### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs D ec em be r 14, 200 4

STA TE OF TEN NES SEE v. MIC HAE L ED WAR D T HOMA SON

Direc t Appeal from the Circ uit Court for Cheatham County

No. 14091 G eorge Sexton, Jud ge

No. M2003- 03072-CCA -R3-C D - F iled Janu ary 19, 2005

The defenda nt, Michae l Edwar d Thomason, was c onvicted by a Cheatham CountyCircuit Court jury of fi rs t de g re e pr e me dit a te d mu rd e r a ndse nte nc e d to lif e imp ri so nme nt. I n a tim e ly app e a l to this court, h e ar g u e s th a t th e tria l c o u r t e rr e d in it s in s tr u c ti o n s o n s e lf

- d e f e n s e ; th e e v id e n c e was ins uf fi c ie nt t o sho w a pr e me dit a te d mur de r; a nd the pr os e c uto r ma de a n impr op e r c omm e nt i n h is

c los ing arg ume nts to the jury

. F ind ing no re ve rs ibl e e rr or , we a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

A L A N E. G L EN N , J

. , delivere d the opinion of the court, in which G AR Y R. W ADE , P.J ., and J AM ES C UR WO OD W I TT , J R ., J ., joined.

Wil liam B. L ockert, I I I
, District Public Defe nder; a nd Steve Stack, Assistant Public Defe nder, f or the appe llant, Michael Edwa rd Thomason.

Pa ul G

. S u m m e r s , At torne y Ge ne ra l a ndRe po rt e r; El iza be th B . M arn e y , A ssi sta nt A tto rn e y Ge ne ra l; Dan Mitchum Alsobrooks, District Attorne y Gene ral; and Robert S. W ilson, Assist ant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

On Octobe r 12, 2002, the defendant shot and kil led hi s former employ er, J ohnny Knig ht, at Knig ht’s Sawmill on P oplar Ridg e Road in Cheatham County

. At trial, the victim’s y oung er son, Randall Knig ht, testified that the victim hired the de fenda nt in September 2002. A pproxi mately one and a ha lf to two wee ks befor e the shooting, the victim sent the defendant as part of Randa ll Knight’s

wo rk c re w t o M a ine to d ism a ntl e so me re c e ntl y pu rc ha se d s a wm ill e qu ipm e nt. Whil e the re , Ra nd a ll Knig ht confronte d the def endant se vera l times over his failure to work, an d, shortly befor e the

c omp le tio n o f the job , th e y g ot int o an arg ume nt ove r the de fe nd a nt’ s p oo r w or k e thi c . A ft e rw ard s, the def endant de parte d in the company tru ck
, l ea v i ng Randall Knig ht and the re st of his crew-2-

str a nd e d a t th e job sit e , fo rt y mil e s fr om the ir mot e l. Ra nd a ll Kn ig ht te sti fi e d that it t oo k h im a fu ll day to find the truck, pa

rked at the local bus station, and to g et another key to it made.

The witness testified he informed the vic tim by telephone that the def endant f ailed to work and had stolen the company truck. He said the victim paid the worke rs’ ex penses while they wer e in Maine, but did not pay wag es t o those employ ees who had been hi red by the j ob until the work

was c ompleted. He a nd the re mainder of his work cr ew c ompleted the job on Octobe r 12, and he flew home on October

13 afte r lea

rning that the victim had bee n killed. On cross-e x amination, he

conce ded that the defenda nt had been t he for eman at the job site, but he expl ained that he had bee n training the def

endant to handle the work c rew so that the defe ndant could take his place on f uture

ou t- of -t ow n p ro je c ts. Th e wi tne ss a c kn ow le dg e d that the vic tim ha d g ive n th e de fe nd a nt e xpe ns e money for the ir Maine trip a nd that they had re quired a dditional ex pense mone y befor e the completion of t h e job. Howeve r, he w as unaw are the first expense che ck had “ bounced” and had no idea how ma ny

times the defe ndant had ha d to reque st additional funds from the victim.

The victim’s older son, John Michael Kni gh t , testified he wa s the fore man of the vic tim’s sh op on Mo un t Z ion Roa d in Spr ing fi e ld, Te nn e sse e , wh e re the Ma ine wo rk c re w h a d p ark e d th e ir
persona l vehicles before trave ling togethe r to the job site in the company truck. B etwee n 8:00 and 9:00 a.m. on Saturday , October 12, the def

endant a rrived at t h e s h o p in a small red pickup tr uck dr ive n by a no the r ma n, inq uir e d a s to the vic tim ’s wh e re abo uts , a nd le ft a ft e r the wi tne ss t oldhim that the victim wa s probably at the Poplar Ridge sawmill. The def endant did not ask a

bout his car, which at that time wa s blocked in by a compa ny

vehicle.

Gary Toothman, who oper ated a bulldoz er for t he victim , testified he sa w the def endant at the sawmill betwee n 8:00 and 10:00 a.m. on t he day of the shooting . When he g ree ted him, the defe ndant told him the victim owed him money and he was there to collect it. Toothman said he sa w the de fe nd a nt h a ng ing aro un d th e sa wm ill that mornin g , a nd la te r sa w him wa lki ng tow arda n o ld house on the property

. At approximately 2:00 p.m., Toothman was working a quarter mile down the road w hen seve ral other employ ees of the sawmill drove up in their ve hicles and informed him the victim had been shot. He then went to a ne ighbor ’s home and c alled 9-1- 1.

Che a tha m Co un ty

De pu ty She ri ff Carl L itt le te sti fi e d h e arrive d at the sa wm ill a t 2: 27 p. m. and was heade d toward a building with his shotgun drawn whe n the def endant, who w as standing beside a red Chevr olet S-10 pickup truck with his fathe r, ca lled to him, raised his hands, and ide nti fi e d h ims e lf

a s th e ma n f

or wh om he wa s looking

. Th e de fe nd a nt a dd iti on a lly inf or me d h im that the wea

pon was in the truck, wher e De puty L ittle found a .22 ca liber pistol ly ing on the
passeng er se at. Deputy

L ittle described the defe ndant as “ pretty calm” during this time.

I nvestig ator Tr avis Walker of the Cheatham Cou n ty Sh e rif f ’ s D e p a r tm e n t te stified that, when he ar ri v ed at t he sce ne, the victim was de ad with obvious g unshot wounds to his face, he ad, and back. T he victim had nothi ng in his hands, and Walker was unable to find anything that could be considere d a we apon in the immediate vicinity of his body . Howeve r, a metal ratche t and a two- tothree -foot-long , y ellow metal pole with an e lectric al cor d attache d, which he later lea rned w as a la ser-3-

light used in the lumber i ndustry for marking logs, were ly ing on the ground in front of an elec trical box on the other side of

a metal wa ll f

rom wher e the victim’s body was found. Investig ator Walker said that he did not see a two-to-thre e-f oot-long metal wre nch in the are a and that had he se en such an item, he would ha ve collec ted it as potential evidenc e.

