         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 14, 2006

            STATE OF TENNESSEE v. WALFRIDO L. RODRIGUEZ

                     Appeal from the Criminal Court for Davidson County
                        No. 2003-C-1613    Cheryl Blackburn, Judge



                      No. M2005-01351-CCA-R3-CD - Filed June 7, 2006


The defendant, Walfrido L. Rodriguez, appeals from his Davidson County Criminal Court jury
convictions of second degree murder and aggravated assault, claiming that the trial court erred by
instructing the jury to consider the charges sequentially, that the convicting evidence is insufficient,
and that the trial court erred in rejecting a request for a special jury instruction. We discern no
reversible error and affirm the convictions.

             Tenn. R. App. P. 3; Judgments of the Criminal Court are Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
and ROBERT W. WEDEMEYER , J., joined.

Ross E. Alderman, District Public Defender; and Jeffrey Devasher, Assistant District Public
Defender, for the Appellant, Walfrido L. Rodriquez.

Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Victor
S. Johnson, III, District Attorney General; and Robert McGuire, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                              OPINION

               The defendant’s trial for the first degree murder of Luis Negron Sierra and for the
aggravated assault of Abraham Torres featured little factual controversy. The defendant and victim
Sierra (hereinafter referred to as the victim) had been friends and coworkers. Mr. Torres is the
victim’s stepson and was 16 years old on April 3, 2003, the date of the victim’s homicide. The
victim was 24 years old on that date, and the defendant was 40 years old.

                The state theorized an intentional, premeditated killing of the victim based upon the
decision of Lillian Torres, the defendant’s girlfriend, to leave the defendant and reside with the
victim, his wife, and family and upon the victim’s intervention in an argument between Ms. Torres
and the defendant in January 2003. On April 3, a car driven somewhat erratically by David Noel
Ramos Gonzalez, an acquaintance of both the victim and the defendant, proceeded onto a park
playground near the victim’s apartment. The car stopped at a swing set where the victim and Mr.
Torres were playing with the victim’s toddler daughter. The defendant emerged from the passenger
side of the car, and according to Mr. Torres, the victim, who had no gun on his person, “put his
hands up in the air” in a gesture of “What’s up?” When the victim and the defendant were two or
three feet apart, the defendant shot two or three times. Mr. Torres testified the defendant pointed the
gun at him. Mr. Torres and the child fled, and the victim ran a few yards before collapsing with a
lethal wound to his lung and a vital blood vein and artery. The defendant returned to the car, and Mr.
Gonzalez drove away.

               By all accounts, the defendant surrendered to law enforcement officers several
minutes later. He walked to a sheriff’s department training center and stated that he wished to
surrender for shooting another man.

                At trial, the defendant testified that he shot the victim in self-defense. He testified
that only minor friction developed between him and the victim over the defendant’s January
argument with Lillian Torres and that the friction had been resolved. He believed, however, that the
victim developed animosity toward the defendant because of the victim’s ill feelings toward Mr.
Gonzalez. The defendant testified that the victim had hired Mr. Gonzalez to fix the victim’s car, but
the victim became angry when Mr. Gonzalez botched the repair job and damaged the vehicle’s
crankshaft. Sometime later, Mr. Gonzalez and his wife and child began residing with the defendant
in the defendant’s house. The defendant testified that the victim remained hostile toward Mr.
Gonzalez because he had not paid for a new crankshaft and that, at one point, the victim asked the
defendant to let him come to the defendant’s house one night and take the Gonzalez family “away.”
The defendant testified that he refused and ordered the victim out of his house. The defendant said
that, although he and the victim remained friends after this incident, they were never again close.

                 One morning, near the first of April, the defendant discovered that someone had
broken out his car windows the preceding night. The defendant suspected the victim because he
found part of a golf club that he recognized as belonging to Abraham Torres or one of his friends.
By this time, a man named Juan Arredonda Buenida was residing in the defendant’s house, and the
defendant asked Mr. Buenida to take the car to a car wash to clean it up. The defendant testified that
Mr. Buenida, who was at the car wash, called the defendant and told him that the victim and his sons
had accosted him with a gun, beat him, and damaged the defendant’s car. The defendant testified
that one of his car doors had been bent backwards and sprung. He testified that he became fearful
after this incident and purchased a handgun from a friend.

                 The defendant testified that, in the next few days, he became more nervous and had
difficulty sleeping. He thought about going to see the victim to resolve the friction. On April 3, he
rode around with Mr. Gonzalez. Mr. Gonzalez encouraged the defendant to see the victim before
Mr. Gonzalez left for work; otherwise, Mr. Gonzalez could not take the defendant to see the victim
until late that night. Mr. Gonzalez insisted that the defendant take the handgun, and although the
defendant refused, Mr. Gonazlez went into the house and obtained the gun.


