State of Tennessee v. Glen Allen Donaldson

05/14/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 20, 2019 Session

STATE OF TENNESSEE v. GLEN ALLEN DONALDSON

Appeal from the Criminal Court for Hamilton County

No. 300677 Don W. Poole, Judge

No. E2019-00543-CCA-R3-CD

The defendant, Glen Allen Donaldson, appeals his Hamilton County Criminal Court jury

conviction of second degree murder, arguing that the trial court erred by excluding

certain evidence, admitting into evidence a life photograph of the victim, and denying the

defendant’s requested jury instructions on self-defense and provocation; that he was

prejudiced by the cumulative effect of trial errors; that the evidence was insufficient to

support his conviction; and that his sentence was excessive. Discerning no error, we

affirm.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL, and D. KELLY THOMAS, JR., JJ., joined.

Marya L. Schalk (on appeal), Jerry H. Summers (at trial and on appeal), Benjamin L.

McGowan (at trial and on appeal), Chattanooga, Tennessee for appellant, Glen Allen

Donaldson.

Herbert H. Slatery III, Attorney General and Reporter; Nick Spangler, Assistant Attorney

General; Neal Pinkston, District Attorney General; and Cameron Williams and Crystle

Carrion, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The Hamilton County Grand Jury charged the defendant with first degree

murder arising from the shooting death of his son-in-law.

At the May 2018 jury trial, Hamilton County Sheriff’s Office (“HCSO”)

deputy Joe Sanchez testified that, on December 29, 2016, he responded to a call that a

person had been shot at 3997 Niles Terrace in Ooltewah. Inside the house, he found the

victim, Adam Levi, deceased and lying on the kitchen floor with a shell casing nearby.

Several photographs of the crime scene were exhibited to Deputy Sanchez’ testimony and

shown to the jury. One photograph showed a dish drying rack to the left of the sink with

a coffee press, a knife, and a lid. The defendant had reported the shooting and was

apprehended at another location.

On cross-examination, Deputy Sanchez testified that, in the 9-1-1 call, the

defendant had said that he had shot the victim after the victim threatened him with a

knife. According to the victim’s driver’s license, he was five feet and 11 inches tall and

weighed 210 pounds. Deputy Sanchez did not see the knife in the dishrack until

sometime later when he reviewed the photographs of the scene.

On redirect examination, Deputy Sanchez stated that he did not find any

signs of a struggle or altercation at the crime scene.

Sergeant James Gienapp, a crime scene investigator with the HCSO,

processed the crime scene, taking photographs and collecting evidence. When he entered

the house, he found the victim “laying on his back in the kitchen” with “a small amount

of blood visible on his face. The faucet in the kitchen sink was running into a cup and

there was a shell casing approximately a foot, foot and a half, to [the victim’s] right

shoulder.” Sergeant Gienapp began a report on the case but wrote only a couple of

paragraphs and did not include it in the official report. He finished writing the report

only a couple of days prior to trial, explaining that he had lost the document from his

computer when he changed computers. Several photographs taken by Sergeant Gienapp

were exhibited to his testimony and shown to the jury. One photograph showed a knife

in the dishrack pointing up with a lid to a travel mug resting on top of the knife handle.

Although he had taken close-up photographs of the knife and dishrack, Sergeant Gienapp

did not collect the knife into evidence because “[i]t did not appear to be relevant.” He

stated that he “knew very little” about the incident when he arrived at the scene, and he

photographed the knife after Detective Ric Whaley asked about it. The shell casing he

found was a “spent casing of Sig 30 auto, aluminum casing, silver in color.”

During cross-examination, Sergeant Gienapp acknowledged that

department policy required him to write a thorough and complete report “[a]round the

time” of the incident. He also acknowledged that he did not use the Case Management

System (“CMS”) to write his report, explaining, “I usually do my narratives in Word

because of spell check and things like that, and then I’ll cut and paste the narrative over

into the case file.” Because he had not submitted his report in CMS, it was not part of the

case file. In the report that he started writing shortly after the incident, he made no

mention of the knife, but in the report he wrote a couple of days before trial he included

-2-

the knife found in the dishrack.

When he arrived at the scene, he had been told only that the defendant had

shot the victim; he did not know of the defendant’s allegation that the victim threatened

him with a knife. Detective Whaley asked if there was a knife on the floor near the

victim, and Sergeant Gienapp told him about the knife in the dishrack. At that point, he

took the close-up photographs of the knife. He stated that he did not think that the knife

was relevant because “with the lid laying on top of it, there is just no way that the knife

was picked up prior to [the victim’s] being shot.” He acknowledged that the lid could

have shifted if something had been dropped into the dishrack.

Hamilton County 9-1-1 Communications Records Specialist Jean Rogers

took the defendant’s call regarding the shooting. The jury heard a recording of the 9-1-1

call.

Former Collegedale Police Department officer David Myrick responded to

the defendant’s location at a Regions Bank after the shooting. The defendant exited his

vehicle with his hands above his head as instructed and was taken into custody. Officer

Myrick saw a semiautomatic handgun on the front passenger’s seat of the defendant’s

truck. Photographs of the scene of the defendant’s arrest were shown to the jury. The

HCSO processed that scene, and the defendant’s brother arrived during that time. Officer

Myrick stated that the defendant was calm and compliant.

