# FILED
July 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON JUNE 1996 SES SION
STATE OF TENNESSEE, ) ) Appellee, ) No. 02C01-9304-CR-00071

) ) Shelby County v. ) ) Honorable L. T. Lafferty, Judge ) DARRON CLAYTON, ) (Second Degree Murder) ) Appellant. ) For the Appellant : For the Appellee : Thomas E. Hansom Charles W. Burson 659 Freeman Attorney General of Tennessee Memphis, TN 38122 and (AT TRIAL) William David Bridges Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Darron Clayton, Pro Se Nashville, TN 37243-0493 Lake County Regional Pr ison Route 1, Box 330 John W. Pierotti, Jr. Tiptonville, TN 38079 District Attorney General (ON APPEAL) and Chris B . Craft Terrell Harris Assistant District A

ttorneys General 201 Poplar Avenue Memphis, TN 38103-1947

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N The defendant, Darron Clayton, appe als as of right from his conv iction by a jury in the Shelby

County Criminal Cour

t for second degree murder, a C lass A felony. He received a Range I , twenty-year s entence for the conviction. He contends that: (1) there is insufficient ev idence to sustain his conv iction; (2) the state and the medical ex aminer violated the defendant’s constitutional rig hts by failing to comply with T.C.A. § 38-7-101; (3) the trial court er

red by failing to inst ruct the jury as to criminally negli gent homicide; (4) the trial court i mproperly enhanced his sent ence; and (5) he received the ine

ffective assistance of counsel at trial. We affirm the judgment of the trial court.

The defendant was convicted of ki lling his girlfriend, Phyllis Johnson, on January 27, 1992. In respons e to a 9-1-1 call by the

defendant, emergency personnel arrived at the defendant’s hous e and found the victim lyi ng unconscious in a hallw ay. The medical examiner testified that the victim died as the result of multiple blunt force injuries.
At trial, Katonya Moor e, the victim’s eig hteen-year-old daughter, testified that at the time of the victim’ s death she lived with the victim and the vi ctim’s then oneyear-old son. Howev

er, she said

that the vi ctim staye

d with the d efendant at his home for two weeks before her death. Ms. Moore said that on the Saturday morning bef ore the victim’s death, January 25, 1992, the defendant brought the victim home. She said that she heard the victim tell the defendant that he made her feel like leaving town. Ms. Moore said that the defendant repli ed, “Girl, if you leav e, I’ll kill you.”

Ms. Moore stated that the victim stayed home all day Saturday and S unday and that the defendant called the victim several

times on both days. Ms. Moore said that she and a coupl e of friends3

dropped off the victim at a club, the Chelsea I nn, at aro und 11:0 0 p.m. on Sunday, January 26. At the time, the victim wore black jeans, boots, and a leather ja cket.

Ms. Moore testified that her mother called her once from the C helsea Inn and called her again at 2:30 a.m. on Monday morning. She said that the victim’s voice trembled during the second call and that the victim sounded scared. Ms. Moore said that the victim told her that she was at the defendant’s father ’s house and that she was okay. Ms. Moore sai d that she asked the victi m whether she should call the police and that a strange man’s voi ce told her that the victim did not need her to call the police. Ms. Moore said that the defendant then got on the phone and said, “Kat onya, I’m telling you, you better not put them white folks in my business or you’re going to have trouble.” Ms. Moore testified that s he called the police, but the po lice told her that they could not go to the defendant’s father’s house because she was not sure that the victim was there. Ms. Moore said that she never heard from the v ictim again.

Ms. Moore testified that in the past she noticed that the v ictim had bruises on her legs and arms and busted ear drums after she had stayed with the defendant.She said that the victim had to go to the hospital for her prior injuries. On crossexamination, Ms. Moore admitted that she never saw the defendan t act violently toward the victim. Ms. Moore also explained that her seventeen-year-old friend, Taneka Blackwell, stayed with her and her younger brother for the two weeks that the victim stayed with the defendant. She said that she and the vict im talked frequently on the phone during the two-w eek period.

Taneka Blackwell testified that she was at the vi ctim’s home the Saturday morning before the victim’ s death. She said that she heard the victim tell the defendant that she was going to leave town and heard the defendant threaten to kill the victim if she left. Ms. Blackwel l said that the victim stayed home all day Satur day. She said that4

the victim did not leav

e the house until around 11:00 p.m. on Sunday, when she went to the Chelsea Inn. Ms. Black well testified that the defendant called the victim sev eral times on Saturda y and Sund ay.

Ms. Blackwell testified that she talked to the defendant w hen he called the victim’s home Sunday ni ght after the victim had g one to the Chelsea Inn. She said that the defendant asked where the v ictim was and that she tol d him that the victim w as asleep. She said that the defendant told her to wake up the victim and that she told him that the victim wo uld not wake up. Ms. Bl ackwell said that the de fendant called back five minutes later but that she did not speak to him. M s. Blackwell testified that she was listening i n on the phone when the victim called at 2:30 a.m. She said that she heard Ms. Moore ask the v ictim if she should call the police. She heard another man order Ms. Moore not to ca ll the police and then heard th e defendant say, “Don’t put them white folks in my business or you’ll have trouble.”

During cross-ex

amination, Ms. Blackwel l testified that the defendant and victim arrived at

the victim’s home at aroun d 8:00 a.m. on the Saturday before her death. Although she testified that she was watching the television and talking with Ms. Moore when she heard the def endant t hreaten the victim , in a stat ement sh e gave police she said that she had been sleeping and heard the th reat when she got up to use the bathroom. Ms. Blackw ell also testified that the defendant had given her a ride t o the victim’s house and had g iven Ms. Moore money in the past.

Linda Sanders testified that she and the victim sat together at the Chelsea Inn. She said that the vic tim arrived at the club

at around 10:00 or 11:00 p.m. on January 26, 1992. She stated that at one point, the victim quickly left the table where they were sitting

and entered the kitchen. Ms. Sanders said that the defendant entered the club and asked her whethe r she had seen the victim. Ms. Sanders testified that s he5

told the defendant that she had not seen the v ictim and that the victi m was not in the club or the bathroom. She said that the defendant looked toward the bathroom, and she opened the door to the bathroom. She testified that the victim c ame out of the kitchen after the defendant left the club.

Ms. Sanders testified that she and the victim left the club together. She said that they were w

alking toward her c

ar when a car pulled up an d quickly stopped behind them. She said that the defendant and an other man got out of the car. She stated that the defendant grabbed the v ictim, and they strugg led. She said that the defendant eventually threw the victim into the car, and the car drove off. Ms. Sande rs testified that her sister- in-law, who w as also in the parking l ot, called the police. She admitted that her sister-i n-law lied to the poli ce about her name.

Although Ms. Sanders testi fied that the victim acted sc ared and that she lied to the defendant about the vic tim’s presence in the club because the victim was frightened of him, she admitted that sh e had given a previ ous statement saying that the victim acted normal that ni ght and that she did not have any reason to lie to the defendant. Ms. Sanders testified that the defendant was in a gray Buick Regal, simila r to a photograph of the defendant’s mother’ s car that was introdu ced into evidence. However, she admitted that in a prior statement she s aid that she could not identify the car or its color. M s. Sanders testified that immediat ely after the victim w

as forced into the car, the car drove off with the victim’s boots and legs hanging out of the door. Ms. Sanders said she heard a guns hot, but she did not see a gun.

Officer James J. Wilkins, a supervisor with the Communications Bu reau of the Memphis Police Department, testified that 9-1-1 receiv ed a call from a phone near the Chelsea Inn at 12:56 a.m. on Januar y 27, 1992. He said that the caller identified herself as Gwen Jackson and reported that someone had been forced int o a car. The6

caller said the license

plate number of the car was D V 4164, the same license plate number that was on the defendant’s moth er’s car in the photogr aph that was introduced into evide nce. A tap e recordi ng of the call was pla yed for th e jury.

