State of Tennessee v. Patrick Trawick

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
October 6, 2009 Session

STATE OF TENNESSEE v. PATRICK TRAWICK

Appeal from the Criminal Court for Shelby County
Nos. 02-08616 and 02-08617 James M. Lammey, Judge

No. W2008-02675-CCA-R3-CD - Filed June 9, 2010

The Defendant, Patrick Trawick, was convicted by a Shelby County jury of one count of
premeditated first degree murder and two counts of aggravated assault related to the death
of his estranged girlfriend and the aggravated assault of her companion. The jury found life
without the possibility of parole to be the appropriate sentence for the premeditated first
degree murder count. Following a separate sentencing hearing, the trial court imposed
concurrent six year sentences for the two aggravated assault counts to be served
consecutively to the sentence of life without the possibility of parole. In this appeal as of
right, the Defendant contends that the trial court erred by (1) failing to recuse itself, (2) ruling
admissible for impeachment purposes the Defendant’s prior rape conviction, (3) admitting
crime scene photographs of the victim’s body, and (4) failing to instruct the jury regarding
all lesser included offenses for premeditated first degree murder. Following our review, we
affirm the judgments of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LAN E. G LENN and
C AMILLE R. M CM ULLEN, JJ., joined.

William D. Massey and Lorna S. McClusky, Memphis, Tennessee, attorneys for the
appellant, Patrick Trawick.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William
L. Gibbons, District Attorney General; Betsy Carnesale and Greg Gilbert, Assistant District
Attorneys General, attorneys for appellee, State of Tennessee.
 OPINION

Darryl Turner testified that he and Tujauna Smith, the deceased victim and the
Defendant’s ex-girlfriend, began dating four to six weeks before her death on September 30,
2002. He recalled that he had known the Defendant since 1999 when they met in prison.
After Mr. Turner’s release from prison, he and the Defendant became reacquainted. Mr.
Turner stated that the Defendant was not happy about his relationship with the victim, but
that he and the Defendant had never had any serious problems between one another. He
stated that he offered to stop seeing the victim, but the Defendant told him that was not
necessary. Mr. Turner and the victim continued to date. He also testified that on the day
before the victim’s death, the Defendant had been to Mr. Turner’s mother’s home and
confronted the victim about her failure to bring their thirteen-month-old daughter to see him.

Mr. Turner testified that on September 30, 2002, the victim picked him up at his
mother’s house to go out to dinner. Not far from the home, the Defendant pulled up next to
the victim in an attempt to get her to talk to him. She told the Defendant that she had nothing
to say to him. Mr. Turner recalled urging the victim to talk to the Defendant in order to see
what he wanted. However, the victim told Mr. Turner that the Defendant looked like he was
reaching for a gun so she sped away.

Mr. Turner testified that the Defendant pursued them while the victim drove
frantically, speeding to get away from the Defendant. During the pursuit, the victim stopped
and the Defendant shot at them. Mr. Turner then told her to drive to the North Precinct of
the Memphis Police Department. He recalled that as the victim sped toward the precinct, the
Defendant maintained his pursuit. When the victim attempted to turn quickly, she hit a curb.
Mr. Turner testified that he jumped out of the car and ran through the woods to the precinct.
As he approached the precinct, the victim drove past him with the Defendant still following
her.

Mr. Turner testified that he arrived at the precinct to report that he and the victim had
been chased and shot at by the Defendant. About ten minutes after his arrival at the precinct,
he recalled the officers telling him that there had been a shooting at a nearby Mapco gas
station. He testified that not long after hearing of the shooting, the officers told him that the
victim had been killed. After giving a full statement to the police, Mr. Turner identified the
Defendant from a photographic lineup as the man who had chased and shot at them. Several
months later, while both men were in jail, the Defendant told Mr. Turner that he never
intended to harm Mr. Turner and that his problem was with the victim. During the
conversation, the Defendant asked Mr. Turner not to testify against him. Mr. Turner stated
that he felt obligated to testify because the victim had saved his life.

