State of Tennessee v. Marty Lavern Pyburn

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
March 9, 2004 Session

STATE OF TENNESSEE v. MARTY LAVERN PYBURN

Direct Appeal from the Circuit Court for Marion County
No. 5601 Thomas W. Graham, Judge

No. M2003-01090-CCA-R3-CD - Filed August 16, 2004

The appellant, Marty Lavern Pyburn, was convicted by a jury in the Marion County Circuit Court
of first degree murder and sentenced to life imprisonment. On appeal, the appellant challenges (1)
the sufficiency of the evidence; (2) the admission of his prior conviction of aggravated robbery for
impeachment purposes; (3) the admission of photographs of the crime scene; (4) the expert testimony
of Dr. Charles Harlan; and (5) the trial court’s charge to the jury. Upon review of the record and the
parties’ briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH , JJ., joined.

Philip A. Condra, Jasper, Tennessee, for the appellant, Marty Lavern Pyburn.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
J. Michael Taylor, District Attorney General; and Sherry Gouger, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

At trial, Alice Rheal, the victim’s grandmother, testified that when the victim was young, he
lived in foster care. However, upon turning eighteen years old, the victim moved to Alabama to live
with his mother. Around Thanksgiving of 2000, the victim returned to Tennessee to live with the
appellant, his natural father. Mrs. Rheal related that shortly after 7:00 p.m. on January 7, 2001, the
victim telephoned and asked her “to come and get him.” According to Mrs. Rheal, the victim
sounded upset and angry. Mrs. Rheal agreed to pick the victim up at his father’s residence, but never
again saw him alive.
 Virginia Moore testified that the appellant and the victim lived with Moore’s sister, Kathy
Baggett, and Baggett’s daughter, in a mobile home at the Jesse James Trailer Park. On January 7,
2001, Moore was at home with her husband when the appellant and the victim came to visit. The
appellant, the victim, and Moore’s husband went into another room to drink beer and play pool.
Subsequently, the victim informed the appellant that he was ready to leave. The appellant told the
victim to go outside and “warm up the car.” When the victim went outside, the appellant sat down
to watch television with Moore. Shortly thereafter, the victim came inside and asked, “Dad, are you
ready to go?” The appellant replied that he was not yet ready and told the victim that he should wait
in the car. The victim returned to the car. When the victim came back into Moore’s residence, the
appellant cursed, and he and the victim left.

Approximately fifteen minutes later, Moore telephoned the appellant at home. The appellant
told Moore that he and the victim “w[ere] into it.” The appellant informed Moore that he had told
the victim to leave, but the victim refused. The appellant told Moore he was “fixing to kill the little
MF.” According to Moore, the appellant then laid the telephone down, and she hung up her
telephone.

Shortly thereafter, the appellant telephoned Moore and told her that he had killed the victim.
The appellant claimed to have shot the victim between the eyes. Moore testified that the appellant
began to cry, and she told him to call 911. The appellant refused, saying, “No, he’s dead.” Moore
again told the appellant to call 911, but the appellant refused, saying, “No, I’ll go to jail.” Finally,
Moore told the appellant that she would call 911.

After hanging up her telephone, Moore immediately called 911. Five minutes later, the
appellant telephoned Moore to ask if she had called 911. Moore replied that she had spoken to a 911
operator who was going to telephone the appellant. Moore testified that while she was on the
telephone with the appellant, the appellant’s telephone “beep[ed],” indicating another call. Moore
told the appellant, “[P]lease answer the beep, it’s 911.” The appellant reluctantly agreed to speak
to the 911 operator.

On cross-examination, Moore conceded that when interviewed by Allan Weeks, an
investigator with the district attorney general’s office, she did not mention that the appellant had
ordered the victim to leave or that the appellant had said, “I’m fixing to kill the little MF.” However,
Moore claimed that directly after the incident, she was “in shock.” Moore stated that she informed
Weeks that the appellant had intended only to frighten the victim and that she had overheard the
victim making comments in the background.

Carolyn Keahey, a 911 operator in Marion County, testified that on the afternoon of January
7, 2001, she received a call from a telephone number listed as belonging to Virginia Moore. Moore
reported that the appellant had shot his son. Moore provided Keahey with the appellant’s telephone
number and address. Keahey contacted the Marion County Sheriff’s Department and the paramedics
and gave them the appellant’s address. She then attempted to telephone the appellant several times,
but received a busy signal. After telephoning Moore to ensure that she had the right telephone

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number, Keahey again telephoned the appellant. Finally, the appellant answered. Keahey asked the
appellant if there had been a shooting. The appellant said, “[Y]es. . . . Come get my son.” The
appellant informed Keahey that he had shot the victim in the head with a 30/30 rifle. Keahey
testified that the appellant refused to check to determine if the victim was still breathing. Keahey
remained on the telephone with the appellant until an officer with the sheriff’s department and an
ambulance arrived.

Sergeant Billy R. Powell of the Marion County Sheriff’s Department testified that at
approximately 7:12 p.m. on January 7, 2001, he responded to a call regarding a shooting at a mobile
home at the Jesse James Trailer Park. He was the first officer to arrive at the scene. An ambulance
arrived shortly thereafter. Sergeant Powell testified that as he walked onto the porch, he observed
that the door to the mobile home was open. Sergeant Powell looked inside and observed the
appellant “s[i]tting in a chair in the living room area holding on to a portable telephone.” Because
he was acquainted with the appellant, Sergeant Powell walked inside the residence and asked the
appellant what happened. The appellant responded, “I shot him. We [had] been fighting.” When
Sergeant Powell asked the appellant whom he had shot, the appellant pointed toward a bedroom.
In the bedroom, Sergeant Powell observed the victim’s body on the floor with what appeared to be
a gunshot wound to the head. He also observed a small knife in the victim’s hand. When Sergeant
Powell returned to the living room, the appellant asked, “Is he dead?” Sergeant Powell replied,
“Yeah, he’s dead.” Sergeant Powell testified that without disturbing the scene, the paramedics
confirmed that the victim was deceased.

