            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                     March 24, 2009 Session

             STATE OF TENNESSEE v. STEVE FREDRICK RICKETT

                        Appeal from the Criminal Court for Knox County
                          No. 83316     Richard Baumgartner, Judge



                       No. E2008-00670-CCA-R3-CD - Filed May 13, 2010


The Defendant, Steve Fredrick Rickett,1 appeals his conviction by a jury in the Knox County
Criminal Court for second degree murder for which he was sentenced as a Range I, violent
offender to sixteen years in the Department of Correction. The Defendant contends the
following: (1) the evidence was insufficient to support his conviction, (2) the trial court erred
in allowing expert witness testimony because the Defendant received inadequate notice of
the scope of the expert’s testimony and in not granting a continuance, (3) the trial court erred
in allowing the county medical examiner to testify to the effects of alcohol and narcotics on
the victim, (4) the trial court erred in failing to grant the Defendant’s motion for a
continuance to allow a defense expert additional time to test the shirt the victim was wearing
when she was shot, (5) the trial court erred in allowing into evidence the Defendant’s
statements to police, (6) the trial court erred in allowing the State to amend the toxicology
report during the trial, and (7) the trial court erred in failing to respond properly to the jury’s
questions requesting a definition of heat of passion and whether “voluntary intoxication”
constituted “heat of passion.” We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Mark E. Stephens, District Public Defender, for the appellant, Steve Fredrick Rickett.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Randall E. Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant District
Attorney General, for the appellee, State of Tennessee.

        1
          Although the indictment and judgment use the name Ricketts, the record, including a court order,
reflects that the Defendant’s last name is Rickett.
                                          OPINION

        This case arises from the fatal shooting of Joyce Ann Davis. At the trial, Jack Price,
a records specialist for the Knox County 9-1-1 system, testified that a 9-1-1 call was received
on August 8, 2005, originating from the victim’s address. In the 9-1-1 call, the Defendant
said that his wife was dead, that they were playing with a shotgun, that the victim pulled the
barrel, and that the gun went off. The Defendant then said that the victim was bleeding to
death. The Defendant gave his name, asked for help, and asked the 9-1-1 dispatcher to hurry.
The Defendant said that the victim was not breathing and that he believed she was dead.
When asked if he needed assistance in performing CPR, the Defendant stated that he knew
how to perform it and was trying to “as soon as I get off the phone.” He said “bye” and
disconnected.

        Officer Phillip E. Dalton of the Knox County Sheriff’s Office testified that in response
to the 9-1-1 call originating from the victim’s address, he activated his emergency equipment,
including the in-cruiser camera and microphone. He said he proceeded into the residence
with his weapon drawn because of the nature of the emergency call. He said that the
Defendant was standing in the living room and that a shotgun was to the left. He said he
handed the shotgun to another officer, who cleared it for safety. He said the victim was lying
on the couch, with her head back, her arms to her side, and her feet in front of her. He said
she had a shotgun wound in her chest. He confirmed that several photographs accurately
depicted the victim in the position in which she was found, and those photographs were
received into evidence. Officer Dalton said that he asked the Defendant to step outside and
that this portion of their conversation was recorded by his in-cruiser video and audio
recording equipment. The recording of Officer Dalton’s arrival and his conversation with
the Defendant was played for the jury. He confirmed that a dog could be heard barking and
that he asked the Defendant to put the dog into a back room. Officer Dalton testified the
video recording was a fair and accurate representation of what had transpired, and he
identified the Defendant in the courtroom.

        On cross-examination, Officer Dalton testified that in his opinion, the Defendant was
intoxicated. He said that the Defendant’s speech was slurred and that the Defendant smelled
of an alcoholic beverage. He confirmed a whiskey bottle was in the middle of the living
room floor. He said he had no trouble hearing the dog barking. He acknowledged that the
dog sounded as if it might be vicious. He agreed that his conversation with the Defendant
lasted several minutes, and he did not dispute that the Defendant said nine times during the
conversation that the victim grabbed or pulled the gun. He acknowledged that the
Defendant’s statements regarding the victim’s pulling or grabbing the gun remained
consistent.

                                              -2-
       Angie Varner with the Forensic Services Division of the Knox County Sheriff’s
Department testified that she responded to a call concerning the victim’s shooting. She said
that Officer Park, who was her relief, stated that the scene might take more than one person
to process. She said that when she arrived, a few officers were sitting or standing on the
front porch with another man, whom she identified as the Defendant. She said that when she
arrived, the television’s volume was very loud and that someone turned it off. She said the
victim was leaning back on the sofa with a shotgun wound to her chest. She said she
photographed the scene, including the positioning of the victim, and she identified the
photographs of the following: the victim; a wall where shotgun pellets hit; the kitchen; the
bedroom; the ceiling, which showed evidence of shotgun blasts; the shotgun; a shell casing;
and a shotgun shell. She also identified photographs of the Defendant which showed a
scratch on his chin and scratches on his wrist and arm. She said that after she finished taking
photographs, she collected the shotgun, the shell, and the shell casing, placed them in a box,
and sealed the box with evidence tape. Officer Varner opened the sealed evidence box and
displayed the shotgun and shell casings to the jury. She described the shotgun as a
Winchester 12-gauge and identified it as the gun she collected from the scene. She said that
the shotgun and the shell casing were sent to the Tennessee Bureau of Investigation (TBI).

       On cross-examination, at the direction of defense counsel, Officer Varner racked the
shotgun, which meant that she pulled the action bar to the rear and then pushed it fully
forward. She agreed that a round would load into the chamber if ammunition were in the
shotgun. When she was asked to rack the shotgun down and up again, it locked when it was
racked up. She depressed the safety mechanism, but she said the shotgun could not be racked
again. After defense counsel asked Officer Varner to depress another button on the shotgun,
she was able to rack the gun. She said that two dogs were at the scene and that one was in
a locked room. She said they barked loudly.

       Officer Brad Parks testified that he had worked for the Knox County Sheriff’s Office
for twelve and one-half years. He testified that before his current employment, he had been
employed as a physical science technician with the firearms and toolmarks unit at the FBI
Laboratory in Washington, DC, and as a firearms and toolmarks examiner with the Kentucky
State Police. He testified that he held a bachelor’s degree in criminal justice and had
attended several schools specializing in criminal investigation and analysis.

        Officer Parks testified that he responded to the 9-1-1 call at the victim’s residence.
He said that when he arrived, a man was sitting outside on the porch with several officers and
that the shotgun had been secured by the officers. He described the scene, and he stated that
the victim’s injury was “a significantly large hole from a shotgun.” He said that based upon
his training and experience, shotgun pellets exit a 12-gauge shotgun barrel at approximately
three-quarters of an inch in diameter and that they spread an average of one inch in diameter

                                              -3-
per yard. He said that based upon the diameter of the wound, he knew that the shot was fired
at “some distance” and was “larger than being a contact or near contact” wound. He said that
he and Officer Varner took measurements with a ruler from inside the house and prepared
a diagram of the victim’s residence, including notations of where the victim’s body lay,
where the liquor bottle was found, and where the shotgun had been located.

        Officer Parks testified that he used gunshot residue collection kits on the victim and
the Defendant. He said that he sent the kits to the TBI for processing but that no test was
performed for the victim because a swab was missing out of her kit. He stated that he had
no explanation for why a swab was missing out of the victim’s gunshot residue kit. He said
that he had prepared hundreds of kits, that Officer Varner was present when he collected the
specimens, and that the collection kits were mailed to the TBI along with other evidence in
this case.

        On cross-examination, Officer Parks testified that his diagram plainly noted that it was
not to scale. He agreed that the purported angle reflected was not the trajectory angle of the
gunshot. He did not recall whether the couch’s position was accurately depicted on his
drawing, but he agreed that the couch may have been positioned differently. He agreed that
if the couch had been positioned differently than shown on the diagram, the trajectory angle
of the shot could have been between 50 and 55 degrees as opposed to a lesser angle. He
acknowledged that his diagram did not purport to reflect the precise location of the furniture
in the room where the victim was shot. He read a letter from the TBI which stated that the
gunshot residue kit submitted for the victim was not suitable for gunshot residue analysis
because it required eight hand swabs and two control swabs. The letter directed Lieutenant
Terry Lee of the Knox County Sheriff’s Office to contact J. Russell Davis, the TBI’s forensic
scientist, for further assistance. He said that he was made aware of the letter by Lieutenant
Lee but that he did not contact Agent Davis. He said that he did not know to which swab the
letter referred and that he did not follow up to discover the error with the residue testing kit.
He said that he conducted the gunshot residue kits to provide information about whether the
victim or the Defendant had fired or handled a weapon. He said he had no knowledge
whether any pellets were found outside the victim’s body.

       Special Agent Jeff Crews, a forensic scientist with the TBI, was accepted as an expert
in alcohol and urine analysis. Agent Crews said that he performed the official alcohol report
on the victim. He said that a blood sample was received from Dr. Sandra Elkins, the Knox
County Medical Examiner, that he analyzed it, and that he determined the victim’s blood
alcohol to be 0.29 percent. He said the legal blood alcohol limit in Tennessee was 0.08
percent. He said that he analyzed the alcohol content of the victim’s urine and found it to be
.33 percent. He explained that the difference in the percentages was not significant because



                                               -4-
alcohol concentrates in the urine before it is voided from the body. He said that he could not
determine when the victim started drinking alcohol or when she last took a drink of alcohol.

      On cross-examination, Agent Crews agreed that he had conducted thousands of
examinations similar to the one of the victim. He said that a blood alcohol content of .29 was
considered high but that he had seen higher.

       Special Agent John Harrison, a forensic scientist with the TBI, testified that he
prepared the official toxicology report concerning the drugs in the victim’s blood and urine.
He said the first report reflected that the victim tested positive for lidocaine and for
oxazepam at 0.13 micrograms per milliliter (µG/mL). He said that the victim actually tested
positive for lidocaine and for oxycodone at 0.13 µG/mL, that he noticed the typographical
error on the report just before he came to court, and that he reported the error to the district
attorney general. He said that oxazepam is a Benzodiazepine drug and that it is “[a]n entirely
different drug” from oxycodone, which “is an opiate type drug.” He said that opiates are a
very strong group of drugs prescribed for pain relief and that they have impairing
consequences. He said that lidocaine is often given in emergency procedures to start the
heart and that it is also found in some mouthwashes. When asked why he was able to
determine oxycodone levels in blood but not urine, he replied that blood levels of oxycodone,
not urine levels, reflected the impairment value upon an individual. The toxicology report
that Agent Harrison had amended to reflect oxycodone instead of oxazepam was received
into evidence.

