         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                 September 12, 2000 Session

               STATE OF TENNESSEE v. MICHAEL G. UPSHAW

                  Direct Appeal from the Criminal Court for Shelby County
                        No. 98-03610    James C. Beasley, Jr., Judge



                   No. W1999-00777-CCA-R3-CD - Filed January 11, 2001



THOMAS T. WOODALL , J., concurring.

        While agreeing with the majority opinion in section IV that criminally negligent homicide
should not have been charged to the jury under State v. Burns, 6 S.W.3d 453 (Tenn. 1999), I dissent
to the remaining portion of section IV. I agree that voluntary manslaughter is a lesser-included
offense of second degree murder, but under Burns, I feel that evidence does not exist that reasonable
minds could accept as to voluntary manslaughter as opposed to second degree murder. The majority
opinion relies entirely upon portions of Defendant’s pre-trial statement in support of its conclusion
that there is evidence to warrant a charge of voluntary manslaughter. The following excerpts from
the Defendant’s pre-trial statement contain the information regarding the circumstances of the
shooting:

       Q:      Michael, on Monday, November 3, 1997, at approximately 8:00 p.m., did you
               shoot a male white at Percy Delta Rd.?

       A:      Yes, sir, by mistake.

                                               ***

       Q:      Did the white male that was shot have a gun?

       A:      He drew for somethin, [sic] that’s what was had me paranoid.

                                               ***

       Q:      Michael, why did you shoot the male white?

       A:      Cause Mario said he had ran off with his money and then he faked like he
               was gone [sic] shoot first.
       Q:      Michael, in your own words, tell me what happened before, during and after
               the shooting.

       A:      Mario came picked me up at the house, I jumped in the car with Mario
               Merritt and Eric Jones and uh Vyron and they went round to Delta and Percy
               and that’s when we saw the white man and the girl, and Mario pulled around
               the car and tried to block the white man in and Mario Merritt asked them
               what was up with his money? Me and Vyron got out the car, uh, that’s when
               the white man looked like he was fixin [sic] to pull up his gun, I shot the gun
               at the red car window and we got back in the car. I got in the backseat and
               Vyron got in the front and Mario drove off and got his gun back from me.
               Mario took me home and dropped me off.


         I respectfully disagree that the fact that Defendant mentioned in his statement that “Mario”
stated that the victim had ran off with Mario’s money is sufficient proof of “adequate provocation”
to justify a conclusion that reasonable minds could accept a conviction of voluntary manslaughter.
Defendant’s statement, in effect, was that the Defendant did not raise his gun to shoot at the victim
until the victim appeared to be going for a weapon, in essence, a shooting by the Defendant in self-
defense.

       I would hold that, as with the lesser-included offense of criminally negligent homicide, the
proof did not justify a charge of voluntary manslaughter.



                                              __________________________________________
                                                    THOMAS T. WOODALL, JUDGE




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