I nv e sti g a tor Wal ke r te sti fi e d he re c or de d th e de fe nd a nt’ s st a te me nt w hil e sti ll at th e c ri me

scene

. I n the s tatement, which w as admitted at trial, the de fenda nt said he had be en for ced to r eturn to Tennesse e whe n the def endant f ailed to send money

to cover the Maine w ork cr ew’ s living expenses. The fir st time he tried to talk to the vi ctim at t he sawmill
, the victim cursed him, re fused to pay any part of his $5000 wa g es, and told him he would not let him ge t his car. The defe ndant

s tated he le ft the pre mises after the initial confrontation and sat down beside a n old house on the
pr op e rt y in o rd e r t o c a lm d ow n. Du ri ng that ti me pe ri od , h e a lso te le ph on e d h is f a the r t o r e turn to pic k h im up

. He the n r e turne d to the sa wm ill to t ry to t a lk t o th e vic tim

a g a in, ho pin g that th e vic tim had also c almed down during the interim. When he approa ched the victim, however , the victim ran
at h i m wi t h a wr en ch in one ha nd and an obje ct in the other. The defe ndant said he ba cked a way from the victim but had no chance to esca pe and w as for ced to shoot to protec t himself. He stated that he br ou g ht the g un wi th h im f or se lf -d e fe ns e be c a us e the vic tim ha d th re a te ne d to kil l hi m in an earlier telephone conversa tion and had the gun wit h him during his first confrontation with the vic tim . H e de nie d h e ha d p la nn e d th e mur de r o r e ve r i nte nd e d to kil l th e vic tim :

[ T HE DEFENDANT ]: I had eve ry

intention of coming here and

rea soning w ith him and g etting money to g o up there and finish the job. That’s t h e reason why I stay ed ar ound as long as I did. I tried

se ve ra l, s e ve ra l ti me s to ta lk to the ma n. I se nt m y Da d h ome be c a us e I did n’ t w a nt m y

Da d to se e a ny kin d of ru c ku s o r a nythi ng be c a us e I knew it would wind up that wa y . May be I should of [si c] left, I don’t know, but I

didn’t have no [sic] way

to leave. So I just settled down, hoping he would settle down and I would try to talk to him one

mor e ti me

. H e c o me [s ic ] o u t o f th e s a w mi ll w ith a

w r e n c h in o ne hand and something else in the other ha nd and come [si c] running at me. And I

g uess that’s whe n I

lost it . I done [sic] shot. He turned, I shot ag ain, he went around the wall and I didn’t, he’s a ll ready

[si c] threa tened that he would kill me if I showed up. He has my

car over there blocked to whe re I

can’ t ge t my

car

.
[I NVESTI GATOR WAL KER]: W h en y ou ran ba ck ar ound wher e was he , was he ly ing dow n?

[THE DEFEN DANT]: No, sir.

[I NVESTI GATOR WAL KER]: He wa s . . .

[THE DEFEN DANT]: He still come at me. He come a t me ag ain.-4- [I NVESTI GATOR WAL KER]: How many times do y ou think y ou fired?

[THE D E F E N D A N T ]: I k n o w o f tw ic e

. I d o n ’ t k n o w h o w many times I fired.

[I NV EST I GA TO R WAL KE R]: Whe re do y ou thi nk y ou sh ot h im

a t?

[TH E D EF EN DA NT ]: I

jus t sh ot.

[I NVESTI GATOR WAL KER]: Be cause it looks l ike a possible, ah,

c ou ple fa c e inj ur ie s, a nd the re ’s on e in h is b a c k. I t w e nt [s ic ] sho t in the bac k. Di d y ou, did y ou shot [ sic] him running from y ou? Be cause ther e’ s no, it’s an, it’s an entra nce w ound, there ’s nothing coming out. There ’s nothing thr oug h [a] n[d] throug h. So just one shot that’s directly

in his back bec ause he had to be r unning a way from y ou when y ou shot him t hat one time.

[TH E D EF END ANT ]: I

do n’ t kn ow . I

do n’ t r e c a ll. Ev e rythi ng is just a blur afte r the fir st shot.

[I NVESTI GATOR WAL KER]: You said y ou, he come [si c] out of
t h e s a w m i l l
, w h e r e a ti n [ s i c ] t h e s a w m i l l [ s i c ] ?

[THE DEFEN DANT]: He was in the, he wa s in the saw room itself. Up the re w h e r e t h e c o n t r o l s ar e a t

. A n d I w a s o f f o v e r t o t h e to h is le ft , s ta nd ing on the g ro un d. An d h e c ome [sic ] out fu ll r un a t me with a wre nch in o n e hand. I know he ha d a wr ench or I wouldn’t have, I ’d of [sic] j ust turned and r un but he was c oming a fter me

. And he ha d done [si c] thre atene d he’d kill me if I showed to try

and get an y o f m y m o n eyo r a n y t h i n g.

I nv e sti g a tor

Wal ke r i de nti fi e d a

se ri e s o f p ho tog ra

ph s of th e cri me sc e ne , a s w e ll a s a diag ram of the sawmill, which wer e subsequently admitted as t rial ex hibits and re fer red to by various witnesse s d u r in g th e ir r e s p e c ti v e te s ti mo n y

. T h e s e r e f le c t th a t th e s a w c ab is a n e n c lo s ed metal
structure with windows that sits several f eet a bove g round leve l. Be low the saw c ab, on one side
, is a woo de n pla tf

or m or side wa lk, app are ntl y a fo ot or so abo ve the g ro un d, wh ic h run s bes ide so me elec trical tra nsformer s and circ uit breake rs next to a gr av eled area . A metal wa ll separates the wooden sidew alk from the are a, just be y ond a g ree n, metal “c atwalk,” wher e the victim’s body was found spra wled among some log s.-5-

On cr oss-examination
, I nvestig ator Walker te stified that, based on his investig ation, including the pattern of blood f ound at the scene , he believe d the victim was standing on the g rave l

are a whe n first shot and then steppe d onto the wooden platf orm, made his w ay throug h an opening be tw e e n so me ma c hin e ry to the oth e r s ide of the wa ll, du c ke d b e ne a th the c a tw a lk, a ndwa s f a ta lly sh ot j us t be y on d th e c a tw a lk. He a c kn ow le dg e d th a t a me ta l ob je c t a nda log app e are d to p art ia lly impede the path under the c atwalk a nd that there was a n open ar ea betwee n some posts on the other side of some stairs. He denied that the phy sical evidence corrobor ated the defe ndant’s account of having backe d awa y

from the victim bef

ore the first shots were fired.

I nvestig ator W alker reiter ated on redire ct that, re g ardle ss of the possible alternate routes the victim could have take n, the phy s ical evide nce indicated that his path had led him bene ath the

c a tw a lk a s h e ma de his way fr om the “ tw o s ho t” to the “ thr e e sh ot s ide ” of the wa ll:

Q. You don’t dispute the fa ct that - - that it’s like we’ve learned in this case, ther e is [si c] a lot of differ en t wa y s to ge t around a ll of the se ob sta c le s?

A. Yes, sir.

Q. I s that fair?

A. Yes, sir.

. . . .
Q. I ’ll show y ou Ex hibit No. 28, at this poi nt in tim e.

