B ecu as e s o m any of t he part i es i nv ol ved i n t hi s ca s e h ave t he s ame l as t na me, t he C our t wi l l r ef er t o t hem 1 by t hei r f

i r s t na me. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT NAS HVILLE Ja nua ry 23, 200 8 S es sio n

STATE OF TENNESS EE v . RANDY BRAY

Direc t Appeal from the Circ uit Court for Gr und y County

No. 4155 Thomas W. G raham , Judge

No. M2007- 01301-CCA -R3-C D - F iled Marc h 10, 2008

A Grundy County jury convicted the Def

endant, Randy

Br ay , of two counts of f

irst-deg ree murder, and he w as sentenc ed to two life sentenc es. On a ppeal, the D efe ndant alleg es that: (1) the evidenc e is insufficient to sustain his convictions; and (2) the trial court e rre d when it instructed the jur y on flig ht. After a

thoroug h revie w of the a

pplicable r ecor d and law, w e af firm the judgme nts of the trial

c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the o p i n i o n o f t he cour t, in which D AVI D H. W ELLES and T H O M A S T. W O O D A LL , J J ., joined.

Paul D. Cross (on appe al), M o n teag le, Tenne ssee, Rober t Morg an and F ranc is W . Pry or (at trial), J asper , Tenne ssee, f

or the Appe llant, Randy

Br ay

.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; Mic ha e l E . M oo re , S olic ito r G e ne ra l; Be njamin A. Ba ll, Assist ant Attorney Gene ral; J. M ichae l Taylor, District Attorney Gene ral; Steven H. Strain, Assistant District Attorney Gene ral, for

the Appellee , State of Tenne ssee.

OP IN ION I. F acts

The Def endant was indicted on c harg es of the f irst-deg ree preme ditated murder of Elvis and An tho ny Se lls . A t th e De fe nd ant’ s tr ia l, the fo llo wi ng e vid e nc e wa s p re se nte d: S te ve An dy Se lls
, J r., the victims’ brother , testified that Ant hony was twe nty -nine a

nd Elvis Sells was twe nty -six y ear s

1-2-

old when they

wer e killed. Anthony

had bee n marrie d to Christy Nunley Sells for three or four

y ear s at the time of his death, and Elvis had previously been marrie d to H eathe r Cox
, with w hom he had three children. The last time he saw his brother s alive wa s the day of this incident.

Chr is ty Se ll s , A n th o n y

Se ll s ’ w if

e , te s ti f ie d th a t s h e h a d

k n o w nth e D e f

e n d an t f o r s e v era l
y ear s befor e this shooting, but she did not consider him a friend. Christy testified that Anthony was killed on J une 20, 2005, af ter a n encounte r wi t h t h e De fenda nt at city hall. On that day , she and Anthony went to Tra cy

City to return a

movie, and, while dr iving a round Trac y City
, they saw the Def endant in a w hite car at a red light. The Defenda nt pulled behind t hem and honked his horn at them. Anthony

and Christy

turned lef

t and went up a

hill, where the Def

endant sped beside the m in his car. When anothe r ca r ca me, the De fenda

nt had to g et behind their ca r ag ain. Christy

said she and Anthony

drove to the Save -A-L ot parking lot, where they saw Elvis a nd told him t hat they

had seen the Def

endant. Anthony decide d to involve the pol ice and drove he and Christy to a pay phone at the Pigg ly

Wigg ly , wher e he c alled 911 and a sked for police assistanc e.

C h r i s t y s a i d

t h a ts h e an d

A n t h o n y t h e nw e n tt o m e e tE l v i s a tM o u n t a i nP r o p e rt i e s R e a l t y. Whe n th e y

arr ive d, El vis wa s f

ig hti ngwi th t

he De fe nd ant. Th e De fe nd ant le ft wh e n he sa w C hr isty

and An tho ny , b ut not be fo re thr e a te nin g he wo uld be ba c k to “g e t y ou and y our b ro the r. ” Chr isty testified that she, Anthony
, Elvis, a nd two of Elvis’s da

ug hters all went to the police d epar tment loc a te d at c ity

ha ll. Th e y

wa ite d f or the po lic e in a c c or da

nc e wi th t

he d ispa tc he r’ s in str

uc tio ns

. An tho ny le ft to c a ll 9 11 a g a in, and Chr isty sta y e d at the po lic e de pa

rtme nt loc a te d insi de c ity ha ll wi th E lvi s and

El vis ’s tw o d a

ug hte rs . Sh e wa ite d in sid e c ity ha ll’ s g la ss d oo rs wi th t

he tw o g ir ls while Elvis stay ed in his truck. Christy testified t h at , wh en she sa w Anthony

return, she hear d
g unshots, and she ra n o u t s i d e t o find her husba nd ly ing f ace down. She saw the Def endant shoot Elvis with a “long g un.” Christy said she ra

n back to the police depar tment for help, a

nd the police

arri v edar o u n d

t h at t i m e. W h en s h e w en tb ac k o u t s i d e, n ei t h er

An t h o n y n o r E l v i s we re b re at h i n g,

and the De fe nd ant w a s g on e . O n c ro ss- e xami natio n, Chr ist y a g re e d th a t A nth ony c arr ie d a sti c k w ith him wh e n the y saw the De fe nd ant a t Mo un ta in Pr op e rt ie s Re a lty

. She de nie d e ve r s e e ingEl vis wi th a metal pipe.

Travis Cockr an testified that he g rewup beside the Def endant, and he recog nized Anthony

and El vis Se lls . H e sa id t

hat, o n Jun e 20 , 200 5, he wa s d ri vin g pa st M ounta in R e a lty in T ra c y City when he saw t h e De fenda nt and Elvis fig hting. Elvis had the D efe ndant in a “he ad lock,” and Cockran pulled into the pa rking lot because there wer e scr eamingchildren w atching the fight. When he pu lle d in
, the tw o me n qu it fi g hti ng

. Coc kr an te sti fi e d that the De fe nd ant loo ke d “ ma d” and did not look i n t o x i ca t ed . Whil e Cockra n was still in the parking lot, Anthony Sells arrived a s the Def endant wa s g etting into his ca r to leave

. Shortly there afte r, Anthony and Elvis left the parking lot. He later saw the Sells’s ve hicles at the police depa rtment. Whil e he w as still in t own, he he ard
g unshots. He went to the police depa rtment, but he did not see the D efe ndant or the D efe ndant’s ca r there . He did see the two little girls yelling a nd scre aming , and he g rabbe d them and took them inside city

hall. He stay ed with them until family members c ame to take them home.-3-

On cr oss-examination, Cockran desc ribed the D efe ndant as quiet, little, and mi ld mannere d. Cockran kne w the De fenda nt’s pare nts had marital proble ms. Cockran said that A n t h o ny was

car rying a stick when he arr ived at Mountain Realty . He e stimated it was about forty minutes later wh e n h e he ard

the g un sh ots . O n r e dir e c t exam inatio n, Coc kr an tes tif ie d tha t he he ard

An tho ny te ll the Def endant at Mountain Realty that Anthony

was g oing to g o to the police depa rtment.