Linda Sanders’ sister-i n-law, Nina Sanders, testified that she saw the victim at the Chelsea Inn at around 8:30 or 9:00 p.m. on Janu ary 26, 1992. She said that the victim appeared to be upset and afraid. She stated that sh e saw the victim r un into the kitchen before the defendant enter ed the club. She watched the d efendant approach Linda Sanders, and heard the defendant ask her whether she h ad seen the victim. Nina Sanders said that Linda Sanders opened the bathroom door and that the defendant looked into the bathroom and then l eft the club. She said that fifteen or twenty minutes later, she, Linda Sanders, and the victim were walking toward their cars when the defendant and another man drov e up. She said that the defendant ordere d the victim to “come here,” and the victim screamed, “ No” and began running ar ound the car. She said that the defendant ran after the victim and hit her . The victim started running again, and the man w ho was with the defendant hit her. Nina Sanders testified that the victim was p leading for help while she was running from the defendant.The defendant eventually pulled the victim by her coat and dragged her into the c ar. Nina Sanders said that she heard a g unshot when the defendant got the v ictim into the car and that she saw the defendant with a gun. She explained that the man who was w ith the defendant drove the car as it left with the victim’s feet hanging out of it. She said that she called the police but lied about her name because she w as scared.
During cross-ex

amination, Nina Sanders testified that the victim arri ved at the club between 8:00 and 9:00 p.m. She said that she saw the po lice arrive at the pay phone she used but that she did not tal k to them. She also described the gun the defendant had as having a silv er handle and said that she heard the victim shout that the defendant was going to kill her.7 Lieutenant Ronald L. Huffman, a communication s commander with the Shelby County Sheriff’s office testified that 9-1-1 received a call from the defendant’s address at 11:10 a.m. on January 27, 1992. A tape of the call wa s played for the jury. The defendant is heard on the tape telli ng 9-1-1 personnel that he i s waiting for an ambulance because he thinks the victim is dead. Medic personnel on th e tape explain how to check for the victim’s pulse and how to perform coronary pulmonary resuscitation (CPR).

Officer Eugene Campbell with the Shelby County Sher iff’s Department testified that when he arri ved at the defendant’s address at 11:18 a.m. on January 27, 1992, medical personnel and firemen were working on the nude victim in a hall. He said that he saw the defendant at th e scene and saw what appear ed to be bloodstains in the bathtub and on bed wear i n the laundry room. Officer C ampbell also testified that the defendant’s sister arriv ed at the defendant’s house with t wo other men after the defendant left.

Officer Earl Quinton Perry of the Shelby County Sheri ff’s Department testified that he arrived at the scene while medical personnel were wor

king on the victim. He said that he noticed furniture out of place and what appe ared to be blood in a bedroom. He explained that the bed and dresser in the room w ere pulled away from the wall and that the sheets were pulled away

from the bed. Officer Perry sai d that he drove the defendant to the police s tation. During the ri de to the station, the defendant asked whether he was going to be charged with murder. Officer Perry said that he told the defendant that he was unawar e of any charges against the defendant and that he was taking the defendant to the General Investigativ e Bureau (G.I.B.) office for further investigation. Officer Perry said that the defendant tol d him that he had been in a fight8

with his girlfri end earlier that day and tha t he wanted to know w

hether he was going t

o be charged with murder and if so, what degree of murder.

Ronald Goodwin, a lieutena nt in the Detective Di vision of the Shelby County Sheriff’s Department, t estified that the victim w as not at the scene when he arrived. He said that

he read the defendant his rights and placed him under arrest for the victim’s death. He stated that the defendant told him that nothi ng the defendant had done could have killed the victim.

Lieutenant Goodwin explai ned a videotape and several pictures of the defendant’s house that were introduced into evidence. He said th at the defendant’s patio had various degr

ee of wetness and that a foot rug o n the patio was wet underneath and appeared to have bloodstains o n it. He said that he found a pistol in the backyard inside a pl astic bag under the hood from a coa t. He said that although th e yard was damp, the hood, bag and gun were dry. The basketball court in the defendant’s back yard had muddy footprints on it. Lieu tenant Goodwin said that a black hat in the yard was dr

y but that the ground w here the hat was located w as damp. There was also a dog kennel in the back yard.

Lieutenant Goodwin said that when he entered the door fro m the patio into the defendant’s bar room he found a muddy floor with drops of what appeared to be blood. He described dry muddy shoes he found in the house and s pots on carpet inside the house that appeared to be bloodstained. There was a phone off of the hook in the defendant’s weight r oom and small stains on the carpe t. The master bedroom had a bloodstained bandage on the floor and a bloodstained mattress cov er on the bed. One of the metal bars on the bed frame w as broken at the foot of the bed. Lieutenant Goodwin te stified that the carpet an d a chair in the mast er bedroo m appea red to have bloodstains on them. The stains on the carpet appeared to have been w iped, and the9

stains on the chair wer e in the place that a person’s leg would hit if the per son was sitting in the chair. Lieutenant Goodwin found bandages on the television in the master bedroom.

Lieutenant Goodwin testified t hat he found more bloodstains in the mast er bathroom. He said that there w ere stains on the floor that appear ed to have been wiped, stains on a first- aid kit on the vanity , and stains on items in the fir st-aid kit. Lieutenant Goodwin said that there were two w et washcloths in one of the mast er bathroom sinks and another w et washcloth in the other sink. He also saw a pair of black pants with panti es in them on the floor in th e master bath room.

In the room he called bedroom number three, Lieu tenant Goodwin collected bloodstained sheets from the bed, a wet washcl oth from the dresser, and a bloodstained pair of underwear -type shorts that he found under the covers of the bed. The sheets, w

ashcloth, an d shorts w

ere introdu ced into ev

idence. In t he laundry

room, Lieutenant Goodwin collect ed bloodstained sheets and a comforter from the floor and bloodstained sheets and a comforter fr om the washing machine. In a bathroom at the end of the hall where the paramedi cs worked on the vi ctim, Lieutenant Goodwin saw what appeared to be bloodstains on the tub drain. A photograp h of the drain was introduced into evidence.

Lieutenant Goodwin testified that after he examined the hall bathr oom, he entered a bedroom that he referred to as bedroom number two. The bed in bedroom number two did not have any bed clothing on the bed but had a bloodstaine d plastic covering the mattress . Lieutenant Goodwin said that he collected a pair of sock s from behind t he door a nd a towel f rom the f loor. He de scribed t he socks a s being ba dlysoiled, white crew socks with several small spots on them. Lieutenant Goodwin10

testified that he found the coat that the v ictim wore to the Chel sea Inn on a chair in the den.
Lieutenant Goodwin testified that as he was leaving the defenda nt’s house, he noticed a car that matched the description giv

en during the 9-1-1 call from the phone near the Chelsea Inn. H e said that he verified the c ar’s tag number, and then seized it.

During cross-ex

amination, Lieutenant Goodwin a dmitted that he did not videotape several ro

oms and closets in the defendant’s hous e. He stated that he saw women’s clothes, handbags, and shoes in a bedroom closet and that he did not check the sizes of the clothes. He said that he also did not check the size of the mu ddy tennis shoes he found inside the house. He s aid that he did not remember seeing any furniture that was clear ly out of place in the house.

Lieutenant Goodwin testified t hat he was unable to find any fingerprints on the gun that was found in the defendant’ s yard. He said that the defendant’s hands were tested to determine w hether he had recently fired a gun. However, Li eutenant Goodwin sa id that he chose no t to send the tests to the lab because he did not believe that the results would ha ve been reliable based on the amount of time that had passed before the test was administer ed.

Lieutenant Goodwin testified t hat there were two g lasses on the defendant’s bar but that he did not dust the m for fingerprints. He said that he also did not try to lift fingerpr

ints from the washing machi ne, the hydrogen perox ide bottles that were found in two of the bedrooms , or the first-aid pack. Lieutenant Goodwin said that he neither looked for nor found any broken glass in the house.11 Ronald Ragghianti, a former officer with the General Inv estigations Division of the Shelby County Sheriff’s Department, testified tha t he viewed the victim’s body at the Shelby County Medical Examiner’s office. He said that the victim had what appeared to be a belt buckle impr ession and a chain impressio n on the left side of her chest. He said that he obtained a search warrant for the defendant’s house where he confiscated three belts, two exercise belts, two pieces of chain, and a small baseb all bat. He stated that he only searched the garage and lower level of the house. He said that he did not recall looki ng inside the closet in the master bedroom. He admitted that he did not secure the evidenc e in an evidence bag, although he had been trained to do
so.
Bobbie Stacks, a forensic serologist with the University of Tennessee in Memphis, testified that she w ent to Graves Wrecker Service o n February 4, 1992, and examined the defendant’s mother’s 198 1 Grand Prix. She said that she collected several loose items from the car including tw

o shoes, a towel, a hat, a bel t, and a broken blade of some type. She ex plained that she collected the items for further testing bec

ause they ap peared to be s tained or to have possi ble body flu ids on them. She said that she also cut out three stains from the front seat and an a rea of the seat that was not stained.

