            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                             MARCH 1998 SESSION



STATE OF TENNESSEE,                 *    No. 02C01-9710-CR-00383

                 Appellee,          *    Shelby County

vs.                                 *    Hon. James C. Beasley, Jr., Judge

MARIA MACLIN,                       *    (Second Degree Murder)

             Appellant.             *
                                                          FILED
                                                           August 21, 1998

For Appellant:                           For Appellee:    Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk

C. Michael Robbins                       John Knox Walkup
Attorney at Law                          Attorney General & Reporter
3074 East Street
Memphis, TN 38128                        Peter M. Coughlan
(on appeal)                              Assistant Attorney General
                                         425 Fifth Avenue North
Gary W. Ball                             Cordell Hull Building, Second Floor
and                                      Nashville, TN 37243-0493
Jane E. Sturdivant
Attorneys at Law                         Janet S. Shipman
242 Poplar Avenue                        and
Memphis, TN 38103                        Johnny R. McFarland
(at trial)                               Assistant District Attorneys General
                                         Criminal Justice Complex
                                         201 Poplar Street, Suite 301
                                         Memphis, TN 38103




OPINION FILED:___________________________


AFFIRMED


GARY R. WADE, JUDGE
                                       OPINION

              The defendant, Maria Maclin, was convicted of second degree murder.

The trial court sentenced the defendant, who qualified as a violent offender, to

twenty-two years imprisonment. A fine of ten thousand dollars was imposed. In this

appeal of right, the defendant does not challenge the sufficiency of the evidence but

does present the following issues for our review:

              (1) whether the trial court erroneously instructed the jury
              by defining "reasonable" and by providing a "dynamite
              charge"; and

              (2) whether the sentence is excessive.



              We find no error and affirm the judgment of the trial court.



              The defendant and her family had been feuding with the victim, Glenn

Taylor, and his family for many years. On the evening of January 26, 1996, the

defendant, the victim, and members of each of their families, attended a basketball

game at East High School in Memphis. The families sat on opposite sides of the

arena and gestured to each other throughout the game. At its conclusion, the

defendant stood in the crowded school parking lot with her sister, Latrice W oods,

who accused Kena "Shea" Blakney, the older sister of the victim, of having stolen

$100.00 from her. In response, Ms. Blakney accused Ms. Woods of slashing her

tires. A fist fight followed. When the victim saw his sister fighting, he intervened,

striking either Ms. Woods or the defendant in the process. The defendant then drew

her gun and, as the victim attempted to flee, she shot him twice, killing him.



              The defense theory was that the victim and his sister were armed and

had struck the defendant and her sister with their weapons. Witnesses for the state

testified that neither the victim nor his sister were armed and that the victim had


                                           2
turned to run away when he was shot. No weapon was recovered from the victim.

The autopsy indicated that the victim had been shot twice in the back.



                                             I

              The defendant contends that the trial court erred in its response to two

questions from the jury, thereby depriving her of the constitutional right to a trial by

jury. The state maintains that the trial court acted properly.



                                            (A)

              After the trial court charged the jury on second degree murder, it

provided the following instructions on voluntary manslaughter:

              For you to find the defendant guilty of [voluntary
              manslaughter], the state must have proven beyond a
              reasonable doubt the existence of the following
              elements:
                    (1) that the defendant unlawfully killed the
                    alleged victim; and
                    (2) that the killing was intentional or
                    knowing; and
                    (3) that the killing resulted from a state of
                    passion produced by adequate provocation
                    sufficient to lead a reasonable person to act
                    in an irrational manner.

(Emphasis added).



              During its deliberations the jury asked the trial court to "[d]efine

reasonable as pertains to 'reasonable person.'" The state argued for a dictionary

definition to be provided, "[J]ust, proper, ordinary, usual, fit and appropriate to the

end in view...." The trial court determined that the terms usual, ordinary and rational

fit the connotation of reasonable person. Neither defense counsel nor the state

objected to the supplemental instruction:

              There is no set definition for reasonable as set forth in
              your question. Some terms such as ordinary, usual, or
              rational may apply, but the ultimate issue is for you to

                                            3
               determine what a reasonable person is.



               The trial court, of course, has a duty to give a complete charge of the

law applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319

(Tenn. 1986). It is presumed that the jury follows the instructions of the trial court.

State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985); Klaver v. State,

503 S.W.2d 946 (Tenn. Crim. App. 1973). A jury instruction can be found

"prejudicially erroneous" only if "it fails to fairly submit the legal issues or if it

misleads the jury as to the applicable law." State v. Hodges, 944 S.W.2d 346, 352

(Tenn. 1997). In Hodges, our supreme court warned that the instructions should be

"read ... as a whole":

               [J]urors do not sit in solitary isolation booths parsing
               instructions for subtle shades of meaning in the same
               way that lawyers might. Differences among them in
               interpretation of instructions may be thrashed out in the
               deliberative process, with common sense understanding
               of the instructions in the light of all that has taken place
               at the trial likely to prevail over technical hairsplitting.

