State of Tennessee v. Donald Jones

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 14, 2012

STATE OF TENNESSEE v. DONALD JONES

Appeal from the Criminal Court for Shelby County

No. 09-01473 Lee V. Coffee, Judge

No. W2011-00973-CCA-R3-CD - Filed August 21, 2012

The Defendant-Appellant, Donald Jones, was convicted by a Shelby County jury of first

degree felony murder and especially aggravated burglary and was sentenced to consecutive

sentences of life imprisonment and thirty years, respectively. On appeal, Jones argues: (1)

the evidence was insufficient to sustain his convictions, and (2) the trial court erred in

instructing the jury on flight. Upon review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,

P.J., and J OHN E VERETT W ILLIAMS, J., joined.

Stephen C. Bush, Shelby County Public Defender; Barry W. Kuhn, Assistant Public

Defender, for the Defendant-Appellant, Donald Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and Raymond Lepone, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

Jones and two accomplices were intercepted by the victim, Tony Wood, during a

burglary of the victim’s home. During the ensuing shoot-out, the victim and one of the

accomplices were killed, and Jones was shot and wounded.

Trial. Cortez Jones testified that he and William Mathis stole a truck in Mississippi

on October 23, 2008. Upon discovering that the truck did not contain anything of value,

Cortez1 called his cousin Donald Jones, who had previously told him that he needed a stolen

vehicle.

Cortez took the stolen truck to his mother’s home in Memphis. Shortly thereafter,

Donald Jones, Alvin Walker, and Derrick Anderson arrived at the house in Donald’s Dodge

Intrepid. Donald offered Cortez and Mathis drugs in exchange for the truck. Then Cortez

called his friend, the victim, and told the victim that he had the money he owed him. At the

conclusion of the conversation, Donald asked Cortez what the victim was doing, and Cortez

told him that the victim was at work. Cortez said that he knew that Donald and Walker had

wanted to steal from the victim for a long time because the victim had drugs and money in

his home. Cortez said he had tried to warn the victim about Donald Jones on a prior

occasion. When Donald, Walker, and Anderson heard that the victim was at work, they

decided to burglarize the victim’s home. Cortez said that he refused to help them with the

burglary because he viewed the victim as a father figure. Cortez said that he did not warn

the victim about the impending burglary that particular day because the victim was at work.

Walker and Anderson drove to the victim’s house in the stolen truck, and Donald

followed them in his Dodge Intrepid. Cortez said he knew that Donald usually carried a Tech

Nine, an automatic weapon. He also observed Walker carrying a .38 revolver the day of the

offense.

Shortly after 3:00 p.m., Cortez received a call from Donald from an unfamiliar

number. Donald informed Cortez that he had been shot in a gun fight and needed help.

Donald told Cortez, “Man, that n[-----] was at home – he was at home, Cuz [sic]. He shot

[Walker], and I had to reach around [Walker] and shoot on him.” Cortez said he was unable

to help Donald and discovered that night that the victim had died in the gun fight. Cortez

later identified Donald, Walker, and Mathis from photo lineups. Cortez said he confessed

to stealing the truck at the time that he told the police about Donald’s involvement in the

victim’s death. He said that the State had not given him an agreement regarding his theft

case in exchange for testifying against Donald. He also said he had already served some time

in prison for stealing the truck and was currently on parole for that offense.

On cross-examination, Cortez admitted that he knew Donald would want to know

whether the victim was home the day of the offense. He also admitted that he did not warn

the victim about the impending burglary. Cortez acknowledged that he had been originally

investigated for the charge of first degree felony murder of the victim but that this charge had

been dropped after he gave his statement to police. Moreover, he admitted that he owed

1

Because Defendant-Appellant and two witnesses in this case share the last name of Jones, we will

refer to them by their first names where necessary.

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money to the victim at the time of the victim’s death but denied that he was going to share

in the proceeds of the victim’s burglary. Cortez said he entered a guilty plea to theft of

property regarding the truck he stole and admitted that he could have received a considerably

harsher sentence for his offense than the one he received pursuant to his plea agreement.