Ellen Cam p b el l t es t i fi ed that she w as at the Pig g ly Wigg ly on J une 20, 2005, with her hu sb and
, wh o wa s dr ivi ng the ir c ar. She saw a re d tr uc k p ull int o th e pa

rk inglot fo llo we d b y

a wh ite

car , and the dr iver of the white car was honking the horn. She said the whit e car was “fly ing” and pulled in rig ht behind the re d truck. The red truc k left and went toward Campbell’s Supply Store, and the white car followed the truck. Campbell said that the white ca r then “ smashed” into the ba ck of the re d truck. The red truc k turned rig ht in the direction of city hall. Campbell testified that she he a r d a p p r o xim a te ly f

o u r g u n s h o ts s h o rtl y a f

te r s h e lo s t s ig h t o f th e tw o c ar s

. Ca mp b e ll and her h u s b an d we n tt o ci t y

h al l an d s aw C h ri s t y

C am p b el l
, wh o wa s t h ei r d au gh t er -i n -l aw , cry i n g. Campbell said that she neve r saw the white vehicle ag ain that eve ning.

Dana P. Campbell testified she worke d at Pigg ly Wiggl y as a c ashier in June of 2005, and she knewthe Def

endant a nd rec og nized the Sells brothe rs. Campbell testified that she sa w Anthony

and the De fe nd ant bo th in t

he ir re sp e c tiv e ve hic le s w he n s he dr ov e to w or k f or he r 1 :00 p. m. s hif

t. She said she saw

Sells in t he rig ht hand lane and t he Defenda nt in the l eft hand lane, a

nd it looked like th e De fe n d an t wa s t rying to c atch up with Sells. At 6:00 p.m., she saw the two c ars r acing around the corne r to her left while s he was on her dinner break fr om work. While she was still on

a br e a k, sh e saw the tw o c ars a g a in, and the y a pp e are d to be he a de d to wa rd s Campbe ll’ s Su

pp ly Store. Anthony ’s ca

r led, with the De fenda

nt following c lose l y b eh i n d. She said that Anthony stopped, and the D efe ndant’s ca r bumped into the bumper of Anthony ’s ca

r. The two c ars then w ent toward the police station. Campbell testified that she never hear d g unshots, but it ha d been storming so she may

have thoug ht the shots were thunder.

Wanda McDa

niel testified th at s h e wo rk s for the 911 Ce nter in Grundy County , and her

rec ords indicated that Anthony Sells called the c enter at 5: 42 p.m. on J une 20, 2005, fr om the pay phone in the Pigg ly

Wigg ly parking lot. McDa niel testified that Sells reporte d the Def endant wa s dr un k a nd tr y ing to a ssa

ult him , a nd he re qu e ste d p oli c e a ssi sta nc e . Sh e sa id t

he re wa s n o T ra c y

City Police Unit on duty

at the time, but she t old him to stay near the pol ice department be cause an off icer

c a me on du ty a t 6:00 p. m. Of

fi c e r B e ss, wh o w a s su

pp os e d to c ome on

du ty a t 6: 00 p. m., wa s b us y

re sp on din g to a

sit uatio n at a

ho us ingde pa

rtme nt. At

6:2 1 p .m. the di sp atc he r r e c e ive d mu lti ple calls about a

shooting.

Ron Bess, a

deputy sheriff with the Grundy

County Sheriff’ s Depa

rtment, testified that on J une 20, 2005, his de partment wa s short-hande d. His normal hours we re f rom 6:00 p.m. until 2:00

a .m. On that da y , h e re sp on de d to a

c a ll at Gr un dy Ho us ing Autho ri ty , wh ic h de lay e d h is a rr iva l to the Tracy City Police Depa rtment. Dispatch advised him that he was to meet someone at the police depar tment about an alleg ed assa ult, and, when he g ot to the station, he parke d in the back. He ne ver hear d any g unshots, but he soon heard a woman scr eaminginto th e front door. He exited the-4-

building in the dire ction the woman was point ing, and he saw a body ly ing on the ground a nd another body by the re d truck. Of

fice r B ess ca lled for a ssistance. Te nnessee Bur eau of I n v es t i g ations (“TB I ”) A g ent Davis c ame to assist him, and Of fi ce r Be ss turned the sce ne over to him when he

arr ived. L ater

that evening , the offic er w ent to the bridg e, whe re w itnesses plac ed the c ollisi on b etween the De fenda

nt’s car and Anthony

Sells’s car, a

nd collecte d some piece s of debr is that
appea red to have come off the c ar dur ing the collision. He g ave the se to Ag ent Davis.

Ti m G arn e r, a

tr oo pe r w iththe Te nn e sse e Hi g hw ay Pa tr ol, te sti fi e d that he a ssi ste d in thi s i n v es t i gat i o nan d

fo u n d t h e wh i t e Bu i ckt h at wi t n es s es re p o rt edwa s co n n ec t edwi t h t h i s s h o o t i n g. The car was reg istered to Heathe r Sells and had damag e to its front end. The re w as re d paint near the dama g e d a

re a , in dic a tin g that th e c ar c oll ide d w ithso me thi ngre d. Tr oo pe r Ga rn e r re tur ne d to the car the next af

ternoon with A g ent Davis. When the two arr ived, they encounte red the Def endant walking from t h e gat e near the c ar to the r oad. Troope r Ga rner descr ibed the De fenda

nt as cooper ative, and the Def endant told the troope r that he w as the man fo r wh o m t h e troope r wa s looking. On cross-e x amination, Trooper Gar ner ag ree d that the Def

endant a cted politely

when he
encounte red him and that he was “ [s] oft spoken.”

L arr y Da vis , a spe c ia l ag e nt wit

h the TB I , tes tif

ie d tha t he wa s ask e d by

dis patc h at 6: 43 p. m. on the day

of this s h o o t i n g t o as s i st in thi s investigation. W hen he a rrived at the crime sc ene, he noticed it had bee n tap ed o ff an d there wer e seve ral off icer s standing outside of the tape. H e videotaped a

nd photogr aphed the crime sc ene. T he ag ent described many of the photog raphs of

the crime sc ene, an d h e n oted that Anthony Sells drove a r ed S-10 pickup truc k. He f ound a woode n sti c k p or tr ud ingfr om t

he ri g ht rear whe el of the tr uc k. At the sc e ne , c los e r t o th e bo dy of El vis Sells, the ag ent also found a steel pipe that wa s approximately two fee t long with thre ads at one end. Th e a g e nt a lso re tr ie ve d mu lti ple Re min g ton Expr e ss 12 g a ug e sh otgun

sh e lls , a nd six “ wa dd ing s”

or ca sings f

rom t hose shells. Ag ent Davis e x amined Anthony Sells’s body

and found he suffe red
g unshot wounds to center of the small of his bac k, his rig ht shoulder blade, a nd the top of his head. Anthony Sells also had an unopene d box cutter attached to the outside of his pants’ pocke t.

Ag ent Davis lea

rned that the Def

endant may have been involved in this shoot ing a nd that the Def endant wa s driving a

white B uick. The Def

endant’ s car was late r located and towe d to the fire ha ll f or Ag e nt Dav is t o e xami ne . A g e nt D a vis saw the c ar h a d b e e n in an a c c ide nt i nv olv ingits front-e nd, and, af

ter lea rning that the ca

r may have r ear -ende d Anthony Sells’s car , he dire cted Offic er B ess to g o and g ather evidenc e from the location of that collision. Ag ent Davis attempted to locate the Def

endant, and, as part of his inve stigation, he went back to whe re the Def endant’ s car had bee n located. There
, they found the Def endant standing in the road. A g ent Davis a dvised the Def endant of his rights, t h e De fe n d ant indicated that he under stood, and the ag ent aske d the Def endant for the g un. The Def endant took him throug h the g ate a nd to a wooded a

rea wher e the
g un was proppe d ag ainst a tree cover ed by the Def endant’ s T-shirt.

