State of Tennessee v. Tanya Nicole Slimick

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

June 09, 2015 Session

STATE OF TENNESSEE v. TANYA NICOLE SLIMICK

Appeal from the Circuit Court for Williamson County

No. ICR055631 Michael Binkley, Judge

No. M2014-00747-CCA-R3-CD – Filed December 17, 2015

_____________________________

A jury convicted the defendant, Tanya Nicole Slimick, of first degree (premeditated)

murder for shooting her boyfriend. The defendant received a life sentence. On appeal,

the defendant challenges the sufficiency of the evidence, asserting that the State failed to

show premeditation or to negate self-defense. She also raises numerous challenges to the

jury instructions, including that the trial court instructed the jury that the defendant had

the burden of raising the issue of self-defense; that the self-defense instruction was

confusing to the jury; that the jury instructions improperly failed to list the negation of

self-defense in the litany of items which the State is required to prove beyond a

reasonable doubt; and that the instructions failed to list lesser included offenses whenever

the ―charged offense‖ was referenced. The defendant also asserts that there was

reversible error in the use of a demonstrative aid in the prosecution‘s closing argument.

After a thorough review of the law and the facts, we affirm the judgment of the trial

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, P.J., and CAMILLE R. MCMULLEN, J., joined.

David L. Raybin, Nashville, Tennessee (at trial and on appeal), and Sandra L. Wells,

Franklin, Tennessee (at trial), for the Appellant, Tanya Nicole Slimick.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant

Attorney General; Kim Helper, District Attorney General; and Mary Katherine White and

Jennifer Mason, Assistant District Attorneys General, for the Appellee, State of

Tennessee.

OPINION

At the time of the shooting on September 21, 2010, the defendant and the victim,

Bryan Bell, had been in a romantic relationship for approximately seven years. The two

began dating when they both worked at a T.G.I. Fridays near Pittsburgh, Pennsylvania,

where the victim was also attending culinary school. The relationship had not been

without turmoil, however. Edward Lenkiewicz, the victim‘s friend who worked with

both the victim and the defendant in Pittsburgh, testified that the relationship was

frequently rocky and tense, with the two ―whisper fighting‖ in front of acquaintances.

Around 2006 or 2007, Selena Sancreek, a close childhood friend of the victim‘s,

convinced the victim to move to the Nashville area. Ms. Sancreek had been renting a

room in the Brentwood home of Billy Pirtle, and she arranged for the victim to take her

room as she was vacating it. The victim moved to Brentwood and began to work as a

cook at a nearby T.G.I. Fridays, while the defendant remained near Pittsburgh. At the

time of the shooting, the defendant was living with her parents.

In Brentwood, the victim prospered socially and professionally. Shortly before his

death, he was promoted to kitchen manager. He socialized with his roommates, Billy

Pirtle and Justin Sowders, and with acquaintances from work. Around the end of July or

early August 2010, the victim began a romantic relationship with Jennifer Earl, a server

at the restaurant where he worked. The victim hid this relationship from Ms. Sancreek

and others because managers were not permitted to date servers. At trial, Ms. Sancreek

acknowledged having told detectives that she believed the victim would be loyal to one

girlfriend.

The victim‘s father, Ms. Sancreek, Mr. Lenkiewicz, Ms. Earl, and the victim‘s

roommates testified that he was friendly, easy-going, generous, and likeable. They

testified that they had never seen him behave in a violent or aggressive manner. Mr.

Lenkiewicz and Steven Slattery, who was the victim‘s supervisor prior to the victim‘s

promotion, both testified that the victim did not act angry or aggressive even under stress

at work. Witnesses testified that he always had a smile on his face. The victim‘s friends

and family all testified that he always wore glasses except when sleeping, showering, or

swimming and that he could not see without his glasses.

Although the victim and the defendant had been romantically involved for seven

years at the time of the shooting, the victim apparently hid the duration and seriousness of

his relationship with the defendant from his family, who lived in Ohio, and from his close

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friends. The victim‘s father recalled seeing the defendant once, prior to the victim‘s

move, when they both attended a musical performance the victim was giving in a tavern

in Ohio; the victim‘s father was not introduced to the defendant. Ms. Sancreek likewise

only met the defendant once, in a group setting.

From the time of his move to the Nashville area, the victim‘s family and friends all

believed that the victim was no longer dating the defendant. Mr. Lenkiewicz testified

that the victim visited the Pittsburgh area once after his move but went to great lengths to

keep his visit a secret from the defendant, going so far as to sit for forty-five minutes in

his car in order to avoid a mutual acquaintance he feared might reveal his visit. Another

time, the victim asked Mr. Lenkiewicz not to tell the defendant that he was visiting the

victim in Brentwood to attend a music festival, but the defendant found out and came

uninvited. Ms. Sancreek and the victim‘s father both testified that they believed the

victim and defendant had broken up prior to the move. The victim‘s new roommates and

local acquaintances also all believed that the defendant was nothing more than a distant

ex-girlfriend. None of the victim‘s friends or family were aware that he and the

defendant had taken numerous trips together, that he had taken a road trip in August 2010

to visit the defendant in Pittsburgh, that he was sexually involved with the defendant, or

that he was constantly in contact with her by telephone and text messaging. At trial,

defense counsel gave the victim‘s father a ring which had been in the defendant‘s

possession. The victim‘s father testified that the ring was cherished and valued by the

victim and that the family had not known what had happened to it. Shortly after the

shooting, Ms. Sancreek, unaware of the nature of the victim and defendant‘s relationship,

told detectives that she would have known if the victim had been in a long-term

relationship with the defendant.

Despite the victim‘s representations to his family and friends, the evidence at trial

showed that the victim and the defendant were in a serious and intimate relationship, both

before and after the victim‘s move to Nashville. Rachel Seifert, the defendant‘s

supervisor at the T.G.I. Fridays in Pittsburgh, testified that the defendant quit her job in

August 2009. Prior to that, the defendant had several times given notice that she was

quitting to move to Tennessee. These planned moves always fell through. Telephone

records, extending back into May 2010, show that the two were in daily contact, sending

numerous text messages back and forth throughout this time and making numerous daily

telephone calls. Although the defendant contacted the victim more often than the victim

contacted the defendant, the calls and messages came from both parties. For example, on

the first day that records were available, May 1, 2010, the defendant called the victim

eleven times and sent him twenty-six text messages; the victim called her five times and

sent her twenty-four text messages. Detective Jim Colvin testified for the State that the

victim and defendant constantly communicated, and he gave August 20, 2010, as one

example of the communications between the two; on that day, the defendant sent the

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victim thirty-eight text messages and called him thirteen times; the victim sent the

defendant eighteen text messages and called her three times.

In April 2010, the victim made reservations for the defendant at an extended stay

motel near his home. Medical records show that the defendant was treated in Williamson

County on April 26, 2010, for a urinary tract infection. The victim again made

reservations for the defendant to stay at the motel beginning on May 1, 2010; she sought

medical treatment in Williamson County on this day and was diagnosed with thrush.

Telephone records indicate that the cellular telephones of the defendant and victim were

in close proximity to each other and to the motel on numerous days between May 2 and

May 17, 2010.

On May 16, 2010, the victim‘s telephone sent a series of threatening text messages

to the defendant‘s telephone. The prosecution attempted to imply that the defendant

obtained the victim‘s telephone and sent the messages to herself. Prior to these text

messages, on August 18, 2009, the defendant had purchased a Smith & Wesson handgun

at a store in Pennsylvania. The defendant also purchased pink handgrips for the gun as

an accessory, and the victim‘s text messages reference the defendant‘s ―pink thing.‖ The

defendant purchased a stun gun from the same store on December 21, 2009. The

defendant apparently saved the threatening text messages onto her telephone, and on July

15, 2010, she forwarded some of them to her email. Cellular records show that the victim

placed a call at 10:35 a.m. on May 16, 2010, and that the victim‘s telephone used a

cellular tower near the motel where the defendant was staying. The series of threatening

text messages begins at 11:27 a.m. The following text messages were sent from the

victim‘s telephone to the defendant‘s telephone between 11:27 a.m. and 11:53 a.m. on

May 16, 2010:

―You will get it tomo[r]row at your house‖

―yes I proMise im moving‖

―Stop. cause if you dont s*ck me in your parents

room, then i will kill you with your pink thing. now stop you

know we are not to discus this on the phone. keep acting like

this and I will kill your parents too infront of you‖

―Cause im f**ked up. i do lpve you. just please listen

to me and everything will be fine. i am sory baby‖

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―Yes if i had too. stop talking about this now or taz1 is

next. and erase all these texts now‖

―Ok. just know that i still have frends in pitt who can

help me do things. so you never know what can happen. now

stop. iM done talking‖

Records show that the defendant‘s telephone was also sending text messages to the

victim‘s telephone in between these messages, but the bulk of the defendant‘s responses

were not preserved. Her telephone preserved one sent message asking ―then why cant i

have my pink now?‖ This message was in response to the victim‘s text message

promising to move. At 3:58 p.m., the victim placed a telephone call which used a cellular

tower near the motel.

In early June of 2010, the victim again made reservations for the defendant to stay

at the motel near his home. Ms. Sancreek testified that the victim told her that the

defendant was in town in June and again sometime around August. The victim seemed

frustrated because the defendant ―seemed to pop up‖ when he had other plans or work.

The victim‘s roommates knew the defendant by sight because there were two or

three occasions when the defendant arrived in town while the victim was not at home and

sat in her car in the parking lot, awaiting the victim‘s return. Ms. Sancreek also saw the

defendant sitting in the victim‘s parking lot one time. In late June or early July, Mr.

Sowders saw the defendant sitting in her car, and Mr. Pirtle decided to invite her into the

home. Mr. Pirtle‘s impression was that the defendant was extremely shy and very fragile.

The defendant told the roommates that she had packed all of her possessions because she

and the victim were leaving to get married and to move to California the following day.

Mr. Pirtle knew that the victim did not intend to move. The victim‘s extremely cluttered

room was not at all packed, the victim had just been promoted, and he seemed happy with

his life in Brentwood. Mr. Pirtle tried to delicately let the defendant know that the victim

did not appear to intend to move. Mr. Sowders testified that the defendant also told the

roommates that the victim had been on his way to visit her on New Year‘s Eve when his

car was in an accident in Kentucky, and he was put into jail. Mr. Sowders knew that the

victim‘s vehicle had never been in an accident. Mr. Sowders acknowledged that he had

told police that he thought the victim was making up the accident as an excuse not to visit

the defendant. When the roommates told the victim about the defendant‘s implausible

stories, the victim said he would ―handle this‖ and that ―some of it might be [his] fault.‖

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Taz was the name of the defendant‘s small dog.

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Telephone records reveal that between July 7 and July 11, 2010, there were no text

messages or calls exchanged between the two. After the shooting, Detective Jim Colvin

found two crumpled pages of a letter apparently written by the defendant to the victim in

a trash can in the victim‘s room. The pages were underneath food trash with a July 5,

2010 receipt. Helping to organize the victim‘s possessions after his death, Mr. Pirtle

found one more page of the handwritten letter. Ms. Sancreek believed that the letter was

written in June or July. The letter from the defendant to the victim begins,

I don‘t even know what to say anymore. You‘re a horrible

person. And the best liar I know. I gave up my life for you.

You kept promising me everything. How could you be so

cruel to me? How could you be so cruel to anyone? It‘s not

human how you treated me. And you swore on your family

and your mother‘s cancer! I mean who does that? If you

didn‘t want me 4 years ago, then why string me along and do

this to me?

