State v. Richardson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

APRIL 1997 SESSION
FILED
August 13, 1998

Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
)
Appellee, ) No. 02C01-9605-CR-00140
)
) Shelby County
v. )
) Honorable Chris Craft, Judge
)
ANTHONY E. RICHARDSON, ) (First degree murder)
)
Appellant. )

For the Appellant: For the Appellee:

Joseph S. Ozment Charles W. Burson
217 Exchange Avenue Attorney General of Tennessee
Memphis, TN 38105 and
Deborah A. Tullis
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493

John W. Pierotti, Jr.
District Attorney General
and
Jerry R. Kitchen
Assistant District Attorney General
201 Poplar Avenue
Memphis, TN 38103

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge
 OPINION

The defendant, Anthony E. Richardson, appeals as of right from his

conviction by a jury in the Shelby County Criminal Court for first degree murder. The

trial court sentenced the defendant to life imprisonment with the possibility of parole.

On appeal, the defendant presents the following issues:

(1) whether the evidence is sufficient to support the first
degree murder conviction;

(2) whether the trial court erred by not declaring a
mistrial when the prosecutor made biblical references during
his closing argument; and

(3) whether the trial court properly charged the jury with
the flight instruction.

We hold that the evidence is sufficient and that the trial court did not commit reversible

error. We affirm the judgment of the trial court.

This case involves the June 1, 1994, shooting death of Terry Gilliard at

the LeMoyne Gardens Apartments in Memphis, Tennessee. The victim was shot six

times by two individuals. The defendant and Earline Jackson were charged with first

degree murder. Before the defendant's trial, Earline Jackson pled guilty to shooting the

victim, but the record does not reflect the particular offense to which she pled.

Robert Flynn, the victim’s first cousin, testified that he saw the defendant

and the victim arguing on the day of the shooting. Flynn stated that he could not hear

what the two were arguing about. He testified that after the defendant and the victim

stopped arguing, he and the victim walked away. Flynn testified that a few minutes

later, they ran into the defendant. He said that the defendant and the victim started

scuffling and swearing at each other for two or three minutes, but neither one hit the

other. He testified that the defendant ran off, shouting that he would be back.

2
 Mr. Flynn testified that he and the victim started walking to his house and

went between two buildings. He said that the defendant jumped out with a gun. Flynn

said that he and the victim ran in different directions and that the defendant chased the

victim. Flynn testified that although he did not see the victim get shot, he saw the

defendant point the gun at the victim and heard a shot fired.

Dorothy Jackson testified that she was sitting under a tree with Rose

Smart, who is the defendant's aunt, and a woman named Linda. She said that Robert

Flynn, the victim, Lee-Lee, who was a friend of the victim, and a young boy came by the

tree. She said that Rose tried to play with the boy, but he did not want to play. Ms.

Jackson testified that the victim said to the boy, "Tell that bitch don't play with you."

She said that the defendant came to her defense and that the defendant argued with

the victim. Ms. Jackson said that she told them not to argue and that Flynn, the victim,

Lee-Lee, and the young boy went one way and the defendant went the other.

Ms. Jackson testified that the victim, Flynn, and Lee-Lee returned. She

said that the victim asked Rose where the defendant was, but none of the women

answered. She testified that she saw the victim go in the same direction that the

defendant had gone earlier. She said that about five or ten minutes later, she saw the

defendant running from the direction that the victim, Flynn, and Lee-Lee had gone. She

said that a few minutes later, the defendant ran back, this time carrying a pistol. Ms.

Jackson said that she heard several gunshots and that she and Linda took the children

into the house.

Ms. Jackson testified that she went to where she heard the gunshots and

that she saw the victim lying on the ground, bleeding. She said that as she went toward

him, Earline Jackson came out and told Lee-Lee to get back. She testified that Earline

Jackson fired one shot at the victim from behind a concrete wall, walked to within ten or

3
fifteen feet of him, and fired twice more. She said that by this time, Lee-Lee had

walked away. She testified that neither the victim nor Lee-Lee had a gun but that when

Flynn came back after the shooting, he had a gun.

