State of Tennessee v. Rickeena Hamilton

09/28/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 26, 2022 Session

STATE OF TENNESSEE v. RICKEENA HAMILTON

Appeal from the Criminal Court for Knox County

No. 114211 Steven Wayne Sword, Judge

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No. E2021-00409-CCA-R3-CD

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Defendant, Rickeena Hamilton, appeals her convictions for second degree murder and

tampering with evidence and her effective twenty-eight-year sentence. On appeal,

Defendant contends that (1) the evidence is insufficient to support her conviction for

second degree murder; (2) the State improperly introduced speculative and improper

opinion testimony from fact witnesses; (3) the trial court erred in admitting evidence that

Defendant declined to make a statement following her arrest; (4) the trial court issued

multiple erroneous jury instructions; (5) the State made improper comments during closing

arguments; (6) the trial court imposed an excessive sentence; and (7) the cumulative effect

of the errors warrants relief. We affirm the judgments of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which TIMOTHY L.

EASTER, J., joined. JOHN EVERETT WILLIAMS, P.J., not participating.1

Eric Lutton, District Public Defender; and Johnathan Harwell, Assistant Public Defender

(on appeal); and Joseph A. Fanduzz, Knoxville, Tennessee (at trial), for the appellant,

Rickeena Hamilton.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Assistant

Attorney General; Charme P. Allen, District Attorney General; and Sean McDermott and

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

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The Honorable John Everett Williams, Presiding Judge of the Court of Criminal Appeals, passed

away on September 2, 2022, and did not participate in this opinion. We acknowledge his faithful service

to this Court.

OPINION

I. Factual and Procedural Background

Defendant was charged with second degree murder for killing the victim, Timothy

Chaz Cox, by stabbing him in his neck on June 17, 2018, following an altercation at Bull

Feathers, a bar located in Knoxville, Tennessee. Defendant fled the scene and threw the

knife into a dumpster, and she also was charged with tampering with evidence as a result.

Trial

According to the evidence presented at trial, the twenty-two-year-old victim worked

as a car salesman with his father, Timothy Cox, and the victim’s girlfriend was pregnant

with his first child. Sunday, June 17, 2018, was Father’s Day, and the victim and his father

ate lunch together and then went to Bull Feathers, where they ordered two “buckets” of

beer and played pool. They later were joined by Tracy Cox, the victim’s mother, and David

Nabors, a coworker of the victim and his father.

Bull Feathers had an “L-shaped” bar near the front entrance, and tables and chairs

were placed throughout the area. Two pool tables were located past a karaoke booth in the

back of the bar. A room with dartboards was located next to the pool tables. Hannah

Powell, the manager of Bull Feathers, testified that exits were located at the front of the

bar, in the nonsmoking section, and near the restrooms in the back. She agreed that the

closest exit near the pool tables was by the restrooms.

The victim’s mother testified that she was at Bull Feathers for approximately one

and one-half to two hours when a group that included Defendant arrived. The group was

celebrating a birthday and acting “all wild and crazy.” Olia Hutson, a member of the group,

testified that earlier in the day, she and Defendant went shopping and stopped by the

Moonshine Bar where they drank free samples of moonshine. They then went to a bar

where they continued to drink alcohol. Ms. Hutson said that because she was driving, she

only had two or three drinks throughout the day. She stated that the group was kicked out

of the bar after another member of the group was “caught doing something in the restroom,

some sexual manner.” Ms. Hutson then suggested that they go to Bull Feathers. When the

group arrived, they sat at a table near the pool tables where the victim, his parents, and Mr.

Nabors had gathered. Ms. Hutson recognized the victim and had spoken to him on a prior

occasion.

The victim’s father and mother testified that a woman from the group approached

them and kissed the victim’s mother on her mouth. The victim’s mother said that although

she did not like the woman’s kissing her, she did not want to “start anything” and “just let

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it go at that.” The woman then kissed Mr. Nabors, the victim’s father, and the victim on

their mouths. The victim’s father recalled thinking that “somebody’s on drugs, ‘cause

they’re acting crazy.” He said the woman remained with his group for a short period of

time and walked away without him asking her to do so.

The victim’s group decided to throw darts and began gathering change. While the

victim’s mother was standing near the end of the pool tables and the dartboard room,

Defendant approached her, began rubbing the arm of the victim’s mother, and asked

whether she had been offended by Defendant’s friend. The victim’s mother replied that

everything was fine, that she should “let it go,” and that it was not a “big deal.” Defendant

continued rubbing the arm of the victim’s mother, while asking, “Well, are you sure she

didn’t offend you?” The victim’s mother testified that although she was not “comfortable”

with the exchange, she attempted to remain cordial and told Defendant, “Everything’s

fine.”

The victim’s father testified that although Defendant acted as if she was apologizing

to the victim’s mother, Defendant continued rubbing the arm of the victim’s mother. The

victim’s father stated that he asked Defendant to return to her group and leave them alone

to allow them to enjoy Father’s Day but that Defendant refused to leave. The victim’s

mother said she knew there was going to be an argument, so she walked away. The victim’s

father raised his voice and pointed to Defendant’s group, telling her to return to her friends

and to leave his group alone. Mr. Nabors was gathering change and heard the victim’s

father say, “Get away.” Mr. Nabors turned around and saw that Defendant and the victim’s

father were “face to face.”

The victim’s father testified that the victim came across his shoulder and hit

Defendant twice on the side of her head. Both of the victim’s parents said the victim had

always been protective of his mother. Mr. Nabors and the victim’s father separated the

victim and Defendant, during which Defendant’s shirt was pulled up and Ms. Hutson saw

Defendant’s abdomen and a portion of her upper torso and “breast area.” Ms. Hutson said

the victim’s father was smiling as he was pulling Defendant off the victim and described

the altercation as “a stupid fight between the two, like a senseless fight.” While Mr. Nabors

held down the victim, the victim’s father put his arms around Defendant and lifted her off

the ground.

Ms. Powell heard the commotion and ran back to the pool table area where she saw

the victim on the ground and the victim’s father holding Defendant. Defendant was saying,

“Let go of me. I’m good.” Ms. Powell ordered everyone involved to leave the bar. The

victim’s father acknowledged that an employee of the bar had to tell him multiple times to

release Defendant before he did so. He explained that he wanted to ensure that the situation

was diffused before releasing her. The victim’s parents, Mr. Nabors, Ms. Hutson, and Ms.

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Powell each testified that they believed the fight was over. The victim’s mother began

gathering her things in order to leave, and Mr. Nabors sat down with her.

The victim’s father testified that the victim stood up and walked around the pool

table and toward the front of the bar. The victim’s father said that when he released

Defendant, she ran around the end of the pool table, picked up a pool ball, and “sprinted”

toward the victim. The victim’s father stated that Defendant “didn’t waste no time getting

to [the victim].” After Defendant reached the victim, the victim’s father saw blood coming

down the victim’s shoulder but did not believe it was serious. The victim’s father followed

Defendant out the front door, but she reentered the bar and threw the pool ball. The

victim’s father stated that he did not know whether Defendant was throwing the ball at him

or the victim but that they both ducked. The victim’s father testified that Defendant was

holding a knife in her hand and stated, “[I]f you step outside, I’m going to cut you up too.”

The prosecutor asked the victim’s father whether any of Defendant’s actions led him to

believe that she was in fear, and the victim’s father replied, “No, sir.”

The victim’s father testified that he learned that the victim was badly injured and

returned to tend to him. The victim was lying on the floor while others attempted to render

aid. When the victim attempted to breathe, “a big gush of blood” came “just gushing out.”

The victim’s father stated, “[T]here was a huge puddle of blood. It was the most gruesome

thing I’ve ever seen. It was gut-wrenching for a father on Father’s Day.” Emergency

personnel transported the victim to the hospital where he was pronounced dead.

Surveillance video of the events recorded by multiple cameras at different angles

inside Bull Feathers was admitted into evidence. The recordings show that at 19:29:52,

Defendant was speaking to the victim’s mother and Mr. Nabors when Mr. Nabors walked

away. Around 19:30:04, the victim’s father approached and spoke to Defendant, who was

rubbing the arm and shoulder of the victim’s mother. At approximately 19:30:26, the

victim’s mother walked away as Defendant and the victim’s father appeared to argue. Mr.

Nabors approached them and began speaking to them while the victim approached

Defendant from her right side. At approximately 19:30:38, the victim punched Defendant

twice on the side of her head, and they both fell on the floor and began fighting while

Defendant was on top of the victim. At approximately 19:30:47, the victim’s father and

Mr. Nabors began pulling Defendant and the victim away from each other. The victim’s

father pulled Defendant off of the victim and held her while Mr. Nabors held the victim

down on the floor. Several people gathered, and Ms. Powell spoke to the group.

At approximately 19:31:14, the victim got up off the floor and walked away from

the pool tables toward the front of the bar and stood in an area between the pool tables and

the L-shaped bar while looking back toward the pool tables. After the victim walked away

from the pool tables, his father released Defendant. At approximately 19:31:32, Defendant

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walked away from the group and around a pool table. Approximately six seconds later,

Defendant reached for something on the pool table and walked in the same direction in

which the victim had walked. Two to three seconds later, Defendant quickly approached

the victim and struck the victim in his neck while the victim’s arms were down at his sides.

Defendant then hopped or skipped backward toward the front door while facing the victim,

and Defendant appeared to taunt the victim as the victim slowly walked toward her. At

approximately 19:31:49, Defendant exited through the front exit, reentered the bar, took

several steps inside the bar, threw an object, and fled. The remainder of the recordings

show people gathering around the victim and attempting to render aid as he was lying on

the floor and emergency personnel and police arriving.

The victim’s mother testified that she did not see the stabbing but that Mr. Nabors

told her that the victim had been stabbed. She walked over to the victim and saw people

standing around him while others brought towels for the bleeding. She went outside where

she saw Defendant hanging out of the passenger side window of a vehicle that was leaving

the parking lot. The victim’s mother stated that Defendant “had her hat in her hand,

swinging it around, yelling like she’s done something so grand when she’d just killed my

son.” The prosecutor asked the victim’s mother whether Defendant’s actions led her

believe that Defendant was in fear, and the victim’s mother replied, “No, not at all. No.

She acted happy about it[] like it was something good that she had done.”

Mr. Nabors testified that after the altercation, he sat down with the victim’s mother

and did not see where the victim went. Mr. Nabors heard screaming from the front of the

bar and walked to the area where he saw the victim fall to the floor. Mr. Nabors saw that

the victim’s shirt was wet and initially believed someone had thrown water on the victim.

Mr. Nabors then realized that the liquid was blood and said, “I’ve never seen so much blood

come out of a body in my life.” Mr. Nabors did not see Defendant again and explained

that he was focused on the victim.

Ms. Powell testified that after she told those involved in the fight to leave, the victim

got up off the floor and walked toward the front exit. The victim stopped before he reached

the bar and turned around. Ms. Powell stated that Defendant ran up to the victim and that

it appeared that Defendant punched the victim in his neck. Ms. Powell did not see a weapon

and did not recall the victim raising his hands or otherwise being in a defensive position.

Defendant was backing up and running out through the front exit while laughing and

yelling, “I got you. Ha-ha. I got you. I’ll get you and you.” Ms. Powell said Defendant

“was calling out people or the room as a whole.” The victim had not yet realized that he

was bleeding and walked toward the front exit before collapsing.

Ms. Powell called 911, and the recording of the call was entered as an exhibit at

trial. During the call, Ms. Powell reported that “[s]ome girl just stabbed a guy in the

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throat,” that the man was “pouring blood,” and that she believed the man was going to die.