The defendant details her feelings of hurt and betrayal, her extreme investment in the

seven-year relationship, and her belief that the victim has deceived her and lied to her.

She calls the victim a monster. The letter does not refer to the victim behaving violently

toward the defendant. However, she ends the letter by telling him, ―Think about my love

for you. If you do want to rekindle us then don‘t be afraid to ask me.‖ Detective Colvin

testified that he found what appeared to be a draft of this letter in the defendant‘s papers

which she had brought to the victim‘s home just prior to the murder. The draft ends by

telling the victim that the defendant will never take him back. The draft also contains the

following sentences, marked through to signify deletion: ―I could hurt you if I really

wanted cause I have a lie that I kept a secret for a long time. Actually, I have 3 lies I‘ve

told you. No 4 lies.‖

Despite the rupture, the defendant and victim resumed their relationship. On July

12, 2010, the defendant sent seven text messages to the victim and called him six times.

The victim called the defendant once. On July 20, 2010, the victim ordered black high-

heeled shoes with heels fashioned to resemble gun barrels to be delivered to the

defendant. On August 8, 2010, he checked on the order status because it had not been

delivered.

On August 12, 2010, the victim took a road trip to visit the defendant in

Pennsylvania. Pictures recovered from the victim‘s telephone document his drive to see

the defendant. The victim apparently sent these pictures to the defendant as he traversed

the interstate; he also sent intimate pictures of his unclothed body. Cellular telephone

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records establish that the telephones of the victim and defendant were in close proximity

to a hotel in Pennsylvania on August 12, 2010.

Although the defendant had previously discovered from the victim‘s roommates

that the victim did not intend to move, the victim emailed her a picture of a moving truck

on August 24, 2010. A search of the victim‘s computer revealed that the victim

performed several internet searches for moving trucks and that the image was simply a

photograph he had found on the internet.

On September 10, 2010, the victim sent the defendant a picture of his clothed

crotch and several images taken on the interstate. The defendant‘s expert in computer

forensics determined, however, that at least one of these photographs was taken from a

southbound location on Interstate 65 near the victim‘s home and was not from a long-

distance road trip to see the defendant. At approximately 6:09 p.m. on September 10,

2010, the defendant began to call the victim. The defendant placed approximately three

hundred and fifty calls in a row to the victim‘s number, continuing to call over the next

two days; the victim finally called the defendant on September 12th. The victim‘s

telephone contained intimate pictures that he sent to Ms. Earl around the time he was

receiving the numerous calls from the defendant.

At some point, the defendant discovered that the victim was also in frequent

contact with his new girlfriend, Ms. Earl. The defendant‘s reaction was to track the calls

and to attempt to contact Ms. Earl. Among the defendant‘s journals found in her luggage,

Detective Colvin found a paper tracking various numbers called by the victim. Calls

between Ms. Earl‘s number and the victim‘s number were counted with tally marks

beginning on September 14, 2010. On that same day, Ms. Earl was out of town on

vacation when she received a call from the defendant. The defendant had dialed ―*67‖ to

restrict the origin of the call. Ms. Earl did not answer the call. The defendant‘s papers

also contained two drafts of a text message to Ms. Earl, who the defendant apparently

believed was called ―Bridgette.‖ The draft begins ―hi, B, this is T,‖ and admonishes the

recipient that the ―obsessive texting‖ is affecting the relationship between the victim and

defendant.

Despite her discovery that the victim might be involved with another woman, the

defendant came to visit the victim on the weekend of September 19, 2010, with the

apparent understanding that they would move in together shortly.

On Sunday, September 19th, the victim and Ms. Earl attended a football game

downtown around noon. While the victim was out on this date with his new girlfriend,

the defendant arrived in Brentwood. Ms. Earl testified that the victim‘s telephone kept

―going off‖ during the game but that he assured Ms. Earl that everything was fine.

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Shortly after 5:00 p.m.,2 the defendant, who had placed six unanswered calls to the

victim, called Ms. Earl four times, dialing ―*67‖ to block her telephone number. She also

placed one restricted call to the victim‘s work. These calls originated using a cellular

telephone tower near the victim‘s residence. Ms. Earl did not answer the first two calls,

but the victim urged her to answer the third. The defendant asked Ms. Earl if she was

―Bridgette‖ and asked to speak to the victim. Ms. Earl was startled because she and the

victim had kept their relationship a secret due to restrictions at work. The defendant

called again, and the victim talked to the defendant in Ms. Earl‘s yard. Ms. Earl and the

victim went out to eat. The victim told her that the defendant was his ex-girlfriend and

that their relationship had been ―hideous.‖

On the Sunday of the defendant‘s arrival, Mr. Pirtle was out of town on vacation,

and Mr. Sowders was preparing to leave on an early morning flight the next day. At

around 6:30 p.m., on Sunday, Mr. Sowders returned home from work and saw the

defendant‘s Jeep in the parking lot. She was in the vehicle with the seat reclined. Mr.

Sowders decided not to invite her in, but he went into the house and sent a text message

to the victim. He received no response. Prior to going to sleep around 11:00 or 12:00

that evening, Mr. Sowders looked out the window and saw that the defendant was still

sitting in her car. The doors of the residence were, according to the roommates‘ custom,

unlocked. When Mr. Sowders woke the next morning, he went to shower in the

bathroom next to the victim‘s bedroom. The victim‘s bedroom door was cracked as usual

to allow his cat access to the litter box. When Mr. Sowders left the bathroom, the

victim‘s bedroom door was completely closed and the defendant‘s car was empty in the

parking lot. The victim was not home. Ms. Earl testified that the victim stayed at her

house that night and left around 7:30 a.m. to go to work.

Ms. Sancreek and Mr. Slattery worked with the victim at the restaurant the

following day, September 20, 2010. Ms. Sancreek took out some trash around 3:30 or

4:00 p.m., and she overheard the victim speaking on the telephone on the back loading

dock. The victim was saying ―that they were friends,‖ and he said, ―move on with your

life[;] I‘m here for you, but I‘m seeing somebody.‖ Mr. Slattery saw the victim on the

back loading dock with his telephone out around 7:00 or 8:00 p.m. that night. The victim

told Mr. Slattery that ―that crazy b***h is back in town.‖

The victim and defendant exchanged a number of text messages that day. At the

same time, the victim was also sending text messages to Ms. Earl regarding his happiness

in their relationship. Detective Colvin acknowledged that a preservation letter was not

2

Testimony at trial indicated that the times of telephone calls were incorrect in certain

exhibits because the times reflected Eastern rather than Central time.

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sent to Verizon immediately after the defendant‘s arrest; thus, only the text messages that

had been saved on the defendant‘s and victim‘s telephones were recovered. Some of the

victim‘s responses to the defendant apparently had to do with his relationship with Ms.

Earl. For instance he sent her a text message that read, ―My girlfriend.‖ He then

responded to a question with, ―no. but i told her i thought it was excesive that i was being

tracked and my calls being monitored and traced.‖

At around 8:00 p.m. that evening, the victim and defendant exchanged the

following series of text messages:

Defendant: baby im cold. i need ur body. r u on ur

way?

Victim: on my last project.

….

Defendant: can u still f**k me? plz. ill wear the shoes

Victim: Ok

Defendant: did u really try to get an aptmnt friday?

Victim: Yes. all day

Defendant: r u still gonna get us a place? u help ur

friends and im ur friend?

Defendant: so ur still getting a truck on tues?

Victim: thats the plan

Defendant: i know its the plan. r u really gonna do it?

Victim: probably

Defendant: then why did u cancel the hotel?

Victim: cause i found out my roommates were both

going to be oit of town

The defendant then drafted, but did not send, several text messages regarding Ms.

Earl to the victim, including, ―is she gonna help u kill me,‖ ―why did u tell me not to

come yesterday,‖ and one message asking the victim whether he would impose on her by

continuing their sexual relationship while hiding some infidelity. Instead, the defendant

sent the victim a text message asking about food. She then sent him, three times, a text

message asking, ―why did u say we need to talk? and why didnt u say u love me? but u

plan on moving?‖ She sent a final text urging him to respond to this question. Ms.

Sancreek testified that the victim left work after 9:00 p.m., taking a to-go order of food

that appeared to be for more than one person.

At 3:39 a.m., the defendant placed a call to her parents which lasted for two

minutes and fifty-four seconds. At 3:42 a.m., the defendant called 911. After the

defendant informed the operator of her location, the following exchange took place:

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Defendant: My boyfriend tried to kill me.

Operator: What did he do?

Defendant: He … he stole my gun from my house like

a long time ago and he, he….

Operator: He what? Ma‘am, just calm down and talk to

me, OK? Is he still there?

Defendant: Yeah, I think he‘s dead….We were

struggling with the gun, and he told me he was going to kill

my parents, so I shot him.

The defendant was crying throughout the call, and she told the operator that she was

going to pass out. The call was disconnected, and the operator called back. When asked

if the victim was breathing, the defendant sobbed that she did not want to touch him. The

defendant was unable to tell the operator where the gun was or how many times she fired

the weapon. The defendant also told the operator, ―I shouldn‘t have come down here.‖

Officers arrived on the scene, and the defendant was taken into custody.

The parties stipulated that the pink-handled gun had fired all four bullets which

were shot. Witnesses agreed that there was one bullet remaining in the weapon and that

no one had attempted to fire this bullet. Beyond that, the State attempted to show that the

physical evidence supported premeditation, whereas the defendant attempted to establish

that the physical evidence showed that she was acting in self-defense.

Officer Christopher Woodard arrived on the scene and saw the defendant, wearing

a black tank top and pants, lying on her back on the living room floor next to a telephone.

The defendant was barefoot, and Officer Woodard saw dried blood on the bottoms of her

feet. She appeared dazed and offered no resistance. The victim was lying face-down in

the hallway outside his bedroom, with the upper part of his body in the bathroom, clothed

only in a black T-shirt. He appeared deceased, and there were large amounts of blood in

the hallway and bedroom. Initially, the defendant could not tell officers where the gun

was located, but she finally answered that she had thrown it into the bedroom. In the

bedroom, Officer Woodard pulled the comforter back from the bed to make sure no one

was underneath. He found a knife lying under the comforter. Officer Woodard

acknowledged that his report said that he saw signs of a struggle in the bedroom and that

he did not mention moving the comforter in his report.

Sean Bardo, a paramedic, found the victim deceased with a large gunshot wound

in the center of his back. Mr. Bardo testified that there was a lot of blood and that some

of the blood was wet and some was dry. The victim was cool to the touch. Mr. Bardo

could not answer whether these observations indicated a passage of time since the injury.

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In examining the gunshot wound to the victim‘s back, Mr. Bardo lifted the victim‘s shirt

briefly. Mr. Bardo did not examine the defendant, although he testified that fainting

would be considered a medical emergency.

Dr. Bridget Eutenier, the medical examiner, testified that the victim died of

multiple gunshot wounds. The autopsy revealed that he had been shot four times and that

two of the bullets had exited his body. The victim was shot once at the base of the neck,

with the bullet traveling front to back, left to right, and in a downward trajectory. This

bullet was recovered from the victim‘s body. He was also shot in the right hip, with the

bullet entering from the front of his body and exiting in the back and traveling essentially

level but slightly downward. There was a superficial bullet wound to his back on the

upper left shoulder, with the bullet traveling left to right and slightly upward and exiting

near the entrance wound. The victim suffered a fourth gunshot wound in his back. The

bullet traveled back to front and left to right and was recovered during the autopsy. The

medical examiner testified that the neck wound would be most likely to bleed in an

arterial pattern, with blood flow increasing each time the heart pumped. The medical

examiner testified that the downward angle of the neck wound could have been created if

the victim were bending over or if the shooter were elevated.