Ag ent Davis testified that, when he d is c o v e r e d th e De fenda

nt, the Def

endant wa s not wear ing

a sh ir t. H e no tic e d th a t th e De fe nd ant h a d s e ve ra l sc ra tc he s and a ha nd inj ur y

. Th e De fe nd ant s a id that he wa s scratched f

rom falling while running t hroug h the woods. Additionally , the Def endant-5-

told him he had injured his kne e. Ag ent Davis videotaped the Def endant, in w hich the De fenda nt

e xpla ine d h is i nju

ri e s and did no t app e ar to be int oxic a te d. Th e De fe nd ant w a s th e n ta ke n to the ja il wher e he w as interview ed.

Ag e nt Davis sa id that the dis tanc e be tw e e n the bo die s of the tw o v ic tim s w a s f if ty -n ine fe e t. The a g ent also we nt to where the Def endant sa id he obtained the gun, the Clouse Hill r esidenc e, and there he found the shotgun c over.

On cr oss-ex am i n ation, Ag ent Davis de scribed the Def endant a s “coope rative” when

surre nderinghimself and showing the ag ent wher e the gun was located. The a g ent also ag ree d that the Def endant gave him a volunt ary statement and was poli te and courteous. The ag ent ag ree d that he sawthe Def

endant a pproxi mately twenty -four hours after the shooting, and he did not know the De fe n d an t ’s m en t al s t at e a tt h e t i m e o f t h e s h o o t i n g.

Dr. O’ Br ian Cleary

Smit h testified that he pe rfor med the autopsies in this case . He sa id that Anthony Sells, who was 6' 1" ta ll and 226 pounds, sustaine d m u l t iple g unshot wounds to his head

and tor so , most of

wh ic h e nte re d h is b od

y fr om h is b a c k a

nd tr a ve le d thro ug h th e bo dy tow ard s h is fr on t. A nth on y

Se lls die d a s a re su lt of the se g un sh ot w ound s. Dr . Sm ithte sti fi e d th a t E lvi s Se lls
, who was 6' 1/2" tall a

nd 146 pounds, suffe red multipl e blows of blunt trauma to his hea d in addition to multiple g unshot w ounds. The g unshot w ounds appea red to e nter Elvis Sells’s left side and lef t upper ch es t

. The blunt trauma injurie s fra cture d Sells’s skull i n multipl e plac es, which c aused bleedingin his brain and swe lling. The se injuries alone could have been fatal. The doc tor opined that the blunt tr auma injuries to E lvis S ells’s hea d could have been c aused by a pipe similar to the

on e fo un d at th is c ri me sc e ne . D r. Smith lis te d the c a us e of El vis Se lls de a th a s a “ re su lt o f m

ult ipl e inj ur ie s. ” On c ro ss- e xami natio n, Dr

. Smith te sti fi e d th a t th e re is a po ssi bil ity

that E lvi s Se lls c ou ld have sur vived the hea d trauma.

Do n Ca rm e n, an a g e nt w iththe TB I c ri me la bo ra tor y , te sti fi e d ho w the sh otgun inv olv e d in this c ase must be pumped ever y time it is shot to e x pel the previously fired shell casing

. The shotg un held seve n shot shells, but i t could hold eig ht total if y ou ch am b er ed t h e first shell and loade d another . Ag ent C arme n testified that the shells containe d nine “double oug ht” buck pe llets, which is compara

ble to a .33 or .34 c aliber ty pe of bullet. T hese she lls are c onsidered “ high- power ed.” The a g ent deter

mined that the shells f

ound at the crime scene wer e fired from the g un retrie ved fr om the De fe nd ant w he n h e surr e nd e re d. Ag e nt C arm e n a lso e x ami ned the v ic tim s’ c lot hin g to deter mine the distance from which the y wer e shot. He de termined that Anthony Sells was shot from less than ten fe et. Elvis Sells was shot at a distance from betwee n five and forty fee t, a nd the ag ent could not be more specific beca use there was not a c lear

pattern in the c lothing.

L ind a L itt le john, a fo re ns ic sc ie nti st f

or the TB I , te sti fi e d s he e xami ne d p ie c e s o f a c a r g ri ll found by police in a roadway

. She compar ed thos e pieces t o the Defenda nt’s car and dete rmined that they came from the De fenda

nt’s car

.

Marg are t B a sh , a

n a g e nt w iththe TB Ic ri me la bo rator y , te sti fi e d s he e xami ne d th e fl oo r m a ts-6-

from the De fenda

nt’s car but found no blood on them. She also d i d n o t fi nd blood on the Def endant’ s T-shirt. She did, howeve r, find blood on the stee l pipe found at the c rime sce ne but could not obtain a DNAprofile f rom the blood on the pipe. Ag ent B ash tested the stick f ound at the

c ri me sc e ne and

fo un d th e pr e se nc e of

blo od on the sti c k b ut w a s unable to ma tc h th e blo od to any one in par

ticular. She did not rec eive f or compa rison blood samples from either victim.

Ho y te Phi lli ps , a

sp e c ia l a g e nt w iththe TB I c ri me la bo rator y , te sti fi e d that he wa s una ble to obtain any

identifiable fing erpr ints from the stick or steel pipe involved in this ca se.

Sammy Reed testifi ed t h at he had been f riends with the De fenda

nt for a longtime, and he saw the D efe ndant the day of th i s s h o o t i n g when the D efe ndant came to his house. Reed said he knew that the Def

endant had taken a Xana x that day
, and he ha d seen the Def endant take that drug

on a few previous occa sions. When the Def endant ha d taken Xa

nax he was more ta lkative, and the drug appea

red to re lax hi m. Reed said that, whe n the Def endant c ame to his house t hat day , he wa s wet. When he a sked the De fenda nt why he wa s wet, the Def

endant sa id that he had be en standing in the rain. The Def

endant a ppear ed “r ed fa ced” and “g lazed.”

Ronald Br ay , the Def

endant’ s father
, testified t hat he was married to the Defenda nt’s mother a long time ag o, and he a g ree d their marr iag e wa s “roc ky .” Af t er t h ei r di vorce , the Def endant’ s mother initially had custody of the Def endant, but, after

a couple of y ear s, Br ay

obtained custody

and

mov e d w iththe De fe nd a

nt t o O hio

. He me t a

wo man in

Oh io, bu t sh e did

no t li ke the De fe nd a nt. She left the D ef

en d an t o u t s ide in the fre ezing c old one day afte r the De fenda

nt came home from school. After

this incident, Bra

y left that woman a

nd moved back to Tenne ssee. Bra y testified that he had c ustody

of the De fenda

nt for four

and a ha lf y ear s, and the De fenda n t m issed his mother a lot

.

Br ay

testified that, the day

of this shooting, he g ave the Def endant two Xana x pills around 2:00 p.m. a

nd told him t o g o to sleep. B ray said he ha d g iven the De fenda nt Xanax pills befor e, and the pills usually

made the Def

endant sleepy

. Br ay

did not see the De fenda

nt consume any

beer that day
, but the Def

endant took two beer s in the ref rig erator with him. Bra

y said that the De fenda

nt had been in jail for

not paying c hild s u p p o rt , which wor ried the D efe ndant. B ray testified that the Def endant ha d previously

had thre e g irlfriends, a

nd they all eventua lly

left him.