Paulette Sutton, the supervi sor of Forensic Serology at the University

of Tennessee toxicology lab, testified that she went to the defen dant’s house on January 27, 1992. She said that there w ere Type O bloodstains on the patio step to the defendant’s house, on a rug on the pati o, and on the wood floor in the bar area of the defendant’s house. She explained that som e of the stains in the bar area were a bit smeared, as if something had mov ed across them while they were wet. She said

that the left side of the foot of the recliner in the master bedroom had human blood on i t but that she could not determine the bl ood type.12 The parties stipulated that the medical supplies, she ets, washcloths, comforters and towels that were collected from the defe ndant’s house had the victim’s blood on them. They stipulated th at the victim’s blood w as on the carpet in the hallw ay where she had lain and that the victim’s blood may be present below the knees of the black jeans found at the defendant’s house.

Ms. Sutton testified that she anal yzed bloodstain pattern s in various rooms of the defendant’s house. With respect to the master bedroom, she testified that there were multiple sta ins on the floor. She said that a bloodstain pattern on the floor near the door le ading to the mas ter bathroom was consistent with a b loody, single-edge knife co ming in con tact with t he floor . She expla ined tha t the stai n displaye d the curve of the blade side and the back side. Ms. Sutton said that she noti ced faint stains on the floor of the master bathroom that wer e consistent with bloods tains that had been diluted. She said that a w ashcloth in the bathroom had a lar ge amount of green lint on it that was consiste nt with a ca rpet sam ple from the hallwa y.

Ms. Sutton testified that she found a s tain in the hallway close to the door of the hall bathroom. In the hall bathroom she saw stains on a ba th mat in front of the vanity, stains on th e floor, and in the tub. She expl ained that the re were some “swiping” stains on the edge of the bath tub, i ndicating that there w as movement across the surface after something bloody had come into contact with i t. She said that the stains near the drain were posi tioned as if there was w ater in the tub and someone release d the stopper.

Ms. Sutton testified that the fitted sheet that was on the bed in bedroom number three had bloodstains in the lower right cor ner. She said that some of the stains overlapped, indi cating a possible time l apse or movement of the bloody obj ect. She said that the stains contained linear patterns and explaine d that they were13

consistent with movement or dragging of the bloo dy object toward the bo ttom of the bed.

Ms. Sutton also tested several items that had been taken f rom the laundry room. She said that a green c omforter taken from the laundry r oom had linear stains on it. She said that the stains originated on the inside of the com forter and were very faint, indicating that they had been diluted. She said that a second comforter taken from the laundry room also had s tains on it that had origi nated on its interior si de. She testified that a fitted green sheet taken from the laundry room had s tains on one end of it extending from side to side. She explained that the sheet had some swiping s tains and that some of the stains had linear borders. Ms. Sutton testi fied that she did not find any blood on any of the pillowcases.

Ms. Sutton testified that the box er shorts that were found i n bedroom number three had the victim’ s blood on them. She explained that there were sever al areas of staining on the front of the s horts but that the staining was limited to the w

aste band on the back of the shorts. She s aid that the majority of the s tains originated on the outside of the shorts but that a few stains could have or iginated on the inside of the shorts. She said that the sta ins on the shorts had been diluted. With respect to the socks collected from bedroom tw o, Ms. Sutton said that they were dirty w

ith bloodstains on top of the dirt, indicating that the socks were soi led and then the individual wearing them traveled through blo od.

Ms. Sutton tested the items tak en from the defendant’s mother’s car. She testified that one cutting from the front seat tested positive for human blood that was consistent with Type O blood. She said that a towe l recovered from the backsea t tested positive for blood but that she was unable to determine th e species from which the bloo d came. S he said that two cuttings from th e front seat of the car, a belt, a l eft14

shoe, and a hat screened positiv e for blood but that she was unabl e to confirm that the substance on the items was bl ood. A right shoe and a blade taken from the car screened negative for bloo d.
During cross-ex

amination Ms. Sutton testified th at forty-seven percent of the population have Type O bl ood. She said that she did not kno w how long the bloodstain had been in the car befor e it was collected. S he stated that time is of the essence when conducting tests for blood. Although the c rime occurred on January 27, 1992, she said that the items w ere not collected from the car u ntil February 4, 1992, and that she did not test the items until September 2, 1992. She ex plained that the seven-month delay in tes ting the items was due t o a backlog and an indiv idual from the sheriff’s department telling her that she did not need to proce ss the evidence.
Ms. Sutton testified that she received bed sheets, towels, socks, pillowcases, washcloths, a pair of jeans and other items taken from the defendant’s house on March 3, 1993, fourteen months after she had visited the cr ime scene. She described the jeans as hav ing cuts below the knee. She said that all the sheets taken from the defendant’s house had blood on one end of them and that the mattresses were stained at the end of the bed. She explained that some of the sta ins on the sheets were consistent with someone lying in bed with a bleeding foot and moving it. She said that she did not do any tests to determine whether first aid had been administered to the victim before the stains on the bed were mad e. She said that there is no way to determine

whether someone bled direc tly onto sheets or throug h gauze.

Dr. Violette Hnilica , a forensic pathologist w ith the Shelby County M edical Examiner’s office, testified that she conducted an autopsy of the v ictim. She determined that the victim died as the result of multiple blun t force injuries. She said that the victim had a blood alcohol content of .02 perce nt at the time of her death. Dr.15

Hnilica explained that

the victim was not i ntoxicated, and she said that she did not find any other drugs in the victim’s system. Dr. Hnilica said that the victim had Type O blood.
Dr. Hnilica explained photographs she had taken of several of the victim’s injuries. She said that the victim had several extensive contusions

on the trunk of her body. She said that the v ictim suffered extensive dee p bruising and deep hemorrhaging under the br uised areas. She said that the most extensive hemorrhag ing was in the victim’ s arms but that there was similar hemorrhaging in the upper part of the victim’s legs.
Dr. Hnilica expla ined that much of the deep bruising did not have any specific pattern but that she di d recognize eleven specific patterns that formed a minor part of the victim’s inj uries. She identified a donut-pa tterned area and several semicircular patterns on the victim’s mid-tr

unk and upper abdomen area. She explained that the semicircular patterns were pinkish with a superficial abrasion pattern and a deep contusion. The victi m had a belt-buckle-shaped scar and a bruise that was made by a rod-shaped object similar to a broom handle on her abd omen. Dr. Hnilica testified that the victim al so suffered extensive brui sing on her back and that she had two rod-shaped patterns on the left side of her mid-back area.

With respect to the victim’s lower body, Dr. Hnilica testified that the victim had extensive bruisi ng in the upper thigh ar ea, around her knees, shin, and c alf areas and extending down to her feet. The victim had a semicir cular cut on her left big toe, an abrasion on her left ankle, a cut on the edge of her right foot, a nd cuts on both of her legs. Dr. Hnilic

a said that the cuts in the v ictim’s jeans generall

y coincided with the cuts on her body. She said that a cut on the victim’s left l eg was one-half inch in breadth and one-and-a-half inches deep. A cut below the victi m’s right knee was three-fourths16

of an inch in breadth and one inch deep. Dr. Hnilica said that the cut below the victim’s right knee went to the bone and that it had very specific characteristic s of a knife-type wound. Dr. Hn ilica s

aid that the cut o n the vi ctim’s

left leg was al so char

acteri stic of a stab wound. She said that sh e could not tell the order i n which the victim’ s injuries occurred but that the wound on the right leg had char acteristics indicati ng that it was inflicted hours before the vi ctim’s death. She explain ed that the stab wounds did not cause the bruising behind and around them. Instead, a blunt force, pressure-type injury caused the bruising behind and around the cuts.

Dr. Hnilica testified that the victim’s arms s howed bruising and sw elling and that both of the victim’s ar ms were broken with

multiple fractures. Specific ally, she said that the ulna bones in the v ictim’s arms were br

oken and that the ulna bone in the left arm was totally d isplaced from its joint. She noted that the victim did no t have any broken fingernails or bl ood under her fingernails and concluded that there was no evidence that the victim was trying to defend herself when the injuries to her left arm occurred. Dr. Hnili ca explained that the fractur es, bruising, and hemorrha ging into the arm muscles would have been very painful to the v ictim, making it unlik

ely that the victim would hav

e lowered herself into a bathtub an hour after sustaining the injuries. Dr. Hnilica said that the pain the victim felt from the deep bruising in her arms would have progressive ly increased as the sw elling in her arms in creased.