Brenda Mack testified that she witnessed the shooting while she was

leaning out her kitchen window. She said that she was speaking to Linda, who was on

the grass below her second floor apartment. She testified that she saw the defendant

shoot the victim once as the victim was running away from the defendant. She testified

that after firing the first shot, the defendant ran away, came back and cursed the victim,

and then shot the victim a second time as he lay on the ground.

Ms. Mack testified that after the defendant ran off the second time, Earline

Jackson came out of her apartment, locked her door, walked down some steps, and

fired a shot at the victim. She said that the first shot missed. She testified that Earline

Jackson moved closer to the victim and shot him twice, once in the leg and again in the

back. Ms. Mack said that the victim was begging for his life.

Frankie Sanford, a thirteen-year-old girl from the neighborhood, testified

that she was riding her bicycle when she saw the defendant shoot the victim in the

back. She said that she saw the defendant shoot once and then she saw a woman

shoot the victim.

Teresa Taylor testified that she was in her kitchen when she heard a

noise outside. She said that she looked out her kitchen window and saw the defendant

chasing and cursing the victim. She testified that the victim got caught in her

clothesline at about the same time that the defendant shot the victim in the back. Ms.

Taylor stated that the defendant shot the victim two more times before he ran away.

Ms. Taylor testified that she saw Dorothy Jackson and Lee-Lee approach the victim

4
after he had been shot. She said that Earline Jackson came out and told Lee-Lee to

get away. She stated that neither the victim nor Lee-Lee had a gun.

Nicole McKinley, the victim's girlfriend, testified that on the day before the

shooting, she was driving the victim's car when she had an accident. She said that she

was returning to her apartment when the car she was driving hit a yellow Cadillac

belonging to Earline Jackson's husband, Vernon. She testified that Vernon and Earline

Jackson had just left the car when she hit it. Ms. McKinley testified that when the victim

got home later that evening, he went to talk to Vernon and Earline Jackson. She said

that he returned about ten minutes later and said everything was resolved.

Ms. McKinley testified that at the time of the shooting, she was hanging

clothes on a line in her backyard. She testified that she heard someone say,

"Somebody been hit," before she saw the defendant chasing the victim and before she

saw and heard the defendant shooting at the victim. She said that the defendant shot

the victim three or four times, the first from about twenty feet and the others from about

twelve feet from the victim. Ms. McKinley testified that Earline Jackson then shot the

victim, got into her car, and left. Ms. McKinley testified that after Earline Jackson left,

she went to the victim, who was trying to say something but could not. Although Ms.

McKinley testified that she did not see Lee-Lee either during or after the shooting, she

stated that she had seen Lee-Lee and Robert Flynn with the victim earlier in the day.

Memphis Police Officer William Harsley testified that he had tagged a gun

found in the yellow Cadillac. Officer Harsley said that the gun contained two live rounds

and four spent casings.

Dr. O'Brien Cleary Smith, Assistant Medical Examiner for Shelby County,

testified that he performed an autopsy on the victim. He stated that he determined that

5
the victim suffered six gunshot wounds, and he identified each one by a letter, A

through F. Dr. Smith said gunshot wound A entered the front of the neck, went through

the victim's windpipe, and fractured a portion of the victim's spine. He said that this

wound, by itself, would have been fatal to the victim.

Dr. Smith testified that gunshot wound B was a superficial wound that

entered at the front of the neck. He stated that gunshot wound C entered the victim's

back. Dr. Smith said that gunshot wound D, by itself, could have been fatal to the

victim. He said that it entered the victim's lower back, went through one kidney, and

punctured his abdominal aorta. Dr. Smith testified gunshot wound E was a grazing

wound to the victim's upper arm. He said that gunshot wound F was a flesh wound and

the bullet had entered the back side of the victim's leg and traveled up his thigh.