        On cross-examination, Agent Harrison testified that he made a typographical error
when entering the code for oxycodone into the final report. He said that he used a mass
spectrometer to determine what drugs were present in the sample and that the computer
generated a printout showing the drugs and the levels identified. He agreed that the computer
printout listed the name of the drug and a code number. He said that he created an official
report based on the data from the mass spectrometer. He said that the program for generating
the official report required him to enter three or four letters of the drug’s name, that the code
for oxazepam is OXYZ and the code for oxycodone is OXYC, and that he made an error
when entering the code. He stated that neither he nor another person who reviewed the
official report caught the error and that he did not see the error when he looked at the file
again a few days before the trial. He said he first recognized the error approximately twenty
to thirty minutes before he testified. He agreed that the parties had been operating under a
misapprehension for eighteen months that there was a different drug in the victim’s system.
He acknowledged that if he had not detected the error, no supporting documentation would
have indicated that there was a mistake because the supporting documentation was contained
as part of his file to which the Defendant did not have access. He said that he caught the
mistake because he noticed he had handwritten OXYC on the mass spectrometer printout,

                                               -5-
which was the code for oxycodone, and that the official report stated oxazepam. Agent
Harrison testified that the therapeutic levels for oxycodone range between 0.01 to 0.10
µG/mL and that the victim’s 0.13 level would be higher than the therapeutic range.

       On redirect examination, Agent Harrison testified that a therapeutic level is a range
a physician would try to achieve in the body to exert the effects of the drug. He said that
analgesic effects or pain-relieving effects of oxycodone would be found in most patients
between levels of 0.01 to 0.10.

        Charles Webber, the victim’s younger half-brother, testified that the victim was fifty-
one years old and that he was familiar with her medical condition. He said that she was
diagnosed with cancer about a year and a half before her death. He said that he saw his sister
at least once a week from the time of diagnosis until her death and that he called her every
day. He said that when she was hospitalized, he would visit her every day. He said the
victim’s cancer caused her difficulty in speaking, in eating, and in walking. He stated that
she started sleeping on the couch in the living room, that she kept her medications on a chair
next to her, and that she used a portable toilet chair. He said that she weighed about 165 to
170 pounds before her illness and that her illness caused her to lose weight. He said that at
the time of her death, the victim barely had the strength to pick up her three- to four-pound
Chihuahua.

        Mr. Webber testified that the victim had throat cancer but that she continued to smoke.
He said he had seen her drink one or two beers but never liquor. He said that he had never
purchased beer for the victim but that he had purchased food for her. He said that he had
never seen the victim in possession of a shotgun, that he had not seen the shotgun used in the
killing, and that he did not know where the shotgun had been kept.

       On cross-examination, Mr. Webber testified that when he visited the victim, he would
honk his car’s horn, and the victim or the Defendant would lock the larger dog in the
bathroom. He said that before the victim became ill, she or the Defendant would walk onto
the porch to greet him. He said that after the victim became ill, he would honk the horn and
walk to the porch, and the victim would tell him to come inside. He said the Defendant was
there “most of the time,” but he acknowledged that the Defendant was working from October
until December 2004, after the victim was diagnosed with cancer, and that the Defendant was
not there to put up the dog. He said that he did not know the victim’s landlord or that the
house had belonged to the landlord’s father. He also acknowledged that he did not know the
landlord spent significant amounts of time on the front porch with the victim and the
Defendant and that he had never seen the landlord in the two years of weekly visits. He
thought the victim drove herself to some of her chemotherapy treatments, but he did not
know who took her other times. He said the victim asked him to buy the chickens for her

                                              -6-
because her doctors were concerned that she was not eating. He said that as far as he knew,
the victim did not like guns. He said he did not know that on the day she was shot, the victim
called a pawnshop trying to purchase a gun. He said he did not know that the victim called
J.W. or Sandra Rickett asking to get a gun. He said he did not know that the victim owned
a .22 caliber pistol or that she was arrested for shooting at her sons. When asked if his
relationship with the victim was close enough for him to know that she was asking how to
commit suicide, he responded that it was not. He said he did not know that the victim was
asking people to occupy the Defendant away from the house so that she could kill herself.
He said that the victim was in pain but that she would not commit suicide.

       Mr. Webber confirmed that in more than one hundred visits, he saw the victim drink
beer only once or twice, and he said that she did not drink beer until the “doctors put her on
beer.” He said he did not know her doctors but that one was in Oak Ridge. He said that she
was confined to the living room. When asked if he knew that the victim was traveling with
the Defendant two times a week to deliver eggs, he replied that he did not. He said he did
not know that the victim and the Defendant kept a gun to protect their fifty chickens from
foxes, hawks, and snakes or that they had lost thirty of their chickens to predators. He said
he never saw the victim or the Defendant shoot the gun at animals.

       Mr. Webber testified that his visits lasted about forty-five minutes. He said he saw
the victim when she had a tube in her throat. He said he did not know who inserted the
smaller tube that was required to clean the phlegm from her lungs, but he said he saw the
victim perform the procedure once and assumed she always did it. He did not know how
long she had the hole or tube in her throat. He did not know what kind of medication the
victim was taking, except that it included pain pills, an inhaler, and something for her heart.
He said she had asked the doctor for Megace to make her eat. He said that he once observed
the victim take medication and that she swallowed pills with water.

       Mr. Webber testified that he had an illness that required him to take medication on a
regular basis and that the victim allowed him to receive his medication at her address on two
occasions, while he was in the process of moving. He would not agree that he received the
medication at the victim’s address in an effort to conceal the nature of his illness from his
employers.

       Special Agent Shelly Betts of the TBI’s firearms identification unit testified that she
had advanced training by the Association of Firearm and Toolmark Examiners. She said that
she was trained in muzzle to garment distance determination, a chemical test on clothing to
determine the distance between the muzzle of a gun and a person who is shot. She said that
she had examined thousands of fired bullets, cartridge cases, and shot shells and linked them
to the specific weapon from which they had been fired. She explained the three types of

                                              -7-
shotguns and how each works. She said that a pump-action shotgun is loaded by placing shot
shells into the magazine tube and that a shell is chambered by manually cycling the forearms
of the shotgun. Once the shot is fired, the shotgun must be manually cycled again. She said
that if one pulls the trigger with a live cartridge inside the chamber, the shot shell will not be
ejected until the forearm is cycled. She said that the shot pellets, shot wad, and gunshot
components exit a shotgun’s muzzle. She said that lead vapor, partially burned and unburned
gunpowder, lead particulate, and dirt and oil will also be ejected. She explained that lead
vapor is a component of the shot shell primer.

        Special Agent Betts testified that she determined the shotgun was a Mossberg
Maverick Model 88 12-gauge, pump-action shotgun with a modified choke. She explained
that a modified choke is a constriction at the muzzle end, which causes the pellets to stay in
a tighter pattern to a farther distance. She said the shotgun’s safety button was functioning.
She demonstrated loading and chambering a shell. She said that if a live shell were
chambered, pulling the forearm of the gun would discharge the shot shell from the chamber.
She said the trigger pull, the amount of pressure required to pull the trigger of the shotgun,
was seven and one-quarter pounds. She said that according to the manufacturer’s
specifications, the gun also weighed approximately seven and one-quarter pounds. She
determined that the gun’s barrel length was twenty-eight inches and its overall length was
forty-seven and one-half inches. She said that she test-fired the shotgun at different distances
to produce test patterns but that she said she did not test-fire the gun before she had looked
at the shirt the victim had been wearing.

        Agent Betts testified that she examined the fired shot shell case that was recovered
from the scene and determined that it had been fired from the shotgun. She said that the lead
pellets were size six lead shot and that it was important for her to use the same ammunition
in the distance tests. She said the shotgun wad was consistent with that being manufactured
by Winchester.

        Agent Betts identified the victim’s T-shirt that she had examined. She stated that the
shirt had a shot pattern in the upper chest area, slightly to the right of center. She said that
the back of the shirt, near the right armpit, showed an area consistent with the passage of lead
pellets. She also said that the lower right-hand side had three or four holes. She explained
that the presence of lead smoke or soot on clothing would indicate the shotgun had been fired
from a distance of approximately eighteen inches to two feet. She said that she found no
visible smoke or graying around the three areas of holes nor did she see any singeing or
burning of the fibers. She did not observe any unburned or partially burned gunpowder. She
said that she conducted chemical tests to detect lead vapor, which would occur when a
shotgun was fired from a distance of up to eighteen inches, and for pellet wipe, which would
indicate that a projectile traveled through the fabric. She said that she found lead consistent

                                               -8-
with pellet wipe surrounding the large hole in the front of the T-shirt and on the smaller holes
on the back of the T-shirt. Agent Betts also said that a shotgun wad could have traveled
through the large hole. She said there was no indication that the holes on the bottom right
of the T-shirt were caused by any type of gunshot. She said that she did not find any lead
vapor on the T-shirt.

        Agent Betts testified that she conducted shot pattern tests on cardboard at distances
of five, ten, fifteen, twenty, twenty-five, and thirty feet. She identified the diagrams that she
had made of each shot pattern test, and she wrote the measurements of each test shot’s central
defect and overall spread pattern. She described the central defects and overall spread
patterns produced at the various tested distances and concluded that the pattern on the T-shirt
could be produced at distances of greater than five feet but less than twenty-five feet. Agent
Betts testified that she was provided a picture of the hole in the victim’s chest but that she
did not have the accurate measurements, and she said she compared the test shots to the
pattern in the T-shirt and not to the victim’s wound. She said that she memorialized her
findings in an official TBI firearms report. Agent Betts provided a sample of a shot shell
similar to the one used in the case and described how a shell is constructed. The shotgun wad
and pellets, the diagrams of the several test shot patterns, the firearms report, the photographs
of the victim’s T-shirt, the gunpowder, and the sample shotgun shell were received into
evidence.

