# FILED
October 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE 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. WALL S, ) JUDGE ) Appe llant. ) (Direct Appeal - Felony Mu rder)

FOR THE APPELLANT : FOR THE APPELLEE : GERALD SKAHAN JOHN KNOX WALKUP 140 North Third St reet Attorney Generaland Reporter Memphis, TN 38103 WILLIAM DAVID BRI DGERS Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243 WILLIAM L . GIB BONS Distri ct Attorney General J. ROBERT CA RTER, JR. Assistant Distri ct Attorney 201 Poplar Avenue, Third Floor Memphis, TN 38103 OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE1 App ellant and h is co- defe nda nt we re trie d sep arate ly. -2- 

## OPINION Appel lant Taurys K. Walls was convi cted in t he Shelby County Cri minal Court on No vemb er 3, 199 5 of mu rder in the p erpetratio n of a fe lony, to wit: robbery. The trial co urt sente nced A ppellant to life imprisonment wi th the Tennessee Department of Corr ection and imposed a $50.00 fine to be paid to t he Crimina l Injuri es Compensation Fund. Appel lant present s the fol lowing i ssues forour con siderati on on thi s direct appeal: (1)whether the ev idence was suffic ientto sustai n Appellant' s convict ion for felony murder; (2) whether the tri al court erred in ove rr uling Ap pellant's m otion to su ppress his statem ent given to police respe cting h is involvement in the murder of Melvin Charl es Ferguson; (3) whetherthe tri al court abused i ts discr etion in prohibit ing defense counsel f rom questioni ng the vict im's brothe r abou t a laws uit that the brothe r had file d in connection with Ferguson' s death; and (4) whether the tri al court erred in ref using Appe llant's request for a supplemental j ury inst ruction t o the effect that all homicides are presum ed to be sec ond degre e murde r. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTUAL

BACKGROUND The p roof sho ws that on June 1 1, 1993 , Appella nt and h is co-defe ndant, Maurice Banks, 1 fatall y shot Me lvin Charles Ferguson af ter Ferguson t hwarted their attempts to rob him. The murder and robbery took place at

the Scotti sh Inn Motel in Memphis, Tennessee. At tr ial , t he v ict im' s broth er, Mr. Joe Ferguso n, expl ain ed t hat at t he t ime of the murder, t he victi m had recently r etired f rom the U nited States Army and-3-

was seeking emp loyme nt in the Mem phis a rea. A lthoug h Melv in Ferguson had been alternating bet

ween his brother's house and h is mother's resid ence in Fort Smith, Arkansas, the vict im moved to the Scott ish Inn Motela few days prior to his death in ord er to afford some privacy to Joe Ferguson and hi s wife. Mr. Joe Ferguson further

testified that as his brot her was unemployed, both Joe and his motherocc asi onal ly

gave th e vi cti m m o ney. However, unknown to eit her Joe Ferguson or his mother, the vict im used some of thi s money to purchase cocaine from various local drug dealers, includi ng Jeffrey Davis. A few hours before Ferguson's death, Jeff rey Davis accompanied Maurice Banks to the vi ctim's r oom at the Scotti sh I nn Mo tel a nd sold Ferguson $50. 00 worth of cocaine. Mr. Davis test ified t hat after completing t he drug transact ion, Maurice Banks d ropped Davis at Davis' ap artment an d drove awa y. Approx imate ly thirty minute s later, Mr. B anks re turned to Davis' ap artm en t accompanied by Appellant, wh o carri ed a .38 caliber pistol. Accordin g to Mr. Davis' testim ony, M aurice Bank s borro wed D avis' .38 0 sem i-autom atic pist ol. Banks and Ap pellant the n depa rted. Upon returni ng to Mr. Davi s' apartment onehalf hour later , Appellant informed Jef

frey Davi s thathe had shot someone at t he Scottish I nn. On June 16, 1993, Appel lant was arr ested as a su spect in t he Ferguson murder. Three days later, on June 19, Appell ant gave a statement in which he admitted his involvemen t in Melvi n Fer guson's death. In his confession, Appellant

