             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    Assigned on Briefs July 18, 2001

               STATE OF TENNESSEE v. CLIFFORD COLEMAN, SR.

                             Appeal from the Circuit Court for Giles County
                                  No. 7367    Robert L. Jones, Judge



                       No. M2000-01916-CCA-R3-CD - Filed January 31, 2002


The defendant, Clifford Coleman, Sr., was convicted of first degree murder and sentenced to life in
prison.1 In this appeal of right, the defendant argues as follows: (1) The evidence was insufficient
to support his conviction for first degree murder; (2) the trial court erred by denying his requested
jury instruction on deliberation; (3) the trial court erred by failing to instruct the jury on the lesser
included offenses of reckless homicide and criminally negligent homicide; (4) the trial court erred
by failing to grant a mistrial after dismissing a juror; and (5) the trial court erred by failing to grant
a mistrial after a witness was allowed to testify in violation of the rule of sequestration. The
judgment of the trial court is affirmed.

                      Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Shara A. Flacy, District Public Defender (at trial); John R. Wingo, Assistant Public Defender (at
trial); and R. H. Stovall, Jr., Assistant Public Defender (on appeal), for the appellant, Clifford
Coleman, Sr.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney
General; Thomas M. Bottoms, District Attorney General; and Robert C. Sanders and Richard H.
Dunavant, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                                      OPINION

        In the early morning hours of April 27, 1995, the defendant arrived at the Giles County
Sheriff’s department and informed officers that he had injured his wife, Georgia, who was still at the
couple’s residence. He admitted to officers that he had struck his wife with a metal pipe, which he


         1
            Becau se the state did not seek the death penalty or life without parole, the defendant was automatically given
a life sen tence . See Ten n. Co de A nn. § 39-13-208 (b)-(c ) (Supp. 1 994 ).
had in his vehicle. At the defendant’s urging, officers retrieved the pipe and, upon inspection,
determined that there was both blood and hair on the pipe.

       When police arrived at the defendant’s residence, Michael Holt, the victim’s son, answered
the door. Holt, who expressed surprise at seeing the police, first told officers that his mother was
sleeping, then ran to her room to check on her. He found his mother lying on her bed, bleeding from
her head and face. A pillow was over her head.

        Later that morning, Investigator Mike Chapman asked the defendant, who was still at the
Sheriff’s Department, for permission to “look around” the residence. The defendant readily agreed.
When he returned from the residence, Officer Chapman took a statement from the defendant. The
following questions and answers were transcribed:

       A.  Well, she was laying there a fussing and cursing and carrying on at me and I [...]
       Q.  So you hit her?
       A.  Said a whole lot of nasty things about me and the[n] first one thing and another.
       Q. She was laying there and you hit her, right? Where did you hit her first, Clifford?
       A.  Sir, I think on top of the head.
                               *                *               *
       Q. And you hit her with that pipe that you showed the other deputies this morning,
       right? You are nodding your head, yes. Were you so mad at the time that you hit her
       harder than maybe you would have normally done if you hadn’t been mad? That
       sounds like a silly question, but you hit her pretty hard from what I saw. Is that right?
       A. I probably did. I probably got a little mad because this thing has been building
       up between me and her for days now.
       Q. After you hit her the first time, you just sort of kept on, didn’t you?
       A. I guess so. I mean, you know, I wish I could tell – I am telling you the truth. I
       don’t know how many times I hit her.

        The medical examiner, Dr. Charles Harlan, determined that the cause of death was “blunt
trauma to the neck with a contribution from blunt trauma to the head.” Dr. Harlan testified that he
observed four lacerations on the victim’s head, a maceration (crushing) of her left ear, and a crush
injury to her throat.

       After being indicted for first degree murder, the defendant filed notice under Tennessee Rule
of Criminal Procedure 12 of his intent to use the defense of mental disease or defect. At the state’s
request, the defendant was taken to Middle Tennessee Mental Health Institute for evaluation.

        At trial, Michael Holt testified that when he arrived home from work between 10:30 P.M.
and 11:00 P.M. on the date of the murder, his mother was in bed, but not asleep, and the defendant
was sitting in a chair at the foot of the bed. Holt testified that he was watching television when he
heard a thud from the bedroom occupied by the defendant and the victim. According to Holt, the
defendant, who showed only slight nervousness, claimed that the noise had come from the television.


                                                 -2-
Holt then asked for a cigarette. The defendant used his left hand to take a pack of cigarettes from
his shirt pocket, shook the pack until a cigarette emerged, and handed the pack to Holt. Holt took
a single cigarette. The defendant then handed Holt his lighter. During this conversation, the
defendant held his right hand behind his back. The defendant then returned to his room. Shortly
thereafter, the defendant then proceeded through the living room before walking out the door.

       The defendant had informed officers that he had in his possession the metal pipe. He
explained that he hid the pipe from Holt, whom the defendant described as having violent
propensities, by wrapping it in his jacket. In his words, he "eased" past Holt and out of the house
before driving to the sheriff's department.

