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

Briefs O ctober 2, 2001

STATE OF TENNESSEE v. MIC HAEL TUCKER

Direct Appeal from the Criminal Court for Shelby County

No. 99-05654 Chris Craft, Judge

No. W2000-02220-CCA-R3-CD - Filed Nove mber 20, 2002

The Shelby County

Grand Jury indicted the Def endant for felony

murder in the perpetration of a

ro bb er y, first degree premeditated murder, and espe cially

aggr avated r obbery . Followi ng a tri al, at which the Defendant was tried with his co-defendant, a Shelby County jury

convictedthe Defendant of second degree murder. The Defendant now appeals his conviction as of r ight, argui ng that insufficient

evidence was presented to support his conviction, that the trial court supplied the jury withimproper supplemental instructions, and that the trial court improperly commented on the

e vidence at trial. Concluding that sufficient evidence was pre sented to support the Defendant’s conviction for

second degree murder, tha t the trial court’s supplemental instructions to the jury were proper, and that the trial court did not improperly c omment on the evidence, we affirm the judgment of the tri al court

. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., deliver ed the opinion of the

court, in which G ARY R. W ADE , P.J., filed a concurring opinion, and J OSEPH M. T IPTON , J. filed a dissenting opinion.

A C Wharton, Jr., Public Defender, and W. Mark Ward, Assistant Public Defend er, Memph is, Tennessee (on appeal); and William L . Johnson, Memphis, Tennessee (at trial), for the A ppellant
, Michael Tucker.

Paul G. Summers , Att orney Gen eral and Reporter; Patricia C. Kussmann, Assistant Attorney Genera l; William L. Gibbons, District Attorney Ge neral; James Wax and Karen Cook, Assistant District Attorneys Gene

ral, for the Appellee, State of Tennessee.

OPINION

I. PROCEDURAL HISTORY

In May 199 9, t he S hel by Cou nty Gra nd Ju ry ind icted the Defendant, Michael Tucker, a nd his co-defendant, Joseph Flake, for one count ea ch of felony murde

r in th e p er pe tr at io n o f a ro bb er y,
one count each of fi rst degree p remeditated murder, and one count each of especially a

ggravated1 Th e reco rd d oes n ot c ontai n a copy of the ind ictmen t charg ing the D efend ant and the co -defen dan t with

espe cially agg ravate d ro bbe ry.

-2- ro bb er y. 1 Their

joint trial began on May

30, 1999. At the conclusion of the State’s proof, the trial
court granted co-defendant F lake ’s motion fo r a judgment of acquittal as to the first degr ee premeditated

murder charge. At the conc lusion of the trial, a Shelby County

jury acquitted

both codefendant Flake and the Defendant of fe lony murder and of

especially a

ggravated ro bb er y. However, the jury found the De

fendant guilty

of second degree mur

de r. On Ju ly 14, 2000, the trial court conducted

a sentencing hearing a

nd sentenced the Defendant as a Ra ng e I v io le nt of

fe nd er to tw en tyfive ye ars ’ incarceration. The Defenda nt now appeals his conviction, arguing that insufficient evidence was presented to support his conviction, that the trial court erred in instructing the jury , and that the trial court improperly commented on the evidence at trial. Finding no error in the record, we affi rm the Defendant ’s conviction on app eal.

II. FAC TS

All charges in this case stem from the shooting death of Ainsworth Blackmon, Jr., on March 30, 1999. At tr

ial, Cora Blackmo n testifie d that she was the victim’s mot

h er. She st ate d that her
son, whose nic

kname wa s “Junior Boy,” w as twenty-three yea rs old at the time of his death. She also testifie d that she

was awa re that p rior to hisdeath, he

r son had b een involved in cr iminal ac tivity for several years, specifically with such crimes as assaults, thefts and “drug dea ling.”

Mark Rewalt, an officer with the Memphis PoliceDepartment for fift een y ears at the time of trial, testified that he was working with the Cr

ime Scene

Unit at the

time of the crime in this case. He stated that on March 30, 1999, he was called to a “shooting” at a three-story

apartment

building in a housing project located at the corner of Tully Street and Wells Avenue. When he arrived at the

scene at 9:19 p.m., Rewalt learned that the victim had already been transported to the h ospital in critical condition , but he la ter lear ned that the victim

h ad died. Rewalt testified that while at the
scene, he se arched fo r evidence and took photographs, which we re entered into evidence. One photograph

depicted blood stains, a bottle of Hawaiian punch, and a paper bag conta inin g egg rolls and chicken

wings. A

t the crim e scene , office

rs found t wo vehic les that wer

e pertinent to the

ir investigation, a 1997 Dodge Caravan and a 1976 C hevy Imp ala. Rewalt dusted the Caravan for finger prints after learning that a suspect “mig ht have run into” the vehicle. Rewalt testified that after leaving the scene of the crime, he delivered evidence to the property roomand then proceeded to the hospital to collect

the victim’s clothing and personal effects. Acc ording to Rewalt, “[t]en rocks” of “crack cocaine” we

re found on the victim’s person, but no weapon was found.

Willie Wells testified that he knew the victim as “Junior Boy .” He stated that onMarch 30, 1999, the victim app

roache d him at the

corner of Tully Street a nd Wells Ave

nue at ap proximatel

y 8:00 p.m. and asked to buy Wells’ vehicle , the 1976 Chevy I mpala later found at the scene. Wells testified that he allowed the victim to test-drive the car, and the victim then ag reed to buy

it. Wells reported he and the victim arranged for the victim to give Wells $500 of the $1,500 asking price and that the victim

would late

r give We

lls the re maining $1,000. Wells testifi e d that he wa tched the-3-

victim count “a stack” of money while standing on the sidew alk n ear the car, and he then waited while the victim walked across the street to a store. He stated that

when the victim exited the store holding a bag in

his hand, t

he victim b egan to

walk towards T

ully Stree t. Wel ls sta

ted th at he

next heard a gunshot and duck ed. He ma

intained that he di d not see w

ho fired the shot.

