### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs N ove m be r 29, 200 5

STATE OF TENNESS EE v . TONY ALLAN PHI PPS

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

No. S45,670 P hylli s H. Miller, Judge

No. E2005-00647-CC A-R3- CD F iled April 5, 2006

On May 31, 2002, following a jury trial, Def endant, Tony Allan Phipps, was convicted of voluntary manslaug hter. De fenda nt w as sentenc ed to se rve eleve n (11) y ear s in the Depa rtment of Corre ction and orde red to pa y a fi n e i n the amount of five thousand ($5000.00) dollar s. Defe ndant filed a motion for new tria l which the trial c ourt g rante d on October 14, 2002. On Aug ust 11, 2004, following another

jury trial, Def endant wa s convicted of re ck l es s homicide, orde red to pa y a five thousand ($5000.00 ) dollar f ine and se ntence d to ten (10) y ear s in the Depa rtment of Corre ction. Def endant a ppeals his conviction for

rec k l es s h o m i cide. In his appea l, Defe ndant ar g ues (1) the evidenc e in the re cord is insuffic ient to sustain a conviction for re ckless homicide; (2) the evidenc e in the rec ord does not support the jury verdic t; (3) the jury

verdic t is contrary

to law and e vidence ;

a nd(4 ) the Sta te did no t pro ve be y on d a re a so na ble do ub t tha t D e fe nd a nt d id n ot a c t in se lf -d e fe ns e

as require d by Tenne ssee Code Annotated section 39-11-611( b) (2003). The judgme nt of the trial court is af firmed.

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

T H O M A S T. W O O D A LL , J

. , d el i v ered the opinion of the court, in which G AR Y R. W ADE , P.J
., and J OS EP H M. T I PTON , J ., joined.

L arry R. D ill ow , K ing sp ort, T e nn e sse e , a tto rn e y fo r the app e lla nt, To ny

Al la n Ph ipp s.

Pau l G. S ummers, Attorney Gene ral a nd Reporter ; L eslie Price, A ssistant Attorney Gene ral; H. Gr e e le y Wel ls, Jr., Di stric t A tto rn e y Ge ne ra l; B arry

P. St a ub us , As sis ta nt D ist ri c t A tto rn e y

Ge ne ra l; J oseph Eug ene Per

rin, Assistant District Attorney Gene ral; and B rian Todd M a r ti n , A s s is ta

n t D is tr ic t Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I. F ac tu al B ac kgr ound

L i n d a W i l l i a m s M i l l e r

t e s t i f i e d t h a t h e r s o n , t h e v i c t i m , W a l l a c e R a y W i l l i a m s , w a s t h i r t yfive y ear s old at the time of his de ath. Def endant and the victim were childhood friends. D efe ndant-2-

and the victim later lived toge ther in a house on Newborn Road in Kingsport, T ennesse e. Ms. Mill er went to visit her son at his house on Ne wborn, a pproxi mately

two wee ks prior to his death.

Du ri ng thi s v isi t, D e fe nd a nt a sk e d to sp e ak to Ms. Mil le r p ri va tely

. Defen dan t to ld M s. Mil le r that the vic tim c la ime d De fe nd a nt ow e d him mon e y

. De fe nd a nt cl a ime d to ha ve a lr e a dy pa id his de bt t o th e vic tim . T he vic tim c la ime d th a t D e fe nd a nt h a d n ot g ive n h im the en tire a mou nt. Def endant showe d Ms. Miller a piece of paper the victim ha d g iven him. The paper had number s on it, indicating Def

endant sti ll owed the vic tim two hundred dollars. De fenda nt denied owing the victim any

money

. Def

endant never told Ms. Miller that the vi ctim threa tened him over the money

or that th e y ha d a ny oth e r p ro ble ms r e la te d to the money

. As the c on ve rs a tio n e nd e d, the vic tim

re turne d h ome . M s. Mil le r d id n ot not ic e a ny sig nif ic a nc e abo ut the dis po sit ion of e ith e r the vic tim or De fenda nt.

After his arriva l, Ms. Miller visited with her son for approxi mately five mi nutes. He did not
say anything a

bout Defe ndant owing him money . As she wa s leaving , she spoke to De fenda nt ag ain. H e w a s p r e p ar i n g t o t ak e a n i n s u l i n s h o t a n d t o l d h e r t h a t h e w a s t ak i n g t h r e e o r f o u r s h o t s a

d a y. S h e i n s t ru ct ed t h e v i ct i m , “R ayy o u 'l l h av e t o h el p t ak e c ar e o f T o n y , ” a n d De fe n d an t s ai d
, “R ay 's okay ,” and the n the victim sa id, “ Tony and I are buddies are n' t w e Tony ? ” and Def endant r esponded, “Ye ah.” Ms. Miller did not detec t any animosity or hatred betwe en the men during this conve rsation. As far as Ms. Miller was awar e, Defenda nt and the victim wer e on friendly terms rig ht up until t he time of the victim' s death. She said she was a war e that De fenda nt had a c ell phone.