Erika Jones, Cortez’s sister and Donald’s cousin, testified that she saw Cortez, Mathis,

Donald, Walker, and Anderson at her mother’s home on October 23, 2008. She also said that

Donald’s car, a burgundy Dodge Intrepid, was at her mother’s house that day. Erika also

observed a truck, with identifying letters on the back, that was parked in her mother’s

backyard. She later saw Mathis give a crowbar to Donald, who handled it with the sleeve of

his coat so that he would not touch it with his hands. Donald then gave the crowbar to

Walker, who put it behind the passenger seat of the truck. At some time after 3:00 p.m.,

Erika saw Donald leave her mother’s home in his car and then saw Walker and Anderson

follow him in the truck. Later that day, she saw a photograph of the truck that had been

parked in her mother’s backyard on the 5:00 p.m. news during the story about the victim’s

murder. Erika later identified Donald, Walker, and Mathis from photo lineups.

Starkesha Craft, the victim’s niece, testified that she dropped off the victim at his

home at approximately 3:00 p.m. the day that he was killed. She later learned that he died

at approximately 4:00 p.m. that afternoon.

Celia Ruiz, the victim’s next-door neighbor, testified that she was doing laundry when

she heard several gunshots from the direction of the victim’s home. She walked outside and

observed an African-American male with dark skin shooting a revolver at the victim. The

dark-skinned man got into the passenger side of a truck before it drove away. She said she

was unable to see the individual driving the truck. Ruiz said that she never saw the victim

fire a gun and that the victim did not have a weapon in his hand at the time of the shooting.

William Walker, an officer with the Memphis Police Department, testified that he

responded to a call to the victim’s home on Plum Valley Drive in Memphis on October 23,

2008. When he arrived, he saw the victim lying dead on the driveway. Walker was able to

see inside the victim’s home and observed blood on the stairwell and on the floor of the

home’s entrance.

Memphis Police Officer Kelvin Briggs testified that he saw a gray truck near the

victim’s home. He said that the abandoned truck had been left running and had a bullet hole

on the right side.

Memphis Police Officer Desmond Gibbs testified that he responded to a “man down”

call at the Burger King on Shelby Drive at Kirby Parkway between 3:00 and 4:00 p.m. on

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October 23, 2008. Upon his arrival, he discovered Alvin Walker, who had been shot.

Although Walker refused to give Officer Gibbs his name, Walker subsequently gave his

name to the firefighters who put him into the ambulance. Officer Gibbs stated that Walker

matched the description of one of the suspects involved in the shooting of the victim. He

said Walker later died from his injuries.

Malinda Jordan, who lived a short distance away from the victim, testified that

between 3:15 and 3:30 p.m. on October 23, 2008, she saw a truck with an obvious bullet hole

park in front of her house. She then saw one African-American male fall out of the truck and

drag himself across the street to the driver’s side of a burgundy Dodge Intrepid that was

parked across the street. Then she saw the driver of the truck get out of the vehicle, walk

over to the Intrepid, and change clothes before getting into the passenger side of the Intrepid

just before it drove away. When Jordan called 9-1-1, the operator told her that she could not

move the truck because it had been involved in a recent homicide.

David Parks, a sergeant with the Memphis Police Department, testified that his

investigation revealed that the victim believed that Donald Jones and Cortez Jones “were

trying to set him up.” Sergeant Parks said that Donald Jones’s cell phone was found on the

ground near the victim’s front door. He said the police had received information that a

witness had seen Donald Jones crawling from a gray truck to a burgundy Dodge Intrepid, so

they believed that he had sustained an injury to one of his legs. Consequently, Sergeant

Parks had his officers check the local hospitals for individuals with leg injuries or gunshot

wounds. He then expanded this search to hospitals outside Tennessee. Sergeant Parks said

that shortly after the search was expanded, Donald Jones was found at a hospital in Grenada,

Mississippi. He said that the police developed Walker as a suspect because certain

individuals had seen him and Donald Jones in a gray truck earlier that day. In addition, the

police developed Anderson as a suspect based on the phone records from Donald Jones’s cell

phone. Sergeant Parks said that a skull cap was found in the gray truck and forwarded to the

Tennessee Bureau of Investigation (TBI) for testing.