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 The deceased victim’s cousin, Ranelle Duncan, testified that the victim had just turned
nineteen-years-old on September 7, 2002. She said that the victim had two daughters, ages
four-years-old and eleven-months-old. The younger daughter’s father is the Defendant. Ms.
Duncan said that the victim began living with her about three or four weeks before her death.
She recalled that the victim and the Defendant argued sometimes but described their
arguments as “nothing big.” Ms. Duncan said that the victim began dating Darryl Turner
about the time she moved into her residence. Ms. Duncan testified that the Defendant came
by her home about a week before the victim’s death. He dropped off some diapers for the
baby and wanted to talk to the victim who was not home at the time. Ms. Duncan recalled
that the Defendant was upset about the victim’s absence and told her that the victim was
“going to make me kill her.” Ms. Duncan testified that she did not take his comment
seriously and that she was not afraid of the Defendant that day at her house. Ms. Duncan
said that she saw the victim and Mr. Turner earlier on the evening of the victim’s death. She
learned that the victim had been shot and killed sometime around 2:00 a.m. the next morning.

Raymond E. Williamson testified that he was an assistant manager at the Mapco Gas
Station where the victim was killed. He had gotten off work at 10:00 p.m. but was at the
store waiting for another employee whom he drove to work to end his shift at 11:00 p.m. He
recalled seeing two cars pull up outside the store and seeing a man and a woman in an
argument. Although he could not hear what was being said, he could tell they were arguing
by their loud voices and hand gestures. Mr. Williamson said that the victim appeared very
afraid and moved her hands in a defensive gesture. He described the Defendant as
“agitated.”

Mr. Williamson testified that the victim entered the store and the Defendant followed
her with a gun in his hand. Mr. Williamson described the gun as a chrome-plated .45 caliber
handgun that the Defendant held close to his chest as he entered the store. Near the front
counter, the Defendant grabbed the victim and pistol-whipped her. Mr. Williamson testified
that the Defendant told the victim to “get the f*** out of the store.” Mr. Williamson began
pushing the panic button to alert the police when the confrontation became physical. The
victim broke away from the Defendant and ran to the back of the store. The Defendant
followed her, broke the glass from a beer cooler, and soon caught up to the victim. Mr.
Williamson testified that the Defendant shot the victim six or seven times, with the victim
falling to the ground with the third shot. He said that the Defendant emptied his gun and ran
from the store.

Mr. Williamson testified that he locked the doors of the store as soon as the Defendant
exited the building. He recalled that the video surveillance cameras recorded the entire
incident. The video was played for the jury during which time Mr. Williamson recalled that
the Defendant held the victim for the first two or three shots and then let her fall to the

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ground as he continued to shoot. He acknowledged that he was initially unable to identify
the Defendant due to medication he took that affected his short-term memory. However, he
identified the Defendant at trial.

Rodney Middlebrook testified that he was an employee at the gas station on the night
that the victim was killed. He recalled that the victim and the Defendant came into the store
at about 10:45 p.m. and that the victim was scared. He saw the Defendant pistol-whip the
victim. When Mr. Middlebrook “hopped” the counter to escape the store, he heard gunshots.
The Defendant left the store and drove away.

Torrance Holmes testified that he was a customer at the gas station and witnessed the
altercation from the parking lot. He recalled that two cars came racing down the wrong side
of the road and pulled into the parking lot. Mr. Holmes testified that the victim was scared.
He said that the Defendant was angry with the victim and wanted to know why she was with
another man. The Defendant also questioned whether his baby was in the victim’s car with
the couple. Mr. Holmes testified that the Defendant threatened to kill the victim and chased
her into the store. From the parking lot, Mr. Holmes saw the Defendant choke and pistol-
whip the victim. He saw the victim break free and run to the back of the store only to be
chased and shot by the Defendant. He testified that the Defendant left the store and
immediately went to check the backseat of the victim’s car as if to see if the baby was inside
the car. Finding no one else in the victim’s car, the Defendant left the scene in his car. Mr.
Holmes testified that he was trained in cardio-pulmonary resuscitation (CPR) so he entered
the store to check on the victim. He described the scene as very bloody. When he checked
the victim’s condition, she had no pulse.

