### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON September 12,

2000 Session

STATE OF TENNESSEE v. MICHAEL G. UPSHAW

Direct Appeal from the Criminal Court for Shelby County No. 98-03610 James C. Beasley, Jr., Judge

No. W1999-00777-CCA-R3-CD - Filed January 11, 2001

The defendant, Michael G. Upshaw, was indicted and convicted of second degree murder. The trial
court im posed a Range I

sentence of 24 years in the Department of Correction. I n this appeal of right, the defendant has preserved fo r our review the following issues: (1) whether the trial court erred by deny ing defendant'

s motion to suppress a

statement made in police custody; (2) whether the trial court erred by allowing certain photogra phs of the victim to be entered into evidence; (3) whether the trial court er

red by findi

ng the evidence

sufficient to supp

ort a conviction of murd

er in the second degree; (4) whether the trial court erred by refusing to charge the j ury on t he lesser includedoffenses such as voluntary manslaughter or criminally negligent homicide; and (5) whether the trial court prope

rly weighed the ap

propriate mitigatin g and enhanci ng factors du ring senten cing. We find no error a

nd affirm the judg

ment of the trial c

ourt.

Tenn. R. App. P. 3; Ju

dgment of the Trial

Court Affirmed.

G ARY R. W ADE , P.J., delivered the opinion of the court. T HOMAS T. W OODALL , J., filed a concurring opinion in which D AVID G. H AYES , J., joined.

William D. Massey a

nd Lorna S. McC

lusky, Me mphis, Tenne ssee, for the appellant, Michael G. Upshaw.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Karen Cook and James Turner, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

On November 3, 1997, at around 4:00 p.m., the victim, Sammy Douglas Thomasson, and a friend, Carmen Corum, drove to the intersection of Percy and Delta Streets in Memphis to

purchase $10 worth of crack cocaine. The two had been using illegal drugs together for some five months and routinely visited

that area of Mem

phis to make their purchases. At about 8:00 p.m. on the date of-2-

the offense, the victim and Ms. Cor um had used all of th

eir supply of crack cocaine and went "riding around" in their Hyundai Excel, waiting to pick up Ms. Corum's paycheck so they c ould buy more drugs. They returned to the Percy /Delta area, but were unable t o find any of

their usual supplie

rs. As they were

about todrive away, several men in a four-door gray car flag

ged them down and asked if they "wanted anything ." Ms. Corum tes tified that when the victim answered "no," the men blocked their path so they could not drive away . A man, whomMs. Corum described as wearing

a red and white jacket, stepped out of the gray car from the backseat and ordered her

and the victim
to get out of the ca

r. Ms . Corum testified that the victim put the car in reverse and that when the assailant raised a gun, she ducked inside the car and heard a gunshot. A bullet struck thevictim in the head. The car, which continued to move backwards, ran over a di tc h and stopped in a neighboring yard.

Mario Merritt, a witness

for the state, tes

tified that at appr

oximately 8:00 p.m. on the night in quest ion, he was driving through the Percy/Delta area, a ccompanied by the defendant and two other individuals. He acknowledged that they were in the area to sell drugs and that they flagged down the victim and Ms. Cor um to see if they were intere sted in buying. In his statement to police, Merritt admitted that he blocked the victim's car with his own and then noticed the defendant

step outthe backseat. Merritt recalled that the defendant was armed

with a pistol which he carried in the front of his pants. Merr

itt also stated that he then saw the defendant walk to the driver's side of the victim’s car and shoot the victim in the head. Merritt acknowledged that, afterward, he and another of his companions hid the murder weapon and, three weeks later, buried it.

Officer Paul Bishop testified that he was riding a trolley on the night of November 3 rd when he received a ca

ll that a shooting had occurred. While it only took about a minute for him to reach the Percy/Delta area, by

the time he arrived, the entire vicinity was deserted. Officer Bishop recalled that he found a red Hy

undai backed into

a ditch and, on closer examination, saw the victim slumped into the passenger's seat. There was a bullet hole in his left temple. When the officer examined the interior of the car, he foun d a purse belonging to Ms. Corum on the floorboard. Officer Bishop found no weapons inside the vehicle.

Officer Dwight Woods was present when the defendant made a statement to the police. He testified that the defendant received Miranda warnings and signed

a waiver of those

rights. In hi

s statement to the police, the defendant conf essed that he shot t

he victim once with

a .38 caliber pist

ol. The defendant cl aimed that he had fired his weapon because Merritt told him that the victim "ran off" with some money and because he believed the victim was going to shoot first. He contended that when he approached the victim's car, he became "para noid" because the victim "drew for somethin[g]."

