LOUDON COUNTY. HON. E. EUGENE EBLEN, JUDGE. (Murder in the Second Degree)
The opinion of the court was delivered by: Scott
Indicted for two counts of murder in the first degree, the appellant was convicted of one count of murder in the second degree and was acquitted of the other murder charge. He was sentenced to thirteen years and six months in the state penitentiary as a Range I standard offender. On appeal he has presented three issues, none of which challenge the sufficiency of the convicting evidence. However, a short synopsis of the facts will be helpful to understanding the issues.
In the late summer of 1989, Elker Jones asked the appellant to find a buyer for two kilos of cocaine. The appellant arranged for Daron Meade and Maurice Mills to purchase the cocaine for $36,000.00. The appellant, knowing the likelihood of violence in a drug transaction, gave Mr. Meade a .357 Magnum pistol.
Around midnight on September 10, 1989, the appellant picked up Messrs. Meade, Mills and Jones in his wife's car. They were going to a motel in Lenoir City to consummate the deal with a man who was bringing the cocaine from Atlanta. The appellant drove. Mr. Meade sat beside him. Mr. Mills sat in the back seat behind the appellant and Mr. Jones sat in the back seat behind Mr. Meade. As they entered Loudon County, the appellant heard a gunshot. Mr. Jones had shot Mr. Mills. Both the appellant and Mr. Meade turned, whereupon Mr. Jones shot Mr. Meade. According to the appellant, Mr. Jones told him that he was going to kill him also, to which the appellant said "no, just be cool." The appellant then stopped the car where he and Mr. Jones got Mr. Meade and Mr. Mills out of the car and rolled them into a ditch. Noticing that Mr. Mills was still breathing, the appellant said he didn't want to leave him "down in the ditch like that." Mr. Jones told the appellant to hold a cigarette lighter so he could see to shoot Mr. Mills again. The appellant held the light; Mr. Jones shot Mr. Mills again; and Mr. Mills quit breathing.
Mr. Jones and the appellant then split the money and cleaned up the car at a car wash. The appellant hid his half of the money at his father's house. He went by his apartment, told his wife what had happened and went to Atlanta, Georgia to his brother's apartment. After he left, his wife called the police and he was met at the Atlanta apartment by DeKalb County law enforcement officers.
When questioned about the offense, the appellant gave detailed directions on how to find the victims, the guns and the money, all of which were found exactly where the appellant said they could be located.
From this proof, it is clear that the jury could have readily found the appellant guilty of murder in the first degree. However, the trial Judge granted the appellant's motion for judgment of acquittal as to that offense. Thereafter, the jury found him guilty of the murder in the second degree of Mr. Mills and acquitted him of the killing of Mr. Meade.
There was ample, indeed overwhelming, evidence from which any rational trier of fact would conclude that the appellant was guilty of aiding and abetting the killing of Mr. Mills beyond a reasonable doubt. Rule 13(e), Tenn.R.App.P., Jackson v. Virginia, 443 U.S. 307, 314-324, 99 S.Ct. 2781, 2786-2792, 61 L.Ed.2d 560 (1979).
In his first issue the appellant contends that the trial Judge erred by refusing to charge the jury as to matters of coercion and malice with regard to the offense of murder in the second degree as set out in his special request for jury instructions. Specifically he wanted the Judge to charge the jury as follows:
The essential element distinguishing second degree murder from voluntary manslaughter is the presence or absence of malice at the time of the killing. In the event you should find that the defendant was acting without malice then he cannot be guilty of second degree murder and you must consider his guilt or innocence upon the charge of voluntary man slaughter. (sic)
The appellant admits that the charge given by the trial Judge regarding murder in the second degree and voluntary manslaughter was correct, but he contends that the charge was deficient because it merely stated the two offenses independently without describing them in relationship to each other.
Of course, it is hornbook law that a defendant has a constitutional right to a "correct and complete charge of the law" applicable to the case. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). If the jury instruction given fully and fairly states the applicable law, it is not error to refuse to give a specially requested instruction. Edwards v. State, 540 S.W.2d 641, 649 (Tenn. 1976).
The instructions given, taken directly from the Tennessee pattern Jury Instructions-Criminal §§ 20.04 and 20.05, did not mislead the jury. *fn1 The instruction concerning murder in the second degree clearly explained that malice is an essential element of that offense, and the instruction concerning voluntary manslaughter clearly illuminated the fact that malice is not an element of voluntary manslaughter. The jury was correctly instructed and this issue has no merit.
In another issue the appellant contends that the trial Judge erred by permitting the prosecution to argue to the jury during closing argument that the state would not be able to charge the appellant with other offenses arising from the same facts and that this proceeding represented the state's only opportunity to charge the defendant with crimes arising from these facts. The state contends that defense counsel opened the door to this ...