        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON                FILED
                         FEBRUARY SESS ION, 1998           May 5, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

STATE OF TE NNE SSE E,            )   C.C.A. NO. 02C01-9704-CR-00154
                                  )
           Appellee,              )
                                  )   SHELBY COUNTY
V.                                )
                                  )
                                  )   HON . ARTH UR T . BEN NET T,
TYRONE WRIGHT,                    )   JUDGE
                                  )
           Appe llant.            )   (SECOND DEGREE MURDER )



FOR THE APPELLANT:                    FOR THE APPELLEE:

BRE TT B. S TEIN                      JOHN KNOX WALKUP
236 Adams Avenue                      Attorney General & Reporter
Memphis, TN 38103
                                      RUTH A. THOMPSON
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      JOH N W. P IERO TTI
                                      District Attorn ey Ge neral

                                      PAUL GOODMAN
                                      Assistant District Attorney General
                                      201 Poplar Avenue - Third Floor
                                      Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION
       The Defendant, Tyrone W right, appeals as of right his conviction of second

degree murde r following a jury trial in the Sh elby Co unty Crim inal Cou rt. The tria l

court sentenced Defendant to seventeen (17) years incarceration as a Range I

Standard Offend er. In this appeal, Defendant raises three issues: (1) that the trial

court erred in denying his Motion for Judgment of Acquittal; (2) that the evidence

presented at trial was insufficient to support his conviction for second degree

murder; and (3) that the State’s closing argu ment was improper. We affirm the

judgm ent of the tria l court.



       Testimony at trial revealed that on the afternoon of September 9, 1994,

Defendant was shooting craps with Anthony Johnson, the victim’s brother, at the

corner of Johnson and Tillman streets. They gambled for about 30 minutes, and at

the end of the game, Defendant owed Johnson five dollars. Defendant and Johnson

began to argue over the fact that Defendant said they were using “bad” dice and that

they belonged to Johnson. Defendant began calling Johnson names such as

“bitches and whores.” Johnson then h it Defe ndan t with the side o f his fist. A fight

ensued and Johnson pinned Defendant up against a wall and then started to reach

for his pocket knife. Defendant asked Johnson not to kill him, at which point

Johnson let Defendant go. Defendant told Johnson he would go get the money he

owed him. Johnson testified that neither of them were hurt, cut, bleeding or bruised.

After the fight, Johnson got his pocket knife out of his pants pocket and began

cleaning his nails. The victim, Alvin L. Carter, was not present during either the dice

game nor the stru ggle afterw ards.




                                           -2-
       Defendant then be gan wa lking to a nearby store in order to get some change

with which to pay Johnson. In the meantime, the victim arrived at the corner of

Johnson and Tillman streets to meet this brother, Anthony Johnson. About three

minutes later, Defendant returned to the location where the earlier fight took place,

and he was driving a ca r. Accord ing to Johnson, when De fendant got ou t of the car,

he reache d into the back s eat and grab bed a pistol. He then “cocked it right there

in the middle of the street,” and began walking towards Johnson. Defendant said,

“I’m going to -- I’m going to kill one of you b itches yet.” He further stated, “Bitch, you

must [sic] thought I wasn’t coming back.” Johnson testified that he did not think

Defendant would actually shoot him because they were acquaintances of one

another and had not had any problems in the past. In fact, Johnson said that he had

given Defendant and h is child c ar rides in the p ast, an d that th e two o f them would

talk, drink beer or sm oke ma rijuana together o ccasionally.



       As Defendant began climbing some steps towards Johnson, Johnson backed

up until Defendant got to the top of the steps. At this point, Alvin L. Carter, the

victim, intervened and hit the Defendant. When that happened, Defendant pulled

the trigger on the gu n whic h fatally w ound ed the victim. J ohns on sa id that he then

ran and grabb ed De fenda nt’s wris ts and that he bit one o f them so De fenda nt cou ld

not pull the trigger again. At some point during this struggle the gun did fire again,

but no o ne was injured by th is shot.



       Officer Sharon Mosley testified that she responded to a call to go to the scene

of the shooting at 3015 Johnson Street. When she arrived on the scene, Anthony

Johnson ran up to her with a gun in his hand, yelling, “This is the gun that was used.




                                            -3-
This is the gun that was used.” She testified that the victim w as layin g face down in

a grass y area in the alley and d id not rega in consc iousne ss.



          Officer R. W. Weddle testified that no finger prints were found on the gun

because the gun h ad a ro ugh te xture th at ma de it difficult to impossible to retrieve

prints.     Dr. O’Bry an Clare y Smith, a n asso ciate profe ssor of p athology at the

Univers ity of Tenn essee , perform ed the a utopsy o n the victim . He testified that the

victim died from a gunshot wound to his chest. Powder burns on the victim’s body

indicated that the victim was within a range of loose contact to six inches of the gun

muzz le at the tim e of disch arge.



                                       Issues I. a nd II.