said that

on the night

of the i ncident, an indivi dual who he ident ified as "Bull" (Mau rice Ba nks) p icked him u p in the parkin g lot of a Memphis apartment complex and state d that he knew som eone that the two of them coul d rob. Appellant

told the police t hat he carri ed a .38 cali ber handgun and that Bull armed himse lf with a .380 pistol. The two me n drove to the Scot tish Inn Motel-4-

and walked to a r

oom on the second flo or. After knocking on the door, Appel lant and Mr. Ban ks were admitted by a wom an. The victim was in the motelroom with the woman. According to Appellant's statem ent, after appro ximat ely five minutes, M elvin Fergus on ask ed App ellant and Bull which one of the m "was straight," a colloquiali sm mean ing which person had dru gs. Appellant r eplied t hat Bull was, and Mr. Banks and the victim b oth m oved to ward th e restro om. B ull drew his pistol and apparently

demanded that Ferguso n give him m oney. Mr. Ferguson handed Bull $300.00, went into the bathroom, and closed the door. Once inside, the vict im flushed t he toilet and stated that he wasgoing to f lush theremainder of the mon ey. Mr. Ferguson emerge d from the res troom app roximately one m inute later, and when Bull asked hi m the locati on of the rest of themoney, Ferguson repl ied thathe did not kn ow. Bu ll hit the victim in the h ead w ith his p istol. Mr. Ferguson blocked the mo tel room door with his body and statedthat neit her Appellant nor Bull could leave the room until they ret urned his money. After tr ying for several minutes to persuade Mr. Ferguson to step away from the door , Bull ask ed the
woman where the victi m had put the rest of his money. The wom an info rmed Bull that the mon ey was unde rneath a bus h plan ted ou tside th e mo tel. Upon learningthe locat ion of theremainder of the money, Bul l again asked Ferguson to move aw ay from the do or. Wh en Fe rguso n refus ed, Bu ll fired his pistol at the victi m's leg, and Appellant alsoshot at hi m. Appellant told thepolice thatFerguson attempted to run down the hallway and away from his assailants. Howeve r, Bull shot at the victim a few more times, and App ellant fired two more shots at Fergu son. Ap pellant an d Bull th en ran f rom the buil ding and fl ed the-5-

s cene in Bull' s car. Fi nally, Bull dropped of f Appellant

at the sam e apartmen t comp lex where the two h ad me t before the incident. Dr. O'Brian Clea ry Smith, an A ssistant Medica l Examiner f or Shel by County, testified that

the vict im sustained five bul lets and di ed of multi ple gunshot wound s. Dr. Smith testifi ed that he recovered only one bullet

from the v ict im' s body. He stated that this bul let was l ocated in Mr. Ferguson's ab dom en and identif ied the bull et as being fi red from a .38 ca liber pi stol. Dr. Smith opi ned that the wound from this bullet alone would have been suff icient to cause M r. Ferguson's deat h. Appellant

testifi ed on his own behalf at his t rial. Though Appellant
c on ceded his involvemen t in the incident, Appe llant testified that he shot Mr. Ferg uson in self-defen se. According to Appellant' s trialtestimony, on the night of the inci dent, he accompanied Maurice Banks to the Scottish Inn Motel so t hat Mr. Banks could selldrugs to someone residi ng there. Appel lant deni ed thathe and Mr. Banks ever di scussed the possi bilit y of robb ing anyon e. Instead, Appellant

stated that whe n he and M r. Banks arrived at Mr. Ferguson' s room, the
room smelled as though Ferguson and his female companion had been smoking "crack" cocaine. Mo reover, both the woman and Mr. Fer guson appeared to be high. Ap pellant furth er testified tha t the victim a sked w ho "was straight."