Ms. Powell described the assailant and said the assailant was standing outside. She

reported that the assailant was “still fighting” and subsequently reported that the assailant

had left. Ms. Powell testified that while she was talking to the 911 operator, there was a

commotion at the front exit where Defendant was “trying to run back in and out” and was

yelling at people. Once the crowd gathered at the front exit, Defendant exited the bar, and

Ms. Powell did not see her again.

Ms. Hutson testified that after the altercation at the pool tables, the bartender told

both parties to leave. Ms. Hutson saw the victim walking away and stated that the victim

rolled his eyes in an “I can’t believe that I’m involved in this nonsense, kind of manner.”

Ms. Hutson agreed that the fight was over and that the victim was leaving toward the best

way for him to exit. Ms. Hutson stated that she looked back at Defendant and saw her pick

up an object and then “take off” after the victim. Ms. Hutson testified that she followed

Defendant,

[b]ecause I saw a look in her face, and I knew what she was gonna do. I’ve

realized that there’s only one reason she’s gonna go after him, and he’s by

himself walking away, and here she comes after him. So I knew there was

nothing—she was—she still looked very angry in her face. There was

nothing welcoming or nice about it. She was gonna do something.

Once Ms. Hutson caught up to Defendant and the victim, she heard a loud “pop”

and saw liquid splash on the seats, her arm, and her shirt. She initially believed Defendant

had thrown a drink at the victim, but Ms. Hutson later realized that the liquid was blood.

Ms. Hutson put her arm in front of the victim in an effort to calm him and indicate to him

that she would not allow the situation to further escalate. Ms. Hutson testified that

Defendant had “a look on her face” and said, “Yeah, b***h. What now?” Defendant was

screaming and using profanity. Ms. Hutson saw Defendant holding an object that Ms.

Hutson later learned was a pool ball, but she did not see Defendant throw the pool ball.

Ms. Hutson looked back at the victim and saw him hold his neck, lose consciousness, and

fall to the floor. Others began assisting the victim and calling 911, so Ms. Hutson went

outside.

Ms. Hutson testified that she saw Defendant standing in the parking lot

approximately twenty feet away from the front door of the bar, holding a bloody knife, and

screaming something similar to “Yeah, yeah. That’s what you get.” Ms. Hutson asked

Defendant what happened, and Defendant responded, “They ganged me.” When Ms.

Hutson asked her what she meant, Defendant stated, “The daddy…was holding me back.

Did you see it?” Ms. Hutson told Defendant that she had seen what had occurred, and

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Defendant asked Ms. Hutson why she did not help her. Ms. Hutson told her that when she

looked up, she saw that Defendant and the victim were being separated.

Defendant instructed Ms. Hutson to get her “out of here.” Ms. Hutson testified that

she felt pressured to help Defendant due to their friendship and her fear of Defendant. Ms.

Hutson drove away while Defendant hung outside the car and yelled “[s]ome profanity,

some slurs. Like—like, ‘Yeah. That’s what you b****es get.’ Stuff like that.” Defendant

told Ms. Hutson, “If the daddy hates n*****s, he’s really gonna hate n*****s now.”

Defendant instructed Ms. Hutson to lie and claim that Defendant used a piece of glass

rather than a knife to cut the victim. Ms. Hutson responded that Defendant needed to tell

the truth and that officers would be able to determine that Defendant used a knife blade

and not a piece of glass because the knife blade was serrated.

Ms. Hutson told Defendant that if she believed she acted in self-defense, she needed

to inform the police. Ms. Hutson asked Defendant whether she believed the incident

involved “some kind of racial thing” toward her, and Defendant replied, “Yeah.” Ms.

Hutson testified that she never heard anyone make a racial slur during the incident. She

asked Defendant what she said to the victim’s group, and Defendant maintained that she

did not say anything to them. The following exchange then occurred:

Q. And the—because the court reporter—the faces you made when—

when she says, “yeah,” and did you believe that that’s what happened?

A. No.

Q. Why not?

A. It just didn’t seem—I wasn’t convinced enough by her answer.

Q. Okay. So you’re judging that she’s again lying to you?

A. Right.

Ms. Hutson testified that Defendant told her that if officers asked her why they left

the scene, Ms. Hutson should say that the victim’s father told Defendant that he was going

to get his gun and shoot her. Ms. Hutson never heard anyone yell, “Get the gun.” She

asked Defendant whether the victim’s father actually made such a statement, and

Defendant confirmed that he had not. Ms. Hutson told Defendant that she planned to tell

police officers what she actually saw occur. The prosecutor asked Ms. Hutson whether she

believed “any of these different versions of the story that [Defendant] was telling you,” and

Ms. Hutson replied, “No.”

Ms. Hutson drove to the apartment complex where she lived and washed blood off

of her using a water hose in the parking lot. She saw Defendant holding her bloody knife.

Ms. Hutson testified that two men approached them and noticed blood on her and

Defendant and that she and Defendant explained that the blood came from “[j]ust a little

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bar fight, nothing—nothing major.” Defendant continued talking to the two men and

compared her knife with the knives of the two men. Defendant subsequently threw her

knife into a dumpster located in the parking lot of an apartment complex.

Ms. Hutson testified that she drove Defendant to Sevierville in order to “get some

clarity,” “get away for a little while,” and “[g]et our conscience in check.” Ms. Hutson

explained that she also was afraid of Defendant and wanted to appease her. She described

Defendant as “[v]ery defensive” and said Defendant acted as if she did not harm anyone

and did not want to be punished. After dropping Defendant off at a home, Ms. Hutson

returned to her apartment where she was met by detectives.

On cross-examination, Ms. Hutson testified that she did not believe she told the

detectives about Defendant’s urging her to tell officers that Defendant used a piece of glass

instead of a knife and that the victim’s father made a comment about a gun. Ms. Hutson

agreed that Defendant was walking, rather than running, toward the victim before stabbing

him. Ms. Hutson stated that Defendant “looked angry” when she was leaving, and Ms.

Hutson “knew to go after her.” Ms. Hutson agreed that Defendant was angry, believed she

had been unjustifiably attacked, and was acting as if she did nothing wrong because she

was just defending herself. Ms. Hutson also agreed that Defendant said she planned to turn

herself in to the police the following morning.

Freddie James Galbreath testified that he arrived at Bull Feathers and was walking

toward the restrooms when he saw a fight occurring near the pool tables. He stopped and

stood between a DJ booth and a “split” near the pool tables that led to the restrooms. Mr.

Galbreath stated that the fight already had been broken up and that employees from the bar

were ordering those involved to leave. He saw the victim walking away from the area and

toward the front door. Mr. Galbreath said Defendant got up, and “pretty much ran” to the

area where Mr. Galbreath was standing and toward the victim. Mr. Galbreath stated that it

appeared that Defendant jumped up and hit the victim in the back of his head. Defendant

subsequently threw a pool ball, and Mr. Galbreath heard her say, “What now? Come on,

m*********er. What? What now?” He believed Defendant ran out of the bar but stated

that he was focused on the victim. When asked to describe Defendant’s demeanor before

she stabbed the victim, Mr. Galbreath replied, “Angry, aggressive.” The prosecutor also

asked him whether Defendant looked afraid, and Mr. Galbreath stated, “No.”

Mr. Galbreath observed what appeared to be a long cord coming from the victim’s

neck. When he approached the victim, he saw that the cord was actually blood. Mr.

Galbreath, who had medical training as a member of the Tennessee Army National Guard,

obtained a first aid kit from the bar area. The first aid kit did not contain any compressed

gauze, so Mr. Galbreath and a woman, who was a nurse, had to use towels to apply pressure

to the victim’s wound. They were able to move the victim to his side to slow some of the

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blood coming from his neck, but blood also was coming from his mouth. Mr. Galbreath

used towels to scoop blood out of the victim’s mouth to allow him to breathe. The victim

was unable to speak, but Mr. Galbreath spoke to him while rendering aid in an effort to

calm the victim and ensure that the victim did not feel alone. The victim’s clothes and the

floor around the victim were covered in blood. Mr. Galbreath could tell that “the life was

leaving [the victim’s] body” in that “his breathing got shallower and shallower” and “[h]is

movement came less and less.” Mr. Galbreath remained with the victim until the

paramedics arrived.

Jason Blair was with Jasmine Blair and his best friend at Bull Feathers when he

heard a commotion near the pool tables. He testified that when he looked back, he saw a

fight that “didn’t really seem like a big deal.” He stated, “They got it separated, and the

female was about to head back out, ‘cause they told everybody to leave, and she turned

back around, and they reengaged a scuffle there, and then that’s where the gentleman was

stabbed in the neck.” Mr. Blair heard screaming and yelling and stated that he overheard

Defendant say something along the lines of “So I’m good enough to talk to, but not good

enough to date.” Mr. Blair testified that Defendant continued screaming and yelling as one

of her friends was pulling her out of the bar. He believed Defendant was attempting to

reenter the bar. The prosecutor asked Mr. Blair whether any of Defendant’s actions led

him to believe that she was afraid, and Mr. Blair responded, “It just looked like anger to

me.”

Jasmine Blair, Mr. Blair’s wife, testified that after she heard a commotion, she saw

a woman and a man fighting on the floor. The man and the woman were told to leave the

bar as a result of the fight. Mrs. Blair stated that after the man and the woman walked

around the corner of the bar, the man stood with his arms to his side as the woman’s friend

pulled the woman out of the restaurant while saying, “Let’s go. Let’s go.” Mrs. Blair said

that after the woman exited the bar, she reentered the bar and punched the man in his neck,

and the man collapsed a few minutes later. At one point, Mrs. Blair overheard the woman

make a statement similar to “I’m not good enough to flirt with so I can’t be dated.” While

in the parking lot, the woman’s friend tried to get her inside a vehicle, but the woman did

not want to do so and tried to see what was occurring inside the bar. The prosecutor asked

Mrs. Blair whether “anything about how she was acting and seemingly struggling with her

friend” led Mrs. Blair to believe that the woman was afraid, and Mrs. Blair replied, “No.

Huh-uh.”

Devan Hornback, an automobile technician, testified that on the evening of June 17,

2018, he was installing a radiator in his roommate’s car in the parking lot of an apartment

complex when he spilled fluid on his hands. He walked over to a water hose to wash his

hands and saw a Caucasian woman and an African-American woman, both of whom had

blood on them. The African-American woman said that a man caused trouble with her and

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her friends and that she had to defend herself. She demonstrated the actions that she had

taken against the man, and Mr. Hornback stated that the woman said she used either a shard

of glass or a knife. After Mr. Hornback and his roommate ensured that the women were

uninjured, the women drove away. On cross-examination, Mr. Hornback agreed that

Defendant stated that a man did not need to put his hands on a woman, that she was

defending herself, and that she was scared for her life.

Detective Jeremy McCord of the Knox County Sheriff’s Office (KCSO) was the

lead detective in the case. Detective McCord testified that patrol units had responded by

the time that he arrived at the scene and that the victim had been transported to the hospital

where he had been pronounced deceased. Detective McCord entered the bar and saw a

large amount of blood on the floor where the victim had been lying and drops of blood on

the floor in areas where the victim had walked after he had been stabbed but before he

collapsed. Detective McCord stated that there were no barriers or impediments that had to

be moved before he could walk around the bar and that none of the exits were blocked.

Detective McCord and other detectives interviewed witnesses and obtained the

identification of those involved in the incident and a description of the vehicle in which

they fled. Patrol units went to the area where Ms. Hutson, the driver of the vehicle, lived.

