### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Novem ber 20, 200 2 Session
STATE OF TENNESSEE v. DAVID WAYNE SMART
Direct Appeal from the Criminal Court for Davidson County No. 2001-A-162 J. Randall Wyatt, Jr., Judge

No. M2001-02881-CCA-R3-CD - F iled May 13, 2003

The defendant was convicted of first deg ree premeditated murder and sentenc ed to life imprisonme

nt. In addition to challenging the sufficiency of the evidence, he

argues the trial court erred in excludin g testimo ny a s to the vic tim’s prio r agg ressive conduct, as well

as his access and familiar ity with fire arms, an d in not instr ucting a s to agg

ravate d assault

as a lesser-included

offense and that the cumulative

effec t of these

errors warran

ts a new tr

ial. Following our review, we aff irm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID H

. W ELLES and J OE G. R ILEY , JJ., joined.

Jodie A. Bell (on appeal) and Glenn R. Funk (at trial and on appeal), Nashville, Tennessee, for the appella nt, David Way ne Smart.

Paul G. Summers, Attorney Gene ral and Reporter ; Elizabeth T. Ry an, Assist

ant Attor ney Genera l; Victor S. Johnson, III , District Attorney Gene

ral; and Dan Hamm and

Philip H. Wehby, Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

.

OPINION

The defendant, David Way ne Smart, was char ged by a Davids on County

Grand Jury

with first degree premeditated murder for the September 27, 2000, shooting death of the victim, Gabriel Jeans, at a Phillips 66 gasoline station and convenience store on Briley Parkway in Nashville. The proof at his September 24-27, 2001, trial established that the defendant was paying

for a purcha se at the store when the victim, an acquaintance the def end ant assert ed had robbed him the previous week at his home, entered

the store, made eye

contact with the defendant, and walked to the water fountain. The defendant told the store cashier that the victim had robbed him earlier and stated that he, rather than the victim, would be going to jail. He then lef t the store, went home, retrieved hi s gun, returne d and con

fronted the unar med victim , demanding that he return his money . When the-2-

victim refused, the defendant sho t him f our times, killing h

im with a g

unshot wou

nd to the chest. At trial, the defendant claimed that he retrieved his gun only because he was afraid of the victim and feared he was armed, and that he never in tended to kill the victim but shot t

he victim in self-d

efense when the victim

advanc ed on him i n a menac in g manner. At the conclusion of the trial, the jury rejected the de fendan t’s cl aim of self- defens e, fin ding him guilty of first de gree premeditated murder. Because the State did not seek either the dea th penalty or a life

sent en ce without the possibility

of parole, the defendant was automatically sentenced by

the trial court to life imprisonment. Following the trial court’s denial of his motion for a

new tria l, the def endant f iled a time

ly appeal a s of right to this co urt, rais ing the f

ollowing issues:

I. I s the evidenc e contained in the record sufficie nt to suppor

t a finding by a ratio nal trier of fact that the defendant is g uilty of premeditated fir st degr

ee murde r beyond a rea sonable d

oubt?

II. Did the trial court er r in refu sing to a

dmit t est imony reg arding prior aggressive conduct of the decedent where self-defe nse was at issue?

III. Was there a basis for admit ting testimony reg arding the decedent’s prior

famili arity and ac cess to stolen weapons when the defendant testified that he believed the decede nt might be armed?

IV. Un der State v. Burns , 6 S.W.3d 453 (Tenn. 1 999), shouldth e jury have been instructed on

aggravated assa

ult as a lesser offense of first degree murder?

V. In light o f c omments made by the State that it was not seeking the death penalty , should the

trial cou rt have i nformed

the jury that a defendant convicted of first degree murde r is not el igib le for pa

role until he ha s served

fifty -one ca

lendar y ears?

VI. Do the

tri al co ur t’scu mul at

ive er ro rs wa rr an t a ne w tr ia l?
FACTS
State’s Proof

The State’s first witness was Lanell Mercha nt, who was working as a cashier at the Phillips 66 store at t

he time the shooting occurred. She testified the defenda nt pulled into the gasoline station between 5:15 and 5:30 p.m. on September 27, 2000, to purchase gasoline for his taxicab. As he wa s paying for his pu

rchase inside the

store, the victim

entered and thetwo men made ey e contact but-3-

didno t speak. The v ictim then walked across the store to the water fountain. Althoug h the defendant continue d his tran saction a t the cas h regis ter, he k

ept lo oking over a t the victim and appeared to be upset, prompting Merchant to ask him what was wrong. She de scribed the scene and the explanation the defendant provided for his behavior:

When [the victim] w as gett ing a dr ink of wa ter, [the d efenda nt] seemeda little tense. And I had asked him if he w as ok ay. And he just kept looking. And

he said, “That boy

robbed me ,” and I

guess I kind of glanced over. And I sai d, “ Ju st now ?” And he s aid , “N o. It was a while back.”

. . . . And I said, “Well, did he go to jail for it?” And he said, “No, but I am.” He said, “I ’ll be right back.”

Merchant testified the defendant completed his purchase, exited the store, and drove of f in his taxicab. After he left, the victim asked what the defendant had just said to her, and she and the victim engag ed in

a short c onversa

tion until he

r attenti on was cl aimed by other cu stomers. Merchant revealed the substance of that conversation on cross-examination, testify ing that she told the victim that the defe ndant had said some

thing ab out the vict im’s having robbe d him, to whi ch the victim replied, “[Y]eah, I robbed him, but he robbe d me first.”

A shor t while la

te r, Merchant looked up and saw the defenda nt enter the store again and confront the victim, saying, “ Give me all of your money. I

want every

thing on you.” Me rchant testified the victim responded by wa lking over to the defendant and say ing, “No, y ou’re not

getting anything.”

At that point, the defendant reached into his back pocket. T

he victim s aid, “Do n’t pull that gun out of your

pocket,” but the defendant pulled out a small silver gun that “looked like a fake gun,” pointed it a

t the victi m, and shot

him. Merchant

was aware of the defenda nt’s having fired a total of four s hots at the

victim bef

ore lea ving the store an d driving

off in his pickup truck, which
was parked outside. She said the first shot caused the victim to fall to the floor on the front side of the counter, where the defendant wa s standing. The victim atte mpted to e scape by

first “tr yin g to scoot away f rom [the defendant]” and then by jum ping over the counter to the other side. The defendant continued to shootat him during this time, firing his second shot as the victim was lying
on the floor i n front of the counter and his fourth shot after the victim had tumbled to the floor behind the counter. Merchant said she did not see the third shot, but was within three or four feet of the victim when the fourth and final shot was fired. After the defendant left, she locked the door and gather

ed towelsto hold ag ainst

the victim ’s wounds , while her coworker and a store customer telephoned for an ambulance and police.

A videotape of the incident, which Merchant identified as having been recorded by

the store’s surveillance camera, was play ed at various speeds before the jury and introduced as an

exhibit in the
case. Merchant

agreed the videotape re

flected that, contrary

to what she had reported in her initial-4-

statemen ts to police , only

two minutes elapsed from the time the defendant left the store until he returned to shoot the victim, and he did notappear to have change d clothes during the interim. She testified she did not hear

the victim threaten the defendant or see the victim with a gun or make any movement as if to reach for a gun.

