### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs O ct obe r 4, 200 5
STA TE OF TEN NES SEE v. CO REY MOT EN

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. 01-07148 Chris Cr aft, Jud ge

No. W2004-02896-C CA-R 3-CD - F iled Janu ary 26, 2006

The de fendant, Corey

Moten, was c onvicted of se cond deg ree murder, a C l ass A felony , and sentenc ed as a

violent offende r to twenty y ea rs i n the Depa rtment of Corre ction. On appe al, he
arg ue s th a t th e e vid e nc e is i ns uf fi c ie nt t o s up po rt

his c on vic tio n a ndthat th e tr ia l c ou rt e rr e d in g ivi ng a se qu e nti a l ju ry

ins truc tio n. F oll ow ing ou r r e vie w, we a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

A L AN E. G L EN N , J ., del i v er ed t he opinion of the c ourt, in which D AVI D H. W EL L ES and J ER R Y L. S MI TH , J J ., joined.

Ma rv in B a lli n (at tri a l) a ndB lake D. B a lli n ( on app e a l) , M e mph is, Te nn e sse e , f or the app e lla nt, Corey Moten.

Paul G . Su mme rs , A tto rn e y Ge ne ra l a nd Re po rt e r; Ra c he l E . Wil lis , A ssi stant A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and Stephe n P. J ones, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee
. OP IN ION

F AC TS

At the def endant’ s Aug ust 2-4, 2004, trial, Maria Gauntlett, t he victim ’s s ister, testified that the victim was t hirty -one y ear s old at t he ti me of her death and had been m arried t o the def endant betwee n five a nd seven y ear s.
Offic er Tim Monistere testified that he r esponded to a “wounde d party ” ca ll sometim e af ter
m i d n i g h to n F e b ru ar y 2 , 2 0 0 1 , a tt h e r e s i d e n c e o f t h e d e f e n d a n ta n d t h e v i c t i m i n S h e l b y C o u n t y. Emerg ency

medical pe rsonnel advise d Monistere that the vic t i m , Orc hid Moten, was dea d. The de fe nd a nt , w h o ap p e ar e d “ p r e t t y c a l ma n d q u i e ta c t i n g , ” t o l d M o n i s t e r e t h a th e h a d arr i v e d h ome from work around 12:44 a .m., f ound the victim with a wound to he r neck in the laundry room, and-2-

called the police. Of

fice r Monistere de scribed the victim’s appea ranc e: “[S] he wa s lay ing [sic] on her ba ck on the f

loor. There was blood a

round her he ad. And ther e wa s a towel like ove r her head and nec k are a. He r pants we re c ompletely off e x cept for one portion of the pants and he r shirt was like torn off of

her. It was kind of partially hang ing on he r.”

Se rg e a nt M ark

Re wa lt t e sti fi e d th a t he ma de ph oto g ra ph s a nd c oll e c te d ev ide nc e a t the c ri me sc e ne . H e ide nti fi e d a dia g ram he ha d ma de of the sc e ne , a s w e ll a s p ho tog ra ph s o f v ari ou s it e ms, including a “turne d-over ”curio c abinet, a bloody ny lon rope, a

short telephone c ord with conne ctors on both ends, a set of

key s, th e k i t ch en wi n d o w mini bli nds found ly ing in the sink, a nd a g ree n Army jacke t. Serg eant Rew alt found two cor ds coming out of the telephone : o n e t h at was cut or torn that ran dow n to the dining r oom and another o n e t h at ra n “a long to the living room and it’s
connec ted to another

extension and going into a wall.” He sa id that “utensils used to smoke cra ck along with a cig are tte lighter ” we re f ound in the dry er and that bloodstains were found only in the laundry room.
L ieutenant Ve nnes Owe ns testified that when he arrived at the c rime sce ne between 2:00 and 3:00 a.m., the def

endant told him he “ha d come home f rom work a nd found his wife in the ba ck of the house de ad.” Lieutenant Ow ens obs er ved “a lot of disarray ” inside the house. T he def endant subsequently

was taken to the police station where he sig ned a w aiver of rig hts and a c onsent form to searc h his residenc e. The case was a s signe d to Serg eant Ashton, a nd Lieutenant Ow ens and Serg eant Shemwe ll returned to the c rime scene whe re the y “identified a ll the knives in the house and left them there ” and c ollected a spong e. Captain J ames L