Dr. Hnilica also tes

tified that the victim suffered thr ee fractured ribs and a one-inch tear in the back of her liver. She said that the tear in the victim’ s liver was three-fourths of an inch deep and could have been inflicted by the injuries that caused the bruising on the vi ctim’s back. She estimated tha t the injury to the v

ictim’s liver occurred at least four hours before the victim’s death. D r. Hnilica testified that she would not expect a pers on with the victim’ s injuries to be consci ous nine hours after the injuries were infli cted.17 During cross-ex

amination, Dr. Hnilica admitted that a form she review ed before she examined the vict im states, “This case is r eported to be a very i mportant case per A.G.’s office. This sus pect is most wanted.” D r. Hnilica stated that th e buckleshaped scar on the victi m was probably more than two weeks old and coul d have been several years old.She said that the scar did n ot perfectly match any of the buc kles from the belts that had been introduced into evidence. Dr. H nilica explained that s he did not x-ray the v

ictim’s ribs because she could see them when she opened the body. She estimated that the rib fractur es occurred within hou rs of the victim’s death. She said that at most the fractures oc curred a day or two

before the victim’s death.

Dr. Hnilica testifie d that th e stab wou nds on th e victim’s legs could have been caused by broken glas s, but she said that the cut on the victim’s right leg was most li kely no

t caused by gla ss becau se it ha

d a hilt mark, s ignify

ing the dull ed ge of a single-edged blade. She said that glass likely caused the victim’s other cuts. However, she did not find any glass fragments in the leg w ounds. Dr. Hnilica tes

tified that the victim had three marks on her right arm that w ere not as old as the cut on her right leg. She said that the marks woul d have bled when they were fresh. Dr. Hnil ica testified that to her knowledge none of the wounds were examined for evidence of f irst-aid cream or hydrogen perox ide.
Regarding the vic

tim’s face, Dr. Hnilic

a testified that the victi m had a contusion on her cheek bone and one on her forehead. However, the victim did not have any broken teeth or any injuries indicat ing that she had been struck across the mouth.
Dr. Hnilica expla ined that she could not determine the time the tissue damage occurred in this c ase because blood was not dr awn from the victim w

hile she still had vital si gns. She said that none of the v ictim’s injuries w

ould have caused18

immediate or sudden loss of consciousness, but th e victim would have gradually lost consciousness. Dr. Hni lica testified that falling into a bathtub could cause brui sing or fractures and that she could not s ay that any portion of the v ictim’s bruises we re not caused by her falling i nto the bathtub. However , she said that she could not i magine how the victim’s ar

m fractures could have been caus ed by her falling into the bathtub because in her opinion the fractur es were caused by forces applied perpendicular to the bones. Although Dr. Hni lica stated that a wound on the victim’s leg c ould have been caused b y falling in to the ba thtub, s he said th at it was no t likely.

Dr. Hnilica testified that the rod-shaped bruises on the victim’s back were pinkish, indicating th at they were quite recent. She said that an ambulance gurney usually has metal bars on the side of it that are simila r to the size of a broom handle. She also testified that a bruise on the inside of the victim’s wrist was made within hours of the victim’s death. Dr. Hnilica stated that she ha d not been told how the vi ctim was removed from the bathtub or how the victim’s body w

as handled before she received it.
Christopher Thornton testified for the defense. He said that he w as across the street from the Chel sea Inn in a fairly w ell-lit area talking

to a friend during the early morning hour s of January 27. He said tha t he saw a man order a w oman to get into a car in an author itative tone. He said that the woman got into the ca r after the man ordered her to do so a second time. He said that he was not paying much attention but that he did not see any one throw the woman into the car. He said that the entire incident lasted a min ute or two. After the car drove off, he heard a car backfire or a gunshot. He said that he heard the sound a few seconds af ter the car passed him and that he did not think that the s ound came from the same direction in w hich the car was traveling.19 During cross-ex

amination, Mr. Thornton said th at he did not remember telling an investi gator that the backfiring sound that he heard came from the area the car had just left. He reit erated that he was not pay ing much attention, but he said that when he glanced up he saw the woman and man entering the car on the passenger’s side.

Fred Nesbit testified that he had known the defendant all of the defendant’s life. He said that he saw the defen dant at a store at around 12:50 a.m. or a little after 1:00 a.m. on January 27. He said that a heavyset lady who wore boots, pants, and a j acket accompanied the defen dant. He sai d that the lad y smiled at

him, and he noticed that she had gold t eeth in her mouth. Mr. Nesbi t testified that the lady had her side turned towar d him and that she seemed like she w as trying to kiss

the defendant. He said that the defendant was not using a shopping car t.
Milton Hubbard, Jr., tes tified that he and the defendant have been fri ends for fifteen years. He said that he knew the victim as the defendant’s fiancé and as the mother of the defendant’s son. He said that the defendant called him at around 1:0 0 a.m. on January 27 and asked him to help the defe ndant drop off the defend ant’s mother’s car. Mr. Hubbard said that the drive between his and the defendan t’s house takes around

forty minut

es. He arri

ved at the de

fendant’s hous

e between 2: 00 a.m. and 2:15 a.m. and went into the den a rea. He said that he heard the victim’s voice an d saw her shadow. He said that he waited in the den for about fifteen minutes before he and the defendant took the defendant’s mother’s car to her house, which was less than twenty minutes away. Mr. Hubbard said that after they dropped off the def endant’s mother’s car, the defendant rode with him to Mr. Hubbard’s home . Mr. Hubbard said that he and the defendant watched vi deos and talked. He said that h e eventually took the defendant to the defendant’s house. He sai d that the defendant arrived home at around 7:00 a. m or 7:10 a.m.20 During cross-ex

amination, Mr. Hubbard ex plained that the defendant and victim were in the

master bedroom for the fifteen minutes that he was waiting for the defendant in the den. He said that he hea rd the defendant and the victim mumbli ng but that he could not tell whether they were arg uing. Mr. Hubbard sai d that the defendant indicated that he and the vic tim had a fight but that the defendant did not say anything about hittin g the vic

tim.

Calvin Harris te

stified that he is a very

close friend of the defendant and was a frequent visitor to the defendant’s home before the vi ctim’s death. He said that his cousin lived w

ith the defendant for about a year and t hat the victim also li ved with the defendant “off and on .” Mr. Harris stated that he went to the defendant’s residence on January 27, 1992, to take hi s cousin to school. He sa id that he arrived at the defendant’s home between 6:40 a.m. and 6:50 a. m. He said that he knocked on the back door, and his cousin opened it. He said that he went upstairs where his cousin and the defendant’s son were ge tting ready for school.He said that when he ret urned downstairs he noticed bl oodstains on the floor in the hall way. He said that he called out to the victim and asked her if everything was okay and that she told him it was. He said that he knocked on the door of bedroom number three and opened it. He saw the victim lying i n bed on her back with a bl anket over her. He test ified that he asked the victim where the defendant w as, and the victim repli ed that he was gone.
During cross-ex

amination, Mr. Harris

testified that he did not see any blood in bedroom number three. He said that he did not ask the v ictim about the blood or whether the defendant was okay. He stated that he di d not see the defendant at the house that morning. He said that he did not go into the mast er bathroom, master bedroom, laundry room, w eight room, or big bathr oom but that he did look into bedroo m number two.21 Calvin Harris’

cousin, Stephanie Sykes, testified that she lived w ith the defendant for two years. She s aid that the defendant never marri ed her mother but that she considered the defendant to be her s tepfather. She said that she wa s living with the defendant at the time of the victim’ s death, and her bedroom was ups tairs over the master bathroom and the master bedroom. Ms. Sykes testified that the victim stayed with the defendant from time to time and had clothes at the defendant’s house. S he said that Calvin Har

ris picked her up for school at around 6:50 a.m. on January 27, 1992. She said that she saw Mr. Harris as she was coming downstairs and that she did not go back upstairs after M r. Harris’ arri val. She said that she saw Mr. Harris go i nto the kitchen, but she did not hear him talk to anyone. She sai d that she went outside while Mr. Harri s was going tow ard the back bedroom. She testified that she did not see the defendant that morning or the white truck the def endant usually drove. She said that she saw blood in the hallway that morning, but she was not concerned because she did not know that it w as blood. She also identified a pa ir of muddy shoes that belonged to the defendant.