          Robert Robinson, who lived across the street, testified that the defendant told him
approximately one week before the incident that “he was going to throw [the victim] in the alligator
alley . . . .” Robinson also observed that the defendant and the victim argued extensively and stated
that he had heard the victim threaten to kill the defendant. Peggy McWilliams, Robinson’s
girlfriend, remembered that sometime before the murder the defendant told her that she “needed to
go buy . . . a black dress because [she] was going to be needing one.” Both Robinson and Williams
testified that they believed that the defendant was joking at the time he made these statements.

        Deputy Paul King, who was working as a jailer on the date of the offense, testified that the
defendant appeared to be confused and nervous when he arrived at the Sheriff’s Department. Deputy
King and Michael Thompson, an E-911 dispatcher and reserve deputy, retrieved the metal pipe from
the defendant’s car.

         As part of the defense proof, Dr. Kirby Pate, a psychiatrist, testified that the defendant was
“probably fearful of anger, and primarily someone who is fearful of asserting himself.” It was his
belief that the defendant suffered from vascular dementia, an insufficient blood supply to his brain,
caused by years of poorly controlled hypertension. According to Dr. Pate, vascular dementia causes
impulsive behavior and loss of both intelligence and the ability to think and remember. Dr. Pate
testified that because of this mental defect, the defendant was unable to control his behavior and
conform to the law, thereby qualifying him for the insanity defense.

        Dr. Pamela Auble, a neuropsychologist, testified that the defendant’s IQ was 74, borderline
mentally retarded. It was her opinion that the defendant performed poorly on several neurological
tests she administered. She stated that the personality tests she administered to the defendant
revealed that “when [the defendant] is overwhelmed or placed in a situation which is very stressful
for him that he does have the potential to just explode and to act very strongly for a short period of
time.”

       In rebuttal, the state called as witnesses the psychologist, social worker, and psychiatrist who
evaluated the defendant at Middle Tennessee Mental Health Institute. Dr. Susan Williams, a
psychologist who participated in the defendant’s evaluation, testified that the defendant had an IQ
of 82 and that, while he had poor memory, poor memory was normal given his age and history of


                                                 -3-
drinking. Dr. Peter Clemm, a psychiatrist, testified that the defendant “was not suffering from a
mental illness . . . at the time of the . . . crime.”

                                                    I
         Initially, the defendant challenges the sufficiency of the evidence. On appeal, of course, the
state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which
might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility
of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the
proof are matters entrusted to the jury as the trier of fact. Byrge v. State, 575 S.W.2d 292, 295
(Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the relevant question
is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App.
P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility
of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859
(1956). Because a verdict of guilt removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

       Current law describes first degree murder as:

              (a) First degree murder is;
              (1) A premeditated and intentional killing of another;
              (2) A killing of another committed in the perpetration of or attempt to
       perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping,
       aggravated child abuse or aircraft piracy; or
              (3) A killing of another committed as a result of the unlawful throwing,
       placing or discharging of a destructive device or bomb.
Tenn. Code Ann. § 39-13-202(a). At the time of the offense in 1995, however, first degree murder
was defined as follows:

                (a) First degree murder is:
                (1) An intentional, premeditated and deliberate killing of another;
                (2) A reckless killing of another committed in the perpetration of, or attempt
        to perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping
        or aircraft piracy;
                (3) A reckless killing of another committed as the result of the unlawful
        throwing, placing or discharging of a destructive device or bomb; or
                (4) A reckless killing of a child less than sixteen (16) years of age, if the
        child’s death results from aggravated child abuse, as defined by § 39-15-402,
        committed by the defendant against the child.




                                                  -4-
Tenn. Code Ann. § 39-13-202(a) (Supp. 1994). Tennessee Code Annotated section 39-13-201
provided as follows:

                (a) Criminal homicide is the unlawful killing of another person which may
       be first degree murder, second degree murder, voluntary manslaughter, criminally
       negligent homicide or vehicular homicide.
                (b) The following definitions apply in this part:
                (1) "Deliberate act" means one performed with a cool purpose; and
                (2) "Premeditated act" means one done after the exercise of reflection and
       judgment. Premeditation may include instances of homicide committed by poison
       or by lying in wait.

Tenn. Code Ann. § 39-13-201 (1991). Whether the evidence was sufficient depends entirely on
whether the state was able to establish beyond a reasonable doubt the elements of intent,
premeditation, and deliberation.

        In State v. Brown, which interpreted the act in effect at the time of this offense, our supreme
court held that the element of deliberation contemplates a lapse of time between the decision to kill
and the killing:

       "[T]he deliberation and premeditation must be akin to the deliberation and
       premeditation manifested where the murder is by poison or lying in wait – the cool
       purpose must be formed and the deliberate intention conceived in the mind, in the
       absence of passion, to take the life of the person slain. Murder by poison or lying in
       wait, are given as instances of this sort of deliberate and premeditated killing, and in
       such cases no other evidence of the deliberation and premeditation is required; but
       where the murder is by other means, proof of deliberation and premeditation is
       required. It is true it has been held several times that the purpose need not be
       deliberated upon any particular length of time – it is enough if it precedes the act, but
       in all such cases the purpose must be coolly formed, and not in passion, or if formed
       in passion, it must be executed after the passion has had time to subside. . . . [I]f the
       purpose to kill is formed in passion . . . , and executed without time for the passion
       to cool, it is not murder in the first degree, but murder in the second degree."

