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

ebruary 6, 2001
STATE OF TENNESSEE v. ALFONZO CHALMERS
Appeal from the Criminal Court for Shelby County No. 98-09236 Chris Craft, Judge

No. W2000-00440-CCA-R3-CD - Filed April 4, 2001

The defendant appe

als from his

conviction for

first degree premeditated murder. He contends that the evidence is insufficient to support the conviction and that the trial court erred by

impermissibly commenting on the evidence in violation of article VI, section 9 of the Constitution of Tennessee. We affirm the judgment of conviction.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J ERRY L. S MITH and J OE G. R ILEY , JJ., joined.

A C Wharton, Jr., Shelby County Public Defender; Garland Ergüde n, Assistant Public Defender (on appeal); and Mozella Ross, Assistant Public Defender (at trial), for th

e appellant, Alfo

nzo Chalmers.

Paul G. Summers, Attorne y General

and Reporter; J. Ro ss Dyer, As sistant Attorney General; William L. Gibbons, District Attorney General; and Scott Gordon, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The defe ndant, A lfonzo Chalmers, appeals as of right from his conviction by a Shelby Cou nty jury for the first degree premeditated murder of Antonio Gray . The defendant received a sentence of life in prison. The defendant contends that (1) the evidence was insufficient to support his conviction and (2

) the trial court i

mpermissi

bly comment ed on the evidence, in violation of article VI, section 9 of the Constitution of Tennessee, when it instructed the jury conc erning leading and non-leading questions.

At trial, Michael Young, a maintenance worker at the Watkins Manor Apar tments in Memphis, testified as follo ws: On February

25, 1998, around 3: 00 p.m., he was o n hi s wa y to preparea vacant apartment for new ten ants on the se cond floor of Building 2625 when he heard gunshots. He ducked quickl y into the vac

ant apartment an

d called his super

visor on a two-way

radio-2-

and told him that he heard gunshots and to call 911. He then stepped outside the apartment to see what was happening, and he

saw the victim lying on the pavement outside Building 2611, which was across a drive from Building 2625. A man was standing over the victim

and pointing a gun at the victim’s head. Then the man fired one shot into the victim’s head. As Mr. Young was coming down the steps, he saw the man with the gun pass him driving a “Chevrolet, blue or gray , about 78, 79, Oldsmobile

or something like

that, boxcar Chevr

olet.” He did not se

e the man with

the gun getting into the car, and he did not see what the man did with the gun.

Mr. Young testified

that he went direc

tly to the vict

im to see if he could

help him. He said that he did not move the victim’s body but that he put water on the victim’s face. The victim did not respondin any way. He stated that he did not see a gun on the victim’s body and that he never saw anyone take a gun off his body. He said tha t h e never lost sight of the body from the time of the gunshot in to the victim’s head until he reached the body. He testified that he was able to identify the defendant as the shooter from a photo spread shown to him by police detectives on the day after t he shooting . He said that he had seen the defendant on a number of occasions in the apartment complex, including in apartment 8 in Building 2611, when he h ad gone into that apartment on maintenance calls. He stated that he bel ieved that apart

ment 8 belonged to a woman named Sophia.

Alan King testified as follows: Onthe afternoon of theshooting, he went to Watkins Manor Apartments

to visit his girlfriend. He arri ved wit h his brother, Ale

xander King, and

the victim, AntonioGray, met

them. As he, his brother, and the victim were walking around Building 2611, the defendant came out of the building. William Yarbrough, the husband of hi s cousin, was also outside Building 2611. The defendant was carrying a nine-millimeter handgun, car keys, and a cellular telephone charger. The defendant placed the gun on the hood of a “gray Delta 88,” opened the car with his

keys, threw the telephone charger into the ca r, and shut

the car door. The defendant then took the gun off

the hood of the car and walked toward the group. The defendant put his arm aroundAlexander King and walked with him to the apartment from which the defendant had le ft. The defendant asked him how he was doing, and then looked at the victi

m and asked, “What’s up, my Ni***r?” The victim did not respond, and then the defendant shot the victim, which caused the victim to cross his arms and lean forward. The defendant kept shooting, and after the second or third shot, the victim ran. The defenda n t, still shooting, pursued the victim, and the victim fell to the pavement after the

fourth or fifth shot. The defendant then leaned over the victim and shot him in the head. Mr. King said that neither he nor the victim had a weapon.