I Initiall y, the defendant claims that his statement to the police was neither voluntarily nor understandingl

y made due to his illite

racy and th

e "extreme

stressors" he en dur ed w hil e in cus tod y. We disagree.-3-

At the hearing on the

motion tosuppress, Lie

utenant Douglas

M. Swauncy o

f the Memphis Police Department testified that he assisted Sergeant D.E. Woods in the Janua ry 24 , 1998, interrogation

of the defendant. Lt. Swauncy rec alledthat the defenda

nt was informed of

his Miranda rights before an y question s were submitted. He testified that the defendant read aloud from the Miranda form and initialed each right. He stated that the defenda n t acknowledged that he understood his rights, expressed a desire to ma ke a statement, and never asked for an attorney. L t. Swauncy maintainedthat he neither threa tened the defen dant nor promised a

nything in e

xchange for his
statement. On cross-examina tion , Lt . Swauncy testified that the entire interrogation lasted approximately

two-and-one-half hours, that there were two to three water breaks in that time, that bothhe and Sergeant Woods were out of uniform, and that neither was carrying a gun. He acknowledged

that the defendant at one

point during the interrogation indicated that he was tired and sle epy.

L ieutenant

Sammie Howell Ballard testified that he assisted Lt. Swauncy and Sgt. Wood s by reading aloud t

he defendant' s statement, includ ing his Miranda

rights. Lt. Ballard stated that when a suspect is broug

ht into custody who is unable to read or cannot read very well, the policy

is for two officers to ta

ke the statement a

nd a third office

r to read the state

ment b ack to the suspec t be fore asking for a signature. Lt. Ballard stated that he read the conf ession aloud and that he witnessed the def

endant sign the d

ocument.

The defendant,

who testified at the suppression hearing, claimed that he asked Lt. Swauncy for a lawyer several times, but was told he could not use the telephone. He contended that he was
notadvised of h is rights, that he did not know wh at he was sign ing or initialing , and that he was

nervous throughout the ordeal. On cross-examination, the defendant admitted he could read "a little" and was able to graduate from high school, obtain a driver's license, and findemployment at the Memphis airport. While he claimed that at one point the police threatened to "hide" him away from his family and friends, he conceded that he was never thr eatened.

The trial court ruled that there was no violation of the defendant's rights during the taking of his statement. While acknowledging that the defendant

may not have been able to read or write very well, the trial judge determined that he could comprehen

d the nature of his Miranda rights. Further, he found no evidence that the defendant was intimidated, threatened, or coerced.

I t is t he duty of the trial judge to determine the voluntariness and the admissibility of a defendant's pretrial statement. State v. Pursley , 550 S.W.2d 949, 952 (Tenn. 1977). Thetrial court 's determination that a confession was given knowin

gly and vol

untarily is bi

nding on the appe

llate
courts unless the evid

ence pr eponderates otherwise. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Questions about wit ness credibility and "resolution of conflicts in the evidence are matters entrustedto the trial judge." Id. T estimony pre sented at trial ma

y be conside

red by an a

ppellate
court in deciding the propriety of the trial court's ruling on a motion to suppress. State v. Henning
, 975 S.W.2d 290, 299 (Tenn. 19 98). If the " greater weight " of the evid ence suppor ts the cour t's ruling, it will be upheld. Id. Yet, this court must conduct a de novo

review of the tri

al c ou rt's-4-

application of law to fact. Stat e v. Bridges , 9 63 S.W.2d 487 (Tenn. 1 997); State v. Yeargan , 958 S.W.2d 626 (Tenn. 1997).

In Miranda v. Arizona , 384 U.S. 436 (1966), the United States Supreme Court ruled that before a custodial interrogation, policeofficers must advise defendants of the right to remain silent andthe right to counsel. If these warnings are not given, a ny statement elicited from

a defendant is
notadmissible in trial. Stansbury v. California, 511 U.S. 318, 322 (1 994). A defenda nt's rights to counsel and agai nst sel f-i ncri min ati on m ay be w aiv ed as lon g as t he w aiv er i s ma de "v olu nta ril y, knowingly, and intelligently." Miranda , 384 U.S. at 479; State v. Middlebrooks , 840 S.W.2d 317, 326 (Tenn. 1992). In order for an accused

to effect a waiv

er, he must be ade

quately app

raised of his righ t t o remain silent and the consequence of deciding to abandon it. State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994). In determining whether a con fession was voluntary and k nowing, the totality of the circumstances must be examined. State v. Bush , 942 S.W.2d 489, 500 (Tenn. 1997).