II.SUFFICI ENCY OF THE EVI DENCE Appe llant's first contention is that t he evidence was insuffic ient to s ustain his conviction for murd er during the perp etration of a robbery because there i s no evi dence to dem onstrate that App ellant robb ed Me lvin Fergu son. He fu rthe r allegesthat the trial cou rt erred in overr uling h is motion for judgm ent of a cquitta l. We disagree.-6- T ENN
. R. C RIM
. P. 29(a) providesin perti nent part, "The court on moti on of
a defend ant. . . shall ord er th e en try of judgmen t of acquittal of one or m ore offensescharged in t he indict ment or information. . . if the evidence is insuf ficien t to sustain a convicti on of such offense o r offense s." Id. When presented with a motion for judgment of acquit tal, t he t rial court's only consi deration i s the legal sufficiency

of the evi dence. State v. Blanton , 926 S.W.2d 953 (Tenn. Crim. App. 1996). Suffici ency of the evidence is t he appropriate standard by whi ch both tri al and appellate courts eval uate the adequacy of the evi dence. State v. Cabbage , 571 S.W .2d 832, 836 (Tenn. 197 8). This Cour t is oblige d to revi ew challenges to the suff iciency of the convicti ng evidence according to certain wel l-settl ed principles. A verdict o f guilty by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's witnessesand res olves all co nflicts in the tes timony in favor of the State. State

v. Cazes , 875 S.W.2d 253, 259 (Ten n. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). Alt hough an accused is original ly cloaked w ith a presu mption of innocence, a jury verdict re move s this pres umptio n and re places it w ith one of guilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proo f rests w ith App ell ant to d emonstrate the i nsuffic iency of t he convicti ng evidenc e. Id. On appea l, " the [S]tate i s entitled to the strongest l eg itimate view of the e vidence as well as all reason able an d legitima te inferences

that ma y be draw n therefr om." I d. (citi ng State v. Cabbage , 571 S.W.2d 832, 8 35 (T enn. 1 978)) . Wh ere the sufficie ncy of th e evid e nce is contested on appe al, the relev ant questi on for the r

eviewing cour

t is wheth er any rationaltrier

of fact could have fou nd the accused gui lty of every el ement of the offense beyond a reaso nable d oubt. Harris , 839 S. W.2d 54, 75 ; Jackson v. Virgin ia , 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In2 In 1995, the General Assembly amended the definit ion of felony murder by dispensing with the requirement th at the prosecution prove that the ki lli ng was reckless. Tenn.Code Ann. § 39-13-202(a)(2) (1997). -7- conducting ourevalua tion of th e con victing e videnc e, this C ourt is precluded f rom reweighing or recons idering the evidenc e. State v. Morgan , 929 S.W.2d 380, 383 (Tenn. Crim. A pp. 199 6); State v. Matthews , 805 S.W.2d 776, 779 (Ten n. C ri m. App. 1990). Moreover, thi s Court may not substitute i ts own inferences "for those drawn by the tri er of fact from circumstantial evidenc e." Matthews , 805 S.W.2d 776, 779. Finally, T ENN
. R. A PP
. P. 13(e) prov ides, "Fi ndings of guilt in crimi nal actionsw hether by the tr ial cou rt or jury s hall be set as ide if the eviden ce is insuffi cientto support t he finding s by the trier o f fact of g uilt beyo nd a re ason able doubt." See also Mat thews , 805 S.W.2d 776, 780. At the t ime of

thi s offense, Te nn. Co de An n. § 39 -13-2 02(a) provid ed in pertine nt p art: " First degr ee murder is: . . . (2) a reckles s kill ing of anot her committed in the perpetra tion of. . . robbery."Tenn. Code Ann. § 39-13-202(a)(2) (1991, Re pl.). 2 Tenn. Code Ann. § 39-11-302(c) provides:

(c) "Reckless" refe rs to a pers on who a cts reckle ssly with respect to circ umstances surroundi ng the con d uct or the result of the conduct when the person i s aware of but conscious ly disregards a substantialand unjustifi able risk t ha t the circumstances ex ist or t he result wi ll occur . The risk must be of such a natur

e and degree that its disreg ard constit utes a gross deviation from the standard o f care that an ordina ry person would exerci se under allthe circumstances as viewed from the accuse d perso n's stand point. Tenn. C ode Ann . § 39-11-302 (c). Tenn. Code A nn. § 39-13-4 01 d efines "r obbery" as " the intent ional or knowing theft of propert

y from theperson of another by viol ence or puttin g the p erson in fear." Tenn . Code Ann. § 39-13-4 01(a). T enn. C ode An n. § 39-11 -402 s tates in part: A person is criminally responsible for an of fense co mm itte d by the cond uct of ano ther if: . . . (2) Acting with intent to-8- promo te orassist t he com miss ion of th e offen se, or to bene fit in the proceeds or results of the offense, t he person solicits, directs, aids, or atte mpts to aid a nothe r perso n to co mm it the offense. Tenn. C ode Ann . § 39-11-402 (2). The State is r

equired to pr

ove each and every

element of t he charged offe nse. Appe lla nt asserts t hat there i s no evidence to prove that he robbed t h e victim because Melvin Fer guson's wall et and over $20.00 wer e recovered at the
scene. The proof at t rial demo nstrated that both A ppellant a nd his co -defend ant, Mr. Banks, arme d th emse lv es with p ist ols beforegoi ng to th e vi cti m'smote l room. Moreover, in his confe ssion , Appe llant told the police that when Maurice Banks picked him up, he tol d Appellant t hat he knew someone that t hey cou ld rob. Shor tly after entering Ferguson 's room , B anks drew his pi stol and asked t he victim for money. The vi ctim handed B anks $300. 00 and then went i nto the
restroom. After Fergus on emerged from thebat hro om, Mr. Ban ks dem anded to know the locatio n of th e remaind er of the m oney. W hen Fe rguson refused to disclose the locat ion ofthe money, Banks hi t the vi ctim in t he head with his pistol. The victi m then blocked the do or to the motelroom and announced that noone could leave un til they returne d his mo ney. Bank s aga in aske d whe re the v ictim had conc ealed the m oney, and F ergus on's female companion disclosed t hat the money was hidden beneath a bus h planted outside themote l. Mr. Banks asked Ferguson to move away from the doo r, but the victim declined to do so. When the victi m refused to move, both Appellant and Banks began shoo ting the ir pistols at the victim. Although the victim attemp ted to escape by running do wn the hallway and away from his assailants, Appellant and Banks fired more s hots at him. An autopsy revealed that Fe rguson died of

multipl e gunshot wounds, at l east one of which was infli cted by a .38 caliber pi stol. In hi s co nfession , Appe llant adm itted firing a .38 caliber ha ndgun at Melvin F erguso n.-9- From this eviden ce, a rati ona l trier of fact cou ld conclu de that A ppellant, and his co-defendant, murdered Mel vin Ferguson during the cour se of robbi ng him. Additio nally, the jury also could find that in so doing, Appellant di sregarded
a subs tantial a nd un ju stifi able risk that Ferguson would di e. Accordingly, the evidence prese nted a t Appe llant's trial was sufficie nt to su stain h is convicti on for felony murde r.

III . SUPPRESS ION OF A PPELLANT 'S STA TEMENT Appellant

next complai ns thatthe tri al court improperly denied hi s motion to suppress his statement to poli ce because the statement was taken in v iolati on of the Fifth Amendment to the United States Constit ution aswell as Art icle I , § 9 of the Tennessee Cons titution. A ppella nt furthe r asse rts that h is statement was involuntari ly given. The record af fords no support for Appell ant's assertions. It is well -settl ed that the trialcou rt's f indings of fact i n a suppression hearing are conclusive on appeal unl ess the evi dence prep ondera te s against the m. State v. Odom , 928 S.W.2d 18, 23 (Te nn. 199 6); State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994). Our review of