On cross-examination

, Mr. King testi

fie d that he knew the defendant and knew where he lived with

Sophia Reed. He sa

id that he had previously seen the defendant driving a “pea rl cream box Chevy with a dark brown top with some gold rims,” and the car had a number of bullet holes in it. He stated that this was not the same c ar as the one in wh

ich the defenda

nt left immediately after the sh ooting. According to the defendant’s fiancé, who testified later for the defense, the car shooting had occurred approximately a week before the shooting of the victim at Watkins Manor.

Detective Miguel Aguila with the Memphis Police Department testified as follows: He was
one of the officers responding to the report of a shooting at Watkins Manor on February 25, 1998,-3-

and learned that the

defendant was a

possible suspect. Wh

en someone at the sce ne made contact withthe defendant by telephone,he spoke with a male w ho identified himse

lf as Alfonzo and sa

id that he had shot the vic

ti m because the vi ctim was going to kill him. He arranged to meet the defendant at the home of the defendant’s aunt, and when he arrived, the defendant appeared scared and upset. The defendant “just kept saying over and over tha t he had to shoot Toni, that Toni had shotat him a week prior to this incident and shot up his vehicle, and that he was scared that Toni was going to kill him so he had to shoot Toni.” The defendant did not have a gun with him, and a gray Oldsmobile at the ho

use was identifie

d as the defenda

nt’s.

Detective Aguila testified that when he put the defendant in his squ a d car, he asked for personal information onl y . He said that the d efendant “see

med fine,” except

that he was “a litt

le nervous and scared,” and that everything the de fendant said made sense.

Officer Aaron Merritt with the Memphis Police Dep artment Crime

Scene Unit testified that he retrieve

d four, sp

ent nine- millimete r casings from the

crime sce

ne at Wa

tk ins Manor. Addi t ion all y, Steve Scott, a special agent forensic scientist with the Tennessee Bureau of Investigation, testi fied that by microscopically

examining the four

casings taken f

rom the crime scene, he was able to det

ermine that all

four casings were fired from the same gun. Age

nt Scott said that he was one hun

dred percent c

ertain of these r

esults.

Dr. Wendy Gunthe

r, a forensic pa

thologist with the Re

gional Forensi

c Center in Shelb

y Cou nty, testified that she performed the autopsy of the victim. Dr. Gunther testified regarding the four gunshot wounds to the victim as follows: The bullet that caused the victim’s death entered the victim’s head in front of his ear, fracturing bones, including his first cervical vertebra , and hitting all the blood vessels that supply blood to the brain. The bullet was lodged in the victim’s neck. A secondbullet entered the victim’s right buttock, and it was found in his right thigh. Th is wound, aroundwhich approximatel y two pints of b

lood had gather

ed, contributed to

his death, but did not
cause his death by i

tself. This wound w

as consistent with b

eing shot from behind. A third bullet entered the victim’s front

left leg close to

where the leg j oins the body, or the inguinal c rease. This
was a flesh wound only

and, though pain

ful, insignifica

nt. Finally, a f

ourth gunshot wound was the exit point for the bulle

t that entered the

victim’s left leg . It was a superficial wound

on the left side of the victim’s upper left thigh.

Dr. Gunther testifie

d further that the

re was no alcohol

in the victim ’s blood an d no drugs other than the one administered by the medical team for resuscitation purposes. On crossexamination, Dr. Gunther stated that no gunpowder residue was found on the victim’s hands but that this might have been the result of washings that

would likely h

ave occurred i

n the emergenc

y room.
Adisha Moore, testified as follows: On the day of the shooting, she and her son were at the apartment where the defendant and Sophia Reed lived. She knew the couple because she was dating Sophia Reed’s nephew. When thedefendant, Ms. Re ed, and their bab

y arrived h

ome, Ms. Reed went into the apartment

while the defendant stayed outside. When Ms. Moore walked outside with her son, she saw Alexander King and another man walking around the corner. Alexander King wanted-4-

to see Ms. Moore’s so

n, so Mr. King wen

t inside the apartm

e nt. S he heard the defendant and the victim having a discussion that was not an argument but “questioning.” As she was walking back into the apartment, she heard five gunshot s. S he ran into the apartment, and when she looked outside, she saw the victim l ying on the

ground with

blood everywhere. She saw the defendant get into his car, back out, and drive away. The

n Alan King ran i

nto the apartment

, got a towel or sh

eet, and went outside and removed a gun from the victim’s “waist part or either his pocket.”