The De fenda

nt, a thirty -two y ear

old Grundy County native, testi fied that he was nine or ten
y ear s old when his pare nts divorced. At first, he lived with his mother in Kingston, a nd then he lived with his fathe r, who moved a lot. He also lived with his gra ndmother in Tra cy

City for some pe riod of tim e . T he De fe nd ant r e c a lle d th a t, w he n h e wa s twe lve or thi rt e e n an d live d with his fathe r, his fathe r moved to Troy , Ohio with the Def endant and the Def

endant’ s sister. The De fenda nt’s fathe r

rema rried, a nd the Def

endant did not g et alongwith his stepmother, who would t el l h i m that she hated him, smack him, throw thing s at him, and s h o v e h i m . The De fenda nt’s stepmother eve n locked him out of the house in t h e s n o w. Af ter a bout a y ear

and a ha lf, the De fenda

nt’s fathe r divorce d his stepmother, and the f amily moved bac k to Tennesse e. The Def endant testified a

bout how he moved house to house afte r his return to Te nnessee , sometimes living with his mo t h er,-7-

fathe r, g randmother , or aunt. The Def endant enrolled in sc hool upon his r eturn, but the last g rade he complete d was the e ighth g rade . He late r re ceive d his GED.

T h e D e f e n d an tt e s t i f

i e d a b o u th i s p a s t g i r l f

r i e n d s , s ayi n g t h a t h e w a s a p p r o x i m a t e l y t w e n t yfi ve wh e n he ha d his fir st se ri ou s re la tio ns hip

. Whe n tha t re la tio ns hip e nd e d, he me t and mov e d in with another g irl, Allison J ohnson, and J ohnson beca me preg nant. When the Def endant lea rned that J ohnson was pre g nant with his child, the two discussed marria g e, but Johnson sa id that she did not want to g et marr ied. She moved out two wee ks after he lea rned she was preg nant, s aying that she wanted to be closer to he r mother. The Def endant attempted to see his child, but J ohnson ref used
to a llo w i t. T he De fe nd ant s ue d for vi sita tio n r ig hts , a nd he wo n v isi ta tio n a

nd a lso be c a me obligated to pay child support. The Defenda nt rec alled that, during his relationship with J ohnson, John so n’ s e x-bo y fr ie nd

c a me to t he ir ho me , k ic ke d in

the do or , s ho t the De fe nd ant’ s tr uc k, and he ld
a g un to the Def

endant’ s head.

The Def endant’ s next re lationship wa s with T ere sa Be ll, a nd they had twin boy s toge ther. The D e f e n d an t s a id h e a ls o h a d c h il d s u p p o rt o b li g a ti o n s w it

h r e s p e c t to th e s e tw o b o y s

. The Def endant r eca lled that he asked Be ll to marry him at least three times, but she refuse d eac h time. Th e De fe nd ant re c a lle d a dif fe re nt o c c a sio n w he n h e wa s d anc ingwi th a wo man a nd a man c a me up to him, st uck a knif

e into his stomach, and told him that he was g oing to “ cut [his] g uts out.”

The Defenda

nt descr ibed hi s work hist ory and li fe’ s g oals, saying he had bee n laid off f rom his most recent job at B atesville Casket Company . The De fenda nt, who worke d for the c asket

c omp any a s a te mpo ra

ry e mpl oy e e , h a d h op e d to be of fe re d a pe rm ane nt p os iti on

be fo re he wa s la id off. About his life ’s g oals, the Def endant said that he wanted a “re g ular” life, which he descr ibed as beingmarrie d with children, a home, and a

nice job.

Th e De fe nd ant te sti fi e d ab ou t his re la tio ns hip wi th He a the r Cox, w ho ha d b e e n ma rr ie d to Elvis Sells . He s ai d t h at t h e two met at an Amoc o g as station in Trac y City , wher e Cox worke d, when he stopped there with Sam Reed. Reed knew Cox and introduce d Cox to the Def endant. Cox
was, at that time, still marrie d to E lvis Sells. When Cox and Sells separ ated, the D efe ndant and Cox be g an d a tin g . E ve ntu a lly , th e tw o mo ve d int o a tr a ile r tog e the r. Th e De fe nd ant, wh o h a d b e e n la id off fr o m t h e ca sket company , was looking for a job, and the two suff

ere d serious financ ial difficulties.

Th e De fe nd ant s a id h e g ot a lon g wi th C ox’s thr e e c hil dr e n, and he and Cox be g an to dis c us s

marr ia g e a

bo ut thr e e mon ths be fo re the sh oo tin g in thi s c a se

. Ab ou t tw o or thr e e we e ks be fo re thi s sh oo tin g , t h e t w o d e c i d e d t o g e tm ar

r i e d t h e f i r s tw e e k o f Ju l y , i np art , b e c a

u s e E l v i s S e l l s w o u ld have the c hil dr e n that we e k. Th e De fe nd ant sa id t hat he and

El vis Se lls ha d g ott e n a lon g up un til this point

.

The De fenda

nt testified about the eve nts of J une 20, 2005, saying that Cox had worked the night be fore . The two ha d attempted to borrow $800 to g o to Gatlinburg , g et marr ied, and stay for

a da y or tw o. Th e y were un su ccessf ul, re tur ne d h ome , a

nd the De fe nd ant c a lle d a

bo ut a job in-8-

Tullahoma. The D efe ndant was told there wer e no jobs available and was asked to call back. The De fe nd ant r e ite rate d ho w muc h fi na nc ia l str e ss he and Cox we re un de r. He the n s a id C ox tol d h im that they could delay

the wedding . The De fenda nt said he fe lt “sort of let . . . down ag ain . . . [he] could under stand in a wa

y , but it was like this is happening all over ag ain.” Cox then said that she was tired, a

nd she we nt to lie down while the Def endant “ra m b led ar ound the house . . . .” The Def endant then took two Xa

naxes beca

use he w as “a g g ravated.”

Th e De fe nd ant s a id h e the n w e nt t o th e po st of fi c e in tow n, to the te le po ne of fi c e , a nd to h is fathe r' s house. While at his fathe r’s house, the Defenda nt inge sted two more Xanax pills and took a couple o f b ee rs wit h him. The Def endant then w ent to Reed’s house , but Reed’s truc k was not the re and he a ssume d Re e d w a s g on e . A t th is po int
, the De fe nd ant h a d c on su me d f our X ana x pill s. He lef t Reed’s house a

nd went to town to look for Ree d. He said that he did not se e Ree d, but he

rea liz ed that he w as driving behind El vis Sells’s car , and C ox ’s t wo girls wer e in the bac k of the c ar wavingto him. The Def

endant said it a

ppear ed Sells told the g irls to sit down, and then, whe n he spotted the Def

endant, he “flip[ped] [ him] off.” Sells pulled into the Save- A-L ot parking lot, and the Def endant he ard him say

something, w hich the De fenda nt could not discern, a s the Def endant drove by

.

Th e De fe nd ant tur

ne d aro un d and

c on fr on te d E lvi s Se lls , a sk inghim wh a t hi s p ro ble m w a s. Sells said that t h e De fe n d an t was his problem. The Def endant sa id that another ma n then
approa ched to sa

y hello, and af

ter he walked aw ay S el l s accused the D efe ndant of drinking . The Def endant a dm i t t ed t h at he had be en drinking , but he had only had one be er at that point. The Def endant sa id he left the Save- A-L ot parking lot first, and he saw Anthony Sells, who also flipped him “a bird.” The Defenda nt said that he turned and went back to Reed’s house. Reed’s mother let the Def endant in, and the Def

enda n t h ad t wo m ore be ers a nd two more Xa

nax pil ls before Reed

ar r i v e d f o rt y f i v e m i n u t e s l a t e r

. T h e D e f e n d a n tl e f tt o g o b a c k

t o h i s f a t h e r ’ s h o u s e

. O nt h e w a y, he sawElvis Sells ag ain, and Elvis Sells indicated for hi m to pull over. The two of the m went to the Mountain Top Realty parking lot. When the t wo got out of t heir cars, Elvis Sells “jumped” on the Def endant, a nd the two eng ag ed in a f ight. Anthony

Sells then arrive d with a wooden sti ck and started r unning towa

rds the De fenda

nt with the stick raised. Another man, Kevin Sander s, arr ived

and br ok e up the fi g ht.