Special Agent Alex Brodhag, a firearms examiner, testified that he examined the

victim‘s shirt and found six holes. He could not determine the range from which the

bullet that entered at the base of the victim‘s neck or the bullet that pierced the victim‘s

back shoulder was fired. However, Agent Brodhag was able to determine that the bullet

causing the hip wound was fired less than four feet from the victim, and the bullet from

the wound to the back was fired between three and thirty-six inches from the victim and

most resembled the pattern of a shot fired twelve inches away.

In addition to the fatal gunshot wounds, the victim suffered blunt force injuries to

his head. There were lacerations and tears on his left ear, and there were lacerations and

contusions predominantly on the back left side of his head. There were also two small

abrasions on his face. The medical examiner agreed that these abrasions could be

consistent with the prongs of a stun gun. The medical examiner found at least seven

impact sites on the victim‘s head.

Witnesses testified that the victim kept a very cluttered and messy room. Captain

Richard Hickey agreed that it was difficult to determine if there was a struggle or if the

room was just messy. An alarm clock which the victim‘s roommates and Ms. Earl had

seen in working order was unplugged and turned to the wall, and a bottle of water on the

nightstand was on its side. Nothing in the room appeared to be broken. The handgun

was located under a woman‘s red and black shirt in the victim‘s bedroom. It was covered

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in blood except on the handles. Between the mattress and box spring were some pieces of

women‘s lingerie.

The victim‘s glasses were found on the nightstand in the bedroom.

The defendant‘s cellular telephone, which did not appear to have blood on it, was

found in the dining room next to the defendant. The victim‘s cellular telephone was

covered in blood and appeared to have been moved, because it was found on a desk

surrounded by items that did not have blood on them.

Johnny Lawrence, an expert in crime scene analysis and blood spatter, examined

the photographs and videos of the crime scene. He testified that he believed the first shot

caused the victim‘s neck wound and that it was fired while the victim was between the

bed and the dresser near the head of the bed. He acknowledged that the bullet trajectory

in the victim‘s neck was consistent with him bending over and reaching for the

defendant. He testified the blood evidence and bullet trajectory were also consistent with

the victim being on his knees. He testified that he believed the second shot was the one

that injured the victim‘s hip and that it was fired from the area near or on the bed. He

determined that this shot was fired while the bedroom door was partially closed because

the bullet was recovered from the closet door, which would have been obscured if the

bedroom door had been open. The bullet entered the closet door approximately two feet

above the ground. Mr. Lawrence found no blood on the inner door knob, leading him to

believe that the door was then opened without use of the handle. While the bedroom

door was open, a third shot was fired. Mr. Lawrence testified that this shot would have

caused the victim‘s shoulder wound. The third bullet pierced the bedroom door and was

recovered from the wall behind it. The bullet was traveling upward and entered the door

sixty-nine inches from the ground. Both bullets recovered from the bedroom tested

positive for the victim‘s DNA.

There were blood stains on the door from the victim leaving the room, and there

were arterial spurts on the hallway wall. Mr. Lawrence believed that the victim was

probably not standing at this point. Mr. Lawrence testified that the final shot struck the

victim‘s back. This shot was fired while the victim lay face-down in a position close to

that in which his body came to rest. Mr. Lawrence was able to make this determination

because the blood flow from the wound was toward the side and not toward the feet. He

also testified that the hole in the victim‘s shirt was aligned with the wound. Mr.

Lawrence was not aware that Mr. Bardo had testified that he lifted the victim‘s shirt as he

attempted to administer first aid.

Mr. Lawrence was not able to determine if the blunt force injuries to the head were

administered in the bedroom or hallway. He did not see any cast-off stains as he would

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have expected. He testified that the few blood drips in the dining room would not have

come from the victim because there was not enough blood. According to Mr. Lawrence,

the victim‘s bloody telephone had been moved because its surroundings were not bloody,

but the telephone had blood stains from a finger swiping across the glass. Mr. Lawrence

also testified that the defendant did not have a large amount of blood on her person and

that he would have expected to see the same type of stains on her as on the bed and floor.

Mr. Lawrence testified that a small room might have been filled with smoke and

that a ―concussion effect‖ could have obscured the sound of multiple gunshots.

Accordingly, he acknowledged that it was possible that the defendant would not know

how many times she had fired, how many times the victim was hit, or whether the victim

still presented a threat. He acknowledged that a person who had been assaulted and then

was grabbed by the assaulter might become scared and fire a final shot.

Mr. Lawrence testified that the knife in the bed was placed there after the victim

had left the bed. Detective Colvin also testified that the knife in the bed was laid on top

of and partially obscuring some drops of blood. Detective Colvin testified that some of

the blood drops under the knife did not transfer onto the knife, indicating that they could

have been dry prior to the knife being placed in the bed.

Near the victim‘s body, police found the battery cover for a ―saber‖ two-prong

stun gun. The stun gun itself was set on top of one of the defendant‘s pieces of luggage,

with the battery cover missing. DNA testing revealed that DNA on the probes matched

the victim‘s DNA. The victim‘s blood was also recovered from the handle of the stun

gun. Lying on the floor in the bedroom was a second stun gun. The boxes which were

apparently the packaging for these stun guns were found in the defendant‘s luggage, and

they did not appear to have any tears or blood on them. The ―saber‖ stun gun had

Duracell batteries, and the defendant‘s luggage contained packages of Duracell and

Energizer batteries. The defendant‘s luggage also contained pepper spray and three latex

gloves, as well as numerous journals and personal papers. One of these papers contained

one-line descriptions of sex acts, which Detective Colvin testified were consistent with

―phone sex.‖ Also on top of the luggage were the shoes that the victim had ordered for

the defendant in July. Captain Hickey acknowledged that he did not collect these shoes.

The knife found on the bed appeared to have been taken from a set of kitchen

knives kept on a magnetic strip by the stove. The knife itself had little blood on it,

although it was lying on a sheet with numerous blood stains. The victim‘s blood was

found on the knife blade. The handle of the knife had a weak positive result for blood.

Testing showed that DNA from the handle came from two or more individuals, including

the victim and another unidentified male. Mr. Sowders testified that this knife belonged

to him and that he used the knife daily.

13

In the dining room, police recovered what appeared to be the victim‘s canvas

sneakers. The sneakers were neatly lined up near where the defendant was found, and the

victim‘s blood was found inside the shoes. Mr. Lawrence testified that the blood inside

the victim‘s sneakers had been transferred there by something coming into contact with

the shoes.

Detective Amy Cole photographed the defendant to document evidence and

injuries. On September 21, 2010, she documented blood on the defendant‘s feet and legs,

and she photographed blood marks which were consistent with bloody fingertips swiping

the defendant‘s legs. These marks were underneath the legs of the defendant‘s pants.

Mr. Lawrence testified that these marks were consistent with the victim reaching for and

grabbing the defendant. There were red marks on the defendant‘s chest and bruises on

her arms that appeared older. Detective Colvin also saw a scratch on her neck. The

defendant‘s nails were not broken. Her hands were clean, but there was dried blood

under her nails. The defendant‘s fingernails from her left hand were collected, and they

tested positive for the victim‘s DNA. Officers testified that the defendant had not been

permitted to wash her hands after they arrived on the scene, but her hands were not

bloody except under the nails. The victim‘s blood was also on the defendant‘s tank top,

pants and underwear. Testing on the victim‘s fingernails yielded the victim‘s DNA,

along with a minor contributor who could not be identified.

On September 24, 2010, the defendant was again photographed. There were five

large bruises on her thighs and on her shins that had developed since photographs taken

the day of the crime. Mr. Lawrence testified that he had seen assault victims sustain

bruising similar to the defendant‘s.

The defendant‘s doctor, Andrew DeMarco, testified that he had been treating the

defendant since 1999 and that she suffered from anxiety. In 2009, the defendant

complained that she had gained twenty to thirty pounds in one year, and Dr. DeMarco

concluded that the cause was anxiety. The defendant‘s anxiety also induced fainting

spells. In September 2010, the defendant had fainted and hit her head, and her parents

took her to the emergency room and then to Dr. DeMarco. Dr. DeMarco testified that the

feeling of an incipient fainting spell is ―an unmistakable sensation‖ and that he had

advised the defendant to lie down flat on her back, in the position she was found in by

police, if she felt she was going to faint. He also testified that fainting would often result

in a loss of memory which would extend backwards from the time the patient fainted and

also would extend forward from the time the patient revived. Events occurring in that

time could be confused or would not be remembered. Dr. DeMarco testified that the

defendant did not tell him she was in an abusive relationship; however, he testified that

her parents generally, although not always, were present for her appointments.

14

After the defendant was incarcerated, she made a telephone call to her mother.

Despite her mother‘s warning not to say anything on the telephone, the defendant told her

mother to get items from a canvas bin in her bedroom and ―give it to Daddy – you know

what Daddy does – give it to Daddy to do that this morning.‖ She elaborated that she

wanted her mother to give her father the items to ―take down outside.‖ Detective Colvin

went to the defendant‘s parents‘ home. The defendant‘s possessions appeared unpacked.

Detective Colvin found a burn barrel in the back of her home but was unable to determine

whether evidence had been destroyed. There were several partially burned items in the

barrel, including coupons. He also found a box of ammunition fitting the weapon, and

there were five rounds missing. Detective Colvin acknowledged that it was possible that

the defendant wanted the paper containing the list of sex acts destroyed and had forgotten

that she packed it. Detective Colvin testified that during the call to her mother, the

defendant demonstrated a concern about what people would think of her and also a

concern for the animals living at the victim‘s house. The defendant also spoke to her

mother about canceling an appointment for a haircut.

The victim‘s roommates hired a company to clean the contaminated parts of the

house after the homicide. The company took all of the victim‘s possessions that were

salvageable and put them into bags. In sorting the victim‘s possessions, Mr. Pirtle found

a holster which fit the firearm used to shoot the victim, and he found some paperwork

regarding the weapon. He gave the holster and papers, along with the missing page of the

defendant‘s July letter, to Mr. Sowders, who gave them to Detective Colvin. Captain

Hickey acknowledged that he had not found the holster when he searched the room. The

holster did not have any blood on it.

During trial, the defendant filed a request for special jury instructions with the trial

court. The defendant modified the instruction on the presumption of innocence and the

burden of proof to include a statement that the State must negate the theory of self-

defense beyond a reasonable doubt. The defendant also included in this section and in

the identity charge a request that lesser-included offenses be mentioned whenever the

instruction referred to the crime charged. The defendant‘s request also put the

instructions on self-defense into a separate sentence from the ―no duty to retreat‖

instruction, and it removed the phrase, ―If evidence is introduced supporting self-

defense‖ from the instruction.

The State‘s closing argument was filled with references to self-defense. The

prosecutor told the jury that the State had to prove beyond a reasonable doubt that the

defendant did not act in self-defense. In the State‘s final argument, the prosecutor closed

with the assertion that the State had carried its burden to show that the defendant did not

act in self-defense.

15

In closing, the defense described its theory of how the shooting occurred. The

defense asserted that the victim had been the aggressor and that the defendant had shot

multiple times in confusion, delivering the final shot in the belief that the victim was

grabbing her legs to attack her.

The State then began its rebuttal. At some point during the proceedings, the

prosecution had had a door, similar to that in the victim‘s bedroom, hung into a movable

frame. The prosecution had not used this door in its initial closing, but in rebuttal, the

two prosecutors brought out the door and reenacted their theory of the series of events

that led to the victim‘s death. The defense objected to the use of this evidence, noting

that defense counsel had no opportunity to respond. The trial court twice gave limiting

instructions, admonishing the jury that closing argument was not evidence, but it allowed

the prosecution to use the door.

