        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                         AUGUST SESSION, 1997                FILED
                                                       October 14, 1998
STATE OF TENNESSEE,          )   C.C.A. NO. 02C01-9601-CR-00019
                             )                        Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
      Appellee,              )
                             )
                             )   SHELBY COUNTY
VS.                          )
                             )   HON. JOHN P. COLTON, JR.
TAURYS K. WALLS,             )   JUDGE
                             )
      Appe llant.            )   (Direct Appeal - Felony Mu rder)




FOR THE APPELLANT:               FOR THE APPELLEE:

GERALD SKAHAN                    JOHN KNOX WALKUP
140 North Third Street           Attorney General and Reporter
Memphis, TN 38103
                                 WILLIAM DAVID BRIDGERS
                                 Assistant Attorney General
                                 450 James Robertson Parkway
                                 Nashville, TN 37243

                                 WILLIAM L. GIBBONS
                                 District Attorney General

                                 J. ROBERT CARTER, JR.
                                 Assistant District Attorney
                                 201 Poplar Avenue, Third Floor
                                 Memphis, TN 38103


OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                                 OPINION

         Appellant Taurys K. Walls was convicted in the Shelby County Criminal

Court on No vemb er 3, 199 5 of mu rder in the p erpetratio n of a felony, to wit:

robbery.       The trial co urt sente nced A ppellant to life imprisonment with the

Tennessee Department of Correction and imposed a $50.00 fine to be paid to the

Criminal Injuries Compensation Fund. Appellant presents the following issues

for our con sideration on this direct appeal:                          (1) whether the evidence was

sufficient to sustain Appellant's conviction for felony murder; (2) whether the trial

court erred in overruling Ap pellant's m otion to su ppress his statem ent given to

police respe cting h is involvement in the murder of Melvin Charles Ferguson; (3)

whether the trial court abused its discretion in prohibiting defense counsel from

questioning the victim's brother about a laws uit that the brothe r had file d in

connection with Ferguson's death; and (4) whether the trial court erred in refusing

Appe llant's request for a supplemental jury instruction to the effect that all

homicides are presum ed to be sec ond degre e murde r.

         After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                    I. FACTUAL BACKGROUND

         The p roof sho ws that on June 1 1, 1993 , Appella nt and h is co-defe ndant,

Maurice Banks, 1 fatally shot Melvin Charles Ferguson after Ferguson thwarted

their attempts to rob him. The murder and robbery took place at the Scottish Inn

Motel in Memphis, Tennessee.

         At trial, the victim's brother, Mr. Joe Ferguson, explained that at the time

of the murder, the victim had recently retired from the United States Army and


  1
      App ellant and h is co- defe nda nt we re trie d sep arate ly.

                                                          -2-
was seeking emp loyme nt in the Mem phis a rea. A lthoug h Melv in Ferguson had

been alternating between his brother's house and h is mother's resid ence in Fort

Smith, Arkansas, the victim moved to the Scottish Inn Motel a few days prior to

his death in order to afford some privacy to Joe Ferguson and his wife. Mr. Joe

Ferguson further testified that as his brother was unemployed, both Joe and his

mother occasionally gave the victim money. However, unknown to either Joe

Ferguson or his mother, the victim used some of this money to purchase cocaine

from various local drug dealers, including Jeffrey Davis.

      A few hours before Ferguson's death, Jeffrey Davis accompanied Maurice

Banks to the victim's room at the Scottish Inn Mo tel and sold Ferguson $50.00

worth of cocaine. Mr. Davis testified that after completing the drug transaction,

Maurice Banks dropped Davis at Davis' ap artment an d drove awa y.

Approximate ly thirty minute s later, Mr. B anks re turned to Davis' ap artment

accompanied by Appellant, wh o carried a .38 caliber pistol. Accordin g to Mr.

Davis' testim ony, M aurice Bank s borro wed D avis' .380 sem i-autom atic pist ol.

Banks and Ap pellant the n depa rted. Upon returning to Mr. Davis' apartment one-

half hour later, Appellant informed Jeffrey Davis that he had shot someone at the

Scottish Inn.

      On June 16, 1993, Appellant was arrested as a suspect in the Ferguson

murder. Three days later, on June 19, Appellant gave a statement in which he

admitted his involvemen t in Melvin Ferguson's death.          In his confession,

Appellant said that on the night of the incident, an individual who he identified as

"Bull" (Mau rice Ba nks) p icked him u p in the parking lot of a Memphis apartment

complex and state d that he knew someone that the two of them could rob.

