                         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                          AT JACKSON

                                     OCTOBER 1998 SESSION
                                                                     FILED
                                                                    November 25, 1998

                                                                     Cecil Crowson, Jr.
STATE OF TENNESSEE,                         )                        Appe llate Court C lerk
                                            )      C.C.A. No. 02C01-9707-CR-00273
                Appellee,                   )
                                            )      Shelby County
v.                                          )
                                            )      Honorable W. Fred Axley, Judge
JOE A. IVY,                                 )
                                            )      (Murder First Degree)
                Appellant.                  )




FOR THE APPELLANT:                                 FOR THE APPELLEE:

Paula Skahan                                John Knox Walkup
140 North Third Street                      Attorney General & Reporter
Mem phis, TN 38103                          425 Fifth Avenue, North
                                                    Nashville, TN 37243-0493

                                                   Douglas D. Himes
                                                   Assistant Attorney General
                                                   425 Fifth Avenue, North
                                                   Nashville, TN 37243-0493

                                                   WilliamL. G   ibbons
                                                   District Attorney General
                                                   201 Poplar Avenue, Suite 301
                                                   Mem   phis, TN 38103

                                                   Johnny McFarland
                                                   Assistant District Attorney General
                                                   201 Poplar Avenue, Suite 301
                                                   Mem  phis, TN 38103




OPINION FILED: __________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                                 OPINION



        The appellant, Joe A. Ivy, referredhereinas the defendant, appeals as of right from a judgment of the

Shelby County Crim Court as a result of a jury finding himguilty of murder first degree. In accordance with
                  inal

the jury’s verdict, the trial court sentencedthedefendant tolife imprisonment with the possibility of parole. The

defendant presents seven (7) issues for appellate review:


                 1. Whether the trial court erred when it ordered the defendant to
                    provide the State with his attorney work product as prepared by his
                    neuropharm  acology expert.

                 2. Whether the trial court erred by refusing to allow the defendant to
                    call the co-defendant as a witness in defendant’s case-in-chief.

                 3. Whether the trial court erred when it ruled as irrelevant the
                    testimony of the defendant’s proffered expert witness.

                 4. Whether the trial court erred when it refused to allow the
                    defendant’s lay witness to testify in the form of an opinion.

                 5. Whether the verdict is contrary to the law and the evidence
                    presented at trial.

                 6. Whether the trial court erred when it refused to give the defendant’s
                    requested jury instruction concerning a cocaine-induced m       ental
                    condition.

                 7. Whether the trial court erred as a matter of law when it refused to
                    give the defendant’s requested jury instruction concerning
                    premeditation, deliberation, and specific intent.


        After a reviewof the evidence in this record, both parties’ briefs, and the applicable law, we affirm the

trial court’s judgment.



                                      FACTUAL BACKGROUND



        In April, 1996, the Shelby County grand jury returned an indictment against the defendant for murder

first degree. Since there is an allegation of insufficiency of evidence to support the conviction of murder first

degree, a review of the evidence in this record is necessary.



        On the night of October 9, 1995, the defendant shot Calvin Hill twice with a shotgun, the second shot

after Hill had fallen to the ground. Dr. O. C. Smith, forensic pathologist and medical exam for Shelby
                                                                                           iner

                                                       2
County, testified he conducted an autopsy on October 13, 1995 on Calvin Hill and determined Hill had died

frommultiple gunshot wounds. Dr. Smith found three gunshot wounds, one to the left side of the head, one

to the left chin, and one to the left chest. The wound to the left chin could be consistent with the victimlying

on his back. Dr. Smith testified he did not find any evidence of cocaine in the victim’s body, but agreed that

the victim could have ingested cocaine on the night of October 9, 1995. D Smith, inhisautopsy, founda prior
                                                                         r.

shotgun wound to the victim’s chest. Dr. Smith determined that the shotgun blasts occurred more than three

feet from the victim.



        Michael Dean testified he was at the defendant’s home on October 9, 1995. Dean, the defendant,

Kevin Price, and a man known to Dean as “Darrell” were cooking out, drinking, and smoking some “weed.”