          In his first issue, Defendant contends tha t the trial court erred in denyin g his

motion for judgment of acquittal. In his second issue, Defendant argues that the

evidence was insufficient to sup port his conviction. Because of the common legal

standards and the factu al evidence, this Court will address these two issues

togethe r.



          Rule 29(a) of the Tennessee Rules of Crim inal Proc edure p rovides th at a

court shall “order the entry of judgment of acquittal of one or more offenses charged

in the indictmen t or information after the evidence on either side is closed if the

evidence is insufficient to sustain a conviction of such offense.” Once such a motion

is made, “the trial court must favor the state with the strongest legitimate view of the

evidence, including all reasonable inferences, and discard any countervailing

evidenc e.” State v. Anderson, 880 S.W.2d 720, 726 (Tenn. Crim. App. 1994). The

                                              -4-
trial court is presented with the que stion of leg al sufficienc y of the evide nce. State

v. Cam pbell, 904 S.W .2d 608, 611 (Tenn. Crim . App. 1995 ). The sam e standard

applies in dete rminin g whe ther to g rant a ju dgm ent of a cquitta l as ap plies in

determining the sufficiency of the evidence after a conviction.           Anderson, 880

S.W.2d at 726.



       When an accused challenges the sufficiency of the convicting evidence, the

stand ard is w hethe r, after re viewing the evid ence in the ligh t mos t favora ble to the

prosection, any rational trier of fact could have found the essential elements of the

crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S. 30 7, 319 (1979 ).

This standard is applicable to findings of guilt predicated upon direct evidence,

circumstantial evidence or a combination of direct and circumstantial evidence.

State v. Matthews, 805 S.W .2d 776 , 779 (T enn. C rim. App . 1990). On appeal, the

State is entitled to the strongest legitimate view of the evidence and all inferences

therefrom. State v. Cabbage, 571 S.W .2d 832 , 835 (Tenn. 1978). Because a

verdict of guilt re move s the p resum ption o f innoc ence and re place s it with a

presumption of guilt, the accused has the bu rden in this court of illustrating why the

evidence is insufficient to suppo rt the verdict re turned b y the trier of fac t. State v.

Williams, 914 S.W.2d 940, 945 (Tenn. Crim. App. 1995) (citing State v. Tug gle, 639

S.W.2d 913, 914 (Tenn. 1982)); State v. Grace, 493 S.W.2d 474, 476 (Ten n. 1973).



       Questions conce rning the credibility of the witnesses, the weigh t and valu e to

be given th e evide nce, a s well a s all factu al issue s raised by the evidence, a re

resolved by the trier of fact, no t this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). Nor m ay this court

reweigh or reevaluate the evide nce. Cabbage, 571 S.W.2d at 835. A jury verdict

                                            -5-
approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts

in favor of the State. Grace, 493 S.W.2d at 476.



       The eviden ce pro duce d at trial c learly supports the decision of the trial court

to deny D efend ant’s motion for judgment of acquittal, and the jury’s decision to find

Defendant guilty of second degree murder. Second degree murder is defined as “A

knowing killing of another.” Tenn. Code Ann. § 39-13-210(a)(1). Tennessee Code

Annotated section 39-11-302 provides the following with respect to the knowing

requirem ent:

       ‘Knowing’ refers to a person who acts knowingly with respect to the
       conduct or to circumstances surrounding the conduct when the person
       is aware of the natu re of the co nduct o r that the circ umsta nces e xist.
       A person acts knowingly with resect to a result of the person’s conduct
       when the person is aware th at the con duct is rea sonab ly certain to
       cause the resu lt.


Tenn . Code Ann. § 3 9-11-30 2(b).



       Defendant argues that the proof presented at trial amounted to a case of

voluntary manslau ghter, not seco nd deg ree mu rder. See Tenn. Code Ann. § 39-13-

211(a).    Tennessee C ode Ann otated section 3 9-13-311(a ) defines voluntary

manslaughter as “the intentional or kno wing k illing of a nothe r in a state of passion

produced by adequate provocation sufficient to lead a reasonable person to act in

an irrational manne r.” The trial court did give an instruction to the jury on voluntary

manslaughter as a less er offens e of second degree murder. H owever, the jury

chose to rejec t this theory.



       Defendant argues that such adequate provocation did exist to lead him to act

in an irrational manner. While our courts have held that mutual combat can provide

                                            -6-
such adequ ate provocation, “[w]hether the acts constitute a ‘knowing killing’ (second

degree murde r) or a killing du e to ‘adequate p rovocation’ (voluntary manslau ghter)

is a question for the jury.” State v. Johnson, 909 S.W.2d 461, 464 (Tenn. Crim. App.

1995). In Johnson, the court stated:


      The issue for our consideration is merely whether the evidence
      established all of the elem ents of second degree murder. Because
      there are facts in the record that the defendant intentionally shot and
      killed an unarmed man, that is adequate. That the jury chose to reject
      both the notion of provocation and the claim of self-defense was w ell
      within their prerogative.

Id.


