         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 10, 2002

                    STATE OF TENNESSEE v. KELVIN HOOKS

                  Direct Appeal from the Criminal Court for Shelby County
                            No. 98-13866    Chris Craft, Judge



                      No. W2001-01516-CCA-R3-CD - November 1, 2002


A Shelby County jury convicted the defendant, Kelvin Hooks, of second degree murder and felony
murder. The trial court merged the two convictions and sentenced the defendant to life on the felony
murder conviction. In this appeal as of right, the defendant raises the following issues: (1) whether
the evidence was sufficient to support the convictions for second degree murder and felony murder;
(2) whether the state improperly questioned the defendant regarding his alibi after he withdrew a
Notice of Alibi; and (3) whether the trial court erred in refusing to instruct the jury on self-defense.
After reviewing the record, we affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and DAVID G.
HAYES, JJ., joined.

Marty B. McAfee, Memphis, Tennessee, for the appellant, Kelvin Hooks.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Glen C. Baity and Katrina Earley, Assistant
District Attorneys General, for the appellee, State of Tennessee.


                                              OPINION

       John Mason, the 71-year-old victim, operated a pawn shop in a house where he lived with
his grandson, Delmar Jones. James Patterson, a family friend, regularly brought customers to
Mason’s house. During the early hours of August 24, 1998, Patterson brought the defendant to
Mason’s house where the defendant attempted to cash a check. Mason refused to cash the check,
and Patterson and the defendant left.

       Patterson testified that approximately thirty minutes later, he, the defendant, and Darrell
Jennings returned to Mason’s house in a 1984 Buick Oldsmobile, which they had borrowed from
Gerald Jerry. The defendant and Jennings had clothing that they wanted to sell. Both Jones and
Patterson identified the defendant as a co-perpetrator and testified that when Jones asked Jennings
how much money he wanted for the clothes, the defendant and Jennings each produced a gun.

         While holding a nine millimeter revolver, the defendant told Mason and Jones to give him
their money. Mason stated he did not have any money. Mason then approached Jennings and took
his gun without a struggle. Patterson testified that Mason then shot Jennings, and the defendant shot
Mason three or four times. The three men fled, leaving the Buick parked near Mason’s house. Jones
testified that when he heard shots, he ran into the kitchen. Jones did not see who was shooting, but
he saw Mason fall on the floor. Mason died as a result of the gunshot wounds.

        The police officers apprehended Patterson at the scene of the shooting, and Patterson gave
a statement implicating Jennings and the defendant. The police also found the defendant’s
fingerprints on the Buick. Officers found two .38 casings, one .25 caliber casing, and four nine
millimeter casings at the scene of the shooting. Officers also found over $5,000 in cash in Mason’s
pockets. After the shooting, the defendant fled to Colorado and later to North Dakota, where he was
arrested.

       The defendant testified at trial and denied killing Mason. He further testified that he was not
present during the shooting. On cross-examination, when asked where he was on that date, the
defendant stated that he was likely at a house on Trigg Street selling drugs from 11:00 a.m. until
midnight. The defendant further testified that after midnight he likely went to either his father’s
house at 316 Cambridge Street or his mother’s house on Knight Arnold Road.

        The defendant was indicted for first degree murder in perpetration of a robbery and
premeditated first degree murder. The jury found the defendant guilty of murder in the perpetration
of a robbery and second degree murder, the latter being a lesser-included offense of premeditated
first degree murder. The trial court merged the second degree murder conviction into the felony
murder conviction and sentenced the defendant to life in the Department of Correction. This appeal
followed.


                            I. SUFFICIENCY OF THE EVIDENCE

      The defendant contends that the evidence was insufficient to support the second degree
murder conviction and the felony murder conviction. We disagree.

         This court gives considerable weight to the verdict of a jury in a criminal trial because the
jury, as the trier of fact, resolves all questions concerning the credibility of witnesses and the weight
and value of the evidence. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). Accordingly, the
state, as the prevailing party in the trial court, is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. State v. Williams, 657
S.W.2d 405, 410 (Tenn. 1983). Moreover, a jury conviction removes the presumption of the


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defendant's innocence and replaces it with a presumption of guilt, thus placing the burden on the
defendant to demonstrate why the evidence does not support the jury's findings. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). To this end, the defendant must establish that no reasonable trier of
fact could 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, 61 L. Ed. 2d 560 (1979); see Tenn. R. App. P.
13(e).

A. Second Degree Murder

        Although the second degree murder conviction was merged into the felony murder
conviction, we, nevertheless, address sufficiency relating to second degree murder. Second degree
murder is defined as an unlawful, “knowing killing of another. . . .” Tenn. Code Ann. §§ 39-13-201,
-210(a)(1). A person acts “knowingly” with respect to second degree murder when “the person is
aware that the conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b);
see State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000).

       In the present action, the defendant contends that the evidence was insufficient to support a
finding that the defendant’s actions were “knowing.” However, viewing the evidence in the light
most favorable to the state, we conclude otherwise.

         Delmar Jones testified that shortly after entering Mason’s home, the defendant produced a
gun and demanded all their money. Mason then took Jennings’ gun away from him. Patterson
testified that after the victim shot Jennings with his own gun, the defendant shot Mason three or four
times. The evidence was sufficient to establish that the defendant knowingly killed Mason. The
defendant’s argument is without merit.