Sergeant Powell told the appellant to remain seated and went outside to radio for assistance.
He then returned to the mobile home and asked the appellant about the weapon used to shoot the
victim. The appellant led Sergeant Powell to a small green gun cabinet which contained “a lever
action 30-30 rifle.” The appellant handed the rifle to Sergeant Powell. In the living room, Sergeant
Powell observed a discharged shell casing on the floor. Sergeant Powell told the appellant to sit
while he took the rifle to his patrol car. Shortly thereafter, Allan Weeks, an investigator with the
district attorney general’s office, arrived and Sergeant Powell “turned the [crime] scene over to him.”
On cross-examination, Sergeant Powell acknowledged that when he arrived at the crime scene, he
observed items, such as photographs, cigarette butts, and potting soil, “strewn on the floor.”

Officer Kevin Hubbard of the Marion County Sheriff’s Department testified that on January
7, 2001, he responded to a call at the residence of Kathy Baggett at the Jesse James Trailer Park.
Shortly after Officer Hubbard arrived at the scene, he was asked to transport the appellant to the
Grandview Medical Center to obtain a sample of the appellant’s blood for blood alcohol analysis.
The blood sample was drawn in the presence of Officer Hubbard. After the blood sample was
obtained, Officer Hubbard transported the appellant to the Marion County Sheriff’s Department and
gave the blood sample to Investigator Hargis, who sent the sample to the Tennessee Bureau of
Investigation (“TBI”) crime laboratory in Nashville for analysis. At trial, the parties stipulated that
the results of the blood analysis revealed that at the time of the offense, the appellant had a blood
alcohol content of .13 percent. The results also revealed the presence of the substance Butalbital in
the appellant’s blood.

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 Allan Weeks, the investigator with the district attorney general’s office, assisted in the
investigation of the shooting death of the victim. Weeks testified that when he arrived at the crime
scene at approximately 7:30 p.m., he observed the appellant sitting in a chair in the living room.
Weeks asked another officer to place the appellant in a patrol car. Upon being advised of the
circumstances surrounding the offense, Weeks advised the officers that the crime scene needed to
be secured. Thereafter, Weeks photographed and made a diagram of the interior of the mobile home.

Weeks testified that a live round of ammunition was discovered on the floor in the bedroom
in which the gun cabinet was located. An empty hull was discovered on the floor in the living room.
In the bedroom in which the victim’s body was discovered, a portion of the window blinds was
missing where a bullet had struck the blinds. A bullet fragment was discovered on the floor beneath
the window. Additional fragments were discovered embedded in the wall behind the bed. The bullet
fragments were taken into evidence.

Weeks further testified that the victim’s body was lying on the floor between the foot of the
bed and the bathroom. “[A] small straight blade . . . type knife” was discovered in the victim’s left
hand, and a sheath was discovered on the bed. “[R]ed stains [that Weeks] presume[d] to be blood”
were discovered on a bathroom door near the victim’s body. Weeks also observed a “red substance”
on the window blinds. Weeks testified that he did not discover any “red type spatters” in the
hallway. Weeks further testified that he observed “a substance” on the bed. On cross-examination,
Weeks conceded that no samples of these substances were collected or submitted for analysis.

TBI Special Agent Dan Royce, a forensic scientist specialized in firearm identification,
testified that in the instant case he received several items for firearm identification and comparison.
Agent Royce received a rifle which he identified as a Winchester Model 94 30/30 lever action rifle.
He explained that the rifle was operated by pulling a lever “down and forward,” which action loaded
a live round into the chamber and “cocked” the weapon. Agent Royce further explained that the rifle
had several safety mechanisms. According to Agent Royce, in order to fire the weapon, the hammer
had to be “cocked” manually, and the lever had to be pulled into position “against the stock.”

Agent Royce testified that an expended Winchester 30/30 shell casing was submitted for
identification. He compared the casing to test bullets fired from the rifle. Upon comparison, Agent
Royce determined that the casing “had been fired in this rifle.” Agent Royce also received two bullet
fragments removed from a bedroom wall, one bullet fragment found at the base of the wall behind
the bed, and several bullet fragments recovered from the victim’s brain. However, only the fragment
of “the copper bullet jacket” removed from the bedroom wall proved valuable for comparison. Upon
comparison, Agent Royce determined that “the copper bullet jacket . . . had, indeed, been fired
through the barrel of this rifle.” Agent Royce explained that the bullet was a “170 grain power point
[which] is a soft point cartridge . . . [with] exposed lead at the nose for the purpose of expanding
when it strikes a target.”

TBI Special Agent Oakley McKinney, a forensic scientist specialized in latent prints, testified
that he was asked to process the knife discovered in the victim’s hand for fingerprints. Agent

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McKinney related that he did not find any latent prints on the knife. However, he testified that it was
not uncommon to be unable to find a latent print that may have been present when the evidence was
collected. He explained that latent prints were fragile. The print might have been “wiped off,” or,
because a latent print is ninety-eight to ninety-nine percent moisture, it might have evaporated.

Investigator Gene Hargis of the Marion County Sheriff’s Department testified that on January
7, 2001, he was called to investigate the shooting death of the victim. When he arrived at the scene,
he and Allan Weeks inspected the mobile home taking certain items into evidence, including a
Winchester 30/30 rifle, a spent shell casing located on the floor in the living room, and an unspent
shell casing located in the bedroom opposite where the victim’s body was discovered. In the
bedroom in which the victim’s body was discovered, Investigator Hargis collected bullet fragments
from the wall and the floor behind the bed. Investigator Hargis subsequently submitted this
evidence, as well as bullet fragments recovered from the victim’s brain, to the TBI crime laboratory
for identification. Investigator Hargis also removed the knife from the victim’s left hand and
submitted it to the TBI crime laboratory for latent print examination. A nylon knife sheath was
discovered on the bed in the bedroom where the victim’s body was located. Investigator Hargis
testified that he observed the victim’s body lying between the bed and the bathroom and “red
spatters” on the bathroom floor.