Dean testified he, the defendant, Price, and Darrell left in Dean’s mother’s car for the M Stop on Getwell
                                                                                          init

Road. Across the street fromthe Minit Stop was Chuck’s Barbecue. The defendant told Dean, “Pull in here

so I can talk to this guy.” Dean pulled into an alley between Chuck’s and a bookstore. The defendant yelled

out the window “Come over here and let m -- let m holler at you.” As the man approached the car, Dean
              ,                         e        e

testified the defendant got out of the car and shot the man twice with a shotgun. The man was on the ground

when the defendant shot him the second time. The defendant got back in the car and told Dean, “Take me

to my mother’s house.” Dean did so and the defendant talked to his mother for five minutes. Then, the

defendant had Dean take himto Forrest City, Arkansas. Dean testified he left the defendant and Darrell at

a house off a dirt road. Dean did not see the defendant take the shotgun with him. Dean testified the

defendant shot the victim because “he thought he would kill himfirst. Moose [the defendant] just said that he

had been threatened by himbefore and that if he didn’t kill him first, the Calvin guy would kill him.”



        Kevin Price testified he attended a cookout at the defendant’s house on October 9, 1995. Price was

drinking vodka and others at the house were using cocaine. Price testified he did not know how much the

defendant drank that day, but he believed the defendant used som powder cocaine. Price testified he
                                                                e

accompanied Michael Dean, the defendant, and Darrell McKinney to the store. Dean drove, the defendant

was in the front passenger seat, andPrice and McKinney werein the backseat. When they arrived at Chuck’s

Barbecue, the defendant called Hill to the car. The defendant got out and Price heard two gunshots. Price

saw the defendant get back in the car with a gun. As Dean drove off, Price looked back and saw Hill on the

ground. Price testified he had known the defendant for ten years, and for the last four years they drank and


                                                       3
did a variety of drugs together.



        Spencer Briggs, a patrolm with the M
                                 an         emphis Police Department, testified he and his partner were

patrolling the parking lot behind Chuck’s Barbecue and Tamm Bookstore because of recent car thefts and
                                                           y’s

burglaries. Whilepullingintothealley between the buildings, Officer Briggs observed a m standingbeside
                                                                                       ale

a van, which was owned by an employee of Chuck’s Barbecue. Officer Briggs and his partner circled the

parking lot and pulled into another parking lot to monitor the van. Officer Briggs heard two shotgun shells fire.

Both officers immediately went to the scene where they found Calvin Hill lying on his left side with a gunshot

wound to the head. Officer Briggs identified Hill as the male he saw by the van. Officer Briggs did not see the

shooter.



        Mark Bennett testified he and his father live eight m southof Forrest City, Arkansas on a rock road.
                                                             iles

On the night of October 9, 1995, Bennett testified he heard someone knocking at his window. Bennett looked

out and saw the defendant and Darrell McKinney. Bennett went out on the porch and McKinney said “they

was in trouble, wanted my help . . . and Moose [the defendant] said he shot somebody.” The defendant

wanted some blankets and food to enable him to hide out. While going to Bennett’s truck to get the blankets,

the defendant said he “shot somebody, he fell down and he shot him again.” The next morning Bennett told

his father w had happened and his father called the sheriff. Bennett described the defendant as being
            hat

scared that night.



        In behalf of the defendant, M Ashley Jones testified she was living with the defendant, D
                                     s.                                                          arrell

McKinney, and Sum D on Vanuys Street. Ms. Jones testified the defendant consumed either a fifth of
                 mer are

vodka or whiskey and a gramof cocaine every day. Ms. Jones knewCalvin Hill and described two occasions

whenthe defendant and Hill had experienced problems. On the first occasion, M Jonestestifiedthat Hill and
                                                                             s.

another man cam to the defendant’s home to buy some cocaine. The defendant gave Hill the cocaine and
               e

Hill left, but later returned stating “it wasn’t no good.” Jones described Hill as being very angry. Jones told the

defendant what had occurred.