B. Murder in Perpetration of Robbery

        Felony murder includes “[a] killing of another committed in the perpetration of or attempt
to perpetrate any. . . robbery. . . .” Tenn. Code Ann. § 39-13-202(a)(2). “Robbery” is defined as “the
intentional or knowing theft of property from the person of another by violence or putting the person
in fear.” Tenn. Code Ann. § 39-13-401(a).

        The defendant maintains that the evidence was insufficient to support a conviction for felony
murder because there is no evidence that the defendant, Jennings, or Patterson actually took anything
from Mason or Jones. In support of his argument, the defendant cites to the fact that the police
officers found over $5,000 in the victim’s pockets.

         The felony murder statute does not require the robbery actually be completed, but includes
the attempt to perpetrate the robbery. See Tenn. Code Ann. § 39-13-202(a)(2). This requirement
was satisfied by proof that the defendant, while holding a gun, demanded Mason and Jones give him
all their money. The evidence was sufficient to support a conviction for murder in the perpetration
of a robbery.


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                             II. WITHDRAWN NOTICE OF ALIBI

       The defendant contends that the prosecution improperly questioned him regarding
information contained in the notice of alibi, which he withdrew. We disagree.

        The propriety, scope, manner and control of the examination of witnesses is within the sound
discretion of the trial court. State v. Humphreys, 70 S.W.3d 752, 766-67 (Tenn. Crim. App. 2001).
Absent an abuse of discretion, we will not interfere with such rulings. State v. Harris, 839 S.W.2d
54, 72 (Tenn. 1992).

        Upon a written demand by the district attorney general, the defendant is required to serve a
notice of an intention to offer an alibi defense. Tenn. R. Crim. P. 12.1(a). If the defendant
subsequently withdraws the notice of an alibi defense, evidence of the notice or statements relating
to the notice are inadmissible in any proceeding against the defendant. Id. at (f).

        In the Notice of Alibi, the defendant maintained he was at 316 Cambridge Street with Gary
Hilliard when the shooting occurred. The defendant subsequently withdrew the Notice of Alibi.
This address was first mentioned by the defendant during cross-examination when the prosecution
asked him where he was living on the day the shooting occurred. The prosecution then asked the
defendant where he was on the day of the shooting. In view of the defendant’s testimony that he was
not present at the time of the crime, this question is clearly relevant. The defendant testified that he
was probably at a house on Trigg Street until midnight, and then he probably went to his father’s
house on Cambridge or his mother’s house on Knight Arnold to sleep.

        During the trial, the prosecution made no reference to Gary Hilliard or the defendant’s
withdrawn notice of alibi. Information regarding Cambridge Street was first mentioned by the
defendant as one of his places of residence. Therefore, we conclude the prosecution’s questions were
proper.


                                       III. SELF-DEFENSE

       Finally, the defendant contends that the trial court erred in refusing to charge the jury on self-
defense. We disagree.

        The trial judge has a duty to give a complete charge of the law applicable to the particular
facts of the case, including every issue of fact material to the defense if raised by the evidence. State
v. Sims, 45 S.W.3d 1, 9 (Tenn. 2001); see State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975).
In deciding whether a defense instruction is warranted, “the court must examine the evidence in the
light most favorable to the defendant to determine whether there is evidence that reasonable minds
could accept as to that defense.” Sims, 45 S.W.3d at 9. This court can find error only if, when read
as a whole, the charge fails to fairly submit the legal issues or misleads the jury as to the applicable
law. State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994).


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        Under the doctrine of self-defense, one is justified in using force against another “when and
to the degree the person reasonably believes the force is immediately necessary to protect against the
other’s use or attempted use of unlawful force. . . .” Tenn. Code Ann. § 39-11-611(a) (emphasis
added). In order for self-defense to be charged to the jury, it must be raised by the proof. Tenn.
Code Ann. § 39-11-203(c).

        Self-defense is not an available defense “if the person provoked the other individual’s use
or attempted use of unlawful force, unless:
        (1) The person abandons the encounter or clearly communicates to the other the
        intent to do so; and
        (2) The other nevertheless continues or attempts to use unlawful force against the
        person.”
Tenn. Code Ann. § 39-11-611(d); see Sims, 45 S.W.3d at 9. Therefore, self-defense is not an
available defense where the defendant provokes the initial use of force. State v. Inlow, 52 S.W.3d
101, 109 (Tenn. Crim. App. 2000). Furthermore, the other person’s use of force must be “unlawful.”
Tenn. Code Ann. § 39-11-611(a).

        In the present case, self-defense was not fairly raised by the proof at trial. The prosecution’s
theory of the case was that the defendant shot and killed Mason in the course of a robbery. The
defendant’s theory was that he did not shoot the victim because he was not present. Under the first
aggressor rule, self-defense is not available to a defendant who initiates the force. See Tenn. Code
Ann. § 39-11-611(d). The defendant was clearly the initial aggressor when he produced a gun and
demanded money. Before the victim shot Jennings, the defendant did not abandon the robbery, nor
did he communicate any intent to abandon the robbery. Furthermore, when the victim shot Jennings,
the victim was not exercising “unlawful” force; he was being robbed at gunpoint. Therefore, we
conclude that a jury charge on self-defense was not warranted.


                                           CONCLUSION

        In summary, we hold that the evidence was sufficient to support a conviction for second
degree murder and murder in perpetration of a robbery. The prosecution did not improperly question
the defendant regarding his alibi. Finally, the trial court did not err in refusing to charge the jury on
self-defense. The judgment of the trial court is affirmed.




                                                        ___________________________________
                                                        JOE G. RILEY, JUDGE




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