The defendant testified that he had known t he victim for six y ears at the time of her death. He said that the victim was his g irlfriend and that she had gi ven birth to his child. He said that the victim had planned for hi m to pick her up at the Chelse a Inn on January 26, 1992. He s aid that he arrived at the Chelsea Inn and talked to Linda Sanders who told him that the victim was not ther

e. He said that he told Ms.Sanders to tell the victim to call him at his mother’s house. The defendan t said that he went to his mother’s house, and his mother tol d him that the victim had cal led. The defendant stated that he stayed at his mother’s house for over an hour and then borrowed her car because his truck had a flat tire. The defenda nt said that he drove the car to a friend’s house and returned to the Chelsea Inn with his friend, Skeet

.22 When he returned to the club, the defendant saw the v ictim and Linda Sanders walking tow

ard a car. He testified that he was not pleased that the v ictim was at the lounge that night, and he admitted that he used a somewhat authoritative tone when he ordered her to ge t into the car. The defendant denied thr eatening to kill the victim, denied having

a gun that night, and denied struggling w ith the victim in the parking lo t. He said t hat neit her he no r Skeet hi t the victi m. He said that Skee t drove him and the victim to Skeet’ s mother’s house. The defendant said that after they dropped off Skeet, he and the victim w ent to a store to buy some dr ink mix and then went to the defendant’s house.

The defendant testified that he and the vic tim went into the master bedroom. He identified a photogr aph of the closet in the master bedr oom and explained that it had the v ictim’s purse, clothes, high heel shoes, and boots in it. The defendant said that he and the victi m were in the house for fifteen or t wenty minutes when they began to arg ue about money that the victi m claimed she owed someone at the club. The defendant said that the v ictim was also upset bec ause he was going to leave to return his mother’s car. The defendant stated th at he and the victim argued in the master bathroom and that the v ictim threw a glas

s ashtray and something el se at him. The defendant said that the victim hit him, an d he threw her to the floor. He said that he kept throwing her down, and she kept gettin g back up. He said that he went to the floo r with her twic e during th e scuff le. The d efenda nt admit ted that he may have squeezed the victi m, and he admitted that he grabbed her by her arms, wri sts, and forearms. The defendant said that the fight lasted about a minute and ended wi th the victim calming down and the defendant releasing her.

The defendant testified that the victi m went into the master bedroom t o change clothes. He said that he returned to the master bathr oom after the victim had put on one of his shirts and a pair of his pajama shorts. He said tha t he and the victim23

argued again. He denied striking the victim but admitted that they had body contact and that he grabbed her. He s aid that the victim kept t rying to hit him and that he slung her to the floor several t imes. He said that he also may have fallen on top of her during the fight. He denied strik ing the victim w

ith his fist or any other

object. He explained that he was not fighting the victim but only trying to hold her bac k. The defendant testified that the second alterc ation lasted two or thr

ee minutes. He said that the fig ht stopped when he saw that the victim was bleedi ng as the result of her feet and knees being down on the floor in the glass.

The defendant said that he used first-aid kits, towels and w

ashcloths to stop the bleeding. He sai d that he eventually bandag ed all of the victim’s w ounds, and he believed that the bleeding had stopped. The def endant testified that he, the victim and the two children were the only people in the house during the altercations.

The defendant testified tha t once the bleeding stopped, he and the victim had a couple of drinks. He identified a photograph of the bar in his house with drink mix and two glasses on it.The defendant said that blood may hav e been at the mat near the doorway leading

to the patio because the vic tim walked toward th e door looking for her purse or something. The de fendant said that he went to the car to look for the victim’s purse but nev

er found it.

The defendant testified tha t he received a page from the victim’s daughter. He said that he c alled the victim’s daug hter, and he and the victim t alked to her and a friend that was with her. However, he denied hearing a strange man’s voice on the phone and denied telling her not to get the police involved in his business. He said that he tried to subpoena the friend that was with the victim’s daughter that night but that he could not find him.24 The defend ant test ified th at he cal led Milton Hubbard to he lp him dr op off his mother’s car. He explained that he asked the victim to ride to his mother’s house with him, but she decline d. The defendant said that he does not know what time he called Milton Hubbard, but he is certain that he did not call Mr. Hubbard at one o’clock. The defendant said that when Mr. H ubbard arrived the vi ctim was in the master bedroom. The defendant said that he told the v ictim that he was leav

ing and verified that all of the bleeding had stopped. The def endant said that he and Mr. Hubbard dropped off his mother’s car and then w ent to Mr. Hubbard’s house and watched television and talked. The defendant said that he was not mad at the victim while he was at Mr. Hubbard’s

house, but he was hurt and w as “cooling off.”

The defendant testified that he arriv ed at home a little before 7:00 a.m. on January 27. The defendant said that hi s son left for school at around 7:30 a.m. The defendant said that he made a phone call to determine whether the vi ctim’s daughter went to school.

The defendant said that the victim w as in bedroom number three when he arrived at the house. He said that he noticed that the sheets were off the bed in bedroom number two and that the v ictim had evidently p ut them in the laundry room. The defendant said that he asked th e victim why she had changed beds, and she told him that the plastic on the bed i n bedroom number two irritated her skin and made her legs start bleeding. The defendant said that he noticed that the victim had been bleeding but did not notice an ything else about her c ondition. He said that he ask ed her once or twice how

she was feeling and that s he told him that she was okay

. The defendant said that he got into the bed with the victim and went to sleep. He said that he aw oke around 10:00 a.m. and asked the v ictim how she was feeling. The defendant said that the v ictim told him that she w as alright. He said that25

he told the victim that he neede d to go downtown and asked her if she wanted to go with him. He said that the victim declined and tol d him that she was going to take a bath and clean the house. The defendant said that he ran water for the v ictim’s bath. He said that he did not see the v ictim walking to or

getting into the tub, but he said that he knows she got into th e tub.

The defendant said that he returned to the bathroom and saw the victim lying in the bathtub. H e said that he called her name s everal times, and she moaned a couple of times. The defendant said that he r an into the kitchen, called 9- 1-1, and followed the instructions he received. He said that he picked up the victi m and may have fallen with her onc e or twice as he drag ged her into the hall.

The defendant said that he called his sister af ter the 9-1-1 call and told her to come to his house. The defendant sai d that his sister follow ed the ambulance to the hospital. He said that hi s sister called him from the hospital and notified him that the victim had died.

The defendant testified tha t he did not intend to kill or harm the victim. He said that he did not kidnap the victim, and he insisted that none of the victim’s cuts were caused by a knife. The defendant expl ained that he cleaned up the glas s from the broken ashtray with a broom and dustpan. He said that he put the broom in the kitchen and the glass in the kitc hen garbage can.
During cross-ex

amination, the defendant testified that he dr opped off the victim at her home on Sunday morning, January 26, 1992. He said that the victim did not spend Saturday night at her house. He admitted that he c alled the victim sev

eral times on Sunday but explained that he called her because he loved her, no t because they were having

a disagreement.26 The defendant denied looking into the l adies room at the Chelsea Inn for the victim. He expl ained that he had Skeet drive him when he returned to the C helsea Inn because the defendant’s license ha d been suspended for six months and he was not supposed to be driving . The defendant said that Skeet died in h is sleep in 1992, and his real name was Walter Calv in. The defendant said that the vic tim entered through the passenger door of his mother’s car and sat i n the backseat. The defendant said that the victim did not cut herself while she was in the car and that he did not know how blo od got o n any it

ems in th e car. Th e defendant said t hat he heard the s ound of a car backfiring as they

left the parking lot.

The defend ant testified that he did not notice any cuts on the victim’s legs until his second altercation with her. He said that during the second fight, the victim told him she cut her leg. The defendant s tated that he saw the vi ctim wearing his s horts and shirt before the second fight, but he did not notice any bl ood on her legs before the second fight. The defendant admitted that he s queezed the victim, b ut he said that he did not feel an

y of her bones

break. The de

fendant said t hat he fell on top of the vi ctim while he and the victim were fighting but that he never hit the floor. He said that he did not receive any inj uries during the vi ctim’s attacks on him.

