                                                                                          05/12/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 January 5, 2017 Session

              STATE OF TENNESSEE v. WILLIAM LANGSTON

                  Appeal from the Criminal Court for Shelby County
                     No. 14-04014 J. Robert Carter, Jr., Judge
                      ___________________________________

                           No. W2015-02359-CCA-R3-CD
                       ___________________________________

The Defendant-Appellant, William Langston, was convicted by a Shelby County jury of
the second degree murder of his wife and received a twenty-year sentence. On appeal,
Langston argues: (1) the trial court erred by denying his request to enter a guilty plea to a
pending indictment charging him with voluntary manslaughter; (2) the trial court abused
its discretion when it accepted a police officer as an expert in the field of blood spatter
analysis at trial; (3) the instructions in his case precluded the jury from considering the
offense of voluntary manslaughter; (4) the evidence is insufficient to sustain his
conviction; and (5) his sentence is excessive. We affirm the judgment of the trial court
but remand the case for entry of a corrected judgment reflecting the date that the second
degree murder conviction was entered following sentencing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed;
                                  Case Remanded

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

Howard B. Manis, Memphis, Tennessee, for the Defendant-Appellant, William Langston.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Marianne L. Bell and
Danielle McCollum, Assistant District Attorneys General, for the Appellee, State of
Tennessee.

                                        OPINION

     On December 5, 2013, the Shelby County Grand Jury indicted Langston in case
number 13-05917 for the voluntary manslaughter of his wife, Kimberly Langston. On
August 19, 2014, the grand jury issued a superseding indictment in case number 14-
04014 charging Langston with the first degree premeditated murder of his wife.

       On September 16, 2014, after submitting an order regarding the substitution of
counsel in case number 13-05917 and prior to the prosecutor’s arrival in court, defense
counsel informed the trial court that Langston intended to enter an “open” guilty plea to
the voluntary manslaughter charge, whereby he agreed to plead guilty and to be
sentenced at the discretion of the trial court. He conceded that he had not yet spoken to
the prosecutor about this guilty plea. The trial court, recognizing that Langston had been
charged in a superseding indictment with first degree premeditated murder, stated that it
would not take any action until the prosecutor appeared in court.

        When the prosecutor arrived a few minutes later, she announced the State’s
intention to proceed on the superseding indictment charging Langston with first degree
premeditated murder and requested that the court sign a judgment entering a nolle
prosequi to the indictment charging Langston with voluntary manslaughter. Defense
counsel urged the trial court not to sign this judgment on the ground that Langston had
already announced his intent to enter a plea to voluntary manslaughter. He also asserted
that the indictment charging Langston with first degree premeditated murder was not a
superseding indictment but a new indictment and that the State had been given several
opportunities to dismiss the old indictment once it obtained the new indictment. When
the trial court asked if the defense was under the impression that the State could not
dismiss the indictment in case number 13-05917, defense counsel replied that the old
indictment was pending when Langston appeared in court that morning and that the State
had not yet dismissed it. Defense counsel also claimed that Langston had a right to
change his plea from not guilty to guilty pursuant to Tennessee Rule of Criminal
Procedure 11. At that point, the trial court asserted that it had the discretion to determine
whether to accept the plea, and defense counsel replied that the court’s discretion was
limited to determining whether there was a factual basis for the plea and whether the plea
was knowing, intelligent, and voluntary. The court responded that it probably would
have accepted Langston’s plea to voluntary manslaughter if it had occurred prior to the
issuance of the new indictment, but that in light of the indictment charging him with first
degree premeditated murder, Langston no longer had the option of entering a guilty plea
to voluntary manslaughter. The court then granted the State’s motion, entered the
judgment dismissing the indictment for voluntary manslaughter, and rejected Langston’s
attempt to enter a guilty plea.

       Next, Langston filed an unsuccessful motion seeking permission to file an
interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure
regarding the trial court’s rejection of his plea to voluntary manslaughter before seeking
an extraordinary appeal in this court pursuant to Rule 10 of the Tennessee Rules of
                                            -2-
Appellate Procedure. This court denied the Rule 10 appeal on January 30, 2015. See
State v. William Langston, No. W2014-02202-CCA-R10-CD, slip op. at 1-4 (Tenn.
Crim. App. Jan. 30, 2015) (Rule 10 Order). In its order, this court noted that Langston
did not have an absolute right to enter a guilty plea and that the trial court was not bound
to accept a plea even if the offered plea met the constitutional test. Id. at 2. This court
also recognized that the prosecutor’s discretion to terminate a pending prosecution
“‘should not be judicially disturbed unless clearly contrary to manifest public interest.’”
Id. at 3 (quoting State v. Harris, 33 S.W.3d 767, 770 (Tenn. 2000)). In denying the
application for extraordinary review, this court concluded that the State’s decision to
dismiss the indictment charging voluntary manslaughter was not “clearly contrary to
manifest public interest” and that the trial court had not abused its discretion in rejecting
the guilty plea. Id.

       Trial. The victim, Kimberly Langston, operated a daycare facility in the home she
shared with her husband, William Langston, the Defendant-Appellant in this case. At the
time of her death, the victim had obtained a master’s degree, was planning to open a
daycare outside her home, and was about to obtain her daycare center license. She also
worked as a substitute teacher.

       The victim and Langston argued with increasing frequency and intensity in the
months prior to the victim’s death. Approximately one month before the victim died,
Jennifer Flack, the victim’s relative and employee, heard Langston yelling at the victim
as she and the daycare children entered the home. A few days before the victim’s death,
Langston called the victim’s sister, Bernadette Sutton, during an argument and told
Sutton to come get the victim.1 Sutton said Langston was “hysterical” during this
conversation and informed her that the victim had started coming home whenever she
wanted, which caused her to worry. When Sutton went over to check on the victim the
next day, Langston told her the victim had called the police on him the previous night and
that he was tired of having a daycare in his home. Both Flack and Sutton admitted they
had never witnessed Langston threatening or physically abusing the victim.

       The day before the victim’s death, Marshaye Smith, the victim’s best friend, saw
the victim and Langston at their home. Smith could tell they had been arguing, and she
told the victim not to say anything to Langston because he looked like he was going to
“blow.” Smith said she had overheard several arguments in which Langston called the
victim derogatory names and threatened to throw her out of the house and the victim
claimed she was going to divorce Langston and demand alimony and child support.
        1
            We acknowledge that we do not use titles when referring to every witness. We intend no
disrespect in doing so. Judge John Everett Williams believes that referring to witnesses without proper
titles is disrespectful even though none is intended. He would prefer that every adult witness be referred
to as Mr. or Mrs. or by his or her proper title.
                                                  -3-
During one of these arguments, Smith told the victim to call 9-1-1 because she could tell
that Langston was “upset, angry.”

       On May 24, 2013, at approximately 7:00 a.m., K.L.,2 the victim and Langston’s
twelve-year-old daughter, was awake but resting in her bed with her eyes closed. As she
was lying there, K.L. heard her parents arguing. She heard Langston say, “Where my
keys at, Kim?” Then she heard the victim respond that she did not know where his keys
were, and their argument intensified. Langston informed the victim that he would keep
her cell phone until she returned his keys, and the victim threatened to call the police.
K.L. then heard Langston say, “[G]o on and stab me, Kim.”

       A moment later, K.L. heard the home’s alarm system sound, which meant that
someone had opened the back door near the kitchen. Approximately a minute later, the
alarm system sounded again, and K.L. knew that this person had reentered the home. An
instant later, she heard a gunshot. K.L. said she did not hear her parents talking to one
another from the time she heard the person reenter the home to the time she heard the
gunshot.

        K.L. got up when she heard the gunshot, and Langston, who looked shocked, ran
into her bedroom and said, “I ain’t try to do it, I ain’t try to do it.” K.L. and her father
went into the living room, where K.L. saw her mother lying dead on the floor. K.L. did
not notice a knife near her mother’s bodybut saw her one-year-old cousin sitting in a
baby chair near the body. Langston went outside, and K.L. called the police. Shortly
thereafter, Rudy Mosby, a neighbor, and one of K.L.’s teachers stopped to help until the
police arrived. K.L. heard her father tell Mosby that he did not mean to do it. K.L. said
that although her parents often argued prior to her mother’s death, she never witnessed
any physical violence.

       At around 7:45 a.m. on May 24, 2013, Officer Brett Giannini approached
Langston in the driveway of his home. Langston appeared “nervous” and “kind of
hysterical” and had blood stains on his shirt. Langston told Officer Giannini that he
“didn’t mean to do it” and that he had taken his gun, which was wrapped in a shirt, and
had thrown it into the vacant lot next door. After placing Langston in the back of his
patrol car, Officer Giannini went inside the home and observed the victim, who was
clearly deceased, but did not observe a knife near the victim. Langston later told Officer
Giannini that the argument with the victim had started over some keys, and then the
victim pulled a knife on him, and he had a gun wrapped in a shirt. Langston said he did
not believe his gun would fire, that he did not mean to pull the trigger, and that the
shooting was accidental. Langston also said his gun was still wrapped in the shirt when it

       2
           It is the policy of this court to identify minors by their initials only.
                                                       -4-
fired. Officer Giannini later walked to the edge of the property and saw a shirt lying on
the ground on the other side of the fence, which was consistent with what Langston had
told him.