Appellant told the police that he carried a .38 caliber handgun and that Bull

armed himse lf with a .380 pistol. The two me n drove to the Scottish Inn Motel

                                        -3-
and walked to a room on the second floor. After knocking on the door, Appellant

and Mr. Ban ks were admitted by a wom an. The victim was in the motel room

with the woman.

       According to Appellant's statem ent, after approximately five minutes,

Melvin Fergus on ask ed App ellant and Bull which one of the m "was straight," a

colloquialism mean ing which person had dru gs. Appellant replied that Bull was,

and Mr. Banks and the victim b oth m oved to ward th e restro om. B ull drew his

pistol and apparently demanded that Ferguso n give him m oney. Mr. Ferguson

handed Bull $300.00, went into the bathroom, and closed the door. Once inside,

the victim flushed the toilet and stated that he was going to flush the remainder

of the mon ey.

       Mr. Ferguson emerge d from the res troom app roximately one m inute later,

and when Bull asked him the location of the rest of the money, Ferguson replied

that he did not kn ow. Bu ll hit the victim in the h ead w ith his p istol. Mr. Ferguson

blocked the mo tel room door with his body and stated that neither Appellant nor

Bull could leave the room until they returned his money. After trying for several

minutes to persuade Mr. Ferguson to step away from the door, Bull asked the

woman where the victim had put the rest of his money. The wom an info rmed Bull

that the mon ey was unde rneath a bus h plan ted ou tside th e mo tel.

       Upon learning the location of the remainder of the money, Bull again asked

Ferguson to move aw ay from the do or. W hen Fe rguso n refus ed, Bu ll fired his

pistol at the victim's leg, and Appellant also shot at him. Appellant told the police

that Ferguson attempted to run down the hallway and away from his assailants.

Howeve r, Bull shot at the victim a few more times, and App ellant fired two more

shots at Fergu son. Ap pellant an d Bull then ran from the building and fled the




                                          -4-
scene in Bull's car. Finally, Bull dropped off Appellant at the same apartment

comp lex where the two h ad me t before the incident.

       Dr. O'Brian Clea ry Smith, an A ssistant Medica l Examiner for Shelby

County, testified that the victim sustained five bullets and died of multiple gunshot

wounds. Dr. Smith testified that he recovered only one bullet from the victim's

body. He stated that this bullet was located in Mr. Ferguson's abdomen and

identified the bullet as being fired from a .38 caliber pistol. Dr. Smith opined that

the wound from this bullet alone would have been sufficient to cause M r.

Ferguson's death.

       Appellant testified on his own behalf at his trial.            Though Appellant

conceded his involvemen t in the incident, Appe llant testified that he shot Mr.

Ferg uson in self-defen se. According to Appellant's trial testimony, on the night

of the incident, he accompanied Maurice Banks to the Scottish Inn Motel so that

Mr. Banks could sell drugs to someone residing there. Appellant denied that he

and Mr. Banks ever discussed the possibility of robbing anyone.                   Instead,

Appellant stated that whe n he and M r. Banks arrived at Mr. Ferguson's room, the

room smelled as though Ferguson and his female companion had been smoking

"crack" cocaine. Mo reover, both the woman and Mr. Ferguson appeared to be

high. Ap pellant furth er testified tha t the victim a sked w ho "was straight."



                      II. SUFFICIENCY OF THE EVIDENCE

       Appe llant's first contention is that the evidence was insuffic ient to s ustain

his conviction for murd er during the perp etration of a robbery because there is no

evidence to dem onstrate that App ellant robb ed Me lvin Fergu son. He further

alleges that the trial cou rt erred in overr uling h is motion for judgm ent of a cquitta l.

We disagree.

                                            -5-
      T ENN. R. C RIM. P. 29(a) provides in pertinent part, "The court on motion of

a defend ant. . . shall ord er the entry of judgmen t of acquittal of one or m ore

offenses charged in the indictment or information. . . if the evidence is insufficient

to sustain a conviction of such offense o r offense s." Id. When presented with a

motion for judgment of acquittal, the trial court's only consideration is the legal

sufficiency of the evidence. State v. Blanton, 926 S.W.2d 953 (Tenn. Crim. App.