The jury convicted the defendant of first degree (premeditated) murder, and she

received a life sentence. The defendant filed a motion for a new trial, which the trial

court denied. On appeal, the defendant asserts that the State did not prove premeditation

beyond a reasonable doubt and that the State did not disprove beyond a reasonable doubt

that the defendant was acting in self-defense. She also challenges the jury instructions on

numerous grounds, including: that the trial court improperly submitted a question of law

to the jury; that the self-defense instruction was confusing and should have been broken

down into multiple sentences; that the jury instructions were improper in that the State‘s

burden to disprove self-defense was not listed among the elements of the crime; that the

jury instructions improperly failed to mention lesser-included offenses each time the

―charged crime‖ was referenced; and that cumulative error in the instructions entitles her

to relief. Finally, the defendant argues that the use of the doorway in rebuttal argument

was reversible error.

ANALYSIS

I. Sufficiency of the Evidence

The defendant asserts that the State did not prove premeditation beyond a

reasonable doubt and that the highest charge the evidence would support is voluntary

manslaughter. According to the defendant, the proof shows that she was acting in a state

of passion and not with premeditation. The defendant also insists that the proof does not

show beyond a reasonable doubt that she was not acting in self-defense.

16

This court must set aside a finding of guilt if the evidence is insufficient to support

the finding by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e).

In evaluating the sufficiency of the evidence, the court must determine whether,

considering the evidence in a light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.

State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002). This court will not reweigh or

reevaluate the evidence, and it may not substitute its inferences drawn from

circumstantial evidence for those drawn by the trier of fact. State v. Goodwin, 143

S.W.3d 771, 775 (Tenn. 2004). A jury‘s verdict of guilt, approved by the trial court,

resolves conflicts of evidence in the State‘s favor and accredits the testimony of the

State‘s witnesses. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014). ―Questions

concerning the credibility of witnesses, the weight and value to be given the evidence, as

well as all factual issues raised by the evidence are resolved by the trier of fact.‖ State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court must afford the prosecution the

strongest legitimate view of the evidence and all reasonable inferences that may be drawn

from it. State v. Pope, 427 S.W.3d 363, 368 (Tenn. 2013). A guilty verdict replaces the

presumption of innocence with one of guilt, and on appeal, the defendant bears the

burden of demonstrating that the evidence is insufficient to support the conviction. State

v. Cole, 155 S.W.3d 885, 897 (Tenn. 2005). The elements of an offense may be

established exclusively by circumstantial evidence, and the standard of review is the

same for direct and circumstantial evidence. State v. Echols, 382 S.W.3d 266, 283

(Tenn. 2012). The State is not required to exclude every reasonable hypothesis save

guilt. State v. Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013).

The defendant was convicted of first degree premeditated murder, which is ―[a]

premeditated and intentional killing of another.‖ T.C.A. § 39-13-202(a)(1) (2010). A

premeditated act is one ―done after the exercise of reflection and judgment.‖ T.C.A. §

39-13-202(d). Premeditation requires a finding that ―the intent to kill must have been

formed prior to the act itself. It is not necessary that the purpose to kill preexist in the

mind of the accused for any definite period of time.‖ T.C.A. § 39-13-202(d). The statute

also specifies that ―[t]he mental state of the accused at the time the accused allegedly

decided to kill must be carefully considered in order to determine whether the accused

was sufficiently free from excitement and passion as to be capable of premeditation.‖

T.C.A. § 39-13-202(d).

Premeditation is a question of fact for the jury‘s determination. State v. Davidson,

121 S.W.3d 600, 614 (Tenn. 2003). It may be established by any evidence which could

lead a rational trier of fact to infer that premeditation was established by the proof as

required by statute. Id. at 615. Courts frequently look to the circumstances surrounding a

killing to discern the presence of evidence sufficient to support a finding of

premeditation. State v. Larkin, 443 S.W.3d 751, 815 (Tenn. Crim. App. 2013).

17

Factors which tend to support the existence of premeditation include: the use of a

deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations

by the defendant of an intent to kill; evidence of procurement of a weapon; preparations

before the killing for concealment of the crime, and calmness immediately after the

killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). The factors listed in Bland

are not exhaustive, however. State v. Adams, 405 S.W.3d 641, 663 (Tenn. 2013). The

nature of the killing or evidence establishing a motive for the killing may also support a

conclusion that the crime was premeditated. Id. Repeated blows, although not alone

sufficient to establish premeditation, may be a relevant factor in determining the

existence of premeditation. Id. Mutilation of the body may show that a killing was not

rash or impulsive. Davidson, 121 S.W.3d at 615. Lack of provocation by the victim,

failure to render aid, and destruction or secretion of evidence may also support an

inference of premeditation. Larkin, 443 S.W.3d at 815-16 (citing State v. Thacker, 164

S.W.3d 208, 222 (Tenn. 2005); State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App.

2000)). ―Under Bland, shooting a retreating victim alone provides circumstantial

evidence of premeditation.‖ State v. Dickson, 413 S.W.3d 735, 746 (Tenn. 2013).

When the evidence is insufficient to support a finding of premeditation, the

appellate court may reduce the conviction to a lesser-included offense. See State v.

Jackson, 173 S.W.3d 401, 408-10 (Tenn. 2005) (concluding that the evidence was

insufficient to support premeditation when the only factors present were the use of a

deadly weapon on an unarmed victim and concealment of evidence); State v. Ricky A.

Burks, No. M2000-00345-CCA-R3-CD, 2001 WL 567915, at *17-18 (Tenn. Crim. App.

May 25, 2001) (holding proof insufficient to establish premeditation despite the use of

deadly weapon on an unarmed victim, repeated blows, and concealment of evidence,

explaining that ―[t]he absence of planning activity and the absence of the events

immediately preceding the killing militate against proof of premeditation or that the

[defendant] killed according to a preconceived design‖); State v. Long, 45 S.W.3d 611,

622 (Tenn. Crim. App. 2000) (―[T]his Court has the authority to order a reduction in the

degree of the offense for which Defendant could be convicted‖); see also Larkin, 443

S.W.3d at 816-18 (concluding that proof failed to establish premeditation where factors

supporting premeditation were not present); State v. Patrick Wingate, No. M1999-00624-

CCA-R3-CD, 2000 WL 680388, at *6-7 (Tenn. Crim. App. May 25, 2000) (holding

proof insufficient to support first degree premeditated murder conviction although State

adduced proof of financial motive, the defendant‘s lack of emotion upon leaving the

scene, and the infliction of multiple blows).

The defendant also asserts that the State failed to negate self-defense. That the

accused was acting in self-defense is a complete defense to an offense. State v. Ivy, 868

S.W.2d 724, 727 (Tenn. Crim. App. 1993). The burden of negating self-defense, like the

18

burden of proving premeditation, lies with the State. T.C.A. § 39-11-201(a)(3). Whether

a defendant was acting in self-defense is a question of fact for the jury. State v. Echols,

382 S.W.3d 266, 283 (Tenn. 2012); State v. Clifton, 880 S.W.2d 737, 743 (Tenn. Crim.

App. 1994). The defendant is entitled to relief if she can show that the evidence of self-

defense in the record ―raises, as a matter of law, a reasonable doubt as to [her] conduct

being criminal.‖ Clifton, 880 S.W.2d at 743. Under Tennessee Code Annotated section

39-11-611(b)(2):

Notwithstanding § 39-17-1322, a person who is not

engaged in unlawful activity and is in a place where the

person has a right to be has no duty to retreat before

threatening or using force intended or likely to cause death or

serious bodily injury, if:

(A) The person has a reasonable belief that there is an

imminent danger of death or serious bodily injury;

(B) The danger creating the belief of imminent death

or serious bodily injury is real, or honestly believed to be real

at the time; and

(C) The belief of danger is founded upon reasonable

grounds.

The jury must determine the reasonableness of the defendant‘s belief that deadly

force was required to protect against the imminent danger of death or serious bodily

injury. See Clifton, 880 S.W.2d at 744; see also State v. Renner, 912 S.W.2d 701, 704

(Tenn. 1995) (concluding that the jury‘s determination encompasses ―whether the

defendant‘s belief in imminent danger was reasonable, whether the force used was

reasonable, and whether the defendant was without fault‖). Circumstances surrounding

the offense may show the genuineness of the defendant‘s fear. Ivy, 868 S.W.2d at 727.

The defendant‘s conduct and mental state must meet an objective standard of

reasonableness in order for the homicide to be justified. State v. Bult, 989 S.W.2d 730,

732 (Tenn. Crim. App. 1998). Self-defense ―is not limited to the exact moment of the

assault that may be considered in connection with the entirety of the events leading to the

assault.‖ Ivy, 868 S.W.2d at 727.

There was evidence at trial from which a jury could have inferred that the killing

was not premeditated or that the defendant acted in self-defense. The defendant‘s text

messages indicate that instead of planning to harm the victim, she expected to move in

with him. The defendant also introduced evidence that the victim had taken possession

of the murder weapon. The victim‘s May 16, 2010 text messages to the defendant

reference his possession of the ―pink thing‖ and contain threats to kill her, her parents,

and her dog with the weapon. Furthermore, the holster and paperwork associated with

19

the gun were found among the victim‘s possessions, and these items were not bloody,

indicating that they were not in the immediate vicinity of the shootings. The defendant

drafted but did not send a text message to the victim on the night before the killing,

asking him, ―is she [Ms. Earl] gonna help u kill me[?]‖ The message supports the

inference that the defendant was worried about her personal safety. The gun was

purchased not in close proximity to the shooting but over a year before the crime. When

the defendant called 911, she told the operator that her boyfriend had tried to kill her and

that they struggled over the gun. The first two shots that injured the victim were fired

while the victim faced the defendant, and experts testified that the first serious wound

was consistent with the victim bending over to reach for the defendant. The defendant

was manifestly distressed during the 911 call. Her demeanor after the crime

demonstrated lack of calmness. She had previously suffered from loss of consciousness

related to anxiety, and after telling the operator several times that she thought she might

faint, she lay down in the position recommended by Dr. DeMarco to prevent fainting; she

was found by law enforcement in this position. Detectives found a knife in the bed.

Officer Woodard‘s report described the room as consistent with a struggle; an alarm

clock which was normally working was unplugged and facing the wall, and a water bottle

lay on its side on the nightstand. Moreover, the defendant developed significant bruising

on her thighs and legs, which Mr. Lawrence testified were consistent with bruises that he

had seen assault victims sustain.

However, the State also introduced evidence supporting a finding of premeditation

and negating the theory of self-defense. In presenting the extensive evidence of the long-

term relationship between the victim and defendant, the State established that the

defendant may have had a motivation to kill the victim. The victim had been deceiving

the defendant for years regarding the nature of their relationship, apparently promising

her that he was making a long-term commitment to her and that they would live together

but then repeatedly backing out. The defendant came to visit the victim with the alleged

expectation that they were going to move in together and continue their romantic

relationship. However, photographs of the defendant‘s home show that her possessions

were not packed. Prior to her arrival, the defendant discovered that the victim was

sending numerous text messages to another woman. After the defendant came to

Brentwood, she was apparently confronted with the fact that the woman was the victim‘s

new girlfriend and that he did not intend to continue his relationship with the defendant.