the record i n this case co nvinces us that th e trialcourt's findings are amply supported by the evi dence. The Fifth Am endm ent to the U nited Sta tes Con stitu tion gua rantees that "No perso n. . . sha ll be com pelled in any c rimin al cas e to be a witness against himse lf. " U .S. Con st. ame nd. 5. Th e Fifth Am endm ent privilege against s elfincrimin ation is app licable to the state s through th e Fourteenth Am endmen t. Malloy v. Hogan , 378 U .S.1, 8 4 S.C t. 1489 , 1492 , 12 L.E d. 653 (1964 ). Article I, § 9 of the TennesseeCons titution g uaran tees "T hat in all criminalprosecutions, the accused. . . shall not be comp elled to give evidenc e again st himse lf." Tenn. Cons t. art. I , § 9. The court in Stephenson observed that though the federaland-10-

state constit utional provisi ons are not i de ntica l, "the most significant dif ference between the provi sions is t hat the test of vol untariness for confess ions under Article I, § 9 i s broader and more protec tive of individual ri ghts than t he test of voluntar iness under t he Fifth Amendment."878 S.W.2d 530, 544. In Miran da v. Arizo na , the United States Supreme Court hel d, "The prosecution may not use statement s, whet her exculpatory o r inculpatory, stemming from custodi al interrogation of the defendant

unless it

demon str ates the use of pro cedura l safegua rds effective to secure the privilege against s elfincrimina tion." 384 U.S . 436, 86 S .Ct. 1 602, 1612, 16 L.Ed.2d 694 (1966 ). These procedural s afeguards must be under taken prior

to the i nitiat ion of any questioni ng by law enfor cement offi cials and i nclude the admini strati on of the Miranda rights to the acc used. Id. An accused may waive t hese rights , provi ded thatthe waiver is know ingly, intelligently, and volu ntarily ma de. Miranda , 86 S.C t. 1602, 1612 . Th e gov ern me nt bears th e "heavy burden"of provi ng that the defendantknowingly andintell igently waived his Mirandarights. Id. at 1628 . A valid wa iver

will not be presumed simply from the accused' s silence af ter warning s are administeredor from the f act that officer

s eventually elicited a confession. Lee v. Sta te , 560 S.W .2d 82, 84 (T enn. Crim. A pp. 1977). H owever, both our state and fed eral courts have held that abse nt an explicit written waiver,
a waiver m ay be im plied from the facts a nd circum stance s of a case . Stat e v. Elrod , 72 1 S.W .2d 820 , 823 (T enn. C rim. App . 1986); North Caroli na v. Butl er , 441 U.S. 3 69, 99 S.C t. 1755, 1757, 6 0 L.Ed.2d 2 86 (1979). At the hea ring on A ppellant's motion to suppress his statement, Sergeant Ron ald Wilkinson of t he Memphis PoliceDepartment test ified t hat Appellant was arrested on the afte rnoon of June 16, 199 3. Sergeant Wilkinson f urther testifi ed thathe acted as the arresting officer on thatday because Sergeant Samuel-11-

Williams, the lead of ficer on the Ferguson case, was not on duty. Wilki nson stated that on June 16, he did not at tempt to quest ion Appellant respecti ng the incident. Additio nally, S ergea nt W ilkinson averre d that if an arrestee r equested
an attorney , this would be noted in the arr estee's case f ile. Finally , he state d that
no such notati on existedin Appe llant's file. Sergeant Samuel Willi ams testif ied thaton June 19, 1993, Will iams had Appellant brought to hi s office. Willia ms s aid thathe was "s ur e" that he administered Appell ant his Miranda rights before speaking wit h hi m. Se rge ant Will iams

then engaged Appellant in an informal discussion conce rning the events su rroundin g Melvin F erguso n's death

. Finally, when Appellant

"decided he' d tell"Sergeant Willi ams what Williams "felt was th e truth," Williams asked Appella nt if he wou ld be willing to give a form al statem ent. When Appellant af