Amanda K

risten B ortz testif

i ed t hat she wa s twenty -four y ear s old. She attended a nd
g raduated from Dobbyns-B ennett hig h school in 199 8

. At t h e t ime of trial, Ms. B ortz was incar cer ated at the J ohnson Cityjail for women prisoners. She wa s serving a two-y ear sentenc e af

ter pleading g uiltyon J anuary 10, 2 003, to fac ilitating the commission of a burg lary , theft over five hundred dollar s, and two counts of f orger y

. I n S eptember 2001, Ms. Bor tz was livi ng at 1656 Ne wb o rn R o ad
, Ki n gs p o rt , S u l l i v an C o u n t y , T en n es s ee

. T h e h o m e b el o n ged t o h erb o y fr i en d 's mother, Sy lvia Darnell L y ons, who l ived i n the hom e. He r boy friend, Josh Darne ll, also lived in the home, along with his brother, Jason S ean Christian. B oth the v i cti m and Def endant lived in the house as well. The victim wa s also dating one of Ms. Ly ons' s children, Sabrina Christian. At the time of the victim' s death, Ms. Christian was inca rce rate d at the Johnson C ity jail.

The house ha d four be drooms and one a nd a half bathrooms. The kitchen, bathr ooms, livi ng

room , a n d la

u n d r y r o o m w e r e s h ar e d b y th e o c c u p a n ts

. T h e li v in g r o o m is th e f ir s t room entere d fr om the fr on t do or . B e y on d th e liv ing ro om, the re is a ha llw a y le a din g to b e dr oo ms, the ba thr oo m, and the kitchen. Def

endant occupie d the front rig ht be droom. The door to his room was construc ted of metal a nd had slats that looked like vertical blinds but did not move. The door was flimsy and it was missing the h an d l e. De fe n dant kept the door closed by

using a n old coat hang er a nd wire. Th e do or didno t st a y

c los e d w ith ou t th e c oa t hang ar andwi re . M s. B ortz kn e w tha t it w a s e a sy to hear throug h the door be cause she had c onducted c onversations with Def endant while she was in the living room a nd he wa s inside his bedroom with the door closed.-3-

At the time of the incide nt, Ms. Bortz had been l iving at the residence for about three or four months. S he wa s awa

re of the fac t that the victim ha d g iven Def endant some money

. This fac t was

common knowledg e within the house. Ms. Bortz never hea rd De fenda nt and the victim arg ue over the money . She was not aw are of any problems betwe en the men, nor wa s she aw are of fig hts or heate d arg uments that had occ urre d prior to the incident.

On the eve ning of

September 9, 2001, Ms. B ortz and the victim dropped off her boy friend at the Johnson C ity

jail to serve a

wee kend in jail. Ms. Bortz and the victim then went riding around,

a ndwh e n th e y

re turne d to t

he ho us e , th e y

pic ke d u p M r. Christ ia n a ndwe nt t o a sp orts b ar f

or so me dr ink s. Th e sp orts bar wa s thr e e or fo ur hu nd re d f

e e t f ro m th e re sid e nc e . M s. B ortz ha d tw o b e e rs

. Mr. Christian and the victim order ed a p i tcher . Mr. Christian had bee n drinking all day , but the victim had not an d wa s not intox icated at that time. Ms. Bortz decided to lea ve first, but she int e nd e d to re turn to the ba r. She wa s sp e nd ing the nig ht w ith a frie nd a nd ne e de d to go ho me fi rs t. She had no intentions of stay ing at the Newborn residenc e that night beca use her boy friend was not there . Mr. Christian decide d to g o with her and the t wo of them left i n the ca r. The vic tim walked back to the house shortly

there afte r.

Ms. B ortz he ard the victim return to the house around 2:00 a .m. She hear d a knock on the door, and she hear d Ms. L y ons respond that she didn't feel li ke company . She did not realize it was the vic tim kn oc kin g un til he e nte re d the ho us e

. Ms. B ortz sa id it wa s c omm on fo r c omp a ny to c ome and g o at the house during suc h hours. M s. Bortz had known the victim for y ear s and did not think he app e are d d ru nk

wh e n h e e nte re d the ho us e

. He we nt int o the kit c he n an d b e g a n ta lki ng to M s. L y o n s

. S h e w as co m p l ai n i n g ab o u t m o n ey an d s ay i n g t h at ev er y o n e s t ay ed t h er e a n d t o o k ad v an t age of the ho us e , b ut n o o ne pa id h e r a ny mo ney . T he y arg ue d f or se ve ra l mi nu te s o ve r m on e y . M s. Bortz obs erve d the ar g ument from the ha llway looking into the kit chen. She sa id it was common for a rg uments over money

to take plac e in the house. She said that Ms. L y ons alway s wanted mone y and that she had a s er i o u s drug problem. Ms. Ly ons was alway s picking fig hts with people over

mon e y a ndsh e , in e sse nc e , h a d a sim ila r f ig ht with just

abo ut e ve ry on e in the ho us e . D ur ing the se fig hts, it was common for people to ge t very upset and c urse e ach othe r.
As this particular f

ight pr og resse d, the victim got ve ry up s et and loud and the arg ument

esca lated. During the ar g ument, the victim said that Defe ndant owed him money and he w ould ge t De fe nd a nt t o g ive him

the mon e y that he ow e d h im. Th e vic tim the n le ft the kit c he n, c ha

rg e d p a st Ms. Bortz, and said “I ' m g oing to g et m y money .” The victim started y elling Defe ndant' s name. He
y e lle d o ut D e fe nd a nt' s n a me tw o o r thr e e tim e s in a vo ic e lou d e no ug h f or De fe nd a nt t o h e ar. Ms. B ortz di d n ot h e ar D e fe nd a nt r e sp on d to the vic tim , b ut s he he ardthe no ise fr om the te le vis ion in Def endant' s room. At this point , the victim was mad a nd irate and the arg ument had bee n g oing on for six or seven minutes. Acc ording to Ms. Bortz, Defe nd an t wo u l d have be en able to hear the victim y elling a nd hear