First, the evidencehere does not preponderate against the trial court's determination that the defendant's wai ver w as v olu nta ry. Lt . Sw aun cy tes tified that the def endant was infor

med of his Miranda rights before any questions were submitted. The officer confirmed that the defendant, who claimedhe was illiterate

, read aloud the r

ights form to the o

fficers and the

n initialed the doc

ument. Sim ila rly, Lt. Ballard testified that he read the defendant the entire statem

ent, including his Miranda rights. The trial court resolved the credibility issue against the defendant. The record suppo rts that. Moreo ver, illiteracy or difficulties in comprehension and understanding would not, in and of themselves,render the defendant's statement invol untary

. See State v. Perry , 13 S.W.3d 724, 738 (Tenn. Crim. App.), perm. to appeal denied , (Tenn.199 9) (citing Statev. Bell , 690 S.W.2d 879, 882 (Tenn. Crim. App.1985)); State v. Greer , 749 S.W.2d 484, 485 (Tenn. Crim. App. 1988); State v. Kelley
, 683 S.W.2d 1, 6 (Tenn. Crim. App. 1984). The trial judge, who heard all of t he t est imo ny, ruledthat the defendant under stood his Miranda

rights. The greater weight of the evidence sup

ports the trial court's conclusion that the defendant's waiver was knowing and voluntary

. Second, the record does

not support the def

endant's claim t

hat he was signing a document relating innocent facts and not a confession. The record establishes that officers read the statement
to the defendant. Afterward, the defendant signed the document. When questioned by the trial judge, the defendant ackno wled ged that an officer read aloud each line of the statement before he agreed to sig

n his name to the document. In our view, the evidenc

e does not prepond

erate against the trial court's ruling. See Odom , 928 S.W.2d at 23.

Third, the record does not support the defendant's claim that his confession was involuntary because of the "extreme stressors" that he faced while in custody. The de fendant claimed that

he had been kept overnight in a holding cell with no place to sit down, that he was given no food,and that he was unable to take his seizure medication. There was, however, little testimony offered during the suppression hearing which supported that claim. The only mention of

the defendant's well-being occurred during Lt. Swauncy's cross-e xamination, when he acknow ledged that the defendant-5-

informedhim that he was tire d and sleepy . Standing alone, that is not enough to classify the statement as involuntarily made.

II Next, the defendant claims that the trial court abused its discretion by al lo wing certain photographs of the victim to be introduced into evidence. Specifically, he argues that f our photographs,

which depict the deceased victim and the interior of his ca

r at various ang

les, should
nothave been admitted because any probative value they possessed was substantially outweighed by the danger of unfair prejudice. We disag ree.

Evidence is relevant if it has "any tendency to make the existence of any fact tha t i s of consequenceto the determination of the action more probable or less probable than it would be withoutthe evidence."

Tenn. R. Evid. 401. Rule 403 of the Tennessee Rules of Evidence, however, provides that rel

evant evidence

may be exclud

ed in certain situa

tions:

Exclusion of Relevant Eviden c e on Grounds of Prejudice, Confusion,

or Waste of Time. Altho

ugh relevant, e

vidence may

be excluded if its probative value i

s substantially

outweighed by

the danger of u

nfair prejudice, confusion of the issues, or misleading the jury , or by considerations of undue delay , waste of time, or needless presentation of cumulative evidence.

Simply because a pho t ograph is preju dicial does not mea

n that it must be exclud

ed as a
matter of law. See State v. Gentry , 881 S.W.2d 1, 6 (Tenn. Crim. App. 1 993). Courts must still determine the relevance of the photog raph and weigh its probative value against any undue prejudice.

In State v. Banks , 564 S.W.2d 947, 951 (Tenn. 1978), our supre me cou rt recognized "the inherently

prejudicial character of the photographic depictions of a murder victim. . .." In adopting FederalRule of

Evidence 403 as its test for admissibility, the court suggested a variety of factors for consideratio

n by the trial judge. The "value of photographs as evidence, . . . their accur acy and cl arity . . . [and] the inadequ

acy of the t

estimonial evidenc

e in relating the

facts to the jury" ar

e appropriate

factors. Id. The admissibility of relevant photographs of t

he victim is within the sound discretion of the trial judge and his or her ruling will not be disturbe d on appeal ab sent a clear showing of an abuse of that discretion. Id. at 949.

