defendant’s favor. See id. § 39-11-203(c). The remaining question concerns whether the State negated Defendant’s claim of self-defense beyond a reasonable doubt. We find that much of the same evidence w hich proved that Defe ndant acted with p

remeditation woul

d similarly prove that he did no t act in self-d efense. For example, we find the following facts may prop erly infer that Defendant did not act in self-defense: Defendant made certain that he had th e correct address of the vic

tim; Defendant vis

ited the victim

after midnight (

not a socially

acceptable time for most people to visit unexpectedly); one of the gunshot wound

s entered the vic

tim’s back ; Defendant

destroyed or concealed the evidence of the crime; and, Defendant

gave false sta

tements to everyone, including his family, whe n questioned about the incident.

The record reveals that the trial court granted Defendant ’s request that the trial judge give the jury Tennessee Pattern Jury I nstruction 36.02. Since this instruction requires that the trial judge pointout that the burden

was on the State to p

rove beyon

d a reasonable

doubtthat Defendant did not act in self-defense, we may

assume that

this is what they found. Juries are presumed to follow the instructions given by the

trial judge. State v. Williams , 977 S.W.2d 101, 106 (Tenn.1998). Granted, circumstances which favored th e Defendant’s c

laim of self-defens

e were also

presented at trial, e.g., that the victim was the owner of the gun, that the victim attacked Defendant first, et cetera. However, credibi lity issues a re matters for the jury to resolve, not this Court. Defendant is not entitled to relief on this issue.

IV. Conclusion-16-

For the forgoi

ng reasons, we

AFFIRM the ju

dgment of the tri

al court.

____________________________________ THOMAS T. WOODALL, JUDGE