FILED                       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                              AT NASHVILLE
March 25, 2008
                                         SEPTEMBER 1995 SESSION
Cecil Crowson, Jr.
 Appellate Court Clerk




                 STATE OF TENNESSEE,              )
                                                  )    C.C.A. NO. 01C01-9506-CC-00170
                            Appellee,             )
                                                  )    GRUNDY COUNTY
                 VS.                              )
                                                  )    HON. THOMAS W. GRAHAM,
                 CHARLES EDWARD MEEKS,            )    JUDGE
                                                  )
                            Appellant.            )    (First-Degree Murder)



                 FOR THE APPELLANT:                    FOR THE APPELLEE:


                 DALE M. QUILLEN                       CHARLES W. BURSON
                 MICHAEL J. FLANAGAN                   Attorney General & Reporter
                 95 White Bridge Road
                 Suite 208                             ELLEN H. POLLACK
                 Nashville, TN 37205                   Asst. Attorney General
                                                       450 James Robertson Pkwy.
                                                       Nashville, TN 37243-0493




                 OPINION FILED:____________________



                 AFFIRMED


                 JOHN H. PEAY,
                 Judge
                                        O P I N I ON



              The defendant, Charles Edward Meeks, was indicted for first-degree

murder. The jury found him guilty as charged and he was sentenced to life imprisonment.

He has appealed as of right, raising for review the trial court's instructions to the jury and

the State's conduct during closing argument. We find the defendant's issues are without

merit and affirm the judgment of the trial court.



              The defendant first challenges the trial court's refusal to instruct the jury on

the defense of involuntary intoxication. He next complains that he was denied a fair trial

because of improper closing argument by the State and the trial court's subsequent

failure to admonish the State and give a curative instruction.



              In January, 1994, the defendant was shot in the forehead with a .22 caliber

bullet. The bullet lodged in his right frontal sinus and remained there for several months.

On February 19, 1994, the defendant was admitted to the hospital to have an abscess

treated that had formed around the wound. He was discharged from the hospital on

Wednesday, February 23, 1994, and was given two Percocets and a prescription for

antibiotics. Percocet is a Schedule II drug used for moderate pain.



              On Saturday, February 26 ,1994, the defendant was suffering from a severe

headache. Rose Meeks, the defendant's ex-wife, called a doctor at the hospital where

the defendant had been treated, who prescribed Percocet for the defendant's pain. At

about 4:00 p.m., Ms. Meeks drove the defendant to the hospital where she picked up the

prescription. Ms. Meeks then drove to a pharmacy and had the prescription filled.

Between 6:00 and 8:30 p.m., she gave the paper bag containing the prescription bottle

to the defendant, who immediately took "some" of the drug. On the way home from the


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hospital, Ms. Meeks stopped at a liquor store and the defendant purchased some liquor.



              After arriving home at approximately 10:30 p.m., the defendant prepared

a mixed drink for himself and Ms. Meeks. He also took some more Percocet. The

defendant testified that he had taken a total of four to five Percocets that day. Shortly

after they arrived home, Ms. Meeks invited Ann Coffelt and the victim, Charles Coffelt,

over for a visit. Ann Coffelt is Ms. Meeks' sister. Upon the Coffelts' arrival between 11:00

and 11:30 p.m., the defendant mixed himself another drink and also fixed one for the

victim. The defendant testified that he had had no other alcohol that day.



              After visiting for a few minutes, the defendant and the victim began arguing.

Although the exact sequence of events was disputed at trial, the defendant testified that

the victim had struck him with his fist "right between the eyes." He testified that, after

hitting him, the victim "came back at me again with another right," at which point the

defendant produced a pistol and shot the victim twice.            Although the defendant

subsequently administered CPR to the victim, Mr. Coffelt died a short time later. The

defendant was taken into police custody at approximately 11:45 p.m., and gave a sworn

statement at approximately 2:00 a.m. on February 27, 1994. The TBI agent who took the

statement testified that the defendant was "very nervous" but "sober."



              The defendant pled not guilty to first-degree murder and relied on self-

defense. At trial, the defendant's counsel advised the court that he would be offering

proof on the issue of voluntary intoxication. At the conclusion of closing arguments,

defense counsel requested a jury instruction on the defense of involuntary intoxication.

The trial court denied this request, finding that there was "not sufficient evidence in the

record to warrant that charge." The trial court did, however, charge the jury with the law

on voluntary intoxication. The defendant now asks this Court to find the trial court in error


                                             3
for refusing to give the requested charge on involuntary intoxication.



