         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      May 14, 2003 Session

              STATE OF TENNESSEE v. WILLIAM E. McCARVER

                 Direct Appeal from the Circuit Court for Sequatchie County
                            No. 3608     Buddy D. Perry, Judge



                   No. M2002-00123-CCA-R3-CD - Filed September 9, 2003


The defendant was convicted by a Sequatchie County Circuit Court jury of first degree premeditated
murder for shooting his wife’s boyfriend to death outside a gasoline station and convenience store.
Because the State did not seek either the death penalty or life without parole, the trial court
automatically sentenced him to life imprisonment in the Department of Correction. In this appeal
as of right, the defendant raises essentially three issues: (1) whether the evidence was sufficient to
support his conviction; (2) whether the trial court erred in admitting into evidence enhanced versions
of the store surveillance videotape of the shooting; and (3) whether the trial court erred in its jury
instructions on intentionally and knowingly. Following our review, we conclude that the evidence
is sufficient to sustain the defendant’s conviction for premeditated murder, the trial court did not err
in admitting the videotapes, and any deficiency in the jury instructions constituted harmless error.
Accordingly, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and DAVID H.
WELLES, JJ., joined.

Leonard “Mike” Caputo, Chattanooga, Tennessee (on appeal); Stephen T. Greer and Thomas A.
Greer, Dunlap, Tennessee (at trial), for the appellant, William E. McCarver.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; J.
Michael Taylor, District Attorney General; and Thomas D. Hembree, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                               FACTS

     At approximately 10:20 a.m. on Wednesday, August 14, 1996, the defendant, William E.
McCarver, shot and killed his estranged wife’s boyfriend, Ricky Jason Harvey, as the victim was
sitting in his pickup truck at the Golden Gallon gasoline station/convenience store in Dunlap waiting
for his eight-year-old nephew to return to the vehicle from the store. Following the shooting, the
defendant immediately turned himself in at the sheriff’s department, stating as he did so that he shot
the victim in self-defense after the victim pulled a knife on him. However, although two knives were
found on the floorboard of the victim’s truck, the defendant was subsequently charged with the
premeditated murder of the victim. At trial, the defendant did not dispute that he shot the victim,
but instead attempted to show that the shooting occurred in self-defense and/or his medical problems,
particularly those associated with the triple heart bypass surgery he had undergone some seven weeks
before the shooting, prevented him from forming the requisite intent for a first degree premeditated
killing.

                                            State’s Proof

        The State’s first witness at the defendant’s January 21-24, 1998, trial was the victim’s sister,
Jewell Steele, whose testimony was as follows: The victim was thirty-three years old at the time of
his death and employed as a truck driver at RPS in Chattanooga, but had been off work and receiving
workers’ compensation for about a month due to an injury to his right arm, which required him to
wear a sling. The victim was right-handed. He lived in a double-wide trailer on Harvey Road,
located in an area in which several family members, including Steele and her parents, had separate
homes. The victim owned three vehicles: a red Chevrolet Silverado pickup truck, the vehicle he
normally drove; a blue Chevrolet Chevelle, which he had allowed Steele’s older son to borrow; and
a four-wheel drive, multi-colored Ford pickup truck that “set up high” off the ground, which he used
to haul wood and “go mud riding.” The victim had been seeing the defendant’s estranged wife,
Delilah McCarver, for about a year and a half and, six to eight months before his death, had allowed
her to move into his home, where they openly lived together.

        Steele further testified that approximately four weeks before the shooting, she confronted the
defendant outside a restaurant in Dunlap to ask why he had put sugar in the gas tank of the victim’s
Chevelle, and to tell him not to bother her sixteen-year-old son, who had borrowed the car from the
victim. She said the defendant acted as if he did not know what she was talking about and accused
her of threatening him. However, he also told her during the course of the conversation that he was
not through with the victim yet.

        Steele stated that the victim owned a pistol and a shotgun, but she had never seen him carry
either in his vehicles. The victim also owned a nonfolding knife which he kept in a scabbard in his
glove box. He was not in the habit of carrying a pocketknife or any other kind of knife on his person.
The victim’s knife was found in its usual place after the shooting, and Steele did not recognize either
of the two knives that had been recovered from the truck’s floorboard.

        Steele acknowledged having reported to the victim the defendant’s statement about not being
through with the victim yet. She further acknowledged the victim’s reaction had been to laugh and
boast that he was not afraid of the defendant and would meet him wherever the defendant wanted
him to. Steele said her confrontation with the defendant outside the restaurant occurred in the middle


                                                  -2-
of July. She had heard the defendant had undergone some kind of surgery shortly before the
confrontation occurred, but had not known he had had open-heart surgery on June 24. She testified
the victim owned a machete, which he usually kept in a toolbox in the back of his Ford pickup truck,
but her older son had recently placed it under the vehicle’s seat after using it to cut weeds. She said
the victim was no longer wearing his arm in a sling at the time of the shooting.

        Raymond Stewart, a mechanic, testified he had a telephone conversation with the victim
about a transmission on the evening of August 13, 1996. Stewart’s wife, Vicky Stewart, testified
that the victim, who was driving a large, rough-looking truck and accompanied by a child, dropped
a transmission off at her house at approximately 10:00 a.m. on August 14, 1996, at a time when her
husband was away from home. She agreed on cross-examination that the transmission looked heavy
and that transmissions are generally “hard to move around.”