Rodarius Ellis testified that he was at the Mapco store talking to his friend, Torrance
Holmes, when two cars drove into the parking lot. He said that he saw a man follow a
woman into the store. He recalled that the man pistol-whipped the woman and followed her
to the back of the store where he shot her. Before leaving in his car, the man checked the
woman’s backseat, as if he was looking for someone. Mr. Ellis said that he started to leave
the store but returned at his girlfriend’s urging because he knew CPR. However, when he
returned to the store and checked the victim, she was already dead.

Memphis Police Department Officer Patrick Taylor testified that he responded to a
report of a shooting at the Mapco station at approximately 10:30 p.m. When he arrived at
the scene, everything looked normal so he assumed that the call had been a false alarm.
However, Officer Taylor stated that when he entered the store, the clerk told him, “She’s
back there.” In light of the clerk’s calm demeanor, Officer Taylor still thought that the clerk
was referring to a shoplifter; but as he rounded the corner of the aisle to the back of the store,

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Officer Taylor saw a lot of blood and the victim’s body. He secured the scene, separated the
witnesses, and called an ambulance to the scene.

Sergeant Connie Justice of the Memphis Police Department testified that she was
assigned the investigation of the case and acted as case coordinator. Sgt. Justice testified
that, based upon the investigation that occurred throughout the night of the shooting, the
police had centered their investigation on the Defendant by morning. However, the
Defendant proved difficult to locate and was not arrested until May 2003. Cedric Thompson
testified that he reported his white Mercury Mystique stolen some time before the victim’s
death. He also said that he never gave the Defendant permission to drive his car. Sgt. Justice
testified that a Mercury Mystique found abandoned near the scene was processed and that
a bullet found in the vehicle was matched to those taken from the victim’s body. She said
that there were no fingerprint comparisons made from any found on the vehicle.

Memphis Police Department Officer Steven Ford testified that he helped secure the
scene at the Mapco station and also spoke to Mr. Turner at the precinct. He said that he went
to the area where Mr. Turner told him the victim had run over the curb and confirmed that
there were skid marks on the road. He also retrieved a “slug” from the drywall of the store
and sent it to the Tennessee Bureau of Investigation (TBI) Crime Lab for analysis. Officer
Shan Tracy testified that he completed the crime scene sketch of the Mapco station which
was admitted into evidence at the trial. He recalled finding the victim’s car keys in a pool
of blood. He also stated that no shell casings or bullets were found in the parking lot of the
store.

Francis Donald Carpenter testified that he was the crime scene technician with the
Memphis Police Department who processed the abandoned Mercury Mystique. He
discovered a shell casing on the driver-side floor of the vehicle and one round of ammunition
imbedded in the passenger-side door. The bullet had also shattered the passenger-side
window. He recalled that the driver-side window was shattered also but found no evidence
that a bullet had traveled through the window. He opined that the noise and force of firing
a gun inside the vehicle could have caused the driver-side window to shatter. TBI firearms
technician Alex Brodhag testified that he analyzed the bullets and casings found at the scene
and in the Mercury Mystique. He determined that the casings and bullets were fired from the
same .45 caliber handgun.

Dr. O’Brian Cleary Smith testified that he served as the Shelby County Medical
Examiner from 1983 until February 2004, but was privately employed at the time of trial.
He performed the autopsy on the victim and determined that she had suffered four gunshot
wounds. One bullet entered at the top of her head and traveled at an angle to rest in her
brain. A second bullet entered near her right shoulder, severed her spinal cord and came to

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rest in her chest cavity. A third bullet entered her right shoulder and exited her back. The
fourth bullet entered the front of her right leg and exited the back of her leg. Although
unable to determine the order in which the wounds were inflicted, Dr. Smith opined that the
wound to her head would have produced instant death; the wound to her spinal cord would
have been fatal eventually; but the two other wounds would have been survivable.

The Defendant recalled Ms. Duncan to testify more extensively about her conversation
with the Defendant the week before the victim’s death. She stated that the Defendant was
angry that the victim and their baby was not home when he came by with the diapers and that
he told Ms. Duncan the victim was going to make him kill her. She admitted that she did not
take his comment seriously. However, when asked to describe the Defendant’s behavior
toward the victim, Ms. Duncan testified that the Defendant was jealous. On cross-
examination, Ms. Duncan described the Defendant as disappointed that the victim was not
at home. She also admitted that she “never dreamed that [the Defendant] would chase [the
victim] through a Mapco and gun her down.”