        On the second occasion, M Jones testified that Summ Dare beeped her and the defendant to
                                 s.                        er

come home. When they arrived at the house, Calvin Hill was there. The defendant and Hill got into an


                                                        4
argument and the defendant pushed H outside, where H grabbed a metal rake and struck the defendant
                                   ill              ill

four or five times. The defendant ran into the house, got a knife, and returned. Then, the defendant picked

up some hedge clippers and threw them at Hill who was running down the street. Ms. Jones testified, after

this episode, the defendant sat in the house doing drugs and drinking.



        Lisa Preslar testified shewas living with her father onNew WillowRoad in 1994. Ms. Preslar recalled

an occasion when Calvin H came to their home and got out of the car w a stick in his hand. Hill wanted
                         ill                                         ith

her father. M Preslar testified Hill told her father that he (Hill) wanted his money and “if nobody was there by
             s.

12:30 with the money, he was com back and shooting up in the house and didn’t care who he hit.” Ms.
                                ing

Preslar testified she left immediately, went to the defendant’s home, and told the defendant what had

happened.



        Lisa Blakely testified she and the defendant dated four to five years and had one child. Prior to

October, 1995, Ms. Blakely lived with her father, but saw the defendant almost every day. The defendant

usually cameto her house about 10:00p.m and was usually drunk. Also, the defendant’s cocaine usage had
                                       .

increased. M Blakely testified, just before October 9, 1995, the defendant seemed upset, withdrawn, and
            s.

expressed his concern that the man he was having problem with had followed himto her hom
                                                        s                               e.



        John Carl Scheeper, an attorney and Vietnam veteran, testifiedhe had represented the defendant in

other legal matters. Prior to October 9, 1995, M Scheeper testified he and the defendant met to discuss his
                                                r.

other legal cases and the defendant told him, “Jack, I’m having a problem.” Mr. Scheeper described the

defendant as being scared and having fear in his eyes. Mr. Scheeper quoted the defendant, “He’s been

following me around all the tim He’s bugging me. I don’t know what to do about it, Jack.”
                               e.



        Ms. Adriane Goodwin testified she, the defendant, Ashley Jones, and Summer Dare lived at the

Vanuys Street address on October 9, 1995. Ms. Goodw testified a cookout began about 12:30 p.m. and
                                                   in

seven to eight people attended, including thedefendant. A number of fifths of vodka was consumed between

12:30 p.m and 8:30 p.m. Around 4:00 p.m., Ms. Goodw the defendant, Kevin Price, and Summer Dare
         .                                         in,

shared a gram of cocaine. M Goodwin recalled the defendant, Michael Dean, Kevin Price, and Darrell
                           s.

McKinney leaving that evening and did not see them again.


                                                       5
         Ms. Summer D testifiedshe, the defendant, AshleyJones, andDarrell McKinney shared the house
                     are

at the Vanuys address in October, 1995. Ms. Dare described the defendant as a heavy drinker, and he used

cocaine every day if he had it. Ms. Dare testified that Calvin Hill appeared at the house one evening looking

for the defendant. Hill barged in the house and asked her to call the defendant. Soon thereafter, the

defendant and Ashley Jones arrived at the house. M Dare testified the defendant and Hill got into a fight
                                                  s.

outside where Hill beat the defendant with a rake. Two nights later, Calvin Hill again came to her house with

two carloads of people. Dare called 911 for assistance.



         Ms. Dare testified she was ill on October 9, 1995 and spent most of the day in bed. M Dare was
                                                                                              s.

aware of the cookout and that a significant amount of liquor andbeer hadbeen consumed. She arose around

4:00 p.m and sharedsome foodwith the defendant. Ms. Dare testified the defendant and others were “rowdy
        .

. . . pretty loaded up on alcohol and drugs, too, I’msure, m themhyper.” W the police arrived later that
                                                            ade           hen

night, Ms. Dare observed cocaine residue on the mirrors in the bedroom.