        On cross-examination, Agent Betts testified that she did not indicate in her report that
there were “ratty edges” on large hole in the victim’s T-shirt. She said that she wrote in her
notes “large hole.” She removed the victim’s T-shirt from the evidence bag and confirmed
that during her initial visual inspection, she did not see any soot or smoke. She did not
understand what defense counsel meant when he asked her if she saw carbon deposits on the
T-shirt. She explained that gunpowder is coated in graphite, which is carbon, and that
partially burned or unburned gunpowder particles would appear on the fibers. She said that
soot is the blackening of the garment from lead, vapor, lead particulate from the gun’s barrel,
and gunpowder particles. She confirmed that she did not see any soot or partially burned or
unburned powder. When asked to examine the victim’s T-shirt and magnified photographs
that she had taken of the shirt, Agent Betts said she saw black dots, but she could not say
what they were. She confirmed that she conducted chemical tests to determine whether
gunpowder particles were present and that the test was negative. She explained that the
Griess test detected burned and partially burned gunpowder but not unburned gunpowder and
that unburned gunpowder could be detected only by visual inspection. However, she
acknowledged that unburned powder was coated with a chemical that changed when
gunpowder burns, often generating a positive reaction even with unburned particles. She
acknowledged that it was her decision whether the black dots were unburned gunpowder,
based solely on her visual inspection of the morphology and the size and color of the

                                               -9-
particles. She said it was possible that unburned or partially burned gunpowder could leave
marks consistent with those present on the T-shirt. She said that unburned or partially burned
gunpowder would not travel as far as the shot pellets, but that some of the particulate could
adhere to the wad and travel with it. She agreed that the presence of particles would be an
indicator of distance between the barrel of a handgun or rifle and the victim, but she said that
with shotguns, actual pellet spread is considered. When asked what her conclusion would
have been if she found unburned and partially burned gunpowder on the shirt, she responded
that the gunpowder would have formed an incomplete pattern and therefore, no conclusion
could have been reached as to the distance. She confirmed that the only test to detect
unburned gunpowder was a visual inspection.

        Agent Betts testified that based upon the autopsy photographs, the direction of the
shot looked as if it were from left to right and the trajectory of the shot looked as if it were
from slightly up to down on the victim’s body. She said she chose to use cardboard for the
test shot patterns because cardboard shows the best pellet spread. She agreed that the pellet
pattern on the shirt might be larger than the pattern on the body. She said it was necessary
to replicate the pattern on the shirt because she did not examine the body and because she did
not see the body. She said that the photographs she took had a scale in them but that was
different than being “to scale.” She agreed that the photographs showed the wound and the
pellets. She acknowledged that if the victim’s shirt were folded or creased, the pellet spread
would be broader when the shirt was laid flat. She also agreed that she assumed that the
victim’s shirt was flat on her chest when the victim was shot. She said that fiber grabs
smoke, vapor, and partially burned gunpowder more than cardboard would, but that she used
cardboard to test fire because the holes are more readily visible. When asked why she test-
fired at a ninety-degree angle, when she knew that the victim was shot at a different angle,
she responded that she shot at that angle to get an accurate measurement of the pattern at the
respective distances. She agreed that the victim’s wound was wider than it was high, which
reflected that the shot was at an angle. When asked how a test shot pattern from ninety
degrees indicated distance when comparing against the victim’s spread at thirty degrees,
Agent Betts responded that there was a difference between minimal distance from the gun
to the wound and up and down distance. She said she did not report horizontal distance, but
she recorded those distances in her notes. She agreed that she had measured the horizontal
distances and that on direct examination she had written the horizontal distances on the test
pattern diagrams and had explained them to the jury. When asked if she were evaluating two
very different things–horizontal and vertical distance of the pellet spread–she replied that she
based her opinion on the density of the pellet spread and on the horizontal and vertical
dimensions of the pellet spread. She agreed that the angle of the shot would affect the
tightness of the spread in one dimension but not the other. She said she did not know the
angle of the wound and that she did not question the medical examiner about it. However,
she said she took into consideration a combination of factors, including the central wound,

                                              -10-
the dimensions of the overall pellet spread, and the density of the pellets. When questioned
whether the way she tested accurately reflected density as compared to the victim’s wound,
she replied that she compared the test patterns to the shirt and not to the body.

       Agent Betts testified that she did not know the trigger travel distance of the shotgun
and that she did not consider the information important. She said that she had fired the gun
and that she would not be surprised if the trigger distance on the gun was a range of .122 of
an inch to .129 of an inch. She said that some revolvers required a person to pull more than
one-half inch. She said that although trigger travel distance could be important, the TBI
measured only the weight required to pull the trigger.

        Agent Betts testified that a dummy round weighed approximately the same as a live
round. She loaded two dummy rounds into the magazine tube and held the gun at her hip
with her right hand. She said the gun was heavy, and she agreed that once she moved her
hand behind the balance point, the gun naturally tipped forward. She said the trigger pull
required less force when pulled from the bottom than the top. She demonstrated for the jury
and stated that if tipped downward, the weight of the loaded gun alone was enough to pull
the trigger.

        On redirect examination, Agent Betts testified that unburned gunpowder on the
victim’s shirt could appear gray but that it was more likely to appear beige or tan. She
clarified her earlier testimony and explained that whether the shot was at ninety degrees or
one hundred and eighty degrees, the total pattern size would be approximately the same. She
said the dimension might spread a little, but the nominal measurement would remain the
same. She said that, for example, if the overall size is three inches, but that when shooting
at an angle, the dimension changes to three inches by four inches, the nominal measurement
would be three inches. She said that her notes indicated that she had microscopically
examined the three areas of the victim’s shirt which had holes. She said that her notes
reflected that she did not observe smoke or soot or any bullet or pellet wipe on any of the
areas, nor did her chemical tests reveal the presence of partially burned or burned
gunpowder. She said that the major defect in the T-shirt measured 3.5 by 4.5 inches and that
the total pattern size was 7.5 by 7.75 inches.

       On recross-examination, Agent Betts testified that sometimes “flier” pellets are
outside the regular pattern and that she did not always consider them. She said she
determined a flier pellet as being three or four inches outside of the central mass of the
pattern. She said that she did not inform the medical examiner which holes she measured to
determine pellet spread but that she provided a copy of the test patterns without
measurements. When presented with pictures of the victim’s body and asked to determine
which pellet holes were considered fliers in the horizontal pellet spray, she responded that

                                            -11-
she did not examine the body and did not know which holes were pellet holes. When asked
to assume that all the holes were pellet holes, she said that she would consider the bottom
hole and possibly another hole as fliers. She said the pellet spray looked as if it was at an
angle, and she said she would probably use the vertical measurement. Upon defense
counsel’s request, she also marked the horizontal spread of the pellet spray.

        Agent Betts testified that the cloth T-shirt did not stop many, if any, pellets from
penetrating the victim. She said that cardboard reacts differently than human tissue and that
she needed to shoot from a distance of about fifteen feet to achieve a horizontal pellet spread
of 2.6 inches. When asked if, given the size of the victim’s house, that the Defendant would
have had to have been outside the house to have shot from fifteen feet away, Agent Betts
replied that she did not know. She reiterated that she was comparing the test shots into
cardboard to the pattern on the T-shirt, not the victim’s body. She said that sometimes bullet
wipe or pellet wipe is something that can be seen as a gray circle around the hole. She agreed
that she visually inspected the T-shirt for pellet wipe and did not see any. She also agreed
that she conducted a microscopic examination for pellet wipe and did not see any. She said
she found it when she tested lead, or rhodizonate. She said that she conducted one test fire
from each distance. The parties stipulated that both the fired shell and the unfired shell
remained in the shotgun when the responding officer took the gun into custody and that the
officer cleared the gun.

       On redirect examination, Agent Betts agreed that at twenty and thirty feet, there were
separate holes for the wad and the shotgun pellets, because the wad separated from the
central mass of pellets at that distance. She said that at twenty-five feet, the wad probably
went through the center mass. She said that when she examined the T-shirt microscopically,
she could not see burned gunpowder, but that a chemical reaction would reveal its presence.
On recross-examination, Agent Betts testified that she did not see pellet wipe under the
microscope but that the chemical test revealed the presence of pellet wipe.

        Sandra K. Elkins, M.D., the chief medical examiner for Knox County, was accepted
as an expert in forensic pathology. She testified that she conducted an autopsy on the victim.
She said that separate from the autopsy report, the medical examiners complete a one-page
report of initial observations. She said that in this case, the victim’s death was violent, that
the probable cause of death was a shotgun wound to the chest, and that the manner of death
was a homicide. She said the autopsy was conducted the day after the victim’s death. She
said the victim’s clothing was given to the sheriff’s department as evidence. She said the
victim had an obvious shotgun wound to the chest, “slightly less than an inch right of her
midline” with “multiple satellite pellet wounds extending out from the major hole of
entrance.” She identified autopsy photographs that showed various bruises on the victim’s
left and right forearms. She said the victim had senile ecchymosis on her left arm. She said

                                              -12-
the victim had scars and a chemo-port likely used to treat for cancer. She also identified a
photograph taken by the sheriff’s department of the entrance wound and confirmed that it
showed the damage to the victim’s chest. She said there were some pellet exit or near-exit
wounds on the far right side of the victim’s back. She said that the majority of the shotgun
pellets were in the back side of the victim’s chest wall and that the plastic wad was recovered
from the top of the upper lobe of the right lung. She said that sample pellets and the wad
were collected and sent to the Knox County Sheriff’s Department as evidence. She identified
a photograph of the wadding that was recovered from the victim’s chest. She agreed that she
made a diagram of her findings and identified an enlarged copy on which she had written the
measurements of the major wound and the satellite pellet holes. She said that she had
measured the main hole in horizontal and vertical dimensions and then measured the pellet
spread in the same dimensions. She said the measurements could be useful when test-firing
the gun at different ranges.

        Dr. Elkins testified that she performed a microscopic examination of the victim’s lung,
heart, liver, kidney, and brain. She said the liver showed moderate steatosis, which is fatty
change, but the victim’s liver was not cirrhotic. She said that fatty liver means that the liver
cells have filled with fat.

       Dr. Elkins testified that the trajectory of the shotgun blast through her body was from
up to down and from left to right. She said that she determined the distance of the muzzle
from the victim’s flesh was five to eight feet. She said that she took samples of the victim’s
blood and urine to send to the TBI for analysis. She said that based on the amended TBI
report which she received the day before she testified, the victim’s blood alcohol
concentration was 0.29 percent and the level of oxycodone was 0.13µG/mL. She said that
based upon her training and experience, she would expect a person with that level of alcohol
and oxycodone in their system “to be sleeping it off.” She said that the person’s
consciousness would be impaired, that the person would not have muscular coordination, and
that with the combination of the oxycodone and alcohol–both of which are central nervous
system depressants–she would expect the person to be “stuporous.”

       Dr. Elkins was asked to demonstrate how the victim might have pulled on the barrel
of the shotgun. She said that if the victim had pulled on the barrel of the gun, she would
expect the shot to be “more of a through and through” because to pull the shotgun hard
enough would have required the victim to turn her front to the gun, and the blast would have
gone “right through to her back.” She also said she would expect significant injuries to the
victim’s hand if it was on the muzzle and that she would expect the “hand to have been in
the other room.” She said that if the victim’s hand was not on the muzzle, but on the barrel,
she would not expect to find pellet injuries on the victim’s hand or arm. Using a yardstick
to measure, she said that even at five feet the shotgun’s barrel could not be grabbed at that

                                              -13-
distance. She said that she did not find any powder burns or stippling on the victim’s
injuries. She said that stippling is punctate abrasions around the entrance wound. She said
stippling occurs when a gun is fired up to a distance of thirty-four inches. She said she found
no defensive wounds on the victim’s hands. She agreed that the victim’s injuries were
consistent with her being asleep on the couch and the Defendant’s holding the shotgun five
to eight feet away from her and angling the shot slightly downward at a left to right angle.