Ms. Moore testified that she did not give a statement to the police at the time of the shooting because she was nervous and scared. Ms. Moore said that she had seen a number of bullet holes in the defe nda nt’ s car app rox ima tel y a week prior to the shooting. She also stated that the defendant
was not much different f rom other p eople she kn ew, althou gh she noted that when he was upset, he didnot want to talk. On c

ross-examination, M

s. Moore admitted that she did not come forward wi

th information concerning the gun she saw Alan King take from the victim’s body until the time of trial because she was “learning as I’m going .”
Sophia Reed, the defendant’s fiancé, testified that the defendant was the father of three of her five children and that they had lived as a fam ily for ten years. She said that at the time of the incident in this case, she and the defendant had a newborn child. She stated that she was not aware of the defendant’s drinking excessively or using cocaine but that the defendant had been

treated at the Memphis Mental Health Institute as a residential patient for three months and, at other times, as
an outpatient. She said that the defendant was prescribed a drug, Haldol, and that at the time of the shooting, the def

endant had not tak

en his medicine fo

r one or two y

ears.

Ms. R eed testified that a week before the shooting at Watkins Manor, the defendant’s car, in which her baby was riding, had been shot. She stated that she saw the car soon after this shooting and that there were bullet hol es all over the car, including one which went out the passenger-side window. She stated that the police were not called about this incident because “we didn’t know who to call the police on .” As tothe day of the shooting of the victim, she testified that she did not see the actual shooting but heard the gunshots and saw Alan King remove

a gun fro m th e vi cti m’s bod y. On cross-examination, Ms. Reed admitted that her statement to the police on theday of the shooting mad e no refe renc e to Ala n Ki ng ta kin g a gu n fr om t he v ict im’ s bo dy.

Dr. Rokeye S.Farooque, atte nding psyc

hiatrist at Middle T

ennessee Menta

l Health Institute Forensic Service Progra

m, testified as fol

lows: By court order, the defendant had been sent to be evaluated as an inpatient for twenty-four day s at the Institute. Shereviewed and evaluated records from two other institutions wh ere the defendant had r eceived treatm

ent: Western Menta

l Health Institute and Memphi s Mental Health I nstitute. The defe

ndant’s past trea

tment included the

antipsychotic drug, Haldol, and she continued anti-psychotic medication while the de fendan t was a resident at Middle

Tennessee Menta

l Health Instit

ute because the defendant complained of hearing voices. She had som e questions about the validity of the defendant’s complaints because the defenda ntsaid he was having problems sleeping

but was sleeping

fine. Also, the de

fendant w a s interacting withothers within the unit without any problems. The diagnosis for the defendant was cocaine and alcohol abuse, and at that time, they did not

see any symptoms of mental illness. The-5-

Sta ff Conference Report stated that additional testing of the defendant was repres entative of someon e attempting to appear severely disturbed.

On redirect examination, Dr. Farooque testified that the defendant was receiving medication to allow him to sleep soundly at night. She also testified that no institution evaluating the defendant, including h er own, had ev er mention ed a diagnosi s of malinge ring.

Dr. Sam Craddo ck , a clinical psy chologist with the

Middle Tennessee

Mental Health Institute, testified that he was a member of the team evaluating the defendant. He said that, based upon assessments of the defendant’s inte

ll ectu al functioning, the defendant functioned at approximately

the fourth or fifth grade level. On cross-examination, Dr. Craddock stated that the defendant’s behavior in the residential unit was better than they had expect ed. He said that the defendant had no trouble making telephone calls, interacting withhis peers, and participating in the activities in the dayroom or in the gym but that when the de fendant was with the doctors, h e would professeither to remember things or to co mplain that he was hearing voices that were interfering withhis daily ac

tivities. Dr. Craddock stated that it was the conclusion of the team observing the defendant that the defendant was attempting to give a deceptive impression of himself.