        Jeff Turner testified he operated J & J Complete Car Care in Dunlap, which was located
approximately three-quarters of a mile from the Golden Gallon on Highway 127. He was acquainted
with both the victim and the defendant and with their respective vehicles. The defendant drove a
distinctive, 1996 or 1997 model, white Ford extended cab pickup truck. According to Turner, in one
of those years, Ford dramatically changed the design on their pickups, and he knew of only two such
trucks in Dunlap at the time. He said he was able to distinguish the defendant’s truck by the bug
deflector across the hood and the front tag which read “Southern Exposure.”1

         Turner testified the victim pulled into his shop on the morning of August 14, 1996, to discuss
some automotive repairs he needed on his Chevrolet pickup. The victim was driving his blue Ford
four-wheel drive pickup truck at the time and was accompanied by a young boy. During his ten-to
fifteen-minute conversation with the victim, Turner saw the defendant, driving his white Ford pickup
truck, pull off the highway behind the victim’s vehicle and sit for a minute before pulling back out
onto the highway and heading north in the direction of the Golden Gallon. The defendant was
wearing a cowboy hat, which Turner believed was dark-colored. Approximately four or five minutes
later, the victim left, also driving north. Turner said the victim did not see the defendant, and he did
not inform the victim of the defendant’s presence behind his vehicle. Five to ten minutes after the
victim left his shop, Turner saw police cars and an ambulance “go flying by” his business and later
learned the victim had been killed.

        Turner acknowledged on cross-examination his testimony at the bond hearing had been that
the defendant was stopped for only a second behind the victim’s vehicle. He conceded traffic might
have been busier than usual that day because of the start of the Highway 127 flea market, which
brought in people from “Tennessee, Alabama, Georgia, Kentucky,” and elsewhere. He further
acknowledged he had not been in a position to see a “Southern Exposure” tag on the front of the
white Ford pickup, and had told defense counsel at the bond hearing he was not sure it was the
defendant he had seen driving the vehicle. He testified on redirect, however, that he remembered


         1
           Steele also testified she was able to recognize the defendant’s white Fo rd pickup by its “Southern Exposure”
tag, the na me o f a band in which the d efendant’s son played .

                                                          -3-
the vehicle’s having had a bug deflector across the hood. During recross-examination, which
occurred at a later point during the presentation of the State’s case in chief, Turner testified that a
few minutes after the victim left his shop heading north, he saw another white Ford truck that looked
like the defendant’s pass his shop, also heading north on Highway 127.

        Denise Wiliford testified she was working as a cashier at the B Quick Market on Highway
111 in August of 1996, and knew the defendant as a regular customer. On the morning of August
14, 1996, the defendant came to the store in a white Ford pickup truck and purchased 9.5 gallons of
gasoline, which he paid for with his Texaco credit card. Wiliford identified the credit card receipt
of the defendant’s purchase, which reflected that the purchase was made at 10:16 a.m. She testified
she did not know if the credit card machine was calibrated for Eastern or Central Time. She said that
sometime after the defendant left the store, someone came into the market to tell her there had been
a shooting at the Golden Gallon.

        Deanna Sims testified she was the manager of the Golden Gallon service station and
convenience store on August 14, 1996, and knew the defendant. She said she was driving through
town that morning on her way to pick up a deposit receipt from the bank when she saw the
defendant, who was wearing his usual cowboy hat, driving north toward the Golden Gallon in his
white Ford pickup truck with its “Southern Exposure” tag. When she returned to the Golden Gallon,
the defendant was sitting in his truck parked in the third or fourth parking space in front of the store
on the left-hand side, near the propane tanks and diesel pumps. After she had gone inside to the cash
register area at the front of the store, Sims saw the defendant back out of his parking spot and pull
to pump four at island two, with his truck facing the road. She saw the defendant’s door open and
assumed he was getting gasoline. At the same time, she noticed a multi-colored, four-wheel drive
truck that “stood up off the ground” pulled up to the other side of the same island, at pump three.
Between two and five minutes later, Sims was walking from her office toward the front of the store
when she heard “two loud booms” in quick succession, coming from outside the store. At that point,
“everything sort of went crazy,” with one or two people coming into the store and instructing her to
call 9-1-1 because someone had been shot.

         Sims testified the store had two surveillance cameras, one of which was directed down an
aisle toward the front of the store, and the other of which was directed at the front door, but also
recorded a portion of the parking lot and gas pump areas outside. Instead of two separate videotapes,
the images from the cameras were recorded on a single videotape which showed each separate view
in a split screen format. Sims identified the original videotape recorded by the store’s surveillance
cameras, which she said she had turned over to Investigator Joe Nipper of the Sequatchie County
Sheriff’s Department. The videotape was subsequently admitted as an exhibit to her testimony and
marked as Exhibit 5.