The trial judge found nothing prejudicial in two of the photographs, a closeup of the victim 's foot and the vehicle’s floor panel and a closeup of shattered glass on the driver's sid

e seat, because there was little or no bloo d in th e pictures. The defendant argued that the photographs were not pro bative and should not be admitted into evidence. The state argued that the pictures should b e admitted into evidence, because they contradicted a statement made by the defendant. The defendant hadclaimed that he saw the vi ctim draw a weapon "or something" before he fired. Photos demonstrated that there were noweapons inside the car. In our view, these two photographs were-6-

relevant to rebut

the claim of self-defense. Because only a pa rt of the victim's leg is visible in the photographs, the

probative value o

utweighs any

undue prejudicia

l effect.

The trial judge also

found that the prob

ative value of the

other two photogr

aphs, which depict the victim's body from separate angles , outwe ighed any prejudicial effect they might have on the jur y. The defendant argued that there was nothing of probative value in the two photos. The

state submitted that each photo g ave the jury

a better underst

anding of what o

ccurred on the n

ight in question.

The photographs show extensive detail of the interior of the car. Their content helps clarify certain particulars of th

e crime – like the f

act t hat the defend ant was shot through the glass of the driver's side window – and they support other witnesses' testimony on the type of gunshot wound the victim received. While the two photographs may be prejudicial to the defendant, it is our view that they were not unduly prejudicial. In the photogra ph taken from the driver's door, t he b ody o f the victim is shown slumped over to the passenger's side seat. All that can be seen is the lower torso of the victim and a small

amount of blood. In the other ph otograph, wh ich is take n from the p assenger's door, the vict im' s head and upper t orso appear. Eve

n from this angle

, however, there

is a small degree of blood. While this ph

otograph may

have a more pre

judicia l effect than the other, it also shows the greatest amount of detail of the interior of the car. In our view, the phot o graphs were properly admitted into evidence. Their probative value outweighed a ny prejudicial effect.

III The defendant also argues that the evidence produced at trial was insufficient to sustain a conviction for second-degree murd er. He c laims that the state's proof was neither sufficient nor sufficiently reliable to corroborate his confession. We disagree

.

A g uilty verdict by the jury, approved by the trial court, accredits the testimony of the witnesses for the stat e and resolv es all confl icts in fav or of the st ate's theory. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978). On appeal , "the state is

entitled to the strongest legitimate view of the trial evidence a

nd all reasonable

or legitimate inferences which may be drawn therefrom." State

v. Cabbage , 571 S.W.2d 832, 835 (T enn. 1978). This court does not reweigh or reevaluate the evidence. Id. The jur y's ve rdi ct, the refo re, w ill onl y b e disturbed if, after a consideration of the evidence in the light most favorable to the state, a rational trier of f act could not have found the essential elements of the crime b eyond a re asonable doubt. Te

nn. R. App. P. 13(e) ; Jackson v. Virginia , 443 U.S. 307 (1979) ; State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983).

In our view, the defendant’s confession that he shot the victim established all of the element

s of the offense. A defendant, however, cannot be convict e d solely upon

the evidence of

his inculpatory

statement. See Ashby v. State , 124 Tenn 684, 139 S.W. 872, 875 (1911). Under our law, the "corpus delicti [of the crim e] cannot be establish ed by a confession alone." Taylor v. State
, 479 S.W.2d 659, 662 (Tenn. Crim. App. 1982). A confession may

sustain a conviction when "there is other evidence to show the commissionof the crime by someone." State v. Stapleton , 638 S.W.2d 850, 854 (Tenn. Crim. App. 1 982). The slighte st corroborating

evidence of the

confessio

n i s-7-

sufficient, however. See State v. Ervin , 731 S.W.2d 70, 72 (Tenn. Crim. App. 1986). Furthermore, while a confession may be corroborated by independent proof, the corroborating evidence need not
connect the defendant with the crime. Buckingham v. St ate , 540 S.W .2d 660, 663 (Tenn. Crim. App. 1976). Similarly, the corroborating evidence necessary to support the corpus delicti need not be sufficient, in and of itself to support the conviction, but need only provide "the essential facts . . . to justify a jury inference of their tr uth." Opper v. United States , 348 U.S. 84 (1954).

Here, the defendant tol

d police that he and his friends were in a gray four-door car and that the victim was in a red two-door car along with a woman. He acknowledged that he and hisfriends blocke d the victim ’s car and that he shot the victim. There is direct evidence to support the defendant's confession in the statement by Merritt. In that statement, Merritt corrobor ates the defendant's confession by acknowledging that he, the d efendan t, and two other men were driving around in a gray four-door car whe n they flagged down

the victim and Ms. Corum. Merritt stated that they blocked the path of the victim's car and that the defe

ndant shot the victi

m in the head. Ms. Corum's testimony als

o corroborates the defendant's confession. Ms. Corum testified that she and the victim were in the

Percy/Del

ta area to purch

asedrugs when they were flagged down by several

men in a gray four-door car. She testified that they were blocked from leaving and a man wearing

a red and white jac

ket left the back

seat of the car a

nd shot the victim.