On cross-e

xamination, Wells testif

ie d tha t he saw ten to fifteen people, including a man namedLeetoy

Brownand a woman named Sharon Oliver, at the scene a t the time of the shoot ing. Wells identified Oliver as a known drug user. He also testified that he made a statement

to police concerning the shooting, but he maintained that he obtained much of the information in his statement from Oliver. He testifi ed that he told police

“from the beginn ing that every thing [he told them w as] hearsay ,” and he stated that much of thewritten statement was incorrect. Wells further testified on cross-examination that he picked th e Defe ndant and the co-d efenda nt out of photogra

phic line -ups, but he claimed that he did so in response to being asked by police if he “had ever seen them in the neighborhood.”

Dr. O.C. Smith, t

he Shelby County Medical Examiner, testified that in the spring of 1999, while employed asan Assista nt Medica

l Examiner, he perf

ormed the autopsy on the vic tim in this

case. Smith state d that at th e time of h

is death, the victim

was five f

eet, seven inches tall and weighed 163 pounds

. Dr. Smith reported that the victim died as a result of a gunshot wound to the neck. Smith specified that the bullet that killed the victim severed s everal major arteries in the victim’s neck, interrupting the blood supply to the victim’s brai n, and then crossed the victim’s windpipe, causing the victim to inhale blood into his lungs. He stated tha t the wea pon used to

kill the victim was fired from a range of be tween twelve and twenty -four inches from the victim’s bo dy, leaving powder burns on the victim’s skin. Dr. Smith further testified that he found “a

series o f skin scrapes or abrasions in the brow a nd cheek bone area” which we re consistent with the victim’s falling to the ground and striking a flat surfac e. Fina

lly, Smithreported that tests performed on the victim’s blood indicated no drug or alcohol content. However, Smith testified that a urine s ample taken from the victim was “positive for a metabolite of cocaine, known as ecognine methy l esther, which is a chemical . . . produced when coca ine is broken down in the body.”

A lexander

O’Neil Blackmon, the victim’s brother, testified that he spoke with the victi m immed iately

p rior to his death on the evening of March 30, 1999. He stated that after conversing withhis brother, he walked to the store with Leetoy Br own. When he emerged from the store, he

saw his brothe

r standin g acro ss the stree t heated ly arguing with a

nother ma le, and he then hea rd his brother call out to

him that “h

e had dra ma.” He explained

that this me ant that h

is broth er was “having a confrontation with some guy s.” Blackmonrecalled that as he turned and looked, he hea rd

a gunshot . He stated that his b rother wa s shot from the back and “hit the ground on his face.” Blackmon testified t hat h e saw the Defend ant holdin g a gu n standing

over his b

rother a fter his brother fell. He stated that he also saw two women and the co-de fendant standing near

his brother. Blackmon testified that he next heardmore guns hots, saw bullets hit a wall near where he was stand ing, and rea

lized that t

he Defen dant was shooting at him. He then began to run. B lackmon stated that he later got a ride back to the sce ne, where he saw his brother ly ing on the ground. He-4-

testified that after returning to the scene, he went to his aunt ’s house a

nd stay ed there until his sister arrive d to trans port him to t he hospita

l.

On cross-examination, Blackmon testified that he waited four weeks after the incide nt before speaking to police

about the shooting . He also

testifie d that he d

iscussed the shooti ng with

some of his fa mi ly m em be rs an d w it h Le et oy B rown prior to speaking to law enforc ement of

ficials. Blackmon explained the delay, stating , “I’m thinking that [the police] already had e nough evidence
to get [the Defend ant and c o-defe

ndant] in custody. And I’m thinking that [the police] were g oing to come to me. I ain’t hear [sic] nothing, so I had to step up.”

Leetoy Brown testified that he had kno wn the victim since childhood. He stated that on March30, 1999, he went to the store with the victim’s brother, Alexande r Bla ckmon. Brown testified that when he and Blackmon exited the store, he saw the victim sta nding “ in a huddle ” with three other men. Brown stated that while

he and B lackmon s topped to converse, the victim called
outthat he “got ana,” meaning a nimosity, or “drama.” When a sked what “drama” meant, he stated, “They upset, just tripping off

nothing.” Brown reported that he then saw someone pull out a gun and shootthe victim, and the victim fell. According to Brown, after th e victim f ell, Brown w as able t

o

see more clearly . He testified t hat he then saw the co-defendant g o into the victim’s pockets and,
at the same time, the Defendant begin shooting a t Brown and Blackmon. Brown recal led that he “was stuck in a daze for a minute,” but soon noticed Blackmon running a nd then bega n to run himself.

On cross-examination, Brown testified that the victim sold dru gs and was carry ing money

on his person at the time of his death. Brown further testified that he had heard that Sharon Oliver

was at the sc ene at the time of the victim’s death. He reported that after the victim was shot, a “fig ht broke out” around th e victim’s bod y. He denie d taking any thing from the victim’s body a fter the vic tim was shot. Brown st

ated tha t he boug ht a new c ar short

ly a fter the victim’s d

eath. H e explained that he obtained money f or the purchase after police h it his previous car while it was parked. Brown admitted that he waited four w eeks af

ter th e crim e befor e shari ng his knowl edge of the crime with police, but he stated that he waited because he “was in fear for [his] life.” Brown stated that he did not work, but sold drugs at the time of the crime. He admitted tha t every da y he smoked “blunt[s],” which he described as marijuana inside a cigar , butdenied ingesting any drugs immediate

ly prior to witnessing the crime in this case. Finally , Brown testified that hepicked the co-defendant

out of a photographic line-up as one of the men involved in the shooting death of the victim. He admitted that he would be happy if the co-defendant were to be inca rcerated for life.

Sharon Oliver testified that she had lived for ten ye ars in the housing project where th e crime occurred. She state d that she and the vi ctim

were friends and

had grown up together. She recalled that on the evening of March 30, 1999, she “ran into” the victim at a store, where he wa s buying a “tropical punch dr

ink.” Oliv er repo

rted tha t the victim was also carry ing a paper bag conta

ining egg rolls and chicken. She stated that after they left the

store, she and the

victim we

nt to Willie Wells’ yard and talkedwith Wells a

bout a veh

icle that the victim

wished to

purchase. Oliver recalled that she and the vi ctim late

r stopped to conver se with

some acquaintances at the housing project where-5-

they lived. During their conversation, accord ing t o Oliver, the Defe

ndant and the co-d efenda nt, whomshe knew “from around the neighborhood,” approached the victim. Oliver testified that the Defendant

said, “Hey ma

n, ain’t no dope selling in this building,” and the victim responded, “Man, you r name ain’t on this building.” According to Oliver, the De fendant replied, “Look ma n, I tol d you once ain’t

no M.F. dope selling in this building,” and the victim then stated, “Man, you got me mixed up.”