836 S.W.2d 530, 539 (Tenn. 1992) (quoting Rader v. State, 73 Tenn. 610, 619-20 (1880)). Our high
court pointed to two respected authorities to emphasize the important distinction between the
elements of premeditation and deliberation:

       ‘Premeditation’ is the process simply of thinking about a proposed killing before
       engaging in the homicidal conduct; and ‘deliberation’ is the process of carefully
       weighing such matters as the wisdom of going ahead with the proposed killing, the
       manner in which the killing will be accomplished, and the consequences which may
       be visited upon the killer if and when apprehended. ‘Deliberation’ is present if the


                                                 -5-
       thinking, i.e., the ‘premeditation,’ is being done in such a cool mental state, under
       such circumstances, and for such a period of time as to permit a ‘careful weighing’
       of the proposed decision.

Id. at 540-41 (quoting C. Torcia, Wharton’s Criminal Law § 140 (14th ed. 1979)) (emphasis
omitted).

       Perhaps the best that can be said of ‘deliberation’ is that it requires a cool mind that
       is capable of reflection, and of ‘premeditation’ that it requires that the one with the
       cool mind did in fact reflect, at least for a short period of time before his act of
       killing.
                It is often said that premeditation and deliberation require only a ‘brief
       moment of thought’ or a ‘matter of seconds,’ and convictions for first-degree murder
       have frequently been affirmed where such short periods of time were involved. The
       better view, however, is that to ‘speak of premeditation and deliberation which are
       instantaneous, or which take no appreciable time, . . . destroys the statutory
       distinction between first and second-degree murder,’ . . . .

Id. at 541 (quoting 2 W. LaFave and A. Scott, Substantive Criminal Law § 7.7 (1986)) (emphasis
omitted).

       This court has held that the elements of deliberation and premeditation are questions for the
jury and may be inferred from the manner and circumstances of the killing. State v. Gentry, 881
S.W.2d 1, 3 (Tenn. Crim. App. 1993).

        Here the defendant contends that the evidence is insufficient to support his conviction
because the state failed to present any evidence of deliberation. The defendant concedes that, in the
light most favorable to the state, the jury could have inferred premeditation from the statements made
to his neighbors before the offense.

        The proof offered at trial established that the defendant and the victim were engaged in an
argument when the defendant picked up a metal pipe and struck her five to six times. At trial, the
state relied heavily on two facts to support a finding of deliberation: (1) The defendant made
attempts to conceal the crime after it occurred; and (2) the defendant struck the victim repeatedly.
Significantly, the state does not argue on appeal that repeated blows, under the law in 1995, qualified
as evidence of deliberation. In Brown, our supreme court held that “[r]epeated blows can be
delivered in the heat of passion, with no design or reflection.” Brown, 836 S.W.2d at 542. The state
does, however, contend that the defendant’s attempts to conceal the crime by falsely claiming that
the noise from the assault was from the television and by claiming to the police that the victim had
threatened him with a red-handled knife during an earlier argument qualify as evidence of
deliberation. Our case law, however, establishes that concealment of evidence after a crime is not
probative of intent held prior to the crime. See, e.g., State v. Ricky A. Burks, No. M2000-00345-
CCA-R3-CD (Tenn. Crim. App., at Nashville, May 25, 2001) (citing State v. West, 844 S.W.2d 144,


                                                 -6-
148 (Tenn. 1992)). There was, however, some evidence of cool purpose, which was a required
element of the crime at the time of the offense. After the murder, the defendant calmly explained
to his stepson, Michael Holt, that the noise incident to the assault actually came from the television.
Despite the fact that he was hiding the murder weapon behind his back, his manual dexterity was
unaffected. With his left hand, he handed Holt a cigarette and a lighter and returned to his room
without displaying any particular distress. Holt, who had a propensity for violence and was so angry
that he had to be restrained and maced by police after being informed of his mother's death, detected
only a possibility of nervousness on the part of the defendant when he asked about the noise. See
State v. Bland, 958 S.W.2d at 660 and State v. West, 844 S.W.2d at 148 (holding that calmness
immediately after a killing is evidence of deliberation). Further, one week before the murder the
defendant expressed to others poorly veiled threats to kill the victim, saying that he intended to throw
the victim in "alligator alley" and suggesting that a "black dress" would soon be necessary. In
addition to the element of premeditation, those statements might also be interpreted as not so
humorous statements of purpose. His statement to police that "things had been building up" on the
day prior to the killing also implies some degree of deliberation. Taken in the light most favorable
to the state, there was by a thin margin sufficient evidence to support a finding of cool purpose.

                                                  II
        At trial, the defense submitted several requested jury instructions, most of which followed
the language of the pattern jury instructions. The requested instruction on first degree murder,
however, differed slightly from the pattern instruction in that it contained an extra paragraph on the
element of deliberation. The trial court denied this request and chose, instead, to provide the pattern
instruction. Additionally, the defense requested that the trial court instruct the jury on the offenses
of reckless homicide and criminally negligent homicide. The trial court also denied these
instructions and chose to only instruct the jury on first degree murder, second degree murder, and
voluntary manslaughter.