The De fenda

nt said that he l eft and went bac k home. He sa id that he was ma d beca use the two brothers ha d started this with him and had jumped on him. He was g oing to tell Cox what had happene d and ask he r if she ha d told them that they wer e planning to marry beca use it “see med like the y we re ri le d u

p f or so me re a so n. ” He awo ke Cox, tol d he r wh a t ha d h a pp e ne d, and

sh e tol d h im not to go back into town. The Def endant said that he then c alled the Sells’s mother a nd told her that she nee ded to g et hold of her sons before someone g ot hurt. The De fenda nt retriev ed a loaded

s h o t g u nh e r e c e i v e d f

o r h i s b i rt h d ay f

r o m t h e h o u s e an d t h e n l e f t f o r h i s f a t h e r ’ s h o u s e

. O nt h e w a y, he sawAnthony

Sells, who y elled “F -y ou” to him and motioned for the D efe ndant to “come on.” The De fenda

nt followed Sells, Sells t hen hit his breaks, a nd the Def

endant c ollided with the ba ck of his truck.-9-

The De fenda

nt said Anthony Sells laug hed at him and mot ioned for him to “come on.” The Def endant followed Sells towa rd city hall, and he said that he was “re ally mad.” T h e D ef en d ant testified t h at h i s neck a

nd fac e we re bur

ning ba dly

as he w as making the turn towar d the police station. W hen they

arr ived, Elvis Sells was alrea dy there

. Anthony Sells pulled in a nd stopped. The Def endant pulled in behind him. Anthony Sells jumped out, g ot his bat, and the Def endant notice d that Elvis Sells had a pipe. The D efe ndant said he g ot out the shotgun. The Def endant sa id that “by the tim e Ifi re d .

. . the fi rs t sh ot, Iha d lo st, Ic ou ldn ’t he ar and I cou ldn ’t

– my vis ion wa s ju st g etting bla ck. I

was looki ng out like a hole smaller, sm aller tha n a plate.” The De fenda

nt said that he shot Anthony

and Elvis Sells because he was scar ed. The Defenda nt did not remembe r picking
up the pipe, but he re membere d standing beside Elvis Sells with the pipe in his hand. He said that he did not reme mber the shooting, and he only awoke from his trance when he hear d a scr eam. He said that “[i] t’s like ever

y thing c [a] me bac k.” He found himself at that moment “hunke red dow n over Elvis with the pipe in my rig ht hand and I

had the shotg un i n m y l ef t hand.” H e said that he held onto the shotg un and thre w the pipe.

The De fenda

nt said th at h e l ef

t beca use he did not know what else to do. He w ent to the woods and spent the nig ht rambling around in the w oods. He de cided that he would get i n touch with his father the next day beca use his fathe r would have sound advice for him. The next day , he
encounte red A g ent Davis and a few state troopers. The Def endant said that he would not have done this if he had it to do over a g ain.

On cr oss-examination, the Defe ndant testified that he did not re call what he had done the

wee kend bef

ore this shooting, w hich was on a Monday . He said he did not have a car of his own, but Cox had two ca

rs. The Def

endant said that he did not have a job f or any of the time that he lived wi th C ox, a

nd he a g re e d th a t th e tw o w e re liv ingon wh a t Co x mad e and

wh a t th e y

re c e ive d in

c hil d support from Elvis Sells.

Th e De fe nd ant ag re e d tha t, af te r Elv is Sel ls “ fl ipp e d” him “ the bir d, ” he fo llo we d Se lls int o the Save- A-L ot store, wher e Sells was shopp i n g wi t h h i s children. The Def endant sa id that he fo llo we d Se lls int o th e sto re be c a us e he wa nte d to “g e t what I ha d to say ou t.” He do ub te d if Se lls
appre ciated w hat he ha d to say . The De fenda nt sa id that he did not reca ll whether he raised his voice while speaking w ith Sells in the store, but re iterate d that a man whom he knew came up to him and patted him on the bac k and aske d if he wa s okay

. The Def endant said that he did not reme mber the
encounte r that Christy

Sells described where in the Defenda nt saw Christ y and Anthony Sells at a g as station and followed them sometimes driving on the w rong side of the r oad. He emphasized that he

wa s n ot t e sti fy

ingthat th is i nc ide nt n e ve r h a pp e ne d b ut w a s sa

y ingthat he did

no t r e me mber th is incident.

Th e De fe nd ant a g re e d that El vis g ot the be tte r of him wh e n the tw o fo ug ht in t he R ealty
pa rk inglot . A ft e r E lvi s Se lls g ot t he De fe nd ant i nto a

he a dlo c k, the fi g ht w a s b ro ke n u p b y Sand e rs

. Anthony Sells then arrived and approa ched him with the s tick, and S ander s told Anthony “no, no, no.” Anthony

never hit the Defenda

nt with the s tick. The Defenda nt said that Anthony

was y elling at him, and the De fenda

nt may have sa id “F- y ou” bac k to Anthony . The De fenda nt ag ree d that he-10-

went bac k to his trailer after this and got hi s shotgun, leaving the case on t he floor. H e ag ree d that he knew the shotgun was loaded with “ double oug ht” buckshot and that he lied to Ag ent Davis whe n he said other

wise.

Th e De fe nd ant r e ite rate d that, whe n h e saw A nth on y Se lls a t th e Pig g ly

Wig g ly sh or tly be fo re the sh oo tin g , A nth on y Se lls mot ion e d f

or him to f oll owhim and the n s lamme d o n h is b re a ks

. He s ai d h e thoug ht that Anthony may have w anted him to run into Anthony ’s truck. When they

arr ived at city

hall, Anthony

g ot out of h i s t ru ck with the stick. The D efe ndant said that Anthony
tur ne d to ru n a ft e r the De fe nd ant g ot his sh otgun ou t of the c ar. Th e sh otgun did no t ha ve a sh e ll i n the chamber, so the De fenda nt had to “ra ck[] ” one into the c hamber . He a g ree d that he shot Anthony in t he ba c k o nc e

. Th e n, he sh ot El vis wi th t he ne xt sho t. T he De fe nd ant a g re e d th a t A nth on y wo uld have the n been on the g round when he shot him two more ti mes. The De fenda nt said that he did not

reme mber shooting any

more a fter that. He ag ree d t h at he likely shot his gun seve n times. The Def endant said that he “thought” that he hit Elvis Sells in the head w ith a steel pipe, but he did not

reme mber c lear ly

.

The De fenda

nt testified that he told Ag ent Davis that he was not intoxicated at the time of this shooting
, having only consumed thre e bee rs. Fur ther, he never

mentioned to Ag ent Davis that he had taken any

Xana x pills, but he explained that the ag en t d id not ask him if he had consume d
any pills. The Defenda

nt said that Xana x usually made him g o to sleep, but he did not g o to sleep this day

.

