FILED

October 14, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9601-CR-00019

)

Appellee, )

)

) SHELBY COUNTY

VS. )

) HON. JOHN P. COLTON, JR.

TAURYS K. WALLS, ) JUDGE

)

Appellant. ) (Direct Appeal - Felony Murder)

FOR THE APPELLANT: FOR THE APPELLEE:

GERALD SKAHAN JOHN KNOX WALKUP

140 North Third Street Attorney General and Reporter

Memphis, TN 38103

WILLIAM DAVID BRIDGERS

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243

WILLIAM L. GIBBONS

District Attorney General

J. ROBERT CARTER, JR.

Assistant District Attorney

201 Poplar Avenue, Third Floor

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
 

1

 Appellant and h is co- defe ndant we re tried sep arate ly.

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OPINION

Appellant Taurys K. Walls was convicted in the Shelby County Criminal

Court on November 3, 1995 of murder in the perpetration of a felony, to wit:

robbery. The trial court sentenced Appellant to life imprisonment with the

Tennessee Department of Correction and imposed a $50.00 fine to be paid to the

Criminal Injuries Compensation Fund. Appellant presents the following issues

for our consideration on this direct appeal: (1) whether the evidence was

sufficient to sustain Appellant's conviction for felony murder; (2) whether the trial

court erred in overruling Appellant's motion to suppress his statement given to

police respecting his involvement in the murder of Melvin Charles Ferguson; (3)

whether the trial court abused its discretion in prohibiting defense counsel from

questioning the victim's brother about a lawsuit that the brother had filed in

connection with Ferguson's death; and (4) whether the trial court erred in refusing

Appellant's request for a supplemental jury instruction to the effect that all

homicides are presumed to be second degree murder.

After a review of the record, we affirm the judgment of the trial court.

I. FACTUAL BACKGROUND

The proof shows that on June 11, 1993, Appellant and his co-defendant,

Maurice Banks,1

 fatally shot Melvin Charles Ferguson after Ferguson thwarted

their attempts to rob him. The murder and robbery took place at the Scottish Inn

Motel in Memphis, Tennessee.

At trial, the victim's brother, Mr. Joe Ferguson, explained that at the time

of the murder, the victim had recently retired from the United States Army and
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was seeking employment in the Memphis area. Although Melvin Ferguson had

been alternating between his brother's house and his mother's residence in Fort

Smith, Arkansas, the victim moved to the Scottish Inn Motel a few days prior to

his death in order to afford some privacy to Joe Ferguson and his wife. Mr. Joe

Ferguson further testified that as his brother was unemployed, both Joe and his

mother occasionally gave the victim money. However, unknown to either Joe

Ferguson or his mother, the victim used some of this money to purchase cocaine

from various local drug dealers, including Jeffrey Davis.

A few hours before Ferguson's death, Jeffrey Davis accompanied Maurice

Banks to the victim's room at the Scottish Inn Motel and sold Ferguson $50.00

worth of cocaine. Mr. Davis testified that after completing the drug transaction,

Maurice Banks dropped Davis at Davis' apartment and drove away.

Approximately thirty minutes later, Mr. Banks returned to Davis' apartment

accompanied by Appellant, who carried a .38 caliber pistol. According to Mr.

Davis' testimony, Maurice Banks borrowed Davis' .380 semi-autom atic pistol.

Banks and Appellant then departed. Upon returning to Mr. Davis' apartment onehalf hour later, Appellant informed Jeffrey Davis that he had shot someone at the

Scottish Inn.

On June 16, 1993, Appellant was arrested as a suspect in the Ferguson

murder. Three days later, on June 19, Appellant gave a statement in which he

admitted his involvement in Melvin Ferguson's death. In his confession,

Appellant said that on the night of the incident, an individual who he identified as

"Bull" (Maurice Banks) picked him up in the parking lot of a Memphis apartment

complex and stated that he knew someone that the two of them could rob.

Appellant told the police that he carried a .38 caliber handgun and that Bull

armed himself with a .380 pistol. The two men drove to the Scottish Inn Motel
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and walked to a room on the second floor. After knocking on the door, Appellant

and Mr. Banks were admitted by a wom an. The victim was in the motel room

with the woman.