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               The men stopped at a flea market on the way to the victim’s apartment because the
defendant wanted to buy a rug. Instead, he bought a straight razor because it was a bargain and
because he used a straight razor for shaving. When they arrived at the victim’s neighborhood, Mr.
Gonzalez saw the victim at the swing set in the park and drove erratically in that direction. The
defendant testified that when he got out of the car, the victim came toward him taking long steps,
making “big gestures,” and describing the defendant in profane terms. As the victim approached,
the defendant saw that the victim had his hand inside his shirt, and Mr. Gonzalez yelled that the
victim had a gun. The defendant testified that he retreated to get in the car and leave, but Mr.
Gonzalez “stretched out” the gun to him and said, “It’s ready.” When the defendant saw the victim
nearly upon him, he fired three or four times. The victim and Mr. Torres ran, and the defendant got
back in the car, thinking that he had not hit the victim. As Mr. Gonzalez was driving away, the
defendant saw the victim fall to the ground and testified that, then, “[t]he whole world caved in on
me.” Several minutes later, despite Mr. Gonzalez’s objections, the defendant surrendered to the
police.

                Mr. Buenida testified in the defendant’s behalf about being assaulted at the car wash.
He testified that when he got out of the defendant’s car at the car wash, two men accosted and pistol-
whipped him. Mr. Buenida heard the victim say, “It’s not him” and then saw the victim sitting
beside them in his car. Mr. Buenida essentially opined that, despite his being a much smaller man
than the defendant, the victim and his associates could have mistaken him for the defendant because
Mr. Buenida wore the defendant’s jacket.

               The jury convicted the defendant of the second degree murder of the victim and of
the aggravated assault of Mr. Torres.

                   I. Jury Instruction for Sequential Consideration of Charged Offenses

                In his first appellate issue, the defendant claims that he was denied his right to a jury
trial when the trial court effectively precluded the jury’s consideration of the lesser included offense
of voluntary manslaughter.1 Specifically, the defendant challenges the trial court’s instruction that


        1
            The trial court instructed the jury:

                    W hen you begin your deliberations on each count of the indictment you must first
                    deliberate on the indicted or charged offenses. If you find the defendant guilty of
                    the indicted offense you may stop your deliberations as to that count of the
                    indictment. You would then begin your deliberations as to the remaining counts of
                    the indictment. If you find the defendant not guilty of the indicted offense in each
                    count or you have a reasonable doubt, then you must find the defendant not guilty
                    of the indicted offense and next consider the lesser included offense in each count
                    as set out below and in your verdict form.

                              . . . If[, after considering second degree murder,] you find the defendant
                    guilty of second degree murder . . . you may stop your deliberations as to Count
                                                                                                           (continued...)

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the jury should consider the grades of homicide in descending order and stop its deliberation once
it reached a unanimous verdict on a particular grade. In the present case, the jury apparently rejected
first degree murder and then considered – and found the defendant guilty of – second degree murder
without considering the defendant’s liability for voluntary manslaughter.

                The defendant concedes that, in Tennessee, the general rule is that “sequential” jury
instructions are proper. We agree on this point. See, e.g., State v. Mann, 959 S.W.2d 503, 521
(Tenn. 1997); State v. Raines, 882 S.W.2d 376, 382 (Tenn. Crim. App. 1994). He maintains,
however, that an exception to the general rule should be applied to recognize the unique relationship
between second degree murder and voluntary manslaughter.

                Second degree murder is the knowing killing of another. Tenn. Code Ann. § 39-13-
210(a)(1) (2003). Voluntary manslaughter is committed by one who intentionally or knowingly kills
another “in a state of passion produced by adequate provocation sufficient to lead a reasonable
person to act in an irrational manner.” Id. § 39-13-211(a). “The danger arising from instructing the
jury that it must consider and acquit for second-degree murder before considering voluntary
manslaughter,” argues the defendant in his brief, “is that the jury is barred from considering the
significance of passion relative to the issue of second-degree murder versus voluntary manslaughter.”


                The defendant further concedes that, in a similar case, this court recently applied the
general rule approving the use of a sequential instruction for the jury’s consideration of second
degree murder and voluntary homicide. See State v. Earnest Gwen Humphrey, No. M2003-01489-
CCA-R3-CD, slip op. at 16 (Tenn. Crim. App., Nashville, Aug. 24, 2005), perm. app. denied (Tenn.
2006). The defendant relies, however, upon Judge Joseph M. Tipton’s concurring opinion in Earnest
Gwen Humphrey, in which Judge Tipton first noted that the elements of second degree murder must
be proven as a predicate to a finding of guilty of voluntary manslaughter, id., slip op. at 1 (Tipton,
J., concurring), and then commented,

               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


                        1
                        (...continued)
               One and return your verdict . . . .