         Jonathan Joseph Lipm neuropharmacologist expert, testified he interviewed the defendant in
                             an,

Novem 1996 to determine the effects of drugs on the defendant’s brain at the time of the offense. From
     ber,

the interview, Dr. Lipm determined the defendant began using m
                       an                                     arijuana at age 8 or 9, drinking liquor to

intoxication at age 14, and abusing LSD at age 16. Later in life, the defendant abused other drugs,

methamphetamine and cocaine. At the time of the offense, the defendant was drinkingall the tim and using
                                                                                              e

a gram of cocaine a day. Dr. Lipman testified, in his opinion, the defendant was not psychotic, but the

defendant was fearful and preoccupiedwith his fears. Dr. Lipmantestified the defendant had a genuine reason

to fear the victimwho was in fact making the defendant’s environment fearful. The use of cocaine increased

this fear.



         Dr. Lipman testified that before the shooting the defendant had obtained a shotgun which he hid in

the house. If the defendant had to leave the house in a car, the defendant took the shotgun with him. At the

time of the offense, Dr. Lipman calculated the defendant’s blood-alcohol content at .25 percent. Dr. Lipman

testified the defendant remembered being out of the car and Hill walking toward him. The defendant sensed

increasing threat as Hill approached, and the defendant was convinced that his life had run out. Before the

defendant realized it, Hill was dead. Dr. Lipm testifiedthat thedefendant’sjudgment was seriously impaired
                                              an


                                                     6
at the tim of the offense.
          e



        The defendant elected not to testify in his own behalf.



                                          APPELLATE ISSUES



                                      A. Attorney Work Product



        The defendant contends the trial court erred in ordering the defendant to provide an attorney work

product prepared by Dr. Jonathan J. Lipman one week prior to trial for the benefit of the State. The State

counters the trial court was not in error, in that Dr. Lipman’s “confidential” letter was discoverable pursuant to

Tenn. R. Crim. P. 16(b)(1)(B).



        The defendant contends, in his brief, the trial court ordered Dr. Lipman’s report to be given to the

State under the authority of State v. Nichols, 877 S.W.2d 722 (Tenn. 1994). If there was a formal hearing

on the merits of this issue, a record of the hearing was not submitted to this court, other than an exhibit “A”

marked for appellate review. When an accused seeks appellate reviewof an issue in this court, it is the duty

of the accused to prepare a record which conveys a fair, accurate, and complete account of what transpired

with respect totheissuewhich forms the basis of the appeal. Tenn. R. App. P. 24(b); State v. Bennett, 798

S.W.2d 783 (Tenn. Crim. App. 1990), cert. denied, 500 U.S. 915, 111 S.Ct. 209, 114 L.Ed.2d 98 (1991);

State v. Roberts, 755 S.W. 833, 836 (Tenn. Crim. App.), per. app. denied (Tenn. 1988). However, the

motion for a new trial raised this issue and we elect to consider the merits of this issue.



        Tennessee Rule of Criminal Procedure 16(b)(1)(B) provides that:


                 Reports of Examinations and Tests. If the defendant requests disclosure
                 under subdivision (a)(1)(C) or (D) of this rule, upon com     pliance with such
                 request bytheState, thedefendant, on request of theState, shall perm the   it
                 State to inspect and copy or photograph any results or reports of physical or
                 mental examinations and of scientific tests or experiments m             ade in
                 connection with theparticular case, or copies thereof, w the possession
                                                                            ithin
                 or control of the defendant which the defense intends to introduce as
                 evidence in chief at the trial or which were prepared by a witness whomthe
                 defendant intends to call at the trial when the results or reports relate to the
                 witness’s testimony.

                                                        7
         Tennessee Rule of Criminal Procedure 16(b)(2) provides:


                 (2) Information not Subject to Disclosure. Except asto scientificand medical
                 reports, this subdivision does not authorize the discovery or inspection of
                 reports, mem   oranda, or other internal defense documents made by the
                 defendant, or the defendant’s attorneys or agents in connection with the
                 investigation or defense of the case, or of statements made by the
                 defendant, or by State or defense witnesses, or by prospective State or
                 defense witnesses, to the defendant, the defendant’s agents or attorneys.