every thing that wa s said during the arg ument. The victim gr abbed some thing and starte d shaking Def

endant' s bedroom door. The victim then y elled, “B ring y o u r p unk ass out here . We need to talk.” The victim shook the door a g ain, and the door opened towa

rds him. As the vic tim sta rt e d in to the be dr oo m, De fe nd a nt sh ot him

. Ac c or din g to Ms. B ortz, the vic tim ne ve r s a id

“ I ' m g oin g to c ome in a ndbe a t y ou ,” or “ I ' m g oin g to c ome in a nd take my mon e y ,” or

a nythi ng e lse to that effe ct.-4-

Ms. Bortz was standing in the doorwa y of the living room when the victim was s h o t. She could see most of the inside of Def endant' s bedroom, and she could see Def endant. Def

endant wa s standing next t o his bed and a iming the g un toward the bedroom door. The victim did not have any

we apo ns or

oth e r ob jec ts in his ha nd s. Ms. B ortz said tha t a ft e r the sh ot w a s f ir e d, the vic tim stumbled into Defenda nt's r oom “doubled over in pain.” The victim turne d toward the door to lea ve the ro om, a ndDe fe nd a nt s ho t hi m a g a in i n h is s ide . “ Ma y be a se c on d” pa sse d b e tw e e n e a c h s ho t. The victim neve r struck, g rabbe d, or choke d Def endant. Ms. B ortz was u n aw are that Def endant owned a g un, and she did not hea

r him announce that he had a g un that night.

After the victim was shot, Def

endant c ame out of the bedroom a nd told Ms. Bortz to call 9-1- 1. She went to find the cordless phone so that she could make the call. At this point , Mr. Christian

c a me ins ide fr om be hin d the ho us e be c a us e he he ard the g un sh ots . H e tr ie d to he lp the vic tim un til the emer g ency

medical pe ople ar

rived to take over. Ms. B ortz said that Def endant had a c ell phone, and she kne w it to be an oper ational ce ll phone which he ke pt with him.

On cross-examination, Ms. Bortz admitted that there was a lway s a lot of ar g uing at the house, but Defe ndant was a lmost neve r involved in it. She said that De fenda nt primarily stay ed in his room while h e w a s h o me

. I f D e f e n d a n t w a s s le e p in g , th e d o o r to h is r o o m w a s g e n e r a ll yclosed a nd

se c ur e d w ith a

c oa t ha ng ar. He c a me ou t of his ro om oc c a sio na lly
, a nd sh e fe lt fr e e to g o in to h is room, but she neve r wen t into his room ang ry . She had also see n the victim in Defe ndant’s room

a t tim e s wh e n the y we re no t a ng ry or fi g hti ng

. She a c kn ow le dg e d th a t on the nig ht o f the inc ide nt, the victim was loud, he was furious, he had drank approximately a pitcher and a ha lf of bee r, and he was on “ dope” w hen he c harg ed towar d Def endant’ s room to ge t his mone y . She said that when Def endant c ame out of the bedroom he said, “I did what I

had to do.” She said she wa s not scare d of t he vi c ti m’ s a n g e r

d u r in g th e in c id e n t b e c a u s e s h e k n e w h im w e ll e n o u g h n o t t o b e f

r ig h te n e d.

Of fi c e r M ark Mas on , an inv e sti g a tor wi th the Ki ng sp ort Po lic e De pa rt me nt, wa s c a lle d to the sce ne at the N ewborn Road reside nce on Septe mber 10, 2001. Of fi ce r M as o n arrived at the

scene at appr ox imately

2:45 a.m. When he arrived, ther e we re a lrea dy office rs at the sc ene w ho wer e

securing the premises by ensuring that the crime scene was not dist u rb ed

. Of fi cer Mason took photogr aphs and c ollected e vidence at the scene

. He identifie d these photog raphs at trial, and they

wer e introduce d into evidence . He a lso identified the re volver us ed b y Defendant to shoot the vic tim , a s w ell as th e tw o b ull e ts the ho sp ita l r e mov e d f ro m th e vic tim ’s bo dy . H e lik e wi se described the lay out of the home, and the manner in w hich Def endant’ s door opened and close d. He confirme d that the door ope ned into the hall way and that it was ke pt closed by wire a nd a coat hang er. The bedroom itself mea sured e leven f eet by seven and a half fee t. He could not testify as to whether the vi ctim had been s hot as he was movi ng forwa rd i nto the room beca

use t he body

was

remove d from the sc ene be fore he ar rived.