Oliver testified tha t a fter this discourse, the victim called across the street to his brother: “He y Blackmon, I g ot drama .” Acco rding to Oliver, the Defendant then pulled a gun out of his right back pock et and shot the victim from close range. The victim fell fac e-down. Oliver reported that the Defendant took five steps and then shot at the victim’s brother. She recalled that she was initia

lly “ina state of

shock,” but soon began to walk towards her g randmother’s home. She stated that as she looked back at the crime scene, she saw the co-defendant rea

chi ng into the victim’s left front pocket and the Defendant reaching into the victim’s right front pocket. She then began to run, a nd the Defendant and the co-defenda nt ran together

behind her. Oliver testified that the Defendant and co-defendant

“fled” past her when she reached her grandmother’s home. Oliver called 9-1-1 from her grandmother’s home.

Oliver testified that later that evening, she went to the police station and providedthe officers witha stateme

nt rega rding th e crime. She testif

ied that b etween

March 30

and Apri l 6, 1999, she gaveseveral statements to p ol ice. Oliv er state d that she also iden tified the co-def endant f rom a photogr aphic line-up a s the per son whom sh e saw re ach into

the victim’s pocket

after the victim had been shot, and s he repor

ted that sh

e identif ied th e Defe ndant from a photographic line-up as the shooter. Oliver maintained that therewas no doubt in her mind that the Defend ant shot the victim.

On cross-e

xami natio n, Oliver admitted that when she first spoke to a police officer on the night of the cr ime, she to ld the off

icer tha t she did no t witn ess the actual shooting. However, she explained that she d

id so because she “was scared f or [her] life” and “didn’t . . . really want to get involved.” She state d, “I

didn’t kno w if [the De

fendant ] was going to come

back and try

to kill [m]e, or not. He was not incarcerated.” Oliver testified that after the crime, her mother encouraged her
to tell the police the truth because “a y oung boy’ s life [had] been taken.” Oliver further testified that she did not initially tell police that she saw the Defe ndant and the co-defendant reac h into the victim’s pockets after the victim had been shot beca use she di d not think t

hat this information was important and because she was nervous.

Oliver testified that on the night of the crime, she spent the night at her mother’s home. She stated that o n the fo llowing night, she asked her friend, Anthony Bell, to spend the night at her apartment because she was afraid. Oliver te stified that she told Bell eve ry thin g she had seen and heard. Oliver further testified that she saw a man named Clifford Rog ers at the scene, but that she did not see a man named Tony Retic at the scene on the night of the victim’s death.

Oliver admit ted on cr oss -examination that she had taken drugs for three to four y ears preceding trial, but she maintainedthat she did not “get high” every day. She reporte d that she

last-6-

“g[o ]t high” four to five months prior to the trial. Oliver first testified on cross-examination that the victim had sold her drugs during the time period when she was taking drugs, but she later denied that the victim had ever sold her drugs. Oliver admitted that during the weeks surrounding the victim’s death, she took drugs. She maintained, however, that she was“in [her] right mind” and did not take drugs o n the n ight o f the s hoot ing.

Bonita Moore, an employee of Federal Express, testified that she w as raise d in the area where the shooting

occurr ed, and s he state d that the victi m went to school with her children. Moore testified that at approximately 8:30 p.m. on the night of the c rime, she was d

riving i n her van at the intersection of Wells Avenue and Tully St reet. She recalled that while she was stopped at a stop sign, she saw three men and a woman standing tog ether near the intersection. Moore stated that she rolled the window down and was about to ask the group whether they had see

n her son, who was being dropped off by

a church bus. Howeve

r, before she could spe ak, she heard two gunshot s. Moore stated that she saw one of the men fall and the other two men bending over the man who ha d fallen. Moore testified that the woman “was standing like she was sc ared,” but the woman then began to run. The men began to run together behind the w oman. Thinking that the two men were going to shoot the woman, Moore followed the woman in her van. As Moore was turning into

the back dr ive of the housing project where the shooting occ urred, one of the men, whom Moore identified in court as the Defenda n t, ran into her van. According to Moore, the De fendant was holding “something re d” and “a chrome object” in one of his hands. Moore state d that after the Defendant

ran into her van, the other man yelled, “Man, le

t’s go this way,”

and the Defendant

ran away with him.

Moore testified that on the day following the crime, she gave a statement to police a nd identified the Defendant from a photograp hic line-up. She stated that she again identified the Defendant

from a photographic line-up during the w eek after the crime. Moore testified that she did not know the Defendant, but knew of him from her children, who c alled him “Crazy Mike.”

On cross-examination, Moore testified that the woman she saw on the nig ht of the c rimewas Sharon Oliver, who was her niece. She stated that at the time of the crime, she did not recognize her niece, but discovered the following morning that Oliver was the woman she h ad seen. Moore testified that she and Oliver had a close relationship. Moore also testified that she did not rea lize at the time of the crime that the victim was the man whom she saw fall after the shooting.

Mo ore admitted on cross-examination that she did not tell police in her statement that sh e
saw th e two men bending over the victim after the victim had bee n shot. She stated that

sh e answered questions asked by the

officers and

maintained that if th

e offic ers had a sked her

about this information, she would

have sha red it with them. She also maintained that Oliver never told her that the men r eached into the victim’s pock

ets.

Co-defendant

Joseph Flake called Eugene L . Milner, a private investig ator, to te stify

on his behalf. Milner testified that he was retired from the Memphis Police Department a nd ha d been working for I

nvestig ations Unl

imited for eight y ears. H e stated

that du ring histwenty -five y ears wit h-7-

the Memphis Police Department, he had worked on the homicide squad and had prepared numerous crime scenereports. Milner also stated that he had examined the crime scene r eports in this case.