Officers were flagged down and were told about some women, who had cleaned blood off

themselves and had thrown a knife in a dumpster before leaving. Lieutenant Steven

Sanders was assigned to collect evidence from the dumpster.

Detective McCord and other officers went to Ms. Hutson’s apartment and spoke to

her mother, who stated that Ms. Hutson was on her way home. When Ms. Hutson arrived,

Detective McCord interviewed her and learned that she had dropped Defendant off at a

location in South Knoxville. Lieutenant Sanders and other detectives went to the location

while Detective McCord continued interviewing Ms. Hutson. The prosecutor asked, “Does

there come a time where you got word from Lieutenant Sanders about what has

transpired?” Detective McCord testified, “Yes. He had indicated that they were able to

get her in custody, and she did not want to make a statement.” The prosecutor then asked

what was the next step in the investigation, and Detective McCord responded that he

consulted with the District Attorney General’s Office, that Defendant was placed into

custody, and that warrants were placed on file.

On cross-examination, Detective McCord testified that Ms. Hutson did not inform

him that Defendant had asked her to tell officers that Defendant cut the victim with a piece

of glass or that the victim’s father had a gun. On redirect examination, Detective McCord

testified that when he interviewed Ms. Hutson, he asked her about what had occurred and

that he was focused on apprehending Defendant.

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KCSO Lieutenant Steven Sanders testified that he searched the dumpster in the

apartment complex and located a knife inside the back corner of the dumpster. He stated

that Ms. Hutson had provided a description of the knife and the dumpster in which the knife

was located. He said both the dumpster that he searched and the knife that he found

matched the descriptions provided by Ms. Hutson.

Lieutenant Sanders and other officers went to a house in South Knoxville where

they had learned that Defendant was located. The owner allowed the officers to enter and

told them that Defendant was upstairs. The officers made several announcements, but

Defendant did not respond. Lieutenant Sanders testified that “once we actually started to

go in the house engaged, [Defendant] actually came down the stairwell, and still was kind

of refusing, as far as cooperation.”

Dr. Darinka Mileusnic-Polchan, the Chief Medical Examiner for Knox and

Anderson Counties, performed the victim’s autopsy. She concluded that the cause of the

victim’s death was exsanguination of blood from a stab wound to his neck and that the

manner of death was homicide.

Dr. Mileusnic-Polchan testified that the victim sustained a stab wound to the left

side of his neck located about seven and one-half inches from the top of his head and five

and one-half inches to the side, which meant that “it was like a really sideways position.”

The stab wound was level with the victim’s ear lobe. The lower portion of the stab wound

had sharp edges that were about one-inch long and downward oriented, which occurred

when the very sharp blade created a “slash” in the skin. Dr. Mileusnic-Polchan stated that

the “slash” wound and a puncture located behind the victim’s ear could reflect that the

victim’s head moved when the knife blade was either entering or exiting his neck.

Dr. Mileusnic-Polchan testified that the upper part of the stab wound was “blunted”

and had “almost like a squared-off scratch on top” that continued along the interior margin.

She stated that this “blunted area” indicated that the hilt of the knife “came all the way to

the skin and made contact and abraded the skin from the impact as it’s thrusted.” She

believed the impact created by the hilt indicated that the entire blade of the knife was thrust

into the victim’s neck. She estimated that the depth of the wound was about three inches.

She examined the knife recovered from the dumpster and testified that the depth of the

wound was consistent with having been made by the knife.

Dr. Mileusnic-Polchan testified that the knife entered the victim’s neck from left to

right, almost directly horizontally, and back to front. She stated that the wound was

irregular and that the irregularity was created by the rotation of the blade as it was removed

from the victim’s neck.

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Dr. Mileusnic-Polchan testified that the blade penetrated the primary thick muscle

and the carotid artery, the primary artery in the neck that supplies blood to the brain. She

explained that the carotid artery was perforated and not severed because the knife blade

made a vertical, rather than a horizontal, cut of the artery and created a vertical slit all the

way through the front and back of the artery. The cut created an “arterial gush” or a

systematic high pressure flow, which was what witnesses described as appearing like a

cord hanging from the victim’s neck. The knife blade also penetrated through the back of

the pharynx, the area of the throat dividing the airway and the digestive system, which

contributed to exsanguination or bleeding out and caused the victim to aspirate blood. The

tip of the knife blade came near the victim’s spine but did not penetrate it.

Dr. Mileusnic-Polchan testified that blood loss from such an injury would have

occurred quickly and that due to the location of the injury, preventing the bleeding would

have been difficult even with compression applied. The blood loss would have caused the

left side of the brain to be completely deprived of the main blood supply. Dr. Mileusnic-

Polchan stated that as a result, the victim could have collapsed within fifteen to thirty

seconds of the compromised circulation. She explained that when the carotid artery is

severed, loss of consciousness generally occurs within fifteen seconds, and death occurs

shortly thereafter. She stated that because the victim’s carotid artery was slit vertically and

pressure was applied, it could have taken one minute but not more than a few minutes

before the victim died.

Dr. Mileusnic-Polchan observed what appeared to be scratches from fingernails on

the victim’s neck, face, and arms. She did not observe any defensive wounds on his hands.

On cross-examination, she testified that according to the toxicology report, the victim had

a blood alcohol level of 0.19, which was more than twice the legal limit.

The defense presented the testimony of Timothy Paynter, who was with Defendant

at Bull Feathers. Mr. Paynter testified that prior to going to Bull Feathers, they were at

another bar and that he was unaware of Defendant’s drinking any alcohol while at that bar.

He stated that while at Bull Feathers, he did not pay attention to what was occurring in the

back corner near the pool tables prior to the fight between Defendant and the victim. He

stated that he looked up when he heard someone say, “stupid n****r.” He then went to the

area to attempt to break up the fight. He said he told the man who was holding Defendant

to release her because he was afraid that the man was crushing her.

Mr. Paynter testified that he was not paying attention when Defendant walked away

from the area and that he was searching for items that may have fallen out of Defendant’s

pockets. He stated that he heard someone say, “Get her,” but he did not know who said it.

Mr. Paynter said he “assume[d] the dad” made the statement but acknowledged that he did

not actually see the victim’s father make the statement. Mr. Paynter also did not see the

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stabbing. He stated that Defendant had left when he started walking toward the door and

that when he walked past the victim, he saw that the victim was bleeding. Mr. Paynter said

that when he went outside, he saw Defendant, who was scared and trembling, and that he

told Defendant that she needed to leave. Defendant then left.

On cross-examination, Mr. Paynter testified that he did not see Defendant render

aid to the victim and that he was not aware of whether she called 911. He stated that when

Defendant was driving away from the scene, she was hanging out of the window, that her

hat fell off, and that he picked up the hat for her. He acknowledged that he told police

officers that Defendant’s name was “Scarlee,” and he explained that he did not tell the

officers Defendant’s actual name because he was afraid. He also did not tell the police

officers that someone made a racial slur, that someone had stated “Get her,” or that

Defendant was scared and trembling. He maintained that Defendant did not tell him to

offer such testimony, and he was unaware that Defendant had attempted to instruct Ms.

Hutson on what to tell the police.

At the close of the proof, the jury convicted Defendant of second degree murder and

tampering with evidence as charged in the indictment.

Sentencing Hearing

Prior to the sentencing hearing, Defendant filed a sentencing memorandum,

attaching letters written by various people on her behalf. The State presented victim impact

testimony from the victim’s sister, girlfriend, aunt, and father. They each testified

regarding the void created by the victim’s death, as well as the fact that the victim’s

daughter will grow up without him. They each asked the trial court to impose the maximum

sentence. Defendant made an allocution during which she apologized for her actions.

The State entered as an exhibit a certified copy of a judgment showing that

Defendant was convicted of attempted possession of marijuana, a Class B misdemeanor,

in April 2010. The State also entered as exhibits certified copies of two orders of protection

entered against Defendant by two different people, one in 2010 and the second in 2016.

The 2010 order of protection was issued after Defendant punched, slapped, choked, and bit

the petitioner during an argument. The court issued the order of protection following a

hearing during which the court found that Defendant committed the acts alleged in the

petition. The 2016 order of protection was an agreed order, and the trial court concluded

that it could not consider this order of protection in sentencing Defendant because there

were no findings of fact by the court that issued the order of protection.

The trial court found that Defendant was a Range I, standard offender. The court

applied enhancement factor (1), Defendant had a “previous history of criminal convictions

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or criminal behavior, in addition to those necessary to establish the appropriate range,”

based upon Defendant’s prior misdemeanor conviction and the 2010 order of protection.

See Tenn. Code Ann. § 40-35-114(1). The court noted that while the length of Defendant’s

criminal history was not “terribly disturbing,” the 2010 order of protection carried more

weight. The court also applied enhancement factor (3), the offense involved more than one

victim, based on evidence that Defendant threatened and threw a pool ball at others,

including the victim’s father, after stabbing the victim. See Tenn. Code Ann. § 40-35-

114(3). The court found that the enhancement factor was not entitled to a great deal of

weight. The court applied enhancement factor (9), Defendant possessed or employed a

deadly weapon during the commission of the offense, noting that the use of a deadly

weapon is not an element of second degree murder. See Tenn. Code Ann. § 40-35-114(9).

The court placed “significant consideration” on the enhancement factor, finding that

Defendant escalated what began as a fistfight by later producing the knife. The court

declined to apply enhancement factor (10), Defendant “had no hesitation about committing

a crime when the risk to human life was high.” Tenn. Code Ann. § 40-35-114(10).

The trial court applied mitigating factor (2), Defendant “acted under strong

provocation.” Tenn. Code Ann. § 40-35-113(2). The court expressed its belief that had

Defendant asked the bartender to call the police after the initial fight, the victim would

have been arrested and convicted of assault. The court, however, found that after “a clear

break in the altercation,” Defendant “made a separate decision” in attacking the victim and

that “because of the facts that occurred after the break,” the mitigating evidence was

outweighed “by the facts of the case and the enhancement factors.”

In examining the facts of the case, the trial court stated that the victim’s attacking

Defendant “was the beginning of the violence” and that the victim had no right to strike

Defendant regardless of “[w]hatever [Defendant] was doing in an annoying intoxicated

fashion.” The court stated that the victim and Defendant were quickly separated, that “there

was a clear break in the violence,” and that the victim walked away. The court noted the

defense’s argument that the initial fight lasted for about forty-five seconds and that only

fifteen seconds elapsed before Defendant stabbed the victim. However, the court found

that it was not the length of time but the “behavior of the individuals after the breakup”

that was significant. The court noted that the video clearly established that the victim and

others in the area believed the violent confrontation had ended. The court found that before

Defendant saw the victim when she came around the bar, she pulled out her knife and that

had Defendant been afraid of the victim, she would not have walked in the same area where

the victim walked but would have exited another way. The court stated that Defendant

“was coming to exact her revenge” on the victim and that she was “very deceptive in her

actions.” The court noted that Defendant kept her hands down by her side, that the victim

“never saw it coming,” that the victim did not act threatening toward Defendant, that

Defendant “just very quickly struck out before [the victim] could even get his hands up,”

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and that Defendant “went straight for his neck.” The court found that the evidence

demonstrated that Defendant “went beyond” a knowing killing and that she “intentionally

acted to stab [the victim] in the throat in an effort to take his life.” The court determined

that the facts of the case were “so egregious” that “the enhancement factors and the

mitigations sort of pale in comparison to the underlying facts” and that the maximum

sentence for second degree murder was warranted. The court stated that Defendant did not

act afraid and did not panic after the stabbing but was “celebrating what she’s just

accomplished” by laughing, mocking, challenging others, and hanging out of the car

window “to give her last retorts” as her friend drove her away from the scene.

