         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 17, 2001 Session

               STATE OF TENNESSEE v. GALGALO B. HALAKE

                Direct Appeal from the Criminal Court for Davidson County
                          No. 98-B-1232    Walter Kurtz, Judge



                   No. M2000-00146-CCA-R3-CD Filed November 29, 2001


A Davidson County grand jury indicted the defendant, Galgalo B. Halake, for first-degree murder.
The petit jury convicted him of that offense. The defendant filed a motion for new trial and a
motion for judgment of acquittal. The trial court denied the defendant’s motion for new trial, but
granted the defendant’s motion for judgment of acquittal by reducing the defendant’s conviction to
second-degree murder. Subsequently, the trial court sentenced the defendant to serve twenty-two
years of incarceration. The state appeals the trial court’s reduction of the conviction to second-
degree murder. The defendant appeals his conviction, challenging the admission of certain
testimony, the trial court’s failure to charge the jury with the lesser-included offense of voluntary
manslaughter, the sufficiency of the evidence, and the propriety of his sentence. We find that there
is sufficient evidence to support a jury finding of guilt of first degree murder. However, because the
trial court erred in allowing lay opinion testimony concerning blood spatters, we reverse the decision
of the lower court and remand this case for a new trial.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and
                                        Remanded.

JERRY L. SMITH, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and ROBERT
W. WEDEMEYER , JJ., joined.

Collins Hooper, (at trial & on appeal), Assistant Public Defender; R. David Baker, (at trial & on
appeal), Assistant Public Defender; and Jeffrey A. DeVasher, (on appeal), Assistant Public Defender,
Nashville, Tennessee, for appellant, Galgalo B. Halake.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Bret Gunn, District Attorney General, for appellee,
State of Tennessee.
                                             OPINION

                                       Factual Background

        The defendant, Galgalo B. Halake, lived in an apartment with the victim, Yohanes G.
SoFoyie, and another man, Liban Conchero. All three men were natives of Ethiopia. On April 18,
1998, the victim was shot several times and killed outside his apartment door. A neighbor heard the
shots, but the police did not investigate the murder until another neighbor discovered the victim’s
body. After the shots were fired, another neighbor, who had also heard the shots, saw a black man
wearing dark clothes walk down a hill behind the apartment complex and drive away in a green or
grey Nissan 240SX. The man was carrying something in his left hand.
        When the police arrived at the crime scene, they discovered that the victim had been shot
several times at close range, within two feet or less and had sustained a massive blow to the head.
The victim’s blood was spattered on the door, the door frame, and immediately inside the apartment,
on the walls and ceiling. The victim was not robbed, and the killer did not enter the apartment by
force. The victim was found holding keys in his hand.
        The defendant arrived at the crime scene at sometime after 3:00 a.m. The police asked him
to identify the body, and he made a positive identification. There is conflicting testimony about
whether the police had taped off the entire area around the crime scene at that time. The defendant
told the police that he had been at a local night club at the time of the murder. He stated that he
made several phone calls to his girlfriend from that night club around midnight after receiving her
pages.
        Phone records from the night club pay phones indicate that several calls were placed from
that night club to the defendant’s girlfriend’s residence, but the calls were placed between 1:00 and
1:30 in the morning and indicate that they were intercepted by voice-mail. Additionally, the
defendant had telephoned his girlfriend around 12:15 in the morning after receiving several pages
from her. However, the defendant’s girlfriend testified that although the defendant told her that he
was calling her from the nightclub, she did not hear any background noise. The defendant’s
girlfriend’s phone records indicate that a call was made to her residence around 12:15 a.m.
However, the records for this phone call are incomplete and indicate that the call could have been
made from Atlanta, Georgia or by using a long-distance phone card.
        The police searched the defendant’s car, a Nissan 240SX, and found no traces of blood or
gunpowder. They inspected the clothes that the defendant was wearing when he arrived at the crime
scene and found two drops of the victim’s blood on his pants. The drops were not visible to the
naked eye and were only visible through the use of special light, and no blood was found elsewhere
on the defendant’s person. The police also learned through several witnesses that the defendant,
having heard rumors of an affair, had been suspicious of the victim’s relationship with his girlfriend.
He questioned his girlfriend about the relationship several times, the last instance being at least a
month prior to the murder. In these confrontations, the defendant did not threaten to kill or hurt the
victim. The defendant also confided in a friend that he was suspicious of the victim’s relationship
with his girlfriend, but his friend testified that the last time the defendant spoke to him of these
suspicions was at least a month before the victim’s death.