In our view, this corroboration of the confession is sufficient to sustain a conviction for second-degree murder.

The defe ndant also conten ds that the testimony

of Ms. Corum was inc

onsistent with th

e testimonyof Merritt and tha t, in consequence, the required corroborating testimony wa s unreliable. Ms. Corum tes tified that she saw "a guy" leave the back o

f a gray four-door car o

n the nig ht o f November

3 rd and walk to the driver's side door of the victim's red Hyundai Excel. She stated that he raised a gun

to the window and fired. While Ms. Corum acknowledged that she could not see the face of the shooter, she could remember that he wore a red and white jacket. In his statement
to police, Merritt stated that the defendant was riding in the backseat of his car when they flagg ed down the victim and Ms. Corum. He recalled that two men left his car after they had blocked the victim's vehicle, but testified that it was the defendant who shot the victim. It is unclear whether there are any inconsistencies in the two statements beca

use Ms. Corum was ne

ver asked if

anyone other than the defendant left the gray vehicle on the night of November 3 rd . Ms. Corum stated that

a man from the backseat

l eft the car, walked over to the victim, and shot him – this does not necessarily

mean that Ms. Corum did not observe a second man leave the car. I n any event, the corroborativeevidence need n ot be sufficient in

and of itself to sup

port the convictio

n and need only justify a jury inference of the truth of the corpus delicti. The testimony of Ms. Corum and Merritt is more t han enough evidence to corroborate the defendant's confe ssion that he committed th e murder.

IV Next, the defendant claim s that the trial court abused its discretion by not instructing the jury

on the lesser included offenses of voluntary manslaughter and

criminally negligent homicide. The trial judge, of course, has a duty to give a complete c harge of the law applicable to the facts of the

case. State v. Harbison

, 704 S.W.2d 314, 319 (Tenn. 1986). There is an obligation "to charge the1 See State v. Staggs , 554 S.W.2d 620 (T enn. 197 7); Straderv. State , 362 S.W.2d 224 (Tenn. 1962). Recent

cases stating rule that

failure t o charge lesser

offense is a constituti

onal deprivation rely on State v. Wright , 618 S.W.2d 310 (Tenn. Cri

m. App. 1981)( Joe D. D uncan, Jud ge, author), an d include the following: State v. Belse r , 945 S.W.2d 776 (Tenn. Crim. Ap p. 1996 ); State v. Howard , 926 S.W.2d 579 (Tenn. Crim. App. 19 96); State v. Sum merall , 926 S.W.2d 272 (T enn. Crim. A pp. 199 5); State v. Ruane , 912 S.W .2d 766 (Tenn. C rim. App. 1 995); State v. Lewis , 919 S.W.2d 62 (Tenn. C rim. App. 1 995); State v. Boyce , 920 S.W.2d 224 (Tenn. C rim. App. 1 995); State v. King , 905 S.W.2d 207 (Tenn. Crim. Ap p. 1995 ); State v. McKnight , 900 S.W.2d 36 (Te nn. Crim. Ap p. 1994 ); State v. Vance , 888 S.W.2d 776 (Tenn. Crim. App. 1994); State v. Banes , 874 S.W.2 d 73 (T enn. Crim. A pp. 199 3); State v. Richard Darrell Miller and Johnny Wayne Garner , C.C.A No. 01C01- 9703-CC-00087 (Tenn. Crim. App., at Nashvi

lle, Se pt. 11, 199 8); St ate v. George Rose , C.C. A.. No. 02C01-9710- CR-00405 (Ten n. Cri m. App., at Ja ckson, July 2 , 1998); State v. Harvey Phillip Hester
, C.C.A. No. 03C01- 9704 -CR -00144 (Tenn. C rim. App., a t Knoxville, J une 4, 19 98); State v. Be cky Davis , C.C. A. No. 0 3C01 -9701-C R-0002 7 (Tenn . Crim. App ., at Knoxville , May 1, 1 998); State v. Willi e D. Graham , C.C.A. No. 03C0 1-9707-CC-00314(Tenn. C rim. App., a t Knoxville, M ay 7, 199 8); State v. Warren Tyrone Fowler , C.C .A. No