After processing the crime scene, Investigator Hargis returned to the sheriff’s department to
interview the appellant. After signing a waiver of his rights, the appellant submitted a written
statement, which Investigator Hargis read into the record as follows:

Me and [the victim] had been drinking pretty much all evening. [The
victim] began telling me that I wasn’t much of a father and began
running his mouth to me. We had a fight in the living room where he
hit me in the jaw. I told him to pack his clothes and leave. He went
to his room for a while. [The victim] then grabbed a 30-30 rifle that
was behind the living room door and went into his room and hollered,
“I’m going to kill you.” At that time I went into his room and took
the rifle from him. I then went into the living room [and] put the gun
behind the stereo speaker. I got up, went to the door . . . to let the dog
in. As I was shutting the door I saw [the victim] coming out of his
room with a knife held above his head coming towards me, saying he
was going to kill me. I reached and grab[bed] the gun and it went off.
We were face to face and he was coming towards me. [The victim
was] about five or six feet from me when the gun went off. I went
and called Virginia Moore and told her what happened. I then put the
gun in . . . my room.

According to Investigator Hargis, the appellant claimed that when the rifle discharged, he was
holding it “[a]s if . . . holding a long barrel weapon.” When demonstrating the manner in which the
victim was holding the knife, the appellant told Investigator Hargis that the victim was “holding up

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[his] left hand with [his] fingers around the handle of the knife . . . and the blade pointing forward.”
Investigator Hargis testified that although the appellant claimed to have been struck in the jaw, he
observed no injuries.

Dr. Charles Harlan, the forensic pathologist who performed the victim’s autopsy, testified
that the victim died as a result of a gunshot wound to the head. Dr. Harlan reported that “[t]he
presence of stippling in this particular wound indicate[d] that the distance from the muzzle to the
skin surface [was] somewhere from zero to 12 inches.” He testified that the bullet entered the
victim’s head “in the front part of the right ear” and exited the back of the head. According to Dr.
Harlan, as soon as the victim was shot, he would have been rendered unconscious and would have
lost voluntary control. Dr. Harlan recovered fragments of a bullet from the victim’s brain.

Blood analysis revealed that the victim had a blood alcohol level of .16 percent, and a drug
screen of the victim’s urine tested positive for tetrahydrocannabinol (“THC”), the active ingredient
in marijuana. However, Dr. Harlan explained that urine could test positive for THC up to eight
weeks after marijuana had been introduced into the body. When asked to view photographs of the
crime scene, Dr. Harlan identified what appeared to be brain matter on the bed and blood spatter on
the bathroom door and window blinds in the bedroom where the victim’s body was located.
However, Dr. Harlan testified that he was unable to determine from the photograph the species of
the brain matter, and neither the brain matter nor the blood was submitted for testing. On cross-
examination, Dr. Harlan acknowledged that black powder was not present around the wound because
“the powder that was present in the material causing the stippling ha[d] been totally consumed.”

Prior to closing its case-in-chief, the State recalled Alice Rheal, the victim’s grandmother,
to determine if the victim was right-handed or left-handed. Mrs. Rheal testified that the victim was
right-handed. On cross-examination, Mrs. Rheal acknowledged that she had “quite a bit” of contact
with the victim from the time he was nine to seventeen years old.

Kathy Baggett, the appellant’s girlfriend of sixteen years, testified on behalf of the appellant
at trial. She related that in January 2001, she and the appellant were living in a mobile home in the
Jesse James Trailer Park with her daughter and the victim. The victim had moved in shortly before
Thanksgiving the previous year. Baggett testified that on the day of the shooting, she left the mobile
home at 5:00 a.m. to visit her son. According to Baggett, “[e]verything was normal when [she] left.”
However, when she returned, the living room was in total disarray. Baggett testified that she had
purchased the 30/30 rifle from her brother-in-law approximately two months prior to the shooting.
She kept the rifle loaded and locked in a gun cabinet. Baggett testified that she had previously
allowed the victim to borrow the rifle for hunting.

Baggett testified that between Thanksgiving and Christmas of 2000, “[t]here was a lot of
friction” in the home. She explained that the victim often asked the appellant for money, and the
appellant would tell the victim to “get a job.” Baggett explained that the topic of employment was
“a source of some disagreement between the two of them.” Baggett stated that they also argued over
the victim’s drinking. According to Baggett, the appellant told the victim to move out “more than

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once,” but the victim refused. However, the victim had lived with a neighbor for a short period of
time.

Baggett testified that after Christmas, the relationship between the appellant and the victim
worsened. Additionally, the appellant was “laid off.” Baggett related that the appellant would often
go to her sister’s house because “the kids w[ere] starting to drive him crazy.” Baggett testified that
the appellant never discussed with her the details of the shooting.

On cross-examination, Baggett conceded that the appellant allowed the victim to consume
alcohol on the day of the shooting. She further conceded that the victim lived with a neighbor after
he and the appellant had a “heated argument,” during which the appellant struck the victim and
ordered him to leave. Baggett stated that she kept a key to the gun cabinet on top of the gun cabinet.
The last time Baggett recalled seeing the rifle was when the victim borrowed it for hunting. She was
uncertain how many shells were in the rifle because she did not know if the victim had reloaded the
weapon. Baggett acknowledged that when she cleaned the bedroom after the shooting, she observed
a red “gym type bag” at the foot of the bed. The bag appeared to contain the victim’s clothes.