He would ha ve had to - - As he c ame by there , afte r he stag g ere d into the wall or g rabbe d the wa l l
, there (indicating ), he would have had to duc k under the stairway
, he could have g one that

w a y?

A. Yes, sir.

Q. B ut tha t’ s n ot the wa y the fa c ts i nd ic a te he we nt, is i t?

A. No, sir.

D r

. C h ar l e s W arr e n H ar l a n , t h e p a t h o l o g i s tw h o p e r f o r m e d t h e a u t o p s y o f

t h e v i c t i m ’ s b o d y, testified that the victim rec eived five g unshot wounds: one to the upper lip; one to the rig ht side of the fa ce at the rig ht edg e of the nos e; one to the nec k just below the tip of the chin; one to the f ront of the rig ht e ar; and one to the back. The g unshot w ound to the ear , which wa s a nea r g unshot fired within z ero to twe nty -four inches of the victim’s body , passed into t he fr ontal lobe of the vic tim’s-6-

brain, re ndering him imm ediately unconscious and c ausing his de ath. The rema ining f our g unshot wounds wer e cla ssified as “distant,” meaning that the bullets that cause d those respe ctive wounds

wer e all fir ed from a distance g reater than twe nty -four inches fr om the body . All five g unshot wounds occ urre d “within a short time period of five ( 5) to ten (10) minutes,” but Dr. Ha rlan said he

was una ble to determine the orde r in whi ch t h ey we re inflicted. He sa id that the victim’s blood tested neg ative for

drug s and alc ohol. On cross-e x amination, Dr. Ha rlan a g ree d that the four
g unshots other than the fatal shot to the brain would not have incapa citated the victim and that he

wo uldha ve re ma ine d “ fu lly fu nc tio na l” up on re c e ipt of tho se wo un ds . H e te sti fi e d h e wa s u na ble to determine w hether

the victim was ly ing dow n at the time the fata l wound was inflicted, but the victim could not have rece ived t he fatal wound i n the ex act position in which his body was found.

Albert F uqua, who wor

ked as a diesel mec h an i c for the victim, testified he first saw the de fe nd a nt o n th e da y

of the sh oo tin g “ fa ir ly

e arl y in the mornin g

. . . in the ne ig hb or ho odof e ig htthi rt y (8 :30 )” a .m. Th e de fe nd a nt r e la te d to him so me of the pr ob le ms h e had ex peri e nc e d w hil e working in Maine, and told him that his c ar was blocked at the shop and he had come to ge t his pay from the victim. Fuqua saw the defe ndant sever al more times tha t morning and, at some point bef ore lunchtime, saw him in a heated ar g ument with the victim. At that tim e the victim was w orking on top of the trac k that car

ried wood c hips from the saw to a trailer, and, a lthough F uqua could not hea r

every thing that was said over the noise of the mac hinery , he hea rd the victim threaten to throw the defe ndant into the saw if the de fenda nt came up w here he wa s working . Fuqua said the def

endant disappea red shortly afte r the arg ument, and that he thought he saw him lea ve in the C h ev yS -10 truck. How ever , when the de fenda nt rea ppear ed ea

rly that afte rnoon, F uqua did not see the truck.

Fuqua testified he he ard the mill shut down as he and J ohnny Henry , another employ ee, w ere stacking crossties and the victim wa s working in the saw c ab above the g round. He nry told him t he defe ndant had c ut the power
, and when Fuqua looked up, he saw the def endant standing beside the

ma in c ir c uit

br e ake rs . H e ne xt sa w the de fe nd a nt wa lk to a po int wh e re he c ou ld l oo k d ir e c tly int o the sa w c ab, a nd
, wh ile ho ldi ng a g un in o ne ha nd , b e c ko n w ith the oth e r h a ndfo r the vic tim to c ome down. Fuqua testified t he victim came out of t he cab and walked to the edg e of the platform, and he and the defe ndant shouted ang ry words at eac h other. Towa rd the e nd of the a

rg ument, he hea

rd the de fe nd a nt s a y

the vic tim

wo ulde ith e r p a y

him or he wo uld sh oo t the vic tim a ndthe vic tim

re ply that if the def

endant we re g oing to shoot him, to go a head a nd shoot. Seconds later, the defe ndant fired two shots, with the first shot striking the victim in the j aw. After being shot, the victim beg an making his way

throug h a nar

row ope ning be tween a

hy draulic unit and an elec trical tra nsformer

. The de fenda nt first looked around at the ot her employ ees in a threatening manner and then started off in the victim’s dire ction. At that point, F uqua fled to his truck and drove down the road to notify Toothman of the shooting . As he exit ed the premises, he passed the de fenda nt’s fathe r, driving the Chevrolet S-10 truck, w ho was on his way in.

Fuqua testified he did not see the victim with anything in his hands before the first shot was fired. H oweve r, bec ause the laser lig ht was found afte r t he shoot ing down in the g rave l below wher e the victim had bee n standing , Fuqua thought it possible the victim ha d been holding it in his rig ht hand and ha d thrown it down as he attempted to flee . He sa id the victim gr abbed his mouth afte r the-7-

first shot was fired, and he was confide nt the victim ha d nothing in his hands at that time. Ac cording to Fuqua’ s testimony
, the victim ha d turned completely sideway s at the time the defe ndant fire d the first shot and appe are d to be attempting to ge t away from the def

endant. He testified: “The best way I can de scribe it is afte r .

. . whateve r [the victim] said, it looked like that [t he victim] realized, there, that the [defenda nt] was g oing to shoot him. And that’s when he turned and I ’m g oing to - - in other words, that’s what it looked like.”

Th e vic tim ’s br oth e r, V ir gil Kni g ht, wh o w or ke d a s a ma int e na nc e ma n a t th e sa wm ill
, testified he f

irst saw the de fen dant on the day of the shooting at about 10:00 a.m. He said the defe ndant appr oache d the victim, say ing he owed him $5000, a nd the victim replied that he did not
owe any thing because the defendant had not done any work. There afte r, t he men exchang ed “ba d

wo rd s” fo r a

bo ut t wo min ute s, un til the vic tim re su me d s a wi ng a ndthe de fe nd a nt le ft the sa wm ill

. After about thirty

minutes, the defe ndant re turned a nd beg an walking around the saw c ab, pee ring throug h its windows at the victim. The victim ig nored him, howe ver, r emaining in the saw c ab and continuing to wor

k throug h the usual lunch bre ak.