On cross-examination, Sergeant Parks acknowledged that the skull cap tested negative

for DNA and that the fingerprints recovered from the gray truck and the victim’s home did

not belong to any of the suspects. In addition, he stated that none of the suspects’

fingerprints were found on the crowbar that was recovered.

Memphis Police Officer Marlon Wright investigated the crime scene. He said a

crowbar was found inside the victim’s home and marks indicative of pry marks were found

on the victim’s door. He also recovered several spent .40 caliber bullet casings inside the

home.

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Walter Davidson, a lieutenant with the Memphis Police Department, testified that he

assisted in the investigation of the victim’s homicide. He said he located Donald Jones’s

burgundy Dodge Intrepid at the Pershing Park Apartments after Sergeant Parks instructed

him to look for this vehicle in Frayser, an area of Memphis.

Dr. Miguel Laboy, an expert in the field of forensic pathology, testified that Dr. Funte

performed the autopsies of the victim and Alvin Walker. Based on Dr. Funte’s records, Dr.

Laboy stated that the victim died of multiple gunshot wounds to the chest and Walker died

of a gunshot wound to the torso.

Cervinia Braswell, a special agent with the TBI and an expert in firearms

identification, testified that all of the shell casings recovered from the scene had been fired

from the .40 caliber semi-automatic pistol, which had also been found at the scene. Although

she could not conclusively state that the bullet recovered from Walker’s body was fired from

the .40 caliber pistol recovered from the scene, Agent Braswell said the bullet bore the same

class characteristics. In addition, she said that the bullets recovered from the victim’s body

had different class characteristics than the bullets fired from the .40 caliber pistol recovered

from the scene and were .38/.357 caliber-class bullets. She said that all the bullets recovered

from the victim were fired from the same unknown revolver.

Michael Steward, the custodian of records for Cricket Communications, testified that

the records from the cell phone used by Donald Jones showed that Donald and Anderson

made several telephone calls to one another the day of the victim’s death.

Donna Nelson, a special agent with the TBI and an expert in serology and DNA

analysis, testified that the blood recovered from the Dodge Intrepid matched Donald Jones’s

DNA.

Peter Clinton, a special agent with the Mississippi Bureau of Investigation, testified

that on October 23, 2008, he was called to a hospital in Grenada, Mississippi to investigate

a case involving Donald Jones, who claimed that he had been shot and robbed on Interstate

55 after he had car trouble. Agent Clinton subsequently interviewed Donald, who was

unable to provide a description of the two men who shot and robbed him, was unable to

provide a description of his car or the suspect’s car, and was unable to identify the person

who drove him to the hospital. Agent Clinton later discovered that the authorities in

Southaven, Mississippi had issued a warning for an African-American male who might be

seeking medical treatment in Mississippi. He then contacted the authorities in Southaven,

Mississippi, who immediately contacted the Memphis Police Department about Donald

Jones.

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Derrick Anderson, a co-defendant who was also charged with first degree felony

murder and especially aggravated murder in this case, testified that the State had not

promised him anything in exchange for his testimony. Anderson said that on October 23,

2008, Donald Jones offered him fifty or sixty dollars to drive a truck for him. Donald Jones,

Walker, and Anderson then drove in Donald’s Dodge Intrepid to a house located on East

Trigg Avenue in South Memphis where a “little short fat guy” and a “tall skinny guy” that

he did not know were trying to get a white truck out of the mud in the backyard. Once they

freed the truck, Anderson heard Walker ask the short, fat man if he had a crowbar, and the

man retrieved one from the trunk of his black Maxima and gave it to Walker. Donald then

told Anderson, “[Y]ou just drive that truck over here, man; we’re fixin’ to run in the

[victim’s] house and get whatever in there out of it and come on back[.]”