        On cross-examination, Dr. Elkins testified that she did not notice any burns or other
marks on the inside of the victim’s arms that would indicate that her arms were in close
proximity to the gun. She said that regarding her demonstration of the victim’s reaching out
and holding onto the gun, she would expect to see some kind of wounds or soot if the victim
had her hand very close to the barrel. She said she did not know how far the shotgun
discharged vapor or powder when it expelled a shell, but she acknowledged that she thought
the barrel was fired from five to eight feet away from the victim. She explained that
synergistic effects of drugs meant that the effect of one drug is made worse by the
combination with the other drug. She agreed that she had testified that the victim’s blood
alcohol level and level of oxazepam would render the victim unable to drive. She agreed that
one of the important things in attempting to determine distance from the end of the barrel to
the target were the dimensions of both the central defect and the pellet spread. She agreed
that the horizontal and the vertical measurements of pellet spread were equally important.
She said the victim had “rather fresh bruises on the left arm” and that the ones on the right
arm “were fading bruises.” She said that in her opinion, the fresh bruises on the victim’s
right arm were unrelated to the shooting. She agreed there were a number of possible
explanations for the bruises on the victim’s left arm, but she did not connect the events on
the day of the shooting to those bruises.

        On redirect examination, Dr. Elkins testified that senile ecchymosis occurs in people
who are older and in poor medical condition. She said that the skin becomes much thinner
and that any amount of trauma, even carrying a plastic grocery bag’s handles on the forearm,
can cause bruises that do not heal well. She said that although she found the victim’s chemo-
port in the chest wall, she found no traces of cancer in the victim’s body. On recross-
examination, Dr. Elkins testified that alcohol consumption is one cause of fatty liver and that
fatty liver, if caused by alcohol, can develop into cirrhosis of the liver.

        Glen Edward Farr testified that he held a Ph.D. in pharmacy, that he was a licensed
pharmacist in the state of Tennessee, and that he was a professor of clinical pharmacy at the
University of Tennessee. He was accepted as an expert in pharmacology. He said that
oxazepam is metabolized to temazepam. He opined that the effects of the levels of oxazepam
and alcohol reported in the victim’s system would result in “substantial impairment.” He said
that he later learned that the TBI report was incorrect and that victim was taking oxycodone

                                             -14-
at the same level that had been reported for the oxazepam. He said that his opinion remained
unchanged. He said he amended the report to say that there would still be substantial
impairment of an individual with those levels of alcohol and oxycodone. He said that people
have individual responses to drugs and alcohol. He said that at a blood alcohol level of .18
to .3, there would be disorientation, dizziness, exaggerated mental confusion, exaggerated
emotional stress, crying, and fear. He said there would be a disturbance of perception and
sensation. He said that some people might experience blurred vision, double vision, impaired
balance, muscular incoordination, and staggering gait. He said that a blood alcohol level of
.27 to .4, the upper end of the range, was classified as stupor and that a person would have
inertia approaching paralysis, markedly decreased response to stimuli, marked muscular
incoordination, and inability to stand or walk. He said that when oxycodone was added, it
would intensify and push a person toward the upper range. He said that another factor
pushing the victim to the upper range was her body weight of 122 pounds. He said the
effects would be greater at that body weight than in a larger person. He said that a countering
factor would be adrenaline or epinephrine release, the so-called fight or flight response,
which would allow a person to be less depressed or less uncoordinated for a brief period of
time. He said that another factor that would lower the range would be whether the victim
was tolerant to the alcohol and oxycodone. He said that the difference between sleep and a
stupor was that when a person was sleeping, he or she could be aroused fairly easily but that
a person in a stupor cannot be aroused easily. Dr. Farr’s amended report was accepted into
evidence.

        On cross-examination, Dr. Farr testified that the victim’s blood alcohol range was on
the border between the substantially impaired range of .18 to .30 and the stuporous range of
.27 to .40. He agreed that factors could lower the range, including a tolerance to alcohol.
He said that he did not know the victim’s habits concerning alcohol consumption but that
assuming the victim was a regular drinker–more than one or two drinks a day–her tolerance
could not be quantified. He agreed that if the victim took oxycodone regularly, she would
build a tolerance to the drug in addition to the alcohol. He said that he would not conclude
that with the levels of alcohol and drugs in her system, the victim could not walk, but he said
that she might be able to stumble. He said that it was possible that the victim was in a
stuporous state but that it was also possible that adrenaline could overcome it, and that she
could get up. He said that the victim’s pharmacy records showed prescriptions for 120 pills
of OxyContin (oxycodone) 40 milligrams, which was to be taken every twelve hours, but
sometimes more often. He said the victim’s prescription for hydrocodone would have been
given for “breakthrough pain” because OxyContin was released slowly. He said that the
prescriptions were for the upper level of the quantities generally seen but that nothing was
unusual about the victim’s prescriptions. He said a person’s state of physical and mental
health could effect the way a person metabolized drugs. He said that, for example, if the
victim consumed large quantities of alcohol, she would have liver damage, which would slow

                                             -15-
down the way she metabolized the drugs, making their levels higher. He said he had seen
only the pharmacy records, not the victim’s medical records.

       Robbie Jean Bunch, the victim’s forty-three-year-old half-sister, testified that she last
saw the victim alive a week before her death, when she mowed the victim’s yard. She said
the victim was too sick to mow the yard. She said that she visited her sister only about every
two weeks because she was not allowed when the Defendant was there. She said that the
victim slept on the couch right inside the front door, that the dogs would sleep on the couch
across from the victim, and that the Defendant would sleep in the bedroom. She said that she
had walked through the house before. When shown photographs of shotgun blasts in the
ceiling, she said she had never seen them. She said the victim did not like shotguns, that she
had never seen the victim with a shotgun, and that she did not know there was a shotgun in
the house. She said that when her sister was diagnosed with cancer, she stayed with the
victim every night. She said that after the victim was released from the hospital, the victim
was able to eat soft foods such as applesauce and that the victim was so weak she could not
get out of a chair by herself. She said that the victim was not suicidal.

        On cross-examination, Ms. Bunch testified that the victim did not talk to anyone about
committing suicide. When asked how she would know that, she replied that the victim was
not that type of person. When asked how she would know that the victim did not have
conversations with Sandra Rickett and R.J. Rickett about killing herself and how she would
know the victim did not call the pawnshop and ask for a “410" the morning she died, she
replied that the victim would not have committed suicide. She acknowledged that she knew
how badly the victim suffered. She denied that the victim’s struggle made the victim want
to give up. She did not know how much baby food was in the house or how much the victim
was eating. She did not know why Webber brought Cornish hens or whether the victim
could have eaten them. She said that she cut the grass one time and that she guessed the
Defendant cut the grass other times. She did not know whether anyone else was taking care
of the victim’s chickens other than the Defendant. She said she stayed with the victim at a
hospital in Oak Ridge for two weeks, while the victim received chemotherapy treatment. She
was not aware that the victim’s chemotherapy was for six weeks. She said she did not know
how long the chemotherapy took. She said that when the victim did not spend the night in
the hospital, either she, the victim’s granddaughter, or the victim’s son would drive her to the
hospital. She said that when the victim became very weak, the victim stayed in the hospital
because traveling was too difficult. She said she took the victim to the doctor and to
radiation treatments. She could not recall the location, but she said she followed the victim’s
directions. She acknowledged that the victim had breathing problems but she denied seeing
special breathing “contraptions” that used screens. She said she had seen, though, the
victim’s breathing machine and portable oxygen canisters. She acknowledged that she did



                                              -16-
not sign any medical releases and was not listed as a contact person for the victim. She did
not know who was listed.

        Dennis J. Insell, a pharmacist employed at Apple Discount Drugs, testified that he
provided the State with a copy of the drug printout for the victim. He said that it reflected
the filled prescriptions for the victim covering three months. He said that in June, the victim
was prescribed temazepam, for treating insomnia; lorazepam, for treating anxiety; Marinol,
for treating nausea usually associated with cancer treatment; theophylline, which is a lung
dilator to help with breathing; premarin, which is a combination of hormones to treat
menopause symptoms; albuterol, an inhaler for asthma; a combination of Maalox, Benadryl,
and lidocaine, which is used to treat mouth pain or thrush that is usually a side effect of
chemotherapy; Nexium, for decreasing stomach acids and for treating ulcers; cilostazol, for
treating circulation problems; OxyContin, a long-acting pain medicine; hydrocodone, a short-
acting pain medicine; Megestrol, to stimulate appetite; and Mucinex, for congestion. The
pharmacy report was received into evidence.

        On cross-examination, Dr. Insell testified that the victim received 120 pills of
hydrocodone on June 10, at a strength of either 10/500 or 10/650, representing the
combination of hydrocodone and its Tylenol component. He said that it was the highest
strength pill in which hydrocodone is made and that it was a potent pill. He agreed that the
victim was provided 120 pills of OxyContin on June 14. He said the strength was forty
milligrams, which was strong, although he said that it came in doses up to eighty milligrams.
He said the frequency of dosage would be anywhere from six to eight times a day and that
120 pills would be a month’s supply. He said that the dosage schedule for OxyContin was
one every twelve hours. He said that as a person’s body became used to a narcotic, the
dosage might need to be increased. He said the victim started with one pill of OxyContin
every twelve hours and then went to taking one pill three times a day, and finally taking two
pills, two times a day. He agreed that the victim was building a tolerance to the drug. He
said the victim received another 120 pills of OxyContin on July 13 and another 120 pills of
hydrocodone on July 15. He said that he had an older pharmacy printout of the victim’s
prescriptions and that her first prescription for OxyContin was January 7, 2005, and he
agreed that the victim had been taking it and hydrocodone for at least seven months before
her death. The pharmacy printout was received into evidence. The State rested.

        Sergeant David Davis with the Anderson County Sheriff’s Department testified for
the defense that he answered a call involving the victim on or about April 16, 2000. He said
the call was a “shots-fired” call. He said that when he arrived at the scene, he spoke with the
victim. He said the victim told him that her sons had come to her house, that she had tried
to get them to leave, and that she had fired one warning shot. He said she did not indicate
to whom the gun belonged.