On cross-examination, Merchant acknowledged she had been so severely

traumatized by the incident that she h ad neve

r return ed to wor k at the sto

re. Sh e co nceded

she had b een mista

ken in several of the details she had provided in her init

ial state ment to poli ce and in

her testimony at the preliminary

hearing, but maintained

her memory of

what the defendant said to her before lea ving the store the fi rst t ime, a s well as the words the de fendan t and v icti m exc hange d just prior to the shoot ing, was accurate. She a ck nowledged the defendant did not have a g un in his hand when he returned to the store t o confront the victim, but her testimony at the pr eliminary hear

ing had been that, as the defenda

nt was dema

nding the victim’s mo ney , the vict im “stepped up to him, a s in bowing up, as if he was angry .” She explained that by “bowing up” she meant that

the victim got close to the defendant. Merchant acknowledged

having told the police that the defendant’s hand was shaking as he reached for his gun a nd that he almost dropped the weapo n. She testified the defendant was angry

and explained that she shook when she was angry , too. However, she conceded she had not

said anything a

bout the defendant’s having been ang ry in her statement to the police, and agreed that fea r and ner vousness c ould a lso cause a person to shake. The victim, accor ding to Merchant, was “definitely heavier and stronger” than the defendant.

Richard Taylor testified

he had been workingat the Phillips 66 store for approximately three months and was on duty inside the store at the time the shooting occurred. He said he was familiar withboth the defendant and thevictim as regular customers of the store. On the da y of the shoot ing, he saw the defendant arrive in a green, checker

ed taxicab van. The victim entered the store after the defendant was inside, and the two exchanged a “definite stare for a few moments.” Nothing happened at that point, and the defendant left the store. Taylor testified that when the defendant returned, he first looked in the door of the sto re “to
see if [the victim] was still in there” and then went back to his pickup truck, wher e he retrieved what Taylor assumed was his gun, before coming back inside the store . Taylor desc ribed exactly what

he witnesse d: “I

seen [sic] [th

e defendant] go t

o his truck, op en the dr

iver’s door, pull

out something silver, and put it in his back pocket. Andat that time, [the victim] said, ‘Don’t let him bring that gun in the store.’” Tay

lor said the defendant told the victim after entering the store, “Give me all y our money,” to which th

e victim r esponde d, “No. A

nd don’t pu

ll that gu n out.” Ne

xt, the de fendant “pulled the gun out and shot [the victim].” Taylor testified he hear

d a total o f “[t]hree

or four”shots, and corroborated Merchant’s testimony that the victim appeared to be try ing to escape from the defendant as the successive shots were fired. Tay lor said that, in the victim’s efforts to get away from the defendant, the victim went first to the corner of the store where th e founta in drinks were and then jumpe d over the

back counter, la

nding a pproximate

ly six to eight

feet fr om where the first shothad been fired. Tay

lor did not hear the victim threaten the defendan t, d id not see him with a gun, and did not see him make any motions as if to reach for a weapon.-5-

Taylor ac knowledged on cross-examination that he did not hear Merchant’s conversations withthe defendant or the victim and that, although he saw the de fendant retrieve a silver object from his truck, he d i d not actually see tha t it was a gun. He testified the defendant wa s not holding the gun whe n he ente red the s tore and

did not pull

it out until af

ter the victim

had already

approached and was s tanding

face- to-fac e with him. Isabel Davis testified she stopped by the Phillips 66 store at about 5:20 p.m. on September 27, 2000, to make a purchase. She was aware of some sort of commotion between the defendant and the vi ctim but d id not pay much attention, believing they were

“just kind of joking around or fighting.” Davis heard what she thought were g unshots as she was walking out of the store, but immediate

ly “disreg arded it , becau se it was not loud at all.” However, when she turned around and
saw the defendant run out of the store, she realized the situation was serious a nd called 9-1-1. She heard a total of four or five gunshots and saw the defend ant ho ldin g a

small, silv er revo lver, but did notactually

see him fire the shots. She did not see or hear the victim threaten the defenda nt in any
wa y. She thought the victim “seemed more afraid” of the defendant than menacing, based on w hat she heard him say

to the defendant, which was “[s]omething in the nature of don’t bring that gun in here, man, don’t bring this gun in here.”

On cross-examination, Davis acknowledged having told police that the defendant grabbed the victim’s shirt while she was in the store. She reca lled havi ng hea

rd the defendant

and the vi ctim engaging in “street talk” while she was still inside, and said “they somehow rammed e ach other, or something like that” as she was walking out the door. She could not remember if any profanity wa s used or what specifically

was said, other than the victim’s te lling the defenda nt not to bring his gun into the store. She agreed she had de scribed the defendant to police as short and skinny , and that the victim was a larger man.

The autopsy of the victim’s body was performed by

Dr. Br uc e P hi ll ip Lev y, the chief medical examiner for Davidson County. Dr. L evy testified he f

ound a total of four gunshot wounds to the victim’s body : a fatal

gunshot wound tothe center of the victim’s chest, which struck the hear t and right lung an d caused

him to blee d to death; a nonfatal, “very superficial wound” across the front of his right knee; and two nonfatal gunshot wounds to his left thigh area. He state d that some one with the ty pe of gunshot wou

nd to the heart and lung suffered by t he victim w ould not die

immediate

ly and would “be able to remain conscious for a short per iod o f time” before being rende red unconscious by the

loss of blood. Dr. Levy

testified the toxicology repor t on the twenty-one- yearold, 185 pound, 5' 9" victim showed the presence of “metabolites of both cocaine and

marihuana” in his urine , but no dru gs or al cohol in hi s blood. He explained these findings meant that the victim had used both marijuan a and co caine w ithina day or two of h

is death but had not been actively

under the i nfluence of the drugs at the time he wa s killed. Finally, he testified ther e was no evidence of “close or interm ediate range fire,” which mea

nt that the gunshots had been fired from a distance of greater than twenty -four inches from the victim’s body

. Detective Joe Williams of the Metro Police Department, the leadinvestigator assigned to the shoot ing, testified that a total of four shots wer e fired at the store. Interviews conducted of the-6-

witnesses at the scene led to the defendant being d evelope d as a susp ect in the shooting . In h

is attempts to locate

the defe ndant, De tective Wi lliams sen

t office rs t o th e defendant’s residence, approxima

tely a block and a half from the store, and co ntact ed the defend ant’s emplo yer. Alth ough the defendant was not at home, officers found his tan F ord Ranger pickup truck

at his house. The defendant’s Checker

taxicab va

n was la ter found abandoned behind a warehouse approximately three to five miles from the store. Detective Williams testified he spoke with the defendant by

telephone at about 1:30 or 2:00 a.m. t he next day , the defendant’s employ er having provided him with the defendant’s cell phone number. Subsequently , at about 5:30 a.m., the defendant turned himself in, arriving at the police station with his .25 calib er semi- automatic handgu n, which h

e turned over to police.