firmed his

willi ngness to give a stat emen t, Willia ms a gain advised Appellant of his Miranda rights. A typist transcri bed Sergeant Williams' questionsand Appellant' s res ponse s. After being read hi s rights, Appellant acknowledged that he understood those ri ghts. When Serge ant Williams had completed Appe lla nt's in terrogat ion, he asked Appel lant to r ead over the statementto ensur e its correc tness, to initi al every page, and to sign and date the last page . Appellan t incorrectly d ated his s tateme nt "6/20/93 ." On cross-examinat ion, Sergeant Willi ams acknowledged that o n the day thatAppellant was arrested, Appellant i nformed a mem ber o f the police departmentthat h e did n ot wis h to give a statement and th at he knew nothi ng about Mr. Ferguson' s death. Sergeant Williams also stated that hedid notknow whetherornot Appellant h ad reques ted an attorney; ho wever, he also expl ained thatif an arre stee m ade s uch a reque st, this w ould b e note d in tha t perso n's case file and tha t police wo uld ceas e all ques tioning.-12- In State v. Cru mp , the defendan t made remarks similar to Appellant's. 834 S.W.2d 265, 266 ( Te nn. 1992). There, law enfor cement offi cials admini stered Miranda warning s to the de fendan t. Id. at 269. A detect iv e te stifi ed t hat Cru mp responded by saying either "I don't have any thing to s ay right

no w," or "I don 't have anything to say." Id. at 266. After being informed that he was a susp ect in another crime dif

ferent f rom the one for which hewas arrested, Crump replied, "I don't know a nything a bout tha t." Id. The Te nnes see Supr eme Court held t hat Crum p's st atemen t, "I don't have any thing to s ay," const ituted an unequivocal invocati on of his right to re main s ilent and th at police o fficers were obliged to
sc rupulo usly honor th is right. Id. at 269-70. The facts of thi s c ase ar e distin gui shabl e from those i n Crum p . Crum p concerne d the situation whe re police persisted in attemp ting to question t he accused after he had in voked his right to remain silent. He re , h owev er, thre e days elaps ed be fore po lice ag ain attempted to interrogate Appell ant, ther eby scrupul ously ho noring h is right to
rema in silent . An accused's i nvocation of the right

to r ema in silent

does not comp lete ly preclud e all future a ttempts to reinterrog ate the su spect. see, e.g., Michigan v. Mosley , 423 U.S . 96, 96 S .Ct. 321, 36 L.Ed.2d 313 (1975)(holding thatpolice scrupu lously honored accused's right to r emain silent

by attempti ng to reinterr ogate him only after a two-hour intervaland the administration of fresh Miranda warnings). At the suppressi on hearing, Appel lant testifi ed that he i nf ormed police of his whereabo uts so that he co uld be picked up becau se an officer h ad telepho ned his grandm other an d stated th at the polic e wante d to interrog ate Appel la nt regarding a h it-and-run incident. A ccording to A ppellant's testimon y, officers transp orted h im to the h omic ide offic e and then h eld him in an interview room fortwo to thr

ee hours. At so me point, an of ficer asked Appellant

whether-13-

he wishe d to give a state men t, and A ppella nt replie d that h e wou ld not do so until he had spoke n with a law yer. Appellant

further testified that he was again brought to the homicide of fice three days later

an d t hat he once more ref used to give a statement wi thout an attorney. Despite this refusal, when another off icer inqu ired whether Appellant wished to give a statement, he ag reed to do so. A ccording to Appe llant, after he gav e his statement, he was shackl ed to a benc h for app roximately t we nt y minutes. An officer b rought A ppellant a statem ent and directed h im to initialeach page and to sign the last page. Appell ant alle ged that the statementcontained
n umerous inaccuracies but acknowledged that t he signature on the st atemen t
was his ow n. Fina lly, App ellant d enied that he was e ver ad vised o f his constitution al rights be fore giving h is statem ent. On cross-examinat ion, Appell ant conceded that he had been arrested on burglary and th eft cha rges o nly one mon th befo re bein g app rehen ded in connection with the Fer guson homicide. Appel lantfu rther admit ted that upon b e ing arrested concerning these earlier charges, he gavea statement af ter off ice rs a dmin istere d Mi ran da r igh ts t o hi m. The trial court