        Initially, the trial court has a duty “to give a complete charge of the law applicable to the facts
of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P. 30.
“[The] defendant has a constitutional right to a correct and complete charge of the law.” State v.
Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Our law requires that all of the elements of each offense
be described and defined in connection with that offense. See State v. Cravens, 764 S.W.2d 754,
756 (Tenn. 1989). Jury instructions must, however, be reviewed in the context of the overall charge
rather than in isolation. See Sandstrom v. Montana, 442 U.S. 510 (1979); see also State v. Phipps,
883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). A charge is prejudicial error “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). Erroneous jury instructions require a reversal unless the error is
harmless beyond a reasonable doubt. See Welch v. State, 836 S.W.2d 586 (Tenn. Crim. App. 1992).

        The defendant requested that the trial court add the following paragraph to Tennessee Pattern
Jury Instruction Crim. 7.01(a):




                                                   -7-
                Deliberation requires some period of reflection, during which the mind is free
        from the influence of excitement or passion. Premeditation does not require a
        specific amount of time to pass between the formation of the idea and the act.
        However, the intent necessary to commit first degree murder may not be formed in
        an instant because of the additional requirement of deliberation. Furthermore,
        repeated blows alone are not enough to prove first degree murder.

While the defendant may request special instructions, jury instructions are sufficient where they
adequately state the law. See, e.g., State v. Tyson, 603 S.W.2d 748 (Tenn. Crim. App. 1980). When
a trial court's charge to the jury is complete, it need not give additional special instructions requested
by the defendant. See State v. Story, 608 S.W.2d 599, 603 (Tenn. Crim. App. 1980). In our view,
Tennessee Pattern Jury Instruction Crim. 7.01 correctly stated the law as it existed in 1995.
Moreover, this court has specifically approved of its content, ruling that the pattern instruction
contained an adequate explanation of the elements the state must prove beyond a reasonable doubt
before a defendant may be convicted of first degree murder. State v. Makoka, 885 S.W.2d 366, 372
(Tenn. Crim. App. 1994). Thus, the trial court did not err in denying the special request on
deliberation.

        As indicated, the defendant also asked that the trial court instruct the jury on the lesser
included offenses of reckless homicide and criminally negligent homicide. Citing State v. Williams,
977 S.W.2d 101, 106 (Tenn. 1998), the state concedes that the trial court’s refusal to instruct on the
lesser included offenses was error, but submits that it was harmless because the jury convicted the
defendant of the highest offense charged, first degree murder.

         Although this case was tried in 1997, the issue of the trial court’s failure to charge lesser
included offenses is controlled by State v. Burns, 6 S.W.3d 453 (Tenn. 1999), and its progeny. The
decision in Burns has been consistently applied to cases within the appellate pipeline at the time of
filing. See, e.g., State v. Billy Joe Stokes, 24 S.W.3d 303 (Tenn. 2000); State v. Jumbo Kuri, No.
M1999-00638 CCA-R3-CD (Tenn. Crim. App., at Nashville, May 25, 2000); State v. Harvey Phillip
Hester, No. 03C01-9704-CR-00144 (Tenn. Crim. App., at Knoxville, Mar. 22, 2000); State v. Khanh
V. Le, No. W1998-00637-CCA-R3-CD (Tenn. Crim. App., at Jackson, Mar. 9, 2000); State v. Gary
Lee Miller, No. M1998-00788-CCA-R3-CD (Tenn. Crim. App., at Nashville, Mar. 6, 2000); State
v. Brandon Patrick, No. 03C01-9905-CC-00201 (Tenn. Crim. App, at Knoxville, Jan. 26, 2000);
State v. David Michael Gamble, No. 03C01-9812-CR-00442 (Tenn. Crim. App., at Knoxville, Jan.
21, 2000). A case is within the appellate pipeline when it is pending at the time of the decision and
fairly raises the issue. See State v. McClintock, 732 S.W.2d 268, 274 (Tenn. 1987); Adams v. State,
547 S.W.2d 553, 555-57 (Tenn. 1977). Because the defendant’s motion for new trial presented this
issue and the question was pending in the trial court when Burns was decided,2 it qualifies as falling
within the appellate pipeline.




        2
            The defendant’s motion for new trial, which was timely filed on April 9, 1997, was heard on June 14, 2000.

                                                          -8-
       In Burns, our supreme court revised the standards for the determination of lesser included
offenses. In a companion case, State v. Dominy, 6 S.W.3d 472 (Tenn. 1999), our high court
confirmed that it had overruled that portion of State v. Trusty, 919 S.W.2d 305 (Tenn. 1996), in
which it had established a distinction between lesser grades or classes of offenses and lesser included
offenses. In Burns, the court adopted a modified version of the Model Penal Code in order to
determine what constitutes a lesser included offense:

       An offense is a lesser included offense if:

       (a) all of its statutory elements are included within the statutory elements of the
       offense charged; or
       (b) it fails to meet the definition in part (a) only in the respect that it contains a
       statutory element or elements establishing
                (1) a different mental state indicating a lesser kind of culpability;
                and/or
                (2) a less serious harm or risk of harm to the same person, property or
                public interest; or
       (c) it consists of
                (1) facilitation of the offense charged or of an offense that otherwise
                meets the definition of lesser-included offense in part (a) or (b); or
                (2) an attempt to commit the offense charged or an offense that
                otherwise meets the definition of lesser included offense in part (a) or
                (b); or
                (3) solicitation to commit the offense charged or an offense that
                otherwise meets the definition of lesser-included offense in part (a)
                or (b).