The trial court stated that the facts supporting the tampering with evidence

conviction were “not as egregious” and that while Defendant clearly disposed of the knife

in an effort to avoid punishment, “[t]hat’s what tampering with evidence is.” The court

observed that by disposing of the knife, Defendant was not accepting responsibility and

was trying to minimize the impact to her. However, the court determined that the

application of the enhancement factors were not sufficient to enhance the sentence for the

tampering conviction above the minimum sentence.

The trial court noted that the State sought consecutive sentencing, arguing that

Defendant “is a dangerous offender whose behavior indicates little or no regard for human

life and no hesitation about committing a crime in which the risk to human life is high.”

Tenn. Code Ann. § 40-35-115(b)(4). The court found that the circumstances of the case

were “aggravated.” The court also found that confinement for an extended period of time

was necessary to protect society from Defendant’s further criminal conduct. The court

noted that Defendant’s prior violent behavior resulted in an order of protection in 2010 and

her behavior after the stabbing “indicates that violent behavior is not something that bothers

her too much.” The court found that by ordering that the minimum sentence for the

tampering conviction run consecutively to the sentence for the second degree murder

conviction, the aggregate length of the sentence would be reasonably related to the offenses

of which Defendant stood convicted. The trial court imposed a twenty-five-year sentence

for the second degree murder conviction and a three-year sentence for the tampering with

evidence conviction and ordered that the sentences run consecutively for an effective

sentence of twenty-eight years.

Defendant filed a motion for new trial and an amended motion, raising numerous

issues. The trial court denied the motion, and Defendant appealed.

II. Analysis

On appeal, Defendant contends that (1) the evidence is insufficient to support her

conviction for second degree murder; (2) the State improperly introduced speculative and

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improper opinion testimony from fact witnesses; (3) the trial court erred in admitting

evidence that Defendant declined to make a statement following her arrest; (4) the trial

court issued multiple erroneous jury instructions; (5) the State made improper comments

during closing arguments; (6) the trial court imposed an excessive sentence; and (7) the

cumulative effect of the errors warrants relief.

A. Sufficiency

Defendant challenges the sufficiency of the evidence supporting her conviction for

second degree murder, arguing that the proof more accurately supports a conviction for the

lesser charge of voluntary manslaughter. The State responds that the evidence does not

support Defendant’s claim that she acted in a state of passion produced by adequate

provocation sufficient to lead a reasonable person to act in an irrational manner.

When a defendant challenges the sufficiency of the evidence, the relevant question

for this court is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal,

“‘the State is entitled to the strongest legitimate view of the evidence and to all reasonable

and legitimate inferences that may be drawn therefrom.’” State v. Elkins, 102 S.W.3d 578,

581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Therefore,

this court will not re-weigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact, not this court, who resolves

any 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.” State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict removes the presumption of innocence and replaces it with a

presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is

then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to

support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court

applies the same standard of review regardless of whether the conviction was predicated

on direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

“Circumstantial evidence alone is sufficient to support a conviction, and the circumstantial

evidence need not exclude every reasonable hypothesis except that of guilt.” State v.

Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).

Second degree murder is defined as the “knowing killing of another.” Tenn. Code

Ann. § 39-13-210(a)(1). Second degree murder is a “result-of-conduct” offense, which

means that the statute focuses upon “the result and punishes an actor who knowingly causes

another’s death.” State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000); see State v. Brown,

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311 S.W.3d 422, 431-32 (Tenn. 2010). Thus, a person acts “knowingly” as it pertains to

second degree murder “when the person is aware that the conduct is reasonably certain to

cause the result.” Tenn. Code Ann. § 39-11-302(b). The issue of whether a defendant

acted knowingly is a question of fact for the jury. See State v. Inlow, 52 S.W.3d 101, 104-

05 (Tenn. Crim. App. 2000).

The evidence presented at trial established that Defendant approached the victim’s

mother at the bar and began rubbing her arm while talking to her. Defendant made the

victim’s mother uncomfortable and refused to leave when the victim’s father asked her to

do so. Defendant and the victim’s father argued until the victim struck Defendant twice on

the side of her head with his fists. Defendant and the victim began fighting on the floor

while Defendant was on top of the victim. Mr. Nabors and the victim’s father separated

Defendant and the victim within seconds after the fight began. The victim got up off the

floor and walked away from the area of the fight and toward the front of the bar. The

victim’s father continued to hold Defendant back to ensure that the situation had diffused,

and Defendant told him to let her go and ensured him that she was “good.” Those who

witnessed the fight testified that they believed the fight was over.

Once the victim’s father released Defendant, Defendant grabbed a pool ball, quickly

approached the victim, and buried the entire blade of a three-inch knife into the victim’s

neck. As evidenced by the irregular shape of the wound, the blade rotated as Defendant

removed it from the victim’s neck. Defendant then taunted the victim while she hopped or

skipped toward the front door. Ms. Hutson testified that Defendant said, “Yeah, b***h.

What now?” After exiting the bar, Defendant reentered and threw a pool ball toward the

victim and his father. Mr. Galbreath heard Defendant say, “What now? Come on,

m*********er. What? What now?” Defendant was holding her knife and threatened to

cut the victim’s father. As Ms. Hutson drove Defendant away from the scene, Defendant

hung outside the passenger window and waived her hat around while yelling, “Yeah.

That’s what you b****es get.” Defendant attempted to persuade Ms. Hutson to lie to the

police about what occurred. Later in the parking lot of the apartment complex where Ms.

Hutson lived, Defendant demonstrated her actions to Mr. Hornback and his friend and

discarded the knife in a dumpster.

Defendant maintains that the victim’s actions in striking her and his father’s actions

in holding her following the fight constituted adequate provocation as to warrant a

conviction for the lesser included offense of 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.” Tenn. Code Ann. § 39-13-211(a). Whether adequate provocation

exists so as to support a conviction for voluntary manslaughter is a question for the jury.

See State v. Williams, 38 S.W.3d 532, 539 (Tenn. 2001) (“[W]hether a knowing killing

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resulted from ‘a state of passion produced by adequate provocation sufficient to lead a

reasonable person to act in an irrational manner’ is a jury question.”); State v. Johnson, 909

S.W.2d 461, 464 (Tenn. Crim. App. 1995) (“Whether the acts constitute a ‘knowing

killing’ (second degree murder) or a killing due to ‘adequate provocation’ (voluntary

manslaughter) is a question for the jury.”). The jury rejected any claim that Defendant

acted with adequate provocation, which was its province. See Williams, 38 S.W.3d at 539.

Therefore, viewing the evidence in the light most favorable to the State, we conclude that

the evidence presented at trial is sufficient to support Defendant’s conviction for second

degree murder.

B. Admission of Lay Opinion Testimony

Defendant challenges the admission of testimony of multiple witnesses as

improperly lay opinion testimony under Tennessee Rule of Evidence 701, as irrelevant

under Rule 401, and as unfairly prejudicial under Rule 403. She asserts that the trial court

improperly admitted (1) the testimony of the victim’s mother that she did not believe

Defendant was afraid based upon her actions and that Defendant “acted happy about it, like

it was something good that she had done”; (2) Mr. Galbreath’s testimony that Defendant

did not look afraid prior to the stabbing; (3) Mr. Blair’s testimony that “It just looked like

anger to me” when asked whether he believed Defendant was afraid based on her actions;

(4) Mrs. Blair’s testimony that she did not believe the woman who committed the stabbing

was afraid based on her actions; (5) Ms. Hutson’s testimony that she did not believe

Defendant’s version of the events; and (6) Ms. Hutson’s testimony that after seeing

Defendant pick up an object and “take off” after the victim, Ms. Hutson followed

Defendant

[b]ecause I saw a look in her face, and I knew what she was gonna do. I’ve

realized that there’s only one reason she’s gonna go after him, and he’s by

himself walking away, and here she comes after him. So I knew there was

nothing—she was—she still looked very angry in her face. There was

nothing welcoming or nice about it. She was gonna do something.

Defendant acknowledges that she did not object to any of this testimony at trial.

See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be

granted to a party responsible for an error or who failed to take whatever action was

reasonably available to prevent or nullify the harmful effect of an error.”); State v. Smith,

24 S.W.3d 274, 280 (Tenn. 2000) (holding that when a defendant fails to object to the

admissibility of evidence, “the evidence becomes admissible notwithstanding any other

Rule of Evidence to the contrary, and the jury may consider that evidence for its ‘natural

probative effects as if it were in law admissible’”) (quoting State v. Harrington, 627

- 18 -

S.W.2d 345, 348 (Tenn. 1981)). Defendant, however, asserts that the admission of the

evidence rose to the level of plain error.

“When necessary to do substantial justice, an appellate court may consider an error

that has affected the substantial rights of a party at any time, even though the error was not

raised in the motion for a new trial or assigned as error on appeal.” Tenn. R. App. P. 36(b).

Five factors must be met before this court will conclude that plain error exists:

“(a) the record must clearly establish what occurred in the trial court; (b) a

clear and unequivocal rule of law must have been breached; (c) a substantial

right of the accused must have been adversely affected; (d) the accused did

not waive the issue for tactical reasons; and (e) consideration of the error is

‘necessary to do substantial justice.’”

Smith, 24 S.W.3d at 282 (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim.

App. 1994)). All five factors must be established before this court will recognize plain

error, and “‘complete consideration of all the factors is not necessary when it is clear from

the record that at least one of the factors cannot be established.’” State v. Martin, 505

S.W.3d 492, 504-05 (Tenn. 2016) (quoting Smith, 24 S.W.3d at 283). “‘When asserting

plain error, the defendant bears the burden of persuading the appellate court that the trial

court committed plain error and that the error was of sufficient magnitude that it probably

changed the outcome of the trial.’” Id. at 505 (quoting State v. Smith, 492 S.W.3d 224,

232-33 (Tenn. 2016)).

In order for evidence to be admissible, it must be relevant. Tenn. R. Evid. 402.

Evidence is relevant if it has “any tendency to make the existence of a fact that is of

consequence to the determination of the action more probable or less probable than it would

without the evidence.” Tenn. R. Evid. 401. However, even if evidence is relevant, if “may

be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury….” Tenn. R. Evid. 403.

A lay witness may give testimony in the form of an opinion or inference if it is

“rationally based on the perception of the witness” and “helpful to a clear understanding of

the witness’s testimony or the determination of a fact in issue.” Tenn. R. Evid. 701(a).

Lay opinion testimony should be based on admissible facts that are in evidence. State v.

Boggs, 932 S.W.2d 467, 474 (Tenn. Crim. App. 1996). To be admissible, a lay opinion

should be within the range of knowledge or understanding of ordinary laymen. Id. A

witness’s lay opinion is admissible when the jury could not readily draw its own

conclusions on the issue without the witness’s lay opinion or where the witness cannot

effectively testify without stating the inference or opinion. State v. Schiefelbein, 230

S.W.3d 88, 130 (Tenn. Crim. App. 2007). “If an opinion is based upon a lay witness’s own

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observations, his or her conclusions require no expertise and are within the range of

common experience, the opinion is admissible.” State v. Samuel, 243 S.W.3d 592, 603

(Tenn. Crim. App. 2007). “The distinction between an expert and a non-expert witness is

that a non-expert witness’s testimony results from a process of reasoning familiar in

everyday life and an expert’s testimony results from a process of reasoning which can be

mastered only by specialists in the field.” State v. Brown, 836 S.W.2d 530, 549 (Tenn.