Although the defense presented evidence that the defendant had not procured the

murder weapon for the purpose of killing the victim, the State presented evidence that she

procured other weapons for the visit with the victim. In packing for the trip, the

defendant brought a container of pepper spray and two separate stun guns. At the crime

scene, both stun guns had been removed from their packaging, and the packaging had

been replaced inside the defendant‘s bag. The packaging did not appear to have been

20

opened in haste and did not have blood on it. One of the stun guns was found on the

floor, and the ―saber‖ stun gun, covered with the victim‘s blood and DNA, was placed on

top of the defendant‘s luggage. The battery cover of the ―saber‖ stun gun was found

lying in the hallway, close to the victim‘s body. The defendant‘s text messages show that

the defendant, if she did not possess the pink-handled gun, was aware that it was at the

victim‘s residence.

The victim appears to have been unarmed at the time that the shots were fired. He

was also not wearing the glasses that he always wore, and he was not fully clothed when

his body was discovered. Furthermore, witnesses testified that the evidence regarding the

first shot was consistent not only with the victim leaning over to reach for the defendant,

but also with the defendant standing over the victim on his knees. The administration of

repeated blows is also a factor supporting premeditation. Although the first two shots

were fired with the victim facing the defendant, two other shots were fired into the

victim‘s back. The evidence was consistent with the shooter following the victim into the

hallway. The final shot was fired from three to thirty-six inches away when the victim

was face-down and close to the position in which his body was found. The victim also

suffered at least seven blows to the back of his head, and his DNA was found on the

prongs of the ―saber‖ stun gun.

Evidence also supported the inference that the defendant did not call 911

immediately and that she altered the crime scene. The defendant called her parents prior

to calling 911. Law enforcement and Mr. Bardo testified that some of the blood at the

scene was beginning to dry when they arrived. Officers testified that the defendant was

not permitted to wash her hands at the crime scene but that blood was only found beneath

her fingernails. The victim‘s shoes, which had blood inside them that had been

transferred there by some other object, were found next to the defendant, who had blood

on the soles of her feet. The defendant‘s legs, underneath her pants, looked like bloody

fingers had swiped them. Accordingly, the jury may have inferred that the defendant

washed her hands at the scene, put on the victim‘s shoes to walk around the house, and

donned pants. Further, the evidence supports the inference that the defendant moved the

knife. Both Detective Colvin and Mr. Lawrence testified that the lack of blood on the

knife indicated that it had been moved after the shooting. Finally, while the alarm clock

and water bottle appeared disturbed, other items in the room were not knocked over.

In reviewing the sufficiency of the evidence, we cannot reweigh or reevalute the

evidence but must restrict our review to determining whether a rational trier of fact could

have found that the State had proven the necessary elements beyond a reasonable doubt.

Whether the State established premeditation or negated self-defense are questions for the

jury. The evidence supported the conclusion that the defendant had motivation to commit

the crime, that she packed two stun guns on her trip to visit the victim, whom she knew to

21

have her gun, that the defendant removed the stun guns from their packaging after

arriving at the victim‘s home, that she administered repeated blows, that the victim was

unarmed and without his glasses at the time the shots were fired, that the defendant

altered the crime scene, and that she delayed reporting the shooting. The victim‘s face

had abrasions consistent with a stun gun, his DNA was found on the stun gun, and he

suffered repeated blows to the back of his head. We conclude that this is legally

sufficient to support the finding that the crime was premeditated.

Likewise, the evidence was legally sufficient to support the conclusion that the

State negated the theory of self-defense beyond a reasonable doubt. Although the

defendant testified that she and the victim struggled with the gun, the jury was at liberty

to disbelieve her. The evidence showed that the victim was clothed only in a T-shirt and

that he was not wearing his glasses. The victim‘s room was extremely messy, but

nothing appeared to be broken and only two things appeared knocked over. Although the

defendant told the 911 operator that the victim made threats, the danger from the victim‘s

alleged threats against the defendant‘s parents was not imminent, as her parents were not

at the scene of the crime. Many witnesses testified that the victim was peaceful. The

jury could have believed that the defendant‘s bruises had an alternative explanation or

that the bruises, which were mainly on her thighs, did not support the inference that she

reasonably feared death or serious bodily injury. Accordingly, we conclude that the

evidence is legally sufficient to support the conviction.

The defendant urges us to conclude that the record demonstrates that she acted in a

state of passion and that the highest offense she could be guilty of is voluntary

manslaughter. Voluntary manslaughter is ―the intentional or knowing killing of another

in a state of passion produced by adequate provocation sufficient to lead a reasonable

person to act in an irrational manner.‖ T.C.A. § 39-13-211(a). It is distinguished from

second degree murder by the presence of adequate provocation leading to a state of

passion. State v. Williams, 38 S.W.3d 532, 538 (Tenn. 2001). The question of whether

the provocation was adequate falls to the province of the jury. State v. Johnson, 909

S.W.2d 461, 464 (Tenn. Crim. App. 1995). ―Premeditation is mutually exclusive with

passion produced by adequate provocation.‖ State v. Winselle, W2007-00139-CCA-R3-

CD, 2008 WL 450465, at *7 (Tenn. Crim. App. Feb. 20, 2008); see also Baxter v. State,

503 S.W.2d 226, 229 (Tenn. Crim. App. 1973) (―[T]he law is well settled that if

premeditation exists, it is immaterial that the defendant was in a passion when that design

was executed.‖). In light of our conclusion above that the evidence is legally sufficient to

sustain the first degree premeditated murder conviction, the defendant is not entitled to

relief.

22

II. Jury Instructions

A. Standard of Review

The defendant challenges numerous alleged errors in the jury instructions.

Questions regarding the propriety of jury instructions are mixed questions of law and

fact, and we review them de novo with no presumption of correctness. State v. Fayne,

451 S.W.3d 362, 373 (Tenn. 2014) (citing State v. Rush, 50 S.W.3d 424, 427 (Tenn.

2001); State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001)).

B. Submission of a Question of Law to the Jury

The defendant asserts error in the trial court‘s inclusion of the prefatory words of

the pattern jury instructions regarding whether the defense of self-defense had been fairly

raised by the evidence. The trial court instructed the jury: ―If evidence has been

introduced supporting self-defense, the burden is on the state to prove beyond a

reasonable doubt that [the defendant] did not act in self-defense.‖

The defendant, on the first day of the trial, filed a document making special

requests for jury instructions. The filing included a request to remove the phrase ―If

evidence has been introduced supporting self-defense,‖ as improperly submitting a

question of law to the fact-finder. During the charge conference, however, the defendant

did not request that the court take out the phrase. The parties had an extensive discussion

of the self-defense instruction, and the defense requested several alterations. At the end

of the discussion, the court asked if there were any other issues with the second page of

the self-defense instruction, and the defense answered in the negative.

Tennessee Rule of Criminal Procedure 30(b) addresses objections to jury

instructions. Under Rule 30(b), ―[c]ounsel‘s failure to object does not prejudice the right

of a party to assign the basis of the objection as error in a motion for a new trial.‖ Tenn.

R. Crim. P. 30(b). When the defendant challenges an erroneous or inaccurate jury

charge, as opposed to an incomplete jury charge, Rule 30 allows the issue to be raised in

the motion for a new trial even if no objection was made contemporaneously. State v.

James, 315 S.W.3d 440, 446 n.2 (Tenn. 2010); State v. Faulkner, 154 S.W.3d 48, 58

(Tenn. 2005); State v. Lynn, 924 S.W.2d 892, 899 (Tenn. 1996).

The pattern jury instruction for self-defense, citing to Tennessee Code Annotated

section 39-11-201(a)(3), includes the sentence, ―If evidence is introduced supporting self-

defense, the burden is on the state to prove beyond a reasonable doubt that the defendant

did not act in self-defense.‖ 7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 40.06(b). The

23

jury instructions in the defendant‘s trial were taken verbatim from this pattern, with the

exception that the defendant‘s name was substituted.

Under Tennessee Code Annotated section 39-11-203(c), ―[t]he issue of the

existence of a defense is not submitted to the jury unless it is fairly raised by the proof.‖

The comments clarify that ―[t]he defendant has the burden of introducing admissible

evidence that a defense is applicable. If the defense is at issue, the state must prove

beyond a reasonable doubt that the defense does not apply.‖ T.C.A. § 39-11-203

Sentencing Comm‘n Cmt.

The initial determination regarding whether evidence fairly raising self-defense

has been introduced is one for the trial judge. State v. Bledsoe, 226 S.W.3d 349, 355

(Tenn. 2007) (―To determine if a defense has been fairly raised by the proof, a court must

consider the evidence in the light most favorable to the defendant, including all

reasonable inferences that may be drawn therefrom.‖ (Emphasis added)); see also State v.

Hatcher, 310 S.W.3d 788, 816-17 (Tenn. 2010); State v. Davenport, 973 S.W.2d 283,

287 (Tenn. Crim. App. 1998); State v. Blackmon, 78 S.W.3d 322, 331 (Tenn. Crim. App.

2001) (―The threshold question of whether the defense of entrapment has been ‗fairly

raised‘ is for determination by the judge and not the jury.‖); State v. Bult, 989 S.W.2d

730, 733 (Tenn. Crim. App. 1998) (noting that a court considers the evidence in the light

most favorable to the defendant in order to determine if the defense is fairly raised by the

proof). We conclude that the trial court should not have included in the jury instructions

the prefatory phrase, ―If evidence is introduced supporting self-defense,‖ because this

was not a proper determination for the jury but for the court itself.

However, an error in instructing the jury is subject to harmless error review.

Cauthern v. State, 145 S.W.3d 571, 600 (Tenn. Crim. App. 2004). When the error is

constitutional in nature, then the burden is on the State to prove harmlessness beyond a

reasonable doubt. State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008). Not every

erroneous instruction ―rises to the level of constitutional error.‖ Faulkner, 154 S.W.3d at

60 (concluding that error in including nature-of-conduct language in instruction was not

constitutional error). When error is not constitutional, a final judgment ―shall not be set

aside unless, considering the whole record, error involving a substantial right more

probably than not affected the judgment or would result in prejudice to the judicial

process.‖ Tenn. R. App. P. 36(b). Here, the error in submitting the issue to the jury did

not deprive the defendant of her constitutional right to a jury trial or any other

constitutional right, and we apply non-constitutional harmless error analysis. See

Rodriguez, 254 S.W.3d at 371.

The defendant‘s theory of the case throughout trial was that she acted in self-

defense. Evidence pertinent to self-defense, including bruises sustained by the defendant,

24

her statement to the 911 operator, the victim‘s threatening text messages, items knocked

over in the bedroom, a knife in the bed, and evidence that the victim possessed the

murder weapon, were introduced at trial. The defendant‘s cross-examination of

witnesses asked them to confirm that the defendant‘s injuries were consistent with her

having been assaulted. Both the defense and the State referred numerous times during

opening and closing argument to self-defense. The State acknowledged to the jury in

closing that the 911 call was evidence of self-defense. The prosecutor argued that the

knife was in the bed because ―if you‘re going to claim self-defense, you‘ve got to give

them a weapon.‖ The prosecutor‘s last words to the jury were, ―Did she act in self-

defense[?] I believe the State has carried its burden that she did not act in self-defense,

and we would ask you to find [the defendant] guilty of the first-degree murder of [the

victim].‖ The prosecution in effect conceded to the jury that evidence was introduced

supporting self-defense and that the jurors had to determine whether the State had

negated the defense beyond a reasonable doubt. Accordingly, there is simply no

possibility of jury confusion regarding the fact that evidence of self-defense had been

introduced and that the jury was required to consider the issue. The error in including the

prefatory phrase was harmless by any standard, and the defendant is not entitled to relief.