Burns, 6 S.W.3d at 466-67. Using this analysis, reckless homicide and criminally negligent
homicide are lesser included offenses of first degree murder. See, e.g., State v. Letivias Price, No.
M1998-00005-CCA-R3-CD (Tenn. Crim. App., at Nashville, Aug. 10, 1998).

        Having determined that reckless homicide and criminally negligent homicide are lesser
included offenses of first degree murder, our next inquiry is whether the evidence warranted an
instruction on those offenses. Burns, 6 S.W.3d at 467. The guiding principle is that if there is
evidence in the record from which the jury could conclude that a lesser included offense was
committed, there must be an instruction for the lesser offense. See Johnson v. State, 531 S.W.2d
558, 559 (Tenn. 1975). In Burns, our supreme court adopted a two-step process for determining
whether the evidence justifies a jury instruction on a lesser included offense:

       First, the trial court must determine whether any evidence exists that reasonable
       minds could accept as to the lesser-included offense. In making this determination,
       the trial court must view the evidence liberally in the light most favorable to the
       existence of the lesser-included offense without making any judgments on the


                                                 -9-
         credibility of such evidence. Second, the trial court must determine if the evidence,
         viewed in this light, is legally sufficient to support a conviction for the
         lesser-included offense.

Burns, 6 S.W.3d at 469.

       In 1995, reckless homicide, a class D felony, was defined as “a reckless killing of another.”
Tenn. Code Ann. § 39-13-215 (Supp. 1994). Criminally negligent homicide, a class E felony,
occurred when criminally negligent conduct resulted in the death of another. Tenn. Code Ann. § 39-
13-212 (1991).

         Here, the defendant relied on insanity as a defense and introduced evidence of his mental
state at the time of the offense. While the jury rejected this theory as an absolute defense, it could
have considered any diminished capacity in determining whether the defendant was able to form the
required mens rea for first or second degree murder. Our supreme court held in State v. Abrams that
“evidence of a defendant's mental condition can be relevant and admissible in certain cases to rebut
the mens rea element of an offense.” 935 S.W.2d 399, 402 (Tenn. 1996). Additionally, our high
court has opined that

         [i]n modern application, diminished capacity is not considered a justification or
         excuse for a crime, but rather an attempt to prove that the defendant, incapable of the
         requisite intent of the crime charged, is innocent of that crime but most likely guilty
         of a lesser included offense. Thus, a defendant claiming diminished capacity
         contemplates full responsibility, but only for the crime actually committed.

State v. Hall, 958 S.W.2d 679, 688-89 (Tenn. 1997). This court has held that testimony of
diminished capacity may justify “an acquittal of the indicted offense and a conviction for a lesser
included offense.” State v. Perry, 13 S.W.3d 724, 734 (Tenn. Crim. App. 1999). Reckless homicide
and criminally negligent homicide have less culpable mental states than both second degree murder
and voluntary manslaughter, which have the same culpable mental state.3

         Examining all of the proof in the light most favorable to the existence of the lesser included
offenses, as required by Burns, it is our view that the failure to instruct on either reckless homicide
or criminally negligent homicide qualifies as harmless error, having had no effect on the results of
the trial.

        In State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998), our supreme court, appearing to
reject a line of cases which had concluded that the right to instructions on lesser offenses was


         3
           At the time of the offense, second degree murder required the state to prove that a killing w as “know ing.”
Tenn. Code A nn. § 39-13 -210(a)(1) (1991 ). Voluntary manslaughter was defined as an “intentional or knowing killing
of another in a state of passio n produ ced by adeq uate p rovocation suf ficient to lead a reasonable person to act in an
irrational man ner.” Tenn. Cod e Ann . § 39-13-21 1(a) (1991).

                                                          -10-
founded in the right to trial by jury under the Tennessee Constitution, ruled that the entitlement was
based upon a statutory requirement. See Tenn. Code Ann. § 40-18-110(a). Our high court directed
that any error in the omission of a lesser included offense would be subject to the following harmless
error analysis:

        Reversal is required if the error affirmatively appears to have affected the result of
        the trial on the merits, or in other words, reversal is required if the error more
        probably than not affected the judgment to the defendant's prejudice.

Williams, 977 S.W.2d at 105.

         In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998), the defendant, who was charged with
premeditated first degree murder, was willing to gamble on an “all or nothing” verdict by asking the
trial judge not to charge the lesser included offense of second degree murder; the trial judge refused
and the defendant was convicted on that lesser crime. While our supreme court affirmed that second
degree murder conviction, its opinion emphasized the mandate of the statute requiring trial courts
to “instruct the jury on all lesser offenses if the evidence introduced at trial is legally sufficient to
support a conviction of the lesser offense.” Id. at 593. Our supreme court also acknowledged that
the “purpose of the statute is to protect the right to trial by jury by instructing the jury on the
elements of all offenses embraced by the indictment [and to] facilitate the overall truth-seeking
function of the process.” Id. If the failure to charge a lesser included offense was an error of
constitutional dimension, as Bolden implied, the proper question would have been whether the error
was harmless beyond a reasonable doubt. In State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000),
however, our supreme court followed the rationale in Williams and held that reversal was required
only “if the error affirmatively affected the result of trial, or if the error more probably than not
affected the judgment to the defendant's prejudice.” The high court concluded that the trial court's
failure to instruct misdemeanor assault as a lesser included offense of the primary charge, aggravated
sexual battery, was harmless error under Tennessee Rule of Criminal Procedure 52(a).