Anderson said he and Walker got into the truck and followed Donald, who was

driving his Dodge Intrepid, to an area a short distance away from the victim’s home. Donald

parked his car and got into the truck with Anderson and Walker. When they arrived at the

victim’s home, they parked the truck in front of the victim’s house and walked to the front

door. Anderson remembered that Donald had his umbrella and cell phone in his hands as

they approached the victim’s house. Walker pried open the front door with the crowbar, and

as they were about to enter the residence, the victim walked out with a gun raised. Anderson

immediately turned and ran in the opposite direction. Just before he was shot, Anderson

looked behind him and saw Donald and Walker “tussling” with the victim over the gun.

After fleeing the scene, Anderson tried to call Donald but was unable to reach him.

Anderson later identified Donald, Walker, Cortez Jones, and Mathis in photo lineups. He

said he never saw Donald with a gun on October 23, 2008, although he saw Walker with an

automatic pistol that day. On cross-examination, Anderson acknowledged that he knew he

would not be convicted of first degree murder after testifying against Donald Jones at trial.

Following the close of proof, the jury convicted Donald Jones of first degree felony

murder and especially aggravated burglary, and the trial court sentenced him to consecutive

sentences of life imprisonment and thirty years, respectively. He subsequently filed a timely

motion for new trial and an amended motion for new trial, which were denied. He then filed

a timely notice of appeal.

ANALYSIS

I. Sufficiency of the Evidence. Jones challenges his convictions on the basis that

there was insufficient evidence corroborating Derrick Anderson’s testimony. See Sherrill

v. State, 321 S.W.2d 811, 814 (Tenn. 1959). He argues that none of the physical proof,

including the crowbar, skull cap, baseball cap, and cell phone, connected him to the offense.

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In addition, he argues that Cortez Jones, who stole the truck used to commit the offenses in

this case, was an accomplice whose testimony could not be used to corroborate Anderson’s

testimony and whose testimony was not independently corroborated.

In response, the State argues that there was sufficient corroboration of Anderson’s

testimony that connected Donald Jones to the offenses in this case. In addition, the State

contends that because there was no clear evidence establishing Cortez Jones as an accomplice

as a matter of law, it was the jury’s responsibility to make that determination. Finally, the

State asserts that the testimony of Erika Jones, Celia Ruiz, and Malinda Jordan was sufficient

to corroborate Anderson’s testimony and to connect Donald Jones to the commission of the

crimes in this case. We conclude that there was sufficient corroboration of Anderson’s

testimony connecting Donald Jones to the offenses in this case and that any claim that Cortez

Jones was an accomplice is waived.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which may be drawn from that evidence. State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,

the standard of review applied by this court is “whether, after reviewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 319 (1979). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,

“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if

the evidence is insufficient to support a finding by the trier of fact of guilt beyond a

reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case where there is

direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews,

805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331

(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must

evaluate the credibility of the witnesses, determine the weight given to witnesses’ testimony,

and must reconcile all conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn.

1996). When reviewing issues regarding the sufficiency of the evidence, this court shall not

“reweigh or reevaluate the evidence.” Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.

1997). This court has often stated that “[a] guilty verdict by the jury, approved by the trial

court, accredits the testimony of the witnesses for the State and resolves all conflicts in favor

of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A guilty verdict also “removes the

presumption of innocence and replaces it with a presumption of guilt, and the defendant has

the burden of illustrating why the evidence is insufficient to support the jury’s verdict.” Id.

(citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

“In the absence of direct evidence, a criminal offense may be established exclusively

by circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing

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Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-

58 (Tenn. 1958)). However, “[t]he jury decides the weight to be given to circumstantial

evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent to which the

circumstances are consistent with guilt and inconsistent with innocence, are questions

primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable,

313 S.W.2d at 457). This court may not substitute its inferences for those drawn by the trier

of fact in cases involving circumstantial evidence. State v. Lewter, 313 S.W.3d 745, 748

(Tenn. 2010) (citing Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956)). We note that the

standard of review “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (quoting

State v. Sutton, 166 S.W.3d 686, 689 (Tenn. 2005)); State v. Carruthers, 35 S.W.3d 516, 557

(Tenn. 2000). The court in Dorantes specifically adopted the standard for circumstantial

evidence established by the United States Supreme Court in Holland:

“Circumstantial evidence . . . is intrinsically no different from

testimonial evidence. Admittedly, circumstantial evidence may in some cases

point to a wholly incorrect result. Yet this is equally true of testimonial

evidence. In both instances, a jury is asked to weigh the chances that the

evidence correctly points to guilt against the possibility of inaccuracy or

ambiguous inference. In both, the jury must use its experience with people and

events in weighing the probabilities. If the jury is convinced beyond a

reasonable doubt, we can require no more.”