         The defendant arguesDr. Lipman’sletter of November 9, 1996 differsin two aspects from the holding

in Nichols, 877 S.W.2d at 729-30. He contends one difference is that Dr. Lipman’s information was

“preliminary observations and conclusions” until additional information was available. The second difference

is the defendant’s statements to Dr. Lipm were privileged com
                                         an                  munications within the scope of Tennessee

Rule of Criminal Procedure16(b)(2). In Nichols, our Supreme Court concluded that when a psychologist or

psychiatrist does not prepare asummary report, but instead relies onextensivememoranda to recordnot only

observations and hypothesesbut also evaluations, such recordsarediscoverable under R 16(b)(1)(B). “To
                                                                                    ule

allow the defendant to evade the reciprocal discovery rule [by making noformal report and claiming that mere

‘notes’ are undiscoverable] would effectively nullify themeaning of Rule 16(b)(1)(B). . . .” State v. Bell, 690

S.W 879, 883 (Tenn. Crim. App.), per. app. denied (Tenn. 1985).
   .2d



         From a review of Dr. Lipman’s testimony and Dr. Lipman’s letter of November 9, 1996, we conclude

that the expert’s testimony tracks substantially the letter of November 9, 1996. The record establishes that

the trial court granted the defendant’s specific request that Dr. Lipm be hired for an evaluation as to the
                                                                      an

effect of drugabuse on the brainand testifyin support of hisconclusions. Inhistestimony, Dr. Lipman admitted

he had not finalized a report and in essence adopted his eight-page letter as a report. Under these facts, we

findthetrial court didnot commit error in orderingDr. Lipm letter to be given tothe State. Thereis no m
                                                          an’s                                         erit

to this issue.



                 B. Failure of Trial Court to Permit Co-Defendant to Testify



         The defendant contends the trial court was in error by not allowing a co-defendant, Darrell McKinney,

                                                      8
to testify as to the validity of the defendant’s claim of self-defense. The State argues the trial court did not

abuse its discretion in honoring the co-defendant’s claim of self-incrimination.



          The indictment in this cause alleged that Joe Ivy and James McKinney1 murdered Calvin Hill on

October 9, 1995. The defendant contends the defense questioning would not have incriminated McKinney,

thus his invoking of the privilege was neither within the meaning nor purpose of the Fifth Amendment.



          The co-defendant, Jam McKinney, was awaiting trial for the m
                               es                                     urder of Calvin Hill and was

represented by counsel. In a jury-out hearing on the relevance of McKinney testifying, McKinney invoked his

Fifth Amendment privilege upon advice of counsel. The defendant failed to convince the trial court that

McKinney’s testimony w relevant to the issue on trial and refused thedefendant the right tocall this witness.
                      as



          In State v. Dicks, 615 S.W.2d 126, 129 (Tenn. 1981), our Supreme Court concluded “wherethere

is a conflict between the basic right of a defendant to compulsory process and thewitness’s right against self-

incrimination, as in this case, the right against self-incrimination is the stronger and paramount right” (quoting

Frazier v. State, 566 S.W.2d 545, 551 (Tenn. Crim. App. 1978); United States v. Johnson, 488 F.2d

1206 (1st Cir. 1973)). It is the duty of the trial court to determine whether a witness has properly invoked his

or her Fifth Amendment right against self-incrimination. We will not disturb such determination unless a plain

abuse of that authority constitutes grounds for reversal. State v. Zirkle, 910 S.W.2d 874, 890 (Tenn. Crim.

App.), per. app. denied (Tenn. 1995). The record clearly establishes that the co-defendant, after

counseling with his attorney, elected to invoke his privilege against self-incrimination. Since McKinney had

not been tried for this offense, his exposure w great.2 We find the trial court did not abuse its discretion in
                                               as

permitting James McKinney to invoke his Fifth Amendment right and not testify. There is no merit to this issue.