       That same morning, Investigator Charles Cathey walked to the vacant lot next
door and found a black nine millimeter semiautomatic handgun wrapped in a blue and
white shirt. After photographs were taken, Investigator Cathey unwrapped the gun and
unloaded it before placing it into evidence. As he was unloading the handgun, he noticed
that one casing was lodged in the chamber and had not been properly ejected from the
gun and that a live round had attempted to feed into the chamber. He also noted that the
gun’s magazine plate, which keeps rounds in the magazine, had come loose from the
weapon before he unloaded it. Investigator Cathey said the handgun, which was an older
model, was in poor condition and that because the casing had not been properly ejected
from the gun to allow the next live round to be fired, the gun had malfunctioned.
However, he asserted that once the trigger was pulled on the gun, the bullet would fire
regardless of whether the casing became lodged in the chamber.

       Later, Investigator Sheila Wright took photographs and measurements and
sketched the crime scene based on instructions from the lead officer at the scene She
noted that the victim’s right hand was slightly clenched and that the end of a knife was
under the victim’s right shoulder. However, she acknowledged that the paramedics had
handled the victim’s body before she arrived on the scene. Investigator Wright later
collected the knife and a bullet found on floor near the victim as evidence. She also took
one measurement of blood spatter on the wall behind the victim but admitted she did not
measure the height of each of the blood spatters on this wall. She also acknowledged that
she had not been instructed to measure the height of the bullet hole in the wall and had
not been told to take any measurements regarding the trajectory of the bullet that killed
the victim.

       Sergeant Michael Brown, a homicide investigator, later talked to Langston at the
police station after he was advised of his rights. Sergeant Brown did not make any notes
of this discussion, and their meeting was not recorded pursuant to police department
policy. During this discussion, Langston informed Sergeant Brown that the victim had
been out all night and had something belonging to him, and when he asked her for it, an
argument ensued. The victim ran into the kitchen, grabbed a knife, and told him that if he
did not leave her alone she was going to “stick him,” and Langston told her to get away
from him. Once he got around the victim in the kitchen, Langston went outside to his
shed and retrieved his gun. He reentered the home and told the victim to put the knife
down, but she refused. He then raised the gun at the victim, told her that he would
defend himself, and again instructed her to put the knife down. He said that as he had the
gun raised in the direction of the victim, it went off a single time. Langston knew the
                                          -5-
victim had likely been hit by the bullet because he saw her fall. After the gun fired, he
carried it back outside to the shed, reentered the home, and tried to “wake up” the victim.
Langston then took his daughter, K.L., and her cousin to a neighbor’s home. When
Sergeant Brown asked Langston why he got his gun instead of calling the police after he
was able to escape the victim with the knife, Langston got agitated, claimed he acted in
self-defense, and began calling Sergeant Brown a “mother f[-----]” and a “b[----]” for
asking him that question before informing him that he no longer wanted to talk to him.
Sergeant Brown acknowledged that from 11:36 a.m. when he began talking to Langston
to just after 2:00 p.m. when he signed his written statement, Langston never wavered
from his version of what happened.

        Langston subsequently gave a formal written statement that was consistent with
what he had told Sergeant Brown. In this statement, Langston said that the victim had
been armed with a ten-inch knife and that he had been eight feet away from the victim
when his gun fired and the bullet struck her. He said that the victim, who had the knife in
her left hand, pointed it at him and said that if he got near her she would stab him. In
response, Langston went outside to his shed to get his gun, reentered the house, and went
into the living room. When the victim came at him with the knife, he raised his gun,
which was wrapped in a shirt, and “it went off.” Langston saw the victim fall, and he
went to her, held her head, and wiped the blood off of her. He also threw his gun, still
wrapped in the shirt, into the lot next door. Then he went into his daughter’s room, got
her up, and told her to call 9-1-1. Because his daughter was screaming, he went across
the street and told his neighbor that he had accidentally shot his wife. Langston said the
police arrived a short time later, and he told an officer what happened.

       In his statement, Langston said he went outside to get his gun because he was
“scared” and “wanted to protect [him]self.” He also said he reentered his home because
he wanted to get the keys to his car so he could leave. Langston said his gun had been
loaded for “the last seven or eight years” and “was cocked and [he] couldn’t get it
uncocked,” which was “how the gun went off.” He maintained that his wife would have
stabbed him if he had not acted and that he never intended to shoot her.

       Langston also asserted in his statement that the victim had, in the past, hit him
over the head with a vase, pulled knives on him several times, and cut him and his
clothes. He said that the victim was “crazy,” that she had stabbed two people and had
stolen her father’s truck, and that she had threatened to hurt him. He said the victim
claimed she would not be punished for attacking him because she would “play crazy.”
Langston insisted that although his wife had been sleeping with another man for months,
he was not jealous and just wanted her to live her life so he could live his, but she refused
to leave. He denied ever hitting the victim.

                                            -6-
       Special Agent Cervinia Braswell of the Tennessee Bureau of Investigation, who
was accepted as an expert in the field of firearms identification, analyzed the gun
involved in this case. She confirmed that the cartridge case and the bullet found at the
scene had been fired by this gun. After conducting several test fires of the gun, Agent
Braswell concluded that it was not malfunctioning. She noted that the handgun’s floor
plate, which held the magazine in place, was cracked so that it would not remain on the
gun and that because the floor plate was plastic, it could be broken if the gun was thrown.
She further observed that the gun’s two safety mechanisms, a manual safety on the side
of the gun and a quarter-cock function that kept the hammer from resting on the firing
pin, were both functioning and would have prevented the weapon from being fired
unintentionally. Agent Braswell stated that the gun would not fire if it was dropped or if
something hit the back of the hammer and would only fire if someone pulled the trigger.
She also observed that the handgun did not have a hair-trigger because the trigger pull
was in the medium range at 6.5 pounds of pressure. She said that if the gun had been
wrapped in a shirt when it was fired, then the shirt could have impeded the rearward
travel of the gun’s slide, which could have resulted in a cartridge casing not ejecting
properly. Finally, Agent Braswell said that the gun’s trigger guard prevented an
individual from accidentally pulling the trigger.

        Dr. Erica Curry, a medical examiner, was accepted as an expert in the field of
forensic pathology. She stated that she had reviewed the victim’s autopsy report
generated in her office and noted that the victim sustained a fatal gunshot wound to the
head, with the bullet entering at the victim’s left eyebrow and transecting the brain stem
and cerebellum before exiting the back of the skull. Dr. Curry said the areas of the brain
damaged by the bullet controlled respiration, heartbeat, motor function, and
consciousness, which made the victim’s injuries fatal. She also noted that the bullet’s
trajectory was slightly downward from the front to the back because the entrance wound
was approximately one inch higher than the exit wound. Dr. Curry stated that the gun-
powder stippling near the entrance wound indicated that the gun was fired at the victim
from an intermediate range of between six inches and three feet.

        Lieutenant Anthony Mullins, who was accepted as an expert in the area of blood
spatter analysis, stated that he reviewed the crime scene photographs, the crime scene
sketches, Langston’s statement, the photographs of Langston’s person, the victim’s
autopsy report, and the officers’ reports and supplements before writing a detailed report
regarding his opinion in this case. He opined that it was “more likely that [the victim]
was sitting down than she was standing at her full height” at the time she was shot.
While acknowledging that the victim “could be kneeling” or “could be standing and
stooped over,” Lieutenant Mullins said he did not believe either of these options were
likely given the final position of the victim’s body. Instead, he thought “it was more
likely . . . that she’s lower to the ground and probably seated on the floor.” Lieutenant
                                           -7-
Mullins said that if the victim had been standing up, he would have expected the blood
spatter from the exit wound to have hit the wall around the victim’s height of five feet
and four inches and below. Instead, the blood spatter on the wall was at the height of
four feet and below. Moreover, if the victim had been standing upright, he would have
expected to see blood spatter from the entrance wound on the top of her feet, but there
was no blood present there. He also concluded that the blood on Langston’s shirt
indicated that he was fairly close to the victim when he fired the shot. He added that if
the victim had been standing when shot, he would have expected the blood to be higher
on Langston’s shirt.