Milner testifie d that he vis ited th e crime scene and measured va rious distances there. He stated that he visited the scene at night and stood at the spot from which witnesses viewed the crime. He reported

that the view from that spot was “dim” and stated that although there were str eet lights in the area, it was “dark.” He fur ther reported that a large tree stood in the area.

Milner testified that he had inter

viewed Sh aron Oliv er, who t oldhim that she had known the victim and his fa

mily for several years and that she loved them. Acc ording t

o Milner, Oliver a

lso told him that she had bought

drugs f rom the victim. Milner testified that Oliver informed him that several months prior to the ir in terview, the co-defendant had threa tened her brother “because a known dope dealer by

the name of Ronnie Vaughn .

. . had told him to.” Milner stated that Oliver was “glad” that both the Defenda nt and the co-defendant “were out of the neighborhood.”

Sergeant Sylvia S. Owen of

the Memphis Police Department also testified on co-defendant Flake’s behalf. She state d that she was a se rgean t in the are a of dome stic violence and reported that she partic ipated in the investigation of the crime scene in this case on Marc h 30, 1999. Owen testified that she in

terview ed Willie Wells, Jr., Sharon Oliver, Sh aquanta

Nelson, a nd Bonita Moore on that date.

Anthony Bell testified that he was incarcera ted at the time of trial for tre s passing and disorder ly conduct. He stated that he knew Sharon Oliver and that on March 31, 1999, Oliv er told him that a man with whom she had grown up had been shot by “some dude named Michael.” According to Bell, Oliver said that on the night of the crime, the victi m and M ichael were ta lkin g, the victim called across the street to his brother “that he was having some problems,” and Michael then shot the victim. Bell stated that Oliver did not mention t he co-de fendant . She also t

old Bell that only she, the victim and Michae l actually knew w

hat happened

“because every

body else wastoo far off to see what had happened.” B ell testified that he had been released from jail on the day the victim was s ho t, and he s tated tha t after O liver wa s intervie wed by police a bout the c

rime in thi s case, she asked Bell “to come over to her apa rtment and stay with her f or awhile, be cause . . . she

was scared to stay

there . . . .” Bell testified that he stayed a

t Oliver’s apartment

that night and the following night. He further testified that he stayed with Oliver on and off for a while after March 31, 1999.

Bell te stified that during this time period, Oliver was smoking “primo joints,” whi ch h e described as e ither “weed and crack [cocaine ] crunched up together . . . in cigar ette paper” or a cigar ettecontaini ng coc aine. B ell specified that the majority of the time that

he was around Oliver during this perio d, she wa s “gett ing hig h.” Bell state d t hat on the night after he left Oliver’s apartm e nt, he returned to her apartment, where several people were smoking marijuana ; he stated that at this time, no one was ingesting cocaine. B ell admitted that he also smoked “crack” cocaine, but he maintained that the drugs did not affect his memory

.-8-

Bell stated that he learned

of co-de fendant Flake’ s involvem

ent in the crime when he and the co-defendant

were incarcerated tog ether. Bell testified that the co-defendant approached him and askedBell to “ talk to [Oliv er], bec ause she had h im [in jail] on a murder charge.” Be ll testified that he told the co-defendant that Oliver “didn’t tell [him] that.”

Twent y- ye ar-old

Montonya Retic testified that he wa s at the crime scene when t he crim e

occurre d. He testified that he was conversing with the Def endant, who “was kind of angry about something.” He stated, “We was [sic] having a discussion about the situation of money in the ar

ea and him holding money and him having money, and I

offered to lend him some.” Retic testified that the De fendant re fused hisoffer b ecause he need ed more m

oney than Retic

could lend him. Retic stated that while he and the D efendant wer e talking, co-defendant Flake approached and gree

ted them. He testif

ied that th ey then walk

ed to a ne arby

store to b uy b eer and

cigar ettes an d returned to the scene.

Retic rec alled th at as he, the Defendant, and the co-de fendant opened their beers, Sharon Oliver, whom Retic described as a “junkie,” approac hed t hem. Acc ording to Retic, Oliver asked themfor “crack,” and Retic sold her some. Retic sta ted, howe ver, tha t the victim then approached the group, and Oliver decided that she would rather buy dr ugs from the victim. She therefore returned th e d ru gs bo ug ht fr om Re ti c, an d R et ic re fu nd ed he r m on ey. Retic stated that Oliver then purchased

cocaine from the victim. Retic testified that several people were

standing nearby at this point.

Retic recalled that the Defendant’s bee r disappeared while they were talking, and the Defendant

became “really

angry .” However, according to Retic, a w oman named Reneeapproached the Defend ant, offered to buy him another beer, and then walked to the store to buy a beer for the Defendant. Retic testified that the Defendant and the victim next began to arg ue “over where [the victim] could distribute his crack, his drugs.” Retic stated that during the argument, the victim “had tied his drugs up, and he reached in his pants,” while “ scream[ing]” to his brother across the street “we got ana , we got

drama . . . .” Retic testified that at this point, the Defendant shot the victim and then shot two or three times toward the victim’s brother. He stated that the Defendant then walke d
t o the victim ’s body , appea red to “s earch[]”the victim , and put so mething into his own pocket

. Retic maintained that the Defendant had to have taken money from the vic tim becau se the victim would not have carried drugs in his pockets wher e police would easily be

able to f ind them. Re

tic stated tha t at this point, Oliver had run from the scene, thinking that someone wasshooting at her. Retic testified that after

going through the victim’s pockets, the De fendant turned

to Retic and said, “Run.” Retic reported that he, the Defendant, and the co-defe ndant ran from the scene. He stated that when they re ached Oliver, who had stopped running, she said, “[y ]’all shouldn’t have done that . . . .”