                                             -17-
       On cross-examination, Sergeant Davis testified that he interviewed Dale Phillips,
Cathy Hendricks, Cora Phillips, Danile Phillips, and the Defendant in connection with the
victim’s shooting a gun. On redirect examination, Sergeant Davis testified that he issued a
warrant as a result of the victim’s firing a gun. A certified copy of the warrant was received
into evidence.

        Randall Ray “Randy” Smith testified that he was the president of Smith Built Homes
in Knoxville. He said that Smith Built builds residential homes. He said he employed the
Defendant from January 2000 to mid-2004, and he said that he presently employed the
Defendant. He said that he had contact with the Defendant every day from 2000 until the
Defendant stopped working for Smith Built in 2004. He said that the Defendant’s ability as
a worker was “good, one of the best ones we had.” He said the Defendant was “very
reliable” and productive. He said the Defendant never caused trouble. He said that when the
Defendant left in mid-2004, it was not because his employment was terminated. He said he
told the Defendant that the Defendant was always welcome to come back and work whenever
he wanted. He said that he did not know whether the Defendant would be able to return to
work but that the Defendant kept contact with the superintendents, who wanted him to return.
When asked whether the Defendant had an open invitation to return to work, Mr. Smith
replied “pretty much, yes.” He said that the Defendant began working for Smith Built again
about six months before the trial. He agreed that the Defendant showed up one day to
interview for a job, that he recognized the Defendant, and that he hired him. He said he was
satisfied with the Defendant’s present efforts. He said that probably no workers in his
position produced any better than the Defendant. When asked if his offer for the Defendant
to work continued into the future, he replied, “Oh, yes.”

       On cross-examination, Mr. Smith said that the Defendant’s position with the company
was as a general laborer for cleaning up. He said that the Defendant’s primary responsibility
was cleaning the insides of homes and that the Defendant did a good job of that. He said that
the Defendant’s jobs did not require any heavy lifting. He said that in the four years during
which the Defendant worked for his company, he never observed the Defendant drink. He
said that he did not socialize with the Defendant after work. He said the Defendant worked
five days a week.

        Edgar A. Pittman, a fifty-five-year-old warranty manager for Smith Built Homes,
testified that his job was to take care of “anything that goes wrong with the houses.” He said
that he knew the Defendant but that he knew the Defendant better when he worked as a
superintendent. He said that he worked as a superintendent until 2003. He said that the
Defendant was a very dependable worker, that the Defendant did not cause trouble, and that
the Defendant was productive. He said he knew the residence where the Defendant and the
victim lived. He said he had been there in December of 2004 to take money and a fruit

                                             -18-
basket because the victim was sick and the Defendant had not been able to work because he
was staying with her. He said the crew with whom he worked contributed the money. He
said that the Defendant met them at his car and that the Defendant was grateful for the gifts.
He said he did not see the victim because he assumed that she was sick.

       On cross-examination, Mr. Pittman testified that he delivered the money and the
basket on Christmas Eve. He said he was unaware whether the victim was receiving social
security benefits. He did not know whether the Defendant had sufficient money to put the
shotgun on layaway on December 11, 2004, or whether the Defendant had sufficient money
to purchase the shotgun on December 29, 2004.

        On redirect examination, Mr. Pittman testified that he knew that the Defendant and
the victim kept chickens at their home and that he knew they supplemented their income by
selling eggs. He was not aware that they had a problem with hawks, foxes, and snakes, but
he said he knew the Defendant sold “a bunch” of eggs. He said that the Defendant did not
come to Smith Built to sell eggs but that the Defendant sold eggs to some who worked with
him.

        Issac Merkel, the Knox County Public Defender’s Office computer systems
administrator, testified that he sometimes helped with case-related activities such as those
involving multimedia. He said that for the Defendant’s case, he was asked to create a scale
drawing of the victim’s residence because the drawing in existence was not to scale. He said
that he went to the house with defense counsel and a person identified as Mr. Bowlin and
measured the front porch, the living room, the furniture, the widths of the doorways, and the
distances from the walls to the furniture. He said that he took the data and created an
accurate, computer-generated drawing to scale. He identified a copy of the drawing. He said
that by the time he went to the residence, three items had been removed from the residence,
so that the sizes of those objects on the drawing were estimates. He said the objects about
which he had to estimate sizes were the two rocking chairs on the front porch and a chair
inside the house. He agreed the sofas, the tables, the heater, and the entertainment center
were still there. He said he included a ruler that would give scaled feet in order to measure
any arbitrary distance. He said that the furniture had been moved around when he was there,
but having measured the physical dimensions and comparing them to the police photographs,
he was able to draw them “very close” to where they were on the night of the shooting, but
“not precise to the inch.”

         On cross-examination, Mr. Merkle testified that he went to the crime scene just after
the Labor Day holiday. He acknowledged that the crime happened on August 8, 2005, a
month earlier. He agreed that in his drawing, the sofa was far enough from the front door
that it could open without hitting the sofa. When presented with photographs of the crime

                                             -19-
scene, he said that the perspective in the photographs did not clearly illustrate whether the
door was in physical contact with the sofa.

       Sandra Sue Rickett, the Defendant’s sister-in-law, testified that she had known the
Defendant and the victim for eleven years. She said she saw them once or twice a week. She
said that her relationships with the Defendant and the victim were good ones. She said that
she would speak with the victim on the telephone, that she would visit the victim’s house,
or that the victim and the Defendant would come to her house. She said she saw the
Defendant and the victim drinking alcohol. She said that when they came to her house, they
were drinking alcohol “[p]robably every time.” She could not say whether she had ever seen
the Defendant drunk, but she said that she had seen the victim drunk. She said that after the
victim became ill, their contact became more frequent because she bought more eggs because
the Defendant had stopped working and his income was from selling eggs. She said that she
worked at a daycare center taking care of children and cooking. She said that her contacts
with the victim took place at the daycare parking lot after the victim would call to arrange
a delivery of eggs. She said that the victim and the Defendant would be in the car and that
she would talk to them. She said that they smelled of alcohol most of the time.

       Ms. Rickett testified that the victim’s drinking habits and levels of intoxication were
consistent through the eleven years. She said that she also cut hair and that she sometimes
had difficulty cutting the victim’s or the Defendant’s hair because they were so intoxicated.
She said that one time the victim was so intoxicated that she moved around. She said the
victim once came to her house intoxicated and fell into her daughter. She said she knew that
the victim had cancer. She said that when the victim was diagnosed with cancer, she
weighed 160 or more pounds. She agreed the victim underwent radiation and chemotherapy
treatments. She said she witnessed the victim’s health deteriorate. She said she last saw the
victim several weeks before the shooting.

        On cross-examination, Ms. Rickett testified that the daycare center where she worked
was in downtown Clinton, about thirty minutes from the victim’s residence. She said that
the Defendant and the victim met her at the center in both 2004 and 2005, until she started
work with the school system in August 2005. In response to a question that if she smelled
alcohol, she assumed the Defendant and the victim were drunk, she said that sometimes she
could tell by the way the victim was sitting in the car that the victim had more than “just a
drink.” She said the smell of alcohol was in the car and that it could have come from the
Defendant as well. She acknowledged that both of them could have been drunk. She said
that if she did not meet the Defendant and the victim at the center, she would meet them at
her house. She said that the last time she saw the victim was at her house sometime in July
2005. She said that the victim and the Defendant had been drinking. She said that her



                                             -20-
husband, a retired police officer, was there. She acknowledged that she was not so concerned
about their level of intoxication that she alerted the authorities.

       Ms. Rickett testified that the victim fell into her child in December 2004, while trying
to hand her child a Christmas present. She did not remember that the victim was released
from the hospital in December 2004. She said that she cut the victim’s hair in 2004 before
the victim’s hair fell out as a result of her cancer treatments.

       James Pittman testified that he rented a home to the Defendant. He said that he lived
approximately two-tenths of a mile from the house where the Defendant lived. He said that
the house had been built by his father and his grandfather and that he owned about ten acres.
He said that he could not see the Defendant’s house from his. He said that he met the
Defendant through his brother, Steve, who worked for Smith Built Homes. He said that
about three years before the shooting occurred, his brother brought the Defendant and the
victim to see the house because they needed a place to live. He said that he liked the victim.
He said that the Defendant and the victim were willing to repair the house and that they lived
there for three months in exchange for fixing it up. He said that after three months, they
became regular renters and that he charged “so much a month and utilities.” He said that
they were very good renters and that they always paid on time. He said they would call after
the victim received her check, and he would go to their house to retrieve it. He said the
Defendant always handed him the rent. He said they liked chickens and pigs. He said he
sometimes sat with them and watched the animals. He said the Defendant had a chicken
coop and a chicken house, and he covered it so the hogs could not get in. He said they paid
rent for August 2005, before the victim was killed on August 8. He said he had been to the
house before August 8, and that the victim was obviously in pain, was uncomfortable, and
had lost a lot of weight. He said she was able to walk onto the porch. He said he gave the
August rent to the funeral home to help defer the costs of the victim’s funeral. He said he
did not know the victim’s family, but he might have seen a daughter-in-law once who came
to take the victim to the doctor. He said he saw one of the sons once.

         Mr. Pittman testified that the Defendant and the victim kept a Doberman and that he
never went inside the house because of it. He said that he stayed on the front porch and that
he sometimes drank with them. He said he saw the victim drink from a plastic container and
that it smelled like beer. He said that he believed the Defendant’s company gave him time
off to be with the victim. He said the Defendant did a very good job taking care of such an
old place. He said that the victim kept a flower garden and that she loved flowers. He said
they were proud of their home.

       On cross-examination, Mr. Pittman testified that he was aware that the victim had
throat cancer and that she smoked a lot of cigarettes. He said he visited her in the hospital

                                             -21-
once. He said the victim was not employed after she was diagnosed with cancer. He said
she received a check, but he acknowledged that the Defendant paid him. He said he did not
see the victim give the Defendant any money. He disagreed that the Defendant did not have
a job during the last eight months of the victim’s life. He said that the company gave the
Defendant some time off. He believed the last time he saw the victim was August 3. He said
he did not know if she was drinking on that occasion, but he said that she was on a lot of
medication and could hardly communicate. He said she would look at the Defendant, the
Defendant would express what the victim wanted to say, and the victim would nod her head
in acknowledgment.

        In rebuttal, Cora Phillips testified that she was the victim’s daughter-in-law and that
she was married to the victim’s son, Daniel. She said that she was at the victim’s house on
December 24, 2004, with her husband, her brother-in-law, and her sister-in-law. She did not
recall Edward Pittman stopping by the house that day. She identified a picture purported to
have been taken on December 24, 2004, although the date stamp on the photograph read
21/1/2002. Ms. Phillips explained that the battery went dead, that they replaced it, and that
was how the date “got messed up.” She agreed that the victim did not have any hair at that
time. She said she drove the victim to the hospital four or five times and to the doctor’s
office “quite a bit.”