Detective Williams testified the store’s surveillance tape reveale d the following chron ology of events: The defendant entered the store at5:18:46; the victim entered the store at 5:20:52; the defendant exited the store at 5:21:35, pulled back into the station at 5:23:26, opened the door and looked in the store at 5:23:37, came back and entered the store a t 5:23:51, confronted the victim at 5:23:54, pulled his gun fro m his pocke t and fired his first

shot at 5:2 3:59, fir

ed his las t sh o t at 5:24:24, and exited the store at 5:24:28. Detective Williams acknowledged on cross-examination that, to his knowledge, the only arre st or conviction the defendant had on his record was for driving on a suspended license in the 1980s.
Defense Proof

The defendant testified he was thirty -four ye ars old, weighed 1 20 pounds, and, except for driving on a suspe

nded lice nse in the 1980s, ha

d never b efore b een in tr

ouble. He said he was a nonviolen t, peaceful man and had not been in a fight since elementary school. After

graduating from high school in 1985, he had served in the Navy before attending I

TT Technical Institute, from which he had received an associate’s degree in Electronic Engineering Technologies. Although he had at first worked in the electronics field, he had become burned

out and, about five or six months prior to the September shooting, had begun driving a taxicab to earn his living.

The defendant testified he had moved in either 1992 or 1993 to a house loca t e d approxima

tely fifty to seventy

-five ya rds from the Phillips 66 market, where he still live d at the tim e of the shooting. The victim lived in the same neighborhood and, acc ording to the de fendant, was known by every

one as “the terror of the neighborhood.” The de fendant testifie d he knew

the victim carri ed a weapon because he had once shown it to him. He also knew of the victim’s ha vin g committed severa

l violent a cts in the p ast, including threatening the life o f an eleven-y ear-ol d child
as he held hi s gun to th

e back o f the chi l d’s he ad, threatening the life of the mother of the c hild, beating up th e moth er of t he chi ld, an d robb ing, threate ning, a nd break ing into the homes of several
men. The defenda

nt testified he himself had ha d two frig htening encounte rs with the

victim in the da ys l eading up t o September 27. The first occurred about a month befor e the shooting when the victim knocked on his door and told him he needed $30 to bail his motherout of jail. The defendant said he initially told the victim he did not have any money , but ultimately gave him the $28 he had-7-

in his walle

t becaus e the vic tim

“had sta rted to a ct like he was goi ng to force his way in,” telling the defendant to give him whatever money he had.

The defendant testified his second frightening experience

occurred about a week befor e the shoot ing. According to his account, he was home alone e x pecting

a frien d to arriv e momenta rily when he hear

d a knock at his door . Thinking

it was his f

riend, he called out “ come in” and th e victim walked in

to his living

room with a

“Game B oy, ” which he tried to persuad e the def endant to bu y. The defendant said he told the victim he d

id not wan

t the ga me, but the

victim bec ame increa singly

more persistent that he buy it, which made the defendant “nervous.” He testified

he did notwant a confrontation with the victim and implied he was afraid to ask him to leave his home. Therefore, he calle d his frie nd to ask ho w soon he c ould arr ive, hoping th at once he did so, the victim would leave. However, as he hung up the tel ephone, the victim stood up in f

ront of hi m, grabbed hi s ar m, knocked him down, grabbed approximately $200 that the defendant had in an ashtray, a nd ran out the door.

The defendan t testified that the first time he saw the victim after the robbery was on the afternoon of Septem

b er 27, when the victim walked past him in the Phillips 66 store as he was paying for his gas and then turned around a nd gave him “a re al mean lo ok,” whic h he inter preted t o mean that the victim was g oing to “ get” him. The victim did not, ho wever, say any thing to him at that time. The defendant testified he kept looking over a t the victim to make sure he was not about to come after him and, at the same time, tried to “hurry up and get out” of the store, with his “number
one goal” being “to run, to flee.” He remembered tellingthe cashier that the victim had r

obbed him, buthad no memory of the other conversation the cashier reported, that is, that he had resp onded to her question of whether the vi ctim had g one to jai l for the r obbery with the w ords, “N o, but I am.” The defendant stated he had no intention of returning to the storewhen he l eft afte r pay ing for his purchas e and t hat the ex chang e the ca shier re ported w as not the

kind of sta

tement he

would ordinarily make.

The defendant testified he did not feel safe whe n he reac hed home, however . He “jus t

. . . knew” that

the victim , realizin g he ha d just got ten off w ork and h ad money , would fo llow him to h is house t o “either rob . . . or hurt” him. He therefore decided to return to the store t o confro nt th e victim in pu

blic, whe re he fe lt safer . The def

endant e xplained:

I fe lt like that my choices were limited. I couldn’t -- I couldn’t stay there and wait for hi m to come bac k, beca use that w ould definite ly be a violent

situation. So I th ought tha t if I confron ted him in public, if

I could catch him whil e he was still up there, in public, that I could keep h

im f rom c oming to my house ag ain and that he wouldn’t rob me.

The defend ant in sist ed his inten tion in ret urnin g t o the s tore was simply to ge t back the money the victim had stolen from hi m. However, b ecause he knew the victim’s reputation for violence and his propensity for c arrying a weapon, he decided to take a gun with him for protection-8-

when he confronted the victim. The defendant testified he owned both a .25 caliber gun and a larger,
more powerful “Tech Nine,” and that he c hose to take the smaller gun because he did not plan on using his weapon. He said he placed the gun in his left rear pocket, although he was right-handed, because his wallet was in his right rear pocket. He then g ot into his truck and drove ba ck to the store.
The def

endant testified he got out of his truck when he arr ived at the store, walked to the door, and pee

ked inside

to see if the victim was still there. Although the videotape shows he looked in the direction of the victim, the defendant claimed he did not see him and there fore went back outside and walked

to the end of the building to see if the victim was already headed to his house. He denied he went to his truck to get his gun, testify ing that it was already

in his back pocket. He stated tha t when he did not see

the victim

outside, h

e retur ned to the store

to ask the cashier if she knew where the victim had gone. I nside the store , howeve

r, he imme diately

saw the victim and, with his gun still in his back pocket, walked toward the victim and asked for the r eturn of his money. According to the defendant, the victim responde d by becoming very angry and “coming at [him] like a charging . . . bull,” y elling, “[M]other fucker, y ou going to come in here and start talking shit? Who do you think y ou are, mother fucker?” The defendant testified he w as “shocked” and ceased walking toward the victim, stopping “[p]robably eig ht to ten feet” from him. Hesaid that the victim kept coming at

him, however, and, when he was “right up in [his] face,” said, “I suggest y ou pull t ha t gun out of your

pocket.” The defendant said that the manner in whic h the victim spoke indicated to him that the victim was letting him know he knew the defendant had a gun, a nd that he
was either g oing to pu

ll his own g

un or try to take the defendant’s. He testified that he was “sca red to death” b ecause

he believed in tha

t instant th at the victim was going to kill him. Therefore, he reached into his back pocket

with his left han d, pulled h is own gu n out, switc

hed the w eapon to h

is right hand, took a step back, a nd fired at the vic tim. The de

fendant said he w as shakin g so bad ly withfear that he almost dropped the weapon as he switched it from his left to his right hand. He testified that the victim backed up af ter he f ired the first shot, and he then fired

a “couple of more shots at his legs, just to keep him back so [he] could get out the door.” The defendant acknowledged he went towa

rd the vic tim as he f

ired the se latter

shots, but e

xplained it w as beca

use he sti ll believed the victim had a gun

and fea red he w ould pull

it out and shoot him. He said he turned around and firedhis last shot as he was going out the door because he thought the noise the victim made as he was jumping over the counter was the sound of the victim coming after him.