      The evidence at trial show ed that Defen dant and the victim’s brother,

Johnson, had been gambling earlier in the day. Defendant called Johnson by

several bad names and a fight ensued. Neither of the men were injured during this

fight. Defendant then left to go get the money he owed Johnso n, but when he

returned he had a loaded gun with him which he cocked and then started walking

toward Johnson and the victim saying, “I’m going to -- I’m going to kill one of you

bitches yet.” The victim, in an apparent effort to protect his brother, intervened by

hitting Defendant. The gun was fired by Defendant, killing the victim. The police

found physical evidence including the weapon, spent shell casings, a live round, and

the car w hich wa s driven b y Defen dant.



      After a careful review of the record , we find that the eviden ce pre sente d clea rly

suppo rts the trial court’s decision to deny the motion for judgment of acquittal, and

likewise provided sufficient evidence for a jury to find Defendant guilty of all the

eleme nts of the c rime of se cond d egree m urder. T hese iss ues are without m erit.




                                             -7-
                                         Issue III.



       In his last issue, Defendant argues that the trial court erred in failing to grant

a mistrial based upon the State’s alleged misconduct during its’ closing arg umen t.

The prosecutor stated the following:

       [W]hen the defendant approached Anthony Johnson with a cocked and
       loaded deadly weapon, he was acting knowingly; and if you find not
       guilty, it would be the equiva lent of a llowing somebody who places a
       bomb that goes off when the bom b squa d tries to dismantle it, blaming
       the bomb squad for the explosion. And that’s ridiculous.


       The control of closin g argu men t rests la rgely within the sound discretion of the

trial court, a nd this Cour t will not interfere with that discretion absent clear abuse.

State v. Thomas, 755 S.W.2d 838, 843 (Tenn. Crim. App.), perm. to appeal denied,

id. (Tenn. 1988). After reviewing the prosecutor’s closing argument, we find the

statem ents m ade to b e wholly p roper.



       Assuming arguendo that the pro secu tor’s sta teme nts we re imp roper , then it

would be necessary to determine whether those statements made by the prosecutor

“could have affe cted the v erdict to the prejudice of the defe ndant.” Harrington v.

State, 215 Ten n. 338, 385 S .W.2d 758, 759 (T enn. 1965).                Five factors are

considered in determining whether the improper conduct could have affected the

verdict: (1) the conduct viewed in context and in light of the facts and circumstances

of the case; (2) the cu rative measures undertaken by the court and the prosecution;

(3) the inte nt of the prose cutor in makin g the imp roper sta temen t; (4) the cumu lative

effect of the im prope r cond uct an d any o ther er rors in the record; and (5) the relative

strength or weak ness o f the case . State v. Buck, 670 S.W.2d 600, 609 (Tenn.

1984); Judge v. State, 539 S.W .2d 340 , 344 (T enn. C rim. App . 1976).


                                             -8-
       When viewed in light of the facts of this c ase, inclu ding the re lative streng th

or weakness of it, the prosecutor’s statement had little if any effect in the decision

of the jury. As previously discussed, there was certainly sufficient evidence of

Defe ndan t’s guilt. Where there is overwhelming evidence of guilt, as here, improper

comm ents by the State during closing argument do not warrant a mist rial or rev ersal,

as there is no prejudice to the defe ndant. Smith v. State, 527 S.W.2d 737 (Tenn.

1975); State v. Wiggins, 729 S.W .2d 291 (Te nn. Crim. Ap p. 1987); State v. Sexton,

724 S.W.2d 371 (Tenn. Crim. App. 1986). As no other errors in the trial are raised

by Defen dant, ther e is no ne ed to analyze the “cumulative effect” of the alleged

improper prosecutorial conduct with other trial errors.



       Also, the trial court cautioned the jury at the time of the statement that no

evidence was being presented at closing arguments, just the “summation and

argument of the lawye rs.” During the jury instruc tion, the trial court also told the jury

that “[s]tatem ents, a rgum ents, a nd rem arks o f coun sel are intend ed to h elp you in

understanding the evidence a nd applying the law, but they are not evide nce. If any

statem ents were made that you believe are not supported by the evidence, you

should disreg ard them.”



       Furthermore, the prosecutor explained that his only intent was to use the

bomb as an analogy in order to show that Defendant acted “knowingly” when he

approached Johnson and the victim with the load ed we apon while s imulta neou sly

threatening to kill someone. The record does not reveal any bad motive or intent on

the part of the State in making this a rgumen t to the jury.




                                            -9-
       Again, we do not find the prosecutor’s statements to be inflammatory or

improper. Howe ver, even a fter analyzin g the state ments as impro per for argum ent’s

sake, any error in the State’s closing argument would be harmless. Tenn. R. App.

P. 36(b); T enn. R . Crim. P . 52(a). Th is issue is w ithout me rit.



       Finding no merit to any of Defendant’s claims, we accordingly affirm the

judgm ent of the tria l court.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge


CONCUR:


(not participating)__________________
JOSEPH B. JONES, Judge


________________________________
JOHN H. PEAY, Judge




                                            -10-