Eunice Kilgore testified at trial that she lived in the Jesse James Trailer Parker near the
mobile home belonging to Baggett and the appellant. She related that the victim had stayed at her
trailer on two or three occasions, once for approximately three weeks. Kilgore testified that on
January 7, 2001, she received a telephone call from Virginia Moore. As a result of that telephone
call, Kilgore watched for the appellant and the victim to return home. They arrived while she was
talking to Moore. Kilgore testified that as the appellant and the victim walked to their mobile home,
she heard what “could have been arguing.” Approximately fifteen minutes later, she heard a
“bump.” Shortly thereafter, the police and an ambulance arrived at the mobile home. Kilgore
claimed that she was not interviewed by the police. On cross-examination, Kilgore explained that
Moore telephoned her twice that evening. Moore telephoned Kilgore the first time shortly before
the appellant and the victim arrived home, then again approximately twenty minutes later prior to
the arrival of the police and the ambulance.

Ira Rheal testified that he was married to Alice Rheal. Mr. Rheal testified that on the night
of the shooting, the victim called before Mrs. Rheal returned home from work. The victim told Mr.
Rheal that “he had to get away from there or he’s going to have to kill [the appellant] or [the
appellant] was going to have to kill him.” The victim asked Mr. Rheal to pick him up at the
appellant’s mobile home, but Mr. Rheal did not go.

The appellant testified that in the fall of 2000, he lived in the mobile home at the Jesse James
Trailer Park with Baggett and her daughter. Prior to Thanksgiving of that year, the appellant had
little contact with the victim. However, shortly before Thanksgiving, he asked the victim to live with
them. The appellant related that between Thanksgiving and Christmas, he and the victim had several
“disagreements.” The appellant claimed that although the victim was only eighteen years old when
he came to live with them, the victim consumed alcohol regularly, often becoming “mouthy.” The
appellant asked the victim several times not to drink at home, but the victim refused to stop drinking.

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The appellant also argued with the victim about the victim’s choice of friends and his lack of
employment; however, the appellant claimed that he had no influence on the victim. According to
the appellant, the victim did nothing but stay out all night. The appellant testified that prior to
Christmas, he told the victim to move out of the mobile home. The victim went to live with
neighbor Eunice Kilgore, but returned a few days later.

The appellant testified that on January 7, 2001, the victim asked to go to Etna Mountain to
shoot the rifle. The appellant told the victim that they would go when the football game ended. The
appellant took the rifle from the gun cabinet and placed it behind the door to the mobile home. The
victim and the appellant then went to Moore’s house where they watched another football game and
played pool. Both the victim and the appellant were drinking beer. When they finished playing pool,
the appellant watched television with Moore. The victim informed the appellant that he was ready
to leave, and the appellant told the victim to go outside and warm the car. The appellant testified
that the victim came back into the residence once or twice and insisted on leaving. The appellant
finally left.

The appellant testified that as they left Moore’s residence, the victim told the appellant that
he was angry with the appellant for not taking him to Etna Mountain. The appellant claimed that
they continued to argue during the drive home and when they arrived home, the argument became
more heated. The appellant stated, “[The victim] told me I wasn’t never a father to him and I was
never around and he hated me.” According to the appellant, the victim wrestled the appellant to the
floor and struck him in the head several times. When the appellant broke free of the victim’s grasp,
he told the victim “to go pack his stuff and call somebody to come get him. I’[d] had it with him.”
The appellant testified that the victim grabbed the rifle from behind the door and took it into his
bedroom. The appellant went to the victim’s bedroom, retrieved the rifle, and placed it back behind
the door. The appellant then opened the door to allow the dog to come inside the mobile home.

The appellant testified that he was about to return the rifle to the gun cabinet when he
observed the victim standing in his bedroom near the hallway with a knife in his hand. The victim
threatened to kill the appellant. The appellant picked up the rifle and asked the victim to put down
the knife. The appellant testified, “[The victim] lunged at me like he was going to run at me. That’s
when the gun went off.” The victim fell. The appellant claimed that prior to the rifle discharging,
he had neither cocked the rifle nor aimed it at the victim.

The appellant testified that he looked into the victim’s bedroom, then went into the living
room and telephoned Moore. The appellant claimed that he did not call 911 because he was “tore
up.” Instead, he told Moore that he had shot the victim and asked her to call 911. When he finished
talking to Moore, he sat in a chair without hanging up the telephone and began to cry. He then heard
the telephone “beep.” It was the 911 operator. He told the operator what had happened and the
police arrived shortly thereafter. The appellant testified that he returned the rifle to the gun cabinet
sometime after the shooting. He related that after the shooting he did not know if the victim was
dead, but he suspected it. The appellant related that Moore had telephoned while he and the victim
were fighting, but he denied telling Moore that he was “fixing to kill the little MF.”

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 On cross-examination, the appellant acknowledged that while at Moore’s home, he had “a
buzz” and the victim was intoxicated. The appellant conceded that when he placed the rifle behind
the door, he did not check to see if it was cocked. He further conceded that he was not frightened
when the victim threatened to kill him. He believed the victim was “just running his mouth.”
However, the appellant subsequently testified that he believed the victim was going to kill him, but
maintained that the shooting was an accident. The appellant acknowledged that when he let the dog
in, the victim was on the cordless telephone in the living room. He explained that there was only
one telephone in the residence. When asked if he checked on the victim after the rifle discharged,
the appellant replied, “I hollered, he didn’t say nothing. I took it he was hurt.” However, he claimed
that he did not know the victim was dead until Sergeant Powell told him. The appellant denied
telling Moore that he did not want to call 911 because he did not want to go to jail. He also denied
placing the knife in the victim’s hand.

Based upon the foregoing testimony, the jury convicted the appellant of first degree murder.
The trial court imposed a life sentence with the possibility of parole. On appeal, the appellant
challenges (1) the sufficiency of the evidence; (2) the admission of his prior conviction of aggravated
robbery for impeachment purposes; (3) the admission of certain photographs of the crime scene; (4)
the expert testimony of Dr. Charles Harlan; and (5) the trial court’s charge to the jury.