The def endant a damantly denied he ever had the intent to kill the victim. He said he fired the first shot because he was afraid for his life and was try ing to keep the victim from getting his gun, and testified that “[o]nce the first shot went off, it was over – emotions overwhelmed me. It was like
some thing that he had made me do.” The defendant we nt on to testify, however, that he firedth e successive shots “[j]ust so [he] could get out” of the store. He said he deliberately f ired shots two, three and four at the victi m ’s legs, and that he did not know the victim was dead when he le ft the store.1 The plastic cart ridges on thes e two vi deotapes were broken when th ey arr ived at this cou rt, having app arently been damaged in transit. Consequently, neit her of these t apes was viewable. We have, however, repeatedly and thoro ughly revie wed the ori ginal survei llan ce tape of the i ncident , play ing i t both at the s peed at whi ch it

was recor ded and in s low motion a s we a dvance d the tape fr ame by frame. Thus, we hav e been able t o careful ly an alyze the s equence of eve nts and th e resp ective p osition s of the d efend ant and the victim before, during, and aft er the ini tial gunshot was fired. We have also reviewed the sti ll photographs made from the videotape, which show the rel ative positi ons of the victim and the defendant during the se conds immediat ely pr eceding t he shooti ng. We are ther efore conf ident that

the damage d videotapes would have made no di ffe rence t o the out come of thi s case. In th is r egard, we note t hat when moving that

the t apes be admit ted as ex hibit s, def ense couns el acknowl edged they might be duplicat

ive of the ori ginal tape th at had alread y been adm itted as a n exhib it.
-9- At defense counsel’s request, the defe ndant reviewed and narrated copie s of the surveillance videotape, subseq uently admitted as exhibits, which showed the action both in “real-time,” as opposed to the fast-motion recordedby the store’s surve illance tape, and in slow motion. 1 He describ ed the pe

rtinent sc ene as f

ollows:

A When I come back in, I ask him for my money , right there. Q That’s what that mov em ent is with you r right hand, I want my money back?

A Right. And then I take three steps and I stop. He c omes at me. And as he’s c oming at

me, he’s cussing

me. He sa

ys, I sug gest

you take that gun out of your

pocket. AndI reach

back with my left hand and swap it over to my right. As I

swap it over, I

almost dro

pped it. And then I fired.

The defendant also identified a series of still photographs made from one of the videotap es, subseque ntly admitted a s a colle ctiv e exhibit i n the case, which show that a six-second interval elapsedduring which he stood still as the victim approached him in the store. He said he was not angry when he shot the victim, was not intending to get r eveng e for his earlier

robbery , and did

not intend to k

ill the vic tim.

The defendant testified on cross-examination that he characte r i zed the victim’s walking towardhim as “coming at [him]” because the victim had a “bad attitude, an attitude like he’s getting ready to fight.” He admitted, however, that the victim did not threaten to kill or hit him, did not have
a gun, never touched him, ne ver rai sed his hands toward him or made any motions to reach for

a gun, and had h is hands dow n at his side

when the defenda nt shot him. He denie d that the victim fell to the floor after the first shot and maintained that he had deliberately aimed his successive shots at the victim’s legs, despite the videotape showing that his last shot appeared to have been som ewhat randomly and carelessly

fired in the direction of the victim when he turned around before going out the door. He also insisted that the victim was still coming toward him at the time he

fired hisfirst shot, in spite of the videotape which shows that the victim had stopped. The de fen dant acknowledged

his nine-millimeter

“Tech Nine” would not have fit into his back pocket, but insisted-10-

that fact played no part

in his dec ision to tak

e his small er calib er wea

pon with him to the store. He explained he had not called the police to report the victim’s robbery a

t his home because he feared the victim’s reaction. He said he went home after the shooting and then dr ove his taxicab to the workplace of a frie

nd, who in t

urn drove

him t o the home of hi s brother , Donnie Smart, in Murfreesboro. He testified he was emotionally distraught after the shooting and denied he had

been attempting to hide from the police.

Donnie Brooks testified he had been friends with the defe ndant for six or seven yea rs and knew him to be a very pe aceful, nonviolent man. According to his testimony , the defendant showed up in his taxicab at his wor kplace shor tly after the inc ident, wanting Brooks to take him to turn himself in. Brooks said the defendant appeare d to be in a state of shock, had difficulty talking, and
was unable to clearly

tell his story in a telephone ca ll he made to his brother in Brooks’s presence, handing the telephone to Brooks to complete the call. After telling the defendant’s brother that he would bring the defendant to him, Brooks drove the de fendant to Murf

reesboro in his vehicle, leaving the taxicab at Brooks’s workplace

. The defendant’s brother, Don nie Smart, also described the defendant as peac eful and nonviolentand testified that he knew the defendant was scared and intimidated by the victim in the week preceding the

shooting. He corroborated Brooks’ s testimonythat the d efenda nt had bee

n so emotiona lly distraught when he telephoned him at about 6:00 the evening of the shooting that he was unable to comple

te his conversation and had to turn the telephone over to Br ooks. He testifiedthat at approximately 6:30 p.m., the defendant a nd Brooks arrived at his Murfreesboro home, where they discussed what h ad occu rred. H e said the de fendan t “was destr oyed,” crying a nd saying he was
so rr y, when he learned from the 9:00 p.m. news that the victim had

died . At 4: 00 the

next morni ng, he went with the defendant to the police station to turn himself in.

Checker Cab Compa ny owner Larry Tidwell te stified the defendant had w orked asa cabdriver for his company f

or approximately five or six months at the time of the shooting. He said the defendant told him he was afraid to work at night and, as a cons equenc e, worke d day time hours , primaril y running airport trips, which, according to Tidwell, is the safest duty a ca bdriver can have. Tidwell said that, before this incident occurred, he had ne ver know n the def

endant to be violent. On cross-examination, he t esti fied he spoke with the defendant by cell phone on the night of the shoot ing, and confirmed having told police that the defenda nt told him in that conversation that he had shot the victim twice, in the stomach and leg, and had shot at him again a fter he fell to the ground and “balled up,” but did not know if he had hit him with those shots.