1992) (citation omitted).

Although Defendant challenges the admission of testimony from multiple witnesses

that she appeared angry rather than afraid prior to and after she stabbed the victim, this

court has held that testimony regarding a defendant’s demeanor was proper lay opinion

testimony under Rule 701. See e.g., State v. Shawnda James, No. 01C01-9803-CC-00093,

1999 WL 618886, at *8 (Tenn. Crim. App. Aug. 11, 1999) (holding that even if testimony

regarding the defendant’s post-crime demeanor constituted an opinion, such testimony was

properly admitted pursuant to Rule 701); State v. Shawn D. Lesley, No. 01C01-9702-CR-

00068, 1999 WL 233636, at *3 (Tenn. Crim. App. Apr. 20, 1999) (concluding that a

witness’s use of the word “calmly” to describe the defendant’s demeanor satisfied the

requirements of both the prior and amended versions of Rule 701); see also Cohen,

Sheppeard & Paine, Tennessee Law of Evidence § 7.01[4][c] (6th ed. 2011) (“The types of

general opinion testimony that might, if relevant, be helpful and admissible under Rule 701

include that an individual is … ‘angry, frightened, upset, aroused, or shocked’….”). The

witnesses’ testimony regarding Defendant’s demeanor was rationally based on the

witnesses’ perceptions and was helpful to the jury on the issue of Defendant’s mental state.

Thus, the witnesses’ testimony was relevant. See State v. Davidson, 121 S.W.3d 600, 617

(Tenn. 2003) (recognizing that the concept of relevance is implicit in the requirement that

the lay opinion be helpful). Defendant failed to establish that the probative value of the

testimony was substantially outweighed by the danger of unfair prejudice. See Tenn. R.

Evid. 403. The admission of the evidence did not breach a clear and unequivocal rule of

law and, therefore, did not rise to the level of plain error. See Smith, 24 S.W.3d at 282.

Defendant also challenges Ms. Hutson’s testimony that she did not believe

Defendant’s statements to her about the stabbing and Ms. Hutson’s testimony that upon

seeing Defendant pick up an object and “take off” after the victim, Ms. Hutson followed

Defendant because she knew what the Defendant was going to do. However, Defendant

fails to establish plain error. We have recognized that “‘rarely will plain error review

extend to an evidentiary issue.’” State v. Jonathan Mitchell Grimes, No. W2014-00786-

CCA-R3-CD, 2015 WL 3929694, at *10 (Tenn. Crim. App. June 26, 2015) (quoting State

v. Ricky E. Scoville, No. M2006-01684-CCA-R3-CD, 2007 WL 2600540, at *2 (Tenn.

Crim. App. Sept. 11, 2007)). With regard to Ms. Hutson’s testimony that she did not

believe Defendant’s statements, we note that Defendant’s claims to Ms. Hutson about what

had occurred also were inconsistent with the proof presented at trial. Furthermore, any

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error in the admission of Ms. Hutson’s testimony that she knew what Defendant was going

to do was harmless in light of the overwhelming evidence of Defendant’s guilt. We

conclude that Defendant has failed to establish that a substantial right was adversely

affected by the admission of the testimony or that consideration of any error is necessary

to do substantial justice. See Smith, 24 S.W.3d at 282. Accordingly, Defendant is not

entitled to plain error relief.

C. Admission of Evidence of the Defendant’s Declining to Make a Statement

Defendant asserts that the trial court erred in admitting testimony from Detective

McCord that Lieutenant Sanders “had indicated that they were able to get [Defendant] in

custody, and she did not want to make a statement.” Defendant argues that the testimony

is inadmissible hearsay and an improper comment on the exercise of her right to remain

silent. She acknowledges that she did not object to the testimony at trial but maintains that

the admission of the testimony constitutes plain error. See Tenn. R. App. P. 36(a); Smith,

24 S.W.3d at 280-81. The State responds that Defendant failed to establish plain error.

We agree with the State.

In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court set

forth procedural safeguards to protect a defendant’s Fifth Amendment rights during

custodial interrogation. See Dickerson v. United States, 530 U.S. 428, 444 (2000) (holding

that Miranda announced a binding “constitutional rule” under the Fifth Amendment). The

Supreme Court subsequently held that the Due Process Clause of the Fourteenth

Amendment prohibited a defendant’s impeachment at trial for exercising his Fifth

Amendment right to remain silent after receiving Miranda warnings. Doyle v. Ohio, 426

U.S. 610, 619-20 (1976); see State v. Dotson, 450 S.W.3d 1, 55 (Tenn. 2014). The Court

revisited Doyle in Wainwright v. Greenfield, 474 U.S. 284, 287 (1986), where the

prosecutor was allowed to introduce evidence as part of the case in chief that the defendant,

who had pleaded not guilty by reason of insanity, “exercised his right to remain silent and

… expressed a desire to consult counsel before answering any questions” and the

prosecutor argued during closing arguments that the defendant’s “repeated refusals to

answer questions without first consulting an attorney demonstrated a degree of

comprehension … inconsistent with … insanity.” In reversing the defendant’s conviction,

the Court emphasized that “[t]he point of … Doyle … is that it is fundamentally unfair to

promise an arrested person that his silence will not be used against him and thereafter …

us[e] the silence to impeach [him]” or otherwise “make use of the … exercise of those

rights in obtaining his conviction.” Greenfield, 474 U.S. at 292. The Court explained that

“[w]hat is impermissible is the evidentiary use of an individual’s exercise of his

constitutional rights after the … assurance” of Miranda. Id. at 295 (emphasis added).

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In Greer v. Miller, 483 U.S. 756, 759, 764 (1987), the Court addressed the

application of Doyle to a prosecutor’s question to a witness which “touched upon [the

defendant’s] postarrest silence” after which the trial court sustained the defendant’s

objection to the question, instructed the jury to “ignore” it, and prohibited additional

“questioning or argument with respect to [the defendant’s] silence.” The Court noted that

in cases in which the Court had previously applied Doyle, the trial court had allowed

specific questions or argument regarding the defendant’s post-Miranda silence. Id. at 764.

The Court determined that “no Doyle violation occurred” in Greer because the defendant’s

“postarrest silence was not submitted to the jury as evidence from which it was allowed to

draw any permissible inference.” Id. at 764-65.

In reviewing these cases, the Tennessee Supreme Court recognized that Doyle

“‘does not impose a prima facie bar against any mention whatsoever of a defendant’s right

to request counsel, but instead guards against the exploitation of that constitutional right

by the prosecutor.’” Dotson, 450 S.W.3d at 56 (quoting Lindgren v. Lane, 925 F.2d 198,

202 (7th Cir. 1991)). For example, an officer’s inadvertent testimony regarding a

defendant’s request for counsel did not violate Doyle when the prosecutor did not use the

testimony to impeach the defendant or argue the defendant’s guilt to the jury. Lindgren,

925 F.2d at 202: see Dotson, 450 S.W.3d at 59 (holding that an officer’s “isolated

references to the defendant’s invocation of his right to counsel” did not violate Doyle when

“the prosecution did not make any evidentiary use of the testimony or attempt to penalize

the defendant for exercising his constitutional right”).

Likewise, in the present case, Detective McCord briefly commented on Defendant’s

exercise of her right to remain silent. The prosecutor moved on in questioning Detective

McCord about other topics and did not mention Defendant’s silence when questioning

other witnesses or during closing arguments. The State did not use the testimony to

impeach Defendant or argue her guilt to the jury. Defendant has failed to establish a Doyle

violation and, thus, there was no breach of a clear and unequivocal rule of law so as to

warrant a finding of plain error. See Smith, 24 S.W.3d at 282.

Defendant also argues that Detective McCord’s testimony regarding the information

that he learned from Lieutenant Sanders was inadmissible hearsay. The State responds that

Defendant failed to cite to any relevant authority or provide any argument “beyond the sole

conclusory statement that Detective McCord’s statement was hearsay” and that, therefore,

Defendant has waived the issue. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not

supported by argument, citation to authorities, or appropriate references to the record will

be treated as waived in this court.”). We disagree that Defendant’s argument in her brief

is limited to a “sole conclusory statement.” Rather, Defendant cited to the applicable rule

and explained why she believed the testimony met the definition of hearsay. Accordingly,

Defendant’s brief is adequate for this court to address the issue.

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Hearsay is “a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R.

Evid. 801(c). Generally, hearsay is not admissible at trial, unless the statement falls under

one of the exceptions to the rule against hearsay. Tenn. R. Evid. 802. Detective McCord’s

testimony repeating information that he learned from Lieutenant Sanders constituted

hearsay. However, Defendant has failed to show that consideration of the error is necessary

to do substantial justice or that a substantial right was adversely affected in light of the

limited nature of the testimony, the prosecutor’s decision to avoid mentioning the

testimony during closing arguments, and the strong evidence of guilt. See Smith, 24

S.W.3d at 282. Thus, Defendant has failed to establish plain error in the admission of the

testimony.

D. Jury Instructions

Defendant asserts that the trial court issued multiple erroneous jury instructions

relating to self-defense and voluntary manslaughter. Defendant specifically asserts that the

trial court erred by (1) giving the jury the possibility of determining that Defendant had a

duty to retreat before engaging in self-defense; (2) instructing the jury that Defendant’s

provocation could deny her the right to engage in self-defense; (3) incorrectly defining

voluntary manslaughter; (4) instructing the jury that to establish voluntary manslaughter,

the element of state of passion had to be proven by the State; and (5) instructing the jury

that it could not consider voluntary manslaughter unless it first acquitted Defendant on the

charge of second degree murder.

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

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

jury on proper instructions.’” State v. Perrier, 536 S.W.3d 388, 403 (Tenn. 2017) (quoting

State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001)). Thus, a trial court has a duty to give

“‘a complete charge of the law applicable to the facts of a case.’” Id. (quoting State v.

Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). Issues relating to the propriety of jury

instructions involve mixed questions of law and fact, which we review de novo with no

presumption of correctness. Id. (citing State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001);

State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001)). “‘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.’” Id. (quoting State v.

Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005)).

Defendant did not object to the jury instructions at trial, but she raised the issues in

her amended motion for new trial. “An erroneous or inaccurate jury charge, as opposed to

an incomplete jury charge, may be raised for the first time in a motion for new trial and is

not waived by the failure to make a contemporaneous objection.” Faulkner, 154 S.W.3d

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at 58 (citing State v. Lynn, 924 S.W.2d 892, 898-99 (Tenn. 1996); Tenn. R. Crim. P. 30(b)).

Defendant argues that the jury instructions were erroneous or inaccurate rather than

incomplete. Therefore, her failure to object to the jury instructions at trial do not preclude

our review of her claims.

1. Self-Defense Instruction

At the time of the offense, Tennessee Code Annotated section 39-11-611 provided

in pertinent part:

(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.

Tenn. Code Ann. § 39-11-611(b) (Supp. 2017).2 The threat or use of force against another,

however, is not justified:

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

2

We note that the statute has been amended by deleting the language regarding “not engaged in

unlawful activity” and substituting “not engaged in conduct that would constitute a felony or Class A

misdemeanor.” 2021 Tenn. Pub. Laws ch.115, section 3.

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(B) The other person nevertheless continues or attempts to use

unlawful force against the person[.]

Tenn. Code Ann. 39-11-611(e)(2) (Supp. 2017).

At trial, the trial court instructed the jury in pertinent part as follows:

Included in the defendant’s plea of not guilty is her plea of self-

defense.