Fi na ll y, Retic testifi ed that L eeto y Brown, who was also at the scene on the night of the crime, remained near the victim’s body after he, the Defendant, the co-defenda nt, and Sharon Oliver had fled. Retic stated, “He was too close to the body

. . . . [H]e was looki ng at the body , but he wasn’t checki ng it like h e was trying to get any

help. He was just standing there.” He testified,-9-

“[A]fter everything

had died down, [Brown] had popped up, he had a car, gold teeth, a bout six of them, he had a lot of dope and mo ney.” Ret ic the oriz ed tha t Brown must have t aken d rugs from the victim’s body beca

use police found only “ten rocks” on the victim’s body. Retic maintained that the victim, who carried more drugs than any other dealers in thearea, “was not known to carry just ten rocks.”

Retic reported that the co-defendant did not touch the victim’s body. He explained that the co-defendant

had a job as a manager at a business and wa s trying to help Retic g et a job at the time of the crime. He admitted, however, that the co-defendant had “chang ed from how he had been” and that the co-d efenda nt had poin

ted a shot gun at h im in th e past. F

in ally, Retic admitted that at the time of the crime, selling drugs was the source of his income. He admitted that co-defendant Flake and Flake’s attorney

had gotten him involved in the case.

The Defend ant called Cliffor d Roger s to testify

on his behalf. Rogers testified that on March 30, 1999, he was at the scene of the crime. Rogers reported that he saw Oliver try ing to buy coc aine from the victim when he ran into them. He claimed that he, the victim, and Sharon Oliver walked together acros s the ho using project immediately prior to the crime. Rogers stated that the three of themthen appr

oached the Defe ndant, who was st anding at the ramp to one of the apartment buildin gs, and Roge

rs enter ed into an argume nt with the

Defend ant about

the Defe ndant’s s elli n g him “some ba d dope.” Rogerstestifie d that the Defend ant told

the victim

“that he would app

reciate it” if the vic tim did not se

ll drugs around the Defendant. Ac cording to Rogers, an arg ument between the Defendant and the victim ensued. During the arg ument, the

victim “ho llered a

cross the stree

t”
to his bro ther tha

t he had “drama,” and the victim then “put[] something in his pants.” However, Rogers stated tha

t before the victim

could “g[e]t hishands out”

of his pan

ts, the Defendant shot the victim.

Rogers repo

rted that S haro n Oliv er wa s “[g ]on e on the first shot,” but he recalled that he remained where he was standing, looking at the body

. Rogersstated tha t when he left, the Defendant

was still at the scene. However, he maintained that he saw no one, including the Defendant, reac h into the victim’s pockets. He also testified that no one was at the scene of thecrime except him, the Defend ant, and Sharon Oliver. Rogers maintained that if the co-defendant was at the scene , Rogers never saw him.

On cross-exam ination, Rogers testified that it appeared that the victim may have been drawing a weaponwhen he reached inside his pants immediately prior to being shot. Rogers stated, “To my kn owled ge , that’s th e way I see n it.” How ever, Ro gers a dmitted tha

t the victim had only “dope” in his hand s when he was shot.

The Defend ant testif

ied on his o wn behalf at t rial. He recalled that at approximately 8:30 p.m. on the evening of March 30, 1999, he was standing outside of a

housing project building near Tully Street and Wells Avenue. He testif ied that c o-defe

ndant Fla ke, who ha

d just come

from the store, stopped th

ere to sp eak to him . The Def endant st ated tha t while he

was talkin g t o the codefenda nt, he saw the victim, Sharon Oliver, and Clifford Rogers walking acr oss the street towards-10-

them. The Def

endant r eported that the victim

“was fixin’ to transact [s]ome drug dealing in front of [him],” and the Defendant requested that the victim refrain from selling drugs “in front of [the Defendant].” According to the Defendant, the victim replied, “This building ain’t got your mother f__king name on it.” The Def endant te stified th at he wa ited a mome

nt and the n said, “We

ll, just don’t do it like that, right here,” to which the victim responded, “Who in the hell do y ou think you is?

. . . You don’t own nothing.” At this point, an argument ensued, during which the Defendant and the victim were “cussing at each other.” The Def

endant te stified th at during the arg ument, the

victim “turnedhis back on” the Defendant and called to his brother across the stre et, “Little Black, I

got drama with these

weak as s nigg ers, ag ain.” The Defe ndant expla

ined that this “mea

ns y ou got a prob l em, you

need to so lve it.” Accordin g to the D efenda nt, the victim then re ached in his pants. The Defendant maintained that he believed the victim was reaching for a g un to shoot him. He explained, “I k

now what t

ype of guy [the victim] i s. I been knowing him for quite a while. I know that he’s known for selling drugs. I know that he’s known for carry ing pistols. And I know that he will use it.” The Defendant stated that he therefor e shot the victim before the victim could turn all the way a round. The Defendant insisted that he did so because he f eared for his life.

The Defendant testified

that he ne

xt saw two “ more shou

ters coming acr

oss the str eet in the dark,” so he shot

at them as well. He explained that he shot at the two men coming across the street because he “knew they

was coming to help [the victim] do something to” him. The Defenda n t testified that after

he fired the shots, he and the co-defenda nt ran from the scene. He denied thatcodefendant Flake had any

involvement in the shooting. The Defendant also denied rea ching into the victim’s pockets after

shooting the victim , and he s tated tha t he did not

see any one else reach into the victim’s pockets.

On cross-examination, the Defendant testified that on the night of the crime, he was carry

ing

a loaded .357 magnum revolver in his back pocket. He admitted that he had argued with both the victim and the victim’s brother before the night of the cr ime. He also a

dmitted tha

t he and th e victim had engaged in a p hys ical altercation in 1994 or 1995. He testified that he thought the victim’s brother carried a gun. F

inally, the Defe

ndant testified that at the time of the crime, he was selling marijuana.

III. ANALY SIS A. Sufficiency of the Evidence

The Defend ant conte sts the sufficiency of the evidence. Specifically , he contends that “the Statehas failed to carry

its burden of proving . . . that the killing of the victim was without passion produced by adequa

te provocation.” The Defendant thus arg ues that his conviction shoul d be modified from second degree murde r to voluntary manslaug

hter.