Detec tive David Cole of the Kingsport Police Depa rtment, Criminal I nvestig ations Division,

arrived at appr ox imately

3:00 a.m. The scene was secur e when he arrived, and Detec tive Mason was

a lr e a dy wo rking to c oll e c t e vid e nc e a ndtake ph oto g ra ph s. De te c tiv e Col e fa mil iari zedhim se lf wi th the sce ne and conducte d interviews with the wit nesses. He later re viewed a nd analy zed the evidenc e-5-

c oll e c te d b y

De te c tiv e Ma so n. He tes ti fi ed reg ard ing se ve ra l r e c e ipt s th a t ha d b e e n ta ke n f ro m a notebook belong ing to De fenda nt. T he first rec eipt was written on notebook pa per. It was sig ned by the victim and re fer

red to a debt betwe en De fenda nt and the victim. The ne x t rec eipt was fr om Toy Trains Antiques at 214 East Marke t Street in King sport. This un d at ed rec eipt was for the purcha se of a

Traditions, 1851 Colt 44 “copy ” re volver, se ri al number 456568. The re w as also a

re c e ipt fr om E a g le Arms a ndAm mun iti on , a lso loc a te d at 214 Ea st Mark e t Stre e t in Ki ng sp ort. T his

rec eipt was da ted Aug ust 16, 2001, and was f or an “ 1851 44" ste el frame re volver wit h t he serial

nu mbe r 4 61 56 8. Th e se ri a l nu mbe r o f the re vo lve r use d in the ho mic ide wa s n ot i de nti fi e d a t tria l. Finally , there was a n entry in the notebook conc erning money paid and owe d to Ms. L y ons.

Detec tive Cole attended a course on basic blood st ain analy sis in Miami, Florida, in Marc h 20 01
, a nd in Ma y

20 04 , h e a tte nd e d a n a dv a nc e d f or ty -h ou r s c ho ol f

or fu rthe r t raini ng . T he sc ho ols train on the i dentifica tion of bl ood, blood staining, and blood spattering . Detec tive Cole analy zed the bed c overing that was on De fenda nt’s bed the night of the incide nt. The bed c overing reve aled stains from human blood on the end of the cove r loca ted closest to Def endant’ s bedroom door. The flooring surrounding D ef endant’s bed also conta ined stains consistent with human blood. Photogra phs introduced into evidenc e illust rate d both the blood on the bed cove ring and on the f loor.

On cr oss-examination, Detective Cole sa id that no photogr aphs we re taken of the vi ctim at the crime scene . The victim was still alive wh en medical personne l arrive d, and they had alr eady

remove d the victim prior to the detective’s arrival. Thus, he could not view the body to determine whether the victim had bee n char g ing into the room. He ex plained that life saving takes priority over

every thing e lse. He a cknowledg ed that he a rrived a n hour af

ter the shooting an d d id not know whethe r t h e bed cove ring had bee n moved since the shooting oc curr ed. Howe ver, the re w as no ind ic a tio n th a t it s p os iti on ha d be e n c ha ng e d sin c e the tim e of the sh oo tin g . T he re wa s a pla sti c c ha ir place d on Def

endant’ s bed, and D etec tive Cole initi ally testified that he d i d n o t k n o w how it g ot there

.

De t ec t i v e C o l e s ai d t h a t a c c o r d i n g t o t h e w i t n es s es , i m m ed i at el y p re ce d i n g t h e s h o o t i n g, De fe nd a nt d id n ot c ome out of hi s bed ro om, no r d id the y he ar a nythi ng c omi ng fr om i ns ide his bedroom. He verif

ied Ms. Bortz’ statement that the victim charg ed past he r and je rked ope n Defen d an t’s bedroom door w hich was se cure d by a coat hang er. The victim weig hed about one hundred a nd eig hty

pounds, and De fenda nt weig ht a pproxi mately one hundred pounds. De tective Cole ag ree d that the victim w as blocking the only exit from the r oom. Detec tive Cole was aw are that Def endant wa s a diabe tic beca use t he notebook taken from the s cene contained a rec ord of his blood
sug ar le vel. He a lso knew that De fenda nt wore g lasses.

On re-direc t examination, Detec tive Cole said that the emer g ency medical tec hnicians we re allowed to r emove the body prior to the investigation in case there was a chanc e the victim c ould be revive d or re suscitated. The victim actua lly died at the hos pital some time later. He explained that the King sport Police Depa rtment does not bring bodies bac k to cr i m e scene s for the pur pose of taking photogr aphs. Nor do the y stag e dummy

bodies for tha t purpose. Detec tive Cole expl ained that “sec uring the sce ne” me ans that off icer s arrive and make sure that no one g oes i n and out of the-6-

crime sc ene unle ss it is a member of the police department. All officer s are trained in thi s proce dure, and the purpose i s to prese rve evidence and maintain the conditi on of the c rime sce ne. The scene

re ma ins se c ur e un til the of fi c e rs ha ve c on c lude d th e ir inv e sti g a tio n. Th e of

fi c e rs fo llo w c e rt a in
pr oto c ol wh e n a c ri me is c omm itt e d a nde a c h in ve sti g a tin g of fi c e r h a s a sp e c if ic du ty . O ne sp e c if

ic person is usually

responsible for

photogr aphs and the collection of evidenc e, and in this case it was Detec tive Mason.

When Detec tive Cole arrived at the scene he found the sce ne to be se cure . Def endant ha d been ta ken int o custody , and De tective Cole wa s unawa re of any time that Defe ndant was a llowed back int o t h e ro o m for the pur pose of making up his bed. Neither the detec tive, serg eant, nor

emer g ency

medical tec hnicians had a ny responsibility for making up Def endant’ s bed. There wer e no stains on the top or side of the bedsprea d consistent with the vi ctim having fallen on top of the bed. The re w as no blood spatter in the area where the firearm wa s found. No civilians or non- law

e nf or c e me nt o ff

ic e rs we re a llo we d to c ome into Defend a nt’ s b e dr oo m du ri ng the of fi c e rs ’ investigation. On re-c ross examination, Detective Cole c larified his earlier testimonyand stated tha t the e me rg e nc y

me dic a l te c hn ic ia ns ha d pla c e d the pla sti c c ha ir on the be d. He a dmi tte d th a t he did not ask any

of the witnesse s or technic ians if they made up the be d.