II. Analysis

A. Sufficiency of the Evidence

The appellant argues that the evidence was insufficient to support a verdict of first degree
premeditated murder. In a separate issue, the appellant challenges the trial court’s denial of his
motions for judgment of acquittal. Upon denying the appellant’s motion for judgment of acquittal
at the close of the State’s case-in-chief, the trial court found, “I believe there is sufficient evidence
that a jury could use in this case. I’m not saying it’s likely, but I’m saying there is sufficient
evidence at this time to withstand the motion . . . , so I deny your motion . . . .” The appellant
contends that the language, “I’m not saying it’s likely,” implied that the trial court found the State’s
evidence to be insufficient to support a conviction of first degree murder. However, the trial court
explicitly stated that the evidence was sufficient for the jury to consider the charge of first degree
murder.

In any event, this court has previously observed that “[t]he standard by which the trial court
determines a motion for judgment of acquittal at the end of all the proof is, in essence, the same
standard which applies on appeal in determining the sufficiency of the evidence after a conviction.”
State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim. App. 2000). Moreover, “[a] motion for
a judgment of acquittal made at the conclusion of the proof by the state is waived when the defendant
elects to present evidence on his own behalf.” State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App.
1998) (citing Mathis v. State, 590 S.W.2d 449, 453 (Tenn. 1979)); see also Tenn. R. Crim. P. 29(a).
Accordingly, we will address the appellant’s complaint regarding the denial of his motions for
judgment of acquittal as a challenge to the sufficiency of the evidence.

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 When an appellant challenges the sufficiency of the convicting evidence, the standard for
review by an appellate 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, 99 S. Ct. 2781, 2789 (1979); Tenn. R.
App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all
reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value
to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier
of fact. Id. This court will not reweigh or reevaluate the evidence. State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973). Because a jury conviction removes the presumption of innocence with which a
defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted
defendant has the burden of demonstrating to this court that the evidence is insufficient. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

First degree murder is defined in pertinent part as the “premeditated and intentional killing
of another.” Tenn. Code Ann. § 39-13-202(a)(1) (2003). Premeditation is defined as “an act done
after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d).

“Premeditation” means that the intent to kill must have been formed
prior to the act itself. It is not necessary that the purpose to kill pre-
exist in the mind of the accused for any definite period of time. The
mental state of the accused at the time the accused allegedly decided
to kill must be carefully considered in order to determine whether the
accused was sufficiently free from excitement and passion as to be
capable of premeditation.

Id.

The element of premeditation is a question of fact for the jury. State v. Davidson, 121
S.W.3d 600, 614 (Tenn. 2003). Although the jury may not engage in speculation, it may infer
premeditation from the manner and circumstances surrounding the killing. State v. Bland, 958
S.W.2d 651, 660 (Tenn. 1997). Our supreme court has delineated several circumstances from which
a jury may infer premeditation, including, but not limited to, declarations of the intent to kill, the
procurement of a weapon, the use of a deadly weapon upon an unarmed victim, the particular cruelty
of the killing, preparations before the killing for the purpose of concealing the crime, and calmness
immediately after the killing. Id. In Tennessee, once a homicide has been proven, it is presumed
to be second degree murder, and the burden is on the State to prove the element of premeditation
sufficient to raise the offense to first degree murder. State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

Viewed in the light most favorable to the State, the evidence demonstrated that on the day
of the murder, the appellant and the victim were arguing as they left Moore’s residence. Moore
subsequently telephoned the appellant at home, and the appellant informed her that he and the victim
“w[ere] into it” and he was “fixing to kill the little MF.” The appellant then laid down the telephone,

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ending their conversation. Approximately fifteen minutes later, the appellant telephoned Moore and
told her that he had killed the victim. The appellant told Moore that he had shot the victim between
the eyes.

In his statement to police, the appellant claimed that when he observed the victim coming
out of his room with a knife held above his head, he picked up the rifle from behind the living room
door and it “went off.” However, Baggett testified that she kept the rifle loaded and locked in the
gun cabinet. She further related that she did not observe the weapon behind the living room door
when she left the mobile home the morning of the murder. Moreover, Agent Royce testified that the
30/30 lever action rifle had various safety features and the rifle would not fire without the hammer
being manually cocked and the lever being held against the stock. The evidence also demonstrated
that the victim was shot in his room. Blood spatter and brain tissue were observed in the bedroom
near the victim’s body, and bullet fragments were recovered from the wall behind the bed. Contrary
to the appellant’s assertion that the victim was five to six feet away when the rifle discharged, Dr.
Harlan testified that the muzzle of the rifle was no more than twelve inches from the victim’s head.
A knife was discovered in the victim’s left hand, but Alice Rheal testified that the victim was right-
handed. The jury could have reasonably inferred that the appellant retrieved the rifle, entered the
victim’s room, and shot the victim in the head at close range. The appellant’s statement that he was
“fixing to kill the little MF,” the procurement of a deadly weapon, and the failure of the appellant
to seek help for the victim support the finding of premeditation. We conclude that the evidence was
sufficient to support the appellant’s conviction of first degree premeditated murder.

B. Prior Conviction

Next, the appellant contends that the trial court erred by allowing the State to introduce
evidence of his prior conviction of aggravated robbery for impeachment purposes. The appellant
concedes that simple robbery is a crime involving dishonesty, but argues that the offense of
aggravated robbery “suggests injury and violence or threatened violence,” thereby portraying the
appellant as a violent person. The appellant asserts that the prejudicial effect of the aggravated
robbery conviction outweighed its probative value on credibility. The appellant further asserts that
the trial court made no finding as required by Rule 609 of the Tennessee Rules of Evidence that the
probative value outweighed any unfair prejudicial effect. The State maintains that the trial court
properly admitted the evidence of the appellant’s prior conviction of aggravated robbery to impeach
the appellant’s testimony.