      The jury convicted the Defendant of second degree murder. The trial court applied
one enhancement factor, that the Defendant used a firearm in the commission of the offense,
and sentenced the Defendant to sixteen years in the Department of Correction.

                                        ANALYSIS

                                               I

      On appeal, the Defendant contends that the evidence was insufficient to support his
conviction. The State contends that the evidence is sufficient. We agree with the State.

       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 (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). Any questions about the credibility of the witnesses were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

                                             -22-
       Under the statute applicable to the Defendant, second degree murder is defined in
pertinent part as the “knowing killing of another.” T.C.A. § 39-13-210(a)(1) (2003)
(amended 2006). A “knowing killing” requires that the person must be aware that his
“conduct is reasonably certain to cause the result.” T.C.A. § 39-11-106(a)(20) (2003)
(amended 2009). Second degree murder is a Class A felony. T.C.A. § 39-13-210(c).
Therefore, the State was required to prove beyond a reasonable doubt that the Defendant was
aware that his conduct was reasonably certain to cause the victim’s death and that he killed
the victim.

        We conclude that the evidence is sufficient to support the Defendant’s conviction.
The proof at the trial was that the Defendant pointed a loaded shotgun at the victim’s chest.
The Defendant stated on the 9-1-1 call that he was “playing around” with a loaded shotgun,
that the victim pulled the gun’s barrel, and that it fired. The proof showed that the victim
was in a highly intoxicated or stuporous state and that no wounds indicating she pulled on
the barrel of the shotgun were found during the autopsy. Although the distance from which
the gun was fired was in dispute, we must presume that the jury resolved this conflict in favor
of the State. When viewed in the light most favorable to the State, we conclude that any
rational trier of fact could have found the elements of second degree murder beyond a
reasonable doubt. We hold that the evidence is sufficient to support the Defendant’s
conviction for second degree murder. The Defendant is not entitled to relief on this issue.

                                              II

        The Defendant contends the trial court erred by allowing the testimony of the State’s
pharmacology expert witness, Dr. Glen Farr, because he did not receive notice of the expert
until two weeks before trial and because he did not receive the expert witness’s report until
the morning of the trial. Next, the Defendant argues that given the voluminous nature of the
expert’s report, the trial court should have granted a continuance to allow him time to review
the report. The State contends that the trial court properly admitted the expert testimony and
that it properly denied the Defendant’s motion for continuance.

        According to the record, the Defendant received notice on August 20, 2007, that Dr.
Glen Farr was going to be called as an expert witness in pharmacology. The trial did not
commence until September 11, 2007, twenty-two days later. The State did not receive the
expert’s report until the night of September 10, at which time it was forwarded electronically
to defense counsel, who received it at approximately 4:00 on the morning of the trial. At a
pretrial hearing, however, defense counsel stated that he had telephoned Dr. Farr on
September 10 and had spoken to him for about an hour and that he had “some sense of what
the report was going to look like.” Defense counsel did not request a continuance at that
time.

                                             -23-
       During the trial, Dr. Farr was informed that the TBI had made an error in the victim’s
toxicology report: the .13 µG/mL of oxazepam was in fact .13 µG/mL of oxycodone.
Defense counsel spoke with Dr. Farr, who informed him that the new information did not
change the expert opinion about the effects of the drugs on the victim. Defense counsel
moved for a continuance to allow a defense expert to review the new information. The trial
court denied the motion, and defense counsel had the opportunity to speak again with the
witness and also exercised the opportunity to cross-examine Dr. Farr. Dr. Farr testified that
the effects of oxycodone on the victim would have been essentially the same as the effects
of oxazepam and that his opinion of the victim’s state at the time of her death had not
changed.

        Regarding the Defendant’s contention that he received inadequate notice of the State’s
intent to call Dr. Farr as a witness and of the scope of Dr. Farr’s testimony, Tennessee Code
Annotated section 40-17-106 requires that the names of prospective witnesses appear on the
indictment. However, the statute is “directory in nature” and does not disqualify a witness
from testifying. See State v. Street, 768 S.W.2d 703, 711 (Tenn. Crim. App. 1988); State v.
Morris, 750 S.W.2d 746, 749 (Tenn. Crim. App. 1987). The Defendant is not entitled to
relief absent a showing of prejudice. See State v. Reid, 91 S.W.3d 247, 293 (Tenn. 2002);
McBee v. State, 213 Tenn. 15, 27 (Tenn. 1963). Our supreme court has held that receiving
notice of a witness the day before trial is not prejudicial when the defendant has an
opportunity to interview the witness before the trial and to cross-examine the witness during
the trial. See State v. Hutchinson, 898 S.W.2d 161, 171 (Tenn. 1994). Rule 16 of the
Tennessee Rules of Criminal Procedure allows a defendant to inspect and copy or photograph
the results or reports of scientific evidence that are in the state’s possession, custody, or
control if the item is material to the defense or if the state intends to use the item in its case-
in-chief at the trial. Tenn. R. Crim. P. 16(a)(1)(G).

        In this case, the Defendant was notified about the expert witness three weeks before
the trial. Defense counsel spoke with the expert for an hour before the trial and had “some
sense” of the contents of the expert’s report. The Defendant was afforded another
opportunity to speak with the expert during the trial, and the Defendant cross-examined the
expert during the trial. Finally, the Defendant received a copy of Dr. Farr’s report within
hours of it coming within the State’s possession. We hold that the Defendant was not
prejudiced by the State’s notifying him of its expert witness three weeks before trial or by his
receiving the expert report the morning of trial when he was afforded an opportunity to
interview the witness before trial and during the trial and to cross-examine the witness.

      Regarding the admission of Dr. Farr’s testimony, Rules 702 and 703 of the Tennessee
Rules of Evidence address the admissibility of opinion testimony of expert witnesses.
Questions regarding the admissibility, qualifications, relevancy, and competency of expert

                                               -24-
testimony are left to the discretion of the trial court. McDaniel v. CSX Transp., Inc., 955
S.W.2d 257, 263-64 (Tenn. 1997). A trial court’s ruling on the admissibility of such
evidence may be overturned on appeal only if the discretion is exercised arbitrarily or abused.
State v. Stevens, 78 S.W.3d 817, 834 (Tenn. 2002).

         The Defendant has failed to show that the trial court abused its discretion or exercised
it arbitrarily when it admitted Dr. Farr’s testimony. The court acknowledged the TBI’s error
but also noted that the Defendant was not prejudiced by the error because the effects of the
different drug were the same as were originally reported. The court allowed the Defendant
ample opportunity to cross-examine Dr. Farr about his report and his opinion in light of the
TBI’s error. We conclude that the trial court did not abuse its discretion when it admitted
Dr. Farr’s testimony.

       Finally, regarding the Defendant’s contention that the trial court abused its discretion
when it denied his motion for a continuance, we note that the decision whether to grant a
continuance rests within the discretion of the trial court. See State v. Morgan, 825 S.W.2d
113, 117 (Tenn. Crim. App. 1991). The denial of a continuance will not lead to a reversal
absent an abuse of discretion and resulting prejudice. See State v. Seals, 735 S.W.2d 849,
853 (Tenn. Crim. App. 1987).

         Upon our review of the record, we conclude the Defendant has failed to show that the
trial court abused its discretion in denying his motion for continuance and that he was
prejudiced as a result. The trial court found that the Defendant received the report before
trial, providing him with notice of the subject of the testimony and the evidence against him.
The Defendant received the report within hours after the witness presented it to the State.
The expert witnesses testified that identical levels of oxazepam or oxycodone would not have
differing effects on the victim. The trial court noted the TBI’s error and gave the Defendant
an opportunity to talk to the expert witness, and the Defendant was allowed to cross-examine
the witness about the error. The opinions of the expert did not change as a result of the TBI
error. We hold that the trial court did not abuse its discretion in denying the Defendant’s
motion for a continuance. The Defendant is not entitled to relief on this issue.

                                               III

       The Defendant contends that the trial court erred in allowing the medical examiner,
Dr. Sandra Elkins, to testify to the effects of alcohol and narcotics on the victim because Dr.
Elkins was an expert in forensic pathology and not an expert in narcotics or pharmaceuticals.
The State contends that the trial court did not abuse its discretion in admitting the testimony
of Dr. Elkins because she was qualified to render an expert opinion due to her education and
formal training. We agree with the State.

                                              -25-
        Rules 702 and 703 of the Tennessee Rules of Evidence address the admissibility of
opinion testimony of expert witnesses. Rule 702 states in pertinent part: “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.” Tennessee Rule of Evidence 703 requires the expert’s opinion to be supported
by trustworthy facts or data “of a type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject.” The determining factor is “whether the
witness’s qualifications authorize him or her to give an informed opinion on the subject at
issue.” Stevens, 78 S.W.3d at 834. Evidence constitutes “‘scientific, technical, or other
specialized knowledge,’ if it concerns a matter that ‘the average juror would not know, as a
matter of course.’” State v. Murphy, 953 S.W.2d 200, 203 (Tenn. 1997) (quoting State v.
Bolin, 922 S.W.2d 870, 874 (Tenn. 1996)). Questions regarding the admissibility,
qualifications, relevancy, and competency of expert testimony are left to the discretion of
the trial court. McDaniel, 955 S.W.2d at 263-64. As we noted in the previous section, a trial
court’s ruling on the admissibility of such evidence may be overturned on appeal only if the
discretion is exercised arbitrarily or abused. Stevens, 78 S.W.3d at 832; see also State v.
Schuck, 953 S.W.2d 662, 669 (Tenn. 1997) (“an appellate court should find an abuse of
discretion when it appears that a trial court applied an incorrect legal standard, or reached a
decision which is against logic or reasoning”).

       The Defendant argues that the trial court’s decision to admit Dr. Elkins’s testimony
was an abuse of discretion because it was illogical for the trial court to allow a medical
examiner to give testimony regarding the effects of narcotics and alcohol on the victim when
the victim was alive. During a motion in limine, the trial court determined that it would
allow Dr. Elkins to testify about the effects of the drugs and alcohol on the victim’s system
because she was a medical doctor. The court stated that the issue was not one of
admissibility but of weight.