Robert Roy se testified that he has bee n employ ed at the Tennessee Bure au of I nvestig ation Cr ime L abo ratory

in N ash vi ll e, Tenne sse e , s inc e 19 82 . H e is a sp e c ia l a g e nt f

or e ns ic sc ie nti st sp e c ia lizin g in the are a

of fi re arm s id e nti fi c a tio n. He g ra du a te d f ro m D a vidL ips c omb Col le g e in Nashville, Ten n es s ee , with a B .S. in biochemistry . He we nt throug h formal on the job tra ining pursuant to the guidelines set forth by the Association of Firearm and Tool Mark Ex aminers. He has been qua lified as an e x pert in the fie ld of fire arms identification in the St ate of Tenne ssee.

F ir e arm s id e nti fi c a tio n d e a ls w ith the “ e xami na tio n o f f ir e d b ull e ts, fi re d c art

ri dg e c a se s, fi re d s ho t sh e ll c a se s a ndoth e r a mmu nit io n com pone nts .” Th e pu rp os e of the e xami na tio n is to determine which spec ific fire arm fir ed the ammunition to the exclusion of a ll other fire arms. Mr. Roy se also per forms muzz le to g arme nt dist an ce determinations, tool mark examinations, serial number re storations, and e x am i n es weapons and their safe ty features to determine if they are functional. I f a w eapon is not func tional, he determines why not.

Mr. Ro y s e e xa mi n e d a

. 4 4 c a li b e r

p e r c u s s io n r e v o lv e r

ta k e n f r o m D e f e n d a n t’ s p o s s e s sion and submitted to him bythe King sport Police Depa rtment. He a lso ex amined two spherical lea d projec t i les and a

blue t-shirt taken f

rom the victim. He e x plained that the r evolver was a n I talian
repr oduction of a Colt Model 1851 Percussion 44 ca liber revolve r. The w eapon submitted by the police for examination had two empty chambe rs and four

loaded c hamber s. I t was a sing le ac tion revolve r commonly

known as a

“blac k powder wea

pon” or “handg un.” Single action mea ns that the ha mme r o f the g un mu st be pu lle d b a c k p ri or to e a c h ti me the g un is f ir e d. B e c a us e the g un is a “blac k powder ” we apon, a lot of smoke is re lease d eac h time the g un is fired.

“Perc ussion” revolve rs differ from most modern firea rms in that the ammunition is loaded into the front of the c hamber s of the cy lin d er an d m o s t modern fire arms ar e loade d from the r ear

.-7-

The we apon has six chambe rs in the cy linder in which to load a mmuniti on. The bullets ar e loade d into the weapon by

pouring black powder or py rodex into t he fr ont chamber s and then plac ing the bullets in the chamber. The bull et must be pushed down into the chamber using the loading lever beca use the diame ter of the bullet exceeds that of the c hamber . The bullet must also be lubricated to preve nt chain fire . Chain fire oc curs whe n the g un is fi re d a s i n g le time and more than one chambe r dischar g es at the sa me time. Once the bullet is loaded, a pe rcussion ca p, the source of the ignition, is place d on the re ar of eac h chambe r of the c y linder to cause firing of the re volver.

Dr. Roy se test fire d the wea pon and made a compa

rison to the two spherica l projectiles take n from the victim’s body

. Dr. Roy se determined t hat t he bull ets taken f rom the victim’s body

had the

same c lass char acte ristics and similar individual chara cteristics as the tes t bullets fired fr om the revolve r. B eca

use of the nature of the projec tile and the re volver, how ev er , Dr . Roy se could not conclusively

determine that the bullets taken fr om the victim’s body wer e fire d from the r evolver

.

Dr . Ro y se a lso c on du c te d a muzzl e to g arm e nt di st ance de te rm inatio n o n th e blu e t- sh irt. The purpose of this test was t o determine how fa r the we apon wa s from the victim wea ring the
g arm e nt a t the tim e the we apo n wa s fi re d. B e c a us e of the ty pe of we apo n u se d, the re su lts of thi s test were inconclusive. There was nothing the police could have done in the handling of the t-shirt wh ic h c ou ld h a ve re su lte d in c on c lus ive re su lts

.

Dr

. Gr e te l Ha

rl a n Ste ph e ns te sti fi e d that sh e is a fo re ns ic pa tho log ist e mpl oy e d b y

the Sta te of Tenne ssee at East Tenne ssee State Unive rsity ’s Quillen College of Medicine . She g raduated from the University of Tenne ssee, Knoxville, Memphis S tate Univer sity and the Unive rsity

of Tenne ssee Medica l School. She did an anatomic and c linical p at h o logy residenc y

at the Univer sityof T e n n e s s e e a n d C i t y o f M e m p h i s H o s p i t a l s a n d i s b o ar d c e r t i f i e d i n a n a t o m i c a n d c l i n i c a l p a t h o l o g y. She wo rk e d p ri mari ly

a s a ho sp ita l patho log ist

fo r a nu mbe r o f y ears be fo re pr a c tic ing fo re ns ic
pa tho log y fu ll- tim e . Sh e wa s q ua lif ie d b y e xpe ri e nc e a nd pa sse d he r bo ard s to b e c ome a fo re ns ic patholog ist in 1994. W h i l e prac ticing in Johnson C ity , Dr. Stephens ha s conducte d over one thousand and fif

ty autopsies. Prior to that she conducte d over three thousand autopsies while serving as assistant to both the S helby Countyand the Da vidson Countymedical e x aminers. Dr . Stephens
was qua lified as an e x pert witness in for ensic pa thology