                                                 -2-
        The defendant’s other roommate, Mr. Conchero, arrived at the crime scene with a female
prostitute, who provided an alibi for Mr. Conchero. The police later learned that this alibi was false,
and several months after the murder, Mr. Conchero left town and could not be located. Additionally,
a neighbor testified that the day before the murder, several suspicious-looking men knocked on her
door. She did not answer her door, but saw them place a note on the victim’s car.
        The defendant was arrested and tried by jury for first-degree murder. At trial, a police
detective, Officer Hunsicker, testified regarding the blood spatter that he discovered at the crime
scene. The trial court allowed the detective to testify that, in his opinion, the blood spots located on
the defendant’s pants were consistent with other gunshot blood spatter that he had observed at other
crime scenes, despite defense counsel’s objection:
        By General Gunn [prosecuting attorney]:
        Q: Officer Hunsicker, how did those spots on the pant leg compare to the blood
        spatter that you’d seen out at the crime scene?
        A: They were consistent with what you had on the walls out there.
        Q: And did the spatter on the walls appear to be spattered from a particular type of
        impact?
        A: I couldn’t —
        Ms. Hooper [defense attorney]: Your Honor, I object. I don’t think he’s been
        qualified as an expert on blood spatter. I don’t think he can testify to that.
        General Gunn: I am not asking as an expert. I’m asking on the basis he’s been to a
        hundred crime scenes and seen gun shot wounds and knows what blood looks like
        after it’s been spattered off a body from a gun shot wound.
        The Court: Seems to me that’s — that is the point defense counsel is making. So
        I’m going to sustain the objection unless you lay the foundation here.
        By General Gunn:
        Q: Officer Hunsicker, in these hundreds of crime scenes that you’ve been to, have
        you observed bodies or victims that have been shot by gun shots?
        A: Yes, I have.
        Q: And have you also observed people who have been struck with objects?
        A: Yes, I have.
        Q: And have you also observed blood that has been dripped from a person?
        A: Yes, I have.
        Q: And in your experience have you seen differences in the way this blood appears
        when it strikes other objects?
        A: I have. Yes.
        Q: Now what is the difference in those type of things?
        A: The blood spatter that’s in question here was consistent with what was on the
        wall —
        The Court: Excuse me. You’ve asked a general question to foundation. So you
        understand the distinction I’m making? And he’s trying to answer about this case.
        We’re still on foundation.
        By General Gunn:



                                                  -3-
       Q:     Right. I’m asking not about this case, but about in general what are the
       differences that you observed between blood that comes from a gun shot victim,
       blood that comes from somebody who blunt force [sic], and blood that’s just dripped
       when it hits another surface.
       A: The blood that you’re going to see that comes from a gun shot is going to be
       small and circular. Whereas the only way you can get that pattern is from the
       velocity of gun shot or aspirated blood out of someone’s lungs. The other spots,
       you’re not going to have as fine a pattern as you do because the way that the force
       presented such as with a bat or two-by-four. It’s not going to have enough force to
       mist the blood.
       Q: Have you attended classes in blood spatter analysis?
       A: I have attended crime scene schools where they covered blood spatter, but I have
       not attended a full course in blood spatter.
       General Gunn: Judge, I think — I’m not going to ask for an expert opinion. I’m
       going to ask questions about consistency with what he’s seen in the past.