Dorantes, 331 S.W.3d at 380 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).

Donald Jones argues that the evidence was insufficient to sustain his convictions for

first degree felony murder and especially aggravated burglary. As relevant here, first degree

felony murder is “[a] killing of another committed in the perpetration of or attempt to

perpetrate any . . . burglary[.]” T.C.A. § 39-13-202(a)(2) (2006). In addition, for the

purposes of this appeal, especially aggravated burglary is the burglary of a habitation where

the victim suffers serious bodily injury. Id. § 39-14-404(a) (2006).

First, Donald argues that there was insufficient evidence corroborating Derrick

Anderson’s testimony at trial. It is well-established in Tennessee that “a conviction may not

be based solely upon the uncorroborated testimony of an accomplice.” State v. Shaw, 37

S.W.3d 900, 903 (Tenn. 2001) (citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994);

Monts v. State, 379 S.W.2d 34, 43 (Tenn. 1964)). An accomplice is a person who

“knowingly, voluntarily, and with common intent participates with the principal offender in

the commission of the crime alleged in the charging instrument.” State v. Griffis, 964

S.W.2d 577, 588 (Tenn. Crim. App. 1997) (footnote omitted). The test is whether the alleged

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accomplice could be indicted for the same offense with which the defendant is charged.

State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995); Pennington v. State, 478

S.W.2d 892, 897-98 (Tenn. Crim. App. 1971) (citations omitted). This court has previously

considered the issue of whether the court or the jury determines a witness’s status as an

accomplice:

“The question of who determines whether a person is an accomplice

depends upon the facts of each case. When the facts of a witness’ participation

in a crime are clear and undisputed it is a question of law for the court to

decide. When such facts are in dispute or susceptible of an inference that a

witness may or may not be an accomplice, it then becomes a question of fact

for the jury to decide.”

State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990) (quoting Bethany v. State,

565 S.W.2d 900, 903 (Tenn. Crim. App. 1978)).

Because Anderson was indicted for the same crimes as Donald Jones, Anderson is an

accomplice as a matter of law. See State v. Boxley, 76 S.W.3d 381, 386 (Tenn. Crim. App.

2001). Consequently, the trial court properly instructed the jury that Anderson was an

accomplice and that his accomplice testimony must be sufficiently corroborated in order to

convict Donald Jones. See T.P.I.–Crim. 42.09 (15th ed. 2011). The Tennessee Supreme

Court has stated the following regarding the rule of corroboration:

“[T]here must be some fact testified to, entirely independent of the

accomplice’s testimony, which, taken by itself, leads to the inference, not only

that a crime has been committed, but also that the defendant is implicated in

it; and this independent corroborative testimony must also include some fact

establishing the defendant’s identity. This corroborative evidence may be

direct or entirely circumstantial, and it need not be adequate, in and of itself,

to support a conviction; it is sufficient to meet the requirements of the rule if

it fairly and legitimately tends to connect the defendant with the commission

of the crime charged. It is not necessary that the corroboration extend to every

part of the accomplice’s evidence.”

Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d at 803). The jury must determine

whether sufficient corroboration exists. Id.