. Fitzpatrick testified that Serg eant Wil liam A shton w as the case coordinator bu t w a s u na va ila

ble to t e sti fy

be c aus e he wa s c ur

re ntl y on act ive d uty

in the Un ite d St a te s Co a st Guar d Reserve s. Captain Fitzpatrick said he pa rticipated in the interview o f t h e d ef endant which beg an ar ound 11:45 a.m. on Fe bruary 2, 2001. Fitzpatrick knew that the defe ndant alre ady had bee n a dv ise d o f h is rig hts a ndsa id that th e de fe nd a nt s ig ne d a wa ive r of ri g hts

. Th e de fe nd a nt i nit ia lly told the office rs that, when he arrived home at about 12:30 a .m., the door wa s unlocked. He said he fo un d h is w if

e in the laun dry ro om, loc ke d his do g in a ro om, a nd

c a lle d 9 -1 -1 . T he de fe nd a nt a lso said that one of the telephones ha d b ee n “j er k ed” from the wa ll. During the interview , Serg eant Ashton rec eived a

call fr om Serg eant Shemwell who advised that “a little re ctang ular pot scr ubber that had bee n used” to c lean up blood had be en found at the crime scene
. Captain Fitzpatrick then confr onted the def

endant a bout the inconsistences in what he had told the officers and the evidenc e that had been collected. When the officers questioned the defendant about the sponge , he admitted that he had use d the spong e “to c lean up the blood a nd then had rinsed it out and had plac ed it in a dish which is exactly

wher e it had bee n found.”

Asked if the de fendant later “ chang e[d] his story ,” Captain F itz patrick r eplied:

And we c onfronted him with them one afte r another brea king down the initial sto ry that heha d to ld. He ha d be e n c a lm u p u nti l a c e rt a in p oin t a ndthe n it ’s a lmo st as y ou see on Per

ry Mason. Once this information beg an to build up and b uild up-3-

and build up and then he broke down and admitted that he had be en the pe rson who had inflicted the injuries on Mrs. Moten.

The defe ndant’s statement was reduc ed to w riting, and the defe ndant signe d it. In his statement, the defe ndant said he had “cut [t he victim ] with a kit chen knife,” which he described as a “ste ak knife siz e” w ith “a brow n wooden ha ndle.” Aske d what had c aused the alterc ation betwee n him and the victim, the defe ndant re plied:

Wel l, wh e n I

g o th o m e , m y

n e i g h b o r n e xt d o o r , B u d d y , t o l d m e t h a ts o me people ha d been g oing in a nd out of the house e arlier that day

. When I

went in, I let the dog in the house and put the dog in the room that she slee ps in. I asked he r why ha d p e op le be e n g oin g in a nd ou t of thi s ho us e a nd y ou kn ow I do n’ t li ke pe op le in thi s h ou se wh e n I ’m

no t he re . Sh e tol d me that th ere ha dn ’t be e n n ob od y

in this house and I told he r that she wa s ly ing be cause Buddy had told me that he ha d seen people g oing in a nd out of the house. She told me that he was ly ing and I told her, “[Y]ea, rig ht. I

don’t believey ou” and I we n t t o t h e bathroom to use it and she
c on fr onted me at th e ba thr oo m do or wh e n I tr ie d to wa lk p a st andsh e g ra bb e d me and I pushed her off of me a nd she fe ll into t he shelf that was sitting by the bathroom door.