        After this exchange, the trial court held a jury-out bench conference, in which defense
counsel objected to the officer’s testimony, arguing that the state had improperly failed to give
defense counsel notice of their intention to use expert testimony on this subject, despite defense
counsel’s inquiry whether the state had such an intention a week prior to trial. The court ruled that
the officer’s testimony was expert testimony under Tennessee Rule of Evidence 702, contrary to the
prosecution’s contention otherwise, because the officer was testifying about his expertise, which was
“out of the realm of most lay people.” However, the court also ruled that the notice issue lacked
merit because a week’s notice would not have allowed defense counsel sufficient time to obtain and
prepare a rebuttal expert witness. The court overruled defense counsel’s motion and allowed the
prosecutor to ask the officer how the blood drops on the defendant’s pants compared to the blood
spatters that he had seen in other crimes involving gun shot wounds, and the officer replied that the
two were consistent.
        At the conclusion of the proof, the court charged the jury with instructions regarding both
first and second-degree murder, but did not include an instruction for voluntary manslaughter. The
jury found the defendant guilty of first-degree murder, but the trial court granted the defendant’s
motion for judgment of acquittal, reducing the conviction to second-degree murder upon finding that
there was insufficient proof of premeditation.
        The state appeals the trial court’s reduction of the defendant’s sentence from first-degree
murder to second-degree murder pursuant to its grant of the defendant’s motion for acquittal. The
defendant also appeals his conviction, alleging (1) that the trial court erroneously admitted Officer
Hunsicker’s testimony; (2) that the prosecution’s failure to give defense counsel notice of its intent
to use expert testimony violated his due process rights and right to effective counsel; (3) that the
evidence is insufficient to support the defendant’s conviction for second-degree murder; (4) that the
trial court erred by failing to charge voluntary manslaughter; and (5) that the trial court imposed an
excessive sentence because it did not accord the proper weight to the applicable mitigating factors.
        For the following reasons, we find that the trial court erred by reducing the defendant’s
conviction form first-degree to second-degree murder. Furthermore, we find that the trial court erred


                                                 -4-
by admitting Officer Hunsicker’s testimony and that the prosecution erroneously failed to give
defense counsel notice of its intent to use such testimony. Accordingly, we reverse the conviction
below and remand this case for a new trial on charges of murder in the first-degree.



                           Sufficiency of the Evidence to Support
                      A Verdict of First-Degree or Second-Degree Murder

        The state appeals the trial court’s reduction of the defendant’s conviction from first-degree
murder to second-degree murder. The state argues that the evidence, viewed in the light most
favorable to the state, supports the defendant’s conviction for first-degree murder because it supports
a finding of premeditation. The defense counters by arguing that the evidence is not sufficient even
to support the reduced verdict for second-degree murder.
        A trial court determines whether to grant a motion for judgment of acquittal by the same
standard that this Court applies on appeal when determining the sufficiency of the evidence to
support a conviction, namely whether “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” State v. Gillon, 15 S.W.3d 492, 496 (Tenn. Crim.
App. 1997) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979));
see also State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998). To determine whether the
evidence is sufficient to support the conviction, the trial court must consider “the evidence
introduced by both parties, disregard any evidence introduced by the accused that conflicts with the
evidence adduced by the State, and afford the State the strongest legitimate view of the evidence,
including all reasonable inferences which may be drawn from the evidence.” State v. Campbell, 904
S.W.2d 608, 611 (Tenn. Crim. App. 1995) (citing State v. Hall, 656 S.W.2d 60, 61 (Tenn. Crim.
App. 1983)). “An appellate court must apply the same standard as a trial court when resolving issues
predicated upon the grant or denial of a motion for judgment of acquittal.” Gillon, 15 S.W.3d at 496
(citation omitted).
        A homicide, once proven, is presumed to be second-degree murder. State v. Nesbit, 978
S.W.2d 872, 898 (Tenn. 1998). Therefore, the State has the burden of proving the element of
premeditation to elevate the offense to first-degree murder. Id. Premeditation necessitates “the
exercise of reflection and judgment,” requiring a “previously formed design or intent to kill.” State
v. West, 844 S.W.2d 144, 147 (Tenn. 1992). The element of premeditation is a question for the jury
and may be inferred from the circumstances surrounding the killing. State v. Gentry, 881 S.W.2d
1, 3 (Tenn. Crim. App. 1993). Because the trier of fact cannot speculate as to what was in the killer's
mind, the existence of facts of premeditation must be determined from the appellant's conduct in
light of the surrounding circumstances. See generally State v. Johnny Wright, No.
01C01-9503-CC-00093 (Tenn. Crim. App. at Nashville, Jan. 5, 1996).
        Although there is no strict standard governing what constitutes proof of premeditation,
several relevant circumstances are helpful, including: the use of a deadly weapon upon an unarmed
victim; the fact that the killing was particularly cruel; a declaration by the defendant of his intent to
kill; and the making of preparations before the killing for the purpose of concealing the crime. State
v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). Additional factors from which a jury may infer