       Marian Lance testified she was working as a cashier at the Golden Gallon on August 14,
1996. As she was busy at the cash register that morning, she heard a loud bang, looked outside, and
saw a man with white hair and a yellow cowboy hat walk in between two gas pumps to a multi-
colored truck parked at pump three and reach his arm almost inside the vehicle. At that point, she


                                                  -4-
heard a second “bang” and saw the flash of a person inside the vehicle sliding down out of her view
behind the dashboard. The man in the cowboy hat then walked back to his white truck and got
inside. Next, she noticed a little boy walk to the multi-colored truck, open the door, jump
backwards, and begin screaming. As she was going outside to bring the boy into the store, she heard
people shouting, “There he goes. There he goes,” and looked up to see the white truck headed
toward town.

        Michael Scoggins testified he was pumping gas at the Golden Gallon when he noticed the
victim’s four-wheel drive vehicle parked at a gas pump one or two islands over. As he looked at the
vehicle, he saw the defendant, whom he described as a man wearing a white cowboy hat, drive up
to the pump on the opposite side of the same island at which the victim’s vehicle was parked.
Scoggins then saw the victim exit the store and walk to his vehicle. The defendant walked to the
island and said something Scoggins could not make out, followed by the name “Harvey.” Five or
six seconds later, Scoggins heard a gunshot. Next, he saw the defendant step up onto the island
between the gas pumps and lean toward the victim’s vehicle, followed by the sound of another shot.
Scoggins estimated the second shot occurred approximately a minute and a half after the first shot.

        Scoggins testified he then saw the defendant return to his truck, place something under the
seat, get inside, and drive toward town. He said that after he had recorded all but the last letter of
the defendant’s license plate, he ran to the victim’s vehicle, where he saw immediately that it was
too late to help the victim. According to his testimony, the victim was lying on his right side on the
seat with his right hand in the floorboard and a closed lock-blade knife at his fingertips.2 Somewhere
during that initial interval, as he and his brother-in-law were checking on the victim’s condition, he
saw a small boy come to the passenger side of the vehicle, look in the open door, and begin
screaming.

        Scoggins testified on cross-examination that the second shot occurred only a few seconds
after the first shot, rather than a minute and a half later; the defendant left not long after the second
shot was fired; he did not know if the victim’s passenger door was open or closed at the time of the
shooting; and he could not tell whether it was the defendant or the victim who uttered the
unintelligible word he heard before the defendant said “Harvey.”

       Scoggins’ sister, Tina Sutherland, testified she was inside the store waiting to pay for
gasoline when she heard a loud noise like the sound of a car backfiring, followed a few seconds later
by another similar sound. Looking outside, she saw her husband getting out of their car with an
expression on his face which made her realize something was wrong. When she went to the door,
her husband yelled that someone had been shot. She then ran to one of the pump islands, grabbed
some paper towels, and ran to the victim’s vehicle, where her husband informed her there was no
need to attempt CPR. As she was turning away from the vehicle, she noticed a small boy crying.
She and another person took the boy into the store, and she telephoned his mother.



       2
           Although Scoggins testified that the knife was closed, crime scene p hotograp hs show that it was, in fact, open.

                                                            -5-
        Tina Sutherland’s husband, Jeff Sutherland, testified he was waiting in the car with their four
children while his brother-in-law pumped gasoline into their vehicle. As he sat there, he saw the
victim, who was carrying a sack, walk from the store to his vehicle and start to get in. At about the
same time, the defendant pulled up to the other side of the island in his white truck, got out, and
started walking toward the front of his truck. Next, Sutherland heard the sound of a gunshot. When
he looked over, he saw the defendant, who appeared to be standing on the island, lean over into the
victim’s truck and heard a second gunshot. The defendant then returned to his vehicle, appeared to
put something “up in his truck,” got in, and unhurriedly drove out of the parking lot, headed toward
town.

        Sutherland testified he did not recall hearing any words exchanged between the defendant
and the victim. He said he did not know if the defendant left his truck running when he got out and
walked to the victim’s vehicle, but he could not remember hearing the sound of the defendant’s truck
engine starting when the defendant got back inside it after the shooting. Sutherland said he believed
he was out of his car and moving toward the victim’s vehicle when he saw a small boy walking
toward the vehicle from the store. Although he was not positive, he thought the child opened the
passenger door of the vehicle and then began screaming, “Uncle, uncle.” Sutherland testified it was
obvious the victim was dead. On cross-examination, Sutherland acknowledged there was only a
slight pause between the two gunshots and that the defendant walked back to his vehicle immediately
after the second shot, got in, and left.

        The victim’s ten-year-old nephew, Jason Steele, testified he was eight years old at the time
of the shooting. He said he rode with his uncle to town that morning where his uncle stopped at
several places, including “some man’s house . . . [t]o drop off something,” the bank, “a muffler
place,” and a “flea market” or “yard sale” next to the Golden Gallon, before driving to the Golden
Gallon to pump some gas. After his uncle finished pumping the gas, Jason accompanied him inside
the store, got a “Sundrop,” which he handed to his uncle, and then went to the bathroom while his
uncle went to the cash register. Because he did not see his uncle inside the store when he came out
of the bathroom, he started outside. However, before he went out the door, he heard two loud noises
outside that occurred close together, which he described as “[b]oom and then boom.”