When an accu sed challe nges the sufficiency of the evidence, an appellate court’s standa rd of review is whether, after considering the evidence in the light most favorable to the prosecution, any rational trie

r of fact could have fou nd the ess ential elements of the crime bey ond a rea sonable doubt. Tenn. R. App. P. 13(e); Jackson v. V irginia , 443 U.S. 307, 324 ( 1979); State v. Duncan , 698-11-

S.W.2d 63, 67 (Te

nn. 1985) . This rule

applies to

finding s of gu ilt based upon direct evidence, circumstantial evidence, or a combination of both direct and circ umstantial eviden ce. Sta te v. Penderg rass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

In determ inin g the su ffici ency of the evide nce, t his C ourt s houl d not re-wei gh or re-e valuate the evidence. State v. Matthews , 805 S.W.2d 776, 779 ( Tenn. Crim. App. 199 0). Nor ma y th is Courtsubstitute its inferences for those drawn by the

trier of fact from the evidence. Stat e v. Buggs
, 995 S.W.2d 102, 105 (Tenn. 1999); Liak as v. State
, 286 S.W.2d 856, 859 (Tenn. 1956) . Questions

concern ing the cred ibility of the wit

nesses, t he weig ht and val

ue of the evidenc e, as well as all factual issues ra

ised by the evide nce are resolve d by

th e tri er of fact. Liakas , 286 S.W.2d at 859. This Court must afford the State of Tennessee the stronge st legitimate view of the evidence containedin the record, as well as all reasonable infe rences which may

be drawn from the evidence. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). B ecause a verdict of guilt against a def endant

removes t he presumption of innocence and raises a pre sumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence was leg ally

insuffic ient to sust

ain a gu ilty verdict. Id.

The Defendant was convicted of second de gree murder, which is define d, inpertine

nt part,

as “[a] knowing killing of another.” Tenn. Code Ann. § 39-13-210(a )(1 ) . As to the “k nowin g” mental state, the State must prove bey ond a rea sonable d oubt that th

e defendant was aware

that his conduct was reasonably

certain to cause the result. Tenn. Code Ann. § 39-11-10 6(a)(2 0); State v. Ducker , 27 S.W.3d 889, 896 (Tenn. 2000). Voluntary manslaug hter is defined as “the intentional or knowin g killing

of anothe r in a state of passion produced by adequate provocation

sufficie nt to lead a reasonable person to act in an irr ational manner.” Tenn. Code Ann. § 39-13-211(a).

Having reviewed the rec ord, we c onclude t hat ample

evidenc e was pr

esented at tr i al to support the Defendant’s conviction for second deg ree murder. Witnesses to the shooting testified that the Defendant and the victim engag ed in a somewhat brief argument about drug de aling and that during the arg

ument, the

victim ca

lled acr oss the str

eet to his b

rother. Witnesses t

estif ied that immediate

ly afterwards, th e Defendant pulled out his gun and shot the victim from close rang e. Evidence was presented that the victim was not armed at the time of the shooting. The Defendant hi mself testified that he was carry ing a loaded gun in his pocket on the night of the crime, and he claimedthat he was familiar with the victim’s reputation for violence , which pr

ompted him, in part,
to shoot the victim before the victim could turn around. This is sufficient evidence from which the jury could conclude that the Defendant was awa re that his conduct on the night of the cri me was reasonably

certain to cause the victim’s death.

Alth ough the defense presented evidence that the D e fendant acted in self-defense, two witnesses and the Defendant himself testified that the Defenda ntshot the victim while the victim’s back was turned. Witnesses reported that the victim

fell fac e-first

onto the g

round. Au

topsy results, indicating abrasions on the victim’s face, support this scenario. The jur y ultimat ely rejected the Defendant’s claim of s elf-defense, a nd the jur

y a lso ul timately

rejected the notio n of adeq uate provocation in this case. Whe ther the Defendant acted in self-def ense and whether he was-12-

adequa tely pr ov ok ed we re pr op er qu es ti on s o f f ac t f or co ns id er at io n b y th e j ur y. State v. Goode , 956 S.W.2d 521, 527 (Tenn. Cr im. App.19 97); State v. Johnson , 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995). Further

more, we ma y n ot reevaluate the evidence prese nted at trial. See Matthews , 805 S.W.2d at 779. B ecause we find sufficien

t evidenc e to suppor

t the jury’s verdict in this case, we conclude that this issue is without merit.

B. Suppleme

ntal Jury In structi ons

The Defe ndan t next argue s that the t

rial cou rt supplie d the jury

withimproper supplemental instructi ons. Genera lly, “a de fendan t has a const itut ional right t o a corr ect and compl ete cha rge of the law.” State v . Teel , 793 S.W.2d 236, 249 (Tenn. 1990). When reviewing jury instructions on appeal to deter

mine whet

her they are er roneous, this Court s hould “revie w the c harge in its entir ety and read it as a whole.” State v. Hodges , 944 S.W.2d 346, 352 (Tenn. 1997). O ur supre me court , relying on the words of the United States Supreme Court, has noted that “jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way tha t lawyers mig

ht. Differen c es among

them in interpretation of instructions may be th rashed o ut in the de

liberati ve proce ss, with

common sense understanding of the instructions in the light of all that has taken place at the trial likely to preva il over technical hairsplitting.” Id. (quot ing Boy de v. Calif ornia , 494 U.S. 3 70, 380 -81 (1990)). A jury instruction is considered “prejud icially erroneous” only

“if it fails to fairly submit the leg al issues or if it misleads the jury as to the applicable law.” Id.