We conclude that there was sufficient corroboration of Anderson’s testimony

connecting Donald Jones to the commission of the charged crimes. Cortez Jones testified

that Donald Jones had wanted to steal from the victim for a long period of time and took the

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stolen truck on October 23, 2008, for the purpose of burglarizing the victim. Erika Jones

testified that Donald, Walker, and Anderson as well as Cortez and Mathis were at her

mother’s home on October 23, 2008, and that she observed a truck in her mother’s backyard

that day. Erika saw Mathis give a crowbar to Donald, who handled the crowbar with the

sleeve of his coat so that he would not touch it with his hands. She then saw Donald give the

crowbar to Walker, who put it behind the passenger seat of the truck. Sometime after 3:00

p.m. that day, Erika saw Donald leave her mother’s home in his Dodge Intrepid, with Walker

and Anderson following him in the truck. She then saw a photograph of the truck that had

been parked behind her mother’s house during the story about the victim’s death on the 5:00

p.m. news. Celia Ruiz, the victim’s neighbor, testified that she saw a dark-skinned African-

American male shooting a revolver at the victim before getting into the passenger side of a

truck before the truck drove away. Shortly thereafter, Malinda Jordan, who lived near the

victim, observed two injured African-American men abandon a truck with a bullet hole and

get into a burgundy Dodge Intrepid that was parked across the street. Finally, Agent Clinton

testified that he detained Donald Jones in a Grenada, Mississippi hospital where he was being

treated for a gunshot wound after his explanation for his injury did not make sense.

Accordingly, sufficient corroboration of Anderson’s testimony existed.

Second, Donald argues that Cortez Jones was an accomplice, thereby precluding the

use of Cortez Jones’s testimony to corroborate Anderson’s accomplice testimony and

requiring Cortez Jones’s testimony to be independently corroborated. Although the trial

court instructed the jury that Anderson was an accomplice as a matter of law, it did not

instruct the jury that Cortez Jones was an accomplice as a matter or law. Alternatively, the

court did not instruct the jury that the issue of whether Cortez Jones was an accomplice was

a question of fact to be determined by the jury and that if Cortez Jones was found by the jury

to be an accomplice, corroboration of his testimony was required. See T.P.I.–Crim. 42.09

(15th ed. 2011). However, the record shows that Donald failed to specifically request a jury

instruction for Cortez Jones on the issue of accomplice testimony. This court has held that

when the trial court fails to instruct the jury on the issue of accomplice testimony, it is the

defendant’s responsibility to request such an instruction, and the defendant’s failure to do so

results in a waiver of the issue on appeal:

[O]ur supreme court has held that an instruction on the rule requiring

corroboration of an accomplice’s testimony is not fundamental. Upon the trial

court’s failure to instruct the jury regarding accomplice testimony and the

requirement of corroboration, it becomes the obligation of the defendant to

make a special request for the instruction. In the absence of a special request,

the trial court does not err by failing to instruct the jury about accomplice

testimony even if the circumstances of the case warrant such an instruction.

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....

Upon the trial court’s failure to instruct the jury on the issue of

accomplice testimony, it became the defendant’s responsibility to submit a

special request. The failure to do so resulted in a waiver of the issue.

State v. Anderson, 985 S.W.2d 9, 17-18 (Tenn. Crim. App. 1997) (internal citations omitted).

Accordingly, Donald’s claim that Cortez Jones was an accomplice is waived. Absent

Donald’s request for this instruction, the trial court had no obligation to instruct the jury

regarding whether Cortez Jones was an accomplice.

II. Instruction on Flight. Donald Jones also argues that the trial court erred in

instructing the jury on flight. Specifically, he contends that the instruction should not have

been given because there was no evidence that he went to Grenada, Mississippi, for any

reason other than to seek medical treatment. See State v. Whittenmeir, 725 S.W.2d 686, 688

(Tenn. Crim. App. 1986) (concluding that the trial court erred in instructing the jury on flight

when, after the commission of the offenses, the defendant left the scene, stayed at home until

his arrest, made no attempt to flee from the arresting officer, and cooperated with the police

by taking them to the stolen property and by voluntarily confessing to his part in the

offenses).

In response, the State argues that there was a sufficient legal basis to give the flight

instruction because the defendant knew that he would be implicated in the crime and

immediately fled the area. See State v. Stafford, 670 S.W.2d 243, 246 (Tenn. Crim. App.