. Dr. Stephens c onducted the autopsy on the victim on September 12, 2001. She de termined that the victim had bee n shot two times, once in the c hest and onc e in the abdome n. The victim died

as a r esult of these g un shot w ounds. The first wound examined, w ound A, was found in the rig ht side bac k of the c hest, and followed a bullet path e nding in the left side of the body . Dr. Stephens de sc ri be d the pa th o f the bu lle t in de ta il, ind ic a tin g a ll b on e s a ndint e rn a l or g a ns str uc k b y the bu lle t. I n her opinion, the victim’s cha nces of surviving w ound A wer e less then f ifty perc ent eve n had the victim been in the eme rg ency room and subjec t to imm ediate e merg ency car e.

Wou ndB ind ic a te d th a t th e bu lle t e nte re d the bo dy in the mid dle of the up pe r t or so , a lit tle to the rig ht of the midline of the body , and lodg ed agai n s t t h e bac k body . Ag ain, Dr. Stephe ns described the path of

the bullet a nd the re sulting dama g e to the interna l org ans. She said that wound-8-

B wo ulda lso ha ve be e n fa ta l “w ith ou t imme diate e xce lle nt me dic a l care .” Ea c h of the wo un ds c ou ld have be en fatal by

itself. The victim did not die immediately from the wounds. H e wa s resuscitate d and kept a l i v e on the way to the emer g ency

room, but he wa s bey ond resusc itation by the time he

arrived there

. Dr. Stephens a lso did a test to de termine the distance of the victim f rom the wea

pon at the tim e the wo un ds we re su sta ine d. She e xpla ine d tha t whe n ha nd g un s or rif le s ar e fi re d th e re are sma ll particle s of burning g unpowder and fill er material from the cha rg e which pr opel the bullet out of the
g un. These pa

rticles will deposit in and on the s kin’s surfa ce if the weapon i s within two feet fr om the muz z le to the skin. The close r an individual is to the wea pon, the more pa

rticles will be deposited on skin or clothing

. Dr. Stephens f

ound a fe w widely

scatter ed particles on the palm and ba ck of the victim’s rig ht hand. She found no g unpowder residue on the victim’s shirt or around his wounds. B ased on this information, Dr. Stephens conc luded that the dis tance betwee n the end of the wea pon and the victim’s torso was “slig h t l y b ey o nd two fee t or furthe r.” The residue on the victim’s hand was spaciously

deposited. Ther e wa s no evidenc e indicating that the victim’s hand was e x tended towa rd the wea pon. Dr. Stephens opined that the victim’s rig ht hand was likely at the periphery

of the blac k cloud emitted with the firing of the gun, indi cating the vi ctim was at least t wo feet from the g un. She also indicated the victim may have a cquire d the re sidue from a n environmenta l surfac e.
Dr. Stephens state d that if the bullet was fired parallel t o the ground, the bullet pa th indicated that the victim w as leaning slightly toward the g un both times he wa s struck. The bullet would not have move d the body

on impact. She said it is possibl e that the victim wa s turning to le ave w hen the sec ond shot was fired. I n such a sc enario, wound B, w hich enter ed the victim’s fr ont rig ht torso, would be the r esult of the first shot fired, and wound A w ould refle ct the sec ond shot. The victim’s blood alcohol content wa s .088 perc ent, and the lining of the fluid on the inside of his ey e wa s .077
p er ce n t

. T h e p o rt i o n i n s i d e t h e ey e i s a m o re ac cu ra t e r ef l ec t i o n o f w h at t h e b ra i n wa s ex p er i en ci n g. The portion in the blood i s slightly above the mark a t which someone c an be pr osecute d for drinking and driving . She acknow ledg ed that if the vic tim consistentlydrank t h i s m u ch, he mig ht have
appea red le ss intox icated tha n he wa s in actuality

.

Th e vic tim

a lso ha d d ia zepam, or

Va liu m, a ndits br e akd ow n p ro du c t in his blo odstr e a m. The breakdown product i n his blood stream indicated tha t his bodyhad alr eady absorbe d part of the Valium and had be g un clea ring the drug from his sy stem. The quantity of Valium i n his sy stem was in a “the r ap e u ti c r a n g e ” a n d w o u ld h a v e ma d e th e v ic ti m “ mo r e me ll o w ” a n d “ le s s li k e ly to be
pa nic ky or ne rv ou s. ” Th e Va liu m a nda lc oh ol c omb ine d mi g ht h a ve ma de the vic tim le ss coordina ted but would not have r ender ed him unconscious.

On cr oss-examination, Dr. Stephens said that it is possi ble the victim could have g otten the

re sid ue on his ha ndwh ile re a chi ng fo r D e fe nd a nt’ s th ro a t. H ow e ve r, sh e ind ic a te d th a t if thi s

scena rio had take n place there would have be en some re sidue on the victim’s body . She said that alcohol would have made the vic tim more likely to act on impulse and without thought. She a g ree d-9-

that if the victim was “f

urious” and “ char g ing” d o wn t h e hall, he w as ac ting on his fe eling s and would likely

follow throug h with his intentions unless something stopped him. She said that alcohol aff ects one ’s sel f-c ontrol and an individual may be inclined to start a

fig ht in a situation where he or she other wise would not do so.