Rule 609(a) of the Tennessee Rules of Evidence provides, in pertinent part:

For the purpose of attacking the credibility of a witness, evidence that
the witness has been convicted of a crime may be admitted if the
following procedures and conditions are satisfied:

(1) The witness must be asked about the conviction on
cross-examination. . . .

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 (2) The crime must be punishable by death or
imprisonment in excess of one year under the law
under which the witness was convicted or, if not so
punishable, the crime must have involved dishonesty
or false statement.
(3) If the witness to be impeached is the accused in a
criminal prosecution, the State must give the accused
reasonable written notice of the impeaching
conviction before trial, and the court upon request
must determine that the conviction’s probative value
on credibility outweighs its unfair prejudicial effect on
the substantive issues. The court may rule on the
admissibility of such proof prior to the trial but in any
event shall rule prior to the testimony of the accused.
If the court makes a final determination that such
proof is admissible for impeachment purposes, the
accused need not actually testify at the trial to later
challenge the propriety of the determination.

“Evidence of a conviction under this rule is not admissible if a period of more than ten years has
elapsed between the date of release from confinement and commencement of the action or
prosecution; if the witness was not confined, the ten-year period is measured from the date of
conviction rather than release.” Tenn. R. Evid. 609(b).

In determining whether the probative value of a prior conviction on the issue of credibility
is outweighed by its prejudicial effect on the substantive issues, “a trial court should (a) ‘assess the
similarity between the crime on trial and the crime underlying the impeaching conviction’ and (b)
‘analyze the relevance the impeaching conviction has to the issue of credibility.’” State v. Farmer,
841 S.W.2d 837, 839 (Tenn. Crim. App. 1992) (quoting Neil P. Cohen et al., Tennessee Law of
Evidence § 609.9, at 288 (2d ed. 1990)). A trial court’s ruling under Rule 609 will not be reversed
on appeal absent an abuse of discretion. State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App.
1996).

Two months prior to trial, the State filed a Notice of Use of Prior Convictions for
Impeachment Purposes, relying upon the appellant’s 1981 convictions of passing a forged
instrument, a 1983 conviction of burglary,1 and a 1991 conviction of aggravated robbery. In a jury-
out hearing at the close of the State’s case-in-chief, the appellant challenged the use of these
convictions for impeachment purposes, arguing that the 1981 and 1983 convictions were too remote
to have any probative value and the prejudicial effect of the 1991 conviction of aggravated robbery
outweighed its probative value on credibility. The State conceded that the 1981 and 1983

1
The State subsequently conceded that the 1983 burglary conviction was a conviction for burglary of an
automobile.

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convictions were outside the ten-year period, but claimed that because robbery was a crime involving
dishonesty, it was entitled to question the appellant regarding the 1991 aggravated robbery
conviction. The trial court allowed the State to use the 1991 aggravated robbery conviction for
impeachment purposes, finding the aggravated robbery conviction to be probative of the issue of
credibility. The trial court further determined that the probative value was not outweighed by any
prejudicial effect, finding aggravated robbery was not “similar” to first degree murder.

Tennessee courts have previously recognized that aggravated robbery is a crime of
dishonesty. See State v. Caruthers, 676 S.W.2d 935, 941 (Tenn. 1984) (armed robbery); State v.
Goad, 692 S.W.2d 32, 37 (Tenn. Crim. App. 1985) (armed robbery); State v. James P. Stout, No.
02C01-9812-CR-00376, 2000 WL 202226, at *15 (Tenn. Crim. App. at Jackson, Feb. 17, 2000)
(especially aggravated robbery). Moreover, contrary to the appellant’s assertion, the trial court
correctly determined that the prior conviction’s probative value was not outweighed by any unfair
prejudice, finding that “the thing that really hurts you as far as prejudicial is if the act is similar to
the act that’s being charged and crime being tried, that’s not the situation here.”

We conclude that the trial court did not abuse its discretion in ruling that the appellant’s prior
conviction of aggravated robbery was admissible as impeachment evidence. The appellant’s
credibility was a key issue at trial, and the appellant’s prior conviction of aggravated robbery was
probative of his credibility. Moreover, aggravated robbery and first degree murder are not similar
offenses. See State v. DeShawn McClenton, W1999-00879-CCA-R3-CD, 2000 WL 987283, at *5
(Tenn. Crim. App. at Jackson, July 11, 2000) (concluding that prior convictions of attempted first
degree murder were dissimilar to aggravated robbery and especially aggravated kidnapping); State
v. Jeffery Jermaine Hankins, No. 02C01-9806-CC-00170, 1999 WL 569576, at *9 (Tenn. Crim.
App. at Jackson, Aug. 4, 1999) (concluding that “the crime[] of aggravated robbery . . . [was] not
so similar to the offense of murder second degree as to compel finding of prejudice”). The prior
conviction of aggravated robbery was admitted only for impeachment purposes, and no details of the
offense were introduced at trial.

C. Admission of Photographs

Next, the appellant argues that the trial court erred by admitting into evidence three
photographs of the crime scene. The decision regarding the admissibility of photographs lies within
the sound discretion of the trial court and that ruling will not be overturned on appeal absent a
showing of an abuse of that discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). In order
to be admitted as evidence, a photograph must be relevant to an issue at trial. Tenn. R. Evid. 402;
State v. Braden, 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993). “‘If relevant, the photograph is not
rendered inadmissible because the subject portrayed could be described by words; . . . the photograph
would be cumulative; . . . or [the photograph] is gruesome or for some other reason is likely to
inflame the jury.’” Collins v. State, 506 S.W.2d 179, 185 (Tenn. Crim. App. 1973) (quoting 3
Wharton’s Criminal Evidence § 637 (13th ed.)). However, relevant photographs may be excluded
if their probative value is substantially outweighed by the danger of unfair prejudice to the defendant.
Tenn. R. Evid. 403; Banks, 564 S.W.2d at 951.

