         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 10, 2006

           STATE OF TENNESSEE v. THOMAS RICHARDSON, JR.

                   Direct Appeal from the Circuit Court for Shelby County
                           No. 02-03194 Joseph B. Dailey, Judge


                      No. W2004-00508-CCA-R3-CD - Filed May 1, 2006


DAVID G. HAYES, Judge, separate concurring.

        The defendant in this case was indicted on a single count of felony murder committed during
the perpetration of arson. Under the felony murder rule, criminal liability for the murder is imposed
based on the culpability required for the underlying felony without separate proof of any culpability
with regard to the death. As our supreme court stated in Farmer v. State, 296 S.W.2d 879, 883
(Tenn. 1956), “it is not necessary that the State prove an intention to kill, or that it was committed
willfully, deliberately, premeditatedly and with malice aforethought.”

        Thus, in this case, the State was required only to establish that the defendant intended to
commit the crime of arson, i.e., the damaging of a structure by fire, and that the death of the victim
was causally connected to the arson. Because the State chose this theory of prosecution, the
photographs of the deceased and all of the victim’s statements pertaining to her fear of the defendant,
specifically, “He is not going to let me leave alive[;]” “Thomas has gotten so mean[;]” and the
victim’s two statements to Mrs. Boyland that the defendant was going to kill her, were irrelevant,
and, thus, inadmissible. Additionally, the defendant’s statement to Mrs. Boyland, “Mom, if you see
the police over here don’t worry, I be done killed somebody over here,” was also irrelevant as this
statement was not germane to the question of whether the defendant knowingly set fire to the
residence. Moreover, the record reflects that the prosecutor’s reoccurring theme throughout closing
argument was that of premeditation with repeated emphasis of the above irrelevant statements.

        Although the majority of the victim’s statements and the defendant’s statements would have
been admissible as excited utterances, Tenn. R. Evid. 803(2), and/or to establish motive and animus
in a prosecution for premeditated first degree murder, they were inadmissible under the State’s
theory of prosecution in this case. See State v. Smith, 868 S.W.2d 561, 575 (Tenn. 1993).

       While the question of guilt is closer, I find the remaining proof, particularly the accelerant
evidence and the defendant’s conduct and statements after the fire, is sufficient to support the
conviction.


                                                       _____________________________
                                                       David G. Hayes, Judge