              T.C.A. § 39-11-203 provides that "[t]he issue of the existence of a defense

is not submitted to the jury unless it is fairly raised by the proof." Where evidence is

admitted which does fairly raise a defense, the appropriate jury instruction is required.

State v. Phipps, 883 S.W.2d 138 (Tenn. Crim. App. 1994). Thus, the question before this

Court is whether the testimony given at trial tended to establish the defense of involuntary

intoxication. We hold that it did not and that the trial court was correct in refusing to give

the requested charge.



              The defense of involuntary intoxication is codified at T.C.A. § 39-11-503(c).

In pertinent part that statute provides that "involuntary intoxication is a defense to

prosecution if, as a result of the involuntary intoxication, the person lacked substantial

capacity either to appreciate the wrongfulness of the person's conduct or to conform that

conduct to the requirements of the law allegedly violated." Thus, this defense has three

distinct elements:


              (1)     the defendant must be intoxicated;

              (2)     the intoxication must have occurred involuntarily; and

              (3)   the intoxication must be the cause of the defendant's lack of
              substantial capacity to either:

                      (a)    appreciate the wrongfulness of his or her conduct, or

                      (b)    conform his or her conduct to the law's requirements.



               The element of intoxication is defined as a "disturbance of mental or

physical capacity resulting from the introduction of any substance into the body." T.C.A.

§ 39-11-503(d)(1). The defendant testified that, on the day he shot the victim, he had

introduced both alcohol and Percocet into his body. The surgical resident who treated


                                              4
 the defendant's abscess testified that the side effects of Percocet include light-

 headedness, dizziness and sleepiness, and that it produces results similar to

 intoxication. He further testified that alcohol would magnify the effects of Percocet. The

 defendant testified that he had gotten "a little dizzy" right before the victim allegedly hit

 him. This testimony was sufficient proof to support a finding by the jury that the first

 element of the defense was satisfied.



                      The second element requires that the intoxication be found "not voluntary."

 T.C.A. § 39-11-503(d)(2). Voluntary intoxication is defined as "intoxication caused by

 a substance that the person knowingly introduced into the person's body, the tendency

 of which to cause intoxication was known or ought to have been known." T.C.A.

 § 39-11-503(d)(3). In order to be involuntary, then, the substance must have been

 introduced either unknowingly, or without knowledge or reason to be aware of the

 substance's intoxicating effects. There is no proof in the record, however, that the

 defendant lacked the requisite knowledge in either respect. The record makes it clear

 that the defendant understood he was ingesting a painkilling medication and, later,

 drinking alcohol. Thus, the defendant's argument to this Court rests largely on the

 notion that, even if he was deliberately combining a painkilling medication and alcohol,

 he did not know and had no reason to know of the intoxicating effect.



                      However, the record is bereft of any testimony by the defendant that he

 was ignorant of Percocet's side effects. He would have this Court infer that he knew

 nothing about the side effects because of his inability to read the label on the

 prescription bottle.1 Yet, the record reveals that the defendant had had the opportunity

 to be told of Percocet's side effects when he was given some upon his discharge from



          1
              The Defendant testified that, although he had com pleted a portion of third grade, he was
illiterate.

                                                        5
the hospital. Those Percocets also afforded him the opportunity to discover the side

effects for himself by direct experience. The defendant is attempting to establish his

level of knowledge (or lack thereof) for the first time on appeal. This he cannot do, and

his failure to adduce the necessary proof at trial was fatal to this defense.



              The record is likewise bereft of any evidence sufficient to satisfy the third

element of the defense of involuntary intoxication. The surgical resident who treated the

defendant's abscess rendered no opinion as to whether the ingestion of alcohol and

Percocet would or could result in the loss of "substantial capacity" contemplated by the

statute. Nor did the defendant testify that his mental capacity had been adversely

affected by his ingestion of Percocet and alcohol. The defendant's testimony that he

was "a little dizzy" prior to shooting the victim is evidence as to his physical well-being,

but not as to his mental capacity. Likewise, his testimony that, after the victim had hit

him, he was "real weak" and was having vision and hearing problems, does not go to

proving a reduced mental capacity. The record instead supports the inference that the

defendant's mental capacity was not adversely affected: he maintained the presence

of mind to perform CPR on the victim, and he gave a coherent statement to the police

approximately two and one-half hours after the shooting. The defendant failed to

adduce any proof at trial tending to show the existence of the third element of the

defense of involuntary intoxication.