L ater that afte rnoon, Virg il Knight met the de fenda nt in the sawmill as t h e def endant wa s returning from a trip out to the victim’s vehicle, which ha d arouse d Virg il Knight’s suspicions. The de fe nd a nt t oldhim

the vic tim

ow e d h im $ 50 00 , a nd he a dv ise d the de fe nd a nt to let “ the la w” ha nd le the dispute. The de fenda nt responded tha t the vi ctim would just “buy the law of

f” a nd that he had been in jail befor e and did not car e about trouble. As he walked off, the defe ndant also said that the victim was “g oing to r eg ret it.” Virgil Knight t estified he was hea ded to warn the victim not to leave the saw cab when the defendant cut the power to the m ill. Be fore Knig ht could rea ch the sa w ca b, the victim had run down the steps, straig ht into the defenda nt’s g un. Th e wi tness described the

sc e ne :

And when I looked up, [t he victim ] done run down the steps

an d h e h ad t h e gu n ri gh t i n h i s fa ce

. P o w. (D em o n s t ra t i n g s h o o t i n g) Straig ht in the fac e. Rig ht in the jaw. And [ the victim] run, run around the car . And he shot him rig ht in the back. B eca use how
come me to know it was his back, the blood poppe d out there a s soon

a s th a t bu lle t hi t.

An d [t h e v ic ti m] ru n ar o u n d
, h e r e ( in d ic a ti n g )
, a n d h e [t he defe ndant] run around the other side. Come around and shot four ( 4) more times. B efor e I

knew whe re he shot him at , i f i t was in t he head.

Well, he come on back around and swing ing his pistol . And I run ar o u n d th e r e w h e r e [t h e v ic ti m] w a s a t. A n d [t h e v ic ti m] was de a d. I me a n, I pic ke d h is arm up a nd e ve rythi ng a nd he wa s p lumb dead, the n.-8-

The witn es s testified the victim was at the bottom of the stair s leading to the saw c ab, the de f e n d a n t w a s te n to tw e lv e f e e t f r o m th e v ic ti m, a n d h e w a s ap p r o xim a te ly th irty fee t from the defe ndant, when the defe ndant first shot the victim. On cross-e x amination, he ac knowledg ed he initiallytold police that the def endant ha d shot the victim four tim es i n the chest but explained that he ha d g ive n the state me nt wh ile in a state of e mot ion a l sh oc k. He sa id he ne ve r he ard the vic tim threa ten to throw the de fenda nt into the saw.

J ohnny Hen ry , S r. , t es t ified he w as working for the vic tim at the sawmill the day of the shooting whe n the def

endant a pproac hed him sometime bet we en 1 :00 and 2:00 p.m., asked for a cig are tte, and said, “ [I ]f this son of a bitch a in’t g ot my money ,” refer ring to the vi ctim, “I ’m g oing to b low his br a ins ou t.” Th inking it w a s ju st a ng ry ta lk, the wi tne ss t oldthe de fe nd a nt, “ [W]ell
, that’s betwe en y ’all,” a nd walked of f. He was later working beside Albert Fuqua when he hear d the
power to th e mi ll s h u t o f

f

. L o o k in g u p , h e s a w th e d e f e n d a n t w a lk f

r o m th e e le c tric a l b o xe s to a position wh er e the victim could see him through the windows of the sa w ca b, and bec kon for the vic tim to c ome do wn . T he wi tne ss d e sc ri be d w ha t ha pp e ne d n e xt:

Whe n, [the vic tim ] w ou ldn ’t c ome do wn sta ir s, he - - Th e re is

a l i t t l e walkway

and ther e’s a

littl e g rey

box when y ou - - whe re y ou’ve g ot to come throug h at. And there ’s a y ellow laser light. He pic ke d - - [T he vic tim ] g ra bb e d th e la se r l ig ht. He ha d a la se r l ig ht i n his hand.

And he wa lked over

t h er e and this man, rig ht here (indicating ), was fac ing him. He had the g un out. He did, he - - whe n he motioned him down, he had his gun out. B ut when - - when [the victim] g ot on that litt le wooden platform, he had his g un rea dy . He

was a iming his g un and eve rything.

Well, [ the victim] told him, he said, well, y ou son of a bitch,
y ou better shoot me.

As soon as [the victim] took one (1) step off that platform, he shot. Then I seen [the victim] drop the lase r lig ht and g rab his fa ce. Then he spun around a nd he ra n back up to w here that littl e g rey box

was a nd I hear d another

shot.

And afte r that, I don’t know. I couldn’t t el l y o u what happene d, beca

use I took off running

.

The witness testified t he victim still had one foot on the pl atform and was ten to fifteen fe et from the de fenda nt when the de fenda nt fired his first shot, and was running awa y from the de fenda nt when the de fenda nt fired the se cond shot

. He did not see the victim with any thing be sides the laser light in his hands. He testified the victim ne ver struc k or attempted to strike the defe ndant with the-9-

laser lig ht, and was still far e noug h from the de fenda nt at the time th e fi rs t s h ot was fire d that the defe ndant “c ould have g ot out . . . of there befor e [the victim] g ot to him.” On cross-e x amination, he acknow ledg ed that there was no question but that the victim ha d g rabbe d the laser light to use a s

a we apon.

The State’s f

inal witness, J essie He nry , who worked as a sawy er f or the victim, testified he saw the de fenda nt and the victim arg uing at about 10:00 a.m. on the day of the shooting and hea

rd the victim order the defe ndant to leave his property

. The defenda nt left, but returned at a bout 1:00 or 1:30 p.m. and beg an pacing up and down. At about 2: 00 or 2:30 p.m., the witness was in the sa w cab with the vi ctim when the elec trical curre nt shut off and the defendant walked i n front of the cab and motioned for the victim to come down. Pushing the witness aside, the victim r an out of the ca b, do wn the ste ps , a nda lon g the wo od e n p la tf or m to a g ray e le c tr ic a l bo x, wh e re he tol d the de fe nd a nt, “[Y]ou better shoot me, now.” The witness testified that the wor ds were “no sooner . . . said” than the de fe nd a nt s ho t th e vic tim in the ja w. Ne xt, the de fe nd a nt “ we nt a ll the way aro un d in a

c ir c le with his gun,” coming near the witness in a thre atening manner , befor e the victim “kind of turne d” and the de fenda nt shot him ag ain. The vic tim then gr abbed his stomach a nd made his wa y around the wa ll t o th e oth e r s ide , w he re he fe ll f a c e do wn ov e r so me log s. Af te r watc hin g the vic tim

fa ll, the witness turned ba ck ar ound and, not see ing the defe ndant any wher e, jumped fr om the saw c ab and fle d to his truck. On the way
, he encountere d Virg il Knig ht, told him he thought his brother wa s de a d, a nd wa

rn e d him not to g o to tha t ar e a of the sa wm ill

. As he c on tin ue d p a st V ir g il K nig ht t o his ve hic le
, he he ard thr e e mor e g un sh ots , w hic h p ro ba bly oc c ur re d w ith in “ se c on ds ” a ft e r the fi rs t two wer e fire d.

The witness stated tha t the victim never le ft the platform and he ne ver sa w him with any thing in his hands. He ac knowledg ed he told poli ce i n a stateme nt he wrote approximately three hours afte r the shooting that the victim ha d picked up a wre nch as he started outside, but he sa id he was mistaken, explaining: “Ye s, sir, but I . . . that’s what I thought, but [the victim] didn’t have nothing [si c] in his hand. W hen he w ent off the m [ sic] st eps, he ha d both ha nds on them [si c] r ails, in a run.”