HCSO Sergeant Robin Langford responded first to the Niles Terrace scene

where he “did a walk through” to “determine how much manpower, what type of

equipment and logistics” would be necessary. He then went to the scene where the

defendant was arrested. He found a semi-automatic Ruger .380 firearm in the

defendant’s truck. He took photographs, collected the gun, a magazine, and five rounds

into evidence, and had the truck towed for processing. He did not write a crime scene

report, explaining that “[in] this particular case with the vehicle, the photographs speak

for themselves, the gunshot residue samples speak for themselves. There was no

additional detail or clarification that led me to believe that further documentation was

required.”

During cross-examination, Sergeant Langford stated that, had the evidence

needed more explanation, he would have written a report. He collected the gun and

bullets from the truck before having it towed to avoid losing them.

Tennessee Bureau of Investigation (“TBI”) Agent Jessica Hudson testified

as an expert in firearm and toolmark identification. She concluded that the cartridge case

-3-

and bullet jacket recovered in this case were fired from the defendant’s gun. At the

request of the medical examiner, she generated “test patterns” of lead vapor of the

defendant’s gun fired from three, six, nine, and 12 inches. Photographs of the test

patterns were shown to the jury.

On cross-examination, Agent Hudson stated that the ammunition in this

case was the Sig brand. She agreed that the grains of gun powder in each cartridge by the

same company “would vary slightly” and that this variance could slightly affect the

results of her test patterns.

HCSO Detective Ric Whaley testified that he dispatched officers to the

Niles Terrace and Apison Pike scenes, but because of a shortage of available officers that

night, he acted as the case manager and conducted interviews. He did not respond to

either scene himself, but was in contact with Detectives Gienapp and Langford. He met

with the defendant at the sheriff’s office. He also interviewed the defendant’s brother,

Jerry Donaldson, and Mr. Donaldson’s wife. Detective Whaley determined to charge the

defendant with first degree murder because the physical evidence at the crime scene “just

didn’t match the story” that the defendant told the 9-1-1 dispatcher. He stated that he did

not know the victim prior to this case, but he identified the victim in a photograph taken

while the victim was alive; the photograph was admitted into evidence and shown to the

jury.

During cross-examination, Detective Whaley stated that there was never a

question of whether the defendant shot the victim. The defendant had a handgun carry

permit and was legally armed at the time of the shooting. Detective Whaley

acknowledged that, in his report, he stated that no knife was found near the victim. He

prepared his report from the information Sergeant Gienapp relayed to him. Although

Sergeant Gienapp sent him a photograph of the “knife in the dish drainer with the lid on

the handle,” Detective Whaley did not consider the knife to be “in proximity as an

offensive weapon.”

On redirect examination, Detective Whaley explained that the physical

evidence did not support the defendant’s allegation that the victim threatened him with a

knife, stating that based on the location of the gunshot, the victim “would have went

straight back from wherever he was, which he went straight back from the sink. So he

was facing the sink when he was shot.”

On recross-examination, he acknowledged that the defendant told the 9-1-1

operator that the victim had “‘turned around with a knife,’” and he agreed that the phrase

“turned around” is vague and could mean that the victim turned all the way around or

-4-

simply turned to the side. He also acknowledged that if the victim was holding the knife

over the dish drying rack at the time he was shot, the knife would have fallen into the

drying rack, but he said, “I don’t see how he would have put a lid on it after he was shot.”

TBI Special Agent Carrie Schmittgen testified that traces of the victim’s

blood were found on the defendant’s pants. On cross-examination, she stated that she did

not receive a knife for serology testing in this case.

Doctor Steven Cogswell, Deputy Chief Medical Examiner at the Hamilton

County Medical Examiner’s Office, testified as an expert in forensic pathology. He

performed the victim’s autopsy and determined the cause of death to be a gunshot wound

to the head. The victim’s autopsy and toxicology reports were exhibited to Doctor

Cogswell’s testimony and shown to the jury. The toxicology report indicated that the

victim had multiple prescription drugs in his system at the time of his death, including

234 nanograms per milliliter of Adderall, 173 nanograms per milliliter of hydrocodone,

and 500 nanograms per milliliter of Tramadol. The report indicated a therapeutic range

of 10-100 nanograms per milliliter for Adderall, 10-40 nanograms per milliliter for

hydrocodone, and 200-750 nanograms per milliliter for Tramadol. The report also

indicated the presence of caffeine, cotinine, and dihydrocodeine, which Doctor Cogswell

attributed to “probably just a metabolite of the hydrocodone.” The victim had

prescriptions for 60 milligrams of Adderall, 10 milligrams of hydrocodone, and 400

milligrams of Tramadol per day.

Doctor Cogswell explained that a therapeutic range of a drug “is generally

the lower and upper levels at which the drug is going to have a beneficial effect”;

whereas a toxic range is “where it’s having a bad effect on you”; and a lethal range is a

dose “high enough that it could kill you.” He also explained that a person can develop

tolerance for a drug, which could require that person to “need more of the drug to have

the beneficial effect.” Consequently, “the therapeutic range for a particular individual

who had been taking a drug for a long period of time may be significantly higher” than

the therapeutic range for another individual. The victim had been taking hydrocodone

and Adderall for “at least years.” Doctor Cogswell did not attach any significance to the

concentration of drugs in the victim’s system because “absent any indication that his

death is due to a drug overdose, there’s simply nothing to say what [the victim] was

acting like” or “what effect these drugs would have had on him at any given

concentration.”