Dr. Smith testified that gunshot wounds A and D could have been lethal,

but it was possible for a victim to survive either one with rapid medical intervention. He

could not say whether either wound by itself was certain to be fatal. He testified that

the cause of death was multiple gunshot wounds. He said that he had no way of

determining which wound was the actual cause of death of the victim.

Dr. Smith testified that he recovered five bullets from the body, one for

each wound except gunshot wound E, which was the grazing wound. He said that the

bullets were two different calibers. The parties stipulated that the bullet that caused

gunshot wound D was from the revolver recovered from the yellow Cadillac and the

other four bullets were from another gun that was unknown.

Rose Smart testified that on the day of the shooting she was outside with

Dorothy Jackson and a lady named Montgomery when the victim, Robert Flynn, and a

young boy came by. She said that as they passed by, she spoke to the boy, and the

6
victim told the boy, "Tell that bitch don't speak to you no more." She testified that she

said, "You can't tell me what to do," to which the victim replied, "You keep on talking,

I'm going to dump you on your head like I dumped that bitch around there." She

testified that the defendant had approached them by this time and told the victim, "You

ain't fixing to keep on talking to my auntie like that." She said that the victim and Flynn

turned around and came towards the defendant. She testified that she told the

defendant to leave, and he did. She stated that the victim and Flynn also left, but in the

opposite direction.

Ms. Smart testified that the victim and Flynn returned and that the victim

asked her where the defendant was. She said that the victim said he would see her

later and then he left with Flynn, heading the same way that the defendant had left

earlier. She testified that she saw the defendant come back from that direction and he

was dusty. She said she saw the victim, Flynn, and Lee-Lee following the defendant.

She testified that the defendant then turned and started shooting. She said that at that

point, she ran into a neighbor's house.

Ms. Smart testified that after the shooting stopped, she saw Flynn and

Lee-Lee kneeling near the victim. She said that Flynn had two guns, and he passed

one of them to Lee-Lee. She testified that she did not see Nicole McKinley, but she

heard someone shouting, "Go get Nicole."

Dorothy Jackson testified that she saw Robert Flynn with a gun. She said

that she saw Flynn about five minutes after the defendant shot the victim and while

Earline Jackson was getting into the yellow Cadillac. She testified that he came back

running with a gun in his hand. She said Flynn never got near the body but was pacing

back and forth. She said that Lee-Lee was also there, but she did not see him touch

the victim.

7
 The defendant testified that on the day of the shooting, he was outside

with Rose Smart and her friends. He said that the victim came by with Robert Flynn,

Lee-Lee, and a young boy. The defendant testified that he argued with the victim, but

he left when his aunt told him to leave. He testified that he went to pick up a pair of

short pants, and when he returned, he passed by the victim, Flynn, and Lee-Lee. He

said that the victim swung at him, and the two fought.

The defendant testified that after the fight was over and as he was

leaving, the victim threatened him. He said that he was scared and that he went to get

his gun, which he had hidden nearby. He stated that he returned and saw Lee-Lee

pass something to either the victim or Flynn. He testified that although he did not see

any of the others with a gun, he shot because he feared for his life. He denied killing

the victim. He testified that he shot in self-defense. The defendant testified that he did

not shoot the victim in the back, and the victim was still standing after he shot him.

The defendant testified that he ran away after he shot the victim because

he was scared. He stated that he left because he heard other shots and thought that

the victim or his friends were going to come after him. He said that he threw the gun

away after the shooting. He said that two hours after the shooting, he found out that

the victim had died. The defendant testified that he did not wait around for the police to

show up after the shooting because he was afraid that if he remained at the scene with

a gun, he might be shot or get beaten. The defendant stated that five days after the

shooting, he voluntarily turned himself in to the police.