1996). Sufficiency of the evidence is the appropriate standard by which both trial

and appellate courts evaluate the adequacy of the evidence. State v. Cabbage,

571 S.W .2d 832, 836 (Tenn. 197 8).

      This Cour t is obliged to review challenges to the sufficiency of the

convicting evidence according to certain well-settled principles. A verdict o f guilty

by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's

witnesses and res olves all co nflicts in the tes timony in favor of the State. State

v. Cazes, 875 S.W.2d 253, 259 (Ten n. 1994); State v. Harris , 839 S.W.2d 54, 75

(Tenn. 1992). Although an accused is originally cloaked with a presumption of

innocence, a jury verdict re move s this pres umptio n and re places it w ith one of

guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the

burden of proo f rests w ith App ellant to demonstrate the insufficiency of the

convicting evidenc e. Id. On appea l, "the [S]tate is entitled to the strongest

legitimate view of the e vidence as well as all reason able an d legitima te

inferences that ma y be draw n therefrom." Id. (citing State v. Cabbage, 571

S.W.2d 832, 8 35 (T enn. 1 978)) .     Wh ere the sufficie ncy of th e evidence is

contested on appe al, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reaso nable d oubt. Harris , 839 S.W.2d 54, 75; Jackson v.

Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In

                                          -6-
conducting our evalua tion of th e con victing e videnc e, this C ourt is precluded from

reweighing or recons idering the evidenc e. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. A pp. 199 6); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences "for those

drawn by the trier of fact from circumstantial evidenc e." Matthews, 805 S.W.2d

776, 779. Finally, T ENN. R. A PP. P. 13(e) provides, "Findings of guilt in criminal

actions whether by the tr ial cou rt or jury s hall be set as ide if the eviden ce is

insufficient to support the findings by the trier o f fact of g uilt beyo nd a re ason able

doubt." See also Matthews, 805 S.W.2d 776, 780.

        At the time of this offense, Tenn. Code An n. § 39 -13-2 02(a) provid ed in

pertinent part: "First degree murder is: . . . (2) a reckless killing of another

committed in the perpetra tion of. . . robbery." Tenn. Code Ann. § 39-13-202(a)(2)

(1991, Re pl.).2 Tenn. Code Ann. § 39-11-302(c) provides:

            (c) "Reckless" refe rs to a person who acts reckle ssly with
            respect to circumstances surrounding the conduct or the
            result of the conduct when the person is aware of but
            consciously disregards a substantial and unjustifiable risk that
            the circumstances exist or the result will occur. The risk must
            be of such a nature and degree that its disreg ard constitutes
            a gross deviation from the standard o f care that an ordina ry
            person would exercise under all the circumstances as viewed
            from the accuse d perso n's stand point.
Tenn. C ode Ann . § 39-11-302 (c).

Tenn. Code A nn. § 39-13-4 01 defines "robbery" as "the intentional or knowing

theft of property from the person of another by violence or puttin g the p erson in

fear." Tenn . Code Ann. § 39-13-4 01(a). T enn. C ode An n. § 39-11 -402 s tates in

part:

                A person is criminally responsible for an offense comm itted
                by the cond uct of ano ther if: . . . (2) Acting with intent to


   2
     In 1995, the General Assembly amended the definition of felony murder by dispensing with the
requirement that the prosecution prove that the killing was reckless. Tenn. Code Ann. § 39-13-202(a)(2)
(1997).

                                                 -7-
            promo te or assist the com miss ion of th e offen se, or to bene fit
            in the proceeds or results of the offense, the person solicits,
            directs, aids, or atte mpts to aid a nothe r perso n to co mm it the
            offense.
Tenn. C ode Ann . § 39-11-402 (2).

The State is required to prove each and every element of the charged offense.

      Appe llant asserts that there is no evidence to prove that he robbed the

victim because Melvin Ferguson's wallet and over $20.00 were recovered at the

scene. The proof at trial demo nstrated that both A ppellant a nd his co -defend ant,

Mr. Banks, armed themselves with pistols before going to the victim's motel room.

Moreover, in his confe ssion , Appe llant told the police that when Maurice Banks

picked him up, he told Appellant that he knew someone that they could rob.