The bullet entered through the back of the victim’s head and lodged in his

brain. Based on the soot and stippling patterns, Doctor Cogswell determined that the shot

was fired from a close to intermediate range. After comparing the victim’s wound to the

-5-

test patterns generated by Agent Hudson, he concluded that the victim was shot from

three to four inches away.

During cross-examination, Doctor Cogswell estimated that the shooter was

standing approximately a foot and a half away from the victim when the shot was fired.

He reiterated that a therapeutic range of a particular drug can vary by individual, and he

stated that the victim’s concentration of 234 nanograms per milliliter of amphetamine

could have resulted from his taking 60 milligrams of Adderall per day. Doctor Cogswell

described Adderall as a stimulant that “tend[s] to raise blood pressure, make the system

more alert and aware . . . [and] in the case of folks with ADD, it helps them focus.” He

acknowledged that it was classified as a drug with a high potential for abuse. Other

potential side effects of Adderall were “assaultiveness, panic states, confusion, [and]

hallucinations,” but Doctor Cogswell explained, “That doesn’t mean that every patient

has those side effects.” Doctor Cogswell acknowledged that the amount of hydrocodone

in the victim’s system was more than four times the highest listed therapeutic range but

reiterated that “in the individual case, for the individual patient, again it can also be

significantly higher.” Doctor Cogswell described Tramadol as a non-morphine-based

opiate that is used as a pain reliever for moderate to severe pain. The combination of

Tramadol and hydrocodone would have had an “additive or synergistic” effect when

taken together. Doctor Cogswell did not find anything in the victim’s autopsy that would

have warranted a prescription for hydrocodone and Tramadol to treat pain.

On redirect examination, Doctor Cogswell stated that he found no evidence

that the victim was using illegal drugs, and he maintained that 60 milligrams of Adderall

could result in a concentration of 234 nanograms per milliliter in a person. He also stated

that because the victim used Adderall daily, he would have had some residual drug in his

system from the previous day in order to prevent him from dropping below the

therapeutic level.

Upon further cross-examination, Doctor Cogswell acknowledged that

crushing or smoking Adderall as opposed to taking it by mouth would constitute abuse of

the drug rather than a therapeutic use. He also acknowledged that he could not determine

the victim’s method of administration of the drug. He stated that “most forensic

pathologists ignore what’s listed on the therapeutic range” of a toxicology report because

the report is only a snapshot of the patient’s toxicology.

The State rested and the defendant elected to testify in his own defense.

The defendant testified that, at the time of the incident, he was employed at

T & T Produce as a freight handler. The victim was married to the defendant’s daughter,

-6-

Amanda Levi,1 and they had one child, Olivia, together. The victim and Ms. Levi were

going through a divorce, and, eight months prior to the shooting, Ms. Levi and Olivia had

moved in with the defendant’s parents. The defendant stated that he tried to act as a

mediator between Ms. Levi and the victim during the divorce and that his relationship

with both of them was very good, saying that he loved the victim “like a son. I mean, he

was one of my kids.”

At some point during the divorce proceedings, a court order prohibited the

victim from being alone with Olivia and from visiting her without Ms. Levi’s consent.

On Christmas Eve 2016, the defendant texted the victim about Ms. Levi’s meeting with

the victim’s parents and discussing “everything that had been going on through their

divorce, the issues.” The victim and Ms. Levi then began “ya-ya-ing between each

other,” and the victim “want[ed] to bump them gums, just to push the button.” The

defendant was “irritated” with them and texted the victim, “This is a bunch of bull, stop

it. I hope you have a Merry Christmas.” The next day, the victim came to the

defendant’s parents’ house to see Olivia for Christmas. The defendant stated that he and

the victim had no problems at that time.

On the day of the shooting, December 29, the defendant visited with Olivia

at his parents’ house between 5:30 p.m. and 6:00 p.m. He returned to his house between

7:00 p.m. and 7:30 p.m. when he received a text message from the victim stating that the

defendant could come over to pick up some bed rails for Ms. Levi. He arrived at the

victim’s house about 20 minutes later and knocked on the door, and the victim invited

him in. When he entered the house, the victim was washing dishes in the kitchen, and the

defendant “went over to the dining room area adjacent to the kitchen area” and sat down.

The two talked while the victim continued to wash dishes. The defendant described the

victim as being “real shaky,” “jittery,” and “talking a hundred miles an hour.” The victim

told the defendant that he was “okay, I’ve got something to keep me going.” The two

men then loaded the bed rails into the defendant’s truck, and the victim invited the

defendant back into the house, saying, “[M]an come on back up, [w]e ain’t seen each

other.” They returned to the kitchen and continued to talk. The defendant stated that, in

the prior year, the victim had lost several jobs and was, at that time, working for his

brother at Everclear Pool. The victim’s house was in foreclosure, and Ms. Levi “was

keeping him going” financially.

At some point, the conversation became more serious and the defendant

1

Although the trial transcript does not contain Ms. Levi’s last name, the presentence report

identifies her as Amanda Levi, and we will refer to her as Ms. Levi here. Because we presume Olivia’s

last name to also be Levi, we will refer to her as “Olivia” to avoid any confusion.

-7-

asked the victim about certain text messages related to drug purchases and drug dealings.

Prior to that, the victim was unaware that Ms. Levi had obtained these text messages

through a private investigator. When the defendant brought up these messages, the

victim seemed “[v]ery much surprised,” “[h]is whole demeanor started changing,” and he

looked as if he had “got[ten] busted.” The defendant told the victim that Ms. Levi

intended to use the messages against the victim in the divorce and custody proceedings.