        Although Lieutenant Mullins opined that the victim was most likely seated when
she was shot, he could not rule out the possibility that she was standing or standing while
stooped over at the time of the shooting, which was consistent with her lunging to stab
someone. He acknowledged it was difficult for him to form an opinion about the victim’s
position at the time of the shooting because he was given limited photographs and
sketches of the scene. He acknowledged that he was not present at the crime scene and
did not have control over what photographs were taken at the scene, which meant that
inconsistent blood stains could have existed that were not depicted in the available
photographs. When asked about whether the trajectory rod used at the scene affected his
opinion, Lieutenant Mullins stated that he could not “say with any scientific certainty that
[the victim] wasn’t standing or kneeling or, you know, stooped” but asserted that he did
not “think that the trajectory [rod] would completely exclude [the victim being] seated in
some position there.” Lieutenant Mullins observed that emergency medical personnel
likely moved the victim’s body at least slightly and that this movement could have
affected the accuracy of his opinion. When asked by the defense if it would be fair to say
that his opinions, at best, were highly speculative, Lieutenant Mullins answered:

               What I would say is this. Not being on the scene, not having the
       photographs that I would like to have, not having the measurements that I
       would like to have, not having seen it with my own eyes, I have to
       speculate about some things for example the knife and the cell phone based
       on where they are in the photographs. Some things I can tell you
       definitively and some things I can’t say and exclude all other possibilities.
       I wouldn’t say it’s speculation but it’s the best that I can do with the
       information that I’m given.

       Ross Gardner, who was accepted an expert in the field of crime scene
reconstruction and blood stain pattern analysis, testified for the defense. Gardner opined
that the victim had been in a generally upright position at the time she was shot. He
explained that he owned a forensic education and consulting group, had a military and
law enforcement background, had written many articles on crime scene investigation, had
                                           -8-
completed over 3000 hours in formal training in criminal investigation, including 1000
hours in crime scene investigation, and was a member of several international
professional associations for blood pattern analysis, identification, and crime scene
reconstruction. He said that he had been accepted as an expert for the prosecution and
the defense in the fields of crime scene investigation and blood pattern analysis
throughout the United States. He also said his report in this case had been peer reviewed.

        Gardner said he reviewed the crime scene photographs, the autopsy report and
photographs, the crime scene sketch, the report from Lieutenant Mullins, and the police
reports before forming an opinion as to the victim’s position at the time of the shooting.
He asserted that the ballistics evidence, when he combined with his reconstruction
software, established that the victim was generally in an upright position at the time she
was shot. Given the location of the bullet hole in the wall, the estimated distance
between the victim and the wall, and the trajectory for the bullet, Gardner opined to a
reasonable degree of scientific certainty that the victim was not seated at the moment she
was shot. While he believed that the victim’s “wound correlate[d] to the trajectory if
she’s in an upright position,” Gardner acknowledged that the victim could have been
slightly crouched at the time she was shot. He also opined that the knife was
“dynamically involved in the incident” and had not been staged after the fact.

       Gardner recognized some difficulties regarding the nature of the evidence. He
acknowledged that because there were not many crime scene measurements, he was
required to estimate a substantial amount of data, including the measurements of a nearby
crib mattress from which he deduced other measurements. He also acknowledged that he
used the word “approximation” thirteen times in his report and that he did not have all the
photographs and measurements he would have liked when making his three-dimensional
reconstruction of the crime scene.

       Reginald Langston, the Defendant-Appellant’s brother, stated that he spent a
substantial amount of time with his brother and the victim prior to the shooting. He said
that on the night prior to the victim’s death, he and his brother watched a basketball game
together, and his brother appeared to be in a good mood. He admitted that he had not
been present when his brother fatally shot the victim.

        Michael Reddoch, the Defendant-Appellant’s friend, said that he had known
Langston for thirteen years. He said he first met Langston when Langston was a waiter
for his family at the Memphis Country Club. He said that in 2013, following the shooting
incident, Langston worked for him at his company and was a reliable employee. While
Reddock believed that Langston was an honest and truthful person, he admitted he had
not met the victim and did not have any knowledge about Langston’s relationship with
his wife.
                                           -9-
      Following the conclusion of the proof, the jury convicted Langston of second
degree murder, and the trial court imposed a mid-range twenty-year sentence. A
judgment of conviction was entered, and Langston filed a motion for new trial on
November 24, 2015, which was denied. Langston then filed a timely notice of appeal.

       We note that the entry date on Langston’s judgment appears to be incorrect.
Although this judgment, which reflects Langston’s twenty-year sentence for the second
degree murder conviction, had an entry date and a filing date of October 9, 2015, which
was the date the jury returned the verdict in this case, the cover page of the transcript of
Langston’s sentencing hearing shows a date of November 9, 2015, and the first page of
the sentencing transcript shows that Langston’s sentencing hearing took place on
November 6, 2015. In any case, it appears that Langston’s motion for new trial, which
was filed on November 24, 2015, was timely. However, in light of the aforementioned
clerical error, we remand the case for entry of a corrected judgment showing the date that
the second degree murder conviction was entered following sentencing.

                                       ANALYSIS

       I. Plea to Voluntary Manslaughter. Langston contends that he had a
constitutional right to enter a guilty plea to the pending indictment charging him with
voluntary manslaughter. He also asserts that the trial court abused its discretion in
granting the State’s request to enter a nolle prosequi to this indictment without first
determining whether there was a factual basis for the plea and whether his plea was
knowing, voluntary, and intelligent.

        Langston notes that at the time the indictment charging voluntary manslaughter
was dismissed, both indictments had been pending before the trial court for almost a
month, the State had appeared in court on two prior occasions without announcing its
intent to dismiss the voluntary manslaughter indictment, there were no deadlines
regarding the entry of a guilty plea, and the court had allowed him to enter an order
substituting counsel in that matter. Langston claims that it was only when he sought to
enter his guilty plea to the original indictment charging him with voluntary manslaughter
that the State asked the trial court to enter an order dismissing this indictment. He further
claims that the State’s decision to leave both indictments pending for an extended period
of time left the door open for him to enter a guilty plea to the indictment charging him
with voluntary manslaughter.

       In denying Langston’s application for extraordinary review on this issue, this court
held as follows:

                                           - 10 -
        A defendant does not have an absolute right to plead guilty. State v.
Williams, 851 S.W.2d 828, 830 (Tenn. Crim. App. 1992). Rather, strict
standards apply before a trial court may accept a plea. Id. (citing State v.
Mackey, 553 S.W.2d 337 (Tenn. 1977)). “Even if the offered plea meets
the constitutional test, the trial court is not bound to accept it.” Id. (citing
North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970); Farmer v. State, 570
S.W.2d 359 (Tenn. Crim. App. 1978)). Rather, the trial court is afforded
discretion in the acceptance of pleas. Id. As a result, we cannot set aside a
trial court’s judgment on appeal absent “a plain abuse of authority.” Id.
“In order for a reviewing court to find abuse, it must appear that no
substantial evidence supports the conclusion of the trial judge.” Id.

        In the present case, the Defendant sought to plead to an indictment
that had been superseded. “A superseding indictment is an indictment
obtained without the dismissal of a prior indictment.” State v. Harris, 33
S.W.3d 767, 771 (Tenn. 2000). When jeopardy has not yet attached on the
first indictment, “a grand jury may return a new indictment against an
accused even though another indictment is pending.” Id. “[T]he State may
obtain a superseding indictment at any time prior to trial without dismissing
the pending indictment and may then select the indictment under which to
proceed at trial.” Id.

       Contrary to the Defendant’s assertion, the indictment for first degree
murder constituted a superseding indictment as it was obtained without the
dismissal of the prior indictment for voluntary manslaughter. When the
Defendant sought to plead guilty to voluntary manslaughter, the prosecutor
was not present, and the State had not yet selected the indictment under
which it intended to proceed at trial. After the prosecutor arrived and the
trial court called the Defendant’s case, the prosecutor announced her
intention to seek a nolle prosequi on the indictment for voluntary
manslaughter and proceed with the indictment for first degree murder.

       Tennessee Rule of Criminal Procedure 48(a) provides that “[w]ith
the court’s permission, the state may terminate a prosecution by filing a
dismissal of an indictment, presentment, information, or complaint.” Rule
48(a) only grants the trial court limited control over the prosecutor’s
discretionary powers. Harris, 33 S.W.3d at 770. Rather,

       “[t]he [State] remains the absolute judge of whether a
       prosecution should be initiated and the first and
       presumptively the best judge of whether a pending
                                     - 11 -
              prosecution should be terminated. The exercise of its
              discretion with respect to the termination of pending
              prosecutions should not be judicially disturbed unless clearly
              contrary to manifest public interest.”

       Id. (quoting United State v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975)).