Dr. David Solovey , a clinica l psy cholog ist, testified that he interviewe d the Def endant, the Def endant’ s mother, fianc é, and f ather . The doc tor testified t h at t he De fenda nt’s history

was rele vant to these events, and he describe d how the De fenda nt was phy sically

abused by

his father
, abandone d by his mother, and phy sically abused by

his stepmother. Dr. Solovey explained how the r e h a d b e e n l i t t l e s t r

u c tu r e i n t h e D e f

e n d an t ’ s l i f

e , c a u s i n g t h e D e f

e n d an t t o h a ve po or ly develope d self-ma

nag ement skills. The doctor said that, in addition to the Defe ndant beingabused by his family , he wa s also abused in school. This co m b ined abuse made the D efe ndant have a “hig hly depende nt personality , alway s looking to others to take car e of him, but alwa y s expecting and g etting f

rustration at being taken car e of.” The doctor de scribed some instances of phy sical and
psy cholog ical abuse that the Defenda nt suffe red. Dr. S olovey diag nosed t he Defenda nt as suffe ring from lo n g te r

m P o s t- T r a

u mati c Str e s s D is o r d e r

an d d e p r e s s io n

. T h e d o c to r o p in e d th a t the Def endant did not suffe r fr om a mental disea se or de fec t th at m ad e h i m unable to appr eciate the
wrong fulness of his actions. The doctor e x plained that whe n Xana x is taken at hig her dose s it can

c a us e the us e r n ot t o r e me mbe r c e rt a in e ve nts

. Dr. Solovey

explained that “par adoxical” re actions to medications refe rs t o when a person has an “ extreme, unexpected” rea ction t o a m ed i ca t ion. He said that this, in addition to “y ear s of submerged an ger ” and the “thre at and . . . possibility of beingkilled or attac ked,” c ould have inf lue nc e d th e De fe nd ant’ s a c tio ns that da y by low e ri nghis inh ibi tio ns

.

On cr oss-examination, the doctor testified he ha d not r eviewe d any of the TBI repor ts from-11-

this incident, and he wa s unawa re the Def

endant s h o t o n e o f t h e victim s twice in the ba ck as the victim was flee ing. The doc tor reiter ated that he had indicate d that the Def endant, who ha d not been
prescr ibe d X ana x, ha d ta ke n s ix 1 mi lli g ra

m pi lls of

Xa na x. He a g re e d th a t X ana x co me s in differ ent sizes, varying be tween a quarte r of a

milli g ram to two milligrams. Fur ther, he said he base d his opinions on what the Def endant had told him and not a tox icolog y repor t. Dr. Solovey

testified that the combination of Xa nax and beer

wou ld h a v e r educe d the Def

endant’ s inhabitions and allowed his fear and par anoia to surfa ce. The doctor ag ree d that the Def endant pur sued the objec t of his fea r by chasingAnthony

Sells in hi s car

.

Dr. Mar k Peterson, a psy chiatrist, testified that Xana x is a presc ription medication used for
treatment of panic disorder and to help qui et or sedate anxiety . Dr. Peter son testified that a pe rson can ha ve a pa radoxical rea ction to Xanax, which he de scr i b ed as “paradoxical excitement.” The doctor said he did not examine the Def endant but had spoke n with the Def endant’ s attorney

and re ad Dr. Solovey ’s re port. Dr. Peter son testified t hat he had previously presc ribed a

patient a medic ation to calm the patient and the medication had the opposite, or unexpected, e ffe ct. The doc tor said that a patient who suf

fer s this reac tion, e specia lly when the me dication is combined with another sedative such as a lcohol, is a “ve ry disrupted state of i n s i ght.” The doc tor said, “The y do not understand what ’s h ap p ening . Their judg ment is usually very very bizarrely aff ecte d and they ’re often doing things that they

normally would not do.” The doc tor said t hat a “par anoid reaction” is often a part of the para d ox ical ef

fec t. A para

noid rea ction is an abnorma l fea r “to the point whe re the person who has it thinks that other people are rea ding the ir minds or car rying c oncea led wea

pons or doing things to a pe rson that ar e, obviously , not true fr om an outsider’s p o i n t o f vi ew, but fr om the patient’s po i n t of view the y think it’s actually

happening .” The doctor said that both Xa nax and alcohol leave the body quickly
, so, within 24 hours their e ffe ct would have been be g inning to cle ar

u p o r h a v e c l e ar e d

u p e n t i r e l y.

On cr o s s

- e xa mi n a ti o n , D r

. Pe te r s o n te s ti f ie d th a t X an a x is an a d d ic ti v e dr u g and the withdrawa l sy

mptoms are phy sically

painful. Dr. Pete rson testifi ed t h at t o o much Xanax in a person’ s sy stem can c ause the person to be “quite sleepy” and “ stumble[ e] around as if dr unk” and would also aff

ect their ability to drive an a

utomobile.

Ba sed upon this evidence
, t he jury convicted the Def

endant of two counts of first-de g ree murder. T he De fenda

nt now appea ls.

II. Ana lys is

On a pp e a l, t he De fe nd ant c on te nd s th a t: ( 1) the e vid e nc e is i ns uff ic ie nt t o s us ta in h is

c on vic tio ns ; and

(2 ) t he tr ia l c ourt

e rr e d w he n it

ins tr uc te d th e jur

y on fl ig ht.

A. Suf fi ciency of the Evidence

Th e De fe nd ant c on te nd s th a t th e e vid e nc e a g a ins t hi m is ins uf fi c ie nt t o s us tain his

c on vic tio ns fo r t

hr e e re a so ns . F ir st, he c on te nd s t hat the e vid e nc e wa s in su ff ic ie nt t o s up po rt

his-12-

c on vic tio ns be c a

us e the re wa s no pr oo f to re fute that he wa s in toxic a te d at th e tim e of the sh oo tin g s. The De fenda

nt notes that the t rial court instructed the jury on voluntary and involuntary intox ication. He asser ts that he established at trial that he was unawa re of the “explosive” side eff ect of Xana x and that he suffe red from a para dox ical rea ction to X anax, a s descr ibed by medical experts. Fur ther, he

as s er t s that he should have been f ound to be involuntarily

intox icated be cause his proof we nt “virtually . . . unchalleng ed.” Sec ond, t h e De fe n d an t contends that e ven if proof of involuntary intox icat i o n is disreg arde d, he still should have only been c onvicted of voluntar y manslaug hter beca use the evidenc e that he was in f ear of the victims wa s substantial a nd there was s u bstantial evidenc e of pr ovocation, showing that he ac ted in a state of passion. Finally , he asse rts there was ins uf fi c ie nt p ro of

of pr e me dit a tio n to su

pp or t hi s f ir st d e g re e mur de r c on vic tio ns

.

The State c ounters that the De fenda nt introduc ed evidenc e that it wa s possible f or someone to h a ve a pa ra do xica l re a c tio n to Xana x, bu t th e re wa s n o te sti mony that th e De fe nd ant s uf

fe re d th is ty pe of re a c tio n. Fur

the r, the State no te s th a t th e re wa s te sti mony the De fe nd ant h a d p re vio us ly taken Xa nax and that it calmed him. The State asse rts that the j u ry reje cted the D efe ndant’s contention of involuntary i n t o x i cation and that there is ample suppor t for its finding that the Def endant a cted with pre meditation.