The fir st two witnesses who testified on the defenda nt’s behalf wer e his mother and f ather
, Wanda and L arry

Thomason. Wanda Thomason testified that the defe ndant aske d his father the morning of the shooting to take him to ge t his car and they left the house tog ether

betwee n 11:00 and 11:30 a.m. At about 1:30 p.m., the defe ndant called and told he r the victim wa s not going to give him hi s mo ney or his c ar a ndhe ne e de d h is f a the r t o r e turn to pic k h im u p. With re sp e c t to his
money , the defendant tol d her that he was g oing to have to “write it off a s a loss”; he did not make
any threa ts toward the victim. On cross-examination, Mrs. Thomason identified the murde r we apon as her fathe r-in-la w’s pistol, which had be en kept in a c hest of drawer s for the pa st thirtyy ear s. She said she wa s not awa

re that the defendant knew its location, and she had not seen him with the g un when he left the house that morning.

L arry Thomason testified he took the de fenda nt first t o the shop, wher e they saw that the de fe nd a nt’ s c ar w a s b loc ke d, a ndthe n to the sa wm ill , a rrivi ng be tw e e n 11:4 5 a. m. a nd12 :00 p. m. After letting the de fenda nt out, he waited f or about ten minutes until the defenda nt returne d to the-10-

truc k a ndtol d h im t o g o h ome , th a t he wo uldg e t “ him ,” wi tho ut m e nti on ing a nam e, to tak e him back to g et his car . Howeve r, whe n he ar rived home, his wife informed him that the def endant ha d called and wanted him to return to g et him. Every one wa s leaving the pre mises as he a rrived ba ck at the saw mill, and he parke d, g ot out, and bega n walking down the hill toward the building s. The defe ndant, pistol in hand, met him, told him the victim ha d threa tened him with a wre nch and he had sh ot h im, a nda sk e d to be take n to the sh e ri ff ’s of fi c e . Wh e n he re fu se d, the de fe nd a nt s a id, “ [W]ell
, we’ ll just wait” be cause it would not be long be fore “they will be here , anyhow.”

Mr . Tho ma so n tes tif

ie d he did no t know the de fe nd a nt ha d the pis tol un til he sa w h im w ith it a ft e r the sh oo tin g . He ide nti fi e d pho tog ra ph s of the we apo ns he ha d ke pt in his hom e , w hic h, in addition to the murder we apon, included a n assortment of shotg uns, a .22 rifle with a scope, and a .32 Colt. He said he had a mmuniti on for a ll the weapons, but they wer e kept unloade d in the house. Had the de fenda nt give n any indication that he inten d ed t o h ar m the victim, he would have never take n h im t o th e sa wm ill . O n c ro ss- e xami na tio n, he de nie d h e wo uldha ve be e n le ss l ike ly to m iss the .22 pistol, kept in the dresser draw er, tha n one of the wea pons kept in his gun r ack.

T i m o t h y W ay n e A d co ck t es t i fi ed h e wa s a sa wy er an d t h e cu rr en t o wn er o f t h e P o p l arR i d ge

s a w mi ll

. H e id e n ti f

ie d th e r a tc h e t f

o u n d a t th e mu r d e r s c e n e a s a th r e e

- q u ar te r

- in c h r a tc h e t, th e s iz e require d to made periodic adjustments to the saw’s g uide sy stem in order to make the saw r un true, and said that 90% of the time he was working he kept a simil ar r atche t within arm’s leng th. Adcock testified he employ ed some of the same men who had w orked f or the victim, and he hear d a diffe rent sto ry e ve ry tim e he he ard the m re la te the e ve nts that tra ns pir e d o n th e da y of the sh oo tin g . O n c ro ssexamination, Adcock testified that shutt ing of f powe r to the sawmill while the saw was c utting risked not only

ruining the $2600 to $3000 saw, but also the sha ft, which cost a minimum of $1500, and re quired two-a nd-a- half da y s of labor to install. Adcoc k ag ree d that having the power shut off while sawing would cre ate a “crisis si tuation.”

Ernie Ellis, a re sident of Spri n gfi el d
, R obertson County , testified that the victim had a

re p u t at i o n i n t h e co m m u n i t y fo r v i o l en ce

. Fu rt h er m o re , b as ed o n h i s o wn p er s o n al b u s i n es s d ea l i n gs wi th the vic tim , h e be lie ve d him to be a vio le nt pe rs on wh o wo uld take ma tte rs in h is o wn ha nd s if he did not g et his w ay

. Another Springf ield resident, Kermit Steven B arbe e, also testified tha t the victim had a re putation in the communityfor violenc e and t h at h i s p er sonal opinion was that the vic tim wa s a vio le nt m a n. B arb e e sa id he ha d pe rf or me d lan ds c apin g wo rk

fo r the vic tim

in the pa st, for whic h he had ne ver be en paid. He stated that whe n he first a sked the victim for his money upon completion of the wor

k, the victim told him to return f o r i t in a wee k. Howeve r, whe n he
approa ched the victim in his truck a wee k later, the victim told hi m they did not have a c ontrac t and he wa s not g oing to pay

him. W hen he pr otested, the victim “c huckled a littl e bit” as he pulled out a twenty -five a

utomatic, laid it on the dash of his truck, a n d repe ated, “ [Y] ou ain’t g etting pa id.” On cr oss-examination, Bar bee a cknowledg ed the e vents he ha d described had oc curr ed in Octobe r 1987.

I nv e sti g a tor Tr a vis Wal ke r, re c a lle d by the de fe ns e , tes tif ie d he ha d s po ke n d ur ing the c ou rs e of the inv e sti g a tio n w ith B ill Wat ts, re c e nt ly decea se d, wh o h a d a llo we d th e de fe nd a nt t o u se his-11-

telephone to call his fathe r on the da y of the shooting . I nvestig ator Walker sa id that Watts reported that the def

endant’ s demea nor wa s normal during that time.

Kell y B e a tric e A d c o c k
, T im o th y A d c o c k ’ s w if e , te s ti f ie d s h e d id n o t s e e a n y b lo o d on or around the catwa lk when she visited the sa wmill at about the t ime of t he victim ’s funeral. Howe ver, she did see some small blood droplets in the area previously

described as the “ open are a” near the log s o ve r w hic h th e vic tim ha d f a lle n, wh ic h s he ind ic a te d b y marking on a ph ot ograph. Mr s. Adcoc k also said that, during that same time, she f ound a larg e metal wre nch in t he “two shot” are a of the saw mill. On cross-examination, she acknow ledg ed that Ga ry Toothman and seve ral other

e mpl oy e e s w e re in the are a be fo re sh e arrive d. She fur th er a c kn ow le dg e d th a t sh e us e d b le a c h to clea n the blood at the murde r sce ne during the wee k of Oc tober 21.

The fina l witness for the de fense was Assistant Public D efe nder Richard D. Tay lor, J r., who
te sti fi e d h e ha d take n me a su re me nts a t the sa wm ill a nd fo un d th a t it

wa s f if ty -s e ve n- a nd -o ne -h a lf inches fr om the bottom of t he catwalk to the ground, a nd seventy -eig ht inches fr om the bottom of the ra ils to t he g round, at the e dg e of the previously marke d “open a

rea .”