The defendant said that his intent was to help the victim deal with his drug issue. The

defendant stated that the victim “was just mad. Not at me. He was mad. His world was

coming to an end, everything was catching up.” The victim was at the sink and was

holding a knife, and when the defendant warned him that he did not want the other person

on the text messages to be subpoenaed during the divorce proceedings, the victim “turned

and he twisted, and he said ‘I promise you that ain’t going to happen.’”

When that moment passed, the defendant told the victim that Ms. Levi had

met with the victim’s parents and that she had talked with them about trying to get the

victim some help. The victim replied, “Well, that’s where the F-ing questions come

from, I wondered how they knew.” The defendant said that this was unusual behavior for

the victim. The defendant left the room to use the restroom, and when he returned to the

kitchen, the victim was standing at the sink. The defendant walked up behind the victim

and asked him about his drug use and a “very upsetting family situation.” The defendant

described what happened next:

[W]hen I asked him, it was F-U, you SOB, and I seen a

handle come up and I seen the chrome and I knew. And he

said, I’ll cut you. And I stepped behind him. I wasn’t there

far behind him, you know, I’d just walked in there. And I

pulled -- when he told me he was going to cut me, I had a

pistol in my vest and I pulled it, and I turned, I didn’t know

where I shot. I remember some bang and the smell of smoke.

I didn’t know where I shot.

After shooting the victim, the defendant “sat there for a minute . . . trying to

figure out what to do, and I left and got in my truck and I called my big brother,” Jerry

Donaldson. He told his brother to call 9-1-1 because he had shot the victim after “[w]e

got in a confrontation.” The defendant then drove to the Regions Bank approximately

two to three miles away and told his brother to tell the police he would wait there and that

“[t]here will be no problems.” The defendant then called 9-1-1 himself. The defendant

stated that, during the call, he sounded calm because he “was in shock. I don’t get

excited, I stay calm.” When the 9-1-1 operator asked him if the victim was still alive, he

responded, “I doubt it.” The defendant said he was “trying to compress it into what had

-8-

just transpired,” and he did not want to acknowledge the possibility of what had

happened.

The defendant stated that he did not flee when he saw the victim raise the

knife because he “was in fear of what was going on. And my mobility at that time wasn’t

good because I’d had neck surgery, . . . and I couldn’t move good.” The defendant stated

that he “was just trying to get out of the situation. And when I was in fear of everything

and a man tells me he’s going to cut me, and he was mad, I pulled my gun.”

On cross-examination, the defendant denied that he was trying to provoke

the victim with his questioning about his drug use. Rather, he was trying to help the

victim. The defendant clarified that, when he returned to the kitchen from the restroom,

the victim was standing at the sink, and the defendant stood not “that far from him” “off

his left shoulder.” He estimated that he was a foot to a foot-and-a-half away from the

victim. When the victim picked up the knife, the defendant “stepped behind him, pulled

[the gun] out of my vest and turned.” The defendant was moving “[t]oward the

refrigerator area” and “toward the stove.” He estimated that, when he fired the gun, the

victim was at “[a]rm length, then some, I guess.” The victim did not turn all of the way

around when the defendant fired.

The jury heard an audio recording of a jail-house phone call between the

defendant and his brother following the defendant’s bond hearing, during which call the

defendant told his brother that he had been “pushing the button on [the victim’s] drug

issues,” but the defendant maintained that he was trying to help the victim. He again

denied that he had been trying to provoke the victim. The defendant agreed that it was

impossible to shoot a person in the back of the head when they are facing you. The text

message that the defendant sent to the victim on December 24 was read into the record:

“Adam, it’s Glenn. Amanda just sent me your text. Didn’t like it, so I told her Olivia not

coming today. Sorry. Come see her in the morning. Problem solved. Ask your parents

about the secret lunch they had with Amanda and talk they had with her. I’m over this

bull. Have a Merry Christmas.” The defendant explained that the “bull” the text was

referring to was the “yayaing” between Ms. Levi and the victim. He denied that there

was a struggle or fight between him and the victim, and he stated that he had not been

injured during the shooting.

During redirect examination, the defendant agreed that the term “turned

around” could indicate various types of movement including turning all of the way

around or turning only part of the way around. He stated that the victim turned to his left

when he “turned around” with the knife. He stated that he could have been five feet away

from the victim when he shot him but “everything was a guess what went on that night in

-9-

that room.” He stated that he had been frustrated with the victim’s drug use because it

was negatively impacting Olivia, stating, “Olivia was getting short-changed, I wanted to

make sure she didn’t.” He thought that if the victim could get over his drug problem,

then Ms. Levi “would calm down” and the situation would improve.

During the jail-house phone call with his brother, the defendant stated that

he had asked the victim about his and Ms. Levi’s son, Gabriel, who was stillborn at 22-

weeks gestation.. Specifically, the defendant asked the victim whether his drug use had

resulted in certain injuries to Gabriel that had caused his death. The defendant contended

that his questioning the victim about Gabriel resulted in the victim’s threatening him with

the knife. In that same phone call with his brother, the defendant stated that he had also

asked the victim about a drug dealer named “Willie.”

On recross-examination, the defendant stated that the victim was a good

father to Olivia. He acknowledged that the victim had never caused any physical harm to

Gabriel.

The defendant presented three character witnesses, Mark Anthony Hughes,

James H. Wright, Jr., and Arthur Cofield, each of whom testified that he knew the

defendant to be a truthful person and would believe any testimony of the defendant given

under oath.