         In State v. Ely, our supreme court clarified the holding in Williams and confirmed that the
failure to charge a lesser included offense qualifies as an error of constitutional proportions:

        That the right of trial by jury is of constitutional dimension is evidenced by its
        embodiment in Article I, section 6 of the Tennessee Constitution, which states, "the
        right of trial by jury shall remain inviolate." Accordingly, we hold that this
        constitutional right is violated when the jury is not permitted to consider all offenses
        supported by the evidence.

48 S.W.3d 710, 727 (Tenn. 2001) (emphasis in original); see also State v. Bowles, 52 S.W.3d 69
(Tenn. 2001). Our high court directed that in reviewing error arising from a failure to charge one
or more lesser included offenses, “the proper inquiry for an appellate court is whether the error is
harmless beyond a reasonable doubt.” Ely, 48 S.W.3d at 727.



                                                  -11-
        In applying the holdings of Williams, Ely, and Bowles, some panels of this court have ruled
that the failure to charge lesser included offenses is necessarily harmless beyond a reasonable doubt
when the defendant is convicted of the highest offense charged and the jury is instructed on the
immediate lesser offense but not other lesser offenses. See, e.g., State v. Haison Fields, No. M2000-
02144-CCA-R3-CD (Tenn. Crim. App., at Nashville, October 8, 2001) (finding error where the trial
judge failed to charge on a number of lesser included offenses but concluding that because the jury
found attempted first degree murder in lieu of attempted second degree murder, the error was
harmless beyond a reasonable doubt); State v. Jon Robert Goodale, No. M2000-02140-CCA-R3-CD
(Tenn. Crim App., at Nashville, Sept. 14, 2001) (holding that because the defendant was convicted
of aggravated robbery, the error was harmless beyond a reasonable doubt when the trial court
instructed the jury on facilitation of aggravated robbery, robbery, and facilitation of robbery, but not
accessory after the fact); State v. Ernest Edward Wilson, No. M2000-01997-CCA-R3-CD (Tenn.
Crim. App., at Nashville, Oct. 17, 2001) (holding that where the defendant, who was charged with
first degree murder and claimed self-defense, was convicted of second degree murder and the trial
court instructed on voluntary manslaughter, the second degree murder conviction necessarily
rendered the failure to instruct on reckless homicide and criminally negligent homicide harmless
beyond a reasonable doubt). Others agree that the failure to instruct the jury on lesser included
offenses is harmless beyond a reasonable doubt in situations like that presented in Williams, but go
further by stating that the Williams situation is the only scenario under which the failure to instruct
on lesser included offenses may be found harmless beyond a reasonable doubt. See State v. Rickie
Boyd, No. W2000-01010-CCA-R3-CD, slip op. at 4 n.7 (Tenn. Crim. App., at Jackson, Sept. 10,
2001) (observing that “[i]t remains unclear whether situations other than the Williams scenario may
provide a basis for finding an erroneous failure to instruct on lesser offenses harmless beyond a
reasonable doubt”); State v. Linnell Richmond and Shervon Johnson, No. M2000-01545-CCA-R3-
CD (Tenn. Crim. App., at Nashville, Oct. 15, 2001) (stating that “the only time a failure to instruct
on lesser-included offenses can be considered harmless beyond a reasonable doubt is in the situation
presented by the Williams case, i.e., where the jury by rejecting a verdict of guilt on an intermediate
lesser-included offense for which they were instructed, in favor of a verdict on the more serious
offense, ‘necessarily’ rejects all other lesser-included offenses”) (Smith, J., concurring and
dissenting).

         The determination of whether such failure is harmless beyond a reasonable doubt may be,
as these cases suggest, a mechanically applied analysis, but a fact-specific test is the more traditional
analysis, requiring a contextual review of the evidence in the record. See State v. Darrell Presnell,
No. E2000-02544-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Aug. 10, 2001); State v. George
Redd, No. W2000-01620-CCA-R3-CD (Tenn. Crim. App., at Jackson, Aug. 9, 2001) (stating that
“we must be able to conclude beyond a reasonable doubt that the jury in this case would not have
found the Defendant guilty of one of the lesser included offenses, rather than the principal offense,
if the jury had been given the opportunity to consider the lesser included offenses”); State v. Daniel
Wade Wilson, No. E2000-01885-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Aug. 2, 2001). A
concurring opinion authored by Chief Justice Rehnquist in Sullivan v. Louisiana describes the duty
of the appellate court in circumstances where there is constitutional error:



                                                  -12-
       [T]he reviewing court is usually left only with the record developed at trial to
       determine whether it is possible to say beyond a reasonable doubt that the error did
       not contribute to the jury's verdict. . . . [A]ny time an appellate court conducts
       harmless-error review it necessarily engages in some speculation as to the jury's
       decision making process; for in the end no judge can know for certain what factors
       led to the jury's verdict.