Based upon this proof, the jury convicted the Defendant, as indicted, of premeditated
first degree murder and two counts of aggravated assault. Following the bifurcated
sentencing hearing, the jury found beyond a reasonable doubt the existence of one statutory
aggravating circumstance, that the Defendant was previously convicted of the prior violent
felony of rape, and the jury unanimously agreed that life without the possibility of parole was
the appropriate sentence.

ANALYSIS

Recusal of Trial Court

The Defendant argues that the trial court should have recused itself “despite its own
obvious inability to preside impartially” over the trial. The Defendant contends that the trial
judge’s previous employment as a Shelby County Assistant District Attorney created a bias
as evidenced by the trial judge’s reference to the prosecution as “we.” The Defendant also
cites to several areas of testimony that were admitted in favor of the State as instances of the
trial judge’s partiality toward the State. On appeal, the State correctly notes that the
Defendant failed to request the trial judge’s recusal at any point during the trial. The
Defendant acknowledges that he failed to object to specific instances of bias, but he contends
that the trial judge should have recused itself sua sponte.

The decision to grant a motion for recusal lies solely within the trial court’s discretion.
Caruthers v. State, 814 S.W.2d 64, 67 (Tenn. Crim. App. 1991). This Court may reverse the
trial judge’s decision only when the judge has clearly abused that discretionary authority.

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State v. Cash, 867 S.W.2d 741, 749 (Tenn. Crim. App. 1993). A judge should recuse himself
or herself whenever the judge’s “impartiality [could] reasonably be questioned.” Alley v.
State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994) (quoting Code of Judicial Conduct,
Canon 3(c) (now part of Tenn. Sup. Ct. R. 10, Canon 3(E)(1)). Furthermore, recusal is
appropriate “when a person of ordinary prudence in the judge’s position ... would find a
reasonable basis for questioning the judge’s impartiality.” Id. (footnote omitted). Therefore,
any trial judge addressing a motion for recusal must determine whether he or she has a
subjective bias against the defendant and whether the trial judge’s impartiality could
reasonably be questioned under an objective standard. State v. Connors, 995 S.W.2d 146,
148 (Tenn. Crim. App.1998).

The State correctly notes that the Defendant did not file a motion to recuse the trial
judge or raise any contemporaneous objections relevant to the trial judge’s participation in
this case when the specific instances of alleged bias occurred. However, the record reflects
that the Defendant did refuse to sign a waiver of disqualification prior to trial which it
appears the parties addressed as a motion to recuse. During the hearing on this issue, the trial
judge affirmed that he had no prior knowledge of the case derived from his employment as
a prosecutor and that the case was transferred to his court after his appointment to the court.
After noting that he was one of “around a hundred attorneys” in the Shelby County District
Attorney’s Office at the time of his election to the trial bench, the trial judge elaborated
further and stated that:

I had no contact with this case, was not involved with any matter with this
case, no knowledge of the facts, and the fact that I’ve been presiding over this
case for a couple of years now almost, and almost from day one have had
dealings with this matter [as a trial judge], and it’s never been brought up
before until trial date, and we have a jury out in the hall. I don’t see any reason
why I should recuse myself . . . .

As recently discussed by this court in State v. Ernest Gentry Burton, No. M2008-
00431-CCA-R3-CD, 2009 WL 2382284, *11 (Tenn. Crim. App. Aug. 3, 2009), perm. app.
denied (Tenn. Dec. 14, 2009), “While a party should seek to take whatever action reasonably
available to prevent or nullify an error[,] a trial judge must disqualify himself sua sponte
under certain circumstances.” Generally, the trial judge’s decision to recuse is a matter of
his or her discretion. State v. Smith, 906 S.W.2d 6, 11 (Tenn. Crim. App.1995). On appeal,
this court will not reverse the decision of the trial judge unless the evidence in the record
indicates an abuse of that discretion. State v. Pannell, 71 S.W.3d 720, 725 (Tenn. Crim. App.
2001).