               There is nothing in the transcript or pleadings attached to the
       Defendant’s application establishing that the State’s decision to dismiss the
       voluntary manslaughter charge was “clearly contrary to manifest public
       interest.” Absent such a showing, the trial court was required to grant the
       State’s request and dismiss the indictment for voluntary manslaughter.
       Under these circumstances, the trial court did not abuse its discretion in
       rejecting the Defendant’s guilty plea to voluntary manslaughter in case
       number 13-05917.

See State v. William Langston, No. W2014-02202-CCA-R10-CD, slip op. at 2-3 (Tenn.
Crim. App. Jan. 30, 2015) (Rule 10 Order).

       We wholeheartedly agree with the authorities and reasoning provided in the order
denying Langston’s application for extraordinary review. In this direct appeal, Langston
has again failed to show that the State’s decision to dismiss the indictment for voluntary
manslaughter was “clearly contrary to manifest public interest.” In the absence of such a
showing, the trial court was obligated to grant the State’s request to enter a nolle prosequi
to the indictment charging Langston with voluntary manslaughter, which clearly
precluded Langston from entering a guilty plea to that offense.

       II. Acceptance of Officer as Expert. Langston also contends that the trial court
abused its discretion in allowing Lieutenant Anthony Mullins to testify as an expert in the
area of blood spatter analysis and to opine that the victim was seated at the moment she
was shot. Langston claims Lieutenant Mullins had insufficient formal education in blood
spatter analysis, was unfamiliar with the current terminology and methodology in this
field, and reached conclusions based on incomplete data. He adds that Lieutenant
Mullins’s opinions were not peer-reviewed, that he was unfamiliar with the potential rate
of error for the methodology he employed, and that he failed to provide his opinion to a
reasonable degree of scientific certainty. Finally, Langston asserts that because
Lieutenant Mullins was not qualified to offer an expert opinion, his testimony that the
victim was seated at the time she was shot, which was uncorroborated and negated by his
own expert, was “highly speculative,” “extremely prejudicial,” and “inflammatory.”



                                           - 12 -
       During voir dire, Lieutenant Anthony Mullins stated that he had been an officer
with the Memphis Police Department for twenty seven years and had been employed in
the homicide bureau for nearly ten years, where he had worked on 500 to 800 homicide
cases. He said he attended a basic crime scene investigation course lasting fifty-six hours
and a basic blood stain pattern analysis course in 2003 lasting forty hours that was taught
by expert Paulette Sutton. Lieutenant Mullins said he had worked some crime scenes
with Paulette Sutton and had gained experience in crime scene investigation and blood
pattern analysis from the many cases he worked as a homicide detective. He also said he
had testified as an expert in the areas of blood pattern analysis and crime scene
investigation in six or seven of the criminal courts in Shelby County.

       Lieutenant Mullins acknowledged that he had not taken any advanced classes in
the areas of blood pattern analysis or the effect of blood stains on fabrics and that he had
not completed any math or physics courses on blood stain analysis. He also
acknowledged that he had not undergone a formal mentorship program in the area of
blood pattern analysis and had not completed a shooting reconstruction course. When
asked by the defense if he considered himself a forensic analyst, Lieutenant Mullins
responded:

              What I consider myself is a Homicide detective, okay. I don’t
       consider myself the best person I know for blood stain pattern analysis or
       crime scene investigation. My expert tag, if you will, my expert moniker is
       only in the courtroom. My view of it is because I’ve had training more than
       the average officer, more than the average Homicide investigator and I’ve
       used it more than the average [officer or investigator]. But like I said, I’m
       not the best that I know and I’m definitely not the best out there.

Lieutenant Mullins admitted that he had not obtained blood pattern analysis certifications,
did not belong to any international associations in that field, and did not read current
journals or magazines on blood pattern analysis. He said he had not subjected his opinion
in this case to peer review because he did not have the opportunity to do soand that he
had not done an investigation into the potential rate of error for his methodology.
Lieutenant Mullins stated that he had used the skills he learned in blood pattern analysis
when asked to look at sketches and photographs of crimes scenes he did not personally
investigate and in his current job of supervising the investigation of officer-involved
shootings. When asked if his report was flawed because he used principles of blood
pattern analysis that were no longer valid because of the passage of time, Lieutenant
Mullins replied: “Like I said, I don’t consider myself the best that I even know. As far
as the basic principles and some of the terms that I use, some of those terms may be no
longer used, but some of those principles are still the same, despite the term that might be
used.”
                                           - 13 -
        During a bench conference following voir dire, defense counsel argued, citing
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997), that Lieutenant Mullins
should not be qualified as an expert in the field of blood pattern analysis because he was
unfamiliar with the current terminology and methodology in this field, because his
opinion had not been peer-reviewed, and because he had received only “limited training”
in this “highly technical specialty.” Despite the defense’s objection, the trial court ruled
that “based on [Lieutenant Mullins’s] experience, training, and education that he is going
to be qualified as an expert and allowed to give his opinion.” The court reminded
defense counsel that he would be allowed to cross-examine Lieutenant Mullins. When
the bench conference concluded, the trial court accepted Lieutenant Mullins as an expert
in the field of blood spatter analysis and instructed the jury as follows:

              And I’ll caution you and I’ll tell you again as I’ve told you for every
       expert that testifies. Merely because an expert witness has expressed an
       opinion does not mean that you are bound to accept the opinion. The same
       as with any other witness, it’s up to you to decide whether you believe the
       testimony and choose to rely on it.

              Part of that decision will depend on your judgment about whether
       the witness’ background or training or experience is sufficient to give the
       expert opinion that you heard.

              So again, it will be as always, you all will be the triers and the
       finders of facts and so I give you the guidance but it will be up to you.

       Determinations regarding the qualifications, admissibility, relevance, and
competence of expert testimony fall within the broad discretion of the trial court and will
be overturned only for an abuse of that discretion. State v. Davidson, 509 S.W.3d 156,
208 (Tenn. 2016) (citing McDaniel, 955 S.W.2d at 263-64; State v. Scott, 275 S.W.3d
395, 404 (Tenn. 2009)). “A trial court abuses its discretion when it applies incorrect legal
standards, reaches an illogical conclusion, bases its decision on a clearly erroneous
assessment of the evidence, or employs reasoning that causes an injustice to the
complaining party.” Scott, 275 S.W. 3d at 404-05 (citing Konvalinka v. Chattanooga-
Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)).

       Rule 702 of the Tennessee Rules of Evidence, which governs the admissibility of
expert testimony, 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. The
                                           - 14 -
Tennessee Supreme Court has defined the trial court’s role in determining the
admissibility of expert testimony:

              Trial courts act as gatekeepers when it comes to the admissibility of
      expert testimony. Their role is to ensure that an expert, whether basing
      testimony upon professional studies or personal experience, employs in the
      courtroom the same level of intellectual rigor that characterizes the practice
      of an expert in the relevant field. A court must assure itself that the expert’s
      opinions are based on relevant scientific methods, processes, and data, and
      not upon an expert’s mere speculation. The court’s reliability analysis has
      four general inter-related components: (1) qualifications assessment, (2)
      analytical cohesion, (3) methodological reliability, and (4) foundational
      reliability.

Scott, 275 S.W.3d at 401-02 (citations and internal quotation marks omitted).

       Tennessee Rule of Evidence 703, which concerns the proper bases for opinion
testimony by experts, provides:

      The facts or data in the particular case upon which an expert bases an
      opinion or inference may be those perceived by or made known to the
      expert at or before the hearing. If of a type reasonably relied upon by
      experts in the particular field in forming opinions or inferences upon the
      subject, the facts or data need not be admissible in evidence. Facts or data
      that are otherwise inadmissible shall not be disclosed to the jury by the
      proponent of the opinion or inference unless the court determines that their
      probative value in assisting the jury to evaluate the expert’s opinion
      substantially outweighs their prejudicial effect. The court shall disallow
      testimony in the form of an opinion or inference if the underlying facts or
      data indicate lack of trustworthiness.

Tenn. R. Evid. 703 (emphasis added).

       The trial court, when determining the admissibility of expert testimony, must first
determine whether the witness is qualified by knowledge, skill, experience, training, or
education to give an opinion within the limits of the witness’s expertise. Davidson, 509
S.W.3d at 208; Scott, 275 S.W.3d at 402; State v. Stevens, 78 S.W.3d 817, 834 (Tenn.
2002). In making this determination, the key factor is “whether the witness’s
qualifications authorize him or her to give an informed opinion on the subject at issue.”
Stevens, 78 S.W.3d at 834. In other words, the court must determine whether the witness

                                           - 15 -
is an expert in the area in which he or she is providing testimony. Scott, 275 S.W.3d at
402 (citing Tenn. R. Evid. 702).