The defendant testified that he had a gun to protect himself. He said that

he lived in an area where others would come to shoot or to harm the residents. He

testified that he had witnessed violence and had seen numerous murders in the area

where he lived. He said that he bought his first gun when he was twelve years old.

8
 Verlene Reynolds testified that she was in her house when she heard

shots. She said that she ran outside and saw Earline Jackson shoot the victim. She

stated that after Earline Jackson left, she saw Lee-Lee. She testified that Lee-Lee had

a gun and that she told Lee-Lee that he better get rid of it before the police got there.

She said that the ambulance arrived about thirty-five to forty minutes after the shooting.

I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to convict him

because his actions were not the cause of the victim's death. He argues that the action

of Earline Jackson was the intervening cause. He asserts that gunshot wound A was

not an absolutely fatal wound and that the victim could have survived if not for gunshot

wound D inflicted by Earline Jackson. He also asserts that Earline Jackson's actions

were not foreseeable and were not events that would naturally flow from his conduct.

The state contends that there is sufficient evidence that the defendant fatally shot the

victim.

Our standard of review when the sufficiency of the evidence is questioned

on appeal 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, 61 L. Ed. 2d 560 (1979). This means that we may not reweigh the

evidence, but must presume that the jury has resolved all conflicts in the testimony and

drawn all reasonable inferences from the evidence in favor of the state. See State v.

Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Under this standard, the state is entitled to the strongest legitimate view

of the evidence and all reasonable inferences which may be drawn from it. Cabbage,

571 S.W.2d at 835. That is, the testimony favoring the state is accredited and all

9
conflicts are resolved in favor of the state's theory. See State v. Williams, 657 S.W.2d

405, 410 (Tenn. 1983); State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).

In order to sustain a criminal conviction for first degree murder, the

evidence must establish that the defendant's actions or conduct caused the victim's

death. Generally, this is established by showing that the victim's death was the natural

and probable result of the defendant's unlawful act. See State v. Barnes, 703 S.W.2d

611, 614-15 (Tenn. 1985); State v. Ruane, 912 S.W.2d 766, 774 (Tenn. Crim. App.

1995). Our court has held that in order to convict a defendant, it is not necessary that

the defendant's act be the sole cause of death nor the most immediate cause of death.

State v. Roberson, 644 S.W.2d 696, 698 (Tenn. Crim. App. 1982). "It is only necessary

that the defendant unlawfully contributed to the death of the deceased." Id.

In Roberson, the defendant was convicted of involuntary manslaughter

when the ninety-year-old man that he beat during a robbery died three weeks after the

beating. Id. at 697-98. The treating physician stated that the immediate cause of death

was bronchial pneumonia, which the victim contracted while in the hospital. Id. The

doctor testified that but for the beating, the victim would not have died of pneumonia.

Id. This court held that the "victim's death was the natural and probable result of the

defendant's unlawful acts." Id. In Barnes, our supreme court noted the holding in

Roberson in determining that the death of a ninety-one-year-old woman, who died of

complications from pneumonia, was directly caused by the man who beat her. Barnes,

703 S.W.2d at 615.

In the light most favorable to the state, the evidence shows that the

defendant caused the death of the victim. The evidence shows through the assistant

medical examiner's testimony that the gunshot wound attributed to the defendant was

10
fatal. The evidence further showed that although there was no way of determining

which wound was the actual cause of death, the assistant medical examiner essentially

attributed death to both gunshots. As the Roberson court noted, the defendant's act

need not be the sole cause of death and a conviction will be upheld if the defendant

unlawfully contributed to the victim's death. 644 S.W.2d at 698. Under these

circumstances, we conclude that a rational trier of fact could find beyond a reasonable

doubt that the defendant caused the death of the victim and was guilty of first degree

murder.