Harold Donaldson, the defendant’s father, testified that he was a retired

police officer. He explained that Gabriel was the stillborn child of the victim and Ms.

Levi and that when Gabriel’s condition became known, Ms. Levi had to continue to carry

him for approximately seven more months to delivery. He stated that Gabriel’s death

was a shock to the entire family and that the victim and Ms. Levi both cared for Gabriel.

Mr. Donaldson stated that, on the day of the shooting, the defendant came

over to his house around 5:30 p.m. and stayed “for a little while with us and said he had

to leave, go meet [the victim] to get two bed rails.” He said the defendant was acting

“[j]ust like normal, just his normal doings.” Mr. Donaldson had last seen the victim on

Christmas day when he came to visit Olivia. Mr. Donaldson had never seen the

defendant acting hostile toward the victim, stating, “They always seemed to get along

real good the whole time I knew [the victim].”

On this evidence, the jury found the defendant guilty of the lesser included

offense of second degree murder. After a sentencing hearing, the trial court imposed a

sentence of 20 years’ incarceration. Following a timely but unsuccessful motion for a

new trial, the defendant filed a timely notice of appeal.

-10-

In this appeal, the defendant argues that the trial court erred by excluding

or limiting certain evidence, by admitting a life photograph of the victim, by rejecting

his request for special jury instructions on the issues of self-defense and adequate

provocation; that he was deprived of his right to due process and a fair trial by the

cumulative effect of the trial court’s errors; that the evidence was insufficient to support

the conviction; and that his sentence is excessive. We will address each issue in turn.

I. Exclusion of Certain Evidence

The defendant contends that the trial court erred by limiting evidence of

text messages between the victim and his alleged drug dealer, “Willie,” excluding

evidence of the defendant’s requesting a wellness check after the victim threatened

suicide, and limiting evidence regarding the defendant’s asking the victim if his drug use

contributed to the deformities of the victim’s stillborn child. The State argues that the

trial court did not err.

In testimony proffered during a jury-out hearing, the defendant stated that

he had learned about text messages between the victim and a drug dealer named Willie

and that, when he told the victim that he knew about these messages, the victim’s “whole

demeanor started changing.” When the defendant asked the victim who Willie was, the

victim “just got quiet for a minute.” The defendant then told the victim that he had seen

the text messages, and he said to the victim, “Come on man, don’t do this, you don’t want

some drug dealer . . . to be subpoenaed to your divorce hearings.” The defendant testified

that, as part of the divorce proceeding, the victim had been ordered to submit to a drug

hair test, but the victim shaved his head before the scheduled test and the lab “couldn’t

pull any body hair.” At some point later, the victim submitted to the test and passed.

On cross-examination, the defendant stated that the text messages in

question were at least eight months old. The defendant said that he knew the victim was

upset when he started cursing because that was unusual behavior for him. The defendant

had asked the victim “if he thought that these drugs had anything to do with the

deformities of Gabriel,” the victim’s stillborn son. Upon the defendant’s asking the

victim about Gabriel, “the knife and the gun and everything came into the picture.”

The defendant also made an offer of proof of the defendant’s 9-1-1 call in

which he requested a wellness check on the victim after the victim had indicated suicidal

thoughts. The parties stipulated to the facts contained in a police report of the incident.

The trial court determined that the defendant could testify to his

-11-

confronting the victim with his knowledge about the text messages that concerned

“something about drugs” but ruled that the content of the messages and the use of

Willie’s name was unduly prejudicial. The court also determined that evidence of the

defendant’s asking the victim if his drug use contributed to Gabriel’s deformities was

prejudicial with “very little probative value.” The court allowed the defendant to present

evidence that the victim and Ms. Levi “had a child that died shortly after birth” and that

he had asked the victim about the child’s death, but the court concluded that the

defendant could not testify to the exact question he had asked the victim regarding the

child. Finally, the trial court concluded that evidence of the victim’s threatening suicide

and the defendant’s request for a wellness check was irrelevant.

Although “[p]rinciples of due process require that a defendant in a criminal

trial have the right to present a defense and to offer testimony” favorable to his cause,

State v. Flood, 219 S.W.3d 307, 316 (Tenn. 2007) (citing Chambers v. Mississippi, 410

U.S. 284, 294 (1973); State v. Brown, 29 S.W.3d 427, 431 (Tenn. 2000)), that right is not

without limits, see id. (citing Chambers, 410 U.S. at 302). Indeed, the Supreme Court

has observed that “[i]n the exercise of this right, the accused, as is required of the State,

must comply with established rules of procedure and evidence.” Chambers, 410 U.S. at

302. “So long as the rules of procedure and evidence are not applied arbitrarily or

disproportionately to defeat the purposes they are designed to serve, these rules do not

violate a defendant’s right to present a defense.” Flood, 219 S.W.3d at 316 (citing

United States v. Scheffer, 523 U.S. 303, 308 (1998); Holmes v. South Carolina, 547 U.S.

319 (2006); Chambers, 410 U.S. at 302). To determine whether a particular evidentiary

ruling has violated a defendant’s constitutional right to present a defense, a reviewing

court must consider:

(1) Whether the excluded evidence is critical to the defense;

(2) Whether the evidence bears sufficient indicia of

reliability; and

(3) Whether the interest supporting exclusion of the evidence

is substantially important.