If a defendant was in a place where he or she had a right to be, he or

she would have a right to use force against the deceased when and to the

degree the defendant reasonably believed the force was immediately

necessary to protect against the alleged victim’s use of unlawful force. The

defendant would also have no duty to retreat before using force.

If a defendant was in a place where she had a right to be, she would

also have a right to use 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. The defendant

would also have no duty to retreat before using force likely to cause death.

In determining whether the defendant’s use of force in defending

herself was reasonable, you may consider not only her use of force but also

all the facts and circumstances surrounding and leading up to it. Factors to

consider in deciding whether there were reasonable grounds for the

defendant to fear death from the deceased include but are not limited to any

previous threats of the deceased made known to the defendant; the character

of the deceased for violence, when known to the defendant; the animosity of

the deceased for the defendant, as revealed to the defendant by previous acts

and words of the deceased; and the manner in which the parties were armed

and their relative strengths and sizes.

The use of force against the deceased would not have been justified if

the defendant provoked the deceased’s use of unlawful force, unless the

defendant abandoned the encounter or clearly communicated to the deceased

the intent to do so, and the deceased nevertheless continued to use unlawful

force against the defendant.

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Defendant challenges the portion of the instruction which allows the jury to decide

whether she was in a place where she had a right to be. She maintains that the issue of

whether she was in a place where she had a right to be was a threshold determination to be

made by the trial court in accordance with State v. Perrier, 536 S.W.3d 388 (Tenn. 2017),

in examining whether to instruct the jury that a defendant has no duty to retreat. Defendant

asserts that by providing this “conditional instruction,” the trial court “left the question of

whether [Defendant] was under a duty to retreat to be resolved by the jury.” The State

responds that the trial court gave the pattern jury instruction on self-defense, that the trial

court made the threshold determination that Defendant was not engaged in unlawful

activity and informed the jury that Defendant had no duty to retreat, and that the issue of

whether Defendant was in a place where she was entitled to be is a factual determination

to be made by the jury.

Defendant also challenges the portion of the self-defense instruction which stated

that her use of force against the victim would not have been justified if Defendant provoked

the victim’s use of unlawful force. Defendant asserts that her actions did not constitute

adequate provocation of the use of unlawful force and that, thus, the issue of provocation

was not raised by the evidence so as to warrant the instruction. The State responds that the

trial court’s decision to instruct the jury regarding how to consider provocation was

appropriate based upon the evidence presented at trial and that the instruction fairly

submitted the legal issues and did not mislead the jury as to the applicable law.

We need not determine whether the instructions were erroneous, however, because

we conclude that any error in instructing the jury regarding self-defense was harmless

beyond a reasonable doubt. See Perrier, 536 S.W.3d at 404-05 (concluding that the trial

court’s error in instructing the jury regarding self-defense was harmless beyond a

reasonable doubt “because no reasonable jury would have accepted the defendant’s self-

defense theory”). The State did not argue in its brief that any error was harmless beyond a

reasonable doubt, and Defendant asserts in her reply brief that the State waived the

argument as a result. We note that Defendant did not cite to any authority to support her

waiver argument. Furthermore, during oral argument, the State asserted that any error in

the instruction was harmless beyond a reasonable doubt. Thus, we will address the issue.

In order to determine whether an instructional error is harmless, we must ask

“‘whether it appears beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.’” State v. Cecil, 409 S.W.3d 599, 610 (Tenn. 2013)

(quoting State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008)); see Perrier, 536 S.W.3d

at 404 n.8. According to the evidence presented at trial, which included a video recording

of the incident, the fist fight between Defendant and the victim had been broken up prior

to the stabbing, and the victim had walked away from the area. Defendant grabbed a pool

ball, quickly approached the victim, and stabbed him in the neck. The victim was not

- 26 -

attempting to reengage Defendant when Defendant stabbed him, and the victim had no

defensive wounds as Defendant stabbed him before he had the opportunity to fend off her

attack. Defendant demonstrated no fear of the victim but taunted and cursed him as she

skipped backwards toward the door. She then reentered the bar and threw a pool ball

toward the victim and his father while continuing to taunt and curse at them. As Ms.

Hutson drove away from the scene, Defendant hung outside of the passenger window while

yelling and waving her cap in an apparent celebration of her actions.

We conclude that based upon the evidence presented at trial, “no reasonable jury

would have accepted the [D]efendant’s self-defense theory.” Perrier, 536 S.W.3d at 404-

05. The evidence does not show that Defendant believed she was in imminent danger of

death or serious bodily injury when she stabbed the victim or that any such belief was

reasonable. See Tenn. Code Ann. § 39-11-611(b) (Supp. 2017). Accordingly, any error in

the self-defense instruction was harmless beyond a reasonable doubt.

2. Voluntary Manslaughter Instructions

After the trial court instructed the jury regarding the elements of second degree

murder, the court instructed the jury that “[t]he distinction between voluntary manslaughter

(a lesser included offense) and second-degree murder is that voluntary manslaughter

requires that the killing result from a state of passion produced by adequate provocation

from the alleged victim sufficient to lead a reasonable person to act in an irrational

manner.” The court informed the jurors that if they had reasonable doubt as to Defendant’s

guilt for second degree murder, their verdict must be not guilty as to the offense and that

the jurors then shall proceed to determine Defendant’s guilt or innocence for voluntary

manslaughter, a lesser included offense. The court set forth the elements of voluntary

manslaughter, including that “the killing resulted from a state of passion produced by

adequate provocation from the alleged victim sufficient to lead a reasonable person to act

in an irrational manner.” The court instructed the jury that the State had the burden of

proving the elements of voluntary manslaughter beyond a reasonable doubt. After the court

informed the jurors of the elements of the charged offenses and each applicable lesser

included offense, the court instructed the jurors that they must first consider the offense

charged in the indictment and that only if they find Defendant not guilty of the charged

offense or have reasonable doubt of Defendant’s guilt for the charged offense then the

jurors may consider whether Defendant is guilty of the next listed lesser included offense.

Defendant maintains that state of passion due to adequate provocation is a partial

defense to second degree murder that the State has the burden to disprove beyond a

reasonable doubt to sustain a conviction for second degree murder rather than an element

of the offense of voluntary manslaughter. Defendant asserts that the jury instructions are

erroneous in that the instructions do not require that state of passion be proven or disproven

- 27 -

to sustain a conviction for second degree murder but, rather, classify state of passion as a

“positive element” of voluntary manslaughter, which the State has the burden of proving

beyond a reasonable doubt to sustain a conviction for voluntary manslaughter as a lesser

included offense of second degree murder. Defendant asserts that based upon the

erroneous instructions, the jury was required to return a verdict of guilt for second degree

murder even if the jury agreed that she was likely acting in a state of passion due to

adequate provocation.

Defendant’s claim that state of passion due to adequate provocation is a partial

defense to second degree murder rather than an element of voluntary manslaughter

involves an issue of statutory construction, which is a question of law. See State v. Welch,

595 S.W.3d 615, 621 (Tenn. 2020); State v. Smith, 436 S.W.3d 751, 761-62 (Tenn. 2014).

In construing a statute, this court must “‘ascertain and give effect to the legislative intent

without unduly restricting or expanding a statute’s coverage beyond its intended scope.’”

Welch, 595 S.W.3d at 621 (quoting State v. Howard, 504 S.W.3d 260, 269 (Tenn. 2016)).

This court first examines “the plain language of the statute to determine the legislature’s

intent,” while giving the statute’s words their natural and ordinary meaning. Frazier v.

State, 495 S.W.3d 246, 248 (Tenn. 2016) (citing Lee Med., Inc. v. Beecher, 312 S.W.3d

515, 526 (Tenn. 2010)). “When those words are clear and unambiguous, we need not

consider other sources of information but must simply enforce the statute as written.” Id.

at 249. “If the language is ambiguous, however, we look to the ‘broader statutory scheme,

the history of the legislation, or other sources to discern its meaning.’” Smith, 436 S.W.3d

at 762 (quoting State v. Casper, 297 S.W.3d 676, 683 (Tenn. 2009)).

Second degree murder is defined by statute as “[a] knowing killing of another.”

Tenn. Code Ann. § 39-13-210(a)(1). Voluntary manslaughter is defined by statute as “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.” Tenn.

Code Ann. § 39-13-211(a). Tennessee Code Annotated section 39-11-203(e)(1), upon

which Defendant relies, provides that “[a] ground of defense, other than one (1) negating

an element of the offense or an affirmative defense, that is not plainly labeled in accordance

with this part has the procedural and evidentiary consequences of a defense.”

This court has previously examined the statutes defining second degree murder and

voluntary manslaughter and determined that the language in the statutes is “clear and

unambiguous” and is “devoid of any indication that voluntary manslaughter is a defense or

partial defense to the crime of second degree murder.” State v. Paul Clifford Moore, Jr.,

No. E2015-00585-CCA-R3-CD, 2016 WL 2865759, at *10 (Tenn. Crim. App. May 16,

2016). In Paul Clifford Moore, Jr., this court also stated that section 39-11-203 does not

identify state of passion as a defense to either first degree murder or second degree murder

and that the provision does “no more than generally describe defenses within the context

- 28 -

of the State’s burden of proof.” Id. This court applied the principles of statutory

construction and concluded that “the legislature plainly intended for state of passion

produced by adequate provocation to be an element of the separate offense of voluntary

manslaughter, not a defense to second degree murder.” Id.; see State v. William Langston,

No. W2015-02359-CCA-R3-CD, 2017 WL 1968827, at *12 (Tenn. Crim. App. May 12,

2017) (“[W]e cannot ignore the fact that Tennessee’s statutory scheme clearly defines

voluntary manslaughter as a separate criminal offense rather than a mere defense to second

degree murder.”).

Furthermore, the Tennessee Supreme Court has recognized that “state of passion

produced by adequate provocation” is an “element” of voluntary manslaughter. See State

v. Williams, 38 S.W.3d 532, 538-39 (Tenn. 2001). The court in Williams compared the

statutes setting forth the provisions of second degree murder and voluntary manslaughter

and concluded that “the essential element that now distinguishes these two offenses (which

are both ‘knowing’ killings) is whether the killing was committed ‘in a state of passion

produced by adequate provocation sufficient to lead a reasonable person to act in an

irrational manner.’” Id. at 538 (quoting Tenn. Code Ann. § 39-13-211(a)). The court also

referred to state of passion produced by adequate provocation as an “element” of voluntary

manslaughter in determining that the revised code abrogated the common law doctrine of

mutual combat. Id. at 539. This court also has noted that appellate courts “in Tennessee

have consistently held that state of passion produced by adequate provocation is an

essential statutory element of the offense of voluntary manslaughter and not a mere defense

to second degree murder.” Paul Clifford Moore, Jr., 2016 WL 2865759, at *14 (citing

cases); see State v. Christopher W. Gadsden, No. M2019-01385-CCA-R3-CD, 2020 WL

6791251, at *7 (Tenn. Crim. App. Nov. 19, 2020), perm. app. denied (Tenn. Mar. 17,

2021); William Langston, 2017 WL 1968827, at *13.