                        You must first deliberate on the greater offense as to each count and reach
               a verdict as to the greater offense before you move to the next lesser included
               offense within that particular count. If you reach a verdict as to the guilt of the
               defendant as to a greater offense you may stop your deliberations as to that count.




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                 murder should also advise the jury relative to the issue of passion
                 upon adequate provocation relative to voluntary manslaughter[,]

id., slip op. at 1-2.

Judge Tipton opined that the problem would be resolved when a trial court instructs the jury, via
Tennessee Pattern Instruction – Criminal 7.05(a), that “[t]he 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.” See T.P.I. – Criminal 7.05(a) (8th ed. 2004).

               The state counters that even Judge Tipton, who concurred in affirming the conviction
in Earnest Gwen Humphrey, agreed that binding precedent allows the use of an instruction for
sequential consideration of the homicide grades.

               The issue gives us pause because we recognize the potential as did Judge Tipton, that
a jury deliberating sequentially on second degree murder might disregard the effect of passion
resulting from adequate provocation – even when the record establishes a basis for the claim. We
conclude, however, that even if a special rule should be devised for ordering the jury’s deliberations
on second degree murder and voluntary manslaughter, the present case does not compel relief.

                                      II. Evidence Sufficiency

                In his next issue, the defendant challenges the sufficiency of the evidence convicting
him of second degree murder. In his brief, the defendant presents an argument suggestive of
provocation via mutual combat, arguing that given the victim’s aggression on April 3 and “[g]iven
the defendant was aware of the victim’s history of armed violence, . . . [the victim’s] conduct is
precisely the type of provocation contemplated in the definition of voluntary manslaughter.”

                  When an accused challenges the sufficiency of the evidence, the appellate court
considers the evidence in the light most favorable to the prosecution to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979),
regardless whether the conviction is based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence, State v. Winters, 137 S.W.3d 641, 654-55 (Tenn.
Crim. App. 2003). The appellate court neither re-weighs the evidence nor substitutes its inferences
for those drawn by the trier of fact. Id. at 655. The credibility of the witnesses, the weight and value
of the evidence, and all other factual issues raised by the evidence are resolved by the trier of fact.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The appellate court affords the State of
Tennessee the strongest legitimate view of the evidence contained in the record as well as all
reasonable and legitimate inferences which may be drawn from the evidence. Id.




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              As we mentioned in the preceding section of this opinion, we cannot tell whether the
defendant advanced at trial a theory of voluntary manslaughter via imperfect self-defense or mutual
combat. Notwithstanding, our task in reviewing the convicting evidence is merely to determine
whether the evidence supports the conviction of second degree murder. We conclude that the
evidence was sufficient to support the jury’s determination that the defendant killed the victim
knowingly by firing multiple shots from a pistol at close range. Thus, we do not disturb the jury’s
verdict.

                                   III. Denial of Instruction Request

                In his last issue, the defendant complains that the trial court erred in denying his
request for the following special jury instruction:

               You may consider whether or not a person voluntarily surrendered to
               the police after the commission of a crime, or after he was accused of
               a crime, as a circumstance in this case. The presence of flight may
               tend to establish a consciousness of guilt but this is not sufficient in
               itself to establish guilt. However, on the other hand, voluntarily
               surrendering to the police may tend to show that the defendant did not
               have a consciousness of guilt and this fact alone may be sufficient to
               create a reasonable doubt as to the defendant’s guilt. The weight and
               significance of these circumstances, if any, are matters for your
               determination.

The defendant posits that if “flight creates an inference of guilt under the law, [see, e.g., State v.
Kendricks, 947 S.W.2d 875, 885-86 (Tenn. Crim. App. 1996),] then the converse should also be
true.”

                The defendant’s proposition that the trial court erred in rejecting the requested
instruction is unsupported by citation to any authority, and for this reason the issue is waived. See
R. Tenn. Ct. Crim. App. 10(b). In this case, the lack of citation to authority is not just a procedural
lapse. The defendant claims that voluntary surrender as a marker of innocence is or should be a facet
of Tennessee law; the lack of authority for this position is telling.

                Certainly, a trial court has the affirmative duty to instruct the jury on every issue
raised by the proof. See generally Poe v. State, 370 S.W.2d 488, 489 (Tenn. 1963); Taylor v. State,
212 Tenn. 187, 369 S.W.2d 385, 386 (1963). In the present case, we have reviewed the trial court’s
jury instructions and conclude that the court fully and fairly explained the law applicable to the
issues at hand.

                                       IV. Conclusion

               Perceiving no reversible error, we affirm the judgments of the trial court.


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      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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