After

I p ushed her

I went to the kitchen. I

went to g et something to drink. She kept pulling on my

arm a nd she hit me in the back of my head so I turned a round and hit her in the shoulder . She swung at m e and she m issed and then I g rabbe d her and g rabbe d the cor d on the kitchen counte r and w rappe d it around her neck. T hen I pulled open the kitche n draw er and g rabbe d the kitchen knife . She started pulling
away from me a fter I

wra pped the c ord ar ound her ne ck. She re ached for the ba ck door and ope ned it and I

snatche d her ba ck and I

cut her . Then she f

ell down and started blee ding and I

walked away

and came bac k and tried to cl ea n u p the blood and I clea ned the knife and put it back and I put the s pong e back i nto the dish and I called 9- 1-1.

The de fendant admitted that he had pulled the vi ctim’s pants off “ [t ]o m ake it look like somebody else did it.” He acknow ledg ed that he ha d “knocke d” the blinds off the wall i n the kitchen whe n he put the spong e back. The defe ndant said that he had not w anted to kill the victim be cause he loved her and that he “just snappe d.” Captain F itz patrick sa id the defe ndant never i ndicated that he had killed the victim in self-defe nse or t h at he had be en injured during the alterc ation. Fitzpatrick
a c kn ow le dg e d th a t th e de fe nd a nt h a d b e e n a wa ke fo r at le a st e ig hte e n h ou rs a t th e tim e he g a ve his state me nt.

L ieutenant Robert Shemwell testified t hat he and S erg eant Ve nnes Owe ns were instructed t o s ea rc h fo r b l o o d y

cl o t h i n g att h e c r i m e s c e n e. Al t h o u gh t h eyd i d n o tfi n d an y b l o o d y cl o t h i n g, they found a w et spong e with the “sa me widt h of t he pattern of blood smear pattern that was beside the [victim ’s] bodyon the floor.” Shemwell place d the s pong e beside the blood smear on the floor-4-

and took a photog raph f

or compa rison purposes. He then took the spong e to t h e h o m i cide office wher e he showed it to Serg eant Ashton. Af ter he learned that the de fendant had conf essed to killing the victim, L ieutenant Shemwell returne d to the crime scene to “locate a knife that was possibly used i n t h e mu rd er
. ” T h e o ff

i ce rs h ad re ce i v ed i n fo rm at i o n t h at t h e m u rd erwe ap o n wa s “as erra t ed ed ge kn if e , li ke a ste ak knif

e wi th a wo od e n ha nd le .” Pho tog ra ph s we re ma de of se ve ra l kniv e s f ou ndin a dra wer and one w as collec ted as e vidence . Serg eant Ashton late r showed the collected knife to the defe ndant who verified that it was the knife he had use d to kill t he victim.

Dr. Jennifer L ove, a f

orensic anthropolog ist at the Reg io n a l F o r e n s ic Center of Memphis who
was a cce pted by

the cour t as an e x pert in the fie ld of for en s i c an t h ro pology , testified that she ha d revie wed the vic tim’s autopsy report and had e x amined a f orensic cast made of the cartilage from the victim’s neck r eg ion. She made sample c ut ma rks with the suspect knife, compar ed them to the
c a sti ng s ma de of

the c art ila g e of

the vic tim ’s ne c k, a ndop ine d th a t th e kn if e wa s “ c on sis te nt w ith the knife that was used in terms of the s err ations.” Howeve r, she could not determine if the knife was the a ctual murde r we apon.
Dr. O’ Brian Cle ar y Smit h testified that he pe rformed the autopsy on the victim’s body

on Fe bruary 2, 2001, which re veale d the p re s ence of alc ohol and coc aine in her sy stem. He said the victim died “ as a result of both lig ature strang ulation and cutting of the nec k. Specifica lly with the ligature stra ng ulation there’ s a mark left on the s kin at the front surf ace of the ne ck that is consistent with a narrow cord t hat m easur es about one tenth of an inch.” He de scribed the cuts to the victim’s neck:

I n the front portion of t he neck t here was a series of wounds about five and thr e e qu art e r i nc he s in le ng th a c ro ss the fr on t. An d it wa s no t a sin g le wo un d bu t it
was a conflue nce of at least three wounds in which there wer e – y ou could tell wher e a wo un d wo uld sta

rt a nd the n a no the r wo un d wo uld be g in wi thi n th a t w ou nda ndit
wou l d l eave a jag g ed edg e or ma rg in to the wound indicating that about three or a minium of three passe s of the knife wer e re quired to produce a wound of this ty pe. There w e r e tw o s ma ll s u p e r f ic ia l ab r a s io n s w h e r e th e c u tt in g s u r f a c e o f th e knife ba re ly tou c he d the sk in. I t wa s ju st e no ug h to c ut thr ou g h th e ve ry top la y e rs . T ho se wer e in line with two of the other two cuts. So I think with a fair de g ree of medica l competenc e and c erta inty at a minium of three passes of the knife would ha ve bee n re q u i re d t o p ro d u ce t h e i n j u ri es t o t h e n ec k

. T h o s e i n j u ri es we n td o wn d ee p en o u gh to cut t hroug h the t wo heavy muscles on either side of t he neck .

. . . I n so doing the knife we nt throug h both of the jug ular ve ins, the ex t er n al j u gular ve ins. . . . [ T]he knife proc eede d throug h the windpi pe and the voice box cutting it almost to the rear wall of the w indpipe leaving tool marks prese nt in the cartilage of those tissues.

Asked whic h injury cause d the victim’s de ath, Dr. Smit h opined that either the knife w ounds or the stra ng ulation could have been lethal and said that eac h injury occur red while the victim was still alive. He ag ree d that a cut to the victim could have beg un while she was standing but said she “did not have the extensive damag e to her neck done while she wa s standing up.”-5-

Th e de fe nd a nt d id n ot p re se nt any pr oo f at tria l.
AN AL YSI S
I. Su ff iciency of the Evid ence
The defenda nt arg ues t hat t he evidence is insufficient to support his conviction for sec ond deg ree murder, say ing the proof at trial es t ab l i s h ed that he “was in a state of pa ssion produced by adequate provoc ation sufficie nt to lead a r easona ble per son to act in an irr ational manner .”

I n considering this iss ue, we apply the fa miliar rule that wher e suff iciency of the c onvicting evidenc e is cha lleng ed, the releva nt question of the re viewing court is “whe ther, a fter vie wing the evidenc e in the light most fa vorable to the prosec ution, any rational trier of fa ct could have found the essential e lements of the c rime bey ond a re asonable doubt.” J ackson v. Virg inia, 443 U.S. 307, 3 1 9 , 9 9 S

. C t

. 2 7 8 1 , 2 7 8 9 , 6 1 L

. E d

. 2 d 5 6 0 , 5 7 3 (1 9 7 9 ); s ee al s o T en n
. R

. Ap p
. P

. 1 3 (e ) ( “F i n d i n gs of g uil t in c ri min a l a c tio ns wh e ther by the tr ia l c ou rt

or jury sh a ll b e se t a sid e if

the e vid e nc e is ins uf fi c ie nt t o s up po rt

the fi nd ing s b y

the tr ie r o f f

a c t of g uil t be y on d a

re a so na ble do ub t.” ); State
v. Evans, 838 S.W .2d 185, 190-92 (Tenn. 1992); State v. Ander son, 835 S.W .2d 600, 6 0 4 (Tenn. Crim. App. 1992). All questions involvi ng the cr edibilityof witnesses, the weig ht and value to be g iven the evide nce, and all fac tual issues are resolved by the trier of fa ct. See State v. Pappa s, 754 S.W .2d 620, 623 (Tenn. Crim. App. 1987) . “A g uiltyverdic t by the jury , approve d by

the trial judg e, acc redits the testimony

of the witnesse s for the State and resolves all conflicts in favor of the theory of the State.” St a te v
. G r a c e , 4 9 3 S. W. 2 d 4 7 4 , 4 7 6 ( T e n n
. 1 9 7 3 )

. O u r s u p r e me c o u r t s tate d the rationale for this rule:

This w ell-settled rule rests on a sound foundation. The trial ju d ge a n d t he jury see the witnesses fa ce to f ace , hear their testimony

and observe their de meanor on the stand. Thus the trial judg e and jury are the primary instrumentality

of justice t o d e t e r m i n e t h e w e i g h t a n d c r e d i b i l i t y t o b e g i v e n t o t h e t e s t i m o n y o f w i t n e s s e s
. In the trial for

um alone is there human atmosphere and the to t al i t y o f t he evide nce c a nn ot b e re pr od uc e d w itha writt e n r e c or d inthi s Co urt. Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (c iting Carroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1963)) . A jury convic t i o n remove s the presumption of innoce nce w ith which a defe ndant is initi ally

cloak ed and r eplac es it with one of g uilt, so t hat on appe al, a c onvicted defe ndant has the burden of demonstrating that the evidenc e is insuff icient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

. Second deg ree murder is de fined a s “[ a] k n o wi n g killing of a nother.” Tenn. Code Ann. § 39 -1 3- 21 0( a )( 1) (2 00 3) . “ Kn ow ing ” is d e fi ne d a s:

“Knowing ” ref

ers to a person who a cts knowing ly with respec t to the conduct or to circ umstances surr ounding the conduct when t he person is awa re of the nature-6-

of the c onduct or that the c ircumstance s exi st. A person a cts knowing ly with respec t to a re su lt o f the pe rs on ' s c on duct whe n the p e rs on is a wa re that th e c on du c t is
rea sonably

certain to cause the re sult[ .]

I d. § 39-11-106( a)( 20). Volunt ary manslaug hter is def

ined as “ the intentional or knowing killing of a no the r i n a

state of pa ssi on pr od uc e d b y ade qu a te pr ov oc a tio n s uf fi c ie nt t o le a d a

re a so na ble person to ac t in an irrational manne r.” I d. § 39-13-211( a). “Whether the acts constitute a ‘ knowing killing’ (se cond deg ree murder) or a killing due to ‘ade quate pr ovocation’ ( voluntary manslaug hter) is a question for the jury .” S t at e v . J ohnson, 909 S.W .2d 461, 464 (Tenn. Crim. App. 1995) . To suppo rt a s ec ond deg ree murder c onviction, the State had only to establish that the killing of the victim was knowing bey ond a re asonable doubt. See State v. Summerall, 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995)

. Th e de fe nd a nt a

rg ue s th a t hi s st a te me nt t o p oli c e of fi c e rs e sta bli sh e d th a t he a c te d a s a

re su lt of ade quate pr ovocation. He asserts on appea l that he had rec eived information that the victim was having an af

fair w hile he was at work and that when he confr onted the victim with this i nformation, the vic tim

a ssa ult e d h im. Ac c or din g to the de fe nd a nt, a s a re su lt o f the vic tim ’s a ssa ult up on him and his belief that she was ha ving an aff air, he “we nt into a rag e.” I n his statement, the def endant said his neig hbor had told him “that som e people had been going in and out of t he house earlier that day ”; h e an d t h e victim arg ued about the ne ighbor ’s comment; the ar g ument became phy sical; he
wra pped a c ord ar ound the victim’s neck; the vic tim reac hed for the back door and opened it; and he “ sn a tc he d” the vic tim

ba c k a ndc ut h e r w ith a

kit c he n knif

e . T he se a c tio ns we re su ffici e nt t o su pp ort th e jury ' s f

ind ing that th e de fe nd a nt c omm itt e d a kn ow ing kil lin g of

the vic tim

. II. Sequ ential Jury Instruction

The de fendant arg ues that his rig hts to due proc ess and to a trial by jury wer e violated by

the tr ia l c ou rt ' s in str

uc tin g se qu e nti a lly

a s to se c on d d e g re e mur de r andvo lu ntary ma ns laug hte r, wi th the jury no t to c on sid e r the le sse r o ff e ns e un le ss i t f

ir st d e te rm ine d th a t th e de fe nd a nt w a s n ot g uil ty of sec ond deg ree murder. A ccor ding to the de fendant's a rg ument, “the inst ructions g iven by the trial court a re of the type that fail to fairly

submit t he leg al issues and mislead the jury thus violating the defe ndant’s rig ht to due proce ss and to a trial by jury under the Tenne ssee a nd United States Constit utions.”