Shor tly after entering Ferguson's room , Banks drew his pistol and asked the

victim for money. The victim handed Banks $300.00 and then went into the

restroom. After Ferguson emerged from the bathroom, Mr. Ban ks dem anded to

know the locatio n of the remaind er of the m oney. W hen Fe rguson refused to

disclose the location of the money, Banks hit the victim in the head with his pistol.

The victim then blocked the door to the motel room and announced that no one

could leave un til they returne d his mo ney. Bank s aga in aske d whe re the v ictim

had conc ealed the m oney, and F ergus on's female companion disclosed that the

money was hidden beneath a bush planted outside the mote l. Mr. Banks asked

Ferguson to move away from the doo r, but the victim declined to do so. When

the victim refused to move, both Appellant and Banks began shoo ting the ir pistols

at the victim. Although the victim attemp ted to escape by running down the

hallway and away from his assailants, Appellant and Banks fired more shots at

him. An autopsy revealed that Ferguson died of multiple gunshot wounds, at

least one of which was inflicted by a .38 caliber pistol.         In his confession,

Appe llant adm itted firing a .38 caliber ha ndgun at Melvin F erguso n.

                                          -8-
       From this eviden ce, a rational trier of fact cou ld conclu de that A ppellant,

and his co-defendant, murdered Melvin Ferguson during the course of robbing

him. Additio nally, the jury also could find that in so doing, Appellant disregarded

a subs tantial a nd un justifiable risk that Ferguson would die. Accordingly, the

evidence prese nted a t Appe llant's trial was sufficie nt to su stain h is conviction for

felony murde r.



             III. SUPPRESSION OF APPELLANT'S STATEMENT

       Appellant next complains that the trial court improperly denied his motion

to suppress his statement to police because the statement was taken in violation

of the Fifth Amendment to the United States Constitution as well as Article I, § 9

of the Tennessee Cons titution. A ppella nt furthe r asse rts that h is statement was

involuntarily given. The record affords no support for Appellant's assertions.

       It is well-settled that the trial court's findings of fact in a suppression

hearing are conclusive on appeal unless the evidence prepondera tes against

them. State v. Odom, 928 S.W.2d 18, 23 (Te nn. 199 6); State v. Stephenson, 878

S.W.2d 530, 544 (Tenn. 1994). Our review of the record in this case convinces

us that the trial court's findings are amply supported by the evidence.

       The Fifth Am endm ent to the U nited Sta tes Con stitution guarantees that

"No perso n. . . sha ll be com pelled in any c riminal case to be a witness against

himse lf." U.S. Con st. ame nd. 5. Th e Fifth Am endm ent privilege against s elf-

incrimination is applicable to the states through the Fourteenth Amendment.

Malloy v. Hogan, 378 U.S.1, 8 4 S.C t. 1489 , 1492 , 12 L.E d. 653 (1964 ). Article

I, § 9 of the Tennessee Cons titution g uaran tees "T hat in all criminal prosecutions,

the accused. . . shall not be comp elled to give evidenc e again st himse lf." Tenn.

Cons t. art. I, § 9. The court in Stephenson observed that though the federal and

                                           -9-
state constitutional provisions are not identical, "the most significant difference

between the provisions is that the test of voluntariness for confessions under

Article I, § 9 is broader and more protective of individual rights than the test of

voluntariness under the Fifth Amendment." 878 S.W.2d 530, 544.

       In Miranda v. Arizona, the United States Supreme Court held, "The

prosecution may not use statements, whether exculpatory o r inculpatory,

stemming from custodial interrogation of the defendant unless it demonstrates

the use of pro cedura l safegua rds effective to secure the privilege against s elf-

incrimina tion." 384 U.S . 436, 86 S .Ct. 1602, 1612, 16 L.Ed.2d 694 (1966 ).

These procedural safeguards must be undertaken prior to the initiation of any

questioning by law enforcement officials and include the administration of the

Miranda rights to the acc used. Id. An accused may waive these rights, provided

that the waiver is know ingly, intelligently, and volu ntarily ma de. Miranda, 86 S.C t.

1602, 1612. The government bears the "heavy burden" of proving that the

defendant knowingly and intelligently waived his Miranda rights. Id. at 1628 . A

valid waiver will not be presumed simply from the accused's silence after

warnings are administered or from the fact that officers eventually elicited a

confession. Lee v. Sta te, 560 S.W .2d 82, 84 (T enn. Crim. A pp. 1977). H owever,

both our state and fed eral courts have held that abse nt an explicit written waiver,

a waiver m ay be im plied from the facts a nd circum stance s of a case . State v.