. 03C01-9709-CC-00391 (Tenn. C rim. App., a t Knoxville, Apr. 29, 1 998); State v. Harvey D'Hati Moore , C.C.A. No. 03C01-9704-CR-00131 (Tenn. C rim. App., a t Knoxville, M ar. 18, 19 98); State v. Daniel Joe Brown , C.C.A. No. 02C01- 9611-CC-00385 (Tenn. Crim. Ap p., at Jackso n, Dec. 3, 1 997); State v. Michael Tyron

e Gordon , C.C.A. No. 01C01- 9606-CR-00213 (Tenn. Crim. App., at Nas hvill e, Sept. 18, 1997); State v. George Brooks , C.C. A. No. 02C01-9602-CR00050 (Tenn. Crim. App., at Jackson, May 15, 1997); State v. Janice Hans

brough-Eas on , C.C.A. No. 02C01-9504- CR00098 (Tenn. Crim. Ap p., at Jackson , Dec. 19 , 1996); State v. Holl is Ray Willi ams , C.C.A. No. 03C01-9406-CR-00209 (Tenn. Crim. App., at

Knoxville, J uly 23, 199 6); State v. Ran dall Scott , C.C.A. No. 01C01-9307-CR-00240(Tenn. Crim. App., at Nashvill

e, Jan. 5, 1996); State v. Deborah G ladish , C.C.A. No. 02C01-9404-CC-00070 (Tenn. Crim. App., a t Jackson, Nov. 21 , 1995); State v. Eric J . Fair , C.C. A. No. 02C01-9403-CR-00055 (Tenn.Crim. App., at Jackson, Nov. 15, 1995).

-8- jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so." Tenn. Code Ann. § 40-18-110(a). Pursuant to our statute and case law interpretations,

defendants are entitled to jury instruction s on al l lesser offenses for which the evidence would support conviction. Complete instructions allow the jury to determine among each alternative the appropriate offense, if any, for conviction and more evenly balance the rights of the defendant and the state. It is only when the record is devoid of evidence to support an inference of guilt of the lesser offense that the trial co u rt is relieved of the responsibility to charge the lesser crime. Stephenson , 878 S.W.2d at 549-50 ; Sta te v . Boyd , 797 S.W.2d 589, 593 (Tenn. 1990).

In Statev. Williams , 977 S.W.2d 101, 105 (Tenn. 1998), our supreme court rejected a line of cases which had c

oncluded that the r

ight to in structions on l esser offenses was founded in the Tennessee Constitution and instead ruled that entitlement was based solely upon t he statutory requirement. 1 In consequence, the high court directed that any error in the omission of a lesse r included offense

would be subject to

the following ha

rmless error ana

lysis:

Reversal is required if the error affirma tively appears to have affected the result of the trial on the merits, or in other words , revers al is required if the error more probably than not affected the judgment to the defendant's prejudice. Id. at 105.-9-

In State v. Tina Swindle

, No. M1998-00362-SC-R11-CD (Tenn. Aug. 25, 200 0) (not for publication), our supreme court reaffirmed its decision in Williams , concludi ng that the t rial court's failure to instruct misdeme anor assault

as a lesser inclu

ded offense

of the primary charge, agg ravated sexual battery, was harmless error under Tenn. R. Crim. P. 52(a). I n State v. Bolden , 979 S.W.2d 587 (Tenn. 1998), however, the de fendant, who was

charged with pr

emeditated first

degree murder,

was willing to gamble

on an "all or nothing" verdict by asking the trial judge not to charge the lesser includedoffense of second degree murder; the trial judge refused a nd the defendant

was convicted

on that lesser cr ime. While our supre me court affirme

d the second deg

ree murder conv

iction, its opinion emphasized the mandate of the statute requiring trial courts to "instruct the jury on all lesser offenses if the evidence introduced at trial is legally sufficient to support a conviction of the lesser offense." Id. at 593. In Bolden , our supreme court ac

knowledged tha

t a "purpose of th

e statute is
to protect the right to trial by jury by instructing the jury on the elements of all offenses embraced by the indict

ment [and to] facilita

te[] the overall

truth-seeking function

of the process." Id. If the failure to charge a le

sser included off

ense is an error

of constitutional di

mension, as Bolden would imply, the proper question is whether the error is harmless bey ond a reasonable doubt.