II. BIBLICAL REFERENCES

The defendant contends that the trial court erred by not declaring a

mistrial when the prosecutor cited the Bible in its closing argument. The defendant

argues that the biblical references were improper and prejudicial. The state contends

that the biblical references do not constitute reversible error unless they clearly affected

the jury's verdict.

During the state's rebuttal closing argument, the following occurred:

[PROSECUTOR KITCHEN'S CLOSING]: You know,
the judge is going to charge you the law about flight. But the
good book, ladies and gentlemen, also talks about
someone's flight, the flight of a person.

[DEFENSE COUNSEL]: Your Honor, I'm going to
object and ask to approach the bench.

THE COURT: All right, sir.

[DEFENSE COUNSEL]: I don't know what passage he
is about to read from the Bible, Your Honor, but I would
suggest that saying that God's law should convict this man or
if he is implying anything of that nature, that the good book
says this man, if he runs he is guilty, or the good book says
that he killed this man, I think that is really pushing it.

That is not -- the law is not the Bible, Your Honor. The
law is the law the state of Tennessee has passed by the
Tennessee legislature, and I would suggest that he is treading
on ground that is improper and that he is pulling on their
religious beliefs as to whether or not to convict this man. And

11
I would ask that he put the Bible away and not be allowed to
do that.

THE COURT: Mr. Kitchen.

MR. KITCHEN: Your Honor, I am commenting on the
evidence, and I am bringing in a passage that states that "The
wicked will flee when no man pursueth" --

[DEFENSE COUNSEL]: Your Honor.

MR. KITCHEN: -- "and the righteous will stand as bold
as a lion." That is a comment on flight. That's putting it in
another way. That's all I'm doing --

[DEFENSE COUNSEL]: Your Honor, it's saying --

MR. KITCHEN: -- and I have a right to comment on the
evidence.

[DEFENSE COUNSEL]: -- saying that the Bible, God's
word, God's book says that if you flee you are the wicked, Your
Honor, that is improper.

THE COURT: Let me say this. I think one of the
problems, Mr. Kitchen, is that some of the jurors may think that
the law in the scripture is higher than my law. And I agree with
[defense counsel] that I think we might -- we are treading
reversible grounds here. You can discuss it with them, but I'd
ask you not to read from the Bible as authority.

...

[MR. KITCHEN'S CLOSING]: Ladies and gentlemen,
the wicked will flee --

[DEFENSE COUNSEL]: Your Honor, may I approach
the bench?

THE COURT: Yes, sir. Excuse me, ladies and
gentlemen.

[DEFENSE COUNSEL]: Your Honor, I'm going to move
for a mistrial. They know he got that directly out of that Bible.
He went back and said exactly what he was going to say.
Anybody that has had any reading of the Bible knows that's in
there. They saw him put the Bible down. They saw him
reading it before he said it, Your Honor. I call for -- I would ask
for a mistrial at this time.

THE COURT: That will be denied.

[DEFENSE COUNSEL]: Thank you.

THE COURT [ADDRESSING THE JURY]: Ladies and
gentlemen, just so you will understand what we are doing here,

12
 when I told you that the only law that you could get would be
from the Court's instructions, that also means that you cannot
use the Bible or the Talmud or the Torah or any kind of holy
work as law. Regardless of this Court's opinion as to scripture
or whatever else, we can't, since we have separation of church
and state in here, we have to try these cases on the law that is
established by courts rather than law established by holy
works.

Mr. Kitchen can comment to you on what he believes is
true about the world and nature and in the proof. But you are
not in any way to accept some other work as higher authority
for purposes of deciding this case only, than the law the Court
is going to give you.

All right. Mr. Kitchen, you may proceed.

[MR. KITCHEN'S CLOSING]: Ladies and gentlemen,
the judge will charge you about flight which simply says to a
degree that if someone leaves the scene of an incident that
you can take that into consideration as to an inference of the
person's guilt.

"The wicked will flee when no man pursueth, but the
righteous will stand as bold as a lion." What does that mean?