Elrod, 721 S.W .2d 820 , 823 (T enn. C rim. App . 1986); North Carolina v. Butler,

441 U.S. 3 69, 99 S.C t. 1755, 1757, 6 0 L.Ed.2d 2 86 (1979).

       At the hea ring on A ppellant's motion to suppress his statement, Sergeant

Ron ald Wilkinson of the Memphis Police Department testified that Appellant was

arrested on the afternoon of June 16, 199 3. Sergeant Wilkinson further testified

that he acted as the arresting officer on that day because Sergeant Samuel

                                          -10-
Williams, the lead officer on the Ferguson case, was not on duty. Wilkinson

stated that on June 16, he did not attempt to question Appellant respecting the

incident. Additio nally, S ergea nt W ilkinson averre d that if an arrestee requested

an attorney, this would be noted in the arrestee's case file. Finally, he stated that

no such notation existed in Appe llant's file. Sergeant Samuel Williams testified

that on June 19, 1993, Williams had Appellant brought to his office. Willia ms s aid

that he was "sure" that he administered Appellant his Miranda rights before

speaking with him. Sergeant Williams then engaged Appellant in an informal

discussion conce rning the events su rroundin g Melvin F erguso n's death . Finally,

when Appellant "decided he'd tell" Sergeant Williams what Williams "felt was the

truth," Williams asked Appella nt if he wou ld be willing to give a form al statem ent.

When Appellant affirmed his willingness to give a statemen t, Willia ms a gain

advised Appellant of his Miranda rights. A typist transcribed Sergeant Williams'

questions and Appellant's responses. After being read his rights, Appellant

acknowledged that he understood those rights. When Sergeant Williams had

completed Appe llant's interrogation, he asked Appellant to read over the

statement to ensur e its correc tness, to initial every page, and to sign and date the

last page . Appellan t incorrectly d ated his s tateme nt "6/20/93 ."

       On cross-examination, Sergeant Williams acknowledged that on the day

that Appellant was arrested, Appellant informed a member of the police

department that he did n ot wish to give a statement and that he knew nothing

about Mr. Ferguson's death. Sergeant Williams also stated that he did not know

whether or not Appellant h ad reques ted an attorney; ho wever, he also explained

that if an arre stee m ade s uch a reque st, this w ould b e note d in tha t perso n's case

file and tha t police wo uld ceas e all ques tioning.




                                           -11-
      In State v. Crump, the defendant made remarks similar to Appellant's. 834

S.W.2d 265, 266 (Tenn. 1992). There, law enforcement officials administered

Miranda warning s to the de fendan t. Id. at 269. A detective testified that Crump

responded by saying either "I don't have anything to say right now," or "I don 't

have anything to say." Id. at 266. After being informed that he was a susp ect in

another crime different from the one for which he was arrested, Crump replied,

"I don't know a nything a bout tha t." Id. The Tennessee Supreme Court held that

Crum p's statement, "I don't have anything to say," constituted an unequivocal

invocation of his right to re main s ilent and th at police o fficers were obliged to

scrupulo usly honor th is right.    Id. at 269-70.     The facts of this case are

distinguishable from those in Crump. Crump concerne d the situation whe re

police persisted in attemp ting to question the accused after he had in voked his

right to remain silent. He re, howev er, thre e days elaps ed be fore po lice ag ain

attempted to interrogate Appellant, thereby scrupulously ho noring h is right to

rema in silent. An accused's invocation of the right to rema in silent does not

comp letely preclud e all future a ttempts to reinterrog ate the su spect. see, e.g.,

Michigan v. Mosley, 423 U.S . 96, 96 S .Ct. 321, 36 L.Ed.2d 313 (1975) (holding

that police scrupulously honored accused's right to remain silent by attempting

to reinterr ogate him only after a two-hour interval and the administration of fresh

Miranda warnings).

      At the suppression hearing, Appellant testified that he informed police of

his whereabo uts so that he co uld be picked up becau se an officer had

telephoned his grandm other an d stated th at the polic e wante d to interrog ate

Appellant regarding a h it-and-run incident. A ccording to A ppellant's testimon y,

officers transp orted h im to the h omic ide offic e and then h eld him in an interview

room for two to three hours. At some point, an officer asked Appellant whether

                                         -12-
he wishe d to give a state men t, and A ppella nt replie d that h e wou ld not do so until

he had spoke n with a law yer.