AN AL YSI S

I. Sp ecial Jury Instruction

As his first issue, the defe ndant contends tha t the t rial court err ed in i ts instructions on selfde fe ns e , w hic h in c lud e d th e fo llo wi ng :

Th e re is n o d uty

to r e tr e a t be fo re a pe rs on us e s fo rc e

. Th e us e of for ce ag ainst another is not just ified if the de fenda nt provoked the dece ased[’s] u se or attempted use of unlaw ful forc e[] [u] nless the defe ndant aba ndoned the en co u nter or c lear ly communicated to the dece ased the intent to do so and the dec ease d never t h e l ess [sic] attempted to use unlaw ful forc e ag ainst the defe ndant.

Def ense c ounsel unsucce ssfully soug ht to have the following statement on provoc ation inserted at the c on c lus ion of

the abo ve pa

ra g ra ph :

This does not mean that if the victim wa s provoked to use or

a tte mpt to u se un la wf

ul f or c e , bu t w he the r a

[sic ] av e ra g e re a so na

ble person would ha ve bee n provoked to use such unlawful force

. You may find that the victim was provoke d to use unlawful forc e, but that a [sic] aver ag e re asonable person would not have been so provoked, in which ca se the de fenda nt’s use of f orce could be justified.

Th e de fe nd a nt a

rg ue s o n ap pe a l tha t the tr ia l cou rt ’s ins truc tio ns fa ile d to a de qu a te ly e xpla in that Tenne ssee Code A nnotated sec tion 39-11-611, the statute on self-de fense
, codifies the c ommon-12-

law conc ept of “ the initial ag g ress o r. ” He cites the sente ncing commission comments to t he selfde fe ns e statut e , w hic h s ta te in p e rt ine nt p art :

Su b s ec t i o ns (c) , (d) a nd (e) are restric tions to t he def ense. Subsections (c) and (d) continue the traditional rule that the de fenda nt claimi n g justification should be fre e fr om fault in bring ing on the

nece ssityof using forc e. . . .

Subsection (d) a lso restricts the de fense by codify ing the traditional conc ept of the initial ag g ressor. In orde r t o use the defe nse, the initial ag g ressor must wit h dr a w o r c o mm u n ic ate a n intent to withdraw a nd the forc e must continue despite this communication. See I rvine v. State, 104 Te nn. 132, 5 6 S

. W

. 845 (1900); Ga nn v. State, 214 Tenn. 711, 383 S.W.2d 32 (1964).

Tenn. Code Ann. § 39- 11-611, Sentenc ing Comm’n Comments.

I n G a nn , o ur

su pr e me c ou rt

e xpla ine d:

The law of Tenne ssee is that an a g g ressor, w ho produce s fea r or

app re he ns ion of

de a th o r g re a t bo dil y

ha rm in t he mi ndof

his

a dv e rs ary , c a n n ot l a wf ull y de fe nd his lif

e a g a ins t th e de a dly defe nsive ac t of his adver sary by taking the latter’ s life, until he has

re s to r e d h is r ig h t o f s e lf

- d e f e n s e , lo s t b y h is in it ia l f a ult, by abandoning and withdra wing from the c ontest and g iving n otice of the fa ct to the adve rsary

.

383 S.W .2d at 36.

Charac terizing his ac tion in cutting the powe r to the sawmill as “slig ht provoca tion” intended solely to ge t the victim to enga g e in conver sation with him, and ignoring the fa ct that he f ollowed that action by

holding a gu n o n t h e victim as he be ckoned him fr om the saw c ab, the de fenda nt arg ues that had the ju ry re ce i v ed the special instruction he re quested, it could have found that he “wa s not the i nitial ag g ressor a nd thus did not l ose his claim for se lf-def ense.” The State re sponds by noting that the trial court issued the pattern jury instruction on self-de fense and re fer red the jury to th e d e f in it io n o f a d e q u a te p r o v o c a ti o n p r e v io u s ly g iv e n in c o n n e c ti o n w ith th e in s tr u c tions on voluntary manslaug hter. The State further notes that defe nse counse l acknowle dg ed at trial that the specia l jury

instr u cti on might be “ redunda nt.” The State, the ref ore, a rg ues that the trial c ourt’s instructions c ontained a fair and acc urate statement of the law , and that it did not err in re fusing the specia l instruction.

De fe nd a nts ha ve a

“ c on sti tut ion a l r ig ht t o a

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

rg e of the la w. ” Sta te v. Tee l, 793 S.W .2d 236, 249 (Tenn. 1990) . According ly , trial courts ha ve the duty to give “a-13-

complete c harg e of the law applica ble to the fa cts of the case .” State v. Dave nport, 973 S.W .2d 283, 287 (Tenn. Crim. App. 1998) (citing State v. Har bison, 704 S.W .2d 314, 319 (Tenn. 1986) ). As long a s the instructions give n ar e co rr ec t statements of the law and “f ully and fa irly

set forth the applicable law,” the trial court doe s not commit error in “r efus[ing] to give a spec ial instruction
reque sted by

a party .” State v. B ohanan, 745 S.W.2d 892, 897 (Tenn. Crim. App. 1987).

The rec ord ref

lects that the trial court’s full instructions on self-de fense trac ked, almost word for wor d, t h e l ang uag e of the pattern jury instruction. See Tenn. Code A nn. § 39-11-611 ( 1997); T.P.I . –Crim. 40.06 (6 ed. 2001). We, ther efor e, ag reewith the State that the instructions contained th a fa ir and a ccur ate state ment of t h e l aw and that the tria l court did not err in refusing to give the
sp e c ia l in str

uc tio n r e qu e ste d b y

the de fe nd a nt.

II. Su ff iciency of the Evid ence

The de fenda nt next challeng es the suff iciency of the evidenc e in support of his first deg ree preme ditated murder

conviction. When the suffic iency of t he convicting e vidence is challeng ed, we must consider “w hether , afte r viewing the evidence in the light most favora ble to the prosec ution,
any ratio na l trie r o f f

a c t c ou ld ha ve fo un d the e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble doubt.” J ackson v. V irg inia, 443 U.S. 307, 319, 99 S. C t. 2781, 2789, 61 L

. Ed. 2d 560, 573 (1979);

see a lso Tenn. R. App. P. 13(e) ( “F indings of g uilt in criminal actions whether by the trial court or jury sh a ll be se t asi de if the e vid e nc e is ins uf fi c ie nt to sup po rt the fi nd ing s by the tr ie r o f f

a c t of g uil t bey ond a re asonable doubt.”); State v. Evan s , 8 3 8 S

. W.2d 185, 190-92 (Tenn. 1992); State v. An de rs on , 8 35 S.W. 2d60 0, 60 4 ( Te nn . Crim . App . 199 2)