What are you hiding? Why did you throw away the
gun? Why did you hide out for five days? Get your story
straight? See if anybody was going to identify you? Maybe no
one is going to talk because everyone will be too scared
because we live in such a dangerous community.

Our supreme court has recognized that closing argument is a valuable

privilege for both the state and the defense and that counsel is afforded wide latitude in

presenting final argument to the jury. See State v. Cribbs, 967 S.W.2d 773, 783 (Tenn.

1998); State v. Cone, 665 S.W.2d 87, 94 (Tenn. 1984). When a prosecutor's argument

goes beyond the latitude afforded, the test for determining if reversal is required is

whether the impropriety "affected the verdict to the prejudice of the defendant."

Harrington v. State, 215 Tenn. 338, 340, 385 S.W.2d 758, 759 (1965). Factors relevant

to that determination include:

1. The conduct complained of viewed in context and in light of
the facts and circumstances of the case.

2. The curative measures undertaken by the court and the
prosecution.

13
 3. The intent of the prosecutor in making the improper
statement.

4. The cumulative effect of the improper conduct and any
other errors in the record.

5. The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

In Cribbs, the defendant argued that it was prosecutorial misconduct for

the prosecutor to use the passage, "whatever a man sows, so shall he reap," in his

argument during the sentencing phase. 967 S.W .2d at 783. The court stated, "It is

well-established in Tennessee law that references to biblical passages or religious law

during the course of a criminal trial are inappropriate." Id. at 784. However, the court

concluded that the biblical references did not affect the verdict to the prejudice of the

defendant. Id.

In this case, the state wanted to put the flight instruction into perspective

for the jury. The evidence showed that the defendant left the scene after the shooting.

The defendant testified as to why he left the scene. Without the biblical reference, the

state could properly comment on this evidence and the significance of flight. We note

that the trial court gave a curative instruction to the jury but still permitted the state to

use the biblical passage. We also note that there was overwhelming evidence of the

defendant's guilt. We conclude that the improper argument did not affect the verdict to

the substantive prejudice of the defendant.

We must note, though, that this court has previously reviewed the same

prosecutor for using the Bible and making biblical references during closing argument.

While discussing flight during closing argument in State v. Alfonzo E. Anderson and

Barry Woodley, No. 02C01-9419-CR-00243, Shelby County (Tenn. Crim. App. Sept.

20, 1995), app. denied as to Anderson (Tenn. May 6, 1996), the prosecutor quoted

14
from the Bible and stated, "This is the real law book." Slip op. at 8. After objection, the

trial court instructed the jury that this was just closing argument and that they were to

consider only what they heard in the case. Id. Following the trial judge's admonition,

the prosecutor made another brief reference to the same biblical passage. Id. The

Anderson court held that the prosecutor's conduct did not constitute reversible error

because the prosecutor's comments were limited in scope, the trial court gave a

curative instruction, and the defendant had not shown how he was prejudiced by the

comments.

In this respect, we hasten to add that the fact that we hold the error to be

harmless in the present case should not be taken as precedent for similar improper

argument in the future. We note that Anderson was decided approximately two months

before the trial in the present case began. Our supreme court has stated that “it is

inappropriate for the appellate courts to preside over the creation of a body of ‘harmless

error law’” arising from the continued failure of a trial court to meet procedural

requirements. State v. Gorman, 628 S.W.2d 739, 740 (Tenn. 1982). We believe it to

be similarly inappropriate for a continuing practice of prosecutors using biblical

references during trial. At some point, the need to preserve the integrity of the judicial

process will require that the continued practice not be subject to the harmless error rule.