       Appellant further testified that he was again brought to the homicide office

three days later and that he once more refused to give a statement without an

attorney. Despite this refusal, when another officer inquired whether Appellant

wished to give a statement, he agreed to do so. A ccording to Appe llant, after he

gave his statement, he was shackled to a bench for approximately twenty

minutes. An officer b rought A ppellant a statem ent and directed h im to initial each

page and to sign the last page. Appellant alleged that the statement contained

numerous inaccuracies but acknowledged that the signature on the statement

was his ow n.      Fina lly, App ellant d enied that he was e ver ad vised o f his

constitution al rights be fore giving h is statem ent.

       On cross-examination, Appellant conceded that he had been arrested on

burglary and th eft cha rges o nly one mon th befo re bein g app rehen ded in

connection with the Ferguson homicide. Appellant further admitted that upon

being arrested concerning these earlier charges, he gave a statement after

officers administered Miranda rights to him.

       The trial court found, as a matter of fact, that "no coercion, no violence, and

no threats were given or made to the defendant." As the evidence does not

prepon derate against the trial court's factual findings, we decline to disturb them

on appeal. Although Appellant signed no explicit written waiver, a waive r prope rly

may be infe rred fro m the fact tha t Appe llant ac know ledge d und erstan ding h is

rights and then gave a state ment w hich he b oth initialed a nd signe d. State v.

Elrod, 721 S.W .2d 820, 823 (Tenn. Crim . App. 1986 ). The tr ial court p roper ly

denied Appellant's motion to suppress his confession.




                                           -13-
  IV. CRO SS-EX AMINATIO N OF A W ITNES S TO D EMO NSTR ATE BIAS

       Appe llant's third as signm ent of e rror is tha t the trial c ourt im prope rly

excluded evidence of possible bias of a prosecution witness, namely, Mr. Joe

Ferguson. We disagree.

       At trial, defense counsel sought to ask the victim's brother about a pending

civil suit wh ich the victim's family had filed against the Scottish Inn Motel arising

out of the same facts being litigated in the criminal prosecution. Apparently, the

lawsu it concerned whether or not the Scottish Inn neglecte d to afford a dequa te

security.    Defense counsel argued that the purp ose of the inquiry wa s to

demo nstrate the possible prejudice of Mr. Joe Ferguson against A ppellant

because of Ferguson's financial interest in the civil suit. However, the trial court

ruled tha t this testimo ny was irre levant to the trier of fact and exclude d it.

       T ENN. R. E VID. 401 provides, "`Relevant evidence' means evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence ." Id. T ENN. R. E VID. 616 provides, "A party may offer

evidence by cross-examination, extr insic ev idenc e, or bo th, that a witnes s is

biased in favor of or prejudiced agains t a party or an other witn ess." Id. This

Court is aware of cases holding that the trial court improperly prohibited defense

counsel from questioning the victim in a criminal case as to whether he had

brought a civil suit aga inst the accused based upon the acts at issue in the

criminal case. State v. Horne, 652 S.W .2d 916 , 919 (T enn. 19 83). In so holding,

the Horne court observed that "great latitude is allowed on cross-examination,

particu larly cross-examination showing the witness' interest or bias." Id. at 918.

Additionally, "The text writers seem to be in accord that for the purpose of

showing interest, or bias, a witness for the prosecution in a criminal case may be

                                          -14-
questioned as to whether he has brought an action against the accused, based

on the acts in volved in the criminal c ase." Id. at 919 (citing C.J.S., vol. 98,

Witnesses, Sec. 5 60; W harton 's Crim inal Evidence, 13th Edition, Torcia, Sec.

436; McCo rmick's L aw of Ev idence , Chap ter 5, Sec . 40.). See also State v.

Robert E. Sm ith, C.C.A. No. 03C01-9203-CR-00067, Hamilton County (Tenn.

Crim. App., K noxville , April 15 , 1993 ) (hold ing that the trial cour t abuse d its

discretion in prohibiting defense counsel in a criminal case from questioning the

victim as to whether or n ot she had filed a civil suit against the accused

predicated up on the facts be ing litigated in the criminal pro secution).