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 The appellant challenges exhibits 23, 25, and 26, which were crime scene photographs
introduced over the objection of defense counsel during the testimony of the investigators who
investigated and photographed the crime scene. Investigators Weeks and Hargis testified regarding
the appearance of the crime scene when they arrived, including the location of the victim’s body.
The photographs were also used by Dr. Harlan to identify blood spatter and brain tissue in the
bedroom where the victim’s body was discovered. Exhibit 23 is a photograph of the bathroom door
near which the victim’s body was located. The photograph depicts what appears to be blood spatter
on the door. Exhibit 25 is a photograph of the victim’s body as it appeared when the officers arrived
at the scene. Blood is visible on the carpet beneath the victim’s body. Exhibit 26 is a photograph
of a portion of the bed in the room where the victim’s body was located. The photograph shows a
substance that appears to be tissue on the bed. However, neither the blood nor the “tissue” was
submitted for analysis.

We conclude that the trial court did not abuse its discretion by admitting the photographs.
As the State correctly notes, the photographs were relevant to prove premeditation. By introducing
the photographs, the State sought to establish its theory that “the [appellant] had entered [the
victim’s] room, after the argument had ended, and shot him with premeditation.” The photographs
also corroborated the testimony of Weeks and Investigator Hargis regarding the crime scene and
provided the jury with a description of the scene. Although exhibit 25 is duplicative of another
photograph of the victim’s body which was introduced into evidence, exhibit 25 was taken at a
slightly different angle and included the corner of the bed, thereby demonstrating the location of the
victim’s body in the room. This issue is without merit.

D. Expert Testimony

The appellant argues that the trial court erred by allowing Dr. Harlan to testify as an expert
for the purpose of identifying blood spatter and brain tissue in crime scene photographs.
Specifically, the appellant challenges Dr. Harlan’s qualifications to testify as an expert on these
matters. The appellant further asserts that the testimony was “irrelevant, without proper foundation,
and highly prejudicial.” The State contends that Dr. Harlan was qualified to testify as an expert and
the testimony was relevant.

At trial, the defense stipulated that Dr. Harlan was an expert in the field of forensic
pathology.2 However, after questioning Dr. Harlan about the cause of death, the State asked Dr.
Harlan to view exhibit 26, the crime scene photograph of the bed in the room where the victim’s
body was discovered. Dr. Harlan identified what appeared to be “multiple portions of brain
material” on the bed. Defense counsel objected, arguing that Dr. Harlan was not qualified to express
such an opinion and the material had not been submitted for analysis. Following a jury-out hearing,
the trial court determined that Dr. Harlan was qualified to testify for the purpose of identifying the
material as brain tissue, but he was not allowed to testify that the brain tissue was that of a human.

2
Dr. Harlan testified that he was the “senior active full time practicing forensic pathologist in the State of
Tennessee,” having performed more than 27,000 autopsies and testified at more than 5,000 trials.

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 Thereafter, the State asked Dr. Harlan to view exhibits 16 and 23, the crime scene
photographs of the window blinds and the bathroom door in the room where the victim’s body was
discovered. Defense counsel objected, refusing to stipulate that Dr. Harlan was qualified to testify
as an expert in the area of blood spatter. Nevertheless, the trial court determined that Dr. Harlan was
qualified and allowed him to testify that the “red splatters” on the window blinds and bathroom door
were “consistent with blood spatter and . . . the material was under pressure in striking the surface
with a certain amount of velocity.”

“If scientific, technical, or other specialized knowledge will substantially assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise.” Tenn. R. Evid. 702. An expert may base her opinion upon facts or data imparted to or
perceived by the expert prior to or at a hearing, and the facts or data need not be admissible if they
are the type of facts or data reasonably relied upon by experts in the particular field. Tenn. R. Evid.
703. The trial court shall disallow testimony in the form of an opinion if the underlying facts or data
indicate a lack of trustworthiness. Id. Moreover, expert testimony must be both relevant and reliable
before it may be admitted. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997)
“Questions regarding the qualifications, admissibility, relevancy, and competency of expert
testimony are matters left within the broad discretion of the trial court.” State v. Stevens, 78 S.W.3d
817, 832 (Tenn. 2002). This court will not overturn the trial court’s ruling regarding the
admissibility of expert testimony absent an abuse of discretion. Id.

We conclude that Dr. Harlan was qualified to testify as an expert for the purpose of
identifying the blood spatter and the brain tissue in the crime scene photographs. Our supreme court
has previously observed that an expert witness “may acquire the necessary expertise through formal
education or life experiences.” State v. Reid, 91 S.W.3d 247, 302 (Tenn. 2002), cert. denied, 124
S. Ct. 56 (2003). “However, the witness must have such superior skill, experience, training,
education, or knowledge within the particular area that his or her degree of expertise is beyond the
scope of common knowledge and experience of the average person.” Id. During the jury-out
hearing, Dr. Harlan testified that in addition to forensic pathology, he was “subspecialized” in
neuropathology and had served as the head of the department of neuropathology at the University
of Tennessee. Moreover, Dr. Harlan testified that he had received specialized training in the area
of blood spatter, which training was “a portion of every forensic pathologist’s background and
training.” He related, “I’ve worked with certain medical technologists who had special training in
[blood spatter], including people who trained at Scotland Yard and I have a certain amount of
expertise in that area beyond what the normal forensic pathologist would have.”