De fe nd a nts ha ve a

“ c on sti tut ion a l r ig ht t o a

c or re c t a ndc omp le te c ha

rg e of the la w. ” State v. Tee l, 793 S.W .2d 236, 249 (Tenn. 1990) . Acc ording ly , trial courts have the duty to give “a complete c harg e of the law applica ble to the fa cts of the case .” State v. Dave nport, 973 S.W .2d 283, 287 (Tenn. Crim. App. 1998) (citing State v. Har bison, 704 S.W .2d 314, 319 (Tenn. 1986)). As long as the instructions g iven ar e cor rec t statements of the law and “f ully and fair l y s et forth the applicable law,” the trial court doe s not commit error in “r efus[ing] to give a spec ial instruction req u e s te d b y

a p ar ty

. ” St a te v
. B o h a n a n , 7 4 5 S. W. 2 d 8 9 2 , 8 9 7 ( T e n n
. Crim

. A p p
. 1987). F urthe rm or e , th e re is no re qu ir e me nt that a tria l cou rt be lim ite d to usin g patte rnjury ins truc tio ns
. State v. West, 844 S.W .2d 144, 151 (Tenn. 1992). When review ing c halleng ed jury instructions, we-7-

must look at “the cha

rg e as a whole in de termining whether prejudicia l e rror has been c ommitt ed.” I n re Estate of Elam, 738 S.W.2d 169, 174 ( Tenn. 1987); see also State v. Phipps, 883 S .W.2d 138, 142 (Tenn. Crim. App. 1994)

. I n the pre sent appe al, the trial c ourt instructed the jury on the indicted off

ense of second deg ree murder and the lesser- included offe nses of voluntary manslaug hter, re ckless homicide, a nd crim i n al l yneg lige nt homicide. The trial c ourt also instructed the jury not to consider the lesse rincluded off

enses unless it first ac quitted the defe ndant of the g reater off ense.
I t is settled law that a jury is instructed to consider, in sequential fa shion, first the indicted of fe ns e a ndthe n th e le sse r- inc lud e d o ff e ns e s:
The a ppellan t n ex t contends that the tria l court er red in g iving se quential instructions on first deg ree murd er , second de g ree murder, and voluntary
ma ns laug ht er. We dis a g re e . T his c ou rt ha s r e pe a te dly

up he ld " a c qu itt a l- fi rs t" ins truc tio ns . See State v. Ra ine s, 88 2 S.W.2 d 376 , 381 -8 2 (T e nn . Crim. Ap p. ), pe rm
. to appea l denied, (Te nn. 1994); State v. McPherson, 8 8 2 S.W .2d 365, 375 (Tenn. Crim. App.) , perm. to a

ppeal denied, (Tenn. 1994); State v. Rutherford, 876 S.W.2d 11 8, 11 9- 20 (T e nn . Crim. Ap p. 19 93 ), pe rm . to app e a l de nie d, (T e nn . 1 99 4) ; State v. Be ckham, No. 02C01-9406- CR-00107, 1996 W L 389321 (Tenn. Crim. App., at Jac ks on , Se pt. 27 , 1 99 5) . A c c or din g ly , th is i ssu e is w ith ou t me ri t. State v. Mann, 959 S.W.2d 503, 521 (Tenn. 1997).

Ap plying the ho ldi ng of

Ma nn , we c on c lud e , li ke wi se , th a t th is i ssu e is w ith ou t me ri t.
CO NC LU SION

B a se d u po n th e fo re g oin g auth oriti e s a ndre a so nin g , th e jud g me nt o f the tria l c ou rt is aff irmed.

___________________________________ ALAN E. GL

ENN, JUDGE