        The witness further testified he walked from the store to the driver’s side of his uncle’s truck,
where the door was open. There, he saw his uncle lying down and a man wearing a hat climbing out
of the cab. Jason said the man then walked between the gas pumps and disappeared from his view.
At that point, Jason walked around to the passenger side of his uncle’s truck, stood on tiptoes, and
reached up to open the passenger side door. When he did so, he saw blood and began crying.
Afterwards, a woman took him back inside the store and someone telephoned his mother. Jason said
he did not see his uncle with any guns or knives that morning and did not see any in the truck. On
cross-examination, he testified he had seen his uncle with a machete in the past, and that he did not
look under or behind the seat of the truck when he got in it that morning. He also admitted it was
hard for him to remember what happened that day.




                                                  -6-
        The next witness’s testimony was admitted by stipulation, with the parties agreeing that had
Rose Troglin testified, she would have stated the following. She and her husband were selling work
clothes next to the Golden Gallon on August 14, 1996, as part of the Highway 127 sale. A man she
did not know stopped and bought five pairs of pants and three shirts, and then left and pulled into
the Golden Gallon. Five minutes later, she heard a shot and looked toward the Golden Gallon. Four
or five seconds later, she heard a second shot and saw the glass shatter and the man fall. A white
truck was on its way out of the station, but she did not know if it was involved in the shooting.

       Roger Snyder, a patrolman with the City of Dunlap Police Department, testified he was
dispatched to the shooting at 10:23 a.m. He was the first officer on the scene, arriving at 10:26 a.m.,
and immediately secured the crime scene as the ambulance crew began attending to the victim.

        Sequatchie County Sheriff’s Department Investigator Joe Nipper testified he found the victim
lying on his right arm and right chest in the seat of his vehicle, with his head away from the steering
wheel and both hands extended. Several items were in the truck: a sack containing work clothes
and another sack containing a six-pack of beer with one missing bottle, which were found on the
passenger’s side floorboard; the missing bottle of beer and a soft drink in a clear bottle which were
found under the victim’s body after he was removed from the vehicle; two knives which were found
on the floorboard; and a machete which was found underneath the vehicle’s seat, with the handle
visible from the driver’s side of the vehicle. One of the two knives found on the floorboard, a two-
bladed knife with one of the blades open, was lying at the victim’s fingertips on the transmission
hump of the vehicle. The other knife, which had a large blade that did not close, was lying on the
floorboard under the steering wheel. Investigator Nipper identified the videotape made from the
store’s surveillance camera, which he testified he obtained from store manager Deanna Sims and
subsequently turned over to Larry Davis of the Tennessee Bureau of Investigation (“TBI”) for further
processing. He also identified the defendant’s six-shot, Ruger .357 magnum single-action pistol,
which he said he received, along with two spent cartridges and four live rounds, from Marilyn Shaw
of the Sequatchie County Sheriff’s Department. On cross-examination, Investigator Nipper
acknowledged the defendant cried several times and appeared to be upset during his initial
conversation with him at the sheriff’s department, which occurred early in the afternoon on the day
of the shooting.

        Dr. Charles Warren Harlan, the pathologist who performed the autopsy of the victim’s body,
testified he found three gunshot wounds to the victim’s body: an entry and an exit wound to the
victim’s head caused by a bullet which entered above and behind the victim’s left ear, passed through
his brain, and exited above and in front of his right ear; and one wound to the victim’s chest and
abdomen caused by a bullet which entered in the left anterior chest region, passed through the
victim’s heart and liver, and was recovered from the victim’s right posterior chest wall. Either of
the wounds, alone, would have been fatal to the victim, and Dr. Harlan was unable to determine from
the autopsy which wound was inflicted first. The absence of any powder stippling around either
wound indicated that both shots were fired from a distance of greater than twenty-four inches. No
alcohol or drugs were found in the victim’s blood or urine.



                                                 -7-
       TBI Agent Steve Scott, an expert in firearms identification and examination, testified he
concluded from his analysis of the gunshot residue on the victim’s shirt that the muzzle of the
defendant’s gun was between twenty-four and forty-eight inches from the victim’s shirt when the
gunshot to the victim’s chest was fired. He further testified that the defendant’s gun was a single-
action Ruger Blackhawk .357 caliber revolver, which required the hammer to be manually cocked
for each shot to be fired.

        TBI Special Agent Forensic Scientist Oakley W. McKinney, an expert in fingerprint
identification, testified he was unable to detect any latent prints from either of the knives recovered
from the floorboard of the victim’s truck, and was unable to make a positive identification of a latent
print that had been lifted from the vehicle itself.

        Marilyn Shaw testified she was a bookkeeper and dispatcher with the Sequatchie County
Sheriff’s Department, and was working on the morning of August 14, 1996. Five to ten minutes
after the dispatches directing emergency workers to the Golden Gallon went out, the defendant and
his uncle, David McCarver, came into the sheriff’s department. When she asked if she could help
them, the defendant looked at her and said, “I am the one that did the shooting. I came to turn myself
in. It was self-defense. He pulled a knife.” David McCarver then handed her the defendant’s pistol.
Shaw testified the defendant was wearing a “beige white” cowboy hat at the time and seemed “very
calm.”