When a n acc used challeng es the sufficie ncy of the evidenc e this Court’s standard of re view is w hether
, afte r considering the evidenc e in the light most fa vorable to the State, “ anyrational trier of fa ct could have found the e ssential elements of the crime bey ond a rea sonable doubt.” Jack son

v . V irg ini a , 4 43 U. S. 3 07 , 3 19 (1 97 9) ; see Tenn. R. App. P. 13(e)
, St at e v. Goo dwi n , 143 S.W .3d 7 7 1
, 7 7 5 (T en n

. 2 0 0 4 ) ( ci t i n g Sta te v . R e id , 91 S.W.3 d 247 , 276 (T e nn . 200 2) ). Th is r ule a pp lie s to finding s of guilt based upon direct evide nce, c ircumstantial evidenc e, or a combination of both direc t and cir cumstantial evidenc e. Sta te v . P e nd e rg ra ss , 13 S.w.3d 389, 392-93 (Te nn. Crim. App. 1999). A c on vic tio n ma

y be ba se d e nti re ly

on c ir c ums tanti a l e vid e nce wh e re the fa c ts a re “ so c le a rl y interwove n and conne cted that the f inge r of gu i l t i s pointed unerr ingly at the De fenda

nt and the Def endant a lone.” Sta te v . S

mi th , 868 S.W .2d 561, 569 (Tenn. 1993) . I n such ca ses, howeve r, the fac ts must be “so clea

rly interwove n and connec ted that the fing er of g uilt is pointed unerr ingly at the Def endant a nd the Def

endant a lone.” The jury

decide s the weight to be given to c ircumstantial evidenc e, and “[t] he infe renc es to be dra wn from suc h evidenc e, and the extent to which the circ umstances a

re c onsistent with guilt and inconsistent with innocence , are questions primarily for the jury .” State v. Rice , 184 S.W .3d 646, 662 (Tenn. 2006) (citations omitted).

I n d e te rm ini ngthe su ff

ic ie nc y of the e vid e nc e , th is C ourt sh ou ld n ot r e -w e ig h o r r e -e va luate t h e ev i d ence. Sta te v . M att he ws , 8 0 5 S

. W

. 2 d

7 7 6
, 7 7 9 ( T e n n

. C r i m

. A p p

. 1 9 9 0 )

. N o r m a y thi s Court substitute its infe renc es for those draw n by the trier of

fac t from the evide nce. State v. Buggs
, 99 5 S.W. 2d 10 2, 10 5 ( Te nn . 1 99 9) ; Lia k as v . S tat e , 286 S.W .2d 856, 859 (Tenn. 1956) . “Que stions

c on c e rn ingthe c re dib ili ty of the wi tne sse s, the we ig ht and val ue of th e e vid e nc e , a s w e ll a s a ll fac tual issues raised by

the evidenc e ar e re solved by the trier of

fac t.” State v. Bland , 958 S.W .2d 65 1, 65 9 (T e nn . 1 99 7) ; Liakas
, 286 S.W .2d at 859. “A guilty verdic t by

the jury , approve d by

the trial judg e, ac cre dits the testimony of the witnesses for the State a nd resolves a ll conflicts in favor of the theor

y of the State.” S

ta tev

. Ca b bage , 5 71 S.W. 2d 83 2, 83 5 ( Te nn . 1 97 8) ; State v. Grac e ,-13-

493 S.W .2d 474, 479 (Tenn. 1973). The Tennessee Supreme Court stated t he rationale for this rule:

This w ell-settled rule rests on a sound f oundation. The trial judg e and the jury see the witnesses fa ce to f

ace , hear their testimony

and obser ve their demea

nor on t he stand. Thus the trial judg e and jur y are the primary

instrumentality

of j ustice t o deter

mine the weig ht and cr edibility

to be g iven to the t estimony of witnesses. In the trial for um alone is t h er e h uman atmosphere and the totality of the e vidence cannot be

re pr od uc e d w itha

wr itt e n r e c or d in

thi s Co ur t.

Bo lin v . S tat e , 4 0 5 S

. W

. 2 d 7 6 8
, 7 7 1 (T en n

. 1 9 9 6 ) ( ci t i n g Car ro ll v . S tat e , 370 S.W .2d 523 (Tenn. 1963)). This Court m ust aff ord t he S tate of Tenne ssee the stronge st leg itimate view of the e vidence contained in the rec ord, as well as all rea sonable infere nces which may be dra wn from the e vidence

. Go od win , 1 4 3 S

. W

. 3 d

at 7 7 5 (c i t i n g Sta te v . S

mi th , 24 S.W .3d 274, 279 (Tenn. 2000) ). B eca use a verdic t of g uilt ag ainst a def endant r emoves the pr esumption of innocenc e and r aises a pr esumption of g uil t, t he c on vic te d c ri min a l de fe nd ant b e ars the burd e n of sh ow ing that the e vid e nc e wa s le g a lly insufficient to sustain a guilty verdic t. Sta te v . Ca rru the rs , 3 5 S. W. 3 d 5 1 6
, 5 5 7

- 5 8 ( T e n n

. 2 000). I mportantly
, the cre dibilit y of the witnesses, the weig ht to be g iven their testi m o n y , an d the

rec onciliation of conflicts in the evidenc e ar e matter s entrusted e x clusively to the jury

as the trier

of fac t. Bland , 958 S.W .2d at 659.

1. Involu ntary Intoxication

Th e Defen dan t f

ir st con ten ds th at h e pre sen ted un con tr adi cte d p roo f t hat he w a s in vo lun ta ri ly intox icated by

a com b i n at i o n of Xa

nax and alcohol. He a sserts his intox ication was involuntary be c a us e he ha d a “ pa

ra do xica l” re a c tio n to the Xa na x, wh ic h he ne ve r be fo re e xpe ri e nc e d. Th e Sta te counter s that, while the De fenda nt offer ed proof

that it was p o s s i b l e for someone to suffer a pa ra do xica l r e a c t i o nt o X an a x, t h e r e w a s n o e v i d e n c e t h a tt h e D e f e n d an th a d

t h a tr e a c t i o nt o t his dr uga t th e tim e of

the sh oo tin g s.
The leg islature distinguished be tween volun t ary and involuntary

intox ication. Neither diminis hed ca

pacity nor voluntary

intox ication ar e true defe nses. See T.C.A. § 39-11-503( a) ( 2003). “[I ]nt ox ication i tself i s not a defense to prosec ution for an offe nse. Howe ver, intoxi cation, whe ther voluntary or involuntary , is admissibl e in evidenc e if it is rele vant t o neg ate a culpable me ntal state.” T.C.A. § 39-11-503( a). Mor eover , “[i] f rec klessness establishes an ele ment of an of fense and the person is unaw are of a r isk beca use of voluntar

y intox ic a ti o n , the per son’s unawa

rene ss is im materia l in a prosec ution f

or that offe nse.” T.C.A. § 39-11-503( b). The le g islature also c hose to addre ss the i n t e r p l ay b e t w e e n

i n t o x i c a t i o nan d

i n s an i t y:

I ntox ication itself does not constit ute a mental disease or def ect within the mea

ning of § 39-11- 501. Howeve r, involuntary intox ication is a defe nse to prosecution if, a s

a result of the involuntary intox ication, the person lac ked substantial ca pacity either
to a pp re c ia te the wr on g fu lne ss o f t he pe rs on ’s c on du c t or to con fo rm that c on du c t to the re quirements of the law alleg edly violated.-14-

T.C.A. § 39-11-503( c).