Helen Jean Williams, the defendant’s aunt, testified to a history of mental illness in t h e fam ily. Ms. Williams testified that the defendant’s mother had been institutionalized with a nervous breakdownand that the defe ndant’s grandm

other had also be

en insti tutio nalized, although Ms. Williams did not know for how long or for what

reason. On cross

-examination, Ms. Willi

ams testified that at the time of th e defendant’s a

rrest at her home, she did not think that he was under the influence of

alcohol.

I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to support his conviction. He argues that the State failed to establish that he acted with the requisite culpable mental state because it failed to prove beyond a reasonable doubt that he was sufficiently free from excitement and passion so as to be capable of

premeditation. Th

e State contends th

at the evidence i

s sufficient.

Ourstanda rd of review when the sufficiency of the evidence is questioned on appea l i s “whether, after viewing

the evidence in th

e light most favor

able to the prosecution, any

rational trier of fact could hav

e found the essen

tial elements of th

e crime beyond a re

asonable doubt.” Jackson
v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the evidence but presume that the jury has r esolved all confl

icts in the testimony

and drawn all reasonable

inferences from the evidence in favor of the State. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 198

4); State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978).

First degree murder is defined as “a premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (1997). Tennessee Code Annotated section 39-13-202(d) provides as follows:-6- As used in subdivision (a)(1) “premeditation” is an act done after the exercise of reflection and judgment. “Premeditation” means that the intentto 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. The mental state of the accused at the time the accused alleged ly decided to kill must b e carefully considered

in order to determine whether the accused was sufficiently free from excitement andpassion as to be capable of premeditation.

The eviden ce establishes th at on February

25, 1998, the defe

ndant, while outsid

e his apartment at Watkins Manor, in

the presence of

the victim

and witnesses, placed a gun on the hood of his car, unlocked the car door, placed a cellular telephone charger into the car, closed the door, took the gun off the hood, and approached the group of young men standing outside h

is apartment. The defendant then looked at the victim

and asked, “What’s up, my Ni***r?” The victim did not respond, and then the defendant fired at the victim, hitting him in the front of his left leg at the point where the leg j oin s th e bo dy. The bul let wen t th rou gh th e vi cti m’s bod y. The victim then turned and ran, and the defenda

nt continued to shoo

t at the victim, hittin

g him next in

the right buttock. The defendant pursued the victim, who by this time had fallen to the pavement. The defendant then stood
over the victim and fire

d into the victim’s head, causing massive internal damage and the death of the victim. The defendant then got into his car and drove away.

The defendant contends that no explanation was offered for the testimony of Adisha Moore
or Sophia Reed that the

y saw Alan K

ing remove a g

un from the victim. Mr. King testified that the victim did not have a gun. Questions conce rning the cred

ibility of witn

esses and the w eight and value to be given to the evidence are resolved

by the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). In addition, bo th Ms. Moore and Ms. Reed testified in court that the gun was not in

the victim’s hand but in a pocket or in his waistband, testimony that undercut the defense’s theory of self-defense or circumstances that involved “excitement and passion” on the part of the defendant. T

here is no proof that the vi ctim fired at the d

efendant. I

n fact, all casings found at the scene were from a single weapon.

The defendant also contends that his medical history, including his treatment at two mental institutions for delusions,

supported a finding that

he was not capable of the premeditation necessary for first degree murder. Expert testimony reve a led that the defe

ndant, although f

unctioning at a marginal intellectual leve l, had no signs of mental illness. It was up to the jury to resolve all issues concernin g the we ight and value to be given to this evidence. We conclude that th e evidence is sufficient to support the defendant’s conviction for premeditated first degree murder.

II. IMPERMISSIBLE COMMENT ON THE EVIDENCE

The defendant contends that the trial court erred by instructing the jury , before the beginning of any proof in the case, concerning the distinctions between leading and non-leading questions. The following constit

utes the statement

, in its entirety

, to which the defe

ndant now objects:-7- There are two different types of questions that are asked. There
are leading question

s and non-leading q uestions. And I ’m going to keep track of all o f this, but I want you to know and understand what’s going on. A

leading question gives the answer in the question. That’s not as good as a non-leading question for purposes of proof.