       Next, the trial court must determine whether the basis for the expert’s opinion,
namely testing, research, studies, or experience-based observations, adequately supports
the expert’s conclusions to ensure that there is no significant analytical gap between the
opinion and the data upon which the opinion is based. Id.; Stevens, 78 S.W.3d at 834.
The “connection” between the expert’s conclusion and the underlying data supporting the
conclusion is especially important when determining the reliability of experience-based
testimony because experiences are not easily verified by a court. Stevens, 78 S.W.3d at
834. Nevertheless, a trial court may make a finding of reliability in such cases “if the
expert’s conclusions are sufficiently straightforward and supported by a ‘rational
explanation which reasonable [persons] could accept as more correct than not correct.’”
Id. (quoting Wood v. Stihl, 705 F.2d 1101, 1107-08 (9th Cir. 1983)).

       Courts should also consider the methodological and foundational reliability of the
expert’s testimony. Scott, 275 S.W.3d at 403. When evaluating the reliability of an
expert’s testimony, the trial court may consider the following non-exclusive factors:

      (1) whether scientific evidence has been tested and the methodology with
      which it has been tested; (2) whether the evidence has been subjected to
      peer review or publication; (3) whether a potential rate of error is known;
      (4) whether, as formerly required by Frye, the evidence is generally
      accepted in the scientific community; and (5) whether the expert’s research
      in the field has been conducted independent of litigation.

McDaniel, 955 S.W.2d at 265. “These factors are not requirements for admissibility but
may be considered by the trial judge when weighing the reliability of the expert
testimony and forensic evidence.” Davidson, 509 S.W.3d at 208.

        The record shows that the trial court acted within its discretion when it accepted
this police officer as an expert. Lieutenant Mullins’s testimony during voir dire
established that aside from the fifty-six-hour course on crime scene investigation and the
forty-hour course on blood pattern analysis, he gained substantial knowledge and
experience in this field when he worked on 500 to 800 homicides over the last ten years
as a homicide detective. During some of these homicides, he worked with Paulette
Sutton, the expert instructor who had taught the blood pattern analysis course he
completed. Although Langston contends that Lieutenant Mullins made conclusions
based on incomplete data, both Mullins and Langston’s expert, Ross Gardner, made
inferences based on the limited facts and data available to them. See Tenn. R. Evid. 703
(stating that an expert’s opinion may supported by facts or data “of a type reasonably
                                          - 16 -
relied upon by experts in the particular field in forming opinions or inferences upon the
subject” and disallowing expert testimony “if the underlying facts or data indicate lack of
trustworthiness”). Given Lieutenant Mullins’s training and his extensive experience in
the field of blood spatter analysis, we conclude that the trial court did not abuse its
discretion in allowing him to testify as an expert.

        Langston also asserts that Lieutenant Mullins failed to provide his opinion to a
reasonable degree of scientific certainty. However, in Tennessee, there is no requirement
that specific words be recited in order for expert testimony to be admissible. State v.
Thomas Fancher Greenwood, No. M2013-01924-CCA-R3-CD, 2014 WL 6609308, at
*33 (Tenn. Crim. App. Nov. 21, 2014); State v. James Clayton Young, Jr., No. 01C01-
9605-CC-00208, 1998 WL 258466, at *22 (Tenn. Crim. App. May 22, 1988). The
pertinent question is whether the witness’s knowledge will substantially assist the jury in
understanding the evidence or in determining a fact in issue. James Clayton Young, 1988
WL 258466 at *22-23 (citing Tenn. R. Evid. 702). Because Lieutenant Mullins’s
testimony substantially assisted the jury in determining a fact in issue, namely whether
the victim was sitting or standing at the time she was shot, Langston is not entitled to
relief on this issue.

        Finally, Langston asserts that Lieutenant Mullins’s uncorroborated testimony that
the victim was seated at the time she was shot was “highly speculative,” “extremely
prejudicial,” and “inflammatory.” He appears to argue that the trial court abused its
discretion in allowing Lieutenant Mullins to testify as an expert because the basis for his
opinion rendered his testimony unreliable. The record shows that the trial court assured
itself that Lieutenant Mullins’s opinions were based on relevant scientific methods,
processes, and data, and not upon mere speculation. See Scott, 275 S.W.3d at 401-02.
The trial court appropriately allowed both Lieutenant Mullins and Ross Gardner to testify
as experts. See id. at 404 (concluding that trial courts, when making an admissibility
determination, “are not empowered to choose between legitimate competing expert
theories” because “that task must be left to the trier of fact”). The jury heard testimony
regarding Lieutenant Mullins’s and Ross Gardner’s qualifications and the trial court
appropriately instructed that it was in the discretion of the jury as to the weight and
credibility to assign to each party’s expert. See State v. Ayers, 200 S.W.3d 618, 223
(Tenn. Crim. App. 2005) (reiterating that the weight to be given expert testimony is a
question for the jury under careful instruction of the trial court). Therefore, we discern
no error regarding Lieutenant Mullins’s qualifications or the opinions he provided at trial.

      III. Jury Instruction. Langston argues that the sequential jury instructions in his
case violated his right to due process and a trial by jury by preventing the jury from
considering the offense of voluntary manslaughter. See Falconer v. Lane, 905 F.2d 1129,
1136-37 (7th Cir. 1990) (holding that the petitioner was entitled to federal habeas corpus
                                           - 17 -
relief because the jury instruction, which left the jury with a false impression that it could
convict the petitioner of murder even if she possessed one of the mitigating states of mind
described in the voluntary manslaughter instruction, violated due process). He asserts
that because the first two elements of second degree murder are essentially the same as
the elements for voluntary manslaughter, the jury when following the sequential
instructions was prevented from considering the lesser included offense of voluntary
manslaughter unless and until it acquitted him of the greater offense of second degree
murder. He also claims that the trial court’s failure to include the distinction between
second degree murder and voluntary manslaughter in the definition of second degree
murder magnified the erroneous nature of the jury instruction. Consequently, Langston
contends that the jury instructions given in his case were erroneous and incomplete
because they failed to fairly submit the legal issues and misled the jury. Because this
court has consistently upheld substantially similar instructions to those given in this case,
we are constrained to conclude that Langston is not entitled to relief.

       Although Langston concedes that sequential jury instructions have been upheld, he
argues that they “logically preclude[] the jury from ever considering the crime of
Voluntary Manslaughter even when there is proof of adequate provocation.” He suggests
two remedies: (1) an instruction, similar to the self-defense instruction, requiring the
State to prove beyond a reasonable doubt the lack of adequate provocation when there is
evidence in the record sufficient to warrant an instruction on voluntary manslaughter;
and/or (2) an instruction making the passion/adequate provocation definition a part of the
murder instruction. See People v. Chavalier, 521 N.E.2d 1256, 1262 (Ill. App. Ct. 1988);
State v. Bishop, 589 A.2d 625, 629 (N.J. 1991).

        Langston claims that Tennessee courts have long recognized that voluntary
manslaughter operates as a partial defense to a second degree murder prosecution. See
State v. Jeffrey Lee Mason, No. M2002-01709-CCA-R3-CD, 2004 WL 1114581, at *3
n.2 (Tenn. Crim. App. May 19, 2004), perm. app. denied (Tenn. Nov. 15, 2004)
(concluding that a change in the law was needed because “passion and provocation most
often operate as a partial defense in a first or second degree murder prosecution”); State
v. Khaliq Ra-El, No. W2013-01130-CCA-R3-CD, 2014 WL 3511038, at *6 (Tenn. Crim.
App. July 11, 2014) (Witt, J., concurring), perm. app. denied (Tenn. Nov. 20, 2014)
(“[T]he reference to passion and provocation in the voluntary manslaughter statute does
not denote an essential element of the offense [; instead it] describes a dispensation to a
defendant who, having intentionally or knowingly killed another, would otherwise be
guilty of first degree or second degree murder respectively.”). However, in considering
this issue, we must recognize that the statutes for second degree murder and voluntary
manslaughter are devoid of any indication that voluntary manslaughter is a partial
defense to the crime of second degree murder. In addition, we cannot ignore the fact that
Tennessee’s statutory scheme clearly defines voluntary manslaughter as a separate
                                            - 18 -
criminal offense rather than a mere defense to second degree murder. See State v. Paul
Clifford Moore, Jr., No. E2015-00585-CCA-R3-CD, 2016 WL 2865759, at *8-13 (Tenn.
Crim. App. May 12, 2016), perm. app. denied (Tenn. Sept. 22, 2016), cert. denied, ---
S. Ct. ---, 2017 WL 1366757 (U.S. Apr. 17, 2017) (No. 16-7239).