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 The Defendant cites Rule 10, Canon 3(E) of the Tennessee Supreme Court Rules in
support of his argument that the trial judge should have recused himself sua sponte from the
trial in this case. This rule states that “[a] judge should disqualify himself or herself in a
proceeding in which the judge's impartiality might reasonably be questioned.” The rule lists
various circumstances where impartiality might be questioned. See Tenn. R. Sup. Ct.
Rule10, Canon 3(E). Notably, the Defendant cites to none of these specific circumstances
but instead makes a general allegation that the trial judge was biased in favor of the
prosecution as evidenced by several adverse rulings and that this bias was the result of the
trial judge’s prior employment as an assistant district attorney. Unlike the defendant in
Burton, the Defendant makes no specific allegations that the trial judge previously
participated in prosecuting the Defendant or has any specific knowledge of the Defendant’s
background derived from his prior employment as an assistant district attorney, and none is
apparent from this record. Generally, adverse rulings alone do not evince a showing of
judicial bias sufficient to require recusal. See, e.g., Herrera v. Herrera, 944 S.W.2d 379, 397
(Tenn. Ct. App. 1996). Therefore, we conclude that the Defendant’s argument must fail and
that the record does not show that the trial judge abused his discretion in refusing to recuse
himself, sua sponte or otherwise, from these proceedings.

Admission of Rape Conviction for Impeachment

The Defendant argues that the trial court erred in ruling a prior rape conviction
admissible as impeachment evidence pursuant to Tennessee Rule of Evidence 609. He
contends that the trial court failed to weigh properly the probative value of the prior
conviction versus its prejudicial effect and that “the obvious behavioral nexus between the
rape of a woman and the first degree murder of a woman” concerning violent behavior
inflicted against women rendered the prejudicial effect of the evidence too great to allow
admission. The State contends that the trial court properly determined that the rape
conviction could be admitted as impeachment and that if any error occurred, it was harmless
in light of the overwhelming proof of the Defendant’s guilt. The Defendant argues that this
error cannot be deemed harmless in light of his decision not to testify caused by the ruling.
Therefore, he argues that the jury was unable to hear his version of events, which differed
dramatically from the proof presented by the State, specifically concerning his state of mind.

The record reflects that during a pretrial hearing on the issue the trial court ruled
admissible the Defendant’s 1995 rape conviction based upon its characterization that rape
was “a crime of moral turpitude”and that “someone [who] commits a rape would not be
someone who would be considered particularly moral.” The trial court also ruled that “just
because it’s a felony makes it admissible” and “weighing that against the unfair prejudice,
I think it should be admissible if [the Defendant] elects to testify.” Following the
Defendant’s decision not to testify – which he attributed to the trial court’s ruling – the trial

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court elaborated on its ruling and stated that because Mr. Turner testified candidly about his
prior criminal record and having met the Defendant while in prison, the trial court thought
it “unfair” that the Defendant would be allowed to testify subject only to impeachment by his
1993 theft conviction. The trial court ruled that the rape conviction was probative of the
Defendant’s truthfulness and that the probative value of the evidence outweighed the
prejudicial effect.

Although the Defendant declined to present an offer of proof during the trial, he
reserved the right to do so at the motion for new trial hearing. However, at the motion for
new trial hearing, the trial court refused to allow the Defendant to present his offer of proof.
Instead, the trial court permitted counsel to summarize the Defendant’s testimony. Defense
counsel stated that the Defendant would have testified that he and the victim had a
tumultuous three-year relationship that had only recently ended when she died. He would
have testified that after their break-up, he had great difficulty seeing their ten-month-old
daughter because the victim would keep the child from him and refuse him access to the
child. He would have testified that on the night of the victim’s death he saw the victim while
driving, and that the victim and Mr. Turner actually chased him and fired the first shots. The
Defendant also would have testified that the victim telephoned him on his cellular phone and
told him to follow her to the Mapco station. He admitted that the couple argued about their
daughter and the victim’s relationship with Mr. Turner. However, the Defendant would have
testified that the victim made a remark to him that their child had performed sexual acts with
Mr. Turner, and the Defendant just “snapped,” following her into the store and ultimately
shooting her.