AntonioCaruthers, the defendant’s next-door neighbor, testified he had known the defendan t for a number of y ears an d believe d him to be a peacef ul, nonviol ent man. H e said tha t about a week before the shooting, he was in his driveway when he saw a man he did not recog nize run outof the defendant’s house and down the road. A few seconds later , the defen d ant ran out of his house, yelling something to the effect, “[S]top him, he just robbedme.” Caruthers testified he did not know the victim

.-11-

The defenda

nt’s fina l four wit ness es, Jo hn Turnbo , Jane Spea r, Tere sa Davis, and Tim Wilson, all testified to the victim’s reputation in the community for violence . Turnbo testified the victim was “very

violent.” He sai d on July 9, 1997, the victim jumped the fence at his house, vandalized his truck, threatened his life, and assaulted his then girlfrie nd. He acknowledged

he did notsee the assault, but said the victim and his girlfriend were the only ones outside the house at the time, that he he ard the v

ictim fro m his positio n inside the house, and that h e saw br uises on hi s girlfriend’s face after the victim left, which had not been there before he arr ived. Spear testified she had known the victim for a number of years and had heard that he was “a very

violent young man.” Davis testified the victim’s reputation in the community was that he “c ould be violent on occasion.” She said when the victim was about fourteen, he put a gun to the head of her then eleven-y

ear-ol d son, but she did not witness the incident. Finally, Wilson testified that the victim was known in the community

as a violent person and that he knew of the victim’s having be aten up two neighborhood childre n. In his opinion , the vict

im“kind of terrorized the neighborhood,” but he had never heard anything ba

d about the defendant.
ANALYSIS

I. Sufficiency of the Evidence The defendant first challenges the sufficiency

of the evidencein support of his first degree murder convicti on. He ar

gues tha t the State failed to prove premeditation bey ond a reasonable doubt and asserts that the evidenc e a t most suppo rts a con viction fo r second degre e murder . The State contends the defendant’s words and actions clearly

demonstratedpremeditation, and the evidence, therefore, was suff

icient fo r a ratio nal trier

of fact to find him g

uilty of first degree murder bey

ond
a reaso nable dou

bt.

When the sufficiency

of the evidence is ch alleng ed on appeal, the relevant question of the reviewing court is “ whether , after viewing the evide

nce in the

light m ost fav orable to the prosecution, any rational trier of fact could have found the e ssential elements of the crime bey ond
a reasonable doubt.” Jackson v. V irginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans , 838 S.W.2d 1 85, 190-9 2 (Tenn. 1992); State v. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the

trial court or jury sha

ll be set aside if the evidence is insufficient to support the findings by the

trier of fact of guilt bey

ond a reasonable doubt.”).

All quest ions invo lvin g th e credibility of witnesse s, the weight and value to be given the evidence, and all factual issues are resol ve d by the trier of f act. See State v. Pappas , 754 S.W.2d 620, 623 (Ten

n. Crim . App. 19 87) . “A guilty ve rdict by the jury , approved by the trial judge,
accre dits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v . Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:-12- This well-settled rule rests on a sound foundation. T he t rial judge and the jury see

the witne sses fac e to face, hear their testimony and observe their deme anor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be g iven to the testimony of witnesses. I n the trial forum alone is there human atmosphere and the totality of the evidenc e canno t be repr

oduced w ith a writt

en reco rd in this Court.
Bolin v. State , 219 Tenn. 4, 11, 405 S.W.2d 768, 7 71 (19 66) (ci ting Carroll v . State , 212 Tenn. 464, 370 S.W.2d 523 (1963)).

A jury conviction remove s the presumption of innoce nce with w

hich a defendant

is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has the bur den of demonstrating t ha t the evidence is insufficient. See State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

For the purpo ses of thiscase, first degree murde r is “[a] premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)( 1) (Supp. 1998). Premeditation is defined as

an act do ne afte r the ex isten ce of re flect ion an d jud gm ent

. “Premeditation” means that the intent to kill must have been formed prior to th

e act itse lf. I t is not necessary

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

finite period of time. The mental state of the accused at the time the accuse d alleg edly

decided to kill must be carefully conside red in order

to determine whether the accused wa s s uf fi ci en tl y f re e from excitement and passion as to be capable of premeditation. Tenn. Code Ann. § 39-13-202(d) (Supp. 1998).

In Tennessee, once a homicide is established it is presumed to be second degree murder a nd the State bears the burden of proving the eleme nt of preme ditation to

elevate the offe nse to fir st degree murder. See State v. H all , 8 S.W.3d 593, 599 (Tenn. 1999); State v. Brown , 836 S.W.2d 530, 541 (Tenn. 1992). Whether premeditation exists is a question for the jury to deter mine based on the evidence, and may

be established by the de

fendant’s conduct and the circumstances surr ounding the kill ing. See State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997). Facts from which premeditation may be infer

red include evidence of a motive for th e kill ing, evidence that the defendant procure d
a weapon, use of a deadly weapon upon an unarmed vict im, and evidence that the victim was retreating or attempting to escape when killed. See State v. Dellinger , 79 S.W.3d 458, 492 (Tenn.), cert. denied , __ U.S. __, 123 S. Ct. 695, 154 L. Ed. 2d 635 ( 2002); Bland , 958 S.W.2d at 66 0; State v. Lewis , 36 S.W.3d 88, 96 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 2000).-13-

Viewed in the light most favorable to the State, a reasonable jury could have found that the defendant’s killing of the victim was premeditated. A fter s eeing t he victim enter the store, the defendant told store cashier Lane ll Mercha nt that the victim had

robbed h im earlie r and, in r esponse to her query

of whether the victim had gone to jail, replied, “No, but I am,” an d that he would be right back. The def

endant then drove ho me in his ta xicab, re trieved his gun, and retu

rned in hi s pickup truck less than two minute s later. U pon the de

fendant ’s retur

n to the store, employee

Richard Taylor saw him ope

n th e door, lo ok inside in the direction of the victim, go back out to his truck,
remove a silver object that appeared to be a gun, and put it in his rear pocket. Tay lor and Merchant next saw the defendant come back inside the store a nd confront the victim by dema nding his mo ne y. When t he victim refused and walked toward h im, the de fendant

pulled his gun out o f his pock et, took a step back, and fired directly into the victim’s chest. The victim fell back and the defendant followed, firing

two more s hots as the

victim wa s attempti ng to esc ape by “scootin g away

” from him and jumping over the

counter and a fin al shot as he was on his way out of the store, a fter the victim had already

tumbled to the floor behind the counter. The defendant then fled the scene, switching vehicles twice and

abandon ing his pickup truck at his home and his taxicab at his friend’s workplace, before eventua

lly e nding up at his bro ther’s h ome in Murfreesboro. He turned himself in to police the next morning, but only after he had already

been contacted by

police via his cell phone.

It was undisputed th at the vic tim was una rmed. Ne

ither Mer chant nor Tay lor hear d him threaten the defendant, and neither saw him make any threate ning moti ons. Immediately before the shooting, Taylor he ard the victim say something about not letting the defe ndant bring his gun into the store. Isabel Davis, a customer w ho was exiting the store as the gunshots were fired, also hea rd the victim say

something

to the def endant a bout not br

inging his gun in

to the store and testified that the victim app eared t

o be afra id of the d

efenda nt. All of t

hese fa cts and circumstances support the jury’s rejection of the defendant’s claim of self-defe nse and its finding that his killing of the victim was intentional and premeditated.