                                                  -5-
premeditation include planning activities by the appellant prior to the killing, the appellant's prior
relationship with the victim, and the nature of the killing. Gentry, 881 S.W.2d at 4-5.
         When granting the defendant’s motion for judgment of acquittal, the trial court found that
while there was some evidence that the defendant was lying in wait for the victim because he hid his
car behind the apartment complex, this evidence was not, in the trial judge’s opinion, sufficient to
prove the defendant’s premeditation beyond a reasonable doubt. As the trial court recognized, there
is evidence that the defendant was lying in wait for the victim because immediately after the
shooting, a person of his height and race was seen en route to a car that was parked behind the
victim’s apartment complex and that matched a description of the defendant’s car. Considering the
evidence in the light most favorable to the state, one could infer that this individual was the
defendant, who was returning to his car after having hid it before committing the murder of the
victim.
         Evidence that a defendant lay in wait for a victim is strong evidence of premeditation. See
State v. Bullington, 532 S.W.2d 556 (Tenn. 1976). Additionally, in the instant case the victim was
shot multiple times, which although not indicative of premeditation when considered by itself, can
be considered as evidence of premeditation in addition to other proof of premeditation. See State
v. Brown, 836 S.W.2d 530, 542 (Tenn. 1992). Therefore, there were two bases upon which a jury
could have found premeditation beyond a reasonable doubt.
         Furthermore, the unreported case that the trial court cites in support of its finding that there
was not sufficient evidence of premeditation, State v. Clarence Davis, No. 01C01-9811-CR-00451,
1999 WL 737873, at *1 (Tenn. Crim. App. at Nashville Sept. 22, 1999), is distinguishable from the
instant case. Specifically, in Clarence Davis, this Court reduced Davis’s first-degree murder
conviction to second-degree murder based upon the insufficient evidence of premeditation because,
inter alia, there was no evidence of any “planning activity.” Id. at *4. Conversely, in the instant
case, the state did introduce evidence of planning activity, namely that the defendant hid his car and
lay in wait for the defendant inside their apartment.
         Because the evidence presented at trial was sufficient to support a conviction for first-degree
murder, we hold that the trial court erred in reducing the defendant’s sentence to second-degree
murder.

                              Admission of Blood Spatter Testimony
                                           A. Waiver

        The defendant challenges the trial court’s admission of Officer Hunsicker’s testimony
regarding the blood spots found on the defendant’s pants. The police discovered two small round
spots of the victim’s blood on the defendant’s pants legs, one above and one below his right knee.
Officer Hunsicker, who had observed one hundred crime scenes and various forms of blood spatter,
was not trained as an expert in identifying blood spatter. However, the trial court allowed Officer
Hunsicker to testify that the spots of the victim’s blood found on the defendant’s pants were
consistent with other gunshot blood spatter based on Officer Hunsicker’s experience. The defendant
argues that the admission of this testimony was erroneous and prejudicial because Officer Hunsicker
was not qualified to testify as an expert witness and because the testimony provided a basis for
inferring guilt in an case comprised largely of circumstantial evidence. The state argues that the


                                                  -6-
defendant has waived this issue for appeal because defense counsel failed to make a timely objection
to the relevant testimony.
        In order to challenge the introduction of evidence at trial on appeal, counsel must make a
contemporaneous objection to the admission of the evidence. Grandstaff v. Hawkes, 36 S.W.3d 482
(Tenn. Ct. App. 2000). An objection is contemporaneous if counsel makes the objection in a motion
in limine or at the time the objectionable evidence is about to be introduced. Id. Defense counsel
objected to the admission of Officer Hunsicker’s testimony when the prosecuting attorney asked
Officer Hunsicker to testify regarding his analysis of the blood spots on the defendant’s pants. At
the time of the objection, the prosecuting attorney asked Officer Hunsicker what caused the blood
spatter that he had observed at the crime scene. Prior to being asked this question, Officer
Hunsicker had testified primarily about his observations at the crime scene, but had not offered any
blood spatter analysis. Defense counsel made an objection during Officer Hunsicker’s first attempt
to analyze the blood spots on the defendant’s pants and to speculate as to their origin.1 Because
defense counsel objected as soon as it became apparent that the state was asking the officer to
analyze the blood spatters in the instant case and offer an opinion with regard to them, a task
requiring expertise, we find that defense counsel made a timely objection and has therefore not
waived this issue for appeal.