Flood, 219 S.W.3d at 316 (citing Brown, 29 S.W.3d at 434-35; State v. Rice, 184 S.W.3d

646, 673 (Tenn. 2006); State v. Rogers, 188 S.W.3d 593, 614 (Tenn. 2006)).

Here, we cannot say that the trial court erred by excluding or limiting the

evidence in question. Reviewing this decision against the criteria set forth in Flood, we

find that the excluded evidence was not critical to the defense. Indeed, the defendant was

-12-

permitted to testify on redirect examination that he had asked the victim about a drug

dealer named Willie and whether the victim’s drug use had resulted in certain injuries

that caused Gabriel’s death after the State opened the door to this evidence. The only

evidence related to these issues that the jury did not hear was the specific content of the

text messages and that Gabriel suffered some sort of deformity. Otherwise, the jury

heard evidence that the defendant confronted the victim with text messages about drug

deals and questioned the victim about whether his drug use caused Gabriel’s injuries and

death. Consequently, the excluded evidence was not critical to the defense.

Similarly, we conclude that evidence of the defendant’s seeking a wellness

check for the victim was not critical to his defense. That the defendant cared about the

victim and that the two had a good relationship was uncontroverted. Additionally, the

defendant’s chief defense was that he acted in self-defense, and a previous request for a

wellness check does nothing to bolster that theory. Accordingly, the defendant is not

entitled to relief on this issue.

II. Life Photograph of Victim

The defendant next asserts that the trial court erred by admitting into

evidence a photograph of the victim while alive, arguing that the statute under which the

photograph was admitted is unconstitutional.

As relevant here, Code section 40-38-103(c) provides: “In a prosecution for

any criminal homicide, an appropriate photograph of the victim while alive shall be

admissible evidence when offered by the district attorney general to show the general

appearance and condition of the victim while alive.” T.C.A. § 40-38-103(c).

The defendant contends that the statute intrudes upon the purview of the

judiciary by usurping the trial court’s authority to determine the admissibility of evidence

by making life photographs per se relevant and admissible in homicide cases. The State

asserts that the statute preserves judicial discretion relative to the admissibility of life

photographs by providing that only an “appropriate photograph . . . shall be admissible.”

See id. (emphasis added). We agree with the State.

As our supreme court has stated, “[w]hen a statute may be given more than

one reasonable interpretation, and one construction would render the statute

constitutional and one would not, we must choose that construction which validates the

provision.” Mitchell v. Mitchell, 594 S.W.2d 699, 702 (Tenn. 1980). Accordingly, “[w]e

will not declare a statute unconstitutional when we are reasonably able to do otherwise to

preserve its meaning and purpose through a constitutionally correct construction.” Id.

-13-

The Tennessee Constitution directs that “[n]o person or persons belonging

to one of [the three distinct departments of government] shall exercise any of the powers

properly belonging to either of the others, except in the cases herein directed or

permitted.” Tenn. Const. art. II, § 2. As our supreme court has previously recognized,

“[o]nly the Supreme Court has the inherent power to promulgate rules governing the

practice and procedure of the courts of this state, and this inherent power ‘exists by virtue

of the [Constitution’s] establishment of a Court and not by largess of the legislature.’”

State v. McCoy, 459 S.W.3d 1, 9 (Tenn. 2014) (quoting State v. Mallard, 40 S.W.3d 473,

480-81 (Tenn. 2001) (alterations in McCoy)). However, “[a] legislative enactment which

does not frustrate or interfere with the adjudicative function of the courts does not

constitute an impermissible encroachment upon the judicial branch of government.”

McCoy, 459 S.W.3d at 9 (quoting Lynch v. City of Jellico, 205 S.W.3d 384, 393 (Tenn.

2006) (alteration in McCoy)). Consequently, legislative rules of evidence will be upheld

“so long as they ‘(1) are reasonable and workable within the framework already adopted

by the judiciary, and (2) work to supplement the rules already promulgated by the

Supreme Court.’” McCoy, 459 S.W.3d at 9 (quoting Mallard, 40 S.W.3d at 481).

Although the statute in question mandates the admission of “an appropriate

photograph of the victim while alive,” the admission of such photograph is limited to

certain cases and for certain purposes. See T.C.A. § 40-38-103(c). By the plain language

of the statute, the trial court retains the discretion to determine whether a life photograph

of a homicide victim is appropriate for admission. See id. Despite the statute’s

mandatory language, a trial court may nevertheless exclude a photograph, even if relevant

to show the victim’s “general appearance and condition . . . while alive,” see id., if the

court determines that “its probative value is substantially outweighed by the danger of

unfair prejudice,” see Tenn. R. Evid. 403. Such a photograph would be inappropriate

and, consequently, excludable under the statute. See T.C.A. § 40-38-103(c).

The photograph at issue here shows the victim standing alone in a suit and

smiling at the camera. Although the victim’s identity was not at issue in this case, the

photograph is relevant to show the victim’s general appearance while alive, and nothing

in the photograph is prejudicial to the defendant. Accordingly, the trial court did not err

by admitting the life photograph of the victim.

III. Self-Defense and Provocation Instruction

The defendant asserts that the trial court erred by denying his requests for

special jury instructions on self-defense and adequate provocation. Specifically, the

defendant alleges error, not in the content of the self-defense charge given, but rather in

-14-

the placement of the charge in the instructions. The defendant contends that the trial

court should have given the self-defense instruction as an element of the charged offense

and of each lesser included offense. Additionally, the defendant argues that the trial court

erred when it failed to provide a definition to “adequate provocation” in response to a

question from the jury.