found, as a matter of f act, that "no coerci on, no violence, and
no th reats were given or made to the defendant ." As the ev idence does not prepon derate against the tri al court' s factualfinding s, we decli ne to dist urb them
on appeal. Alt hough Appellant signed no expl icit written waiver, a waive r prope rly may be infe rred fro m the fact tha t Appe llant ac know ledge d und erstan ding h is rights and th en ga ve a state ment w hich he b oth initialed a nd signe d. State v. Elrod , 721 S.W .2d 820, 823 (Tenn. Crim . App. 1986 ). The tr ia l court p roper ly denied Appell ant's moti on to suppress hi s confession.-14- IV. CRO SS-EX AMINATIO N OF A W ITNES S TO D EMO NSTR ATE BIAS Appe llant's third as signm ent of e rror is tha t the trial c ourt im prope rly excluded evidence of possible bi as of a prose cutio n witness, namely, Mr. Joe Ferguson. We disagree. At trial , defense counselsought to ask t he victi m's brother about a pending civil suit wh ich the victim's family had filed agai nst the Scott ish Inn Motelarising out of the same facts being liti gated in t he criminalprosecuti on. Apparentl y, the lawsu it concerned whether or not the Scotti sh Inn neglecte d to afford a dequa te security. Defense counsel argued that the purp ose of the inquiry wa s to demo nstrate the possibl e prejudice of Mr. Joe Fer guson ag ainst A ppellant because of Ferguson's financialinterest in the civil suit. However, the trial court ruled tha t this testimo ny was irre levant to the trier of fact and exclude d it. T ENN
. R. E VID . 401 provi des, "`Rel evant evi dence' means evidence havi ng any tendency to make t he existenceof any fac t that is of consequence to t he determinati on of the act ion more probableor less pr obable than i t would be without t he evi dence ." Id. T ENN
. R. E VID . 616 provi des, "A part y may offer evidence by cross-examina ti on, extr insic ev idenc e, or bo th, that a witnes s is biased in favor

of or prej udiced agains t a party or an other witn ess." Id. This Court is aware of cases holding t hat the trial court improperly prohibi ted defense counsel from questi oning the vi cti m i n a criminalcase as to whether he had broughta civil suit aga inst the acc used based upon the acts at issue i n the criminal case. State v. Horne , 652 S.W .2d 916 , 919 (T enn. 19 83). In so holdi ng, the Horne court observ ed that"g reat lat itude is allowed on cr

oss-examinati on, particu larly cross-examinat ion showing the witness' i nterestor bias." Id. at 918. Additionally, "Th e textwri ter s se em to be in acc ord that f or the purpose of showing interest, or

bias, a witness for the prosecut ion in a criminal case may be-15-

questioned as to whether he has brought an act ion against the accused, based
on the acts in volved in the criminal c ase." Id. at 919 (citi ng C.J.S., vol. 98, Witnesses, Sec. 5 60; W harton 's Crim in al Evi dence, 13th Edition, Torci a, Sec. 436; McCo rmick's L aw of Ev idence , Chap ter 5, Sec . 40.). Se e also State v. Rob ert E. Sm ith , C.C.A. No. 03C01- 9203-CR-00067, Hamilton County (Ten n . Cri m. App., K noxville , April 15 , 1993 ) (hold ing that the trial cour t abuse d its discreti on in prohibiting defense counsel in a cri minal case fr om questioning t he victim as to wh ether or n ot she had fil ed a civilsuit agai nst the accused predicated up on the facts be ing litigated in the criminal pro secution). The abo ve-cited cases are distinguish able from the pres ent case

. Here, defense counsel soug h t to prove Joe Ferguson's poss ible bi as by questi oning the witness regarding a civil suit which Ferguson's fa mily had filed aga inst a third party--the Scottish Inn. Si nce i t is undi sputed that the vict im in the case at bar
was the victim of a homicide perpetrated bysomeone, we fail to see how crossexamining Joe Fergu son abou t this lawsuit would de monstra t e the witness' possible bias.