508 U.S. 275, 283 (1993) (Rehnquist, J., concurring).

        In Fahey v. Connecticut, 375 U.S. 85 (1963), our highest court observed that the real question
when there is a constitutional violation is whether there is “a reasonable possibility” that error might
have contributed to the conviction. In Chapman v. California, our Supreme Court approved of that
language and further concluded that when constitutional error has occurred, appellate courts have
the obligation “to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. 18, 24
(1967).

         Here, the jury convicted the defendant of the highest offense with which he was charged, first
degree murder. Additionally, the defendant presented evidence of his diminished capacity, which
was properly instructed,4 and upon which the jury could have found that the defendant was not guilty
of first degree murder, nor even second degree murder, but of voluntary manslaughter or perhaps an
even lesser included offense. Because the evidence, in this instance, was sufficient to support the
verdict of first degree murder and the jury refused to consider alternatives of second degree murder
and voluntary manslaughter, it is most unlikely that even lesser offenses would have been
considered. While the failure to instruct on reckless homicide and criminally negligent homicide
was also error, it is our view that from the facts presented, that the error was harmless beyond a
reasonable doubt. The jury rejected insanity as a defense and was given an opportunity to consider
the impact of the diminished capacity on other homicide possibilities. The proof established that the
defendant, mindful of his dissatisfaction with the victim and angered at her behavior, stewed for days
before following through on his threats by beating her to death with a metal pipe. Under these
circumstances, it is difficult to imagine how the failure to instruct on reckless or negligent homicide
had any possible effect on the verdict.

                                               III
        The defendant next contends that the trial court erred by dismissing the only African-
American juror, Beverly Marie Gardner, on the second day of trial. As styled, the argument appears
to challenge Ms. Gardner’s dismissal under Batson v. Kentucky, 476 U.S. 79 (1986); however, the

       4
        With regard to dimin ished cap acity, the trial court instructed the jury as fo llows:
                 In this case you have heard evidence that the defendant might have suffered from a mental
       disease, defect, or co ndition, which could have affected his cap acity to form the culpable m ental state
       required to commit a crime. If you find from the evidence that the defendant’s capacity to form a
       culpable mental state may have been affected, then you must determine, beyond a reasonable doubt
       what the mental state of the defendant was at the time of the comm ission of the offense to determine
       of which, if any, offense he is guilty.

                                                         -13-
defendant’s brief does not include any argument that Ms. Gardner’s dismissal was racially motivated.
Instead, the defendant argues that the trial court lacked sufficient cause to dismiss her.

        The trial began on March 12, 1996, and on March 13, the second day of trial, the trial court
dismissed juror Beverly Gardner. Ms. Gardner had first expressed some reluctance to sit on the jury
during voir dire. She stated that she knew the children of both the victim and the defendant, and
expressed concern about exercising her responsibilities as a juror. After agreeing that she could put
these problems aside and follow the instructions of the court, Ms. Gardner was seated on the jury.
On the second day of trial, Ms. Gardner informed the clerk of her continuing discomfort, saying that
she did not want to be there. Later, during questioning by the trial court and counsel, Ms. Gardner
wiped away tears as she described her anxiety. The trial court excused Ms. Gardner on this basis.

        Tennessee Rule of Criminal Procedure 24(e)(1) allows the trial court to replace a sitting juror
who “become[s] or [is] found to be unable or disqualified to perform [his or her] duties” with an
alternate juror. A determination of the qualifications of a juror rests within the discretion of the trial
court and will not be overturned absent a showing of an abuse of that discretion. State v. Kilburn,
782 S.W.2d 199, 203 (Tenn. Crim. App. 1989); see also State v. Millbrooks, 819 S.W.2d 441, 445
(Tenn. Crim. App. 1991). The defendant bears the burden of demonstrating that the trial court
abused its discretion and that he was prejudiced by the substitution. State v. Max, 714 S.W.2d 289,
294 (Tenn. Crim. App. 1986). While the defendant has a right to a fair trial at the hands of an
impartial jury, he has no right to have his case decided by any particular jurors. See State v. Smith,
857 S.W.2d 1, 20 (Tenn. 1993).

        Here, the defendant has failed to articulate what prejudice he suffered as a result of the
court’s excusal of Ms. Gardner. Because the defendant has failed to establish prejudice, the issue
is without merit.

                                                  IV
         Finally, the defendant argues that the trial court erred by refusing to grant a mistrial after
allowing Rhonda Holt, the victim’s daughter, to testify in violation of Rule 615 of the Tennessee
Rules of Evidence. The state called Ms. Holt as a rebuttal witness. The defense objected to her
testimony because she had been present in the courtroom throughout the trial. The state contended
that it did not become aware of Ms. Holt’s testimony, and the need for it, until after Dr. Auble
testified. According to Ms. Holt, she had the following conversation with the defendant in 1994:

        ‘[P]eople think I’m crazy.’ He said, ‘I used to drive around through town with no
        shirt on, with a tie, with my hat turned around backwards and I had to take these tests
        where they would make you put the shapes in the right spots and I would put shapes
        in the wrong place, but I’m not crazy.’