Defendant relies upon a recent opinion in State v. Brandon Scott Donaldson, in

which a panel of this court reviewed the history of homicide offenses in Tennessee,

examined the language in Williams, and concluded that “[w]hen placed in proper context,

the holding in Williams cannot be understood to hold that passion induced by provocation

became an essential element of the offense of voluntary manslaughter following the 1989

amendment because such treatment would have been a fundamental departure from the

historical understanding of the offense.” State v. Brandon Scott Donaldson, No. E2020-

01561-CCA-R3-CD, 2022 WL 1183466, at *23 (Tenn. Crim. App. Apr. 21, 2022), perm.

app. filed (Tenn. July 7, 2022). This court stated that to hold otherwise “is to say that the

court [in Williams] intended to turn on its head the historical underpinning of the offense

of voluntary manslaughter by way of a single sentence unaccompanied by any analysis of

the historical treatment of evidence of passion induced by provocation.” Id. This court

noted that the Williams court held “the consequence of its holding was ‘simply that the

defendant may contend that the particular facts concerning the homicide, including proof

- 29 -

of mutual combat, warrant a finding that the killing was the result of adequate provocation,

thereby constituting voluntary manslaughter.’” Id. (quoting Williams, 38 S.W.3d at 539).

The court determined that this language in Williams demonstrated that “‘the

passion/provocation formulation’ is best treated ‘not as a true element of the proscribed

offense to be established by the State but rather as a dispensational defense to a defendant

who committed an otherwise intentional or knowing killing.’” Id. (quoting State v. Khaliq

Ra-El, No. W2013-01130-CCA-R3-CD, 2014 WL 3511038, at *6 (Tenn. Crim. App. July

11, 2014) (Witt, Jr., concurring in results only).

However, in opinions released both prior to and after the release of Brandon Scott

Donaldson, this court has recognized that state of passion produced by adequate

provocation cannot be treated as a partial defense to second degree murder unless or until

the Tennessee Supreme Court or the legislature expressly authorizes such treatment. See,

e.g. State v. Jeffrey Lee Potts, No. M2020-01623-CCA-R3-CD, 2022 WL 2348233, at *20

n.5 (Tenn. Crim. App. June 29, 2022); William Langston, 2017 WL 1968827, at *13; Paul

Clifford Moore, Jr., 2016 WL 2865759, at *13; Kaliq Ra-El, 2014 WL 3511038, at *6. In

light of the plain statutory language, designating “state of passion produced by adequate

provocation” as an element of the separate offense of voluntary manslaughter rather than a

partial defense to second degree murder, and the Tennessee Supreme Court’s decision in

Williams, recognizing the provision as an “element” of voluntary manslaughter, we

likewise conclude that “state of passion produced by adequate provocation” cannot be

treated as a partial defense to second degree murder until authorized by the legislature or

the Tennessee Supreme Court.

In a related claim, Defendant asserts that the trial court erred in instructing the jury

that to establish voluntary manslaughter, the element of state of passion had to be proven

by the State. Defendant contends that because the State argued against the existence of

adequate provocation at trial, “under the instructions as given that was the end of it” and

that the jury was never asked to evaluate whether the evidence offered by the defense would

establish state of passion. However, since state of passion is an element of the offense of

voluntary manslaughter rather than a partial defense to second degree murder, the trial

court correctly instructed the jury that the State had the burden of establishing the element

beyond a reasonable doubt. See State v. White, 362 S.W.3d 559, 566 (Tenn. 2012) (nothing

that the State is required to “prove each and every element of a criminal offense beyond a

reasonable doubt”). This state of passion element may not be treated otherwise until

authorized by the legislature or the Tennessee Supreme Court. See Paul Clifford Moore,

Jr., 2016 WL 2865759, at *17-18 (holding that the trial court properly instructed the jury

that the State had the burden of proving each element of voluntary manslaughter, including

state of passion produced by adequate provocation, beyond a reasonable doubt).

- 30 -

Defendant contends that the jury instructions violated his due process rights based

upon the United States Supreme Court’s decisions in Mullaney v. Wilber, 421 U.S. 684

(1975), and Patterson v. New York, 432 U.S. 197 (1977). He asserts that based upon these

decisions, “it is clear that the State must prove those facts that are intrinsically and

historically part of the charged crime” and that “[t]he legislature cannot, by creative statute-

drafting, fundamentally alter that balance.” Other than citing to Patterson and Mullaney

in his brief, Defendant includes no discussion regarding the issues raised or the Court’s

holdings in each of the two cases. Furthermore, neither Mullaney nor Patterson stand for

the proposition claimed by Defendant.

In Mullaney, the United States Supreme Court considered a Maine statute on

murder, which allowed the State to rest on a presumption of implied malice of aforethought

and required the defendant to prove that he acted in the heat of passion on sudden

provocation in order to reduce the murder to manslaughter. 421 U.S. at 703. The Court

concluded that the statute violated due process principles by distinguishing those who kill

in the heat of passion from those who kill in the absence of this factor “while refusing to

require the prosecution to establish beyond a reasonable doubt the fact upon which it turns.”

Id. at 698. The Court noted that under the statute, “the State has affirmatively shifted the

burden of proof to the defendant” and that “[t]he result, in a case such as this one where

the defendant is required to prove the critical fact in dispute, is to increase further the

likelihood of an erroneous murder conviction.” Id. The Court held that “the Due Process

Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat

of passion on sudden provocation when the issue is properly presented in a homicide case.”

Id. at 704.

In Patterson, the Court determined that a New York statute, requiring a defendant

in a murder prosecution to prove by a preponderance of the evidence the affirmative

defense of extreme emotional disturbance to reduce murder to manslaughter, did not violate

due process. 432 U.S. at 198-200. The Court concluded that the affirmative defense did

not serve to negate any of the facts of the offense which the State must prove to obtain a

murder conviction but, instead, was a separate issue on which the defendant carried the

burden of persuasion. Id. at 206-07. The Court declined to adopt a rule requiring the State

to disprove beyond a reasonable doubt every fact constituting any and all affirmative

defenses, holding that “[p]roof of the nonexistence of all affirmative defenses has never

been constitutionally required.” Id. at 210.

This court has previously rejected a defendant’s claim that the jury instructions

defining second degree murder and voluntary manslaughter violated due process principles

set forth in Mullaney and Patterson. See Paul Clifford Moore, Jr., 2016 WL 2865759, at

*16. Unlike the statutes addressed by the United States Supreme Court, which placed some

sort of burden of proof on the defendant, Tennessee statutes define state of passion

- 31 -

produced by adequate provocation as an element of the crime of voluntary manslaughter

that the State must prove beyond a reasonable doubt. Id.; see Tenn. Code Ann. § 39-13-

211(a). The jury instructions, which correctly set forth the elements of the offense of

voluntary manslaughter, did not violate Defendant’s due process rights. See Paul Clifford

Moore, Jr., 2016 WL 2865759, at *16.

Finally, Defendant contends that the trial court erred in instructing the jury that it

could not consider a conviction for voluntary manslaughter as a lesser included offense

unless the jury first acquitted Defendant of second degree murder. Defendant challenges

the combination of instructing the jury that second degree murder is an unlawful and

knowing killing, that voluntary manslaughter is a lesser included offense of second degree

murder and has the additional element of state of passion, and that the jury is permitted to

consider lesser included offenses only if the jury first finds Defendant not guilty of the

greater offense. Defendant argues that the combination of these instructions “produces the

anomalous result that a jury following the instructions can never properly convict of

voluntary manslaughter, as it will always return instead a verdict of second-degree murder

or a verdict of not guilty of either.”

The Tennessee Supreme Court has upheld sequential jury instructions, concluding

that their use does not violate a defendant’s rights under the Tennessee Constitution and

that there are significant policy considerations favoring their use. State v. Davis, 266

S.W.3d 896, 905 (Tenn. 2008). Defendant, however, asserts that the claim of error is not

a challenge to the acquittal-first instruction but that “[t]he problem arises from the fact that

the … acquittal-first instruction was combined with a so-called lesser-included offense that

(contrary to the traditional meaning of a lesser included) actually has more elements rather

than fewer elements.” See Wayne R. LaFave, et. al., 6 Crim. Proc. § 24.8(d) (4th ed.) (“An

acquit-first instruction is problematic in a case in which the lesser offense depends upon a

finding that the elements of the greater offense have been established, as when extreme-

emotional-disturbance manslaughter is available only if the jury found the defendant had

committed murder.”).

The trial court instructed the jury in accordance with the pattern jury instructions

for second degree murder and voluntary manslaughter. See 7 Tenn. Prac. Pattern Jury Instr.

T.P.I.-Crim. 7.05(a) and 7.06 (21st ed. 2017). After instructing the jury regarding the

elements of second degree murder, the trial court instructed the jury regarding the

distinction between second degree murder and voluntary manslaughter, and, thus, the jury

was aware of the distinction when considering the second degree murder charge. This

court has upheld the use of sequential jury instruction where the trial court instructed the

jury on the distinction between second degree murder and voluntary manslaughter after the

court instructed the jury on the elements of second degree murder. See, e.g. State v. Jabari

Reynolds, No. E2015-00499-CCA-R3-CD, 2017 WL 936521, at *16-17 (Tenn. Crim. App.

- 32 -

Mar. 9, 2017); State v. Joseph Hale, No. M2008-00872-CCA-R3-CD, 2009 WL 1658696,

at *10-11 (Tenn. Crim. App. June 15, 2009); State v. Damien Clark, No. W2007-00651-

CCA-R3-CD, 2009 WL 890886, at *12-13 (Tenn. Crim. App. Apr. 1, 2009). This court

also upheld the jury instructions even when the trial court did not instruct the jury on the

distinction between voluntary manslaughter and second degree murder until after the court

had instructed the jury on the elements of voluntary manslaughter. See, e.g. William

Langston, 2017 WL 1968827, at *15-16; Paul Clifford Moore, Jr., 2016 WL 2865759, at

*18-19; State v. Chris Jones, No. W2009-01698-CCA-R3-CD, 2011 WL 856375, at *15-

16 (Tenn. Crim. App. Mar. 9, 2011); State v. Mark Hines, No. W2009-00450-CCA-R3-

CD, 2010 WL 4286132, at *10 (Tenn. Crim. App. Oct. 27, 2010). We conclude that the

jury instructions were sufficient for the jury to properly consider second degree murder in

relation to the requirements for voluntary manslaughter. Defendant is not entitled to relief

regarding this issue.

5. The Prosecutor’s Comments

Defendant challenges the following comments made by the prosecutor during

rebuttal closing arguments:

….Isn’t voluntary manslaughter. There was no state of passion produced by

adequate provocation. She’s not out of her mind. She’s cool. She’s cold.

“Ha-ha. I got you.” She’s cold, and we know she’s not in this state

of passion, because as soon as she’s out in the car, in the five minutes that it

takes to get from there to Cedar Bluff, she’s coaching Olia. “Tell the cops

this. Tell the cops that.” That’s not state of passion. That’s cool. That’s

calm. That’s reflective. That’s not state of passion.

When you go back to deliberate, the judge will give you an instruction

about the order of consideration. Second-degree murder is what she’s

charged with. Before you can go on to any lesser-included offense, you’ve

got to come to—come to an unanimous decision about that, about second.

Look at everything we’ve put on. There’s no self-defense. There’s

no adequate provocation to justify what she did.

Defendant specifically challenges the prosecutor’s statements that she was “not out of her

mind,” that there was “no adequate provocation to justify what she did,” and that the jury

could not consider the offense of voluntary manslaughter before reaching a unanimous

decision on second degree murder. Defendant asserts that the prosecutor misstated the

legal standard in making these statements. The State asserts that Defendant’s arguments

- 33 -

are waived, that there was no plain error, and that any impropriety did not affect the verdict.

Defendant counters that, although she did not make a contemporaneous objection, she is

entitled to plenary review under State v. Hawkins, 519 S.W.3d 1, 48 (Tenn. 2017), because

she raised the issue in a motion for new trial.