The record

reveal s that aft er the jury in this case retired to deliberate, it submitted several

wr itten questions to the trial judge. The first question was as follows: “I f the firs t two question s under murder second and voluntary manslaughter is [sic] the same, how can we prove a person g ets voluntary manslaughter if we agr eed to the first two questions under murder second?” After receiving this questi on, the tr ial judg e calle d the juro

rs back into open c ourt and respond ed to the question a s follows: The first two elem ents o f volu ntary man slaugh ter – I’m j ust go ing to read th rough this charge here, just a minute. “T hat th e defendant unlawfully killed the alleged victim and (two) that the defendant acted intentionally or knowingly”

. Ok ay. Now ther

e’s a third element to voluntary manslaug hter, which is that the killing resulted from a state of passion produced by adequ ate provocation sufficient to lead a reasonable person to act in an irrational manner. Now, rather than c ommen ting o n the f irst two el ement s, wha t I’m goin g t o sayis, i f you find from the pr oof that the killing resulted from a state of pas sio n produced by a dequate provocation sufficient to lead a reasonable person to act in an irrational manner, then y ou cannot convict of murder in the second deg ree. That third element les sons [sic] the offense and drop s it down. A

nd this is different from the other offenses, becaus e in the o ther off enses y ou have a ll these elem ents and as the

y’ re remo ved the of

fense dr ops down. B ut, the fa

ct t hat if th e-13-

killin g resulted

from the s tate of p assion, th at’s diff erent in that it les sons [ sic] th e charge. And that, I think, is the only crime that I can tell fr

om all of our charges that does that. An d you’re the first jury that’s eve

r picked up on that and asked the question about it. So I’ve learned something from your question. Usually like, in another case, additional elements proved increase the charge, butin homicide if the killing resulted from adequate provocation that produc ed a
state of passion sufficient to lead a reasonable person to a ct in an irrational manner, that would reduce theoffense from murd

er seco nd degr

ee, if the other elements have been proved, to a voluntary manslaughter. And I

hope that answers y our question. Ok ay. So that’s a

ll I can tell you at this time. I

f you find from the pr

oof that all the elements of murder second degr ee ha v e been p

roven be yond a reas onable doubtan d if you find that all the eleme nts of voluntary manslaug hter have been proven beyond a re asonable doubt, then you c annot con vict o f murder second. Becau se that third

element a

bout adeq uate – state of pa ssion, pro ducing adequa te provocation would negate murder sec ond and turn it into voluntary manslaug hter.

Follow ing this, the jury returned to de liberations. The jury then submitted thre e mor e questions for the court’s review. The jury first asked, “Under voluntary manslaughter element three, is there a lawfuldefinition of adequate provocation? Example, if there’s some prov ocation t hat is adequa te ?” In re sponse to t his questio n, the tria

l judge, rely

ing on a definitio n from th e revise d fourth edition of Black’s Law

Dictionary , stated, “First I want totell you, that’s a jury question. I can’t answer that for y ou, because I can’t comment on the evidence. But, I ’mgoing to give y ou a written definition here as part of your charge. . . . ‘Adequate prov ocation i s one that excites such anger as might obscure the r eason or dominate the volition of an ordinary reasonable man.’”

The jury next asked, “I s there a lawful definition for a re as ona ble pe rs on? ” Finally, the jury asked, “Under

voluntar y ma nslaugh ter, ele ment thre e, does a

reasona ble pe rson refer to the defenda nt, or is it a g eneral

term def ining ad equate provocation. Will you

define w hat ‘re asonable person’ means he

re?” The tr

ial judg e, rely

ing on a definiti on f

rom Webster’s Third International Dictionary , respond

ed to thes e two que stions as f ollows: Reasona ble pers on refe

rs to the d efenda nt. And y our quest ion is whether

or not, if you find b eyond a reasonable doubt, the defendant unlawfully killed someone, the question is . . . whe

ther or n ot there

was ade quate

provoca tion that if

that defendant were a reasonable person, would the re be ad equate p rovocat ion to lea d them toact in an irrational manner. So you use the rea sonable person standard. I’m going to define

reasona ble to you, but not reasonable person. I’m going to define the word, reasonable, and then y ou apply that to person. “Reason able

means being in right thinking, or rig ht judgment

not absurd, not ridiculou s, not extreme , not exces sive. Posse ssing g ood sound j udgmen t, well balanced and sensible.”-14-

The Defend ant first

argue s that the trial court’s answer concerning the definition of “reaso nable

person”“misstate d the law a nd was co nfusing .” I

n his brief, the De

fendant states, “There is a reasonable likelihood that the jury interpreted the trial judge’s supplemental instruction

as excluding

from the j ury

the possib ility

that a ‘reasonable person’ could kill in a state of passion produced by a dequate provoca tion, . . . or , at the le ast, the in stru ction set too high a standard of

reasona bleness for the law of voluntary manslaughter.” In other words, the Defendant contends that the definition provided by the trial cour t may ha ve led th e jury to conclude that because the Defendant’s acti ons we

re un reas onab le in t

he co ntext

of self-defense, they

were a lso unrea sonable in the context of voluntary manslaug hter.

As the State

points out in

its brie f, however, the original instructions to the jury contained

an i nstruction on self-defense. The portions of that instruction concerning “reasonable” in the context of

self-de fense a re as fo llows: When a person is assaulted by the use of force, or attempted use of force, in suc h a way as to create in his mind a reasonable belief that he is in imminent and actual danger of death, or serious bodily injury , he will be justified in using force to defend hims elf, ev en to t he ex tent o f kill ing ano ther h uman b eing. The use of force can only be to the degr ee reasonably believed to be immediately nece ssary to protect against the others [sic] use of unlawful force. The danger creating

the be lief of i mminent de ath or se rious bodi ly in

jury must be real, or honestly be

liev ed to b e real at the time and must be founded upon

reasona ble gro unds. A person ma

y ha ve been mistaken b ased on h

is p erce ption of the circumstances as to the extent of the actual dang er, but if he acts i n self defense from honest, even t hough mistaken convictions, as to the extent of danger, he will not be held criminally liable for his a ction. In determining whether the defendant’ s use of force in defending himself was

r ea sonable

you may consider not only his use of for ce, but also all the facts and circumst ances su rroundin g and le ading u

p to it. Factors to consider

in decidi ng whet

her ther e were reasona ble grounds for the defendant to fear death, or serious bodily injury from the alleg ed victim, include but aren’t limited to any previous threats of the a lleged victim, made known to the defen dant. The character of the alleg ed victim for violence, when known to t h e defenda nt. The animosity of the alleg ed victim for the defendant, as revealed to the defendant by

previous actions and words of the allege d victim. A

nd the man

ner in which the parties w ere ar

med and th

eir rela tive stre ngths and sizes. If yo u find tha

t the def endant’ s fear o f death o

r seriou s bodily

in jury wa s genuine and reasonable under the circumstance s, then he would of had [sic] the right to use as much force as was appare ntly necessar