C. Combining “No Duty to Retreat” Instruction with Self-Defense Instruction

The defendant also objects to the trial court‘s instructions regarding self-defense

and ―no duty to retreat‖ on the basis that combining the concepts into one sentence was

confusing to the jury. The trial court instructed the jury:

If [the defendant] was not engaged in unlawful activity

and was in a place where she had a right to be, she would also

have no duty to retreat before threatening or using force

intended or likely to cause death if [the defendant] had a

reasonable belief that there was an imminent danger of death

or serious bodily injury, the danger creating the belief of

imminent death or serious bodily injury was real, or honestly

believed to be real at the time, and the belief of danger was

founded upon reasonable grounds.

This instruction was drawn verbatim from the pattern jury instructions. See 7 Tenn. Prac.

Pattern Jury Instr. T.P.I.-Crim. 40.06(b). In its written request to the trial court, the

defendant proposed altering the instruction as follows:

In the defense of self, a defendant may use force

intended or likely to cause death or serious bodily injury if the

25

defendant had a reasonable belief that there was an imminent

danger of death or serious bodily injury, the danger creating

the belief of imminent death or serious bodily injury was real,

or honestly believed to be real at the time, and the belief of

danger was founded upon reasonable grounds.

If a defendant was not engaged in unlawful activity

and was in a place where she had a right to be, the defendant

has no duty to retreat before using force intended or likely to

cause death or serious bodily injury.

The defendant‘s alteration essentially consisted in separating the ―no duty to

retreat‖ concept and placing it in a sentence after the self-defense instruction. As the

defendant notes, the pattern jury instructions are taken from the statute delineating self-

defense:

2) Notwithstanding § 39-17-1322, a person who is not

engaged in unlawful activity and is in a place where the

person has a right to be has no duty to retreat before

threatening or using force intended or likely to cause death or

serious bodily injury, if:

(A) The person has a reasonable belief that there is an

imminent danger of death or serious bodily injury;

(B) The danger creating the belief of imminent death

or serious bodily injury is real, or honestly believed to be real

at the time; and

(C) The belief of danger is founded upon reasonable

grounds.

T.C.A. § 39-11-611(b).

A defendant has a right to a correct and complete jury charge. State v. Garrison,

40 S.W.3d 426, 432 (Tenn. 2000). This right is constitutional in nature. State v. Phipps,

883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). The trial court must present the

propositions of law governing the case plainly to the jury, in such a manner as to enable

them to comprehend the principles involved. State v. Williamson, 919 S.W.2d 69, 80

(Tenn. Crim. App. 1995). ―Nothing short of this will ‗satisfy the demands of justice‘ or

the defendant‘s right to a jury trial.‖ Id. (quoting Crawford v. State, 44 Tenn. 190, 195

(1867)).

26

The defendant cites to State v. McAfee, where this court examined jury instructions

which tracked the statutory language regarding use of a prior conviction to establish that

the defendant was a habitual offender. State v. McAfee, 737 S.W.2d 304, 308 (Tenn.

Crim. App. 1987). The court in McAfee stated that the accused ―‗is entitled to a clear and

distinct exposition of the law of his case as applicable to the facts,‘‖ and it concluded that

the statute was so confusing that the trial court should have included an explanation in its

instructions. Id. (quoting Strady v. State, 45 Tenn. 300, 307 (1868)). ―Simply reading a

statute to the jury, when the statute is ambiguous and open to more than one

interpretation, does not satisfy ‗the demands of justice‘ or the accused‘s constitutional

right of trial by jury.‖ State v. Raines, 882 S.W.2d 376, 382 (Tenn. Crim. App. 1994).

Nevertheless, ―[a]n instruction should be considered prejudicially erroneous only

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

the jury as to the applicable law.‖ State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005).

When a trial court‘s instructions correctly, fully, and fairly set forth the applicable law,

the trial court‘s refusal to give a requested special instruction does not amount to error.

Phipps, 883 S.W.2d at 142.

The instructions here, while not perhaps a model of clarity, adequately set forth

the applicable law and the issues of fact which the jury had to determine. Unlike the

statutory language requiring reversal in McAfee, the statute forming the basis for the

challenged instruction was not ambiguous in any way. See McAfee, 737 S.W.2d 304, 308

(―The language of the statute incorporated in the trial court‘s charge is confusing and

lends itself to an interpretation that the principal or triggering offense can be used as one

of the three prior convictions alluded to in the statute.‖). We conclude that the defendant

is not entitled to relief.

D. Self-Defense Instruction

The defendant challenges the trial court‘s refusal to include the requested

instructions on self-defense in the section regarding the State‘s burden of proof. The

defendant requested the following instructions:

To convict [the defendant] of any criminal offense, the

State must have proven beyond a reasonable doubt:

(1) all of the elements of the crime charged or any

lesser included offenses,

(2) the negation of the defense of self-defense, and

27

(3) that the crime charged or any lesser included

offenses of it was committed before the finding and returning

of the indictment in this case.

The trial court instead charged the jury:

The State must have proven beyond a reasonable doubt

all of the elements of the crime charged, and that it was

committed before the finding and returning of the indictment

in this case.

The defense points to Tennessee Code Annotated section 39-11-201, which

clarifies what the State must prove in order to obtain a conviction. The statute mandates

that:

(a) No person may be convicted of an offense unless

each of the following is proven beyond a reasonable doubt:

(1) The conduct, circumstances surrounding the

conduct, or a result of the conduct described in the definition

of the offense;

(2) The culpable mental state required;

(3) The negation of any defense to an offense defined

in this title if admissible evidence is introduced supporting the

defense; and

(4) The offense was committed prior to the return of

the formal charge.

T.C.A. § 39-11-201. While the trial court‘s instructions on burden of proof included the

requirement that the elements of the crime and the timing of the offense must be proven

beyond a reasonable doubt, the instructions did not track the statute in that they did not

include the requirement that the State must negate any defense beyond a reasonable

doubt. The trial court‘s instructions were taken verbatim from the pattern jury

instructions. See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 2.04.

28

The defendant does not dispute that the trial court charged the jury regarding the

State‘s burden to negate self-defense elsewhere in the instructions. The trial court‘s

instructions included the following language in the section regarding self-defense:

If evidence is introduced supporting self-defense, the

burden is on the state to prove beyond a reasonable doubt that

[the defendant] did not act in self-defense.

If from all the facts and circumstances you find [the

defendant] acted in self-defense, or if you have a reasonable

doubt as to whether [the defendant] acted in self-defense, you

must find her not guilty.

On appeal,3 the defense also requests that this court suggest pattern jury

instructions which include, as an element of each offense charged and each lesser

included offense, the requirement that the State negate self-defense. For instance, the

defendant asserts that the elements of first degree murder should be as follows:

First Degree Murder

Any person who commits the offense of First Degree

Murder is guilty of a crime.

For you to find the defendant guilty of this offense, the

State must have proven beyond a reasonable doubt the

existence of the following essential elements:

(1) That the defendant unlawfully killed the alleged

victim;

and

(2) that the defendant acted intentionally….;

and

(3) that the killing was premeditated;

3

The defendant did not request this instruction at trial either in her written filing or

during the charge conference.

29

and

(4) that the killing was not done in self-defense.

The defendant suggests that this court should hold that non-affirmative defenses

must be charged, not in isolation, but in conjunction with the other matters which the

State must prove beyond a reasonable doubt to obtain a conviction, and he asserts that

this error has denied the defendant her constitutional right to a jury trial. 4 The State

acknowledges that the State bears the burden of negating a non-affirmative defense

beyond a reasonable doubt but asserts that the jury instructions adequately conveyed the

State‘s burden to the jury.

We reiterate that the trial court‘s duty is to provide a complete charge of the law as

applicable to the facts of the case. State v. James, 315 S.W.3d 440, 446 (Tenn. 2010).

The judge must properly instruct the jury ―on the law governing issues raised by the

evidence introduced at trial,‖ and must submit on proper instructions ―every issue of fact

raised by the evidence and material to [the] defense.‖ Phipps, 883 S.W.2d at 142, 149.

Because jurors are ―usually untrained in the law and unfamiliar with its myriad

intricacies,‖ they depend on instructions from the trial court in deliberating. State v.

Davis, 266 S.W.3d 896, 907 (Tenn. 2008). Jury instructions can be ―confusing, tedious,

and perhaps initially overwhelming to a juror.‖ Id. The court should consider that:

[j]urors do not sit in solitary isolation booths parsing

instructions for subtle shades of meaning in the same way that

lawyers might. Differences among them in interpretation of

instructions may be thrashed out in the deliberative process,

with commonsense understanding of the instructions in the

light of all that has taken place at the trial likely to prevail

over technical hairsplitting.

4

The defense cites to the Model Penal Code and to Hawaii‘s statutory scheme, which

incorporate the State‘s duty to disprove a defense into the elements of the offense. See Model

Penal Code § 1.13 (―‗element of an offense‘ means (i) such conduct or (ii) such attendant

circumstances or (iii) such a result of conduct as . . . negatives an excuse or justification for such

conduct‖); Haw. Rev. Stat. § 702-205 (―The elements of an offense are such (1) conduct, (2)

attendant circumstances, and (3) results of conduct, as: … (b) Negative a defense‖). We note

that the commentary to the Hawaii Criminal Jury Instructions declares that ―[t]he Committee was

unable to agree on whether negating a defense, when properly raised, should be set forth as an

element in the elements instruction, or whether it is sufficient that a clear statement of the

prosecution‘s burden to negate the defense beyond a reasonable doubt be contained in the

instruction on the defense.‖ Haw. Pattern Jury Instructions – Criminal 5.01 commentary.

30

State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998) (quoting Boyde v. California, 494 U.S.

370, 380-81 (1990)).

―Although the Pattern Jury Instructions do not have the force of law, our trial

courts ‗frequently use them as a source for jury instructions.‘‖ Davis, 266 S.W.3d at 901

n.2 (quoting State v. Rutherford, 876 S.W.2d 118, 120 (Tenn. Crim. App. 1993)). Pattern

jury instructions, which are not officially approved by the appellate courts or legislature,

―should be used only after careful analysis.‖ State v. Hodges, 944 S.W.2d 346, 354

(Tenn. 1997). Pattern jury instructions are only suggestions and ―are not entitled to any

particular deference on review.‖ State v. Rimmer, 250 S.W.3d 12, 30 (Tenn. 2008).

―Trial courts are not limited to the mere recitation of the pattern instructions,‖ James, 315

S.W.3d at 446, and the defendant is entitled to have the jury properly instructed to

consider every issue of fact raised by the evidence, Phipps, 883 S.W.2d at 149-50.

―An instruction should be considered prejudicially erroneous only if the jury

charge, when read as a whole, fails to fairly submit the legal issues or misleads the jury as

to the applicable law.‖ State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005). In reviewing

jury instructions, we do not parse phrases to determine their validity in isolation; rather,

we examine the instructions as a whole to determine ―‗whether the ailing instruction by

itself so infected the entire trial that the resulting conviction violates due process.‘‖

James, 315 S.W.3d at 446 (quoting Rimmer, 250 S.W.3d at 31). Accordingly, an

appellate court must determine if there is a reasonable likelihood that the jury applied the

challenged instruction in such a way that the defendant‘s constitutional rights have been

violated. Rimmer, 250 S.W.3d at 31. Due process guarantees that ―every fact necessary‖

to constitute the crime must be proven beyond a reasonable doubt. James, 315 S.W.3d at

447 (quoting In re Winship, 397 U.S. 358, 364 (1970)).