                       C. Expert Testimony of Attorney John Carl Scheeper



          The defendant contends the trial court erred in not permitting John Carl Scheeper to testify on the

          1
              The trial testimony established that James McKinney and “Darrell McKinney” are one and the same
person.
          2
       We note the defendant wished to support his claim of self-defense through McKinney’s testimony.
However, tw other passengers, M
           o                   ichael Dean and Kevin Price, friends of the defendant, testified at trial.

                                                        9
subject of fear as an expert pursuant toTennessee Rule of Evidence 702. The State argues the trial court did

not abuse its discretion in denying such expert testimony.



        In a novel approach, the defendant alleges Mr. Scheeper should have been permittedto testify on the

subject of fear. Tennessee Rule of Evidence 702 provides:

                 Testimonyby experts. 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 m testify in the form of an opinion
                                                              ay
                 or otherwise.




        The defendant contends Scheeper has a special knowledge of fear that the average person does not

have. This experience is based on Scheeper’s serving in Vietnam as a m ber of the Third 39th Battalion of
                                                                      em

the Ninth Infantry Division in the Mekong Delta, and in playing poker. The trial court ruled, “That is so

farfetched, I can’t allowit.” Although the trial court did not permit Scheeper to testify as an expert, Scheeper

was permitted to testify as to the fear he saw in the defendant’s eyes when discussing the problem the
                                                                                                  s

defendant was having with Calvin Hill. The qualifications, admissibility, relevancy, and competency of expert

testimony arematters entrusted to the sounddiscretionof the trial court. State v. Ballard, 855 S.W.2d 557,

562 (Tenn. 1993). We find the trial court was well within its discretion in declining to find Scheeper an expert

on the subject of fear. There is no merit to this issue.



                                 D. Defense Lay Witness Opinion



        The defendant contends the trial court erred by sustaining the State’s objection to the testimony of a

lay witness, Lisa Blakely. The State argues the witness was permitted to testify as to her descriptions and

opinion of the defendant’s state of mind.



        Tennessee Rule of Evidence 701(a) provides:


                 If the witness is not testifying as an expert, the witness’s testimony in the
                 form of opinions or inferences is limited to those opinions or inferences
                 which are (1) rationally based on the perception of the witness and (2)
                 helpful to a clear understanding of the witness’s testimony or the
                 determination of a fact in issue.

                                                      10
        Blakely’s testimony was:

                 BY MS. SKAHAN:

                 Q. You were saying what kind of conversations you were having with
                    Joe Ivy.

                 A. Yes, ma’am.

                 Q. Could you tell us again, please?

                 A. I really don’t remem what was said. I m
                                        ber                     ean, I rem ber him
                                                                          em
                    always coming to me and talking about he didn’t know what he was
                    going to do because of him and he was scared. I mean, there was
                    times he would com to my house and was upset.
                                       e

                 MR. MCFARLAND: Your Honor, may we approach? I’m objecting.

                 THE COUR You are objecting to?
                         T:

                 MR. MCFARLAND: Her testimony now is not what he said, what hetold her.

                 MS. SKAHAN: I can phrase it so that she can describe what she observed
                 about her, if that would be acceptable with the Court.

                 THE COU She can do that. But she is telling the jury he was upset, and
                            RT:
                 that is not -- you can’t consider that.

                 MS. SKAHAN: Okay.

                 THE COURT: All right.

                 BY MS. SKAHAN:

                 Q. What you can talk about are your observations, what Joe said to
                    you, but not your conclusions, okay?

                 A. Okay.

                 Q. What made you make that last statement? What did you observe
                    about Joe?

                 A. I mean, I don’t know what you’re saying really.

                 TH C
                   E OURT: W did you see when you looked at him
                            hat                                ?

                 A. What did I see when I saw him?

                 Q. Yes, ma’am.

                 A. I saw, I mean, him being upset. I mean, I don’t know.



        In other portions of Blakely’s testimony, she testified the defendant was distant, scared, and upset.