         TBI Special Agent Larry Davis testified he received the store surveillance videotape of the
shooting, previously identified and marked as Exhibit 5, from Investigator Joe Nipper. After
viewing it and realizing that the action was too fast and jerky, he took the videotape to Will Walker,
an employee of the Nonprint Services Department of Dupont Library at the University of the South
in Sewanee, and asked him to slow the tape down. Walker complied, creating a copy of the
surveillance videotape that contained three versions of the incident: the original fast action recorded
by the store’s surveillance cameras, a slowed-down version, and a yet slower version.3 Agent Davis
testified that nothing was added or deleted from the store’s surveillance tape and that the only change
Walker made was to slow the action down. He identified a copy of the videotape created by Walker,
which was subsequently admitted as Exhibit 27 and played before the jury.

        Agent Davis further testified he later took the same original store surveillance tape to Tom
Edwards of TREC, Incorporated in Huntsville, Alabama, to have him enhance pertinent portions of
the tape, including the gas pump area where the shooting occurred. After he identified the enhanced
version of the videotape created by Edwards, it was marked as Exhibit 28 for identification only.

      Thomas R. Edwards testified he had a doctorate in physics and was the chief scientist for
TREC, Incorporated, a company specializing in forensic video image analysis. He said he had, at


         3
            Counsel informed the court during pretrial argum ents over the admissibility of the enhanced videotapes that
the first slowed dow n versio n show ed the action in approximate “real-time,” whereas the second slowed down version
showed it in slow motion. From our viewing of the tape, this appears to be an accurate description.

                                                          -8-
Agent Davis’ request, created an enhanced version of the store’s surveillance videotape in which he
had tried to make the images in the areas of interest pointed out to him by Agent Davis bigger, better,
and brighter, so that they would be easier to view and understand. After explaining at some length
and in detail the processes he had employed in creating the tape, Dr. Edwards identified Exhibit 28,
which had previously been marked for identification only, as the videotape he had made. The tape
was then admitted into evidence and played before the jury. At the conclusion of its showing,
however, Dr. Edwards announced to the trial court that it was not the videotape he had made. The
jury was excused from the courtroom, and the trial court granted a short recess for counsel to
investigate what had occurred. When the trial resumed, the district attorney general explained to the
trial court, out of the presence of the jury, what had transpired:

                        Your Honor, apparently what has happened, I had two copies
                of the three segment tape that Larry Davis made at Dupont Library,
                and apparently when I introduced that I inadvertently picked up the
                wrong tape and handed it to Dr. Edwards. The tape that he actually
                made, and which the Court has seen, was in a compartment in the trial
                box, and I found it and it has his case number and date and all that.
                Dr. Edwards looked at the tape on the video, and it has his front piece
                on it and said, Yes, this is the tape I created. So what has happened
                is we have inadvertently, I think, played the tape that Larry Davis had
                made twice.

        After it was established that Exhibit 28 was, in fact, a copy of Exhibit 27, defense counsel
moved for a mistrial, arguing that by showing the same videotape twice, undue emphasis had been
placed on the videotape, thereby prejudicing the defendant. The trial court denied the motion, opting
instead to give a curative instruction to the jury to explain the mistake. The trial court also overruled
defense counsel’s renewed objection to the introduction of the enhanced version of the videotape
created by Dr. Edwards. Thereafter, Dr. Edwards identified his enhanced version of the tape, which
was admitted as Exhibit 29 and played before the jury. On cross-examination, Dr. Edwards
acknowledged law enforcement officers had pointed out the areas of interest on the videotape. He
testified he and his staff, in conjunction with the officers, had exercised their judgment in
determining which frames to enhance, as well as which frames to delete from his version of the
videotape.

                                            Defense Proof

       The defendant’s first witness was Mina Phelps, who testified she and her sister drove to the
defendant’s house on the afternoon of August 13, 1996, where they spoke with the defendant’s son
about whether the defendant, who owned a nursery, would be interested in performing some
landscaping at their home. The next day, August 14, the defendant came to her house at about 9:00
a.m. and spent approximately an hour inspecting the grounds and discussing with her the work she
wanted performed. After they had reached an agreement regarding the work, the defendant left, and



                                                  -9-
she did not see him again that day. Phelps said she noticed nothing unusual about the defendant’s
demeanor that morning.

        Carol Ann Confer, who was working in the deli bakery of the Bi-Lo store in Dunlap on
August 14, 1996, testified the defendant came into the bakery that day between 9:15 and 10:00 a.m.
and ordered a birthday cake for his son. She told him it would take her ten to fifteen minutes to
decorate the cake, and he said he would walk around the store and return for it. The defendant
returned before she had completed her work, however, and, when he learned the cake was not ready,
told her that he might leave the store and come back for it later. Confer said the defendant gave no
indication of where he was headed, and she did not see him again that day.

       Richard Bryant, the owner of the B Quick Market, testified that the time printed on his store’s
invoices in August 1996 was Eastern, rather than Central Time. Therefore, the defendant had made
his gasoline purchase at the store at 9:16 a.m. Dunlap time on the morning of the shooting.