II. Su ff iciency of the Evid ence
On appe al, Defenda nt combines hi s first three assig nments of er ror into one a

rg ument that the evidenc e wa s insufficient to support a f inding that he was g uilty of reckless homi cide. De fenda nt contends that the State f

ailed to prove e ach e lement of the of fense of re ckless homicide be y ond a

r e a s o n ab l e d o u b t

. S p e c i f

i c a l l y, h e ar g u e s t h a t t h e S t a t e f a i l e d t o p r o v e D e f

e n d a n ta c t e d “ r e c k l e s s l y” in killi ng the victim. He ar g ues that this element is l ac k i n g b ec ause the State did not prove Def endant a cted with a conscious di sreg ard for t he victim ’s life, or that Defe ndant’s beha vior was
a g ross deviation fr om the actions an or dinary person would takeunder the circ umstances.

I n e xami nin g wh e the r the e vid e nc e is s uf fi c ie nt t o s up po rt

De fe nd a nt' s c on vic tio n o f r e c kle ss homicide, we must revie w the evidenc e in a lig ht most favorable to the prosec ution in determining whether a rational trier of f

act c ould have f

ound all the essential el em en ts of the crime bey ond a

rea sonable doubt. J

ac k so n v . V irg ini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L

. Ed. 2d 560, 573 (1979). Onc e a jury

finds a def

endant g uilty , his or her pr esumption of innocenc e is remove d and re place d with a pre sumption of guilt. State v. Black
, 815 S.W .2d 166, 175 (Tenn. 1991). The de fe nd a nt h a s th e bu rd e n o f o ve rc omi ng thi s p re su mpt ion
, a nd the Sta te is e nti tle d to the str on g e st leg itimate view of the e vidence along with all rea sonable infe renc es which ma y be dra wn from that evidenc e. Id .; Sta te v . Tu gg le , 639 S.W .2d 913, 914 (Tenn. 198 2). The jury is presumed to have resolved all conflicts and draw n any rea sonable infere nces in f avor of the State. Sta te v . S he ffi e ld
, 676 S.W .2d 542, 547 (Tenn. 1984). Que stions concerning the cre dibilit y of witnesses, the w eig ht and value to be g iven the evide nce, and all fac tual issues raised by the evidenc e are resolved by the trier of fac t and not this court. State v. Bland , 958 S.W .2d 651, 659 (Tenn. 1997) . These r ules are appl ic ab le to f

in d in g s o f g u il t p r e d ic a te d u p o n d ir e c t e v id e n c e , c ir c u ms ta n ti a l e v id e n ce, or a combination of both direc t and circ umstantial evidence

. Sta te v . M att he ws , 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990)

.

Whil e th e r e w a s p r o o f th a t th e v ic ti m a n d M s

. L y o n s h a d a n e s c a late d ar g u me n t, a n d the victim was y elling a nd upset, there wa s no proof that the vic tim directed a ny threa ts toward Def endant, or that Def endant sa id any thing to the victim bef ore shooting him twice. The e vidence sh ow e d th a t D e fe nd a nt a ndthe vic tim ha d b e e n f

ri e nd s si nc e c hil dh oo d. Th e re wa s n o a nim os ity betwee n Def

endant a nd the victim, nor any history of violence. I n fac t, testimonyestablished that

o n o t h ero cc as i o n s t h e v i ct i mh ad b ee n we l co m e i n De fe n d an t ’s ro o m

. On t h e n i gh t o f t h e k i l l i n g, the vic tim wa s no t c arry ing a we apo n wh e n he we nt to De fe nd a nt’ s ro om. He did no t th re a te n to kil l or harm Defe ndant in any way . He told Def

endant, “ Get y our punk ass out her e. We nee d to talk.” The jury could i nfer from the proof that Def endant disput ed that he owed money to the victim, and that Def endant kne w the victim wanted the money on the ni g ht of t he homicide. De fenda nt did not

ve rb a lly re sp on d to the vic tim

or a sk him to c a lm d ow n. Whe n the vi cti m op e ne d th e do or to-10-

Def endant’ s room, Def

endant c almly

shot the victim twice and c ame out of t he room and stated, “ I did what I

had to do.”

Reckless homicide, a s releva nt her e, is “a rec kless killing of a nother.” T.C.A. § 39-13-215( a) (2003). “ ‘Reckle ss’ ref

ers to a per son who ac ts reckle ssly with respec t to circumstance s surrounding the c on du c t or

the re su lt o f the c on du c t when th e pers on is a wa reof bu t c on sc iou sly

dis re g ard s a

su bs ta nti a l and un

jus tif ia ble ri sk that th e c ir c ums ta nc e s e xist o r the re su lt w ill oc c ur . T he ri sk mus t be of suc h a nature and deg ree that its disre g ard constitutes a g ross deviation fr om the standard of

car e that an or dinary person would exercise unde r all the c ircumstance s as viewe d from the a ccuse d person’ s standpoint.” T.C.A. § 39-11-302( c) ( 2003).

“ ‘Kno wi ng ’ r e fe rs to a

pe rs on wh o a c ts kno wi ng ly with r e sp e c t to the c on du c t or to circ umstances surr ounding the conduct whe n the per son is a war e of the nature of the c onduct or that the circ umstances e x ist. A person ac ts knowingly with respec t to a result of the pe rs on’s conduc t when the pe rson i s awa

re that the conduct is rea sonably cer tain to cause the re sult.” T.C.A. § 39-11- 302(b) ( 2003).