The statutory language requires the State to prove beyond a reasonable doubt the

elements of the offense, including mens rea, the timing of the return of the indictment,

and the negation of any non-affirmative defense when it has been raised by the proof.

T.C.A. § 39-11-201(a). While the requested instruction was not given in conjunction

with the other statutory requirements, the jury instructions clearly informed the jury that

the State bore the burden of negating self-defense beyond a reasonable doubt and that if

the jurors had reasonable doubt that the defendant acted in self-defense, they were to

acquit her. Jurors bring a common-sense understanding of self-defense to deliberations.

This is not a case where subtleties in legal distinction ―would be lost on most jurors

absent clear instructions.‖ Phipps, 883 S.W.2d at 150.

We conclude that the instructions here, read as a whole, adequately convey the

State‘s burden of proof regarding self-defense, and we conclude that the defendant‘s

31

constitutional rights were not violated by the trial court‘s failure to include the State‘s

duty to negate self-defense multiple times in the instructions. See James, 315 S.W.3d at

453-54 (concluding that there was not error in instructions which might have been

improved by including the term ―corroboration‖ but as a whole were ―compliant with the

traditional definition‖ of corroborating evidence and sufficiently emphasized the State‘s

burden of proof with regard to each element); Hodges, 944 S.W.2d at 354 (instructions

which erroneously instructed jurors to consider mitigating circumstances which had been

―proven‖ rather than ―raised‖ were nevertheless adequate because the proper standard

was clarified elsewhere in the instructions); Vann, 976 S.W.2d at 101-02 (concluding that

although the proof did not warrant a proximate cause instruction, the instructions did not

shift the burden of proof to the defendant and that the jury instructions, as a whole, did

not relieve the State of proving intent); Faulkner, 154 S.W.3d at 60-61 (concluding that,

although both result-of-conduct and nature-of-conduct language were included in the

definition of ―intentionally,‖ the entire charge ―eliminated any risk of the jury applying

the wrong definition‖ and there was no constitutional error); Rimmer, 250 S.W.3d at 30,

31 (concluding that instructions that reasonable doubt ―does not mean a doubt that may

arise from possibility‖ were not misleading in the context of instructions which also gave

a correct definition of the term); but see Phipps, 883 S.W.2d at 151 (the jury charge did

not provide a clear and distinct exposition of the law when the jury instructions suggested

that consideration of evidence of post-traumatic stress disorder was not pertinent to mens

rea).

The conclusion that the instructions here were adequate to protect the defendant‘s

rights to a trial by jury and to due process does not preclude the conclusion that the

State‘s burden to negate self-defense might be further clarified. See State v. Jackson, 173

S.W.3d 401, 407-08 (Tenn. 2005) (holding that instructing jury regarding a presumption

in favor of second degree murder should be abandoned but concluding that this was a

mere clarification of the law); Miller v. State, 54 S.W.3d 743, 747 (Tenn. 2001)

(recognizing that the court‘s ―abandonment of a potentially confusing jury instruction

does not automatically mean that prior use of the abandoned jury instruction was

constitutional error‖); Rimmer, 250 S.W.3d at 31 (concluding that the challenged

instruction was not helpful, and that its use, while not rising to the level of a

constitutional violation, should be discouraged).

As the defendant notes, both this court and the Tennessee Supreme Court have

taken occasion to suggest or clarify jury instructions. See State v. Page, 81 S.W.3d 781,

788 (Tenn. Crim. App. 2002) (clarifying correct jury instruction for knowing second

degree murder, which the court determined to be a result-of-conduct offense); see also

State v. White, 362 S.W.3d 559, 580-81 (Tenn. 2012) (concluding that jury instructions

for ―substantial interference‖ element of kidnapping were inadequate and providing

interim instructions while inviting the Tennessee Pattern Jury Instruction Committee to

32

revise the pattern jury instructions); State v. Dyle, 899 S.W.2d 607, 612 (Tenn. 1995)

(promulgating instructions regarding identity in light of fallibility of eyewitness

testimony); cf. State v. Farner, 66 S.W.3d 188, 205 (Tenn. 2001) (concluding that

absence of proximate cause instruction from pattern criminally negligent homicide

causation required general causation instruction to be given to the jury). Because we

conclude that the instructions here, in contrast to those above, were not erroneous, we

decline to suggest revised jury instructions. We instead invite the Tennessee Pattern Jury

Instruction Committee to visit the issue in order to determine whether a revision to the

instructions is warranted to better convey to the jury the State‘s burden of proof regarding

the negating of non-affirmative defenses beyond a reasonable doubt.

E. Lesser-Included Offenses Within Instructions on Burden of Proof and Identity

The defendant next asserts that the trial court erred in failing to grant the

defendant‘s request to give ―equal dignity‖ to the lesser-included offenses by essentially

including the phrase ―or any lesser included offenses‖ in instances where the instructions

refer to the ―crime charged.‖

The defendant‘s special request asked the court to charge the jury regarding the

burden of proof as follows:

…. This presumption remains with [the defendant]

throughout every stage of the trial, and it is not overcome

unless from all the evidence in the case you are convinced

beyond a reasonable doubt that [the defendant] is guilty of the

charged or any lesser included offenses.

….

To convict [the defendant] of any criminal offense, the

State must have proven beyond a reasonable doubt:

(1) all of the elements of the crime charged or any

lesser included offenses,

(2) …

(3) that the crime charged or any lesser included

offenses was committed before the finding and returning of

the indictment in this case.

(Emphasis in original). Instead, the trial court charged the jury:

This presumption remains with [the defendant]

throughout every stage of the trial, and it is not overcome

33

unless from all the evidence in the case you are convinced

beyond a reasonable doubt that [the defendant] is guilty.

….

The State must have proven beyond a reasonable doubt

all of the elements of the crime charged, and that it was

committed before the finding and returning of the indictment

in this case.

The defendant also requested the court to alter the charge on identity to mention

lesser-included offenses:

The Court further charges you that if you are satisfied

from the whole proof in the case, beyond a reasonable doubt,

that the defendant . . . committed the crime charged against

her or any lesser included offenses, and you are satisfied

beyond a reasonable doubt that she has been identified as the

person who committed the crime charged or any lesser

included offenses, then it would be your duty to convict her of

the crime charged or any lesser included offenses. On the

other hand, if you are not satisfied with the identity from the

proof, or you have a reasonable doubt as to whether she has

been identified from the whole body of the proof in the case,

then you should return a verdict of not guilty.

The trial court‘s charge to the jury omitted the italicized portions of the text above.

The defendant asserts that the failure to include the requested language was error

requiring reversal. The defendant‘s constitutional right to a complete and correct charge

includes the right to jury instructions on all lesser-included offenses which are supported

by the proof. State v. Thorpe, 463 S.W.3d 851, 859 (Tenn. 2015). ―When lesser-

included offenses are included in the charge, a judge must instruct the jury on how and in

what order it should consider the offenses.‖ Bryant v. State, 460 S.W.3d 513, 524 (Tenn.

2015). The Tennessee Supreme Court has concluded that policy considerations support

the use of ―acquittal-first‖ jury instructions, requiring the jury to acquit on a greater

offense before it may consider a lesser. State v. Davis, 266 S.W.3d 896, 907 (Tenn.

2008). Neither the defendant nor the prosecution is permitted to preclude the jury from

considering a lesser included offense as part of trial strategy. State v. Brown, 311 S.W.3d

422, 431 (Tenn. 2010).

34

Here, while the trial court refused to include the references to lesser-included

offenses in the parts of the jury charge concerning identity and burden of proof, the

remainder of the charge clearly informed the jury that it must consider the lesser-included

offenses if it chose to acquit on the greater offense, that it must consider them in

sequence, and that the State bore the burden of proving the lesser-included offenses

beyond a reasonable doubt. For each lesser-included offense, the trial court‘s instructions

directed the jury that ―the State must have proven beyond a reasonable doubt the

existence of the following essential elements‖ in order for the jury to find the defendant

guilty of the offense. Furthermore, in the section instructing the jury on ―Order of

Consideration,‖ the trial court reiterated that a guilty verdict required the jury to ―find the

defendant guilty beyond a reasonable doubt of the lesser-included offense‖ and that if the

jury found ―reasonable doubt as to the defendant‘s guilt of the lesser-included offense,‖

then it should acquit on that offense and consider the next lesser-included offense. In

jury deliberations, ―common[]sense understanding of the instructions in the light of all

that has taken place at the trial [is] likely to prevail over technical hairsplitting.‖ State v.

Van Tran, 864 S.W.2d 465, 479 (Tenn. 1993) (quoting Boyde v. California, 494 U.S.

370, 380–381 (1990)). We conclude that the instructions, read as a whole, were not

deficient or likely to mislead the jury, and the defendant is not entitled to relief.

F. Cumulative Error

Finally, the defendant asserts that he is entitled to relief due to cumulative errors in

the jury instructions. The doctrine of cumulative error recognizes that ―there may be

multiple errors committed in trial proceedings, each of which in isolation constitutes

mere harmless error, but which when aggregated, have a cumulative effect on the

proceedings so great as to require reversal in order to preserve a defendant‘s right to a fair

trial.‖ State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). Because cumulative error is only

applicable where the accused has established there was more than one error committed,

the defendant cannot premise relief on this theory. Id. at 77.

III. Closing Argument

The defendant‘s final issue asserts that the prosecutors improperly used a door as a

demonstrative aid in rebuttal argument. The defendant asserts that introduction of the

door was in error because it was ―speculative‖ and not based on facts in evidence and

because it was outside the scope of the defense‘s closing argument. The defendant also

argues that permitting the prosecution to use the door during rebuttal in particular was a

violation of Tennessee Rule of Criminal Procedure 29.1(d)(2) in that the defendant was

not able to fully answer the State‘s demonstration, and she asserts that this error resulted

35

in a violation of the defendant‘s right to a jury trial, right to counsel, and due process

rights.

Closing argument is a valuable privilege that should not be unduly restricted.

State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001). Lawyers are expected to be zealous

advocates and should be given great latitude in both the style and substance of their

arguments. State v. Banks, 271 S.W.3d 90, 130-31 (Tenn. 2008). The trial court has

significant discretion to control closing argument. Id. at 132. Nevertheless, closing

argument must be temperate, predicated on the evidence adduced at trial, and pertinent to

the issues. State v. Jordan, 325 S.W.3d 1, 64 (Tenn. 2010). While the prosecutor ―may

strike hard blows, he is not at liberty to strike foul ones.‖ Id. (quoting Berger v. United

States, 295 U.S. 78, 88 (1935)).

It is clear that demonstrative evidence, including a reenactment of the crime, may

be introduced during trial, and the decision to allow a courtroom demonstration as

evidence rests within the discretion of the trial court. State v. Coulter, 67 S.W.3d 3, 55-

56 (Tenn. Crim. App. 2001) (concluding that demonstration allowing jurors to pull the

trigger of the weapon to demonstrate the amount of force required was proper) abrogated

on other grounds by State v. Merriman, 410 S.W.3d 779, 793 (Tenn. 2013); see State v.

Reid, 164 S.W.3d 286, 344 (Tenn. 2005) (appendix) (concluding that allowing the use of

a styrofoam head to illustrate a bullet‘s trajectory was not error); State v. Stanley B. Hill,

No. E2012-00289-CCA-R3CD, 2013 WL 4715115, at *10-11 (Tenn. Crim. App. Aug.