Rule 609(a)(3) of the Tennessee Rules of Evidence allows for the admission of a prior
conviction to impeach the credibility of a defendant testifying at trial. Prior to its admission,
the trial court is required to determine whether “the conviction’s probative value on
credibility outweighs its unfair prejudicial effect on substantive issues.” Tenn. R. Evid.
609(a)(3). This court will only reverse a trial court's decision only if the trial court abused
its discretion. State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App.1995).

In determining whether the probative value of a prior conviction on the issue of
credibility outweighs its unfair prejudicial effect on the substantive issues, a trial court should
consider (1) the relevance of the impeaching conviction with respect to credibility, and (2)
the similarity between the crime in question and the underlying impeaching conviction. State
v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003). This court has held that a prior rape
conviction may be admissible for impeachment purposes under Rule 609. State v. O.B.
Freeman Green, Jr., No. 02C01-9901-CC-00036, 1999 WL 675352, at *3 (Tenn. Crim. App.
Sept. 9. 1999), perm. app. denied (Tenn. Apr. 24, 2000). The fact that a prior conviction
involves the same or similar crime for which the defendant is being tried does not

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automatically require its exclusion. State v. Baker, 956 S.W.2d 8, 15 (Tenn. Crim. App.
1997); State v. Miller, 737 S.W.2d 556, 560 (Tenn. Crim. App. 1987). However, if “the
prior conviction and instant offense are similar in nature the possible prejudicial effect
increases greatly and should be more carefully scrutinized.” Long v. State, 607 S.W.2d 482,
486 (Tenn. Crim. App. 1980). The trial court must analyze the prior conviction and the
offense on trial to determine if the conviction’s probative value on credibility is outweighed
by the danger of unfair prejudice.

In this case the trial court determined that the Defendant’s prior conviction for rape
was a “crime of moral turpitude” and probative of the Defendant’s credibility. The trial
court further determined that the rape conviction should be admissible because the
impeachment of the Defendant should not be limited to only his 1993 theft conviction. We
cannot conclude under the circumstances of this case that the trial court abused its discretion
in determining that the probative value of the Defendant’s rape conviction relative to
credibility outweighed any danger of unfair prejudice to the Defendant. Accordingly, the
Defendant is not entitled to relief on this issue.

Admission of Photographs of Deceased Victim

The Defendant argues that the trial court should not have admitted photographs of the
deceased victim taken at the crime scene because they were impermissibly inflammatory and
gruesome and the State’s purpose in utilizing them concerned undisputed evidence – the
location of the bullets and casings found at the scene. The State contends that the
photographs were not extremely gruesome and were relevant to describe the crime scene and
show that the victim was trying to escape from the Defendant at the time of her attack. The
State also argues that the photographs were not graphic. Therefore, the State contends that
the trial court did not abuse its discretion in admitting the photographs. Following our
review, we agree with the State.

As a general rule, all relevant evidence is admissible. Tenn. R. Evid. 402. However,
even relevant evidence “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 (emphasis added). Photographs of a deceased victim may be admissible “if they
are relevant to the issues on trial, notwithstanding their gruesome and horrifying character.”
State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978). Likewise, if they are not relevant, they
may not be admitted to inflame a jury and unfairly prejudice the jury against a defendant. Id.
The term “unfair prejudice” has been defined as “[a]n undue tendency to suggest a decision
on an improper basis, commonly, though not necessarily, an emotional one.” Id. As with any
other form of evidence, the decision to admit photographs of a deceased victim lies within
the discretion of the trial court, and we will not overturn that decision absent a clear showing

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of an abuse of discretion. State v. Vann, 976 S.W.2d 93, 103 (Tenn. 1998). The modern
trend is to vest more discretion in the trial court’s rulings regarding admissibility. Banks, 564
S.W.2d at 949. As relevant to this case, crime scene photographs are valuable to illustrate
the injuries to a victim, as well as the mechanism and manner of infliction of the injuries.
See, e.g., State v. Leach 148 S.W.3d 42, 63 (Tenn. 2006).