In criminal cases, a defendant has the right to a correct and complete charge

of the law. State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). Thus, it follows that the

trial court has a duty to give a complete charge of the law applicable to the facts of a case.

State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975). The failure to do so deprives the

defendant of the constitutional right to a jury trial. Garrison, 40 S.W.3d at 432. In

evaluating claims of error in the jury charge, this court must review the charge in its

entirety and read it as a whole. State v. Leach, 148 S.W.3d 42, 58 (Tenn. 2004). A jury

instruction is considered “prejudicially erroneous if it fails to fairly submit the legal

issues or if it misleads the jury as to the applicable law.” State v. Hodges, 944 S.W.2d

346, 352 (Tenn. 1997). Notably, when jury instructions fully and fairly state the

applicable law, a trial court is not required to provide special instructions. State v. Mann,

959 S.W.2d 503, 521 (Tenn. 1997); State v. Kelley, 683 S.W.2d 1, 6 (Tenn. Crim. App.

1984).

Although the defendant may request special instructions, jury instructions

are sufficient where they adequately state the law. See, e.g., State v. Tyson, 603 S.W.2d

748, 755 (Tenn. Crim. App. 1980). When a trial court’s charge to the jury is complete, it

need not give additional special instructions requested by the defendant. See State v.

Story, 608 S.W.2d 599, 603 (Tenn. Crim. App. 1980).

The legal accuracy of the trial court’s instructions is a question of law

subject to de novo review. See Troup v. Fischer Steel Corp., 236 S.W.3d 143, 149 (Tenn.

2007). The propriety of a given instruction is a mixed question of law and fact to be

reviewed de novo with a presumption of correctness. Carpenter v. State, 126 S.W.3d

879, 892 (Tenn. 2004); State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

Here, before enumerating the elements of the charged offense and each

lesser included offense, the trial court provided the following charge to the jury: “To

convict the defendant of the charged offense or a lesser-included offense, the State must

have proven beyond a reasonable doubt . . . all of the elements of the offense . . . , [and]

that the defendant did not act in self-defense.” After enumerating the elements of the

charged offense and each lesser included offense, the trial court gave the following self-

defense instruction:

-15-

Included in the defendant’s plea of not guilty is his plea of

self-defense. A person has a right to use force against another

when and to the degree the person reasonably believes the

force is immediately necessary to protect against the other’s

use or attempted use of unlawful force. The person has no

duty to retreat before using force.

A person has a right to use force intended or likely to

cause death or serious bodily injury if: One, the person has a

reasonable belief that there is an imminent danger of death or

serious bodily injury; and two, the danger creating the belief

of imminent death or serious bodily injury is real or honestly

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

is founded upon reasonable grounds.

The person has no duty to retreat before using force

likely to cause death or serious bodily injury.

In determining whether the defendant’s use of force

was reasonable, you may consider not only his use of force,

but also all the facts and circumstances surrounding and

leading up to it. Factors to consider in deciding whether there

was reasonable grounds for the defendant to fear death or

serious bodily injury from the alleged victim include but are

not limited to: One, any previous threats of the alleged victim

made known to the defendant; two, the character of the

alleged victim for violence when known to the defendant;

three, the animosity of the alleged victim for the defendant, as

revealed to the defendant by previous acts and words of the

alleged victim; and four, the manner in which the parties were

armed and their relative strengths and sizes.

If proof was offered by the defendant of a trait of

character of the alleged victim to show that the alleged victim

was the first aggressor and proof was then offered by the

State of a trait or character of the defendant to show that the

defendant was the first aggressor, such proof offered by the

State for that purpose can only be considered by you for the

purpose of its effect, if any, in rebutting the defense proof that

the alleged victim was the first aggressor and that, therefore,

-16-

the defendant acted in self-defense. It cannot be considered

by you as evidence of the defendant’s predisposition to

commit the offense for which he is now on trial.

The use of force against the alleged victim would not

have been justified if the defendant provoked the alleged

victim’s use of unlawful force, unless the defendant

abandoned the encounter or clearly communicated to the

alleged victim the intent to do so and the alleged victim,

nevertheless, continued to use unlawful force against the

defendant.

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 that

the defendant acted in self-defense, or if you have reasonable

doubt as to whether the defendant acted in self-defense, you

must find him not guilty.

During deliberations, the jury asked the trial court the following question:

“Define adequate provocation. And can you provoke with words or in action?” The

defendant submitted a special request for the court to provide the following response to

the jury’s question: “I charge you that words or action by the decedent can provide

adequate provocation if it places the defendant in apprehension of immediate bodily

harm.” The court declined to provide the defendant’s requested instruction to the jury

after concluding that it could not determine from the jury’s question whether they were

asking about provocation by the victim in the context of voluntary manslaughter or

provocation by the defendant in the context of self-defense. The court responded to the

jury, “Please review all of the instructions. The questions you ask are basically questions

for the jury to decide, but if you can be more specific in what context your questions are

directed, possibly more assistance can be given.” The jury returned a verdict without

asking any follow-up question.

The trial court’s instruction on self-defense closely tracked the language of

the Tennessee Pattern Jury Instructions, see Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim.