"Voluntary

manslaughter

is the intentional or knowing killing of another in a state of passion produced by adequat

e provocation suf

ficient to lead a r

easonable pers

o n to actin an irrational manner." Tenn. Code Ann. § 39-13-211(a). Criminally negligent homicide is any criminal l y negligent conduct which results in death. Tenn. Code Ann. § 39-13-212. Voluntary manslaughter andcriminally

negligent homicide are lesser included offenses of second-degree murder. See State

v. Michael Eisom, No. W1999-007 39-CCA-R3-CD (Tenn. Crim. App.,

at Jackson, Oct.11, 2000); Statev. John Philip Noland, No. E2000- 00323-CCA -R3-CD (Ten n. Crim. Ap p., at Knox ville, Aug. 3, 2000).

The guiding principle is that if there is evidence in the record from which the jury could have concluded

that a lesser included offense was committed, there must be an instruction for the lesser offense. See Johnson v. State , 531 S.W.2d 558, 559 (Tenn. 1975) . In State v. Burns , our supreme court adopted a two-step process in determining whether the evidence justifies a jury instruction on a lesser included offense:

First, the trial court

must determine whether any evidence exists that reasonable minds could accept as to the lesser included offen se. In making this determination, the trial court must view the evidence liberally in the light most favorable to the existence of the lesser-included

offense with out making any judgements on the credibility of such

evidence. Second, thetrial court must determine if the evidence, vi

ewed in this light,

is legally sufficient to support

a conviction for the lesser-included offense.

6 S.W.3d at 469.-10-

Here, the trial court held that there was no proof presented at trial to justify a c harge o f criminally

negligent homic

ide and, in

consequence, the defendant was unable to meet the first prong of the Burns test. We agree. At trial, the defe

ndant testif

ied tha t he did not shoot the victim. Merritt, a state witness, testified that he did not see the defendant shoot anyone. Ms. Corum, the only other eyewitness, testified to fa cts which sup port the "knowing " killing of anot her, not to criminally

negligent conduct which results in death. Thus, the record is devoid of any evidence which might justify

a charge of c

riminally negligent homicide and the trial court properly omitted an instruction on that lesser included offense.

The trial court did not a

ddress whether t

he proof justified

a charge of vo

lu ntary m anslaughter. Although a close issue, it is our conclusion that the evidence meets both the first and the second prongs of the Burns test. In his sta tement to police, th

e defendant a

dmitted sho oting the victim because he "ran off" with some of Merritt's money and be cause he "drew for somethin[g]." Viewing this in the light most favorable to the defendant and without making jud

gments on credibility

, it is

our assessment

that reasonable minds could accept this statement as evidence of the lesser included offense of voluntary manslaughter. Voluntary manslaughter

requires that the

defendant's "

passions" be produced by "adequate provocation" which w ould lead a "reasonabl e person" t o act in an irrational manner. See Tenn. Code Ann. § 39-13-211(a). Here, the crime took place at night in an inner-city location. The vic

tim w as att empting to purcha se illegal drug

s. The victim and his companion had used up their c rack cocain

e earlier i n the day and were looking for more. The defend ant initiall y told police that he shot the victim because he believed that the victim, who apparent ly

did not live in the area and was there only to purchase cocaine, w as reaching for "something," implying it might have been a weapon. Viewed liberally , as required by

law, it is our conclusion that there was at least some eviden

ce of voluntary

manslaughter. I

t is also our view that the second Burns requirement has been met. Had the defendant been convicted of voluntary manslaughter, it is our collective belief that the evidence would have be en legally su fficient to support a conviction for the lesser-included offense. The defendant admitted to police that he killed the victim after learning that the victim had stole

n a friend's mon

ey and per

ceiving that the

victim appeared to be reachin

g for a weapon in a threatening manner. Even though the defendant challenged

the admissibility of his pre-trial statement and testified that

he did not shoot the v

ictim, the statement was submitted to the jury as an important

part of the state's proof-in-chief. While the alt ernative defense of adequate provocation to warrant only a manslaughter conviction is inconsistent withthe defense the ory at trial, it is the duty of the jury to ascertain the fac ts and determine the credibility

of the witnesses. Trial cou rts s hould not remove fr om the domain of the

jury the fa

ctfinding responsibility.