According to Appellant's statem ent, after approximately five minutes,

Melvin Ferguson asked Appellant and Bull which one of them "was straight," a

colloquialism meaning which person had drugs. Appellant replied that Bull was,

and Mr. Banks and the victim both moved toward the restroom. Bull drew his

pistol and apparently demanded that Ferguson give him money. Mr. Ferguson

handed Bull $300.00, went into the bathroom, and closed the door. Once inside,

the victim flushed the toilet and stated that he was going to flush the remainder

of the money.

Mr. Ferguson emerged from the restroom approximately one m inute later,

and when Bull asked him the location of the rest of the money, Ferguson replied

that he did not know. Bull hit the victim in the head with his pistol. Mr. Ferguson

blocked the motel room door with his body and stated that neither Appellant nor

Bull could leave the room until they returned his money. After trying for several

minutes to persuade Mr. Ferguson to step away from the door, Bull asked the

woman where the victim had put the rest of his money. The woman informed Bull

that the money was underneath a bush planted outside the motel.

Upon learning the location of the remainder of the money, Bull again asked

Ferguson to move away from the door. When Ferguson refused, Bull fired his

pistol at the victim's leg, and Appellant also shot at him. Appellant told the police

that Ferguson attempted to run down the hallway and away from his assailants.

However, Bull shot at the victim a few more times, and Appellant fired two more

shots at Ferguson. Appellant and Bull then ran from the building and fled the
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scene in Bull's car. Finally, Bull dropped off Appellant at the same apartment

complex where the two had met before the incident.

Dr. O'Brian Cleary Smith, an Assistant Medical Examiner for Shelby

County, testified that the victim sustained five bullets and died of multiple gunshot

wounds. Dr. Smith testified that he recovered only one bullet from the victim's

body. He stated that this bullet was located in Mr. Ferguson's abdomen and

identified the bullet as being fired from a .38 caliber pistol. Dr. Smith opined that

the wound from this bullet alone would have been sufficient to cause Mr.

Ferguson's death.

Appellant testified on his own behalf at his trial. Though Appellant

conceded his involvement in the incident, Appellant testified that he shot Mr.

Ferguson in self-defense. According to Appellant's trial testimony, on the night

of the incident, he accompanied Maurice Banks to the Scottish Inn Motel so that

Mr. Banks could sell drugs to someone residing there. Appellant denied that he

and Mr. Banks ever discussed the possibility of robbing anyone. Instead,

Appellant stated that when he and Mr. Banks arrived at Mr. Ferguson's room, the

room smelled as though Ferguson and his female companion had been smoking

"crack" cocaine. Moreover, both the woman and Mr. Ferguson appeared to be

high. Appellant further testified that the victim asked who "was straight."

II. SUFFICIENCY OF THE EVIDENCE

Appellant's first contention is that the evidence was insufficient to sustain

his conviction for murder during the perpetration of a robbery because there is no

evidence to demonstrate that Appellant robbed Melvin Ferguson. He further

alleges that the trial court erred in overruling his motion for judgment of acquittal.

We disagree.
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TENN. R. CRIM. P. 29(a) provides in pertinent part, "The court on motion of

a defendant. . . shall order the entry of judgment of acquittal of one or more

offenses charged in the indictment or information. . . if the evidence is insufficient

to sustain a conviction of such offense or offenses." Id. When presented with a

motion for judgment of acquittal, the trial court's only consideration is the legal

sufficiency of the evidence. State v. Blanton, 926 S.W.2d 953 (Tenn. Crim. App.

1996). Sufficiency of the evidence is the appropriate standard by which both trial

and appellate courts evaluate the adequacy of the evidence. State v. Cabbage,

571 S.W .2d 832, 836 (Tenn. 1978).

This Court is obliged to review challenges to the sufficiency of the

convicting evidence according to certain well-settled principles. A verdict of guilty

by the jury, approved by the trial judge, accredits the testimony of the State's

witnesses and resolves all conflicts in the testimony in favor of the State. State

v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75

(Tenn. 1992). Although an accused is originally cloaked with a presumption of

innocence, a jury verdict removes this presumption and replaces it with one of

guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the

burden of proof rests with Appellant to demonstrate the insufficiency of the

convicting evidence. Id. On appeal, "the [S]tate is entitled to the strongest

legitimate view of the evidence as well as all reasonable and legitimate

inferences that may be drawn therefrom." Id. (citing State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evidence is

contested on appeal, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reasonable doubt. Harris, 839 S.W.2d 54, 75; Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In
 

2

 In 1995, the General Assembly amended the definition of felony murder by dispensing with the

requirement that the prosecution prove that the killing was reckless. Tenn. Code Ann. § 39-13-202(a)(2)

(1997). 