The defendant denied hitting the vi ctim with a broom handle. The defendant acknowledged that ther e were donut-shaped wei ghts lying loose in the floor of his weight room, but he d enied pounding the victi m’s ribs with the w eights. The defendant testified that he did not tell the victim that he was

going to spend the night with Mr. Hubbard, and he said that he did not plan to st ay with him. The defendant acknowledged that he had tw o Rottweilers in a k

ennel behind his house and that it was possible to let the dogs out into the fenced yard around his house.27 The defendant said that when he found the v ictim lying in the bathtub he ran to the kitchen to call 9-1-1, although a bedroom tele phone may have been closer. The defendant testified tha t he told the 9-1-1 operator that he thought that the victim was dying. He said that he did whatever he was told to do during the call, but he could not remember whether he check ed the victim’s pulse. He admitted that the telephone in the kit chen would not reach the victim and that there was n o way he coul d have checked the victim’s pul se while he was st anding in the kitchen. The defendant listened to a portion of the 9-1- 1 tape in which the paramedi c told the defendant to place his fingers on the v ictim’s neck and to move them down about half way. The defendant replied, “Uh-huh,” and the paramedic asked whether he felt a pulse, and the defendant said that he did not. The defendant admitt ed that he was in the kitc hen during the conversati on with the paramedic and sai d that he did not know w hy he responded to the paramedics ques tions the way he did. He said that he just wa nted the paramedics to arrive. The defendant explained that if he did not run to the victim w

hen he told the paramedic that she did not have a pulse, he went to the victim later.

According to the 9-1-1 tape, when the defendant inf ormed the paramedic that the victim did not hav e a pulse, the paramedic instr ucted the defendant how to do CPR. The paramedic told the defendant t o cover the victim’ s mouth with his mouth and to blow out a breath. The defendant i mmediately told the paramedic that he did, and the paramedic asked whether the victim’s chest r ose. The defendant told the paramedic that it did. After l istening to this porti on of the tape, the defendant admitted that he evidently did no t go to the victim the fir st time the paramedic asked him t o do CPR. The defendant said that he did not know why he told the paramedics that he had tried to perform CPR when he had not done so.

In the next portion of the tape, th e paramedic told the defendant to try to perform CPR again. There w as a pause, and the defendant told the paramedi c that the28

victim’s chest did not

rise. The defendant testified that he w ent to the victim’s body during the pause.

The defendant testified that at the time of the v ictim’s death, he did not know how she died. H e said that he thought she had pas sed out and that he did not think he caused her death. The defendant r emembered speaking to Lieutenant Goodwin on the scene, but he denied making the stateme nt, “Nothing I did to her would have killed her.” The defendant also denied telling Lieut enant Goodwin that he called an attorney before police arrived on the scene. The defe ndant explained that he did not call an attorney unti l the third person arri ved and would not allow him to go to the hospital.
Roy Lee Calvin test ified. He said that his brother Walter Calvin, who was also known as Skeet, died on July 25, 1992. A copy of the death certificate was introduced into evidence.

The defendant’s sister, Donna Clay ton Scott, testified that the defendant called her between 10:30 a.m. and 11:00 a.m. on January 27, 1992. She said that she went to the defendant’s house and tal ked to an officer. She said that she saw the victim being broug ht out of the house and placed into an ambul ance. She said that she heard the defendant tell her to follow the ambulance, and she did. She sai d that she called the defendant from the hospital and told him that the victim had died.

I In his first issue, the defendant c hallenges the sufficiency of the convicting evidence. Our standard of r eview when the suffici ency of the evidence is q uestioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements o f the29

crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we may not reweigh the evidence, but must presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evi dence in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).
Second degree murder requi res proof that the defendant committed an unlawful, knowing k

illing. T.C.A. §§ 39-13- 201(a) and -210(a)(1). “ A person acts knowingly with respect to a result of the person’s conduct when the person is aware that the conduct is reasonably certain to cause the result.” T.C.A. § 39-11-302(b).
When viewed in the light most favor able to the state, the proof at tri al showed that the defendant sever ely beat the victim, causing her death. The defendant and another man picked up the vi ctim at the Chelsea Inn shortl y before 1:00 a.m. on the morning of her death. The defendant took the victim to his house w here they fought. The defendant adm itted that he and the victim fought and that he grabbed he r, squeezed her, slung her to the floor several times, and fell on top of her. Th e victim suffered multiple blows to her arms, legs, abdomen, and back. The victim’s arms were broken, three of her ribs w ere fractured, and her liv er was punctured. Some of the victim’s bruises had

a donut-shaped pattern, simila r to the weights found in the defendant’s weight room. Others had a rod-shaped pattern , indicating that the victim had been struck with something similar to a broom handle. These recognizable patterns were a minor par t of the victim’s injur

ies which consisted of deep bruising without any specific p

attern. The victim also ha d cuts on her legs and feet.30 Dr. Hnilica testified that the victim died from multi ple blunt force injuries. She said the injuries inflicted on the victim would have been painful and tha t she would not expect the victim to remain conscious for nine hours after they were inflicted. Dr. Hnilica explained that

in her opinion the injuri es to the victim’s arms were not caused by the victim falling but rather by force being appl ied perpendicular to the bones.She explained that the injuri es would have become more pai nful as the swelling of the victim’s arms increased, making it unlikely that the victim would have lowered herself into a bathtub. The defendant called 9-1- 1 after the victim was in the bathtub. During the 9-1-1 call, he told a par amedic that he was checking the victim’s pulse w

hen he was
not. He al so to ld th e p ar

am ed ic th at he ha d a tt em pt ed CP R w he n h e h ad not. We believe that the jury

was justified in concl uding beyond a reasonable dou bt that the defendant knowingly ki lled the victim.

II

The defendant contends that his right s were violated bec

ause the medical examiner failed to comply with T.C.A. § 38-7-106, th e statute authorizing a utopsies by county medical examiner s. The state contends that the medica l examiner complied with the statute. We agree.

In relevant part, T.C.A. § 38-7-106 states: (a) a county medical examiner may perform or order an autopsy o n the body

of any person in a case involving a homicide, a suspected homicide, a suici de, a violent, unnatural or suspicious death. When the county medical exa miner decides to order an autopsy, the co unty medical examiner shall notify the d istric t attorney general. The di strict attorney general may

order an autopsy in such cases on the bo dy of a person in the absence ofthe county medical exami ner or the failure of the county medica l ex aminer to act. The authority ordering the autopsy shall notify the next of kin a bo ut the impending autopsy if the next of kin i s known or re asonably ascertainable. The sher iff or other law enforcement ag ency of the jurisdiction shall serve process containing such notice and return such process within twenty-four (24) hours.31

(Emphasis added). The defendant argues that the medical examiner and the state failed to comply with this statute because a law enforcement officer requested the autopsy, instead of the distr ict attorney general . However, the plai n language of the statute authorizes the count y medical examiner to perform or order an autopsy i n any case inv olving a suspec

ted homi cide. Th e fact tha t a medic

al exam iner learns of a suspected homicide from law enforcement pe rsonnel does not affect the examiner’s authority to conduct an autops y. The issue is without merit.

III The defendant contends that the trial cour t erred by failing to instruct the jury on the lesser i ncluded offense of criminally neg ligent homicide. He arg ues that a criminally negli gent homicide instructio n was warranted becaus e there was evidence at trial that indicated that he did not intend to hurt or ki ll the victim. The state contends th at th e p ro of

at tr ia l d id not s up po rt

an in st ru ct io n o n c ri mi na ll y n eg li ge nt ho mi ci de . We hold that the trial court er red by failing to inst ruct the jury on cri minally negligent homicide, but we conclude t hat the error is harmless beyond a reasonable doubt.
The trial court instructed the jury on premeditated first degree murder, felony murder, and the lesser included offen ses of second degree murder and voluntary manslaughter. The defendant request ed an instruction on crimi nally negligent homicide, but the trial cour t denied the request, stati ng that, at most, the proof show ed voluntary manslaughter.

Pursuant to T.C.A. § 40-18-110( a), a trial court is required “to charge the jury as to all of the law of each offense included in the indictm ent, without any request on the part of the defendant to do so.” When the evidence, introduced by either the state or the defendant, is suscepti ble of inferring guilt of either a lesser grade or lesser included offense, the trial court has a mandatory duty to char ge such lesser offense.32

See T.C.A. § 40-18-110(a); State v. Trusty , 919 S.W.2d 305, 31 0 (Tenn. 1996); Johnson v. State , 531 S.W.2d 558, 559 (Tenn. 1975); State v. Howard , 926 S.W.2d 579, 585-86 (Tenn. Crim. App. 1996) . Criminally negl igent homicide is a less er included offense and a lesser gr ade of first degree murder. See State v. Lynn , 924 S.W.2d 892, 899 (Tenn. 1996); Trusty , 919 S.W.2d at 311.