        Appellate courts in Tennessee have consistently held that state of passion
produced by adequate provocation is an essential statutory element of the offense of
voluntary manslaughter. See State v. Williams, 38 S.W.3d 532, 538 (Tenn. 2001)
(“Comparing the revised second degree murder and voluntary manslaughter statutes, the
essential element that now distinguishes these two offenses (which are both ‘knowing’
killings) is whether the killing was committed ‘in a state of passion produced by adequate
provocation sufficient to lead a reasonable person to act in an irrational manner.’”); State
v. Sentorya L. Young, No. M2005-01873-CCA-R3-CD, 2008 WL 2026108, at *4 (Tenn.
Crim. App. May 12, 2008) (“The lesser charge of voluntary manslaughter also includes
the ‘knowing killing of another,’ but adds the additional element that the killing was done
‘in a state of passion produced by adequate provocation sufficient to lead a reasonable
person to act in an irrational manner.’”), perm. app. denied (Tenn. Dec. 8, 2008); State v.
Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *32 (Tenn. Crim.
App. July 6, 2007) (“The elements which distinguish voluntary manslaughter from either
first or second degree murder are those of ‘adequate provocation’ and the ‘state of
passion.’”), affirming judgment as corrected, 271 S.W.3d 90 (Tenn. 2008). Even if we
preferred a different result, this court has repeatedly recognized that state of passion
produced by adequate provocation cannot be treated as a partial defense to second degree
murder unless and until such treatment is expressly authorized by the Tennessee Supreme
Court or the legislature. See Khaliq Ra-El, 2014 WL 3511038, at *6 (concluding that in
light of the Tennessee Supreme Court’s decisions in “Parker and Williams, the final
determinative discussions that would adopt Judge Witt’s analysis should be made by the
Tennessee Supreme Court”); Jeffrey Lee Mason, 2004 WL 1114581, at *3 n.2 (stating
that while “passion and provocation most often operate as a partial defense in a first or
second degree murder prosecution” this issue is perhaps “more appropriately resolved by
the legislature than the courts”); see also Paul Clifford Moore, Jr., 2016 WL 2865759, at
*13 (noting that both Khaliq Ra-El and Jeffrey Lee Mason “recognize that state of
passion produced by adequate provocation cannot be treated as a partial defense to
second degree murder unless such treatment is expressly authorized by the Tennessee
Supreme Court or the legislature”).

        Langston specifically contends that the sequential jury instructions, the failure to
provide the distinction between second degree murder and voluntary manslaughter in the
definition of second degree murder, and the failure to provide counsel with a copy of the
jury instructions prior to and during the period when the court charged the jury, resulted
in an inaccurate and incomplete statement of the law that misled the jury. In Langston’s
                                           - 19 -
case, the trial court provided the following jury instructions on the offenses of second
degree murder and voluntary manslaughter, the distinction between these two offenses,
and the order of consideration of these offenses, which substantially followed the 2001
version of Tennessee Pattern Jury Instructions 7.05(a), 7.06, and 41.01:

           Second degree murder, knowing killing of another. Any person who
      commits second degree murder is guilty of a crime.

             For you to find the defendant guilty of this offense, the State must
      have proven beyond a reasonable doubt the existence of the following
      essential elements: One, that the defendant unlawfully killed the alleged
      victim; and two, that the defendant acted knowingly.

            Knowingly means that a person acts with an awareness that his
      conduct is reasonably certain to cause the death of the alleged victim.

             The requirement of knowingly is also established if it is shown that
      the defendant acted intentionally.

             Intentionally has heretofore been defined for you.

            Voluntary manslaughter.        Any person who commits voluntary
      manslaughter is guilty of a crime.

             For you to find the defendant guilty of this offense, the State must
      have proven beyond a reasonable doubt the existence of the following
      essential elements: One, that the defendant unlawfully killed the alleged
      victim; two, that the defendant acted intentionally or knowingly; and three,
      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.

             The distinction between voluntary manslaughter and second degree
      murder is that voluntary manslaughter requires that the killing result from a
      state of passion produced by adequate provocation sufficient to lead a
      reasonable person to act in an irrational manner.

             Knowingly and intentionally have previously been set out for you.

             ....

                                           - 20 -
              Deliberation, order of consideration. In deciding the guilt of the
       defendant, you shall first consider the offense charged in the indictment. If
       you find the defendant guilty of that offense beyond a reasonable doubt,
       you shall return a verdict of guilty for that offense.

               If you unanimously find the defendant not guilty of that offense or
       have a reasonable doubt of the defendant’s guilt of that offense, you shall
       then proceed to consider whether or not the defendant is guilty of the next
       lesser included offense in order from greatest to least within the indictment.

              You shall not proceed to consider any lesser included offense until
       you have first made a unanimous determination that the defendant is not
       guilty of the immediately preceding greater offense or you unanimously
       have a reasonable doubt of the defendant’s guilt of that offense.

See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 7.05, 7.06, and 41.01 (6th ed. 2001).

       In considering these issues, we recognize that a defendant in a criminal case has a
constitutional right to a correct and complete charge of the law, so that each issue of fact
raised by the proof will be submitted to the jury on proper instructions. State v. Dorantes,
331 S.W.3d 370, 390 (Tenn. 2011) (citing State v. Faulkner, 154 S.W.3d 48, 58 (Tenn.
2005); State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001); State v. Garrison, 40 S.W.3d
426, 432 (Tenn. 2000)). It follows then that trial courts have a duty in criminal cases to
instruct the jury on the law applicable to the facts of a case. State v. Clark, 452 S.W.3d at
294-95 (Tenn. 2014) (citing State v. Thompson, 285 S.W.3d 840, 842 n.1 (Tenn. 2009);
State v. Burns, 6 S.W.3d 453, 464 (Tenn. 1999)). A trial court’s instructions “must
describe and define each element of the offense or offenses charged.” Id. at 295 (citing
Faulkner, 154 S.W.3d at 58; State v. Cravens, 764 S.W.2d 754, 756 (Tenn. 1989)). The
sufficiency of jury instructions is a question of law that this court must review de novo
with no presumption of correctness. Id. (citing State v. Hawkins, 406 S.W.3d 121, 128
(Tenn. 2013); Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 699 (Tenn. 2011)).

        When reviewing challenged jury instructions, this court must “view the instruction
in the context of the charge as a whole” in determining whether prejudicial error has been
committed requiring reversal. Id. (citing State v. Rimmer, 250 S.W.3d 12, 31 (Tenn.
2008); State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997)). When “the instruction alone
infected the entire trial and resulted in a conviction that violates due process,” see State v.
James, 315 S.W.3d 440, 446 (Tenn. 2010), or “when the judge’s charge, taken as a
whole, failed to fairly submit the legal issues or misled the jury as to the applicable law,”
see State v. Majors, 318 S.W.3d 850, 864-65 (Tenn. 2010), the instruction is prejudicially
erroneous. Clark, 452 S.W.3d at 295.
                                            - 21 -
       Langston cites to Judge Tipton’s concurrence in State v. Earnest Gwen Humphrey,
No. M2003-01489-CCA-R3-CD, 2005 WL 2043778, at *14-15 (Tenn. Crim. App. Aug.
24, 2005), perm. app. denied (Tenn. Feb. 6, 2006), to support his claim that the jury
instructions in his case were erroneous. In Earnest Gwen Humphrey, the defendant
argued that the jury instructions were erroneous because they instructed the jury not to
consider voluntary manslaughter until it first acquitted the defendant of second degree
murder. Id. at *14. The majority of the panel concluded that the trial court did not err in
giving the sequential jury instructions because they did not preclude the jury from
considering the lesser charges. Id. (citing State v. Raines, 882 S.W.2d 376, 382 (Tenn.
Crim. App. 1994); State v. Mann, 959 S.W.2d 503, 521 (Tenn. 1997) (appendix)).

        However, in a separate concurrence, Judge Tipton asserted that “[t]he danger
arising from instructing the jury that it must consider and acquit for second degree
murder before considering voluntary manslaughter is that the jury is barred from
considering the significance of passion relative to the issue of second degree murder
versus voluntary manslaughter.” Id. at *15. He noted that similar sequential instructions
had been held to violate due process. Id. (citing Falconer, 905 F.2d at 1137; Edge v.
State, 414 S.E.2d 463, 466 (Ga. 1992)). While acknowledging that “binding precedent in
Tennessee allows for the sequential offense consideration instruction,” he emphasized
that “we should not ignore the potential risk created by the instruction.” Id. Judge Tipton
then offered the following remedy:

       When evidence justifies an instruction on voluntary manslaughter, the trial
       court should instruct the jury so as to ensure adequate consideration of both
       second degree murder and voluntary manslaughter. That is, if a sequential
       offense consideration instruction is given, the instruction dealing with
       second degree murder should also advise the jury relative to the issue of
       passion upon adequate provocation relative to voluntary manslaughter.
       Such an instruction is contained in T.P.I–Crim. 7.05(a) (8th ed. 2004),
       which provides after stating the elements of second degree murder:

              The distinction between voluntary manslaughter and second
              degree murder is that voluntary manslaughter requires that the
              killing result from a state of passion produced by adequate
              provocation sufficient to lead a reasonable person to act in an
              irrational manner.