. Al l que sti on s invo lvi ng the c re dib ili ty of witnesses, the w eig ht and value to be g iven t he evidence, and all factual issues ar e re solved by the trier of fac t. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “ A g uiltyverdic t by the jury , approve d by

the trial judg e, ac cr ed its the testimonyof the witnesse s for the State a nd resolves all conflicts in favor of t he theory of t he S tate.” State v. Grac e, 493 S.W.2d 474, 476 (Tenn. 1973). Our supr eme c ourt stated the r ationale f or this rule:

This well-settled r

ule re sts on a sound foundation. The tria l judge and the jury

see the witnesses face to fac e, hear their te stimony and observ e their deme anor on the stand. Thus the trial judg e and jury are the primary

instrumentality

of justice to determine the weig ht and cr edibilityto be g iven to the testimonyof witnesses. In the trial forum alone is there human atmosphere a nd the totality of the

e vid e nc e c a nn ot b e re pr od uc e d w ith a writt e n r e c or d in thi s Co urt.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) ( citing Ca rroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1963)) . A jury conviction re moves the pre sumption of innoc en ce with which a defe ndant is initi ally

cloake d and re place s it with one of g uilt, so t hat on appe al, a c onvicted defe ndant has the bur den of de monstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

.-14-

The de fenda nt was convic ted of fir s t d egre e murde r, def ined as “ [a] preme ditated and intentional killi ng of anothe r.” Te nn. Code Ann. § 39-13- 202(a) (1) ( 1997 & 2003) . Premeditation is defined a s

a n a c t do ne a ft e r the e xer cis e of r e fl e c tio n a ndjud g me nt.

“Preme ditation” means that the intent to kill must ha ve been f ormed
pr ior to the act it self. I t is no t ne c e ssa ry that th e pu rp os e to kill
pre- exis t in the mind of the ac cu s ed for any definite pe riod of time. Th e me nta l st a te of

the a c c us e d a t th e tim e th e a c c us e d a lle g e dly decide d to kill m ust be ca ref ully considere d in order to determine whether the ac cused w as su ff

iciently fre e fr om excitement and passion as to be c apable of pre meditation.

I d. § 39-13-202( d) (1997 & 2003).

I n Tenne ssee, onc e a homicide is e stablished it is presumed to be second de g ree murder a nd the Sta te be ars the bu rd e n o f p ro vin g the e le ment of pre me dit a tio n to e le va te the of fe ns e to f ir st deg ree murd er

. S ee S t at e v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999); State v. Br own, 836 S.W.2d 530, 541 (Tenn. 1992). Whether premeditation exis ts is a question for the jury to determine ba sed on the evidenc e, and it may be esta blished by

the def endant’ s conduct a nd the circumstances surrounding the ki lling. See S tate v. Suttl es, 30 S.W .3d 252, 261 (Tenn. 2000); State v. Bla nd, 958 S

. W

. 2d 651, 660 (Tenn. 1997) . Our c ourts have listed a number of dif

fer ent fa cts from whic h
p re m ed i t at i o n m ay b e in fe rr ed
, i n cl u d i n g ev i d en ce t h e de fe n d an t h ad a mo t i v e f o rt h e k i l l i n g;

e vid e nc e that th e de fe nd a nt p ro cure d a weapon ; th e de fe nd a nt’ s d e c laratio ns of a n in te nt t o k ill ; evidenc e the de fenda nt made pre parations to concea l t he crime befor e the killing; the de fenda nt’s use of a deadly wea pon on an unarmed victim; the particula r cruelty of the killing; e vidence that the victim w a s r e tr e a ti n g o r a tt e mp ti n g to f le e ; in f li c ti o n o f mu lt ip le w o u n d s ; e v id e n c e of the defe ndant’s ca lmness immediately following the killing; and the de fenda nt’s destr u c ti o no r s ecr etion of evide nce a fter the killing. See State v. Delling er, 79 S.W.3d 458, 492 (Tenn. 2002), c ert. de nied, 537 U.S. 1090, 123 S. C t. 695, 154 L . Ed. 2d 635 (2002); State v. Nic hols, 24 S.W .3d 297, 302 (Tenn. 2000) ; State v. Pike, 978 S.W .2d 904, 914 (Tenn. 1998) ; Bland, 958 S.W.2d at 660; St ate v. L ewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000).

Th e de fe nd a nt c on te nd s th a t th e Sta te fa ile d to pr ov e premed itatio n b e y on d a re a so na ble doubt and that the evidenc e at most supports a conviction for second deg ree murder. I n support, he cites, int e r a lia , the evidenc e that the victim approa ched him in a threatening manner while armed with a laser light and a ratc het; the fac t tha t he shot the victim in the prese nce of witnesses, made no prepa rations bef

oreha nd for c oncea lment of the crime, and made no attempts to flee or secr ete a ny

e vid e nc e a ft e r the kil lin g ; a nd his state me nt to pol ic e , in whic h he c la ime d tha t his sole int e nti on in returning to the s aw m i l l wa s t o get the victim to talk to him about his money and that he shot the victim in self-defe nse afte r he twice came at him in a menac ing manner

. The State arg ues that the evidenc e of pr emeditation was ove rwhe lming, and w e ag ree

.-15-

When v i ewe d in the light most favor able to the State, ther e wa s ample evide nce to show bey ond a re asonable doubt that the defe ndant committed an intentional and pr emeditated killing of the victim. The defe ndant had a clea r motive for the crime; took steps to retrieve the mur der w eapon fr om the dr e sse r d ra we r i n w hic h it wa s st or e d, loa d it wi th a mmu nit ion
, a nd c arry it t o th e sa wm ill without his parents’ knowledg e; made a direc t de clar ation of his intent to kill the victim to J ohnny Henry ; pace d up and down be side the saw c ab in an unsuc cessf ul attempt to g et the victim to eme rg e;

warned the victim’s brother that the vi ctim was going to “re g ret it ”; deliberately cut the powe r to the

sa wm ill , th e on e a c tio n h e mus t ha ve kn ow n w ou ld e nr a g e the vic tim e no ug h to draw hi m at la st from the r elative sa fety of t he saw cab; be ckoned the victim down with his pi stol in hand; shot t he vic tim in the ja w wh e n the vic tim
, re a lizin g he wa s se ri ou s, wa s turnin g to fl e e ; sh ot the vic tim in the ba c k a s h e wa s r

un nin g a way ; a nd , f

ina lly , f oll ow e d th e vic tim

to the oth e r s ide of

the wa ll, wher e he f

ired thre e more shots that struck the victim’s body , including the close-r ang e, fata l shot to the victim’s head. The defe ndant’s calmness befor e and afte r the shooting is additional evidence in support of the jury ’s finding that the ac t was pre meditated.