In Strader v. State , 210 Tenn. 669, 679, 362 S.W .2d 224, 228-29 (1962), our supreme court explai ned how the trial court should determine the need for a less er included offense instruction. It stated that “where the evidence, upon any view the jury may take of it, permits an infer ence of guilt as to such les ser included offenses, it is the mandatory duty of the Trial J udge to charge all the l aw as to each of the offenses, and a failure to do so requires a reversal and a new trial.” Id .; see also State v. Boyce , 920 S.W.2d 224, 226 (Tenn. Crim. App. 1995). In effect, the tr ial court must consider the evidence in the light most favorable to the exis tence of the lesser included offense and if the evidence so consider ed permits an inference of guilt of the lesser included offense, the trial court must gi ve instructions as to that lesser offense. Otherwi se, the trial court’s consider

ation of the evidence runs the r isk of invading the prov ince of the jury relative to

witness credibili

ty, the weight and s ufficiency of the evidence, and th e degree of the offense, if any, to be sust ained.
When deciding whether to give an instruction on a lesser included offense, a trial court must consi der all the evidence pre sented at trial, includin g the defendant’s testimony. This is true even if the defendant’s testi mony is unpersuasive o r uncorroborated. See Howard , 926 S.W.2d at 586; State v. Summerall , 926 S.W.2d 272, 279 (Tenn. Crim. App. 1995); State v. Ruane , 912 S.W.2d 766, 783 (Tenn. Crim. App. 1995

). If a de fendant’ s vers ion of ev ents is suscept ible to an infer ence of g uilt of a lesser included offense, then the tr ial court must instruct the jury with res pect to the lesser included offense. Howard , 926 S.W.2d at 585-86.33 In this case, the defendant testified th at he did not intend to kill or harm the victim. Although he admitted that he and the victi m fought, he testified that the fighting stopped when he not iced that the victim w as bleeding. He said that he administered first aid to the victim and thought that he had stop ped her bleeding. He stated that he left the victi m at his house. He said that w hen he returned he noticed that the victim had been bleedi ng, but he did not notice any thing else about her condition. Th e defendan t testified th at he asked the victim twice how she was fe eling, and he said that both times the v ictim replied that she w as okay.
The defendant testified that he got into bed with the victim and w ent to sleep. He stated that when he awoke he again asked the victim how she felt, and according to the defendant, the v ictim once more told him that s he was alright. The defendant said that he ran water into the bathtub because the vi ctim told him that she wanted to take a bath. The defendant stat ed that the victim got into the bathtub. He said that he found the victim lying in the bathtub and called her name several times. He testified that the victim g roaned, and he called 9-1-1 and p leaded for help for the victim. The defendant said that while he w as awaiting the arr

ival of the ambulance, he trie d to perform CPR on the victim.

Milton Hubbard testified that the defenda nt was with him during the early morning hours on the day of the victim’s death. He s

aid that he took the defendant to the defendant’s house around 7:00 or 7:10 a.m. Calvin Harris testified that he talked to the victim that morning, and she told him that everything was alright. Dr. Hnilica testified that none of the victim’s injuries would have caused the victim to lose consciousness immediately . She said that the victi m would have experi enced a gradual loss of consciousness.34 This evidence could support a verdict for criminal ly negligent homici de. Criminally negli gent homicide occurs w hen criminally negl igent conduct results i n death. T.C.A. § 39-13-212(d). Pursuant to T.C.A. § 39-11-302 (d), “criminal negligence” is defined as follows: “Crim ina l negligence” refers to a person who acts wi th criminal negligence with r espe ct to the circumstances surrounding that person’s conduct or the result of that conduct when the person ought to be awar e of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perce ive it constitutes a gross deviation from the standard of care that an ordinary personwould exercise under a ll t he circumstances as viewed from the accused person’s standpoint.
If the jury believed the defendant when he testified that he did not intend to kill the victim, they could have conclude d that he acted with cri minal negligence by failing to appreciate the ser iousness of the injuries he i nflicted on the victim and fail ing to recognize the ris k of death that was present.

The defendant’s testimony raised a factu al issue with respect to his mens
rea , and the trial court shoul d have submitted the issue to the jury. As this cou rt noted in Ruane : “Howeve r plain it may be to the mind o f the Court that one certain offense has been committed and none other, he must not confine himself in his charge to that offense. When he does so he in vades th e province of the jury, whose peculiar duty it is to ascertain the gr

ade of the offense. However clear it may be, the Court should never decide the facts, but must leave them unembarrassed to the jury.” 912 S.W .2d at 783 (quot ing Poole v. State , 61 Tenn. 288, 294 (1872)).

Having determined that the trial court erred by failing to give a criminally negligent homicide instruction, we must now determine the effect of the error. This court has stated that error associated with the tr

ial court’s failure to i nstruct a lesser included offense is harmless w hen the jury finds the defendant gu ilty of a greater35

offense and declines to convict the defendant of other lesser included offenses that were instructed by

the trial court and that ar e greater offenses than the one req uested. See State v. Atkins , 681 S.W.2d 571, 577 (Tenn. Crim. App. 1984); State v. Ne wsome , 744 S.W.2d 911, 915 (Tenn. Crim. App. 1987). But see State v. Belser , 945 S.W.2d 776, 791 (Tenn. Crim. App. 1996); Howard , 926 S.W.2d at 586-87; Summerall , 926 S.W.2d at 279; State v. Willie Williams No. 03C01-9510-CR-00330, H amilton County (Tenn. Crim. App. Nov. 8, 1996), app . granted (Tenn. June 2, 1997).

Although the jury in this case was instructed on voluntary manslaughter, it chose to convict the defendant of the greater of fense of second degree murder, which requires a knowing killing. Given the jury’s refusal to convict the defendant of voluntary manslaughter and the overw helming evidence of the defendant’s guilt, including the proof concerning the number of inj uries he inflicted on the v ictim and the severity

of the victim’s injuries, we believe that the trial court’s failure to instruct the jury on criminally negligent homicide w

as harmless beyond a reasonab le doubt.

IV Next, the defendant contends that he r eceived an excessiv

e sentence. He contends that the trial c ourt should have sentenced hi m as an especially mitigated offender. He also argues that the trial court improperly enhanced his sentence under enhancement factors provided in T.C.A. § 40-35-114. The state conced es that the trial court improperly applied enhancement factor (6), involving a victim suffering particularly great injury, and factor

(10), regarding the

commission of an offense with a hig h risk to human life. However, it argues that the trial court properly applie d factor (1) based on the defendant’s history of cri minal behavior and properl y applied factor (5) becaus e the defendant treated the victim w ith exceptional cruelt

y. The state asserts that the trial court erroneously appli ed mitigating factor (11) provided in T.C.A. § 40-3 5-113 regarding the defendant’s commission of an of fense “under such unusual36

circumstances that it is unlikely that a sustai ned intent to violate the l aw motivated the criminal conduct.” The stat e contends that the record suppor ts the twenty-yea r sentence imposed by the tria l court.

Appellate review of sentencing is de novo on the record with a presumption that the trial co urt's determinations are c orrect. T.C.A. §§ 40-35-401( d) and -402(d). As the Sentencing Commission Comments to these sec tions note, the burden is now on the appealing party to show that the sentencing is improper. This means that if the trial court f ollowed the statu tory sentencing pro cedure, made findings of fact that are adequately suppor ted in the record, and gav e due consideration and proper weight to the facto rs and principles that ar e relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a diff erent result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, "the presumpti on of correctness which ac companies the trial court's action is conditioned upon the affirmative showi ng in the record that the tr ial court considered the sentenci ng principles and all relevant facts and circums tances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaning ful appe llate revie w,

the trial court must place on the record its reasons for arriving at the final sent encing deci sion, identify the mitig ating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate h ow the mitigating and enhancement factors have been eva luated and balanced in determining the sentence. T.C.A. § 40-35- 210(f) (1990). State v. Jones , 883 S.W.2d 597, 59 9 (Tenn. 1994).