Id. Judge Tipton observed that this recommended instruction was not given by the trial
court in the Earnest Gwen Humphrey case and urged the trial court to use the Tennessee
Pattern Jury Instruction in the future. Id. Although Langston cites the Earnest Gwen
                                          - 22 -
Humphrey case, he asserts that Judge Tipton’s solution does not solve this dilemma
because “a sequential jury instruction, on its face, logically precludes the jury from ever
considering the crime of Voluntary Manslaughter even when there is proof of adequate
provocation.”

       We conclude that while the jury instructions given in Langston’s case did not
substantially follow the current pattern jury instructions, these instructions were
consistent with the instructions outlined in State v. Page, 81 S.W.3d 781, 790-93 (Tenn.
Crim. App. 2002) (appendix), and substantively followed the 2001 version of the pattern
jury instructions, which placed the distinction between second degree murder and
voluntary manslaughter behind the voluntary manslaughter charge. See 7 Tenn. Prac.
Pattern Jury Instr. T.P.I.—Crim. 7.05, 7.06, and 41.01 (6th ed. 2001). This court has
consistently upheld sequential jury instructions placing the distinction between second
degree murder and voluntary manslaughter after the voluntary manslaughter charge, and
the Tennessee Supreme Court has repeatedly denied permission to appeal on this issue.
See State v. Chris Jones, No. W2009-01698-CCA-R3-CD, 2011 WL 856375, at *16
(Tenn. Crim. App. Mar. 9, 2011), perm. app. denied (Tenn. Aug. 25, 2011); State v. Mark
Hines, No. W2009-00450-CCA-R3-CD, 2010 WL 4286132, at *10 (Tenn. Crim. App.
Oct. 27, 2010), perm. app. denied (Tenn. Apr. 14, 2011); State v. Billie Joe Welch, No.
E2005-02293-CCA-R3-CD, 2006 WL 2737830, at *14 (Tenn. Crim. App. Sept. 26,
2006), perm. app. denied (Tenn. Feb. 26, 2007); Earnest Gwen Humphrey, 2005 WL
2043778, at *14-15 (Tipton, J., concurring). However, in upholding these instructions,
this court concluded that “the better practice is to adhere to the approach in the Tennessee
Pattern Jury Instruction which provides the distinction between second degree murder
and voluntary manslaughter in the instruction for second degree murder.” See Chris
Jones, 2011 WL 856375, at *16; see also Mark Hines, 2010 WL 4286132, at *10; Billie
Joe Welch, 2006 WL 2737830, at *14; Earnest Gwen Humphrey, 2005 WL 2043778, at
*14-15 (Tipton, J., concurring).

       Therefore, we are constrained to conclude that the jury instructions in Langston’s
case were not prejudicially erroneous. However, for the reasons set out in this opinion,
we strongly recommend that this trial court, and all other trial courts, use the current
version of the applicable pattern jury instructions, which places the distinction between
second degree murder and voluntary manslaughter in the instructions for both offenses.
See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 7.05(a), 7.06, and 41.01 (19th ed.
2015). Although the record shows the trial court was attempting to avoid repetition by
including the distinction only one time after the voluntary manslaughter charge, the result
was that the jury was not clearly advised of the voluntary manslaughter offense at the
same time it was considering the second degree murder offense. While the instructions
given in this case, which essentially followed an outdated 2001 version of the Tennessee

                                           - 23 -
Pattern Jury Instructions, did not rise to the level of being prejudicially erroneous, they
also fell short of being the best instructions available for these offenses.

       IV. Sufficiency of the Evidence. Langston contends that the evidence is
insufficient to sustain his conviction for second degree murder. He claims “[t]he State
did not prove beyond a reasonable doubt that [he] acted knowingly, i.e., that the shooting
was not with adequate provocation sufficient to mitigate the offense to voluntary
manslaughter.” He emphasizes that he and the victim had a troubled marriage, there had
been allegations of infidelity, the police had been called to their home, and the victim had
threatened to stab him with a knife just before the shooting. Langston asks that this court
grant him a new trial on this charge or, alternatively, modify his conviction to voluntary
manslaughter, reckless homicide, or criminally negligent homicide. We conclude that the
evidence is sufficient to support Langston’s conviction for second degree murder.

       “Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).
“Appellate courts evaluating the sufficiency of the convicting evidence must determine
‘whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court
evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn from that
evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing Majors, 318 S.W.3d
at 857).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of
review for sufficiency of the evidence “‘is the same whether the conviction is based upon
direct or circumstantial evidence.’” Dorantes, 331 S.W.3d at 379 (quoting Hanson, 279
S.W.3d at 275). The jury as the trier of fact must evaluate the credibility of the witnesses,
determine the weight given to witnesses’ testimony, and reconcile all conflicts in the
evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State,
575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury determines the
weight to be given to circumstantial evidence and the inferences to be drawn from this
evidence, and the extent to which the circumstances are consistent with guilt and
inconsistent with innocence are questions primarily for the jury. Dorantes, 331 S.W.3d at
379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). “This Court neither re-
                                           - 24 -
weighs the evidence nor substitutes its inferences for those drawn by the jury.” Wagner,
382 S.W.3d at 297 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).

        Langston asserts that he should have been convicted of voluntary manslaughter
rather than second degree murder. Second degree murder is defined as “[a] knowing
killing of another[.]” T.C.A. § 39-13-210(a)(1). It is well established that second degree
murder is a result-of-conduct offense. State v. Brown, 311 S.W.3d 422, 432 (Tenn.
2010); Page, 81 S.W.3d at 787. Therefore, as pertinent in this case, a person acts
knowingly “when the person is aware that the conduct is reasonably certain to cause the
result.” T.C.A. § 39-11-302(b). Whether a defendant acts knowingly in killing another is
a question of fact for the jury. Brown, 311 S.W.3d at 432; State v. Inlow, 52 S.W.3d 101,
104-05 (Tenn. Crim. App. 2000). On the other hand, voluntary manslaughter is defined
as “the intentional or knowing killing of another in a state of passion produced by
adequate provocation sufficient to lead a reasonable person to act in an irrational
manner.” T.C.A. § 39-13-211(a).

       Although Langston claims that the evidence presented at trial established adequate
provocation, the proof, when viewed in a light most favorable to the State, shows that
Langston knowingly killed his wife and did not kill her in a state of passion produced by
adequate provocation. In the months prior to the shooting, the arguments between
Langston and the victim had escalated. Langston admitted to police that after escaping
the victim with the knife, he went to his shed, retrieved his loaded handgun, reentered his
home, and aimed the gun at the victim. Although Langston claimed that the gun fired
because it was not operating properly, Agent Braswell concluded, after conducting
several test fires, that the gun was not malfunctioning. She said that the gun had two
functioning safety mechanisms that prevented it from being fired unintentionally and that
this gun would not fire unless someone pulled the trigger. She added that the gun’s
trigger guard prevented an individual from accidentally pulling the trigger. Moreover,
Agent Braswell observed that the trigger on this gun was not a hair trigger because the
trigger pull was in the medium range at 6.5 pounds of pressure.

        Additionally, Dr. Erica Curry testified that the victim sustained a fatal gunshot
wound with the bullet entering at her left eyebrow and transacting the brain stem and
cerebellum before exiting the back of the skull. Although Langston claimed he was eight
feet away from the victim when the gun fired, Dr. Curry opined that the gunpowder
stippling near the entrance wound indicated that the gun had been fired at the victim from
an intermediate range of between six inches and three feet. Based on all of this evidence,
a rational jury could have found beyond a reasonable doubt that Langston committed a
knowing killing rather than a killing due to adequate provocation. See Williams, 38
S.W.3d at 539 (stating that the jury’s decision to reject the notion of adequate
provocation was within its prerogative); State v. Johnson, 909 S.W.2d 461, 464 (Tenn.
                                          - 25 -
Crim. App. 1995) (“Whether the acts constitute a ‘knowing killing’ (second degree
murder) or a killing due to ‘adequate provocation’ (voluntary manslaughter) is a question
for the jury.”). Therefore, we conclude that there was sufficient evidence to sustain
Langston’s conviction for second degree murder.

       V. Sentencing. Lastly, Langston argues that his mid-range sentence of twenty
years for his second degree murder conviction is excessive. He asserts that the trial court
erred in disregarding or ignoring the mitigating factors “set forth in [his] pleading, argued
at sentencing[,] and supported by the record.” Specifically, he claims the record supports
a finding that he acted under strong provocation, that substantial grounds existed tending
to excuse or justify his conduct, that he attempted to provide aid to the victim, that he
assisted the authorities in locating or recovering the weapon, that he was not likely to
reoffend, that he is remorseful for his actions, that he has a strong work ethic, and that he
has almost no criminal record. Because the record shows the trial court properly
addressed the purposes and principles of sentencing as well as the applicable
enhancement and mitigating factors, we uphold the sentence in this case.