        The defendant’s next witness, Dr. Peter Brown, a psychiatrist, testified at length about the
defendant’s medical history of seizures, triple heart bypass surgery, and medications, and the effect
these had on his mental processes. Dr. Brown testified he was employed at Moccasin Bend Mental
Health Institute, where he worked both in acute care and on the forensic team, which evaluated
individuals charged with crimes to determine their competence to stand trial and their mental states
at the time of their offenses. In addition, he worked at Erlanger and Memorial Hospitals in
Chattanooga, where he provided psychiatric consultations to patients in the coronary care units,
general medical wards, and surgical wards. Dr. Brown said his particular field of interest was in
“consultation liaison psychiatry,” which he defined as “psychiatric problems that people with
medical illnesses have.” He testified he had worked in that field since the early 1980's and had
recently addressed the Chattanooga Psychiatric Association on the topic of psychiatric problems in
patients with cardiac illnesses.

         After explaining the function of the human heart, the blockage that can occur to coronary
arteries leading to coronary artery disease, and the procedure employed in a coronary bypass, Dr.
Brown testified that “significant literature” shows three possible ways in which coronary bypass
surgery can affect the brain: (1) the likelihood that a patient who has hardening of the coronary
arteries also has hardening in other parts of the body, which may cause brain impairment, as well as
damage to other organs; (2) the psychological stress of the surgery itself, which, despite the
frequency with which it is performed, remains a major, impressive procedure in which the patient’s
heart is taken out of his or her chest; and (3) brain injuries resulting from complications arising from
the surgery itself.

        Dr. Brown testified the defendant’s medical records suggested that he “had significant, in
addition to cardiac, . . . renal effects and high blood pressure and also hardening of the arteries
affecting his brain, and that it was producing symptoms as early as 1993.” He also concluded from
the defendant’s medical history that he was at a higher than average risk of having suffered brain
injury as a result of the bypass surgery. Dr. Brown testified fifteen different studies, in the United


                                                 -10-
States, Canada, and Europe, estimate a bypass patient’s likelihood of sustaining brain injury from
surgery, ranging in severity from stroke or death to neurological problems, at between 25 and 79%.
He said two of the possible causes of brain injury arising from bypass surgery are: (1) blood clots
are formed during or after surgery, which can travel to the patient’s brain; and (2) the mechanical
pump used to circulate the patient’s blood during surgery is simply not as efficient as the patient’s
own heart. According to Dr. Brown, evidence supporting the latter is that “the longer the person is
on the pump, the longer the surgery is, the more likely there’s to be neurological problems.”

        Dr. Brown testified a number of factors increase a patient’s risk of suffering neurological
problems as a result of bypass surgery, including: a history of previous brain damage; high blood
pressure; angina or a previous history of heart attack; the length of time in surgery, including how
long the patient’s heart remains on the pump; complications with the patient’s heart rhythm after
surgery; and the medications the patient takes after surgery. Of these factors, three were highly
significant: a history of previous brain damage; the length of time in surgery; and atrial fibrillation
occurring after surgery.

          Dr. Brown testified the defendant’s medical records revealed he had all three of the most
significant risk factors, as well as a number of other risk factors. He said, for a period of six to seven
months in 1993, the defendant suffered uncontrollable grand mal seizures involving loss of
consciousness. According to Dr. Brown, the severity of the seizures caused the defendant, who had
once been a successful businessman, to become “significantly confused and impaired to the extent
that . . . he went on disability” and “was no longer able to work.” The defendant also had a history
of high blood pressure, evidence on his cardiogram of a previous heart attack, and angina on his
stress test prior to surgery. In addition, his surgery was significantly longer than the average, and he
developed post-operative atrial fibrillation, which lasted approximately three days after surgery.
Further risk factors included the defendant’s history of high cholesterol, which is associated with
impaired cognitive function, and neurological testing performed subsequent to the surgery showed
he had significant impairment. Finally, Dr. Brown testified that the number and type of medications
the defendant was taking “would significantly suggest that they were also a factor.” Based on all
these factors, he estimated that, going into the surgery, there was “approximately 95 percent
probability that [the defendant] would be a candidate for one of these neurological problems.”

        Dr. Brown testified that, in addition to reviewing the defendant’s medical records, he also
interviewed and examined him in order to determine whether his medical treatment and illnesses
could have contributed to changes in his mental state. He also referred the defendant to a
neuropsychologist, Dr. Tom McClarin, who performed independent neuropsychological testing and
evaluation of the defendant. From their separate evaluations and testing, he and Dr. McClarin
independently reached the same diagnoses, which was that the defendant had a “cognitive disorder
and a mood disorder . . . due to his general medical condition.” Dr. Brown explained the term
“cognitive disorder” meant “that the overall functioning capacity of [the defendant’s] thinking is
impaired,” and that the term “mood disorder” meant “that the person has significant anxiety and
depression that’s as a result of the combination of the physical changes in the brain and also related



                                                  -11-
to the fact that they’re having such difficulty with concentration, memory retention and general
planning.”