y in his own self defe

nse. If on the other hand you f

ind the de fe nd an t w as no t g en ui ne ly, or reas onably fearful of death, or serious bodily injury , or that he used force going beyond the

real

or appare nt neces sity

for his ow n defens e, then hi s use of f orce wouldnothave been justified.-15-

A trial court may re spond to jury questions with a supplemental instruction. State v. Forbes
, 918 S.W.2d 431, 451 (Tenn. Crim. App. 1995). Moreove r, when c onfronte d with

questions from the jury regar ding the definitio n of leg al terms, it is appro priate for a trial cou rt to provide a jur

y w ith supplemental instructions after c onsultatio n with counsel. State v. Pamela Sue King , No. M2000- 00148-CCA-R3-CD, 2001 Tenn . Crim. App . LEX IS 880 , at *19 (Tenn. Crim. App., Nashville, Nov. 9, 2001). Noting that

neither s tatutory law nor the Te nnessee Pattern Jury I

nstructions provide a definition of “reasonable person” and citing the American Heritage Dictionar y and Webster’s New World Dictionary , this Court has approved such terms as “ordinary , usual, . . . rational . . . moderate, fair, and sensi

ble” as a dequate definitio ns of “re aso na ble person.” State v. Ma ria Mac lin , No. 02C01-9710-CR-00383, 1998 Tenn. Crim. App. LEXI S 877, at **6-7 (Tenn. Crim. App., Jackson, Aug. 21, 1998).

We conclude

that the tr ial cour t’s supple mental ins truction in this case defining “reasonable”

as “right thinking, or right judgment not absurd, not r idicul ous, not extreme , not exces sive[;] [p]ossessing good sou nd judg ment, well balanc ed and se nsible” w as not pre

judiciall y e rroneou s. Rather, it was an adequate and appropriate def inition. It did not serve

to mislead the jury as to the applica ble law, nor

did it fail

to fairly submit the legal issues. See Hodges , 944 S.W.2d at 352. Furthermore, we agree with the Stat e’s cont entio n that the fact that the jury was provided an instruction on self-defense and “asked spec ifically about a r easonable person in th e context of voluntary manslaughter, indicates that the jury did not confuse the two.” We thus conclude that the trial cou rt did not err in providing a supplemental instruction to the jury concerning the definition of “reasonable person.”

The Defendant

next argues that the definition of “adequate provoca tion” provided by the trial
court to the jury

in its supple mental ins tructionswas “er roneous a nd incompl ete.” A s previou sly stated, the trial court instructed the jury that “[a]dequate provocation is one that excites such anger

as might obscure the reason or dominate the volition of an ordinary reasonable man.” The Defenda nt argues that “ the tr ial j udge erroneously substituted the wor d ‘anger’ in place

of the statutory word ‘passion’ . . . .” However, the fourth e dition of Black’s Law Dictionary

defines“adequ ate provocation” as follow s: “An adequate provocation to cause a sudde n transport

of passion that may suspend the exerc ise of

judgment and exclude premeditation and a previously formed design is one that is calculated to excite su ch anger as might obscure the reason or dominate the volition of an ordinary man .” Black’s Law

Dictionary

39-40 (4th

ed. 1990) (emphasis added). We conclude that the definition of “adequate provocation” provided to the jury was appropriate.

Fi na ll y, the Defendant contends that the trial court erred by

failing to instruc t the jury

not to place undue emp

hasis on the supplem

ental inst ructions . This Cour

t has stated that “[w]h

ile the better procedure is to admonish the jury not to place undue emphasis on [a] supplemental instruction and to consider it in conjunction with the entire charge, it is not nec essarily revers ible error to

fail
to do so.” Forbes , 918 S.W.2d at 451. To determine whether the trial court’s failure to provide such

a limiting in struction

was rev ersible e

rror, we must consider the entire record. See Burton v . State
,-16-

394 S.W.2d 873, 8 76 (Tenn . 1965); State v. Chance , 778 S.W.2d 457, 461 ( Tenn. Crim. App. 1989)

.

Alth ough the trial court did not offer a limiting instruct ion concerning the supplemental instructi ons, as is the preferred practice, w e note that the court inc luded this instructi on inits original jury instructi ons: The l aw applic able to th

is case isstated in t

hese inst ructions and it is y

ou r d ut y t o caref ully consider all of

them. The order in which these instructions are give n, is not

an indication of their relative importance. You shouldn’t single out one or more of themto the exclusion of another, or others, but should consider each one in the light of and in h armony

with the ot

hers.
Consid ering thi s instruction and the record as a whole, we conc lude that the trial court did not commit reversibl e error by fa

iling to instruct the jury not to place undue emphasis on the suppleme ntal instr uctions.

C. Comments on the Evidence

In a final a ssignme

nt of err or, the D efenda

nt contends that the

trial cou rt imperm

issibly commentedon the evidence in its supplemental instructi ons to the jury. The Te nnessee Constitution mandates that “[j]udges shall not charge juries with respect to matters of f act, b ut may stat e the testimonyand dec lare the law.” Te nn. Const. art. VI, § 9; see also State v. Odom , 928 S.W.2d 18, 32 (Tenn. 1996). The Defendant specifically argues that the trial court “‘assumed’ from the jury’s first question that [it] had found the defendant guilty of a ll elements of second degree murder” and implied that it ag

reed wit h this assessment. The record indicates, however, that the trial cou rt merel y declinedto comment on the first two elements of second degree murde r and foc used its re sponse instead on the element differentiating the cr ime o f voluntary manslaug hter from second degree murder. The cour

t’s respo nse was a

ppropria te, give n that the jury ’s questio n did not co ncern th e first
tw o element s of second degree murder . The court also specifically stated in its supplemental instructi ons: “ If

you find from the proof that all the elements of murder second deg ree have been proven beyond a re asonable doubt and if you find that all the elements of voluntar y mans laug hter have been proven bey ond a reasonable doubt, then y ou cannot convict of murder second.” (Emphasi s added). We conclude that these comments were not improper , and we find no othe r instance in the record when the trial court improperly commented on the evidence.

Accord ingly , we AFF

IRM the judgme

nt of the tr

ial cour t.

___________________________________-17- ROBERT W. WEDEMEYER, JUDGE