If someone asks a witness what’s the weather like on t hat day that this happened, and

the witness

says it was raining or the sun was sh ining. That’s an answer . If the attor

ney had ask

ed the witness wasn’t it true that

it was raining that day; don’t you reme mber it was raining that day, the

n the witness may

say, y es. You don’t know if it
was from the witness’s memory or from the attorney’ s question, you
see.
So for

that reason, leading questions are only allowe

d on crossexamination. When you’re cross-examining a witness and you want to lead them to a certain point, that’s ok ay . On direct examination when a side is putting on a

witness, they

can’t ask leadin

g questions. So they’ll [sic] be o bjections. Sometime s I’ll sustain o

bjections to leadin g. I’ ll overrule objections. I’m going to keep up with all of that, but I just

want you-a

ll to know don’t conce

rn yourselv

es with all my rulings. Don’ t think somebody’s w inning here, or

according to the judge, this side is

winning cause I

don’t play th

ose games. I just follow alo ng.
The defendant conten ds that the chara cterization of lea

ding questions as

“not as good as a non-leading question for purposes of proof” impermissibly commented on the evidence and disparaged

the value of the proof that was most likely to be elicited by the defense. Essentially, the defendant argues that

since leading q

uestions are per

mitted, with

narrow exception

s, during crossexamination only, the tri

al court’s statem

ents could

be interpreted by the jury to mean that the proof elicited by the defe

nse through prop

er cross-examina

tion of the state’s

witnesses is so

mehow tainted, thus prejudicing the defendant. The state argues that the trial judge was not commenting upon the evidence but simply trying to explain the trial process and give pre trial instructions. The state agrees that it was not necessar

y for the tr

ial court to have m

ade the comments b

ut submits that if any error is found by this court, it can only be deemed har mless. Th e state point s to the fact that both the defendant and the state cross-examined witnesses, that there is no proof that the outcome of the trial would have been d

ifferent had the

comments not been made, and that the evidence was more than suf fic ien t to sus tai n a v erdi ct o f gui lty.

It is well established that judges in Tennessee are prohibited by our state constitution from commenting on the evidence i n the case. Our c

onstitution states th

e following: “ Judge’s charge. – The Judges shall not cha

rge juries with r

espect to matters

of fact, but may

state the testimo

n y and declarethe law.” Tenn. Co nst. art. VI, § 9. T

his constitutional prov

ision was intended

to innoculate-8-

our courts from the English practice of “summing up” by wh ich the tri al c our t to ld t he j ury, not what
was the testimony, but what was proved. See Iv ey v. Hodges , 23 Tenn. 154, 155 (1843). Our supreme court has descri

bed the fundamen

ta l ration ale for our constitutional provision in the following: “The Judge may decide what is evidence , but it is for the jury

to say what is proof .” Ellis
v. Spurgin , 48 Tenn. 74, 77 (18 70) (emphasis add

ed); see also McDonald v. State , 89 Tenn. 161, 164, 14 S.W. 487, 488 (1890) (cautioning that “[i]t is natural that jurors should be anxious to know the mind of the court,

and follow it”). The important aims, then, of our constitutional provision are to guarantee th e reliabili ty of an impart ial judge and to preserve resolution of the fact s fo r th e ju ry. See , e.g. , State v. Eaves , 959 S.W.2d 601, 605 (Tenn. Crim. App. 1997) (finding reversible error when the trial court warned a defense witness concer ning the potential for an aggravated perjury charge in the presence of

the jury). M

ore recently

, our supreme cou

rt has stated that w

hile it is wellestablished that a

trial judge posse

sses broad discre

tion in controlling

both the course

and conduct of the trial, a

trial judge “mus

t be careful not t

o express any thought that might lead the jury to infe r that the judge is in fa

vor of or again

st the defendant in a criminal trial.” State v. Cazes , 875 S.W.2d 253, 260 (Tenn. 1994) (citing Statev. Caughron , 855 S.W. 2d 526, 536 (Tenn. 1993 )). A trial j udge is obligated to “be very

careful not to give the j ury any impressio n as to his f eelings or to make any statement which might

reflect upon the

weight or cred

ibility of evidence or which might sway the jury.” State v. Suttles , 767 S.W.2d 403, 407 (Tenn. 1989).