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conducting our evaluation of the convicting evidence, this Court is precluded from

reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences "for those

drawn by the trier of fact from circumstantial evidence." Matthews, 805 S.W.2d

776, 779. Finally, TENN. R. APP. P. 13(e) provides, "Findings of guilt in criminal

actions whether by the trial court or jury shall be set aside if the evidence is

insufficient to support the findings by the trier of fact of guilt beyond a reasonable

doubt." See also Matthews, 805 S.W.2d 776, 780.

At the time of this offense, Tenn. Code Ann. § 39-13-202(a) provided in

pertinent part: "First degree murder is: . . . (2) a reckless killing of another

committed in the perpetration of. . . robbery." Tenn. Code Ann. § 39-13-202(a)(2)

(1991, Repl.).2 Tenn. Code Ann. § 39-11-302(c) provides:

(c) "Reckless" refers to a person who acts recklessly with

respect to circumstances surrounding the conduct or the

result of the conduct when the person is aware of but

consciously disregards 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 its disregard constitutes

a gross deviation from the standard of care that an ordinary

person would exercise under all the circumstances as viewed

from the accused person's standpoint.

Tenn. Code Ann. § 39-11-302(c).

Tenn. Code Ann. § 39-13-401 defines "robbery" as "the intentional or knowing

theft of property from the person of another by violence or putting the person in

fear." Tenn. Code Ann. § 39-13-401(a). Tenn. Code Ann. § 39-11-402 states in

part:

A person is criminally responsible for an offense committed

by the conduct of another if: . . . (2) Acting with intent to
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promote or assist the commission of the offense, or to benefit

in the proceeds or results of the offense, the person solicits,

directs, aids, or attempts to aid another person to commit the

offense.

Tenn. Code Ann. § 39-11-402(2).

The State is required to prove each and every element of the charged offense.

Appellant asserts that there is no evidence to prove that he robbed the

victim because Melvin Ferguson's wallet and over $20.00 were recovered at the

scene. The proof at trial demonstrated that both Appellant and his co-defendant,

Mr. Banks, armed themselves with pistols before going to the victim's motel room.

Moreover, in his confession, Appellant told the police that when Maurice Banks

picked him up, he told Appellant that he knew someone that they could rob.

Shortly after entering Ferguson's room, Banks drew his pistol and asked the

victim for money. The victim handed Banks $300.00 and then went into the

restroom. After Ferguson emerged from the bathroom, Mr. Banks demanded to

know the location of the remainder of the money. W hen Ferguson refused to

disclose the location of the money, Banks hit the victim in the head with his pistol.

The victim then blocked the door to the motel room and announced that no one

could leave until they returned his money. Banks again asked where the victim

had concealed the money, and Ferguson's female companion disclosed that the

money was hidden beneath a bush planted outside the motel. Mr. Banks asked

Ferguson to move away from the door, but the victim declined to do so. When

the victim refused to move, both Appellant and Banks began shooting their pistols

at the victim. Although the victim attempted to escape by running down the

hallway and away from his assailants, Appellant and Banks fired more shots at

him. An autopsy revealed that Ferguson died of multiple gunshot wounds, at

least one of which was inflicted by a .38 caliber pistol. In his confession,

Appellant admitted firing a .38 caliber handgun at Melvin Ferguson. 
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From this evidence, a rational trier of fact could conclude that Appellant,

and his co-defendant, murdered Melvin Ferguson during the course of robbing

him. Additionally, the jury also could find that in so doing, Appellant disregarded

a substantial and unjustifiable risk that Ferguson would die. Accordingly, the

evidence presented at Appellant's trial was sufficient to sustain his conviction for

felony murder.

III. SUPPRESSION OF APPELLANT'S STATEMENT

Appellant next complains that the trial court improperly denied his motion

to suppress his statement to police because the statement was taken in violation

of the Fifth Amendment to the United States Constitution as well as Article I, § 9

of the Tennessee Constitution. Appellant further asserts that his statement was

involuntarily given. The record affords no support for Appellant's assertions.

It is well-settled that the trial court's findings of fact in a suppression

hearing are conclusive on appeal unless the evidence preponderates against

them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Stephenson, 878

S.W.2d 530, 544 (Tenn. 1994). Our review of the record in this case convinces

us that the trial court's findings are amply supported by the evidence.