30, 2013), perm. app. denied (Tenn. May 15, 2015) (concluding that the trial court

properly allowed the medical examiner to use a bed to demonstrate that the rope was too

short for the victim to hang herself and that defendant‘s version of events could not have

caused the victim‘s injuries); State v. Douglas Marshall Mathis, No. M2002-02291-

CCA-R3CD, 2004 WL 392710, at *9-10 (Tenn. Crim. App. Mar. 3, 2004) (allowing

State to introduce a sawed-off shotgun, which was not the murder weapon, to illustrate

what the murder weapon would have looked like); State v. Billy Gene DeBow, Sr., No.

M1999-02678-CCA-R3CD, 2000 WL 1137465, at *11 (Tenn. Crim. App. Aug. 2, 2000)

(holding that there was no error in permitting a demonstration of the manner in which

shells were ejected from the weapon); Ronald Bradford Waller v. State, No. E1999-

02034-CCA-R3-PC, 2000 WL 982103, at *16 (Tenn. Crim. App. July 18, 2000) (holding

that requiring the defendant to demonstrate how physical confrontation took place during

his testimony was not improper); State v. Jeffrey W. Porter, C.C.A. No. 88-60-III, 1989

WL 4939, at *7 (Tenn. Crim. App. Jan. 24, 1989) (concluding that asking the defendant

to demonstrate on a doll how he had held and hit the child was not improper); State v.

Underwood, 669 S.W.2d 700, 704 (Tenn. Crim. App. 1984) (holding that it was not error

to allow two law enforcement officers to reenact the defendant‘s demonstration of how

he had committed the crime).

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The introduction of demonstrative evidence is permissible not only during trial but

also during closing argument. See State v. Michael Presson, No. W2012-00023-CCA-

R3CD, 2014 WL 1669860, at *23 (Tenn. Crim. App. Apr. 24, 2014), perm. app. denied

(Tenn. Nov. 10, 2014) (concluding that allowing the State to demonstrate during rebuttal

argument that a vibrator previously entered into evidence had functioning batteries to

rebut the defendant‘s closing argument that it belonged to his long-dead wife was not

improper); Issac Scott v. State, No. W2009-01256-CCA-R3-PC, 2011 WL 744764, at *6

(Tenn. Crim. App. Mar. 2, 2011) (concluding that counsel was not deficient in failing to

object to the State pausing for ninety seconds during rebuttal argument to indicate

amount of time victim was choked because there was no impropriety in doing so); State

v. Walker, 729 S.W.2d 272, 275 (Tenn. Crim. App. 1986) (concluding that a

demonstration that simulated the State‘s theory of the shooting using evidence introduced

at trial was not improper and noting that the jury was instructed that the demonstration

was merely the State‘s theory).

This court has also approved of the use of demonstrative evidence that was not

admitted at trial during the State‘s rebuttal argument. In State v. Porter, the defense, in

closing, referred to evidence supporting guilt as ―garbage.‖ Porter, 1989 WL 4939, at

*8. In rebuttal, the prosecutor took a doll, not in evidence, and demonstrated the State‘s

theory of how the victim had been injured by shaking the doll for twenty seconds. Id.

This court concluded that the prosecutor‘s actions were ―demonstrating evidence already

well established in the trial record; i.e., that the child‘s eyes and brain injuries resulted

from its having been violently shaken, its head having been rocked back and forth for an

estimated period of twenty seconds.‖ Id. Accordingly, the court found that the defendant

had not been denied a fair trial. Id. at *9.

There are five general areas of prosecutorial misconduct in closing argument: 1)

intentionally misstating evidence or misleading the jury regarding inferences it may

draw; 2) expressing personal belief or opinion as to the truth or falsity of any testimony

or evidence or the guilt of the defendant; 3) using argument calculated to inflame the

passions or prejudices of the jury; 4) using argument which would divert the jury from its

duty to determine facts based on evidence by interjecting issues broader than the guilt or

innocence of the accused or by making predictions regarding the consequences of the

verdict; 5) intentionally referring to or arguing facts outside the record unless they are

matters of common public knowledge. State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App.

2003).

Here, the demonstration was responding to the defendant‘s theory of the case,

which was that the victim had been shot in self-defense. The argument was temperate

and based on the facts in evidence, in that the lead prosecutor referred to witness

testimony regarding the analysis of the crime scene while the other prosecutor acted out

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the victim‘s role during the shooting.5 The defense acknowledges that ―had this occurred

during the State‘s initial argument[,] the argument may have been proper perhaps.‖ We

conclude there were no violations of the standards listed in Goltz. However, the

defendant urges us to create a rule that the State may not conduct a demonstration with

objects not in evidence during rebuttal argument pursuant to Tennessee Rule of Criminal

Procedure 29.1(d)(2).

Tennessee Rule of Criminal Procedure 29.1(d)(2) specifies that ―while the state,

having the burden of proof, has the right to open and close the argument, this right shall

not be exercised in such way as to deprive the defendant of the opportunity to fully

answer all state argument. The court, on motion, shall enforce this purpose.‖

In State v. Deandre D. Rucker, this court concluded that prosecutorial misconduct

had resulted in reversible error when the prosecutor quoted rap lyrics containing racial

slurs in rebuttal during closing argument. State v. Deandre D. Rucker, No. M2014-

00742-CCA-R3-CD, 2015 WL 4126756, at *6 (Tenn. Crim. App. July 9, 2015). In

Rucker, the trial court did not give limiting instructions. Id. Significantly, this court

concluded that, given the timing of the argument in rebuttal, ―it was meant to bolster the

State‘s case in such a way and at a time that the defendant could not respond.‖ Id.

Likewise in State v. Jackson, the Tennessee Supreme Court noted that ―the impermissible

comment [regarding the defendant‘s choice not to testify] came at a critically important

juncture in the trial—the prosecution‘s final, rebuttal argument to the jury. The defense

had no opportunity to respond to the argument.‖ State v. Jackson, 444 S.W.3d 554, 592

(Tenn. 2014). The Jackson court granted the defendant a new trial. Id.

Throughout the trial, the defendant‘s theory of the case was that the victim was

assaulting her and that she shot him in self-defense, firing the final shot out of fear when

he grabbed her leg as she walked through the hallway. Accordingly, the defendant‘s

closing argument was not a surprise to the prosecution. The prosecution apparently had a

door manufactured and hung on a moving frame to illustrate the manner in which the

State believed the crime occurred, but it declined to use the door in its initial closing

statement. Instead, it waited until the defense had finished its closing and then chose to

reenact the crime. It appears that the State reserved this demonstration for the purpose of

―sandbagging‖ the defense. See State v. Donald W. Branch, No. W1999-00506-CCA-

R3CD, 2002 WL 1558485, at *19 (Tenn. Crim. App. Jan. 4, 2002). While we disapprove

of the prosecutor‘s decision to reserve the demonstrative evidence for rebuttal with the

apparent purpose of placing it before the jury at a time when the defendant could not

5

Apparently, one of the prosecutors, in reenacting the crime, held the wrong hip to

indicate a gunshot wound. The defendant objected and asked the prosecutor to correct her

gestures, and the defendant does not assert that this mistake requires reversal.

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respond, we conclude that the use of the door did not ultimately amount to a deprivation

of the opportunity to fully answer the State‘s argument under Rule 29.1(d)(2).

―A criminal conviction should not be lightly overturned solely on the basis of the

prosecutor‘s closing argument.‖ State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008).

Generally, impropriety in closing statements is evaluated to determine whether the

conduct affected the verdict to the defendant‘s prejudice. Bane, 57 S.W.3d at 425. The

court considers: 1) the conduct complained of viewed in context and in light of the facts

and circumstances of the case; 2) the curative measures undertaken by the court and the

prosecution; 3) the intent of the prosecutor in making the improper statement; 4) the

cumulative effect of the improper conduct and any other errors in the record; and 5) the

relative strength or weakness of the case. State v. Larkin, 443 S.W.3d 751, 813 (Tenn.

Crim. App. 2013). However, the Tennessee Supreme Court has noted that in cases of

constitutional error in closing arguments, the burden is on the State to prove harmlessness

beyond a reasonable doubt. Jackson, 444 S.W.3d at 591 (applying this standard to the

prosecutor‘s comment on the defendant‘s assertion of her Fifth Amendment right against

self-incrimination). In evaluating whether the State has shown harmlessness beyond a

reasonable doubt, ―courts should consider the nature and extensiveness of the

prosecutor‘s argument, the curative instructions given, if any, and the strength of the

evidence of guilt.‖ Id.

Citing to Wallis v. State, 546 S.W.2d 244 (Tenn. Crim. App. 1976), the defendant

argues that the trial court‘s decision to allow the use of the door and reenactment in

rebuttal essentially denied her the right to counsel because she was not able to respond to

the reenactment. In Wallis v. State, the State presented an initial closing argument which

spoke to the jury‘s general duties and did not reference the facts of the case. Wallis v.

State, 546 S.W.2d 244, 246 (Tenn. Crim. App. 1976). The defense, relying on this mild

closing, waived its closing argument. Id. The State was then permitted rebuttal, during

which it attacked in detail the defendant and his theory of the case. Id. The defendant‘s

request to rebut the State‘s argument was denied. Id. This court held that under these

circumstances, the defendant should have been permitted sur-rebuttal. Id. at 248. In

reversing, the court concluded that ―the appellant‘s right to be heard by counsel ha[d]

been abridged.‖ Id.

This case differs from Wallis, in which the defendant made no closing argument at

all, because here, defense counsel made a lengthy, thorough, and effective closing

statement outlining the defendant‘s theory of how the shooting occurred. While the

defendant asserts that she could not respond to the State‘s demonstration, she points to

nothing in particular about the reenactment, other than its demonstrative nature, that

would require response or which was not already addressed by the defendant‘s closing.

Accordingly, the prosecution‘s use of the door did not abridge the defendant‘s right to

39

counsel. Compare Herring v. New York, 422 U.S. 853, 859 (1975) (noting that it is

―universally‖ held that the defense has the right to make a closing statement to the jury

and that ―a total denial of the opportunity for final argument‖ is ―a denial of the basic

right of the accused to make his defense‖ even in the context of a bench trial). We

further note that the defense, while objecting to the use of the door, never requested the

trial court for sur-rebuttal. See Wallis, 546 S.W.2d at 248 (noting that in exceptional

circumstances, the defendant may have the right to rebut the State‘s closing argument).

Neither did the prosecution‘s decision to reserve the door for rebuttal ―deprive the

defendant of the opportunity to fully answer all state argument.‖ Tenn. R. Crim. P.

29.1(d)(2). While there was no surprise for the prosecution in the defendant‘s closing

argument, neither was there any surprise for the defense in the statements which

constituted the State‘s rebuttal argument. The State once again outlined its theory that

the defendant had shot the victim, who was not the aggressor but was retreating before

her. The defendant does not point to anything specific within the State‘s demonstration

which merited a response that defense counsel had no opportunity to make.

Here, the only arguable impropriety was the reservation of the demonstration for a

time when the defense had no opportunity to respond to the demonstration in particular.

The demonstration itself was based on facts in evidence and was not improper. Neither

did it exceed the scope of the defendant‘s own argument outlining how the shooting had

occurred. The trial court twice gave the jury extensive instructions that the prosecution‘s

reenactment was not evidence but merely an illustration of the State‘s theory and that the

jury should disregard the argument if it found the argument not supported by the

evidence. Compare Jackson, 444 S.W.3d at 592 (noting that curative instructions

regarding prosecution‘s comment on the defendant‘s right not to testify ―likely served to

emphasize‖ the error). The jury is presumed to follow instructions. Jordan, 325 S.W.3d

at 66. We conclude that the defendant is not entitled to relief.

CONCLUSION

Based on the foregoing reasoning, we affirm the judgment of the trial court.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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