The de fe nd an t a rg ue s, no ne th el es s, th at th e e vi de nc e b efor e t he ju ry “ establish ed that the shooting was a spontaneous, unpremeditated response to [the victim’s] aggressive stance following the defenda

nt’s dema nd that [the

victim] ret

urn the st olen mone

y.” In su pport, he cites, inter alia : the videotape of the shooting, showing that the victim walked up to him in an aggressive manner and stood face-to-face with him before he pulled his gun out of his pocket and shot him; his testimony that he retrieved his gun

to use in self-defense only because he believed the victim might be armed; testimonyby neig

hborhood residents of the victim ’s reputation for violence; and evidence that he
was emotionally distraught a fter the killing and turned himself in to police early the n ext m ornin g. As for the repeated shots he fired at the victim, the defenda nt cites State v. Brown , 836 S.W.2d 530, 542 (Tenn. 1992), to argue that they were fired in the

heat of p assion and are therefore not alone sufficient to show premeditation.

Howe ver, the jury hear

d and saw the evidence cited by the defendant, including the store surveillance videotape of the shooting, which contains nothing to contradict the jury ’s rejection of the defendant’s claim of self-defense or its finding that the shooting was theresult of premeditation, rather than a spontaneous act. The videotape has no sound, and it is impossible to distinguish the-14-

facial expressions of

the parties. However, the actions of the defe ndant and the victim, as well as their relative positions to each other prior to the shooting, can clearly be seen. The videotape shows the victim leaning against the front counter watching Mercha nt’s transaction with Isabel Davis at the time the defe

ndant re turned to the store . The def

endant br iefly opened th

e door and looked in

the direction of the vic tim, who re mained lounging

agains t t he counter. The defendant then stepped back outside and disappeared from the camera ’s view. Next, he opened the door again, entered the store, and took four s trides toward the victim. At that point, the victim straightened up from the counter and beg an walking towar d the def endant. The defendant stopped and the victim continued to adv ance, h alti ng immediately in fr ont of the defendant, with his face within inches of the defendant’s face. Although the victim’s posture appeared confrontational as he stood fa ce-to-face with the de

fendant , his handsremaine d down at h is side and he did not touch the defendant as the defendant pulled his gun out o f his pock et, took a ste p backwa rds, and f

ired. The

victim fell backwards and out of

camera view to the left of the screen . The def

endant f ollowed a nd fired at least two more shot s in the direction in which the victim disappeared from camera view, before he

briefly disappeared

from camera

view himself. He then reappeared a nd started to the door. Before e xit ing, however, he turned and fired one fina l shot in the direction of the victim.

In sum, there was ample circumstantial evidence in this case f rom which the jury

could infer p remeditation, including: the defendant’s prior relationship with the victim and motive for t h e murder; the fac t that he w ent home t o get his g

un and, up on his ret

urn, che cked to

see if the victim
was still inside the store b efore retriev ing the weapon from his truck; his use of a deadly weapon upon the unarmed

victim; his c ontinuing

to shoot at

the victim

as the vic tim attempt

ed to escape; and the fact that he fled the scene immediately after the shooting. Therefore, a fter viewing the evidence in the ligh

t most favo

rable to the State , we conc lude that it was sufficient for a rational trier of fact to find the

defenda nt guilty of first d egree premeditated mur

der bey ond a rea sonable d

oubt.
II. Evidence of Victim’s Prior Act of Violence

As his s econd issue , the def endant c ontends th at the tri al court erred i n limiting

defense witness Jane Spear ’s testimo ny t o her kno wledge

of the victim ’s r eputation in the community for violence. Defens e counse l sought, instead, to have he r testify regar ding a sp ecific t

hreat the victim had made ag ainst

her daughter. I

n a conference

held in chambers, defense counsel explained to the trial court what he anticipated her testimony would be:
[DEFENSE

COUNSEL]: My que stions are, first of all, did y ou know [the victim’s] rep utation in the com munity ? Yes. I

knew he w as a violentman. Okay. The

n I’m going to say , were y ou present when [the victim] came over to your house thre atening to do v iole nce to your daught er. She’ ll say, y

es, I saw him come in. I told my daughter to stay in the house. And I got him to leave.
[THE STATE]: Well, Judge, how could she testify he came over –-15- THE COURT: Look –
[DEFENSE

COUNSEL]: The threat had come in over the telephone.

THE COURT: To her?
[THE STATE]: To her?
[DEFENSE

COU NS EL] : It was to her daughter. And I

don’t know that she can say

it was [the victim].

THE COURT: I thin

k [sic] y ou can be

a violent person, i f you don’t do that. If they

don’t even know it was him. It wasn’t eve n he r answering the phone.
[DEFENSE COUNSEL]: That’s fine.

The def endant arg ues that Sp ear “sh ould have been all owed to te stify

about [the

victim’s] aggressive

behavior at

her home in order to corroborate the def endant’s claim that [the victim] was the first aggressor.” The

State first questions whether the evidenc e fairly rai sed the issue of selfdefense, although it concedes the trial court instructed the jury on self-defense and the State did not rais e the issue at trial. The State next argues that the defendant wa ived the issue by his failure t o either object to the trial court’s ruling or make a proffe r of the witness’s testimony . Finally , the State argues that the tr

ial cour t appropr iately refused to allow the witness to testify about a threat of which she obviously had no firsthand knowledg e.
If the issue of first aggressor has first bee

n raised by

the evidence, proof of the victim’s prior violentacts may

be admissible through the direct examination of a witness for the purpose of corroborating the defe

ndant’s c laim of self-defens e. See State v. Ruane , 912 S.W.2d 766, 780 (Tenn. Crim. App. 1995); see also Neil P. Cohen et al., Tenne ssee L aw of Evidence , § 4.04[5][d] (4 th ed. 2000). Before admitting the evidence, however, the trial court must determine if there is a factual basis unde

rlying the p

roffer ed testimo ny a

nd whethe

r its p robative

value out

weighs its prejudic ia l effect. Ruane , 912 S.W.2d a t 781. The

decision to admit or

exclude e

vidence is gener ally left to the sound discretion of the trial court, and, as such, will not be disturbed on review absent a showing of an abuse of discre tion. State v. James , 81 S.W.3d 751, 760 (Tenn. 2002).
Here, de fense counsel merely informed the trial court of what he anticipated Spear ’ s testimonywould entail, rather than requesting a jury-out hea

ring at which to make

a proffer of her te st im on y. Since the proposed testimony is not in the recor d, the defenda

nt has wa ived this issue for appella te review. See State v. Goad , 707 S.W.2d 846, 853 (Tenn. 1986) (When excluded evidence “consist s of oral testimony, it is essential that a proper offer of proof be made in order that the appella te court ca