By use of the Williams standard, it is our view that the trial court's failure to charge voluntary manslaughter

did not affect the verdict to the prejudice of the defendant. M

oreover, by

the use of the Bolden

standard, it is our

view that the err

or was harmless be

yond a rea

so nable doubt. The defendant's statement itself is inconsistent; he gave two different rea sons, not necessa

rily related, for shooting the victim. Credibility was already an issue befor e the defendant

chose a different

theory
at trial. The eyewitness testimony of Ms. Corum was particularly compelling. Ms. Corum testified that the defendant wa

lked to the driver's side window and ordered her and the victim to step out of-11-

the car. She maintained that as the defendant drew his gun, the victim put the car in reverse, raised his hands in the air, and was shot. In his statement to police, Merritt stated that the defendant was armedwith a gun and was walking towards the victim's car before there was any indication of "provocationsufficient to lead a reasonable person to act in an irrational manner." Furthermore , the testimonyof Ms. Corum and the physical evidence at thescene indicate that the victim had placed his car in reverse and was moving away from the defenda

nt in order to avoid

a possible confrontation when he was shot. At trial, the defendant, of course, claimed that he did not shoot the victim, an incredible assertion in view of

the overwhelming

evidence to

the contrary. That tended to lessen the credibility

of his pretrial statement that he either acted in self-defense or acted in an irrational manner due to the provocation claimed. In our view, any er ror was not only harmless when measured by the standard adopted in Williams , but also harmless beyond a reasonable doubt.

V Fin all y, the defendant claims that his sentence was excessive. He argues that there were at least two mitigating factors that the trial court failed to apply.

When there is a challenge to the length, range, or manner of service of a

sentence, it is the duty of this court to conduct

a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing prin ciples and all relevant facts and circums tances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

Our review requires an analysis of (1) the evidence, if any, received at the trial and sentenc ing hea ring; (2) the presente

nce report; (3)

the principles of

sentencing and

the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating

or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the defendant's potential for reh abilitation or tre

atment. Tenn. Code Ann. § § 40-35-102, -103, & -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In calculating the sentence for a Class A felony conviction, the pr esumptive sentence is the midpoint within the range if there are no enhancement or mitigating factors. Te nn. Code Ann. § 40- 35- 210(c). If there are enhancement factors but no mitigating f actors, the trial court shall set the
sentence at or above the midpoint. Tenn. Code Ann. § 40-35-210(d). If there are mitigating factors but no enhancement factors, the trial court shall set the sentence at or below the midpo int. Id. A sente nce involving both enhancement and mitigating factors requires an assignment of relative weight for the enhancement factors as a means of increasing the sentence. Te nn. Code Ann. § 40-35- 210(e). The sentence mus t then be reduce

d within the range by any

weight assigned to the mitigating factors present. Id.

The senten cing range f

or second-deg

ree murder, a Cla

ss A felony,

is from 15 to 25 y

ears. See Tenn. Code Ann §40-35-112. The presumptive sentence begins at 20 year s. The trial cou r t found three enhancement factors: (a) employing a fi rearmduring the commission of the offense, Tenn. Code Ann. § 40-35-114(9); (b) a previous history of unwillingness to comply with the-12-

conditions of a

sentence involvin

g release in

the community, Tenn. Code Ann. § 40-35-114(8); and (c) com mis sio n of the cri me u nde r ci rcum sta nces in w hic h th e po ten tia l fo r bo dil y inj ury to the victim was great, Tenn. Code Ann. § 40-35-114(16). In addition, the trial court emphasized the fac t that the defendant used a firearm while selling drugs. The court sentenced the defendant to 24years in the Tennessee Department of Correction to be served at the rate of 100 percent, beca use the defendant was fou nd t o be a vi ole nt o ffen der. The defe nda nt d oes not obj ect to a ny of th e enhancement

factors used by

the court, but con

tends that the tria

l court failed to

weigh certain mitigating factors in determining his sentence, including: (a) that he acted under strong provocation, Tenn. Code Ann. § 40-35-113(2) ; a nd (b) that substantial grounds existed to justify the criminal conduct, though failing to establish a defense, Tenn. Code Ann. § 40-35-113(3).

Neither of the mitigating factors alleged by the defe ndant are applicable. Here, the defendant again relies on his pretrial statemen t in which he told police that he killed the victim because he thought the victim was drawing a weapon and/or because the victim ha d "run of f" with some of Merritt's money. Evidence produced at trial, however, established that the defe ndant and his friends flagged down the victim's car, and when the victim tried to l eave, they blocked his exit. The defendant approached the victim and ordered him to get out

of t he ca r. W hen the y tri ed t o get away, the defendant killed the victim.

The trial court is not required to place any particular weight on the mitigating and enhancement factors. State v. Moss , 727 S.W.2d 229, 240 (Tenn. 1986). Some discretion is due. The sentence carries the presumption of correctness. Because of the numerous enhancement factors andlack of

mitigating factors and each of the mitigating factors, we approve of the sentence imposed by the trial c

ourt.
Accordingly, the judgment is affirmed.

____________________________________ GARY R. WADE, PRESIDING JUDGE