The Fifth Amendment to the United States Constitution guarantees that

"No person. . . shall be com pelled in any criminal case to be a witness against

himself." U.S. Const. amend. 5. The Fifth Amendment privilege against selfincrimination is applicable to the states through the Fourteenth Amendment.

Malloy v. Hogan, 378 U.S.1, 84 S.Ct. 1489, 1492, 12 L.Ed. 653 (1964). Article

I, § 9 of the Tennessee Constitution guarantees "That in all criminal prosecutions,

the accused. . . shall not be compelled to give evidence against himself." Tenn.

Const. art. I, § 9. The court in Stephenson observed that though the federal and
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state constitutional provisions are not identical, "the most significant difference

between the provisions is that the test of voluntariness for confessions under

Article I, § 9 is broader and more protective of individual rights than the test of

voluntariness under the Fifth Amendment." 878 S.W.2d 530, 544.

In Miranda v. Arizona, the United States Supreme Court held, "The

prosecution may not use statements, whether exculpatory or inculpatory,

stemming from custodial interrogation of the defendant unless it demonstrates

the use of procedural safeguards effective to secure the privilege against selfincrimination." 384 U.S. 436, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

These procedural safeguards must be undertaken prior to the initiation of any

questioning by law enforcement officials and include the administration of the

Miranda rights to the accused. Id. An accused may waive these rights, provided

that the waiver is knowingly, intelligently, and voluntarily made. Miranda, 86 S.Ct.

1602, 1612. The government bears the "heavy burden" of proving that the

defendant knowingly and intelligently waived his Miranda rights. Id. at 1628. A

valid waiver will not be presumed simply from the accused's silence after

warnings are administered or from the fact that officers eventually elicited a

confession. Lee v. State, 560 S.W.2d 82, 84 (Tenn. Crim. App. 1977). However,

both our state and federal courts have held that absent an explicit written waiver,

a waiver may be implied from the facts and circum stances of a case. State v.

Elrod, 721 S.W.2d 820, 823 (Tenn. Crim. App. 1986); North Carolina v. Butler,

441 U.S. 369, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979).

At the hearing on Appellant's motion to suppress his statement, Sergeant

Ronald Wilkinson of the Memphis Police Department testified that Appellant was

arrested on the afternoon of June 16, 1993. Sergeant Wilkinson further testified

that he acted as the arresting officer on that day because Sergeant Samuel
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Williams, the lead officer on the Ferguson case, was not on duty. Wilkinson

stated that on June 16, he did not attempt to question Appellant respecting the

incident. Additionally, Sergeant Wilkinson averred that if an arrestee requested

an attorney, this would be noted in the arrestee's case file. Finally, he stated that

no such notation existed in Appellant's file. Sergeant Samuel Williams testified

that on June 19, 1993, Williams had Appellant brought to his office. Williams said

that he was "sure" that he administered Appellant his Miranda rights before

speaking with him. Sergeant Williams then engaged Appellant in an informal

discussion concerning the events surrounding Melvin Ferguson's death. Finally,

when Appellant "decided he'd tell" Sergeant Williams what Williams "felt was the

truth," Williams asked Appellant if he would be willing to give a formal statement.

When Appellant affirmed his willingness to give a statement, Williams again

advised Appellant of his Miranda rights. A typist transcribed Sergeant Williams'

questions and Appellant's responses. After being read his rights, Appellant

acknowledged that he understood those rights. When Sergeant Williams had

completed Appellant's interrogation, he asked Appellant to read over the

statement to ensure its correctness, to initial every page, and to sign and date the

last page. Appellant incorrectly dated his statement "6/20/93." 

On cross-examination, Sergeant Williams acknowledged that on the day

that Appellant was arrested, Appellant informed a member of the police

department that he did not wish to give a statement and that he knew nothing

about Mr. Ferguson's death. Sergeant Williams also stated that he did not know

whether or not Appellant had requested an attorney; however, he also explained

that if an arrestee made such a request, this would be noted in that person's case

file and that police would cease all questioning. 
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In State v. Crump, the defendant made remarks similar to Appellant's. 834