        Dr. Brown testified that the many medications the defendant was taking, both before and after
his heart surgery, would have also had an effect on his cognitive functioning. The defendant was on
seven medications: Lanoxin, Metoprolol, Cardizem, Dilantin, Hydrocodone, Nitroglycerin, and
aspirin. According to Dr. Brown, any one of these various drugs could cause a variety of side
effects, but Lanoxin, Metoprolol, Cardizem, Dilantin, and Hydrocodone, in particular, were known
to cause depression and confusion. Dr. Brown testified that “given the probabilities,” in his opinion,
the defendant was more likely than not suffering from side effects of his medications in August
1996. He explained the basis for his opinion:

                        Now, what you have to assess is what’s the relative chance of
               these happening as potential side effects and the way we do that is to
               try [to] reach an estimate as to what the possibility of combination
               would be. Now, if we count the number of medications that he has,
               the number of medications the person is on, and we talk about the
               possible risks in term of percentage. If a person is on one or two
               drugs, the risk is probably somewhere in the area of five to 10
               percent. If the person is on eight of these medications, then the
               probability is around 90 percent. So somewhere between these two
               figures, between two and eight medications, you have a risk of around
               45 to 65 percent if you’re on five medications. So it’s more likely
               than not that anyone receiving all of these medications would
               experience these side effects. If a person has preexisting heart
               disease, the risk is likely to be higher. However, we don’t have good
               numbers to substantiate how much higher that could be.

         Dr. Brown testified he would expect the defendant’s cognitive impairment to have manifested
itself in three different ways in August 1996: first, with problems of reflection, including problems
with attention, concentration, memory, especially short-term memory, and organizing and
understanding information; second, with problems of judgment, meaning “difficulty in formulating
a plan, weighing the consequences, considering alternatives, deciding, and carrying out the plan”;
and third, problems with controlling his emotions, which meant the defendant likely would have
been impulsive, experienced anxiety and depression, had difficulty estimating threats and a tendency
to overreact to stress. Dr. Brown testified that an individual with these types of cognitive
impairments, when placed under “extreme emotional pressures, difficulties in a relationship,
financial difficulties, confrontations of people, various other kinds of major stresses,” would be
likely “to have what’s known as a catastrophic reaction, meaning that the level of their function
suddenly collapses and they decompensate, so they’re likely to do far worse the more stressful the
situation.” The first three months following coronary bypass surgery, he said, was the period in
which a patient would experience the maximum amount of difficulty.



                                                -12-
        Dr. Brown testified on cross-examination that he was licensed to practice psychiatric
medicine in Tennessee, but was not board certified by the American Psychiatric Association.
However, he had taken the Canadian College examination, which was considered for Tennessee’s
purposes to be an equivalent examination. He stated he saw the defendant once for a period of two
hours. He was unable to render an opinion as to whether the defendant was capable of appreciating
the wrongfulness of his actions at the time of the shooting. Finally, he acknowledged it was possible
for a coronary bypass patient to bring a stressful situation on himself.

         Dr. Tom McClarin testified he was a specialist in neuropsychology, “a speciality field that
involves investigating how the brain and [its] functioning affects what people do and how they feel,”
and had been asked to determine the defendant’s level of cognitive functioning or intellectual ability.
He first interviewed the defendant and then conducted five hours of extensive face-to-face clinical
testing, for a total of “close to six hours” spent with the defendant. He said the defendant’s IQ tested
at 83, which was in the low average range. Based on what the defendant told him about his
background of having run his own nursery business, Dr. McClarin considered the defendant’s IQ to
be low or below expectancy, which he concluded resulted from his long-standing seizure disorder
and bypass surgery. Overall, he said, the defendant showed “very clear cognitive deficits” in his
intellectual or problem solving abilities, and fell within the upper range of moderate impairment.
The defendant’s condition would have been either the same or worse at the time of the shooting; it
would not have been better. Dr. McClarin testified the “premorbid estimate calculations” showed
the defendant’s IQ was previously approximately thirteen points higher, at about 96. He emphasized,
however, that this was only an estimate. He said stress would have decreased the defendant’s ability
to think clearly and make good decisions. The defendant’s emotional behavior during testing was
“labile,” with the defendant fluctuating between periods in which he was clear and conversant, and
periods in which he wept and was sad and remorseful. Dr. McClarin acknowledged he did not know
if the defendant was under the influence of any narcotic that might have influenced the results of his
neurological tests. He did not, however, believe that the defendant had been malingering.

        The fifty-one-year-old defendant, testifying in his own behalf, recounted his medical,
employment, and social background, previous experiences with the victim, and some of his activities
immediately before and after the shooting. He said he married Delilah McCarver when he was
nineteen and she was sixteen, and he did not complete high school. He began working in his
family’s nursery business as a child and eventually started his own wholesale nursery, which he
owned and operated for about twenty years until he was forced in 1993 to stop working for health
reasons. As a child he contracted rheumatic fever, which caused him to be bedridden for a year and
left him with a heart defect. He started having severe seizures in 1993 and had a heart attack
sometime later. He began experiencing mental and emotional problems at about the same time, for
which he sought help at the Dunlap Mental Health Center. In June of 1996, he underwent heart
bypass surgery. Before his surgery, he was taking medication for depression, seizures, and “nerves.”
After the surgery, he had “a lot of depression,” went through “crying spells,” and experienced panic
attacks, in which he felt confused, depressed, “real scared,” and disoriented.




                                                 -13-
        The defendant testified his wife filed for divorce and moved out in 1995, first staying with
relatives and then eventually moving in with the victim. However, she occasionally returned to his
home to visit, primarily to get money and to attempt to obtain from the defendant the painkiller
Hydrocodone, to which she was addicted. The defendant testified he loved his wife at the time of
the shooting and had not wanted the divorce to be finalized. He said he still loved her and had been
out with her a few times since the shooting. She had dropped the divorce proceedings, but they had
no plans to reconcile.