III. FLIGHT INSTRUCTION

The defendant contends that the rule allowing the jury to hear an

instruction on flight should be reconsidered. He argues that a flight instruction is unduly

prejudicial considering the defendant's age (sixteen years old) and immaturity. Also, he

argues that public policy should favor individuals voluntarily turning themselves in to the

police, particularly when they do so after they have time to reflect on their actions and

only a short time has elapsed after the crime was committed. The jury was charged

with the following instruction on flight:

15
 The flight of a person accused of a crime is a
circumstance which, when considered together with all the
facts of the case, may justify an inference of guilt. Flight is the
voluntary withdrawal of oneself for the purpose of evading
arrest or prosecution for the crime charged. Whether the
evidence presented proves beyond a reasonable doubt that
the defendant fled is a question for your determination.

The law makes no nice or refined distinction as to the
manner or method of a flight; it may be open, or it may be a
concealment within the jurisdiction. However, it takes both a
leaving the scene of the difficulty and a subsequent hiding out,
evasion, or concealment in the community, or a leaving of the
community for parts unknown, to constitute flight.

If flight is proved, the fact of flight alone does not allow
you to find that the defendant is guilty of the crime alleged.
However, since flight by a defendant may be caused by a
consciousness of guilt, you may consider the fact of flight, if
flight is so proven, together with all of the other evidence when
you decide the guilt or innocence of the defendant. On the
other hand, an entirely innocent person may take flight and
such flight may be explained by proof offered, or by the facts
and circumstances of the case.

Whether there was flight by the defendant, the reasons
for it, and the weight to be given to it, are questions for you to
determine.

In State v. Smith, 893 S.W.2d 908 (Tenn. 1994), our supreme court

reviewed the effect of a flight instruction when the defendant abandoned a stolen car

filled with stolen goods and remained free for one year. Id. at 918. The defendant

murdered an elderly woman while burglarizing her home. Id. at 911-12. As the

defendant was leaving, the car he took from the victim became stuck in the mud near

the victim's house. Id. at 911. A police officer, responding to another call, noticed the

car as he drove by the area. Id. After the officer returned from the call, he checked the

car and found that the engine was still warm. Id. Our supreme court held that the facts

led to a reasonable inference that the defendant saw the police cruiser drive by with its

lights flashing and abandoned the car stuck in the mud. Id. at 918. The court held that

there was also evidence that the defendant concealed himself. Id. Although not

holding that the flight instruction given was error, the court addressed the issue of the

effect of a flight instruction given in error:

16
 Even if an instruction on flight should not have been
given, any error is not reversible. The Court instructed the jury
that whether the Defendant fled was a question solely for their
decision, that they need not infer flight, and that flight alone
was insufficient to prove guilt. This, coupled with the
overwhelming proof of Defendant's guilt, renders any error as
to the flight instruction harmless.

Id.

In the present case, the evidence shows that after the defendant shot the

victim, he left the scene. The evidence also shows that two hours after the shooting,

the defendant knew the victim had died, but he still remained hidden in the community

for five days. We conclude that a flight instruction was warranted.

The defendant argues that the facts and circumstances in this case are

such that the flight instruction should not have been given. He asserts that public policy

should not penalize those that voluntarily turn themselves in to the police. In this case,

the flight instruction pointed out to the jury that innocent persons may take flight, and it

was up to the jury to determine whether there was flight, the reasons for the flight, and

the weight to be given to it. Just as the instruction allowed an inference of guilt from

flight, it also instructed that the evidence, facts, and circumstances may show that an

innocent person may take flight.

The evidence shows that the defendant was young, living in a dangerous

neighborhood, and was scared. The Smith court held that it was up to the jury to

determine the meaning and the weight of this type of evidence. 893 S.W.2d at 918.

We conclude that the flight instruction properly charged the jury with their duty and did

not unduly prejudice the defendant.

In consideration of the foregoing and the record as a whole, we affirm the

defendant's conviction for first degree murder.

17
 ______________________________
Joseph M. Tipton, Judge

CONCUR:

___________________________
David G. Hayes, Judge

(Not Participating)
William M. Barker, Judge

18