S.W.2d 265, 266 (Tenn. 1992). There, law enforcement officials administered

Miranda warnings to the defendant. Id. at 269. A detective testified that Crump

responded by saying either "I don't have anything to say right now," or "I don't

have anything to say." Id. at 266. After being informed that he was a suspect in

another crime different from the one for which he was arrested, Crump replied,

"I don't know anything about that." Id. The Tennessee Supreme Court held that

Crump's statement, "I don't have anything to say," constituted an unequivocal

invocation of his right to remain silent and that police officers were obliged to

scrupulously honor this right. Id. at 269-70. The facts of this case are

distinguishable from those in Crump. Crump concerned the situation where

police persisted in attempting to question the accused after he had invoked his

right to remain silent. Here, however, three days elapsed before police again

attempted to interrogate Appellant, thereby scrupulously honoring his right to

remain silent. An accused's invocation of the right to remain silent does not

completely preclude all future attempts to reinterrogate the suspect. see, e.g.,

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 36 L.Ed.2d 313 (1975) (holding

that police scrupulously honored accused's right to remain silent by attempting

to reinterrogate him only after a two-hour interval and the administration of fresh

Miranda warnings).

At the suppression hearing, Appellant testified that he informed police of

his whereabouts so that he could be picked up because an officer had

telephoned his grandm other and stated that the police wanted to interrogate

Appellant regarding a hit-and-run incident. According to Appellant's testimony,

officers transported him to the homicide office and then held him in an interview

room for two to three hours. At some point, an officer asked Appellant whether
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he wished to give a statement, and Appellant replied that he would not do so until

he had spoken with a lawyer. 

Appellant further testified that he was again brought to the homicide office

three days later and that he once more refused to give a statement without an

attorney. Despite this refusal, when another officer inquired whether Appellant

wished to give a statement, he agreed to do so. According to Appellant, after he

gave his statement, he was shackled to a bench for approximately twenty

minutes. An officer brought Appellant a statement and directed him to initial each

page and to sign the last page. Appellant alleged that the statement contained

numerous inaccuracies but acknowledged that the signature on the statement

was his own. Finally, Appellant denied that he was ever advised of his

constitutional rights before giving his statement. 

On cross-examination, Appellant conceded that he had been arrested on

burglary and theft charges only one month before being apprehended in

connection with the Ferguson homicide. Appellant further admitted that upon

being arrested concerning these earlier charges, he gave a statement after

officers administered Miranda rights to him.

The trial court found, as a matter of fact, that "no coercion, no violence, and

no threats were given or made to the defendant." As the evidence does not

preponderate against the trial court's factual findings, we decline to disturb them

on appeal. Although Appellant signed no explicit written waiver, a waiver properly

may be inferred from the fact that Appellant acknowledged understanding his

rights and then gave a statement which he both initialed and signed. State v.

Elrod, 721 S.W.2d 820, 823 (Tenn. Crim. App. 1986). The trial court properly

denied Appellant's motion to suppress his confession.
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IV. CROSS-EXAMINATION OF A WITNESS TO DEMONSTRATE BIAS

Appellant's third assignment of error is that the trial court improperly

excluded evidence of possible bias of a prosecution witness, namely, Mr. Joe

Ferguson. We disagree.

At trial, defense counsel sought to ask the victim's brother about a pending

civil suit which the victim's family had filed against the Scottish Inn Motel arising

out of the same facts being litigated in the criminal prosecution. Apparently, the

lawsuit concerned whether or not the Scottish Inn neglected to afford adequate

security. Defense counsel argued that the purpose of the inquiry was to

demonstrate the possible prejudice of Mr. Joe Ferguson against Appellant

because of Ferguson's financial interest in the civil suit. However, the trial court

ruled that this testimony was irrelevant to the trier of fact and excluded it.

TENN. R. EVID. 401 provides, "`Relevant evidence' means evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence." Id. TENN. R. EVID. 616 provides, "A party may offer

evidence by cross-examination, extrinsic evidence, or both, that a witness is

biased in favor of or prejudiced against a party or another witness." Id. This

Court is aware of cases holding that the trial court improperly prohibited defense

counsel from questioning the victim in a criminal case as to whether he had

brought a civil suit against the accused based upon the acts at issue in the

criminal case. State v. Horne, 652 S.W .2d 916, 919 (Tenn. 1983). In so holding,

the Horne court observed that "great latitude is allowed on cross-examination,

particularly cross-examination showing the witness' interest or bias." Id. at 918.

Additionally, "The text writers seem to be in accord that for the purpose of

showing interest, or bias, a witness for the prosecution in a criminal case may be
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questioned as to whether he has brought an action against the accused, based

on the acts involved in the criminal case." Id. at 919 (citing C.J.S., vol. 98,

Witnesses, Sec. 560; Wharton's Criminal Evidence, 13th Edition, Torcia, Sec.