The de fenda nt relies on his statement t o police to assert that the evidenc e shows he f irst shot the vic tim

“ in f e ar o f h is l if

e a ndin a la st m inu te de c isi on ,” a s th e vic tim a dv a nc e d o n h im w hil e

armed wi th a la se r l ig ht a nda ratc he t, a ndfi re d th e fata l sh ot o nly wh e n h e “ fo un d [th e vic tim ] char g ing at him ag ain” as he rounded the corner of the wall on his way out of the saw mill. I n support of this version of e vents, defe nse counse l spent a gre at deal of t ime at trial attempting to show the alternate, ea sier route s the victim could have taken to esca pe and/or rea ch the side of t he wall where his body was found. A ll the ey ewitnesses to the shooting , howeve r, c h ar ac t er i zed the victim as

a t t e m p t i n g t o f

l e e f r o mt h e d e f

e n d a n t a f t e r t h e i n i t i a l s h o t w a s f

i r e d

. F u r t h e r m o r e , J o h n n y H e n r y, the only witness to unequivocally t es tify that the victim was initiallyarme d, corr oborate d other
ey ewitnesses’ acc ounts tha t the victim wa s at least ten fee t f rom the def

endant whe n the def

endant first fire d his gun. I n sum, there was ample evidenc e from which the jury could have inferr ed that the def endant pr emeditated the victim’s killi ng . There fore , afte r viewing the evidenc e in the lig ht most favora

ble to the State, we conclude that it was sufficient for a rational trier of fac t to find the defe ndant g uiltybey ond a re asonable doubt of first deg ree preme ditated murder

.

III. Pr osecutor ’s Alleged Im proper Com m ent During Closing Argume nts

As his final issue, the de fenda nt contends that the prose cutor made an improper comment du ri ng c los ing arg ume nts , u nf a ir ly pr e jud ic ing the ou tc ome a nd e nti tli ng the de fe nd a nt t o a ne w t ri a l. Spe c if ic a lly
, he arg ue s that th e pr os e c uto r’ s st a te me nt, “ An d if y ou c ho os e the le sso r [s ic ] of fe ns e of criminally neg lige nt homicide
, y ou might as well g ive the defe ndant a badg e and a g un and make him the CountyDebt Collector,” amounted to te lling the jury that

. . . “an acquittal on first deg ree

mur de r w ou ld b e ta nta mou nt t o n o p un ish me nt. ” Th e Sta te a rg ue s, a lte rn a te ly , th a t th e iss ue is waived, the prosec utor’s re marks we re innoc uous, and the comment could not have r esulted in any
p re j u d i ce s i n ce t h e j u ryco n v i ct ed t h e d ef en d an to f f

i rs td egr ee m u rd er , an o f f e n s e s e v er al ru n gs above the lesser of

fense to which the prose cutor re fer red in the state ment.For e x ampl e, t h er e i s n o w ay for u s t o de t er mi n e i f the st at em ent o ccu r r ed du r i n g r ebu t t al
, i n r es pon s e t o a 1

c o m m e n t b y d e fen se c o u n se l i n c lo sin g

.
-16- Te nn e sse e c ou rt s “ ha ve tr a dit ion a lly pr ov ide d c ou ns e l w ith a wi de la titud e of dis c re tio n in the content of

thei r fi n al ar gu ment” and trial judge s with “wide discr etion in control of the
arg ument.” State v. Z irkle, 910 S.W.2d 874, 888 (Tenn. Cri m

. Ap p

. 1995). A pa rty ’s closing
arg ument “must be t em p er at e, predicate d on evidenc e introduce d during the trial, re levant to the issues being tried, and not other wise improper under the fac ts or law.” State v. Middlebrooks, 995 S.W. 2d55 0, 55 7 ( Te nn . 1 99 9) . T he fi ve g e ne ra lly re c og nize d are a s o f p ro se c uto ri a l mi sc on du c t in closing arg ument occur when the prosec utor intentionally misstates the evidenc e or misleads the jury on the infer ence s it may

draw from the e vidence ; expresses his or her pe rson al o p i n i o n on the evidenc e or the def

endant’ s g uilt; us es ar g uments calc ulated to inflame the passions or pre judices of th e j u ry ; diverts the jury from its duty

to decide the case on the evidenc e by injecting issues broade r than the g uilt or innocence of the a ccuse d under the controlling la w or by making predic tions on the conse quence s of the jury ’s ver dict; and intentionally ref ers to or a

rg ues fa cts outside the

rec ord, other tha n those which a re ma tters of common public knowledg e. State v. Goltz, 111 S.W .3d 1, 6 (Tenn. Crim. App.) , perm. to appe al denied ( Tenn. 2003).

For a def endant to be entitled to a new tria l on the basis of alleg edly improper r emar

ks during the c los ing arg ume nt, the y mus t be sho wn to ha ve pr e jud ic e d the c a se by a ff

e c tin g the jury ’s ve rd ic t. Middlebrooks, 995 S.W .2d at 559. I n determining whe ther this occur red, we consider the following fac tors: (1) the conduct viewed in lig ht of the circ umstances a nd fac ts in the case; ( 2) any curative

measure s taken by

the trial court and the prose cution; (3) the pr osecutor’ s intent in making the improper statements; (4) the cumulative eff ect of the prosec utor’s statements a nd other e rror s in the

rec ord; and (5) the re lative streng th and wea kness of the c ase. I d. at 560.

As noted by

the State, the only

portion of the clo s i ng arg uments included on appe al is the single sentenc e, quoted above, of which the defe ndant now complains. Thus, there is no evidence

a s to wh e the r the c omm e nt oc c ur re d du ri ng the pr os e c uto r’ s in iti a l c los ing arg ume nt o r o n r e bu tta l, whether defe nse counsel objected to the comment at trial; or whether the trial court iss u ed any

c ur a tiv e ins truc tio ns to the jury . It is the de fe nd a nt’ s d uty to p ro vid e a

fu ll a nd c omp le te re c or d to thi s c ou rt of the iss ue s he ra ise s on app e a l. Se e Te nn . R. App . P. 24 (b ). Th e de fe nd a nt’ s f a ilu re to pr ov ide the c omp le te re c or d, c omb ine d w ith his su g g e sti on that thi s c ou rt re vie w the iss ue a s p la in

err or, lea ds us to presume that he failed to m ake a contempora neous objec tion at trial. I n such a c ase, the iss ue is w a ive d. Se e Te nn . R. Ap p. P. 3 6( a ); Sta te v. L itt le
, 85 4 S.W. 2d 64 3, 65 1 (T e nn . Crim. App. 1992) (sta ting that f ail ure to objec t to prosecutor’ s alleg ed misconduct in closing arg ument waives la ter c omplaint).

Even if not waived, the issue is without merit. Ag ain, in the abse nce of a complete rec ord, it is si mply

impossibl e for

us to determine the c ontext i n wh i ch the state ment was made
, the 1
prosec utor’s intent, or whe ther the state ment was followed by any curative actions on t he part of the
prosec utor or the trial court. What is clea r, howeve r, is tha t the statement occur red in a case in which the State pre sented strong evidenc e of the d ef endant’ s g uilt. W e, conc lude, there fore , that the-17-

defe ndant is not entitled to a new trial on the basis of any alleg ed improper comment made by the
prosec utor in closing a

rg ument.

CO NC LU SION

B a se d o n th e fo re g oin g a uth or iti e s a ndre a so nin g , w e a ff ir m th e jud g e me nt o f the tr ia l c ou rt

.

___________________________________ ALAN E. GL

ENN, JUDGE