We further conclude that Dr. Harlan’s testimony was relevant and reliable. The crime scene
photographs were introduced into evidence during the testimony of Allan Weeks, one of the
investigators who photographed the crime scene. By questioning Dr. Harlan about the photographs,
the State sought to introduce evidence that the victim had been shot in his bedroom. Dr. Harlan
testified in great detail about the method by which he identified the substance on the bed as brain
tissue, stating that he was able to identify the portion of cerebral cortex by the series of ridges and

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valleys of which it was composed. When asked about the red substance on the bathroom door and
the window blinds, Dr. Harlan’s testimony was limited to the fact that the substance was consistent
with blood spatter. Dr. Harlan acknowledged that he was unable to determine the species of the
brain tissue and that neither the brain tissue nor the blood was submitted for analysis. We conclude
that the trial court did not abuse its discretion when it allowed Dr. Harlan to testify as an expert for
the purpose of identifying blood spatter and brain tissue in crime scene photographs.

E. Jury Instructions

Finally, the appellant challenges the trial court’s charge to the jury. A defendant has a
“constitutional right to a correct and complete charge of the law.” State v. Teel, 793 S.W.2d 236,
249 (Tenn. 1990). In determining whether jury instructions are erroneous, this court must review
the charge in its entirety and only invalidate the charge if, when read as a whole, it fails to fairly
submit the legal issues or misleads the jury as to the applicable law. State v. Vann, 976 S.W.2d 93,
101 (Tenn. 1998). When the charge correctly, fully, and fairly sets forth the applicable law, it is not
error for the trial court to refuse to give a special instruction requested by a party. State v. Brown,
53 S.W.3d 264, 281 (Tenn. Crim. App. 2000).

The appellant first contends that the trial court failed to instruct the jury on the presumption
of second degree murder. “[A]lleged omissions in the charge must be brought to the trial judge’s
attention at trial or be regarded as waived.” State v. Haynes, 720 S.W.2d 76, 84-85 (Tenn. Crim.
App. 1986). However, there is no requirement for an objection to the inclusion of an erroneous
instruction or otherwise inaccurate charge. State v. Lynn, 924 S.W.2d 892, 898-99 (Tenn. 1996).
As the State correctly notes, the appellant did not object to the omission of the instruction at trial.
Moreover, the appellant did not raise the issue in his motion for new trial, precluding consideration
of the issue on appeal. Tenn. R. App. P. 3(e). Regardless, the issue is without merit.

In ruling on a similar request for a jury instruction on the presumption of second degree
murder, this court has previously stated,

[W]e acknowledge our supreme court’s observation in State v.
Brown, 836 S.W.2d 530, 543 (Tenn. 1992), that “[t]he law in
Tennessee has long recognized that once [a] homicide has been
established, it is presumed to be murder in the second degree.”
However, the import of this presumption is that “[t]he state bears the
burden of proof on the issue of premeditation . . . sufficient to elevate
the offense to first-degree murder.” Id.; see also State v. Hall, 8
S.W.3d 593, 599 (Tenn. 1999); State v. Schafer, 973 S.W.2d 269, 274
(Tenn. Crim. App. 1997). Therefore, when a trial court’s charge
omits the language of “presumption” but otherwise clearly informs
the jury that the State carries the burden of proving each and every
element of first degree premeditated murder beyond a reasonable

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 doubt and also includes a correct and complete instruction on second
degree murder, a criminal defendant is not entitled to relief.

State v. Coulter, 67 S.W.3d 3, 68 (Tenn. Crim. App. 2001) (citations omitted); see also State v.
Robert L. Leach, Jr., No. M2001-01421-CCA-R3-DD, 2003 WL 22002630, at * 17 (Tenn. Crim.
App. at Nashville, Aug. 25, 2003).

In the instant case, the trial court did not charge the jury on the presumption of second degree
murder. However, the trial court informed the jury that the State was required to prove each and
every element of first degree murder beyond a reasonable doubt. The trial court also provided a
complete and accurate instruction on the lesser-included offense of second degree murder.
Accordingly, we conclude that the substance of the presumption of second degree murder was
addressed in the trial court’s charge to the jury. The appellant is not entitled to relief on this issue.

Next, the appellant contends that the trial court failed to instruct the jury that if the State
failed to prove the elements of first degree murder or the lesser-included offenses of first degree
murder beyond a reasonable doubt, the jury should return a verdict of not guilty. The State argues
that the appellant has waived this issue for failure to cite authority in support of his contention. See
Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). We agree with the State. Regardless, this
issue is also without merit.

Considering the jury charge as a whole, we conclude that the instructions given by the trial
court were a complete and correct charge of the applicable law regarding the State’s burden. In its
charge to the jury, the trial court instructed the jury on the elements of first degree murder and its
lesser-included offenses, which included second degree murder, voluntary manslaughter, reckless
homicide, and criminally negligent homicide. The trial court also defined reasonable doubt and
explained that “proof beyond a reasonable doubt [was] required as to every element or proposition
of proof which constitutes a charge.”

Contrary to the appellant’s contention, the trial court instructed the jury as follows:

Now, ladies and gentlemen, if you find the state has proven the
defendant’s guilt beyond a reasonable doubt on a charge in this case
then you should find him guilty on that charge. On the other hand, if
you find the state has not proven guilty beyond a reasonable doubt on
a charge or count, then you must find the defendant not guilty on
those charges.

The trial court further instructed the jury:

[S]hould you have a reasonable doubt as to the Defendant’s guilt of
first degree murder, then you will consider the lesser included
offenses of second degree murder, voluntary manslaughter, reckless

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 homicide, and criminally negligent homicide . . . -- if you have a
reasonable doubt as to first degree murder then you’re going to go
down a ladder considering the next most serious offense. The next
one is second degree murder. . . . [Y]ou first decide whether you think
the state has met the burden beyond a reasonable doubt and if you
find that it did then you’d put guilty there. If you did not find they
proved it beyond a reasonable doubt, of course, you put not guilty.

We conclude that the trial court properly charged the jury regarding the State’s burden of proof. This
issue is without merit.

III. Conclusion

Finding no reversible error, we affirm the judgment of the trial court.

___________________________________
NORMA McGEE OGLE, JUDGE

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