                                               B. Expert Qualifications

         After defense counsel’s objection, the state attempted to lay a foundation to establish Officer
Hunsicker’s qualifications to answer the question at issue. After the state engaged in this exercise,
the trial court held a jury-out hearing and ruled that Officer Hunsicker was qualified to answer the
limited question of whether the blood spots on the defendant’s pants were consistent with the blood
spatter that the officer had observed as a result of other gunshot wounds. The court determined that
Officer Hunsicker could qualify as an expert witness under Rule 702 based upon the officer’s
experience observing blood spatter at numerous crime scenes.2



         1
                   W hile Officer Hunsicker testified ab out his kn owledge of different types o f blood spa tter earlier in his
testimony, he neither attempted nor was asked to make any correlations between the blood spatter found on the
defendant’s pants and blood spatter created by o ther gun shot wo unds. Moreo ver, he did no t testify as to his opinion of
how the blood spatter in the instant case was created. He merely testified regarding how different types of spatter may
be created and his obse rvation s as an investigator inspecting the c rime scene.
                   Mo reover, as discussed infra, defense counsel was no t aware that Officer Hunsicker would engage in
this type of analysis, as the state assured defense counsel that it would not offer any expert testimony on blood spatter
analysis. Therefore, defense counsel was surprise d by the introduction of this expert testimony and objected as soon as
they recognized that the state wa s attemp ting to intro duce it.

         2
                   The trial court allowed the testimony despite the fact that although defense counsel requested notice
of prosecution’s intent to introduce such testimony, the prosecution failed to give defense counsel any notice. The court
concluded that even if the prosecution had given defense counsel notice when defense counsel requested it a week prior
to trial, a week’s notice would not have allowed defense cou nsel to make any additional preparations to combat such
testimony.

                                                              -7-
       “Questions regarding the admissibility, qualifications, relevancy and competency of expert
testimony are left to the discretion of the trial court, whose ruling will not be overturned in the
absence of abuse or arbitrary exercise of discretion.” State v. Begley, 956 S.W.2d 471, 475 (Tenn.
1997). The admission of expert testimony is governed by Tennessee Rule of Evidence 702, which
provides:
       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.

Tenn. R. Evid. 702. Evidence is “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)).
         The trial court properly categorized Officer Hunsicker’s testimony as expert testimony
because his opinion testimony was predicated upon specialized knowledge that is unfamiliar to most
lay-persons and that is normally offered as expert testimony, due to its complex nature. See, e.g.,
State v. Melson, 638 S.W.2d 342 (Tenn. 1982) (recognizing “blood stain analysis” and the analysis
of blood spatters as a field of expertise); State v. Paul Dennis Reid, No. M1999-00803-CCA-R3-DD,
2001 WL 584283, at *18 (Tenn. Crim. App. at Nashville May 31, 2001) (referring to the testimony
of an expert in blood spatter analysis); State v. John Charles Johnson, No. M2000-00529-CCA-R3-
CD, 2001 WL 208512, at *3-*4 (Tenn. Crim. App. at Nashville Mar. 1, 2001) (referring to the expert
testimony of a forensic pathologist in blood spatter analysis); State v. Damon Theodore Marsh, No.
M1999-01879-CCA-R3-CD, 2000 WL 1449849, at *2 (Tenn. Crim. App. at Nashville Sept. 29,
2000) (referring to the testimony of an expert on blood spatter analysis); State v. Joyce M. Lindsey,
No. 02C01-9804-CR-00110, 1999 WL 1095679, at *6 (Tenn. Crim. App. at Jackson Oct. 28, 1999)
(referring to the testimony of an expert in blood spatter analysis); State v. Allan Brooks, No. 01C01-
9510-CC-00324, 1998 WL 754315, at *3 (Tenn. Crim. App. at Nashville Oct. 29, 1998) (referring
to the testimony of an expert in blood spatter analysis); State v. King David Johnson, Jr., No. 01C01-
9610-CC-00430, 1997 WL 661501, at *2 (Tenn. Crim. App. at Nashville Oct. 24, 1997) (referring
to the testimony of an expert in blood spatter analysis); State v. Joey L. Kilzer, C.C.A. No. 1, Dyer
County Criminal, 1988 WL 132721, at *1 (Tenn. Crim. App. at Jackson, Dec. 14, 1988) (referring
to the expert testimony of a forensic pathologist in blood spatter analysis).
         Thus, the remaining issue is whether the trial court abused its discretion when it qualified
Officer Hunsicker as an expert witness for the purpose of answering the prosecution’s question about
the similarity between the blood spots on the defendant’s pants and other blood spatter that the
officer had observed from other gunshot wounds. In 1982, the Tennessee Supreme Court addressed
the admissibility of blood spatter analysis in State v. Melson, 638 S.W.2d 342 (Tenn. 1982). The
Melson court held that blood spatter analysis was a proper subject for expert testimony in Tennessee.
The expert in Melson, who testified regarding his analysis of the blood spatter found on the
defendant’s clothes, was extremely well-qualified to analyze the blood spatter based on his extensive
training and expertise. Id. at 350. Although the defendant Melson did not challenge the expert’s
qualifications, the supreme court noted that “the expert gave an extremely clear explanation,
accompanied by a demonstration, of the difference between a typical drop of blood and the spray on