              Since the proof at trial did not fairly raise all of the elements of the defense

of involuntary intoxication, the trial court correctly refused to charge the jury as

requested. Since the defendant's proof did fairly raise the issue of his intoxication, the

trial court was correct in giving the jury charge on voluntary intoxication. That charge

enabled the jury to consider whether the defendant's intoxication rendered him incapable

of possessing the required culpable mental state for first-degree murder. The defendant


                                             6
 was not entitled to any additional charge.



                 The defendant next complains that the district attorney made improper

 remarks during closing argument, which the trial court failed to cure through a proper

 instruction, thereby prejudicing the jury. We find this issue to be without merit.



                 During closing argument, the district attorney stated, "I don't believe [the

 victim]   ever touched [the defendant]."               Later in his closing, the district attorney

 miscalculated the amount of alcohol the victim was alleged to have drunk on the day he

 was shot,2 commenting at the same time that he didn't think the expert witness'

 testimony about the amount of alcohol found in the victim's bloodstream was

 "reasonable."



                 The defendant objected to the district attorney stating his beliefs, which the

 trial court overruled on the basis that "this is final argument." The trial court also

 overruled the defendant's objection to the district attorney's miscalculation of the amount

 of alcohol the victim was alleged to have consumed. The defendant argues that the

 district attorney's statements, combined with the trial court's refusal to sustain his

 objections and issue a curative instruction, have deprived him of a fair trial.



                 In support of his position, the defendant is required to show that the

 argument was so inflammatory or the conduct so improper that it affected the verdict to

 his detriment. Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). In reviewing an

 allegation of improper conduct, this Court should consider several factors including the

 intent of the prosecutor, the curative measures which were undertaken by the court, the


        2
          The physician who perform ed the autopsy on the victim testified that his blood alcohol content
indicated that the victim had consum ed the equivalent of 23 bottles of 12 oz. beer over a period of five
hours. The district attorney m iscalculated this am ount as 4.3 gallons. It is, rather, 2.156 gallons.

                                                    7
improper conduct viewed in context and in light of the facts and circumstances of the

case, the cumulative effect of the remarks with any other errors in the record, and the

relative strength or weakness of the case. Judge v. State, 539 S.W.2d 340, 344 (Tenn.

Crim. App. 1976).



              The trial judge has wide discretion in controlling the argument of counsel.

That discretion will not be interfered with on appeal in the absence of an abuse thereof.

Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975).



              There is nothing in the record to suggest any deliberate misconduct by the

district attorney. The testimony at trial was contradictory about whether the victim

actually hit or merely swung at the defendant. Only the defendant testified that the

victim had hit him. It is obvious from the State's prosecution of the defendant that it did

not believe his protestations of self-defense. The district attorney's remarks that he

didn't believe the defendant's version of the facts were merely redundant and therefore

harmless. The trial court's failure to give a specific curative instruction was, accordingly,

also harmless. Moreover, the trial court instructed the jury in its general jury charge that

"statements, arguments, and remarks of counsel . . . are not evidence."



              The district attorney's remarks concerning the number of alcoholic

beverages the victim was alleged to have imbibed appear from the record to stem from

nothing more than an incorrect mathematical calculation. The testimony at trial gave the

jurors an exact number of ounces the victim would have had to have drunk in order to

create the blood alcohol content found during the autopsy. Presumably, each juror was

capable of converting the number of ounces into the correct number of gallons, and

defense counsel's objection made it clear that the State's calculation might be wrong.

This error was harmless. Likewise, the district attorney's statement that he didn't think


                                             8
the amount was "reasonable" lost any prejudicial effect when the jury could determine

that the actual amount was only half of what the district attorney was mistakenly

claiming.



              Under Harrington, the district attorney's comments were not so

inflammatory or improper as to affect the jury's verdict to the defendant's detriment. We

find any error as to these matters to be harmless beyond a reasonable doubt. The

defendant's second issue is without merit.



              Upon review of the record, this Court finds that the trial court's instructions

to the jury were correct, and that the defendant suffered no harm from any

misstatements by the State during closing argument.         The defendant's conviction is

affirmed.




                                                   ______________________________
                                                   JOHN H. PEAY, Judge




                                            9
CONCUR:




______________________________
PAUL G. SUMMERS, Judge




______________________________
DAVID H. WELLES, Judge




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