V. DEN IAL OF REQUEST ED JURY CH ARGE Finally Appellant al leges that the tri al court i mproperly ref used to charge the jury t hat "The law in Tennessee has long recogni zed that once t he homicide has been estab lished , it is presum ed to be murde r in the sec ond de gree." See State v . Brown , 836 S.W.2d 530, 543 (Tenn. 19 92). We disagree. In State v. Phipps , we explai ned, "`[ A] defendant

has a constit utional right to a correc t and com plete charg e of the law.'" 883S.W.2 d 138 , 14 2 (Te nn. Cri m. App. 1994) (quoting State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990)) . It i s not error for the tri al court t

o refuse to g ive aspecially requeste d jury instructi on so-16-

long as the court's instruction s "correctly, fully , and fairly set fo rth the a pplica ble law" in the case

. Id. See a lso Sta te v. Ke lly , 683 S.W.2d 1, 6 (Tenn. Crim. App. 1984). On appeal, this Court must"revi ew the entire c harge a nd only inv alidate it if, when r

ead as a whole, i t fail s to fai rly submit the legal i ssues or misleads the jury as to the applicab le law." In the case sub judice , Appellant was charged wit h the offenses of murder in the perp etr ati on of a robbe ry and with prem editated first degree m urder. Howeve r, Appellant was acquitted of premeditated first degree murder and convictedof murder in t he perpetrat ion of a robb ery. The t rial court gave instruct ions for all of th e cha rged o ffense s as w ell as each of thei r lesser i ncluded offenses. These ins tructions closely followed the jury instruct ions conta ined in T.P. I.- -CRIM. (4th ed.) § 7.01 et se q. in chargi ng the jury as to fi rst degree murder and all i ts lesser included of

fenses. I n e xplai ning its refusal to give Appe llant's specially requeste d jury instruct ion, the t rial court ack nowled ged its familia rity with the Brown decision and reasoned that "the charge t hat the court will give will adequately cov er all degree s of homicide, and the court believes that if it gave t his [requested jury instruct ion] as i s that i t would conf use the tri er of fact. . . ." In State v. Guadalupe S. Mendez , this Court explai ned: We do not read State v . Brown , 836 S.W.2d 530 (Tenn. 1992), as requiring the inva lidation of every f irs t-degree murder case involv ing the standard T.P.I. jury i nstructi ons on first-degree murder. The h old ing in Brown was based on a sufficiency

of the evi dence question; our Supr eme Cour t's directive on the jur

y instruction was di rectory in nature. C.C.A. No. 01 C01-92 06-CC- 00186, sli p op. at 7, Montg omery County (Te nn . Crim. App ., Nashville, April 15, 1993 ). Although Appella nt's reque sted jury ch arge is an accura te statement of Tennessee law, the c harge given i n this case fully and fairly set for

th the-17-

e lemen ts of first degre e murd er and a ll the lesser d egrees of hom icide. Se e State v. Eri ca Ne lms , C.C.A. No. 02C01-9604-CR-00116, Shelby County (Tenn. Cri m. App., Jackso n, May 23, 19 97) (h old ing that b ecause Appellant was acquittedof premeditated fir st degree murder and convi cted offelony m urder , it
was not error

for the t rial court to refu se to charge the j ury that once a homicide has be en esta blished, it is pr esum ed to be murde r in the sec ond de gree). See also State v. Glenn Mann , C.C. A. No. 02 C01-9 502-C C-000 46, Dye r Coun ty (Tenn. Crim. App., J ackson, August 16 , 1996) . More over, like the Ap pellan t in the Nel ms decision , supra , Appellant was convicted of fir

st degree fel ony murder and acquitted of premeditated first degree murder. T hus, the trial court prope rly refused to give thereques ted cha rge. cf. State v. Charles Montague , C.C.A. No. 03C01-9306-CR-00192, (Tenn. Crim. App. , Knoxvil le, November 21, 1994) (holding that any er rorresulti ng from the trial court's fai lure to give the requested instruct ion that a homici de is pres umed to be second degree murder was harmless ). The judgment of the t rial cour t is af firmed.

____________________________________ JERRY L . SMI TH, J UDGE-18-

CONCUR:

___________________________________ DAVID G. HAY ES, J UDGE

___________________________________ THOMAS T. WOODALL, J UDGE