The trial court ruled that Ms. Holt’s testimony was critical to the primary issue and thus admissible
despite the violation of the rule of sequestration.



                                                  -14-
       Rule 615 of the Tennessee Rules of Evidence provides:

               At the request of a party the court shall order witnesses, including rebuttal
       witnesses, excluded at trial or other adjudicatory hearing. In the court’s discretion,
       the requested sequestration may be effective before voir dire, but in any event shall
       be effective before opening statements. The court shall order all persons not to
       disclose by any means to excluded witnesses any live trial testimony or exhibits
       created in the courtroom by a witness. This rule does not authorize exclusion of (1)
       a party who is a natural person, or (2) a person designated by counsel for a party that
       is not a natural person, or (3) a person whose presence is shown by a party to be
       essential to the presentation of the party’s cause. This rule does not forbid testimony
       of a witness called at the rebuttal stage of a hearing if, in the court’s discretion,
       counsel is genuinely surprised and demonstrates a need for rebuttal testimony from
       an unsequestered witness.

The sequestration rule is designed to prevent witnesses from hearing the testimony of other witnesses
and subsequently adjusting their testimony. State v. Harris, 893 S.W.2d 54, 68 (Tenn. 1992). Rule
615 is mandatory and may be invoked at any time. State v. Anthony, 836 S.W.2d 600, 605 (Tenn.
Crim. App. 1992).

        Many sanctions exist for violations of the rule. In the most egregious case, the trial court may
declare a mistrial. Id. Even when the trial court does not declare a mistrial, the witness may be
cross-examined regarding the violation, and the jury may be instructed to consider the violation in
assessing the witness’ credibility. Id. “The generally accepted procedure in Tennessee . . . is for the
court to hold a jury-out hearing to determine both the facts of the violation and whether a party was
prejudiced by the violation.” Neil P. Cohen, et. al., Tennessee Law of Evidence § 615 [11] [e] (4th
ed. 2000). When a sequestration rule violation is raised on appeal, this court considers the
seriousness of the violation and the prejudice, if any, suffered by the defendant. Harris, 839 S.W.2d
at 68-69.

         Here, the trial court ruled that Ms. Holt’s testimony was of critical necessity and used its
discretionary power to allow her to testify. Because the state called two expert witnesses to testify
that the defendant was sane, the defendant argues that Ms. Holt’s testimony was not necessary to the
state.

        The record demonstrates that both the prosecution and Ms. Holt were aware that the
defendant intended to rely on insanity as a defense. Weeks in advance of trial, the defense provided
the state with a copy of the psychologist’s report. Experts for the state, who had evaluated the
defendant, stood ready to testify to his sanity and any possible malingering. While the state was not
aware of Ms. Holt’s knowledge regarding the defendant’s sanity, this is not typically the kind of
surprise contemplated by the rule. Cf. State v. David Scarbrough, No. E1998-00931-CCA-R3-CD
(Tenn. Crim. App., at Knoxville, July 11, 2001) (where the defendant was able to show surprise
when an alibi witness changed her testimony on cross-examination). In our view, the rule is


                                                 -15-
designed to preclude testimony like that offered here. See State v. Wingard, 891 S.W.2d 628 (Tenn.
Crim. App. 1994) (permitting a witness to testify in violation of the rule was harmless error where
the witness was not likely to be influenced by prior witnesses); see also State v. Angela H. Black,
No. M2000–2368-CCA-R3-CD (Tenn. Crim. App., at Nashville, Oct. 12, 2001) (error was harmless
where the rebuttal witness’s testimony was not directly related to that of a prior witness). Ms. Holt,
a close relative of the victim, was in the courtroom throughout the entire trial. It was only after Dr.
Auble provided detailed testimony about the defendant’s performance on several tests that she
choose to reveal to the prosecution her conversation with the defendant. In our view, the trial court
should not have permitted Ms. Holt to testify.

        Having determined that the trial court erred by allowing Ms. Holt to testify, our next inquiry
is what, if any, prejudice the defendant suffered as a result of her testimony. Here, the trial court
allowed defense counsel to cross-examine Ms. Holt regarding both the rule violation and her timely
recollection of her conversation with the defendant. Moreover, the trial court instructed the jury as
follows:

       I’ve concluded in my discretion, after reading some cases and hearing arguments
       from the lawyers on both sides, that I will permit this witness to testify, but with your
       understanding that she was in here and heard the testimony of the neuropsychologist
       this morning. And the lawyers will be examining and cross examining this witness
       on those issues and you may take into consideration the fact that she heard that earlier
       testimony this morning in weighing the credibility of this witness and deciding
       whether to give any weight to her testimony in your later verdict.

In our view, the trial court’s instruction coupled with defense counsel’s thorough cross-examination
served to minimize the prejudice caused by her testimony. Thus, the issue is without merit.

                                           CONCLUSION
       The evidence was sufficient to support the defendant’s conviction for first degree murder.
Although the trial court failed to instruct on the lesser included offenses of reckless homicide and
criminally negligent homicide, this court determines beyond a reasonable doubt that the errors had
no effect on the verdict. The judgment must be affirmed.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




                                                 -16-