        At the trial, Dr. Elkins testified that she held two bachelor’s degrees, one in biology
and one in chemistry. She earned her medical degree and then worked for two years as a
post-graduate in the fields of general and trauma surgery. She also had an additional three
years of training in anatomic pathology and another year in a forensic fellowship. The trial
court determined that Dr. Elkins’s qualifications authorized her to give an informed opinion
about the effects of the drugs on the victim. Dr. Elkins possessed “knowledge, skill,
experience, training, or education” which the average juror would not know. T.R.E. 703; see
Murphy, 953 S.W.2d at 203. The trial court did not apply an incorrect legal standard or reach
a decision which was against reason or logic. We hold that the trial court did not abuse its
discretion when it admitted the expert testimony of Dr. Elkins. The Defendant is not entitled
to relief on this issue.

                                              -26-
                                              IV

       The Defendant contends that the trial court erred in failing to grant a continuance to
allow the defense’s firearms expert additional time to conduct further tests of the shirt the
victim was wearing when she was shot. The State contends that the Defendant has failed to
show that the trial court’s denial of the motion was prejudicial.

       The decision whether to grant a continuance rests within the discretion of the trial
court. See Morgan, 825 S.W.2d at 117. The denial of a continuance will not lead to a
reversal absent an abuse of discretion and resulting prejudice. See Seals, 735 S.W.2d at 853.

        During a pretrial hearing, the Defendant requested a continuance because he had
recently learned from his firearms expert that the victim’s T-shirt might contain carbon
particles. Defense counsel stated that he had received this information on August 31, 2007,
just days before the trial. He said that whether carbon particles were present would have a
bearing on the distance from the barrel to the victim’s wound. After discussion among
defense counsel, the State’s prosecuting attorney, and the trial court about the expert
testimony from the firearms experts, defense counsel stated:

              Actually, Judge, I guess, you know, I could probably live with
              the state of the proof right now. If Dr. Elkins is going to say the
              shot was five to eight feet away and the TBI was going to say
              it’s between five and 25 feet away, I can live with that.

The following exchange occurred later:

              THE COURT:                   Well, so you are telling me now
                                           that you’re not concerned about
                                           doing the carbon testing?

              DEFENSE COUNSEL:             What I’m telling you, what she
                                           agrees to–

              THE COURT:                   If you can—you can live with five
                                           to eight feet?

              DEFENSE COUNSEL:             I can live with five to eight feet, yes.

              THE COURT:                   So you don’t care about carbon
                                           testing if that’s the testimony?

                                             -27-
              DEFENSE COUNSEL:             Then I don’t care about carbon
                                           testing if she’s–if that’s what’s
                                           going to happen.

        The record reflects that firearms testing was conducted by the TBI as well as by the
defense’s firearms expert. At the motion for new trial, defense counsel stated that the
defense’s firearms expert might have been able to determine that the distance of the shotgun
barrel to the T-shirt was between two and three feet, rather than the five to eight feet range
to which Dr. Elkins’s testified and which defense counsel determined was acceptable in lieu
of a continuance. The Defendant conceded his motion for a continuance because Dr. Elkins
testified that the shot was from a distance of five to eight feet. Not only has the Defendant
failed to show an abuse of discretion and prejudice, we conclude that the Defendant has
failed to preserve the issue. See T.R.A.P. 36(a) (“nothing in this rule shall be construed as
requiring relief be granted to a party . . . who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error”).

                                              V

      The Defendant contends that the trial court erred in allowing his statements to police
to come into evidence. The State contends that the trial court properly admitted the
Defendant’s statements.

        At a pretrial motion to suppress, Officer Phillip Dalton of the Knox County Sheriff’s
Office testified that he responded to the call at the victim’s residence. He said he initially
treated the call as an accidental shooting. He said that a dog was barking, that he asked the
Defendant to secure the dog, and that he asked the Defendant to step onto the porch. He
stated that once the Defendant was on the porch, he asked what had happened. He said the
Defendant was obviously intoxicated. He said the Defendant twice asked him if he believed
the Defendant had shot the victim. He said that at some later point, Detective L.G. Moore
and Detective McKee came to the scene and instructed him to take the Defendant into
custody.

       On cross-examination, Officer Dalton testified that he recalled that he initially
believed that dispatch reported the shooting as a suicide. He said the victim was distraught,
staggering, and intoxicated. He said he did not advise the Defendant of his rights. On
redirect examination, a copy of the Defendant’s 9-1-1 call and Officer Dalton’s in-car video
were received into evidence.

       On recross-examination, Officer Dalton said that after the other two officers arrived,
he did not participate in the discussion with the Defendant. Officer Dalton said that if the

                                             -28-
Defendant had tried to leave, he “probably [would] not” have let him. On redirect
examination, Officer Dalton testified that he would not have arrested the Defendant but that
he would have wanted him to remain at the residence.

       Detective L.G. Moore testified that he responded to the shooting at the victim’s
residence. He testified that the Defendant was sitting on the porch. He said he informed the
Defendant of his Miranda rights but did not get a written waiver. See Miranda v. Arizona,
384 U.S. 436 (1966). He said that after he read the Defendant his Miranda rights, he began
recording the conversation. A transcript of the statement was received into evidence. He
said that after a concern arose whether the shooting was accidental, he handcuffed the
Defendant and transported the Defendant to the Detention facility.

        On cross-examination, Detective Moore testified that he had a Miranda rights waiver
in his car, but he did not want to walk back to retrieve it. He agreed that he did not turn on
the recorder until after he had advised the Defendant of his rights and that there was no proof
that he advised the Defendant of his rights. He agreed that on the first two pages of the
transcript of that recording, the Defendant stated five times, “I don’t want to talk to you.”
He also agreed that he continued to talk to the Defendant. He said that he did not read the
Miranda rights to the Defendant from a written form but recited them from memory. He said
that he interpreted the Defendant’s statements “I don’t want to talk about it” as the Defendant
was upset. When asked what the Defendant’s statement “You can talk about it tomorrow”
meant, he said he thought he would have to talk to the Defendant again. He agreed that he
did not stop and tried a fifth time to elicit a statement from the Defendant.

       Detective Moore testified that he did not have to stop talking to the Defendant until
the Defendant invoked his right to counsel. He agreed that the way he understood the law
was that he did not have to stop interrogating a defendant if the defendant expressed a desire
to cease interrogation. He said the Defendant told him the Defendant held the weapon and
the victim grabbed the barrel and pulled it to her chest. He agreed that the Defendant told
the same story repeatedly.

       The trial court granted the Defendant’s motion to suppress in part and denied it in part.
The court stated that Officer Dalton’s initial inquiries were necessary in responding to a call
and that any statements made during that conversation were admissible. However, the court
found that once the Defendant was directed to go outside and sit on the porch, the
circumstances of the investigation changed, and this order to the Defendant constituted a
custodial situation. The court determined that Detective Moore further reinforced the
custodial situation when he read the Defendant his Miranda rights and that the Defendant
clearly stated his desire to remain silent.



                                              -29-
       Before jury selection, defense counsel informed the court that Officer Dalton
instructed the Defendant to go outside not once, but twice. The Defendant refused Officer
Dalton’s first request and only went outside when Officer Dalton again instructed the
Defendant to go onto the porch. The following is a partial transcript of Officer Dalton’s in-
cruiser recording:

              OFFICER DALTON:             Whoa dog will bite. (talking to
                                          other officer.) Is this the shotgun?

              THE DEFENDANT:              Yeah, that’s the shotgun.

              OFFICER DALTON:             Does she have a pulse at all?

              THE DEFENDANT:              I don’t know.

              OFFICER DALTON:             Do me a favor, step out here?

              THE DEFENDANT:              She pulled the gun. She was
                                          playing with it. And she pulled it.
                                          It shot her in the chest. She may be
                                          still alive.

              OFFICER DALTON:             You got a pulse anywhere?

              THE DEFENDANT:              She pulled the damn gun and it
                                          went off. Wait a minute. (talking
                                          and dog barking)

              OFFICER DALTON:             She’s inside.

              THE DEFENDANT:              Shut that door, in there. Don’t let
                                          that dog out.

              [UNIDENTIFIED]:             Get in here and shut the door so we
                                          don’t have to kill the dog. Get in
                                          here and shut the door real quick.

              OFFICER DALTON:             Has she been drinking?




                                            -30-
THE DEFENDANT:    We both been drinking. She
                  reached and got the damn gun and
                  it went off.

OFFICER DALTON:   Get your dog O.K.? Anybody else
                  in the house?

THE DEFENDANT:    No. We were just playing around.
                  She reached and got the end of the
                  and pulled the end of the gun and
                  pulled it and the son of a bitch went
                  off.
                  No, ain’t nobody else here.
                  We was just fooling around and she
                  reached and got the gun.
                  Oh Lord, oh Lord.

OFFICER DALTON:   Let me see your ID. How old is
                  she?

THE DEFENDANT:    She’s thirty some year old.

OFFICER DALTON:   She’s thirty something?

THE DEFENDANT:    Forty. We have lived together for
                  about 5 years.

OFFICER DALTON:   How much have each one of ya’ll
                  had to drink?

THE DEFENDANT:    Aw, not to[o] much. We were just
                  sitting here with the gun. She
                  pulled it.

OFFICER DALTON:   She pulled the gun towards her?

THE DEFENDANT:    Yeah. Hell yeah. It went off. It
                  shot her right in the God damn
                  chest. I said man don’t . . . .



                   -31-
              OFFICER DALTON:              We cleared the gun. She’s 91.
                                           (talking)
                                           When she pulled it who had the
                                           handle?

              THE DEFENDANT:               Well, I had the handle. Yeah I had
                                           the gun trying to show her how to
                                           use it. She pulled it. It went off. I
                                           said God dam [sic]. We were just
                                           fooling around. Is she dead.

              OFFICER DALTON:              The ambulance is here. We just
                                           need to do everything we can.
                                           Does she have a purse or anything.
                                           What’s her name.
                                           Does she have a purse?

              THE DEFENDANT:               It’s right there.
                                           We were just fooling around?
                                           Is she dead?

              OFFICER DALTON:              Come on outside with me. Get out
                                           of these guys way. You just have a
                                           seat out here.

(Emphasis added.)

       The trial court clarified its suppression order to apply to the statements the Defendant
made after he actually went onto the porch. The court said that its suppression order did not
apply to anything the Defendant said between Officer Dalton’s first and second requests to
go outside. The court based its decision on its determination that between the two requests,
Officer Dalton was conducting a preliminary investigation and trying to determine what had
happened to the victim. The court said that once the Defendant was on the porch, the nature
of the officers’ actions changed from “investigating mode” to “interrogating mode.” The
Defendant contends that the suppression ruling should have applied to the Defendant’s
statements after Officer Dalton asked the Defendant, “Do me a favor, step out here?”