                                                 -8-
the defendant’s clothes.” Id.; see also Danny J. Veilleux, Annotation, Admissibility, in Criminal
Prosecution, of Expert Opinion Evidence as to “Blood Splatter” Interpretation, 9 A.L.R.5th 419
(1993) (quoting Melson, 638 S.W.2d at 350). In the instant case, Officer Hunsicker had some
training, although not extensive, in blood spatter analysis, as he “attended crime scene schools where
they covered blood spatter, but [did] not attend[] a full course in blood spatter.” Moreover, unlike
the blood analysis expert in Melson, Officer Hunsicker did not specifically explain to the jury the
difference between a typical blood drop and the blood on the defendant’s pants, which he identified
as consistent with gun shot spatter.
         Nevertheless, the trial court determined that while Officer Hunsicker was not qualified to
testify as an expert based on his training, he could qualify as an expert based upon his observations
of numerous blood spatters at other crime scenes. The trial court also noted that his qualification as
an expert was for the limited purpose of answering the prosecution’s one question.
         Blood spatter analysis is a complicated subject, as the analyst studies the blood spatter and
determines what blow created the spatter, thereby recreating the events of the crime. See, e.g.,
Melson, 638 S.W.2d 342. Other states have also recognized the complexity of blood spatter analysis
and the necessity of having a well-qualified expert testify regarding his or her analysis of the blood
spatters. See State v. Goode, 461 S.E.2d 631 (N.C. 1995) (rejecting the defendant’s argument that
an expert was not sufficiently qualified as a blood spatter analyst, as the expert attended two training
seminars on blood-spatter analysis, one basic and one advanced, as well as other courses that dealt
with this type of analysis, and who now instructed other SBI agents on blood spatter analysis); see
also Veilleux, supra, at 435-41 (annotating cases in which police officers with sufficient training and
expertise were allowed to testify as blood spatter analysis experts and cases in which police officers
were deemed not to have sufficient qualifications to testify as experts).
         In the instant case, Officer Hunsicker, as the testifying expert, was asked to engage in
complex blood spatter analysis. The prosecution’s question, which asked Officer Hunsicker to
determine whether the blood spots on the defendant’s pants were consistent with gunshot blood
spatter, required Officer Hunsicker to engage in blood spatter analysis. However, there is
considerable question about Officer Hunsicker’s qualifications to engage in such analysis.
Specifically, neither the prosecuting attorney nor Officer Hunsicker himself viewed Officer
Hunsicker as someone qualified to engage in such analysis. After questioning Officer Hunsicker
about his qualifications to analyze blood spatter, the prosecuting attorney stated that he did not wish
to qualify Officer Hunsicker as an expert, but rather wanted him to testify as a lay person.
Furthermore, Officer Hunsicker testified after he had been qualified as an expert by the trial court
that he was “not an expert.”
         Under the circumstances, there does not appear to have been a sufficient basis for qualifying
Officer Hunsicker as an expert in blood analysis, and we therefore hold that the trial court erred by
so qualifying Officer Hunsicker. We furthermore hold that the defendant was prejudiced by Officer
Hunsicker’s testimony concerning the blood spatters. Officer Hunsicker testified that the blood spots
on the defendant’s pants were consistent with other gunshot blood spatter that he observed at other
crime scenes, thereby providing a basis for the prosecution to contradict the defendant’s suppositions
that the blood spots had been deposited as a result of the defendant kneeling at the crime scene, the
fact that the defendant and the victim shaved together and cut vegetables together, or the fact that
the victim may have mistaken the defendant’s pants as his own. In its closing arguments, the state