Also, in conducting a de novo review, we must consider (1) the evi dence, if any, received at the t rial and sentencing heari ng, (2) the presentence r eport, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the natu re1 For Class A felo nies committed on or af ter July 1, 1995, t he presumptive sentence is the midp oint of the ra nge. See T.C.A. § 40-35-210(c). 37 and characteristics of the c riminal conduct, (5) any mitigating or statuto ry enhancement factors, (6) any statement that the defendant made on his own behalf and ( 7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210 (1990);
see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229, 236 (Tenn. 1986).

The sentence to be imposed by the tr ial court is presumptiv

ely the minimum in the range unless th ere are enhancement factors present.T.C.A. § 40-35- 210(c) (1990). 1 Procedurally, the trial court is to incr ease the sente nce within the range based upon the existence of enhancement fact ors and, then, reduce the sentence as appropriate for any mitig ating factors. T.C.A. § 40-35-210(d) and (e) (1990). The weight to be afforded an existing factor is left to the trial court's discretion so long as it complies with the purposes and p rinciples of th e 1989 Senten cing Act and its fi ndings are adequately supported b y the record. T.C.A. § 40- 35-210 (1990), Sentencing Commission Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.

The victim’s mother wa s the only person to testi fy at the sentencing hearing. She testified concer ning the victim’s fear

of the defendant a week before her death an d about t he effe ct the vict im’s deat h has had on her fa mily.

The presentence report reflects that the defendant has a prior conv iction for attempted larceny by tr ick, two prior conv

ictions for driving

on a suspended, revoked, or canceled li cense, and a prior convi ction for violating the vehicle registr ation law. The report lists

several other charg es against the defendant that have been dismissed.

The trial court enhanced the defendan t’s sentence based upon his history of criminal behavior, his exceptionally cr

uel treatment of the victim, hi s infliction of38

particularly great in jury on the victim, an d his commission of an offe nse involving a high risk to human life. See T.C.A. § 40-35-114(1), (5) , (6), and (10). With respect to mitigation, the trial court recognized the potential application of mitigating facto r (11), regarding the defendant’s co mmission of an offense under circumstances indicating that his conduct was not motivated by a sustained intent to violate the law. However, the court refused to give the mitigating factor any weight. The court stat ed: However, it was my

feeling during the entir e case that number eleven was your defense in this law suit. It’s always been y our position th at s he died, but that you had no intent to kill her. I guess, more or less, as a pun is hment after the episode as a result of what you say w as this argument ov

e r the money situation in the betting of the Superbowl. But, I do not be lieve that the mitigating factor outw eighs, in any

way, or diminishes the severity of what

you did.

Initiall y, we disagre e with the d efenda nt’s cont ention t hat he sh ould have been sentenced as an especially mitigated offender. A defendant can only be sentenced as an especially mitigated offender if the defendant has no pri or felony convictions and there ar e applicable mitigating

factors and no applicable enhancement factors. T.C.A. § 40-35-109; see also State v. Hicks , 868 S.W.2d 729 (Tenn . Crim. App. 1993). Because there are enha ncement factors that are applicabl e in this case, the trial court properl

y sentenced the defendant as a Rang e I, standard offender. See T.C.A. § 40-35-105.

Next, the defendant contends that the trial court impro perly enhanced his sentence. The state concedes that the trial court improperly applied factor (6), inv

olving particularly gr

eat injury to a vic

tim, and factor (10), relati ng to the commission of an offense with a high risk to human life. However, the state contends that the trial court properly enhanced the defendant’s sentence based upon his history of criminal behavior and his exceptionally cruel treatment of the victim. See T.C.A. § 40-35-114(1) and (5). The state argues tha t the trial court erred by applying mitigating factor (11) and39

that the two applicable enhanc ement factors warrant the tw enty-year sentence i mposed by the trial court.

We agree with the parties that the tr ial court erred by enha ncing the defendant’s sentence based upon factors ( 6) and (10). Enhancement factor ( 6) does not apply to the defendant’s sentenc e because particularly

great injury to a v

ictim is an essential element of second degr ee murder. See State v. Lambert , 741 S.W.2d 127, 134 (Tenn. Crim. App. 1987). Si milarly, the trial court erred by apply ing enhancement factor (10) to the defendant’s sentenc e for second degree murder becaus e the risk to human life is always hi gh in a homicide case. Beca use there was “no ris k to the life of a person other than the vic tim”, factor (10) is inappl icable. State v. Bingham , 910 S.W.2d 448, 453 (Tenn. Crim. App. 1995).

The record supports enhancement of the defendant’ s sentence based upon his history of crimi nal behavior. See T.C.A. § 40-35-114(1). The presentence report states that the defendant has a prior conviction f or attempted larceny by trick, two prior convic

tions for driving on a

suspended, revoked, or canc eled license, and a prior conviction for v

iolating the vehicl e registration law

.
We also agree with the trial cour t’s application of enhancement factor (5) based on the defendant’s treating t he victim with ex ceptional cruelty. The defendant inflicted several cuts and multiple blunt force injur ies on the victim. The v ictim suffered two broken arms, three frac tured ribs, a punctured li ver, and extensiv

e internal hemorrhaging. Dr. Hnilica testified that none of the injuries would have immediately caused the victim’s death. Instead, the victim suffered f or hours until she lost consciousness.40 With respect to mitigation, the def endant contends that his sentence should be reduced because he “committed the offense under such unusual circumstances that it is unlikely that a sustai ned intent to violate the l aw motivated the criminal conduct.” See T.C.A. § 40-35-113(11). The state counters that the trial court erred by applying factor (11). In support of its argument, the state cites State v. Joe Freeman Norman , No. 01C01-9302-CR-00056, Wilson County (Tenn. Crim. App. Sept. 30, 1993).

In Norman , the defendant and a companion were r ubbing and petting each other and were drinking while they were driving around in a car. The car struck a guardrail, and the defendant’s c ompanion was killed. This court refused to apply factor (11) to the defendant’s sentence for reckless hom icide because the defendant was in control of or at least helped c reate the circumstances that led to the victim’s death

.

We likewise disagree with the application of mitigating factor (11) in this case. The defendant contends tha t he never intended to hurt the victim and that he did not have a sustained intent to violate the law. H owever, the proof at tri al demonstrated that the victim suffered numerous blunt f orce injuries and cuts. Also, the victim’s daughter and Taneka Blackwell testified that they heard the def endant threaten to kill the victim two day

s before the victim’s death. The victim’s daughter also said that in the past the victim suffered bruis es and busted ear drums whi le she was staying with the defendant. On the record before us, w e cannot say that the crime was committed under unusual circumstances i ndicating that the defendant lacke d a sustained intent to violate th e law.

Given the two applic

able enhancement factors and the absence of any mitigating factors, the r ecord supports the twenty -year sentence imposed by the trial court. Thus, the sentence is affirmed.41 V The defendant contends that he received the ineffective assistance of counsel because his trial attorney failed to advise him of his rights, failed to prese rve his rights, failed to inv

estigate his case adequat ely, and failed to advis

e him about whether to accept any reasonable pl ea offer. The state counters that the defendant has failed to meet his burden of proof on the issue.

Although he had filed a motion to w ithdraw from representing the defendant, the defendant’s trial attorney represented him during hear ings on the defendant’s motion for a new trial . The defendant’s attorney told the court that the defendant felt that the attorney w as ineffective for failing to obt ain expert witnesse

s on the def endant’ s behalf , failing to challe nge the ch ain of cu stody of t he victim’ s body, and by failing to attack h earsay contained in an autops y report. The trial c

ourt was hesitant to rule on the issue because it recognized the issue as being more appropriately raised in a post-conviction pr oceeding. However, the trial court over ruled the portion of the defendant’s new tr ial motion that challenged the effectiveness of trial counsel, stating that it “may” disagree w ith the petitioner based on it s observations of the petitioner’s counsel during trial. At the conclusion of the hearing, the trial court granted the attorney’s motion to withdraw as counsel for the defendant relativ e to the appeal.
We agree with the state’s asserti on that the defendant has failed to meet his burden of proof relative t o the claim that he had the ineffectiv e assistance of counsel. However, we also note that the heari ng which included thi s issue was conducted while the attorne y who was the object of the claim continued to repr esent the defendant. Under these circumstanc es, we do not fault the defendant for the pr esent state of the record. Be that as i t may, however, the record before us does not war rant a42

conclusion that the defendant’s tr ial attorney rendered the ineffective assistance of counsel.
In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

Joseph M. Tipton, Judge CONCUR:

David H. Welles, Judge

Jerry L. Smith, Judge