40.06(b), and was consistent with the self-defense statute, see T.C.A. § 39-11-611(b),

(e)(2). Because the trial court’s jury instruction on self-defense was complete and

accurate, the court was not obligated to give the special instruction requested by the

-17-

defendant. See Story, 608 S.W.2d at 603. Additionally, although the trial court did not

define adequate provocation or answer the jury’s question, the court gave the jury an

opportunity to clarify its request for information, but the jury declined to seek further

explanation on the matter. We conclude that the trial court did not err by declining the

defendant’s requests for special instructions or by declining to answer the jury’s question

about adequate provocation without more context.

IV. Cumulative Error

The defendant argues that the cumulative effect of the errors raised above

deprived him of a fair trial and due process. Having considered each of the above issues

and concluded that the defendant is not entitled to relief for any, we need not consider the

cumulative effect of the alleged errors. State v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010)

(“To warrant assessment under the cumulative error doctrine, there must have been more

than one actual error committed . . . .”).

V. Sufficiency of the Evidence

The defendant contends that the evidence was insufficient to support his

conviction for second degree murder and that the State failed to negate the defense of

self-defense.

Sufficient evidence exists to support a conviction if, after considering the

evidence—both direct and circumstantial—in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979);

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh

the evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes,

331 S.W.3d at 379. The verdict of the jury resolves any questions concerning the

credibility of the witnesses, the weight and value of the evidence, and the factual issues

raised by the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Significantly, this court must afford the State the strongest legitimate view of the

evidence contained in the record as well as all reasonable and legitimate inferences which

may be drawn from the evidence. Id.

As relevant to this case, “[s]econd degree murder is . . . [a] knowing killing

of another.” T.C.A. § 39-13-210(a)(1). Self-defense, however, “is a complete defense to

crimes of violence.” State v. Ivy, 868 S.W.2d 724 (Tenn. Crim. App. 1993). The Code

defines self-defense, in pertinent part, as follows:

-18-

(b)(1) 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 against another person when and to

the degree the person reasonably believes the force is

immediately necessary to protect against the other's use or

attempted use of unlawful force.

(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.

....

(e) The threat or use of force against another is not justified:

(1) If the person using force consented to the exact force used

or attempted by the other individual;

(2) If the person using force provoked the other individual’s

use or attempted use of unlawful force, unless:

(A) The person using force abandons the encounter or

clearly communicates to the other the intent to do so; and

(B) The other person nevertheless continues or

attempts to use unlawful force against the person[.]

T.C.A. § 39-11-611(b), (e)(1)-(2).

-19-

The evidence adduced at trial, considered in the light most favorable to the

State, established that the defendant went to the victim’s house and shot the victim in the

back of the head at a range of three to four inches while the victim was washing dishes.

The defendant admitted shooting the victim, and, although the defendant testified that he

shot the victim in self-defense after the victim threatened him with a knife, the State

presented evidence that contradicted the defendant’s testimony. Sergeant Gienapp

testified that the knife’s location in the dishrack with a lid placed on top of the handle

indicated that the victim was not holding the knife at the time he was shot. Detective

Whaley also testified that the physical evidence at the scene did not support the

defendant’s story. The jury resolved any issues of witness credibility and evidentiary

weight, as was their prerogative. See Cabbage, 571 S.W.2d at 835 (Tenn. 1978). We

hold that this evidence was sufficient to support the defendant’s conviction of second

degree murder and to overcome the defendant’s claim of self-defense.

VI. Sentencing

Finally, the defendant contends that his 20-year sentence is excessive,

arguing that the trial court gave undue weight to the enhancement factor. The State

argues that the trial court did not err.

Our supreme court has adopted an abuse of discretion standard of review

for sentencing and has prescribed “a presumption of reasonableness to within-range

sentencing decisions that reflect a proper application of the purposes and principles of our

Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of

the purposes and principles of sentencing involves a consideration of “[t]he potential or

lack of potential for the rehabilitation or treatment of the defendant . . . in determining the

sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial

courts are “required under the 2005 amendments to ‘place on the record, either orally or

in writing, what enhancement or mitigating factors were considered, if any, as well as the

reasons for the sentence, in order to ensure fair and consistent sentencing.’” Bise, 380

S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)).

As relevant here, a conviction of second degree murder, a Class A felony,

for a Range I offender carries a sentencing range of 15-25 years. See T.C.A. § 40-35-

112(a)(1). Here, the record reflects that the trial court considered all appropriate

principles set forth in Code section 40-35-210(b). See T.C.A. § 40-35-210(b). The trial

court found one enhancement factor: that the defendant used a firearm in the commission

of the offense, see T.C.A. § 40-35-114(9), noting, “[I]t’s a strong enhancing factor[] . . .

in regard to this case.” As to mitigating factors, the trial court found that the defendant

-20-

did not “have a criminal record, he has a loving, supporting family,” and he had “an

excellent work history.” See T.C.A. § 40-35-113(13). The trial court found that the

enhancing factor “overwhelms the mitigating factors,” giving “some credit” to the

mitigating factors but giving “a lot of credit, a lot of credit, to that very strong enhancing

factor that a firearm was taken in that man’s house and he was shot in the back of the

head at a distance of three to four inches.” “A trial court’s weighing of various

mitigating and enhancement factors [is] left to the trial court’s sound discretion.” State v.

Carter, 254 S.W.3d 335, 345 (Tenn. 2008). For this reason, an appellate court is

precluded from reweighing appropriately applied enhancement and mitigating factors.

See id. at 344-45. Accordingly, we find no error in the trial court’s refusal to attach more

weight to the mitigating factors, and we conclude that the record supports the length of

sentence imposed in this case.

Accordingly, the judgment of the trial court is affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

-21-