1984) (citing Hall v. State, 584 S.W.2d 819, 821 (Tenn. Crim. App. 1979) (holding that an

instruction on flight is proper if a defendant is seen fleeing the crime scene)). Moreover, the

State asserts that even if the trial court erred in giving the instruction on flight, the error was

harmless given the language of the specific instruction and the overwhelming proof of

Jones’s guilt. See State v. Smith, 893 S.W.2d 908, 918 (Tenn. 1994) (concluding that the

trial court’s instruction on flight, coupled with the overwhelming evidence of the defendant’s

guilt, rendered any error regarding the instruction harmless). We agree with the State that

the trial court’s instruction regarding flight was proper.

“It is well-settled in Tennessee that a defendant has a right to a correct and complete

charge of the law so that each issue of fact raised by the evidence will be submitted to the

jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citing State

v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); State v. Teel, 793 S.W.2d 236, 249 (Tenn.

1990)). Accordingly, trial courts have a duty “to give a complete charge of the law

applicable to the facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)

(citing State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)). At the conclusion of the

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evidence, the trial court gave the following instruction regarding flight to the jury over

Jones’s objection:

The flight of a person accused of a crime is a circumstance which, when

considered with all the facts of the case, may justify an inference of guilt[].

Flight is the voluntary withdrawal of oneself for the purpose of evading arrest

or prosecution for the crime charged. Whether the evidence presented proves,

beyond a reasonable doubt, that the defendant fled is a question for your

determination.

The law makes no precise distinction as to the manner or method of

flight. It may be open, or it may be a hurried or concealed departure; or it may

be a concealment within the jurisdiction; however, it takes both a leaving the

scene of the difficulty and a subsequent hiding out, evasion, or concealment

in the community, or a leaving of the community for parts unknown to

constitute flight.

If flight is proved, the fact of flight alone does not allow you to find that

the defendant is guilty of the crimes alleged; however, since flight by a

defendant may be caused by a consciousness of guilt, you may consider the

fact of flight, if flight is so proven, together with all of the other evidence

when you decide the guilt or innocence of the defendant.

On the other hand, an entirely innocent person may take flight, and such

flight may be explained by proof offered or by the facts and circumstances of

the case.

Whether there was flight by the defendant, the reasons for it, and the

weight to be given to it are questions for you to determine.

See T.P.I.–Crim. 42.18 (15th ed. 2011). We note that the aforementioned instruction has

been cited with approval by this court. See State v. Kendricks, 947 S.W.2d 875, 885-86

(Tenn. Crim. App. 1996) (citing State v. Payton, 782 S.W.2d 490, 497-98 (Tenn. Crim. App.

1989); Whittenmeir, 725 S.W.2d at 688.

“In order for a trial court to charge the jury on flight as an inference of guilt, there

must be sufficient evidence to support such instruction.” State v. Berry, 141 S.W.3d 549,

588 (Tenn. 2004). Sufficient evidence exists supporting a jury instruction on flight when

there is evidence of “both a leaving the scene of the difficulty and a subsequent hiding out,

evasion, or concealment in the community, or a leaving of the community for parts

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unknown.” State v. Burns, 979 S.W.2d 276, 289-90 (Tenn. 1998) (internal quotation,

emphasis, and citation omitted). The State may satisfy the subsequent hiding out, evasion,

or concealment requirement by presenting proof from which a jury might infer that the

defendant committed such acts. State v. Terrance Wilks, No. W1999-00279-CCA-R3-CD,

1999 WL 1097832, at *4 (Tenn. Crim. App., at Jackson, Nov. 22, 1999) (citing Payton, 782

S.W.2d at 498; Rogers v. State, 455 S.W.2d 182, 186-87 (Tenn. Crim. App. 1970)).

Upon review, we conclude that there was sufficient evidence presented at trial to

support the jury instruction on flight. After burglarizing the victim’s home and shooting the

victim, Donald Jones immediately fled the scene, abandoned the stolen truck, and traveled

to Mississippi, where he was treated for a gunshot wound and gave a false story to law

enforcement regarding the cause of his injury. These facts clearly support an inference that

the Defendant-Appellant fled the crime scene to avoid prosecution. Accordingly, the trial

court did not err in instructing the jury on flight. The judgments of the trial court are

affirmed.

______________________________

CAMILLE R. McMULLEN, JUDGE

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