n determ ine wheth er or not exclusion w as reve

rsible.” ). Rega

rdless of the waiver,
we conclude that the tr

ial court did not abuse its discretion in its ruling on this matter. At the-16-

conference

in chambers, defense counsel conce ded that the victim’s alleged threat had been made by telephone to Spear’s daughter. Moreove r, although the defendant arg ues on appe al that S pear should have been

allowed t o testify about the victim’s “ aggr

essive be havior a t her home ,” defe

nse counsel did not tell the trial court of any violent beha vior on the part of the victim that Spear had witnessed, which he presumably would have done had it occurred. Under these circ umstances, the tr ia l c ou rt pr op er ly e xc lu de d t he te st im on y.
III. Evidenc

e of Victim’s P

rior Access and F amiliar ity with Stol en Weapons

The defendant ne xt conte nds the trial court erred in prohibiting a witness from testify ing about the victim ’s conne ction with stolen we apons. Foll owing th e testimon y of Donnie B rooks, defense counsel sought

to prese nt the test imony of Fred Overstr eet, who , counsel said, wou ld testify that the victim

had ta ken seve ral guns fr

om Overst

reet’s p arents d

uring a burgla ry of their home some five or six years prior to the de fendant’s trial. After ascertaining that Over street ha d not informed the defe

ndant of t he burg lary, the t

rial cou rt ruled t he evide nce inad missible. D efense counsel then requested

and received

permission to make a proffer of Overstree t’s testimony. I

n the jury-out hearing that followed, Overstreet testified that several guns were taken in a 1994 burglary of his parents’ home, but he had no knowle dge of

who had ta

ken them. He said th

e victim ha

d told him he knew who had the guns and had helped to r ecover them, but had neve r admitte d to participating in th e burgl ary. Ove rs treet had no knowledge of whether the victim had been prosecuted

in juvenile court for the crime, testify ing, “That was my mo m and dad. ” He said he did not know the defendant.

At th e conclusion of Overstreet’s proffer ed testimony, the trial court made the following ruling:

All right. After hearing him, that’s even further removed than I
was at least willing to consider. And I don’t think that that

needs to go before the Jury at a ll. It doe sn’t even necessarily implicate the victim as being the one w

ho actua lly stole the gun s. And the only thing I heard

from that is that he helped to recover the guns and then something happened in Juvenile Court where hehad some receiving
or conce aling or

whateve r kind of c ase it wa s.
We find n o abus e of di scret ion i n the t rial c ourt’ s ruli ng. The defendant argues Ove rstreet’s testimony was releva

nt and admissible to reinforcethe rea sonableness of his belief th e victim was armedand to corroborate his claim that the victim was the f irst ag gresso

r. Howev er, as the State points out, ther

e was no p

roof tha t the def endant kn ew of the victim’s a

ll eged th eft or connection withthe stolen we apons ; thus, the testimony was not admissible to show the defendant’s state of mind. See Tennessee Law of Evidence § 4.04[5][b]. Similarly , the testimony was not a

dmissible to corroborate the defendant’s cla im of first aggressor beca

use there was no proof that the bu rg la ry, even assuming

the victim

was involv ed, was a

violent a ct. See id. at § 4.04[5][d]. Therefore, the tr ia l c ou rt pr op er ly e xc lu de d t hi s t es ti mo ny.2 An aggra vated assault tha t is based on the use of a deadly weapon, on th e oth er ha nd, a ccordi ng t o Manning ,

is not ales ser- incl uded of fen se of fi rst degre e premedi tat ed m urder becaus e use of a deadly weapon is not one of the elem ents of first d egree prem editate d mu rder

. 200 3 W L 35 451 0, at *6 n .1.
-17- IV. Failure to Inst

ruct on Ag gravated Assault as Lesser- Included Offens e
The defendant nex t conten ds that the trial cou rt committed rever sible err or by failing to inst ruct the jury on agg ravate d assault

as a less er-inc luded off

ense of f irst deg ree pre meditate d
mu rder. A fter the jury instructions had been issued, the defendant requested that the trial cour t instruct the jury on ag gravated assault, arg uing tha t under th

e facts of the ca se, the ju ry could determine that the first fatal shot to the victim’s chest was fired in self-defens e and that the successive, nonfatal shots to the victim’s legs amounted to the offense of agg ravated assault. The trial court refused, noting that the shots were all fire d within seconds of each other and concluding that an instruction on aggravated a ssault was not warranted under the facts of the case. We review this issue de novo , with no presumption of correctness to thetrial court’s determination as to which lesser-included offenses to charg e. See State v. Bowles , 52 S.W.3d 69, 74 (Tenn. 2001).

When an issue i s raised

regar ding the trial cou rt’s fai lure to ins truc t on a lesser-included
o ffense , we must de

termine: (1) whe

ther the offense is a lesse

r-includ ed offe nse unde r the test adop ted in State v. Burns , 6 S.W.3d 453 (Tenn. 1999) ; (2) whether the evidence supports an instruction on the lesser-included offense; an d (3) whethe r the failure to instruct on the lesserincluded offense constitutes harmless error. State v. Allen , 69 S.W.3 d 181, 187 (T enn. 2002).

The State argues that agg ravated assault is not a lesser-included off ense of first degree premeditated

murder u nder th e Burns t est beca

use all of its statuto

ry elementsare not i ncluded in the elements of first degree preme ditated murder, as required by part (a) of the test, and it does not satisfy either part

(b) or (c) of the

test. Alte

rnatively, the State

cites State v. Will

iams , 977 S.W.2d 101, 105 (Tenn. 1998), to argue that since the jury convicted

the defe ndant of t he indict ed offe nse to the exclusion of the immediately lesser off enses with which it was charged, the trial court’s failure to instruct on the more remote lesser offense of ag gravated assault amounted to harmless err or.
In an opinion

releas ed afte

r the brie fs were filed in th is case, we concluded that an ag gravated assault committed by

intentionally, knowingly , or recklessly causing serious bodily

injury to another is a lesser-included offense of first deg ree premeditated

murder under part (a) of the Burns test. See Statev. Paul Graham Manning , No. M2002-00547-CCA-R3-CD, 2003 WL 354510, a t *6 (Tenn

. Crim. App. Feb. 14, 2003). 2

How ever, the de fendant is not benefitted even if we apply the holding in Manning that aggravated

assault isa

lesser- included

offense of first d egree premeditated mur

der. Fir st, we note again that the d efenda nt’s arg ument is that since the first fatal shot was fired in self-defense , the trial court erred in not instructing the jury as to aggrava

ted assault and, thus, not giving the jury “the option of convicting the de fendant of intentionally shooting [the victim] on a theory that the defendant’s intentional, non-justifi ed acts (b eing shots two, three and four) resulted in injury as-18-

opposed to death.” However, although the jury was instructed as to the lesser-included offenses of second degree murder, voluntar y manslaug

hter, and reckless homicide, as well as on self-defense, it nonetheless convicted the defendant of first degre e premeditated murder, with the evidence uncontestedthat the d

efenda nt’s firs t shot was t

he only shot which

would have be en fata

l. Thus, by its verdict, the jury r

ejected the def

endan t’s claim of self-defense. Although the more ty pical harm l ess error a

naly sis would be

applied t

o a defe ndant’s c laim that a

lesser- included

offense instruction should have been given because of a fatal shot rat

her t han, as here, because of three subsequent

nonfatal shots, we

still conc lude, as t

o this issue, that by convicting the defendant of the indicted offense

to the exclusion of the immediately lesser offe nses with which it was charged, the jury ne ce ss ar il y rejected all other lesser-included offe nses. See Allen , 69 S.W.3d at 189 (citing Will iams , 97 7 S.W.2d at 1 06). Acc ordingl y, w e conclu de that the trial c ourt did no t err in it s determin ation tha

t the jury should not b e instruc ted as to a ggra vated as sault. V. Failure To Instruct Jury on Range of Punishment