At first blush, it appears the trial court would not permit the witness, Blakely, to testify that the defendant was


                                                       11
upset. However, in a follow-up question, the trial court asked the witness what she saw in looking at the

defendant. We believe the trial court did permit thewitness to relate tothejury her opinion that the defendant

was upset. State v. Wingard, 891 S.W.2d 628, 636 (Tenn. Crim. App. 1994). There is no m to this
                                                                                       erit

issue.




                                                     12
                                      E. Sufficiency of Evidence



        The defendant argues the evidence presented tothejury showed there w sufficient provocation on
                                                                            as

the decedent’s part to warrant the defendant acting in self-defense, and the evidence is insufficient as a matter

of law to warrant a guilty verdict of murder first degree. The State contends the facts in therecord in this case

fully support the guilty verdict of murder first degree.



        When reviewing a trial court’s judgment, the appellate court will not disturb a verdict of guilty unless

the facts in the record and inferences which may be drawn from it are insufficient as a matter of law for a

rational trier of fact to find the defendant guilty beyond a reasonable doubt. Tenn. R. App. P. 13 (e); State

v. Tuggle, 639 S.W.2d 913 (Tenn. 1982); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.), per.

app. denied (Tenn. 1996). Initially, a defendant is cloaked with the presumption of innocence. Tuggle,

639 S.W at 914. However, a jury conviction removes the presumption of innocence and replaces it with
       .2d

one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is

insufficient. Id. In determining the sufficiency of evidence, this Court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the

strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn

therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate court’s duty to affirm the

conviction if the evidence viewed under these standards was sufficient for any rational trier of fact to have

found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 2789, 61L.Ed.2d 560(1979); State v. Cazes, 875S.W 253, 259 (Tenn. 1994).
                                                                          .2d

This rule is applicable to findings of guilt predicated upon the direct evidence, circumstantial evidence, or a

combination of both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.

Crim. App.), per. app. denied (Tenn. 1990).



        At the time of this offense, October 9, 1995, the State was required to establish that murder first

degree was “a premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1).

Premeditation “is an act done after the exercise of reflectionand judgment.” Tenn. Code Ann. § 39-13-202(d).

Although the indictment alleged the additional elem of deliberation, thetrial court properly chargedthe jury
                                                   ent

to consider the elements of intent and premeditation based on the evidence. The defendant killed Calvin Hill

                                                       13
with two shots from a shotgun, one of which while the victim was on the ground. The defendant had an

ongoing feud with Hill, even to the extent of buying a shotgun. The defendant believed it necessary to kill Hill

before Hill killed him. On the night of the murder, the defendant secreted the shotgun in Dean’s car and upon

seeing Hill, thedefendant called himto Dean’scar. The defendant got out of the car with the shotgun and shot

Hill once in the head and then once in the chin and chest. The defendant fled to avoid prosecution. The jury

in this case heard the defendant’s theory that he acted in self-defense, which was rejected by the jury. Thus,

the jury resolves the weight and credibility to be given to each witness. Cabbage, 571 S.W.2d at 835.

Viewing this evidence in the light most favorable to the State, the evidence was sufficient for a rational trier of

fact to conclude beyond a reasonable doubt that the defendant intentionally killed Hill after reflection and

judgment. There is no merit to this issue.



      F. Failure to Give Jury Instruction on Cocaine-Induced Mental Condition



        The defendant contends the trial court erred in not giving a requested jury instruction approved in

State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). The State argues the trial court was correct

in denying the special jury instruction submitted by the defendant.



        Thedefendant insists the trial court’s instruction on intoxication, whiletechnically accurate as including

cocaine abuse, did not reflect the differences between the defendant’s use of alcohol and cocaine. Thus, the

trial court should have instructed the jury as to the separate issues which impaired the defendant’s capacity

to form intent, premeditation, and deliberation.