This issue has typ

ically aris en when the trial c

ourt has instructe

d the jury on a

n alibi defense in terms that unfai

rly prejudi

ced the defenda

nt. See , e.g. , Christian v. State , 555 S.W.2d 863, 866 (Tenn. 1977) (concluding that instruction to the jury that disparaged alibi evidence, such as the warning that an alibi defense can be easily fabricated, does inde ed “amount to judicial comment upon the evidence offered by the accused” and is erroneous). Such a holding is consistent with our sister states where judicial comment on the evidence is prohibited. See , e.g. , People v. McCoy , 220 N.W.2d 456, 456 (Mich. 1974) (finding u nlawful an instruc

tion on alibi eviden

ce that it is

“easily proven”); State v. Rosenbaum , 449 P.2d 999, 1000 ( Utah 1 969) ( “In this state the trial judge is not permitted to comment on evidence and he, therefore, may not indicate to a jury that evidence is either weak or convincing.”).

The issue has also arisen whenthe tr ial co urt be came e ngaged in que stio ning a witne ss. In Collins v. State , 416 S.W.2d 766, 767 (Tenn. 1967), our supreme court found reversible error when the trial court engaged in “quite rigid cross-examination of the defendant.” The examination by the trial judge “went far bey

ond an attempt on his

part toclear up obscure points in the testimony of the defendant.” Id. The fair

ness of the fact-finding process has also been deemed to be undermined when the trial court es s entially told the jury that the defendant was guilty of driving on a revoked license before the count was submitted to the jury. See State v. Gerald C. Mullins , No. 01C01-9507- CC-00230, Coffee County, slip op. at 3-4 (Tenn. Crim. App. Oct. 10, 1996).

Unlike the above cited cases, though, in th is case the defendant objects to general instructions aimed at educating the members of the jury, rather than to a comment on any specif

ic evidence in the defendant’s case. Nevertheless, we agree that the trial court impermissibly commented on the evidence by stating that when a witness answers “y es” to a leading question, “[y]ou don’t kn ow if-9-

it was from the witness’s memory or from the a ttorney’s question, you see,” making the resulting evidence “not as good” for “pur poses of proof.”

The defendant’ s case largely relied upon evidence elicited during cross-examination, in which the defendant properly asked leading questions

. The court’s comments made this e vidence appear

not as good as othe

r evidence. Thus , in this context, the trial court’s comments constitute an impermissible comment on the evidence.

F inding error, we must determine whether it is harmless beyond a reasonable doubt. See Chapman v. California

, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967). In State v. Harris , 839 S.W.2d 54 (Tenn. 1992), our

supreme court found no reversible error when the trial court, during opening remarks to the jury panel, informed prospective jurors that the defe nda nt m ight or m ight not tes tif y. The tr ial court stated that if the State failed to prove its case, the defendant did not have to d o anything. The defendant in Harrisargued that these remarks compelled h im to testify rather than leave the jury with

the impression that

the State hadproved the case , otherwise the de

fendant would have “done nothing.”

Our supreme

court noted that the trial court also made it absolutely clear that the defendant was pr

esumed innocent a

nd, furth er, th at the trial court correctly instructed the jury regarding the presumptio

n of innocen ce and “admonish ed the jury t

hat the Defenda

nt’s failure to testify could not be considered as an admission of guilt.” Id. at 67.

In the present

case, the trial court made no distinction between the parties as to using leading questions, only

stating that “[w]hen you’re cross-examining a witness and y ou want to lead them to
a certain point that’s okay.” At

no point did the trial court specifically disparage evidence elicited by the defense through proper leading questioning of witnesses on cross-examination. Moreover, at the close of the guilt phase, the trial court properly instructed the jury, including instructing it that neither the trial court’s

rulin gs, ins tructions, nor any other remarks were meant to indicate any opinion as to the facts of

the case or as to

what its verdict should be. The trial court also instructed the jury that it was the sole and exclusive judge of the cr

edibility of t

he witnesses and t

he weight to be given their testimony. Accordingly , although the trial court’s pretrial comments were improper, when we consider

the jury instr

uctions and that the

evidence was mor

e than sufficien

t to support a conviction, we co

nclude the error

is harmless bey

ond a reasonable

doubt.

B asedupon the foregoing and the record as a whole, we conclude that the e vidence wa s sufficient to support the defe

ndant’s convictio

n for first degreemurder. Further, the error in the pretestimonyinstructions to the j ury was har mless beyond

a reasonable

doubt. The judgment of

the trial court is affirmed.

___________________________________ JOSEPH M. TIPTON, JUDGE