“Closing arguments serve ‘to sharpen and to clarify the issues that must be resolved

in a criminal case’” and enable “‘the opposing lawyers to present their theory of the case

and to point out the strengths and weaknesses in the evidence to the jury.’” Hawkins, 519

S.W.3d at 47 (quoting State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008)). Because counsel

in criminal cases are “‘expected to be zealous advocates,’” they are afforded “‘great

latitude in both the style and the substance of their arguments.’” Id. (quoting Banks, 271

S.W.3d at 130-31). Prosecutors, however, “must not lose sight of their duty to seek justice

impartially and their obligation ‘to see to it that the defendant receives a fair trial.’” Id. at

47-48 (quoting Banks, 271 S.W.3d at 131). “Accordingly, a prosecutor’s closing argument

must be temperate, must be based on the evidence introduced at trial, and must be pertinent

to the issues in the case.” Banks, 271 S.W.3d at 131 (citations omitted). “[P]rosecutors,

no less than defense counsel, may use colorful and forceful language in their closing

arguments, as long as they do not stray from the evidence and the reasonable inferences to

be drawn from the evidence, or make derogatory remarks or appeal to the jurors’

prejudices.” Id. (citations omitted). Although not exhaustive, this court has recognized

five general areas of potentially improper prosecutorial argument: (1) intentionally

misstating the evidence or misleading the jury as to the inferences it may draw; (2)

expressing personal beliefs or opinions as to the truth or falsity of any testimony or the

guilt of the defendant; (3) inflaming or attempting to inflame the passions or prejudices of

the jury; (4) injecting issues broader than the guilt or innocence of the accused under

controlling law, or making predictions regarding the consequences of the jury’s verdict;

and (5) arguing or referring to facts outside the record unless the facts are matters of

common knowledge. State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003).

However, “[a] criminal conviction should not be lightly overturned solely on the

basis of the prosecutor’s closing argument.” Banks, 271 S.W.3d at 131. Instead, “[a]n

improper closing argument will not constitute reversible error unless it is so inflammatory

or improper that i[t] affected the outcome of the trial to the defendant’s prejudice.” Id. The

following factors should be considered when making this determination:

“(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

[c]ourt 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.”

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State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (quoting Judge v. State, 539 S.W.2d 340,

344 (Tenn. Crim. App. 1976)); see also Goltz, 111 S.W.3d at 5-6.

The prosecutor’s statement regarding the jury’s consideration of the second degree

murder charge before considering the lesser included offenses was consistent with the trial

court’s instructions to the jury and a correct reflection of the law. See Paul Clifford Moore,

Jr., 2016 WL 2865759, at *18-19. Although the other challenged comments are

problematic when viewed in isolation, we cannot conclude that the comments were

improper when viewed in the context in which they were made. In stating that Defendant

was “not out of her mind,” the prosecutor was not suggesting that the jury was required to

find some evidence of insanity to convict her of voluntary manslaughter, as Defendant

appears to suggest on appeal. Rather, the prosecutor was arguing that Defendant was not

acting irrationally but was “cool,” “calm,” and “reflective” when she stabbed the victim.

The prosecutor also did not argue that the presence of adequate provocation would excuse

Defendant from criminal liability. Rather, the prosecutor’s argument, when viewed in its

context, was that the evidence did not establish adequate provocation as to warrant a

conviction for voluntary manslaughter. These arguments do not constitute misstatements

of the law and are based on reasonable inferences drawn from the evidence. Because the

prosecutor’s comments were not improper, Defendant has failed to establish that the

prosecutor’s comments breached a “clear and unequivocal rule of law” as to rise to the

level of plain error. See Smith, 24 S.W.3d at 282.

F. Sentencing

Defendant maintains that the trial court erred in imposing an aggregate twenty-

eight-year sentence. She argues that the length of the sentence is greater than necessary

and is not justly deserved in relation to the seriousness of the offenses. The State responds

that the trial court properly exercised its discretion in sentencing Defendant. We agree

with the State.

A trial court’s sentencing decisions are generally reviewed for abuse of discretion,

with a presumption of reasonableness granted to within-range sentences that reflect a

proper application of the purposes and principles of sentencing. State v. Bise, 380 S.W.3d

682, 707 (Tenn. 2012). A trial court abuses its discretion when it applies an incorrect legal

standard, reaches an illogical conclusion, bases its decision on a clearly erroneous

assessment of the evidence, or employs reasoning that causes an injustice to the party

complaining. State v. Herron, 461 S.W.3d 890, 904 (Tenn. 2015). The court will uphold

the sentence “so long as it is within the appropriate range and the record demonstrates that

the sentence is otherwise in compliance with the purposes and principles listed by statute.”

Bise, 380 S.W.3d at 709-10. This court cannot reverse a sentence based on the trial court’s

failure to adjust a sentence in “light of applicable, but merely advisory, mitigating or

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enhancement factors.” State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The trial court

is “to be guided by — but not bound by — any applicable enhancement or mitigating

factors when adjusting the length of a sentence.” Bise, 380 S.W.3d at 706. Further, “a trial

court’s misapplication of an enhancement or mitigating factor does not invalidate the

sentence imposed unless the trial court wholly departed from the 1989 Act, as amended in

2005.” Id. A sentence imposed by the trial court that is within the appropriate range should

be upheld “[s]o long as there are other reasons consistent with the purposes and principles

of sentencing, as provided by statute.” Id.

The standard of review for consecutive sentencing also is abuse of discretion with a

presumption of reasonableness. State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013). “So

long as a trial court properly articulates reasons for ordering consecutive sentences, thereby

providing a basis for meaningful appellate review, the sentences will be presumed

reasonable and, absent an abuse of discretion, upheld on appeal.” Id. at 862. The appealing

party bears the burden of proving that the sentence was improper. Carter, 254 S.W.3d at

344.

In determining “the specific sentence and the appropriate combination of sentencing

alternatives,” the trial court must consider: (1) the evidence at the trial and the sentencing

hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to

sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved;

(5) evidence and information offered by the parties on the applicable mitigating and

enhancement factors; (6) any statistical information provided by the administrative office

of the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement

the defendant wishes to make in the defendant’s own behalf about sentencing; and (8) the

result of the validated risk and needs assessment conducted by the department and

contained in the presentence report. Tenn. Code Ann. § 40-35-210(b).

The trial court should impose a sentence which is “justly deserved in relation to the

seriousness of the offense.” Tenn. Code Ann. § 40-35-102(1). The sentencing laws are

intended “to assure fair and consistent treatment of all defendants by eliminating

unjustified disparity in sentencing and providing a fair sense of predictability of the

criminal law and its sanctions.” Tenn. Code Ann. § 40-35-102(2). The sentence should be

“the least severe measure necessary to achieve the purposes for which the sentence is

imposed” and it should “be no greater than that deserved for the offense committed.” Tenn.

Code Ann. § 40-35-103(2), (4). The trial court should consider the defendant’s potential

or lack of potential for rehabilitation. Tenn. Code Ann. § 40-35-103(5).

As a Range I standard offender, Defendant was subject to a sentence of fifteen to

twenty-five years for second degree murder, a Class A felony, and three to six years for

tampering with evidence, a Class C felony. See Tenn. Code Ann. §§ 39-13-210(c) (2014);

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39-16-503(b); 40-35-112(a)(1), (3). The trial court imposed within-range sentences of

twenty-five years for Defendant’s second degree murder conviction and three years for her

conviction of tampering with evidence. The trial court applied three enhancement factors:

(1) Defendant had a “previous history of criminal convictions or criminal behavior, in

addition to those necessary to establish the appropriate range”; (3) the offense involved

more than one victim; and (9) Defendant possessed or employed a deadly weapon during

the commission of the offense. See Tenn. Code Ann. § 40-35-114(1), (3), (9). The trial

court assigned varying degrees of weight for each enhancement factor. The trial court

applied one mitigating factor in that Defendant “acted under strong provocation” but found

that the mitigating evidence was outweighed “by the facts of the case and the enhancement

factors.” See Tenn. Code Ann. § 40-35-113(2). The trial court made extensive findings

regarding the circumstances of the offense and determined that the facts of the case were

“so egregious” that the enhancement factors and mitigating evidence “sort of pale[d] in

comparison.” The trial court concluded that the maximum sentence of twenty-five years

for the second degree murder conviction was warranted. The trial court examined the

evidence related to the conviction of tampering with evidence and determined that the

enhancement factors were not sufficient to enhance the sentence for the conviction above

the minimum three-year sentence.

The trial court ordered Defendant to serve her sentences consecutively, finding that

Defendant “is a dangerous offender whose behavior indicates little or no regard for human

life and no hesitation about committing a crime in which the risk to human life is high.”

See Tenn. Code Ann. § 40-35-115(b)(4). The trial court also found that confinement for

an extended period of time was necessary to protect society from Defendant’s further

criminal conduct and that the aggregate length of the sentence was reasonably related to

the offenses of which Defendant stood convicted. See State v. Wilkerson, 905 S.W.2d 933,

938 (Tenn. 1995).

Defendant does not challenge the trial court’s application of enhancement factors or

its finding that Defendant met the criteria for a dangerous offender in imposing consecutive

sentences. See Tenn. Code Ann. § 40-35-115(b)(4). Rather, Defendant asserts that

although the trial court “correctly acknowledged that [Defendant] acted after provocation,”

the trial court “wrongly denigrated that provocation and concluded that this was an extreme

form of second-degree murder, deserving of the most severe possible sentence for second-

degree murder of twenty-five years.” Defendant maintains that “[i]f this was second-

degree murder, it was one with an unusually low level of culpability, committed by a

defendant who was otherwise not a particularly dangerous offender.”

In imposing the sentences, the trial court made extensive findings regarding the facts

and circumstances of the case. Although the trial court found that the victim committed an

assault against Defendant, the trial court also found a “clear break in the altercation” during

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which Defendant “made a separate decision” to attack the victim. The trial court stated

that during the initial fight, the victim and Defendant were quickly separated, that “there

was a clear break in the violence,” that the victim walked away, and that the victim and

those in the area believed the violent confrontation had ended. The trial court noted that

Defendant “was coming to exact her revenge” on the victim and was “very deceptive in

her actions,” that Defendant kept her hands down by her side while approaching the victim,

that the victim “never saw it coming” and did not act threatening toward Defendant, that

Defendant quickly struck the victim before he could “even get his hands up,” and that

Defendant “went straight for the neck.” The trial court found that Defendant’s actions

“went beyond” a knowing killing and that she intentionally stabbed the victim in the throat

in an effort to kill him. The trial court noted that Defendant did not act afraid and did not

panic after the stabbing but was “celebrating what she’s just accomplished” by laughing,

mocking, challenging others, and hanging out of the car window “to give her last retorts”

as her friend drove her away from the scene. These findings are supported by the record.

The record reflects that the trial court imposed within-range sentences based upon

a proper application of the purposes and principles of sentencing. The trial court’s decision

is presumed reasonable, and Defendant has failed to establish that the trial court abused its

discretion in imposing an effective twenty-eight-year sentence. See Bise, 380 S.W.3d at

707.

G. Cumulative Error

Defendant argues that the cumulative effect of errors committed by the trial court

entitles her to relief. The cumulative error doctrine applies to circumstances in which there

have been “multiple errors committed in trial proceedings, each of which in isolation

constitutes mere harmless error, but 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). However, Defendant has failed to

establish any error entitling her to relief when considered either individually or

cumulatively.

III. Conclusion

Upon reviewing the record, the parties’ briefs and oral arguments, and the applicable

law, we affirm the judgments of the trial court.

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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