The De fenda

nt contends that, bec ause he was unaware of t he paradoxical aff ect that Xa

nax could have
, he was involuntarily intox icated. Whil e invol untary intox ication has been def ined in our

curr ent law a s “intox ication that is not voluntary ,” voluntary intox ication re quires that a substanc e ha s bee n “ kn ow ing ly

int ro du c e d in to t

he pe rs on ’s bo dy .” T. C.A . § § 3 9- 11 -5 03 (d )( 2) , ( 3) . T his
sug g ests that involunta ry i n t ox ication re quires that the ing estion of a substanc e is not “knowing ,” but rather attributable to a “mist ake, trick, acc ident, or coe rcion.” Lay ne v . S tat e , 531 S.W .2d 802, 803 (Tenn. Crim. App. 1975) . There fore , we c annot conc lude the De fenda nt’s voluntary taking of a medication, to which he alleg es he ha d an adve rse r eac tion, constitut es involuntary intox ication. The De fenda

nt is not entit led to relief

on this iss ue.

2. Adequate P rovocat ion

Th e De fe ndant nex t c on te nd s th a t a state of pa ssi on by a de qu a te pr ov oc a tio n s uf fi c ie nt t o lead a rea sonable pe rson to act in a n irrational manner was prese nt in this case, a nd he should have
, there fore , been c onvicted of voluntar y manslaug hter. See T

. C .A. § 39-13-211 ( 2005). B efor e deliberating, the jur

y rec eived a

ppropriate instructions on the elements re quired to prove first deg ree murder, se cond deg ree murder, voluntar y manslaug hter, re ckless homicide, and criminally neg lige nt homicide, including the re quisite mens rea fo r e a c h of fe ns e

. B y fi nd ingthe De fe nd ant guil ty of fi rs t de g re e mur de r, the jur

y ob vio us ly

re je c te d th e De fe nd ant’ s c la im that the sh oo tin g oc c ur re d in a state of passion produce d by adequa te provocation. This w as within its province

. See State v . Johnson
, 909 S.W .2d 461, 464 (Tenn. C ri m

. Ap p . 1995). More over, a rational jury

could have conclude d from the testimony

that the Defenda

nt did not kill in a st ate of passion. The Defenda nt is not entitled to relief on this issue.

3. P rem editation

First deg ree murder is the pr emeditated a nd intentional killi ng of another. T.C.A. § 39-13- 202(a) (1) (2 0 0 3 ). “P remeditation” is defined a s “an a ct done a fter the exercise of ref lection and judgme nt.” T.C.A. § 39-13-202( d) (2003). This is a question of fa ct for the jury to determine, a

nd it can be inf

err ed from a number of circ umstances, including: “the use of a deadly wea pon upon an

un arm e d v ic tim ; th e pa

rt ic ula r c ru e lty of the kil lin g ; de c laratio ns by the de fe nd ant o f a

n in te nt t o k ill ; evidenc e of pr ocure ment of a wea pon; prepa

rations bef

ore the killing for c oncea lment of the cr ime; and ca lmness immediately afte r the killing.” State v. Bland , 958 S.W .2d 651, 66 0 (T en n

. 1997). F ur the rm or e , “ e vid e nc e of

re pe a te d b low s is re le va nt t o e sta bli sh pr e me dit a tio n, a lth ou g h th is evidenc e alone is not sufficient to establish preme ditation.” State v. Sims , 45 S.W .3d 1, 8 (Ten n. 2001).

The e vidence in this case, viewe d in the light most favor able to the St at e, prove s that the Def endant sa w Elvis Sells driving on J une 20, 2005. He followed him into the Save-A -L ot, where he eng ag ed him in a ver

bal conf rontation. The two met a g ain at a r ealty parking lo t , wh ere they
eng ag ed in a p hy sical conf rontation, during which Elvis Sells maintained the upperha nd until the-15-

fi g ht w a s stop pe d. An tho ny Se lls su bs e qu e ntl y

c a lle d 9 11 a sk ingfo r a ssi sta nc e wi th t he De fe nd a nt. Th e De fe nd ant w e nt h ome , g ot a sh otgun , c a lle d th e vic ti ms ’ mothe r, and le ft to f ind the vic tim s. He saw Anthony Sells driving
, and followed him, ramming the back of his truck on one occa ssion. He fo llo we d A nth on y

Se lls to City Ha ll, wh e re An tho ny Se lls g ot out of his tr uc k w itha

sti c k in his hand. The Def

endant ex i t ed h is car w ith the shotgun, a nd Anthony

Sells turned awa

y from the De fe nd ant. Th e De fe nd ant sho t Anth on y Se lls mul tip le tim e s in the ba c k. He the n s ho t E lvi s Se lls
, who was sitting in his own vehicle, multiple times. He then be at Elvis Sells i n the hea d with a lead pip e . We c on c lud e that the se fa c ts a re c le arl y su ff ic ie nt t o s up po rt

c on vic tio ns fo r p re me dit a te d f ir st deg ree murder

B. Flight Instruction

Th e De fe nd ant n e xt co nte nd s th a t th e tr ia l c ourt e rr e d w he n it ins tr

uc te d the jur

y on fl ig ht. He argue s tha t, be c a

us e he a dmi tte d to shoo tin g the vic tim s bef or e the jur

y wa s in str uc te d, the on ly issue befor e them wa s the deg ree o f h o m i ci d e an d not his identit y . The State submits that the Def endant wa ived any

challenge t o t h e jury

instructions by

failing to make a c ontemporane ous objection. See Tenn. R. App. P. 36(a)

. I n the alternative, t he S tate asserts that the instruction was
proper

.

The trial c ourt has a duty “to give a complete charg e of the l aw a pplicable to the f

acts of a

case .” State v. Harbison , 7 04 S.W. 2d 31 4, 31 9 ( Te nn . 1 98 6) ; accord State v . Forbes , 793 S.W .2d 23 6, 24 9 ( Te nn . 1 99 0) ; se e als o Tenn. R.Crim. P. 30. “In order for a trial court to cha

rg e the jury on flig ht as an infe renc e of gui l t, there must be suff icient evidenc e to support such instruction.” Sta te v . B e rry , 141 S.W .3d 549, 588 (Tenn. 2004)

. Sufficient evidenc e to suppor t such an instruction require s “‘both a le aving the sce ne of the difficulty and a subse quent hiding out, e v asi on, or

conce alment i n the community .’” State v. Burns , 979 S.W .2d 276, 289-90 (Te nn.1998) (quoting State v. Pay ton , 782 S.W .2d 490, 498 (Tenn. Crim. App. 1989) ). Our Supreme Court has held that “[a] flight instruction is not prohibited when ther e ar e multiple motives for flig ht” and that “ [a] defe ndant’s spec ific intent for f leeinga sce ne is a jury

question.” Be rry , 141 S.W .3d at 588.

Addre ssing this issue on its merits, we conc lude that there was suff icient evidenc e to war

rant a flig ht instruction. The Def endant shot both of the vict i m s , and then he left the sce ne of the shooting in his car

. He drove hi s car to a re mote location and hid in the woods until the following day . He lef

t the woods, wher e he w as see n and ar rested by law enf orce ment

. I n our view, the evidenc e at tria l established both a “leaving the scene ” and a “hidingout” suffic ient to warr ant an instruction on flight. In conseque nce, the trial court did not er r by providing the instruction.

III. Conclusi on

B a se d up on the fo re g oin g re a so nin g and a uth or iti e s, we a ff

ir m the De fe nd ant’ s c on vic tio ns

.

________________________________ ROBERT W. WEDEMEYER, J UDGE-16-