       A trial court’s factual findings on a motion to suppress are conclusive on appeal unless
the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);
State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the

                                             -32-
“credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts
in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928
S.W.2d at 23. The State, as the prevailing party, is entitled to the strongest legitimate view
of the evidence and all reasonable inferences drawn from that evidence. State v. Hicks, 55
S.W.3d 515, 521 (Tenn. 2001). The application of the law to the facts as determined by the
trial court is a question of law which we review de novo on appeal. State v. Yeargan, 958
S.W.2d 626, 629 (Tenn. 1997).

        We conclude that the evidence does not preponderate against the trial court’s findings
that Officer Dalton was conducting an initial investigation into the shooting during the time
he was inside the residence with the Defendant. The record reflects that after Officer Dalton
first requested that the Defendant step outside, the Defendant volunteered information about
the circumstances surrounding the shooting. The Defendant is not entitled to relief on this
issue.

                                              VI

       The Defendant contends that the trial court erred in allowing the State to amend TBI
Agent John Harrison’s toxicology report during trial and in refusing to grant a continuance.
The Defendant argues that the defense theory was that he and the victim were struggling over
the shotgun when it accidentally discharged and that not allowing a continuance in order to
seek independent expert review was prejudicial. The State contends that the trial court did
not abuse its discretion in denying the Defendant’s request for a continuance.

       The decision whether to grant a continuance rests within the discretion of the trial
court. See Morgan, 825 S.W.2d at 117. The denial of a continuance will not lead to a
reversal absent an abuse of discretion and resulting prejudice. See Seals, 735 S.W.2d at 853.

       On the morning of the trial, TBI Agent John Harrison noticed that he had incorrectly
reported that the victim had oxazepam in her system instead of oxycodone. Defense counsel
telephoned the pharmacology expert, Dr. Glen Farr, and in that discussion learned that Dr.
Farr’s opinion remained unchanged. Dr. Farr’s opinion was that the oxazepam and
oxycodone would have the same effects on the victim. Dr. Elkins also testified that the
oxazepam and oxycodone would have the same effects on the victim.

       In denying the Defendant’s motion for a continuance, the trial court stated:

              Today we found out that the accurate report is that it was not a
              benzodiazepine [oxazepam] but rather oxycodone at the same
              level, 13 UG/ML. Mr. Stephens was concerned that this was

                                              -33-
              going to change the analysis by Dr. Farr who was prepared to
              testify based on the alcohol content and the benzodiazepine
              content. Mr. Stephens advises me that he’s talked with Dr. Farr
              just in the last few minutes and has been advised by him that it
              would have no appreciable different [e]ffect. In other words,
              the OxyContin would have essentially, the effect as the
              benzodiazepine, and at this dosage it would be the same.

              He has moved for a continuance saying that he would like the
              opportunity to have his own person examine this and take a look
              at it. I am of the opinion that I’m not going to grant that motion
              because I think that essentially this leaves him in a neutral
              position. In other words, although it’s a drug by a different
              name, according to the expert, it has the same impact as the
              original identified drug, and therefore, it is not prejudicial to the
              defendant in any way to allow it to continue, notwithstanding
              the fact that the actual drug was identified as an incorrect
              substance.

        The Defendant was given the opportunity to discuss the error with Dr. Farr before he
cross-examined Agent Harrison, Dr. Farr, and Dr. Elkins. Dr. Farr and Dr. Elkins testified
that the effects of the oxazepam and the oxycodone would not be different. We hold that the
Defendant has failed to show that the trial court abused its discretion and how he was
prejudiced by the denial of his motion a for continuance. The Defendant is not entitled to
relief on this issue.

                                              VII

       The Defendant contends that the trial court erred in failing to respond properly to a
jury question requesting a definition of “heat of passion” and whether “voluntary
intoxication” was “heat of passion.” The State contends that the trial court properly
responded to the jury question and that the Defendant has waived his right to raise this issue
on appeal because he failed to object to the court’s instruction.

        In criminal cases, the trial court must give “a complete charge of the law applicable
to the facts of the case and the defendant has a right to have every issue of fact raised by the
evidence and material to his defense submitted to the jury upon proper instructions by the
judge.” State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975). An erroneous jury
instruction deprives the defendant of the constitutional right to a jury trial and is subject to
a harmless error analysis. See State v. Garrison, 40 S.W.3d 426, 433-34 (Tenn. 2000). A

                                              -34-
jury instruction must be reviewed in its entirety and read as a whole rather than in isolation.
State v. Leach, 148 S.W.3d 42, 58 (Tenn. 2004). “An instruction should be considered
prejudicially erroneous only if the jury charge, when read as a whole, fails to fairly submit
the legal issues or misleads the jury as to the applicable law.” State v. Faulkner, 154 S.W.3d
48, 58 (Tenn. 2005) (citing State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998)). A trial court
has “the authority to give supplemental instructions when the jury poses a question that
indicates the jurors are confused regarding a question of law.” State v. Dulsworth, 781
S.W.2d 277, 288 n.6 (Tenn. Crim. App. 1989); see State v. Moore, 751 S.W.2d 464, 467-468
(Tenn. Crim. App. 1988); State v. McAfee, 737 S.W.2d 304, 307 n.2 (Tenn. Crim. App.
1987).

        “State of passion” or “heat of passion” has been defined in our case law as
“provocation of a sufficient character,” Rader v. State, 73 Tenn. 610, 620 (1880), and as “any
of the range of emotions known as anger, rage, sudden resentment or terror which renders
the mind incapable of cool reflection.” Drye v. State, 184 S.W.2d 10, 13 (Tenn. 1944); see
also State v. Bullington, 532 S.W.2d 556, 559 (Tenn. 1976); State v. Tune, 872 S.W.2d 922,
926 (Tenn. Crim. App. 1993). Our supreme court has held that the word “passion” is “in
common use and can be understood by people of ordinary intelligence.” State v. Mann, 959
S.W.2d 503, 522 (Tenn. 1997). As long as nothing in the jury charge obscures the meaning
of the word “passion,” it is not necessary for the court to define or explain it. Id.

        During the jury charge, the trial court instructed the jury that if it had reasonable doubt
as to the Defendant’s guilt of second degree murder, it should determine whether the
Defendant was guilty of voluntary manslaughter. The jury charge listed the elements of
voluntary manslaughter as: “(1) that the defendant unlawfully killed [the victim]; and (2) the
defendant acted intentionally or knowingly; and (3) the killing resulted from a state of
passion produced by adequate provocation sufficient to lead a reasonable person to act in an
irrational manner.”

       During deliberations, the jury asked, “On element three of voluntary manslaughter,
what is the definition of ‘state of passion,’” and, “Does intoxication qualify as a state of
passion?” The trial court responded:

               There is no legal definition of “State of Passion.” You, as
               jurors, should rely on your common understanding of what
               constitutes “State of Passion[.]” Intoxication, standing alone,
               would not qualify as a State of Passion.

While the jurors continued their deliberations, defense counsel, the State’s prosecuting
attorney, and the trial court placed the jury’s questions and the trial court’s response on the

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record. The court noted that defense counsel had objected to the court’s response but had not
been able to offer an appropriate instruction at the time. The following exchange occurred:

              THE COURT:                  Our response was, after talking to
                                          the lawyers and getting their
                                          agreement, although [defense
                                          counsel] wasn’t sure he should
                                          agree to anything and objected, but
                                          had no–

              DEFENSE COUNSEL:            I do now.

              THE COURT:                  Oh, do you? Okay, well–
                                          ....

              DEFENSE COUNSEL:            [T]here’s plenty of case law that
                                          defines state of passion, and . . . my
                                          thinking is probably on balance, or
                                          in retrospect, it probably would
                                          have been better to give them case
                                          law or common law definition of
                                          state of passion than to just say,
                                          “Rely on your own judgment,” but
                                          I didn’t offer that when I was in
                                          your chambers, so . . . .

              THE COURT:                  Okay. Well, my response was that
                                          there is no legal definition of state
                                          of passion. You as jurors should
                                          rely on your common
                                          understanding of what constitutes
                                          state of passion.       Intoxication,
                                          standing alone, would not qualify
                                          as a state of passion.”

       Tennessee Code Annotated section 39-13-211 defines voluntary manslaughter as “an
intentional or knowing killing of another in a state of passion produced by adequate
provocation sufficient to lead a reasonable person to act in an irrational manner,” but the
Code does not define “state of passion.” See T.C.A. § 39-13-211 (2003). However, our case
law provides definitions of “passion.” See Bullington, 532 S.W.2d at 560 (quoting Drye,184

                                            -36-
S.W.2d at13). The court should have clarified the jury instruction based on the case law
definitions, and the failure to do so was error. Furthermore, the trial court’s erroneous
supplemental instruction may have obscured the meaning of “passion.” See Mann, 959
S.W.2d at 522. The court correctly instructed the jury that a state of passion could not result
from “intoxication, standing alone,” but it did not clarify the circumstances in addition to
intoxication that would permit the jury to determine that the Defendant’s conduct resulted
from passion. See Bullington, 532 S.W.2d at 560 (noting that a “jury may consider his state
of intoxication along with all other facts of the case to determine whether the killing . . .
resulted from passion excited by inadequate provocation”); Cartwright v. State, 76 Tenn.
376, 382 (1881) (holding that “the jury may consider the drunkenness in connection with all
the facts, to see whether the purpose to kill was formed in passion produced by a cause
operating upon a mind excited with liquor”); see also Mann, 959 S.W.2d at 522.

         We must now determine whether that error prejudiced the Defendant. A jury
instruction is “prejudicially erroneous only if the jury charge, when considered as a whole,
fails to fairly submit the legal issues or misleads the jury as to the applicable law.” Faulkner,
154 S.W.3d at 48. The jury instructions included the elements of the charged offense of
second degree murder and of the lesser included offenses of voluntary manslaughter, reckless
homicide, and criminally negligent homicide. The trial court had defined voluntary
manslaughter in the jury charge as a killing which resulted from a state of passion “produced
by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.”
This language tracks the statute defining voluntary manslaughter and is in line with our case
law. See T.C.A. § 39-13-211; Rader, 73 Tenn. at 620. Nothing in the record reflects that the
Defendant killed the victim after being provoked to an irrational state. The Defendant’s
admissions to the 9-1-1 operator and to the police were that he and the victim were playing
with the gun and it went off. The jury convicted the Defendant of second degree murder and
rejected the lesser included offense of voluntary manslaughter, indicating that the jury was
not mislead as to the applicable law. We conclude that when viewed in their entirety, the jury
instructions did not fail to submit fairly the legal issues or to mislead the jury as to the
applicable law. The erroneous supplemental instruction was harmless, and the Defendant is
not entitled to relief on this issue.

        In consideration of the forgoing and the record as a whole, we affirm the judgment
of the trial court.




                                                     ___________________________________
                                                     JOSEPH M. TIPTON, PRESIDING JUDGE



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