Although Def

endant arg ues that the evidenc e wa s insufficient to show he a cted “ rec klessly ,”

we c onclude that there was sufficie nt e vidence that Def endant a cted “ knowing ly ” whe n he shot the victim two tim es. When Def endant a cted “ knowing ly ,” he a lso acted “rec klessly .” T.C.A. § 39-11- 30 1( a )( 2) (“ Whe n r e c kle ssn e ss s uf fi c e s to e sta

bli sh a n e le me nt [o f a crime ], th a t e le me nt i s a lso

e sta bli sh e d if a pe rs on a c ts i nte nti on a lly

or kn ow ing ly .” ). De fe nd a nt i s n ot e nti tle d to re lie f o n th is issue.

III . Se lf- De fens e

Ne xt, D e fe nd a nt c on te nd s th e e vid e nc e sh ow s tha t he ha d a re a so na ble be lie f that he wa s in imminent dange r of de ath or serious bodilyinjury so as t o justify his shooting in self-de fense . He arg ues that the State did not meet its burden of proving bey ond a re asonable doubt that Defe ndant didno t a c t in se lf

-d e fe ns e . We no te that w he the r D e fe nd a nt’ s c on du c t w a s ju sti fi e d is e sse nti a lly a question of f

act f or the jury

. See State v . W illiams
, 784 S.W .2d 660, 663 (Tenn. Crim. App. 1989)

. Thus, when r eviewing a jury verdic t rejec ting a

claim of s el f-defense , “in orde r to preva il, the de fe nd a nt m us t sh ow that th e evide nc e re la tiv e to j us tif ic a tio n, su c h a s se lf

-d e fe ns e , r a ise s, a s a

m at t er of law, a

rea sonable doubt as to his conduc t being criminal.” State v. Clifton
, 8 8 0 S.W .2d 737, 743 (Tenn. Crim. App. 1994)

.

Wit h reg ard to a

claim of self-def

ense, Tennessee Code Annotated se ction 39-11-611( a)- (b) (2 00 3) pr ov ide s in pa

rt a s f oll ow s:

(a) A per son is justified in threatening or using forc e ag ainst another pe rson when and to the deg ree the per son rea sonably believes the forc e is immediately nece ssary to p ro te c t a g a ins t th e oth e r' s u se or a tte mpt e d u se of

un la wf ul f or c e

. Th e pe rs on mus t ha ve a re a so na

ble be lie f that the re is an imm ine nt da ng e r of de a th or se ri ou s b od ily-11-

injury . The da ng er c reating the be li ef of imminent death or se rious bodily injury
must be real, or hone stlybelieved to be rea l at the time, and must be founde d upon

rea sonable g rounds. Ther e i s n o d u ty to retre at bef

ore a person thre atens or use s forc e.
(b) Any person using forc e intended or likely to c ause de ath or serious bodilyinjury within the p er s o n ’s own residence is presumed to have held a r easona ble fe ar of imminent peril o f d ea t h or serious bodilyinjury to self, fa milyor a me mber of the ho us e ho ld w he n th a t f

or c e is us e d a g a ins t a no the r p e rs on , n ot a me mbe r o f the fa mil y

or ho us e ho ld, wh o u nla wf

ull y a ndfo rc ibl y

e nte rs or has un la wf

ull y a ndfo rc ibl y enter ed the r esidenc e, and the person using the forc e knew or had re ason to believe that an unlawf

ul and forc ible entry

occur red.

Def endant asserts tha t he weig hed eig hty pounds less than the victim, that he wa s diabetic, that the victim was ang ry and y elling, and t hat under these circumstance s, he fe are d for his life. He
arg ues that he w as trappe d by the victim in an eleve n by seven- foot room, and that he had nowhe re to g o to re tr e a t othe r tha n to g o p a st h is ag g re sso r. De fe nd a nt ar g ue s tha t a ny re a so na ble pe rs on in his positi on would have f elt there was a n imminent dange r of de ath or serious bodilyinjury

.

We conclude that the jury proper ly found that it was unrea sonable for De fenda nt to believe that dea dly

forc e wa s immediately

nece ssary

to protect himself a g ainst the victim. Although the victim was “furious” and “shaking ” De fenda nt’s bedroom door, he did not verbally threa ten forc e

or vio le nc e , h e didno t ha ve a we apo n, a ndhe didno t in dic a te a n in tent to h arm De fe nd a nt. Def endant r emained silent while the victim wa s y elling from the hallway

. Then, whe n the bedr oom door opene d, Def

endant shot the victim two times. Testimony established that one of the shots may ha ve oc c ur

re d w hil e the vic tim

wa s r e tr e a tin g a nde ith e r o ne of the sh ots a lon e c ou ld h a ve be e n f a ta l. The g un powder

residue f ound on the victim wa s confine d to the victim’s right hand. The fa ct that no other g unpowder

was found on his body or around the wounds reve als that he was well over two fee t away from De fenda nt and had bare ly enter ed the bedroom. The jury was justified in finding that Def endant’ s use of de adly fo rc e wa s not warr anted unde r the c ircumstance s. Defe ndant is not entitled to relief on this issue.

CO NC LU SION

For the fore g oing r easons, the judg ment of the trial c ourt is affirmed.

____________________________________ THOMAS T. WOODAL

L , J UDGE