                                                  -9-
referred to Officer Hunsicker’s testimony, reminding the jury that the spots on the defendant’s pants
were “gunshot blood spatter,” consistent with the blood spatter found on the door frame. For the
forgoing reasons, we find that this error requires a new trial.



                      C. Lack of Notice of Intent to Use Expert Testimony

        Because we have concluded that Officer Hunsicker should not have been qualified as an
expert regardless of whether the state gave notice of his testimony, this issue is moot.


                            D. Instruction of Lesser-Included Offense

         The defendant contends that the trial court erroneously failed to instruct the jury on the lesser
included offense of voluntary manslaughter when it instructed the jury on first-degree and second-
degree murder. The defendant argues that because the trial court reduced the defendant’s conviction
from first-degree to second-degree murder after finding that there was not adequate evidence upon
which a jury could have found premeditation, the trial court should have instructed the jury on
voluntary manslaughter, as it is a lesser-included offense of second-degree murder. However, as
noted above, we find that the trial court erred when it found that there was insufficient evidence to
support a finding of first-degree murder, and therefore any failure to give an instruction on voluntary
manslaughter was at most harmless error.
.        In State v. Williams, 977 S.W.2d 101 (Tenn. 1998), the Tennessee Supreme Court held that
a trial court’s failure to instruct the jury on voluntary manslaughter was harmless error where the trial
court instructed the jury on first-degree and second-degree murder, and the jury convicted the
defendant of first-degree murder.
                  It is an elementary principle of law that jurors are presumed to follow the
         instructions of the trial court. State v. Cribbs, 967 S.W.2d 773, 784 (Tenn.1998);
         State v. Laney, 654 S.W.2d 383, 389 (Tenn.1983). By convicting the defendant of
         first degree murder the jury determined that the proof was sufficient to establish all
         the elements of that offense beyond a reasonable doubt, including that the killing was
         "intentional, deliberate and premeditated." In other words, by finding the defendant
         guilty of the highest offense to the exclusion of the immediately lesser offense,
         second degree murder, the jury necessarily rejected all other lesser offenses,
         including voluntary manslaughter. Accordingly, the trial court's erroneous failure to
         charge voluntary manslaughter is harmless beyond a reasonable doubt because the
         jury's verdict of guilt on the greater offense of first degree murder and its
         disinclination to consider the lesser included offense of second degree murder clearly
         demonstrates that it certainly would not have returned a verdict on voluntary
         manslaughter.




                                                  -10-
Williams, 977 S.W.2d at 106. We find the instant case to be analogous to Williams, as the trial
court instructed the jury on both first-degree and second-degree murder, and the jury convicted the
defendant of first-degree murder. Accordingly, any error in not instructing the jury on voluntary
manslaughter constitutes harmless error.



                                       Sentencing Challenge

        The defendant challenges the length of his sentence as excessive, alleging that the trial court
failed to give his mitigating factors sufficient weight when sentencing him. We first note that
because we remand this case for a new trial, the defendant’s sentencing challenge is moot.
        Nevertheless, it appears from the record that while the trial court considered the mitigating
factors offered by the defendant, he failed to give them much weight, finding instead that the
enhancing factor, the defendant’s use of a firearm, to be more weighty. The sentencing statute does
not prescribe the weight that must be afforded each applicable enhancing or mitigating factor, as the
weight given to each factor is left to the discretion of the trial court, provided that its findings are
supported by the record. State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App.1995); see also
Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments. We find that the trial court’s
findings are supported by the record, and therefore the trial court did not err in its consideration of
applicable mitigating factors.

                                             Conclusion

        For the forgoing reasons, we find that the state’s issue and one of the defendant’s issues are
meritorious, and three of the defendant’s issues lack merit. Accordingly, the judgment of the lower
court is REVERSED AND REMANDED for further proceedings consistent with this opinion.



                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




                                                 -11-