Id., 944 S.W.2d at 352 (quoting Boyde v. California, 494 U.S. 370, 380-81 (1990)).



               Trial courts may provide supplemental instructions in response to jury

questions. State v. Forbes, 918 S.W.2d 431, 451 (Tenn. Crim. App. 1995). Trial

courts are not required to define or explain words or terms in common use which are

understood by persons of ordinary intelligence. State v. Summers, 692 S.W.2d 439,

445 (Tenn. Crim. App. 1985).



                Voluntary manslaughter is an intentional or knowing killing committed

while under a "state of passion produced by adequate provocation sufficient to lead

a reasonable person to act in an irrational manner." Tenn. Code Ann. § 39-13-211.

The Sentencing Commission Comments to this section suggest that the basic


                                               4
common law principles of voluntary manslaughter remain intact. Neither the

statutory law nor the Tennessee Pattern Jury Instructions provide a definition for the

term "reasonable person." See Tenn. Code Ann. § 39-13-211; T.P.I. § 7.06,

Instruction on Voluntary Manslaughter.



              Under common law, an objective rather than a subjective standard is

used to determine whether adequate provocation reduces the offense of first or

second degree murder to voluntary manslaughter. See State v. Freddo, 155 S.W.

170 (Tenn. 1912). In Seals v. State, our supreme court referred to an "ordinary

[person], of fair average disposition ...." in the context of provocation. 62 Tenn. 459,

462 (1874) (internal quotations omitted). Similarly, in Whitsett v. State, the supreme

court held that the person provoked must be "laboring under an adequately aroused

passion so great as to obscure his reason." 299 S.W.2d 2, 6 (Tenn. 1957).



              In our view, the instruction on "reasonable person," in the context of

the entire charge, is not erroneous. That "ordinary, usual, or rational may apply," as

indicated in the supplemental charge, is a correct statement of law. Other words

such as moderate, fair and sensible would also serve as adequate definitions.

American Heritage Dictionary 573 (Office Ed. 1983); Webster's New World

Dictionary 399 (Modern Desk Ed. 1976).



                                           (B)

              After four and one-half hours of deliberation, the jury asked of the trial

court, "What happens if we agree that she is guilty but cannot [agree] on 2nd degree

vs. voluntary manslaughter?" In response, the trial judge reread the following

sections of the original charge:

                   The verdict must represent the considered
              judgment of each juror. In order to return a verdict, it is

                                            5
              necessary that each juror agree thereto. Your verdict
              must be unanimous.

                     It is your duty, as jurors, to consult with one
              another and to deliberate with a view to reaching an
              agreement, if you can do so without violence to individual
              judgment. Each of you must decide the case for
              yourself, but do so only after an impartial consideration of
              the evidence with your fellow jurors. In the course of
              your deliberations, do not hesitate to reexamine your own
              views and change your opinion if convinced it is
              erroneous. But do not surrender your honest conviction
              as to the weight or effect of evidence solely because of
              the opinion of your fellow jurors, or for the mere purpose
              of returning a verdict.

                       When you retire to consider your verdict ... you will
              first inquire, is the defendant guilty of Murder Second
              Degree as charged in the indictment? ...

                      If you find the defendant not guilty of this offense,
              or if you have a reasonable doubt of her guilt of this
              offense, you will acquit her thereof and then proceed to
              inquire whether or not she is guilty of Voluntary
              Manslaughter as included in the indictment.

                                          ***
                     Take the case, consider all the facts and
              circumstances fairly and impartially and report to the
              Court such verdict as truth dictates and justice demands.



              The defendant contends that the trial court should have inquired

whether the jury was, in fact, deadlocked and that the trial court erred by directing

the jury to consider second degree murder before voluntary manslaughter.



              In State v. Kersey, 525 S.W.2d 139 (Tenn. 1975), our supreme court

adopted Sec. 5.4 of the ABA Standards Relating to Trial by Jury, and directed its

use by the trial courts faced with deadlocked juries; the court disapproved of the

Allen or "dynamite" charge. See Allen v. United States, 164 U.S. 492 (1896);

Commonwealth v. Tuey, 62 Mass. 1 (1851). In Kersey, our supreme court ruled that

the "dynamite" charge constituted an impermissible, judicially mandated majority

verdict and concluded that the only proper inquiry of the jury "as to its progress [is]

                                            6
... whether it believes it might reach a verdict after further deliberations." Kersey,

525 S.W.2d at 141.



              The charge under challenge by the defendant is identical to the Kersey

instruction. Unlike the Allen case, this jury was not instructed to surrender individual

judgment. In the event of an inability to agree on the part of the jury, trial judges

may require the jury to continue deliberating and may give or repeat this instruction.