The photographs depict the victim’s body as it was found at the scene, including the
location of shell casings found nearby and the victim’s attempt to flee to the backroom of the
store to escape the Defendant. The photographs are relevant to show the Defendant’s pursuit
and assault of the victim. While the photographs clearly show the extent of the victim’s
injuries from multiple gunshot wounds, we disagree with the Defendant that these
photographs are particularly gruesome or horrifying. Accordingly, we conclude that the trial
court did not abuse its discretion in admitting the photographs.

Failure to Instruct the Jury on All Lesser Included Offenses

In his final issue, the Defendant argues that the trial court committed reversible error
by denying his request to instruct the jury regarding all lesser included offenses of first
degree murder. The State concedes that the trial court did not instruct the jury regarding all
lesser included offenses but contends that any error arising from this failure was harmless
beyond a reasonable doubt in light of the jury’s verdict of premeditated first degree murder.
The record reflects that the Defendant filed a specific written request for jury instructions on
all lesser included offenses of premeditated first degree murder including second degree
murder, voluntary manslaughter, reckless homicide, criminally negligent homicide, reckless
aggravated assault, assault, and reckless endangerment. The trial court instructed the jury
regarding only premeditated first degree murder, second degree murder, and voluntary
manslaughter after ruling that the evidence did not support an instruction for reckless
homicide or criminally negligent homicide or any other lesser included offenses.

Both parties correctly note that a defendant has a constitutional right to full and
complete charge of all lesser included offenses charged in the indictment. State v. Ely, 48
S.W.3d 710, 727 (Tenn. 2001). When an issue is raised regarding the trial court’s failure to
instruct on a lesser included offense, our analysis typically involves a determination of: (1)
whether the offense is a lesser included offense under the test adopted in State v. Burns, 6
S.W.3d 453 (Tenn. 1999); (2) whether the evidence supports an instruction on the lesser
included offense; and (3) whether the failure to instruct on the lesser included offense
constitutes harmless error. State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002).

With these considerations in mind, we note that reckless homicide and criminally
negligent homicide are lesser included offenses of premeditated first degree murder under

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Burns. Regarding whether the evidence supports the instruction, our supreme court
formulated a two-step analysis to assist in that determination: first, determine if any evidence
exists that reasonable minds could accept as to the lesser offense; and second, determine by
viewing the evidence liberally in the light most favorable to the existence of a lesser included
offense, whether the evidence is sufficient to support a conviction for the lesser included
offense. State v. Richmond, 90 S.W.3d 648, 660 (Tenn. 2002). “The evidence, not the
theories of the parties, controls whether an instruction is required.” Allen, 69 S.W.3d at 188.

Criminally negligent homicide requires proof a killing resulted from conduct when
a defendant “ought to be aware of a substantial and unjustifiable risk” that a death will occur.
Tenn. Code Ann. §§ 39-11-302(d) and 39-13-212. Reckless homicide requires proof of a
killing resulting from conduct when a defendant “is aware of but consciously disregards a
substantial and unjustifiable risk” that a death will occur. Tenn. Code Ann. §§ 39-11-302(c)
and 39-13-215. The evidence in this case shows that the Defendant approached the victim
while driving the streets of Memphis with the intention to assault her. The Defendant shot
at the victim’s vehicle. The Defendant pursued the victim through the Mapco station,
grabbing her and pistol-whipping her at the front counter, before trapping her and shooting
her to death in the doorway to the back room of the store. Based upon this evidence, we
agree with the trial court that the evidence did not support an instruction on criminally
negligent homicide or reckless homicide. The trial court’s refusal to give these instructions
or any other lesser included instructions was not error.

We further note that our supreme court has also held that “by finding the defendant
guilty of the highest offense to the exclusion of the immediately lesser offense . . . the jury
necessarily rejected all other lesser offenses” rendering the failure to charge on all lesser
included offenses “harmless beyond a reasonable doubt.” State v. Williams, 977 S.W.2d
101, 106 (Tenn. 1998). Such is the situation in the present case; by finding the Defendant
guilty of premeditated first degree murder, the jury necessarily rejected all the instructed
lesser included offenses and the trial court’s failure to charge on any other lesser included
offenses would be deemed harmless beyond a reasonable doubt. Accordingly, we conclude
that the Defendant is not entitled to relief for this alleged error.

CONCLUSION

In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.

_______________________________
D. KELLY THOMAS, JR., JUDGE

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