436; McCormick's Law of Evidence, Chapter 5, Sec. 40.). See also State v.

Robert E. Smith, C.C.A. No. 03C01-9203-CR-00067, Hamilton County (Tenn.

Crim. App., Knoxville, April 15, 1993) (holding that the trial court abused its

discretion in prohibiting defense counsel in a criminal case from questioning the

victim as to whether or not she had filed a civil suit against the accused

predicated upon the facts being litigated in the criminal prosecution).

The above-cited cases are distinguishable from the present case. Here,

defense counsel sought to prove Joe Ferguson's possible bias by questioning the

witness regarding a civil suit which Ferguson's family had filed against a third

party--the Scottish Inn. Since it is undisputed that the victim in the case at bar

was the victim of a homicide perpetrated by someone, we fail to see how crossexamining Joe Ferguson about this lawsuit would demonstrate the witness'

possible bias.

V. DENIAL OF REQUESTED JURY CHARGE

Finally Appellant alleges that the trial court improperly refused to charge

the jury that "The law in Tennessee has long recognized that once the homicide

has been established, it is presum ed to be murder in the second degree." See

State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992). We disagree.

In State v. Phipps, we explained, "`[A] defendant has a constitutional right

to a correct and com plete charge of the law.'" 883 S.W.2d 138, 142 (Tenn. Crim.

App. 1994) (quoting State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)). It is not

error for the trial court to refuse to give a specially requested jury instruction so
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long as the court's instructions "correctly, fully, and fairly set forth the applicable

law" in the case. Id. See also State v. Kelly, 683 S.W.2d 1, 6 (Tenn. Crim. App.

1984). On appeal, this Court must "review the entire charge and only invalidate

it if, when read as a whole, it fails to fairly submit the legal issues or misleads the

jury as to the applicable law."

In the case sub judice, Appellant was charged with the offenses of murder

in the perpetration of a robbery and with premeditated first degree m urder.

However, Appellant was acquitted of premeditated first degree murder and

convicted of murder in the perpetration of a robbery. The trial court gave

instructions for all of the charged offenses as well as each of their lesser included

offenses. These instructions closely followed the jury instructions contained in

T.P.I.--CRIM. (4th ed.) § 7.01 et seq. in charging the jury as to first degree

murder and all its lesser included offenses. In explaining its refusal to give

Appellant's specially requested jury instruction, the trial court acknowledged its

familiarity with the Brown decision and reasoned that "the charge that the court

will give will adequately cover all degrees of homicide, and the court believes that

if it gave this [requested jury instruction] as is that it would confuse the trier of

fact. . . ." 

In State v. Guadalupe S. Mendez, this Court explained:

We do not read State v. Brown, 836 S.W.2d 530 (Tenn.

1992), as requiring the invalidation of every first-degree

murder case involving the standard T.P.I. jury instructions on

first-degree murder. The holding in Brown was based on a

sufficiency of the evidence question; our Supreme Court's

directive on the jury instruction was directory in nature.

C.C.A. No. 01C01-9206-CC-00186, slip op. at 7, Montgomery County (Tenn.

Crim. App., Nashville, April 15, 1993).

Although Appellant's requested jury charge is an accurate statement of

Tennessee law, the charge given in this case fully and fairly set forth the
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elements of first degree murder and all the lesser degrees of homicide. See

State v. Erica Nelms, C.C.A. No. 02C01-9604-CR-00116, Shelby County (Tenn.

Crim. App., Jackson, May 23, 1997) (holding that because Appellant was

acquitted of premeditated first degree murder and convicted of felony m urder, it

was not error for the trial court to refuse to charge the jury that once a homicide

has been established, it is presumed to be murder in the second degree). See

also State v. Glenn Mann, C.C.A. No. 02C01-9502-CC-00046, Dyer County

(Tenn. Crim. App., Jackson, August 16, 1996). Moreover, like the Appellant in

the Nelms decision, supra, Appellant was convicted of first degree felony murder

and acquitted of premeditated first degree murder. Thus, the trial court properly

refused to give the requested charge. cf. State v. Charles Montague, C.C.A. No.

03C01-9306-CR-00192, (Tenn. Crim. App., Knoxville, November 21, 1994)

(holding that any error resulting from the trial court's failure to give the requested

instruction that a homicide is presumed to be second degree murder was

harmless).

The judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

DAVID G. HAYES, JUDGE

___________________________________

THOMAS T. WOODALL, JUDGE