        A defendant has a constitutional right to a correct and complete charge of the law. State v. Teel,

793 S.W 236, 249 (Tenn. 1990); Phipps, 883 S.W.2d at 142. A trial judge should properly instruct the
       .2d

jury on the law governing issues raised by the evidence introduced at trial. State v. McAfee, 737 S.W.2d

304, 308 (Tenn. Crim. App. 1987). W the trial judge gives instructions that correctly, fully, and fairly set
                                   hen

forth the applicable law, it is not error to refuse to give a special requested instruction. State v. Bohanan,

745 S.W.2d 892, 897 (Tenn. Crim. App. 1987), per. app. denied (Tenn. 1988). We must reviewthe entire

charge and only invalidate it if, when read as a whole, it fails to fairly subm the legal issues or m
                                                                               it                    isleads the

jury as to the applicable law. Phipps, 883 S.W.2d at 142.

                                                       14
        Our review of the record indicates the defendant submitted a number of special requested jury

instructions. Apparently, the defendant submitted a special jury instruction, regarding his mental condition,

reflecting the holding in State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). However, the

defendant has failed to include this special instruction in the record for proper appellate review. Thetrial court

denied the special request on the basis the defense charge of intoxication sufficiently applied to both alcohol

and cocaine intoxication. We believe the defendant’s reliance on Phipps, supra, is misplaced. In Phipps,

883 S.W.2dat 149, thiscourt founderror in the trial court’s jury instructionprecludingthe jury fromconsidering

the expert testimony relating to the defendant’s mental state on the element of intent. That is not the facts in

this case. The defendant provided the jury with a significant quantity of evidence concerning the defendant’s

usage of alcohol and cocaine on October 9, 1995 to negate the element of an intentional killing of Calvin Hill.3

As part of the charge on intoxication as a defense, the trial court stated, “Intoxication means disturbance of

mental or physical capacity resulting from the introduction of any substance into the body.” W find the jury
                                                                                              e

instruction as a whole instructed the jury that evidence of intoxication could negate the requisite mental state.

There is no merit to this issue.



                                   G. Trial Court’s Failure to Give

            Requested Jury Instruction on Elements of Murder First Degree



        The defendant contends the trial court failed to give a special requested jury instruction to the effect

that once a homicide has been established it is presumed to be murder in the second degree. The State

argues that the jury instructions given to the jury clearly stated the applicable law.



        The defendant requested the trial court to charge the jury:


                 The law in Tennessee is that once a homicide has been established it is
                 presumed to be murder in the second degree. Accordingly, the State bears
                 the burden of proof on the elements of prem        editation and deliberation
                 sufficient to elevate the offense to murder first degree.




        3
         A review of the recordestablishes thedefendant forcibly arguedto thejury the amount of alcohol and
cocaine consum by the defendant on the date of the offense. Emphasis was placed on howsuch ingestion
                ed
could negate the defendant’s mens rea for the offense of several criminal homicides.

                                                       15
        The trial court declined to give this special request holding that the separate instructions on murder

first degree and murder second degree werethe appropriate procedure. The defendant puts great emphasis

on the ruling in State v. Brown, 836 S.W.2d 530 (Tenn. 1992), delineating the distinctionsbetween murder

first and murder second degree. We agree with the defendant that historically Tennessee lawhas recognized

that once a homicide has been established, it is presumed to be murder second degree. At the time of this

offense, the elem of deliberation was not an essential element of m
                 ent                                               urder first degree. At the time of this

offense, October 9, 1995, the State wasrequired toestablishthat murder first degreewas“a premeditated and

intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation “is an act done after the

exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d). Although the indictment alleged the

additional element of deliberation, the trial court properly charged the jury to consider the elements of intent

and premeditation based on the evidence. The jury instructions on first degree murder clearly set forth the

elements the State was required to prove beyond a reasonable doubt. W find any error inrefusing togive the
                                                                     e

special instruction as requested was clearly harmless error. State v. Antonio M. Byrd, Shelby County

No. 02C01-9508-CR-00232 (Tenn. Crim. App., Jackson, December 30, 1996). We find no merit to this issue.



        The trial court’s judgment is affirmed.




                                                   ________________________________________
                                                   L. T. LAFFERTY, SPECIAL JUDGE


CONCUR:




___________________________________
JOHN H. PEAY, JUDGE




___________________________________
DAVID G. HAYES, JUDGE




                                                      16
17