       At Langston’s sentencing hearing, Fatina Allen, the victim’s sister, testified that
the victim’s death had been devastating to her and that K.L. had been receiving
counseling following her mother’s death. Allen read a letter from K.L., wherein she
stated that it was hard living without her mother and that the murder had changed her.
Allen acknowledged that while Langston was released on bond, he visited K.L. and
provided more financial support than ordered by the juvenile court.

       Bernadette Sutton, another of the victim’s sisters, testified that she was distraught
by the victim’s death. Marshaye Smith, the victim’s best friend, stated that she would
never be the same after the victim’s death and that it was unfair for the victim to be taken
away from her promising future. Tiara Mayo, the victim’s niece, read a statement in
which she asked the court to sentence Langston to the maximum sentence .

       Michael Reddoch testified that Langston was a friend and an excellent employee
and that Langston had expressed remorse regarding the victim’s death.

       Carl Lyles, Langston’s friend and a co-worker at the Memphis County Club for
many years, testified that Langston was “a good guy [and an] outstanding waiter.”
Although Lyles heard Langston often arguing with the victim over the phone, he said that
these arguments stemmed from the victim’s repeated failure to pick up Langston from
work. Lyles said that Langston had expressed remorse over the victim’s death.

      Paul McClure, a member of the Memphis Country Club, testified that Langston
went above and beyond what was required in serving his extended family over the years.
                                           - 26 -
He described Langston as a “kind and gentle soul” and did not believe Langston was
dangerous.

       A letter was entered into evidence from Michael Babb, the general manager of the
Memphis Country Club, discussing Langston’s history as an employee . In addition,
several people attended the sentencing hearing in support of Langston, although they did
not testify.

       Langston made an allocution at the sentencing hearing in which he said that he
was “truly sorry for what happened.” He also said that he loved his wife and his daughter
and that “he never meant to take [his] wife from [his] daughter nor her family.”

      After hearing this proof, the trial court stated that it had considered all of the
evidence from the pre-trial motions, the trial, and the sentencing hearing. It also
considered the presentence report, the presentence filings made by the parties, and the
arguments presented at the sentencing hearing.

        The trial court acknowledged that Langston, forty-six-years-old, had a criminal
history because of his misdemeanor conviction for disorderly conduct; however, the court
gave this enhancement factor very little weight and almost considered it a mitigating
factor given the modest nature of the conviction. See T.C.A. §§ 40-35-113(13), -114(1).
The court applied the enhancement factor that Langston “possessed or employed a
firearm during the commission of the offense,” see id. § 40-35-114(9), giving some
weight to this factor because the legislature had expressed its intent for crimes committed
with a deadly weapon to be treated more harshly. The trial court chose not to apply
enhancement factor (15), that “[t]he defendant committed the offense on the grounds or
facilities of a pre-kindergarten through grade twelve (pre-K-12) public or private
institution of learning when minors were present.” See id. § 40-35-114(15). However, it
did consider, as a part of the nature and circumstances of the case, the fact that a one-
year-old child and Langston’s twelve-year-old daughter had been present in the home
when Langston shot the victim, which made this “a worse crime than it would had those
children not been present.”

       As to the mitigating factors, the trial court noted that Langston’s work history and
volume of support spoke “loudly in his behalf.” He also noted that Langston had “built
relationships with a number of people” through his work, which shed light on “the kind
of person” Langston was. The court observed that if it only considered the impact on the
victim’s family, it would be “very easy to sentence Mr. Langston to twenty-five years,”
the maximum sentence for second degree murder. However, it also recognized that
Langston was not likely to reoffend and that Langston would have support from others in
the future, which supported a minimum sentence of fifteen years. The trial court said it
                                          - 27 -
was “faced with trying to fashion a sentence that [was] appropriate for the seriousness of
this offense so as not to depreciate what was done.” It also observed that while “it was a
very close question for the jury between voluntary manslaughter and murder in the
second degree,” the jury determined that Langston had committed “a knowing killing,”
and the court found “ample proof in the record based on [his] leaving the house to get the
weapon and com[ing] back” to accept the verdict as the thirteenth juror. After
considering all these matters, the court imposed a sentence of twenty years at one
hundred percent release eligibility. See id. §§ 39-13-210(a)(1), 40-35-112(a)(1), 40-35-
501(i).

       Initially, we recognize that the 2005 amendments to the sentencing act “served to
increase the discretionary authority of trial courts in sentencing.” State v. Bise, 380
S.W.3d 682, 708 (Tenn. 2012). In light of this broader discretion, “sentences should be
upheld so long as the statutory purposes and principles, along with any applicable
enhancement and mitigating factors, have been properly addressed.” Id. at 706. The
amendments to the sentencing act also “rendered advisory the manner in which the trial
court selects a sentence within the appropriate range, allowing the trial court to be guided
by–but not bound by–any applicable enhancement or mitigating factors when adjusting
the length of a sentence.” Id. Because of this broader discretion,

       a trial court’s misapplication of an enhancement or mitigating factor does
       not invalidate the sentence imposed unless the trial court wholly departed
       from the 1989 Act, as amended in 2005. So long as there are other reasons
       consistent with the purposes and principles of sentencing, as provided by
       statute, a sentence imposed by the trial court within the appropriate range
       should be upheld.

Id. This court reviews a trial court’s sentencing determinations under “an abuse of
discretion standard of review, granting a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” Id. at 707.

        Pursuant to the 2005 amendments to the sentencing act, a trial court must consider
the following when determining a defendant’s sentence:

       (1)    The evidence, if any, received at the trial and the sentencing hearing;
       (2)    The presentence report;
       (3)    The principles of sentencing and arguments as to sentencing
              alternatives;
       (4)    The nature and characteristics of the criminal conduct involved;
       (5)    Evidence and information offered by the parties on the mitigating
                                           - 28 -
              and enhancement factors set out in §§ 40-35-113 and 40-35-114;
       (6)    Any statistical information provided by the administrative office of
              the courts as to sentencing practices for similar offenses in
              Tennessee; and
       (7)    Any statement the defendant wishes to make in the defendant’s own
              behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should consider the defendant’s potential for
rehabilitation or treatment. Id. §§ 40-35-102(3)(C), -103(5). In addition, the court should
impose a sentence “no greater than that deserved for the offense committed” and “the
least severe measure necessary to achieve the purposes for which the sentence is
imposed.” Id. §§ 40-35-103(2), (4). The defendant has the burden of showing the
impropriety of the sentence on appeal. Id. § 40-35-401(d), Sentencing Comm’n Cmts.

        Langston argues that the trial court should have applied the following mitigating
factors: (2) he acted under strong provocation; (3) that substantial grounds existed
tending to excuse or justify his conduct, though failing to establish a defense; and (10) he
assisted the authorities in locating or recovering any property, namely the gun, involved
in the crime. See id. § 40-35-113(2), (3), (10). In addition, under the “catch-all”
mitigating factor, Langston asserts that the court should have considered that he was
unlikely to reoffend, that he was remorseful for his actions, that he had a strong work
ethic, that he had almost no criminal record, and that he attempted to provide aid to the
victim. See id. § 40-35-113(13).

        As we noted, the trial court is guided by, but not bound by, any applicable
enhancement or mitigating factors when imposing a sentence, and we will not disturb a
trial court’s sentence unless the court wholly departed from the purposes and principles
of the Sentencing Act. See Bise, 380 S.W.3d at 706. The record shows that the trial
court carefully considered the evidence as well as the proposed enhancement and
mitigating factors. Although Langston argues that the trial court erred in failing to apply
the mitigating factors (2), (3), and (10), the record does not support the application of
these factors. Because Langston safely exited the home before obtaining his handgun and
reentering the house, we do not believe that Langston acted under strong provocation, as
in factor (2), or that substantial grounds existed tending to excuse or justify his conduct,
as in factor (3). We also do not believe mitigating factor (10) was applicable given the
facts and circumstances in this case. As to the other claims under mitigating factor (13),
the record shows that the trial court considered all of these matters with the exception of
Langston’s attempt to render aid to the victim, which was not supported by the proof at
trial.



                                           - 29 -
       The trial court carefully considered the evidence supporting both the State’s
request for a maximum sentence and the defense’s request for a minimum sentence
before sentencing Langston to a mid-range sentence of twenty years. The court
articulated both the reasoning in applying each mitigating and enhancement factor and
the weight it gave to each factor. Because the record shows the trial court properly
considered the purposes and principles of sentencing as well as the applicable
enhancement and mitigating factors, we uphold Langston’s twenty-year sentence.

                                   CONCLUSION

       Based on the aforementioned authorities and reasoning, the judgment of the trial
court is affirmed.

                                                 _______________________________
                                                 CAMILLE R. McMULLEN, JUDGE




                                        - 30 -