Kersey, 525 S.W.2d at 145. In our view, this instruction was not erroneous.



              The instruction that the jury should render a verdict for second degree

murder before considering voluntary manslaughter is not erroneous. This type of

"acquittal first" instruction has been repeatedly upheld. See Harris v. State, 947

S.W.2d 156, 175-76 (Tenn. Crim. App. 1996). This issue has no merit.



                                            II

              Next, the defendant challenges the length of her sentence. When

there is a challenge to the length, range, or manner of service of a sentence, it is the

duty of this court to conduct a de novo review with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d). This presumption is "conditioned upon the affirmative showing in the record

that the trial court considered the sentencing principles and all relevant facts and

circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see State v.

Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission Comments

provide that the burden is on the defendant to show the impropriety of the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of


                                            7
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in her own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              At the time of this offense, the presumptive sentence for a Class A

felony was the midpoint in the range if there were no enhancement and mitigating

factors. Tenn. Code Ann. § 40-35-210(c). Should the trial court find mitigating and

enhancement factors, it must start at the minimum sentence in the range and

enhance the sentence based upon any applicable enhancement factors and then

reduce the sentence based upon any appropriate mitigating factors. Tenn. Code

Ann. § 40-35-210(e). While there must be compliance with the 1989 Act

documented by the record, the weight given to each factor is discretionary with the

trial court. See Ashby, 823 S.W.2d at 169; Tenn. Code Ann. §§ 40-35-209 and

-210.



              At the sentencing hearing, Icymae Franklin, mother of the victim,

testified that her son was a good student and athlete. She suffered deep anguish

after his death, has had difficulty working, and had lost seventy pounds. The

medical bills for life-saving efforts amounted to $16,000.00. Ms. Franklin asked the

trial court to impose the maximum sentence possible.



              Patricia Garrett, principal of Lester School where the victim had

attended elementary school, testified that she had known the victim since he was

five years old. She described the victim as motivated, conscientious, and popular

among his classmates. She characterized his death as a devastating event in the


                                           8
community.



              Leutissue Elliott, mother of the twenty-four-year-old defendant, testified

favorably for her daughter, asserting that she had worked hard to support her two

children. She asked the trial court to extend mercy. Reverend Joe Hayes, the

pastor at Greater Lakeview Baptist Church, testified that the defendant came from a

good family and deserved another chance. Latrice Woods, sister of the defendant,

testified that the victim hit her in the head with a gun on the night of the shooting.

She contended that the defendant had saved her life by shooting the victim.



              The trial court sentenced the defendant as a violent offender. See

Tenn. Code Ann. § 40-35-501(i)(1), (2) (No release eligibility for a defendant who

commits second degree murder after July 1, 1995; sentence credits shall not

exceed fifteen percent). It found that the defendant possessed or employed a

firearm during the commission of the offense, had no hesitation in committing an

offense when the risk to human life was high, and had committed the offense on

school property. Tenn. Code Ann. § 40-35-114(9), (10), & (17). The trial court

determined that the circumstances were especially serious because the defendant

had chosen to arm herself at a school function, had fired the shot in a high school

parking lot, and, due to the crowd in attendance at the game, had endangered

others. The trial court placed great weight on these factors and enhanced the

sentence to twenty-five years, the maximum possible. Because, however, the trial

court found in mitigation that the defendant acted under strong provocation and that

substantial grounds existed tending to excuse or justify the conduct but which did

not amount to a defense, the sentence was reduced to twenty-two years. Tenn.

Code Ann. § 40-35-113 (2), (3).




                                            9
             The defendant maintains that the use of a firearm and the commission

of the offense on school property should be consolidated into one enhancement

factor. We disagree. In our view, the trial court followed the dictates of Ashby,

made adequate findings of fact, and adhered to the purposes and principles of the

1989 Act. The enhancement factors and mitigating factors applied by the trial court

were appropriate and the sentence, while lengthy, is not unduly harsh given the

circumstances of the offense. When the sentence has been administered within the

statutory guidelines, the presumption of correctness prevails. See State v. Fletcher,

805 S.W.2d 785 (Tenn. Crim. App. 1991).



             Accordingly, the judgment of the trial court is affirmed.



                                         __________________________________
                                         Gary R. Wade, Judge

CONCUR:

_________________________________
Joe B. Jones, Presiding Judge 1


_________________________________
Jerry L. Smith, Judge




      1
       Honorable Joe B. Jones died May 1, 1998, and did not participate in this
opinion. We acknowledge his faithful service to this Court, both as a member of the
Court and as its Presiding Judge.

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