As his next issue, the defendant contends the trial court committed reversible error by failing to instruct the jury

that a defendant sentenced to life must serve a minimum of fifty -one yea rs before becoming eligible for parole. He asserts that the pr osecutor commented onrange of punishm

ent, in violation of TennesseeCode Annotated section 40-35-201(b), when he said during voir dire that the only time the ju

ry is involve d in sentencing is when the death penalty was being sought, which was notthe case

in the defe

ndant’s t rial, and when

he reas sured a v enire me

mber who expresse d qualms about serving on a cap ital c ase that

the State was not seeking the death penalty . The defendant contends that the prosecutor’s impermissible comments on the death p ena lty implied that the sentenc e in his ca se would be insignificant in comparison, placed capital punishment at issue, and entitled him to an instruction on what a life sentence entailed, as given in those cases in which the jury fixes the sentence. We re spectfully disag ree.
The comments to which the defendant objects occurred dur ing voir dire, when the prosecutor made the following

statemen t:
But, in this particular da y and age, the law in Tennessee is that the Ju ry f in ds th e d ef

en da nt gu il ty o r n ot gu il ty. If the Jury finds the defendant guilty , then, at

a later t ime, with in

formatio n giving

[sic] to the Judge at a later time, a Presentence Report

is done. The Judge has certain parame ters he h as to mee

t to give a sentence on tha

t. The only time that the Jury is involved now in a – in a cas e is when the

death penalty is being sought, which is not the case in this or something like that. That’s pretty much the only time that the Jury is involved in the punishmen

t. Do you have a

problem with the fact that y ou’ll be assessing guilt or

innocenc e, and if

you find the d

efenda nt guil t y, there’s no – you don’t, rea lly, get a say-so in the punishment. Do you have a p roblem with that?-19-

At a later point, the following colloquy occurred between the prosec utor and a venire member:
[THE STATE]: Okay . And is – I guess th is is the first time since – today’s Monday, the first day you’ve, re ally, gone throu gh this, but, from wha t I ’ve sai d an d – a

nd t he f ew r ema rks Ju dge Wy att h as made, is there anything

that, maybe, y

ou t hink you have a

question that’s dif ferent or any thing on y

our mind a

bout?

JUROR NO. 1: No, ju st on e thin g, about th e death penalty . I’m opposed to

it. [THE STATE]: We’re not asking for the d eath pen alty . This is not a death penalty

case.
JUR OR NO. 5 [si c]: T hat’s the on ly thing.
[THE STATE]: If – i f it

were a death penalty

case, there would be a lot more questions about things and – JUROR NO. 5 [sic]: That was my only c oncern. [THE STATE]: Okay.

The record

reflec ts that def

ense cou nsel req uest e d at the outset of trial that the jury be instructed on range of punishment, and the trial court ref used the request. On the day following the prosecutor’s above-quoted remarks, defense c ounsel renewed his request, arguing that by telling the jury it was not a capital case, the State had impermissibly tried “to minimize the range of punishment,” thereby ope ning the door to the issue and entitling him to an instruction on the number of years a l ife se ntenc e carri es. Th e tria l cour t again refuse d his reques t, st ating:

I don’t think he brought that up. I think he answer ed it in response to a woman

over her e wante d to know whether she could be
on the Ju ry a bo ut th e d ea th pe na lt y, that they ’re not s eeking the deat h pe na lt y. And I don’t intend to revisit that. The law’s clear and I ’m not going to get into the range of punishment. So that will be it.

The law to which the trial court referred, a nd the code section the defendant cites in his brief, is entitled “Issue of g

uilt and sentence to be tried separately – Instruct

in g t he ju ry on possible sentenc es” and p

rovides i n pertine

nt part:

In all contested criminal cases, except for capital crimes whic h are governed by the proce dures contained in §§ 39-13-204 a nd 39-13- 205, and as necessary

to comply with the Constitution of Tennessee,-20- article VI, section 14, and

§ 40-35-301, the judge shall not instruct the ju ry, nor shall

the attor ney s be perm

itt ed to commen

t at any time to the jury , on possibl e penalt ie s for the offense charged nor a ll lesser included offenses. Tenn. Code Ann. § 40-35-201(b) (Supp. 2001).

As the trial court noted, the statut e makes it clear t hat a tria l court is n o longe

r allowe d to instruct the jury on rang e of punishment in non-capital cases. See also Tenn. Op. Atty. Gen. No. 99- 178 (Sept. 17, 1999) (“Further, Tenn. Code Ann. § 40-35-201(b) does not permit instructing the jury regarding the paro le elig ibility

of a def endant c onvicted

of first d egree murder a nd sentenced to life imprisonment under Tenn. Code Ann. § 39-13-208, as such instruction is applicable only for c ases proceeding under Tenn. Code Ann. § 39-13-204.”). The prosecutor was similarly

prohibited by the statute from commenting onthe possib le penal ties the de

fendant might re ceive. We

disagr ee with the defendant that the prosecutor’ s brief c omm ents were a deliberate intent to minimize the punishmentthe defendant would rece ive if convicted of the offense, or that the defe ndant’s due processrights to

a fair trial required that the trial court then instruct the jury on rang e of punis hment, in violation of the statute. In this regard, we note that this court has pre viously found it to be harmlesserror when the trial court, rather than the prosecutor, violated the statute by instructing the jury during voir dire that the State was not seeking the de ath penalty or life without parole and thus if convicted, the defendant would receive a n automatic life sentence. See State v. Charles Ray Allen , No. M1999-00818-CCA-R3-CD, 2000 WL 1649507, at *7 (Tenn. Crim. App. Nov. 3, 2000), perm. to appeal denied

(Tenn. 2001). We conclude, likewise, that the prosecutor’s more benign remarks in this cas e, even

if error , were h armless, and the tr ial cour t did not err in refusing the defendant’s range of punishm

ent requ est.
VI. Cum ulative Er

rors As his final issue, the defendant argues that the cumulative effect

of the trial court’s errors
warran ts a new trial. Having found noerrors committed by the trial court, we respectfully disagree.
CONCLUSION

Based on the foregoing reasoning and authorities, we affirm the judg ment of the

trial cou rt.

___________________________________ ALAN E. GL

ENN, JUDGE