      The abo ve-cited cases are distinguish able from the pres ent case . Here,

defense counsel sought to prove Joe Ferguson's possible bias by questioning the

witness regarding a civil suit which Ferguson's family had filed aga inst a third

party--the Scottish Inn. Since it is undisputed that the victim in the case at bar

was the victim of a homicide perpetrated by someone, we fail to see how cross-

examining Joe Fergu son abou t this lawsuit would de monstra te the witness'

possible bias.



                 V. DENIAL OF REQUESTED JURY CHARGE

      Finally Appellant alleges that the trial court improperly refused to charge

the jury that "The law in Tennessee has long recognized that once the homicide

has been estab lished , it is presum ed to be murde r in the sec ond de gree." See

State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992). We disagree.

      In State v. Phipps, we explained, "`[A] defendant has a constitutional right

to a correc t and com plete charg e of the law.'" 883 S.W.2d 138, 142 (Tenn. Crim.

App. 1994) (quoting State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)). It is not

error for the trial court to refuse to give a specially requeste d jury instruction so

                                         -15-
long as the court's instruction s "correctly, fully, and fairly set fo rth the a pplica ble

law" in the case . Id. See a lso Sta te v. Ke lly, 683 S.W.2d 1, 6 (Tenn. Crim. App.

1984). On appeal, this Court must "review the entire c harge a nd only inv alidate

it if, when read as a whole, it fails to fairly submit the legal issues or misleads the

jury as to the applicab le law."

        In the case sub judice, Appellant was charged with the offenses of murder

in the perp etration of a robbe ry and with prem editated first degree m urder.

Howeve r, Appellant was acquitted of premeditated first degree murder and

convicted of murder in the perpetration of a robbery.              The trial court gave

instructions for all of th e cha rged o ffense s as w ell as each of their lesser included

offenses. These ins tructions closely followed the jury instructions conta ined in

T.P.I.--CRIM. (4th ed.) § 7.01 et seq. in charging the jury as to first degree

murder and all its lesser included offenses. In explaining its refusal to give

Appe llant's specially requeste d jury instruction, the trial court ack nowled ged its

familiarity with the Brown decision and reasoned that "the charge that the court

will give will adequately cover all degrees of homicide, and the court believes that

if it gave this [requested jury instruction] as is that it would confuse the trier of

fact. . . ."

        In State v. Guadalupe S. Mendez, this Court explained:

             W e do not read State v. Brown, 836 S.W.2d 530 (Tenn.
             1992), as requiring the inva lidation of every first-degree
             murder case involving the standard T.P.I. jury instructions on
             first-degree murder. The holding in Brown was based on a
             sufficiency of the evidence question; our Supr eme Cour t's
             directive on the jury instruction was directory in nature.
C.C.A. No. 01C01-9206-CC-00186, slip op. at 7, Montgomery County (Tenn.
Crim. App ., Nashville, April 15, 1993 ).

Although Appella nt's reque sted jury ch arge is an accura te statement of

Tennessee law, the charge given in this case fully and fairly set forth the


                                           -16-
elemen ts of first degre e murd er and a ll the lesser d egrees of hom icide. See

State v. Erica Nelms, C.C.A. No. 02C01-9604-CR-00116, Shelby County (Tenn.

Crim. App., Jackso n, May 23, 19 97) (holding that because Appellant was

acquitted of premeditated first degree murder and convicted of felony m urder , it

was not error for the trial court to refu se to charge the jury that once a homicide

has be en esta blished, it is pr esum ed to be murde r in the sec ond de gree). See

also State v. Glenn Mann, C.C.A. No. 02 C01-9 502-C C-000 46, Dye r Coun ty

(Tenn. Crim. App., Jackson, August 16, 1996). More over, like the Ap pellan t in

the Nelms decision , supra, Appellant was convicted of first degree felony murder

and acquitted of premeditated first degree murder. T hus, the trial court prope rly

refused to give the reques ted cha rge. cf. State v. Charles Montague, C.C.A. No.

03C01-9306-CR-00192, (Tenn. Crim. App., Knoxville, November 21, 1994)

(holding that any error resulting from the trial court's failure to give the requested

instruction that a homicide is presumed to be second degree murder was

harmless ).

      The judgment of the trial court is affirmed.




                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



                                         -17-
CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                              -18-