        According to the defendant, the first time after his wife left that he had personal contact with
the victim was when he spotted his wife’s vehicle outside a pawn shop in Pikeville and stopped to
talk to her. The victim was with her, and he had a conversation with the victim as well, but no
confrontation occurred. Later that day, he followed his wife to the Golden Gallon, and the victim
pulled in behind him as he was trying to talk to his wife in the store’s parking lot. Although the
victim refused to leave him alone to have a private conversation with his wife, no trouble occurred
between them then or during their next encounter, which occurred approximately six months later
when the defendant again saw the victim with his wife at the Golden Gallon. The defendant testified
he knew where the victim lived and was familiar with his Chevrolet car and red Chevrolet truck.
He claimed, however, that he did not know about the victim’s four-wheel drive truck and had never
seen the vehicle prior to the time of the shooting.

         The defendant testified he received a number of threats from the victim prior to August 14,
1996. Before he and his wife separated, he heard the victim had bragged he was going to take the
defendant’s wife and half his money. Later, the defendant heard from his wife that the victim had
said he would hurt the defendant if the defendant “messed with” him. The defendant further testified
that “a few weeks, a few months” before the shooting, he received a number of telephone calls late
at night in which the caller warned him to watch his back and watch which windows he walked in
front of because he (the caller) was coming after the defendant. The defendant implied the calls were
from the victim. During this interval, he also received two to three hang-up calls per week, which
usually occurred in the middle of the day. The defendant stated that his son, as well as another
young man who lived at his house, reported receiving threatening phone calls as well. As a result
of these threats, the defendant “started being more careful”and “started carrying [his] gun more.”
As examples of other changes he made to his lifestyle in response to the threats, the defendant cited
how he had begun closing the shades and blinds in his house, which had not previously been his
habit, and how he had moved the area in which his bookkeeper worked in his home from a desk by
the window to the dining room. The defendant testified he was afraid of the victim, at times feared
for his life and safety, and, following his heart surgery in June 1996, did not feel physically capable
of defending himself.

        The defendant also testified he was threatened by the victim’s sister, Jewell Steele, and her
boyfriend during the encounter she initiated outside the Dunlap restaurant. He said Steele refused
to believe his denial of involvement in sugaring the victim’s gas tank and threatened what she would
do to him if he were responsible. He stated that, as he and Steele were arguing, her boyfriend exited
her vehicle and told him he would be “hunting for [the defendant]” if he bothered Steele’s son’s


                                                 -14-
vehicle. The defendant denied having made any statement to Steele about not being through with
the victim yet.

        The defendant described his activities in the hours before the shooting as follows. He went
to a doctor’s appointment in Chattanooga on August 13, and rested at home when he returned. On
August 14, which was his son’s birthday, he left home at 9:00 a.m., spent about half an hour at Mrs.
Phelps’ house discussing her landscaping, and then went to the Bi-Lo grocery to pick up a birthday
cake because he had a cookout and birthday party planned for his son later in the day. He had no
memory of having gone to the B Quick Market that morning, although he acknowledged he regularly
traded there, as well as at the Golden Gallon. He said that when the Bi-Lo employees informed him
of the wait before his cake would be ready, he told them he would return for it later. He then left the
store and drove north through town “killing time,” before stopping at the Golden Gallon to get some
gasoline. The defendant said he did not stop at J & J Complete Car Care on his way to the Golden
Gallon, did not see the victim anywhere along his drive, and did not know the victim was in town.

        The defendant testified he pulled his truck up to the first pump island at the Golden Gallon,
paused for a few moments while he searched his wallet for the proper credit card and reviewed notes
he had made while at Mrs. Phelps’ house, and then pulled away to turn his truck around and
approach the gas pumps from the other side, having become confused about which side of his truck
his gas tank was on, and mistakenly believing he had pulled in from the wrong direction. While
turning his truck around, he was delayed by traffic congestion and by someone asking him for
directions. Since the first two pumps were occupied when he came back around, he pulled into the
first empty spot at a different island, where another vehicle was parked on the opposite side. Hearing
someone at that vehicle call his name, he got out of his truck and stepped across the island to see
what the person wanted. He recognized the victim only after he heard him start to threaten him
about his wife. At the same time, he saw the victim’s door open and assumed he was coming after
him. He also assumed the victim was armed, as his wife had told him the victim was in the habit of
carrying a gun. Therefore, the defendant said, he returned to his own vehicle and retrieved his pistol.

        The defendant’s memory of subsequent events was sketchy. He said he had no memory of
going back to the victim’s truck, no memory of shooting him, and no memory of returning to his own
truck and leaving the gasoline station. His next memory was of driving through town and seeing
blue lights flashing as police cars passed him. He said he remembered seeing his uncle standing on
the sidewalk and stopping to pick him up, but had no memory of driving to the sheriff’s department.
However, he did remember walking into the jail and telling a woman inside he was involved in the
situation she was listening to on the radio. He did not remember having said anything else. He
could not explain why he had not simply left the service station upon returning to his truck after
being confronted by the victim, but speculated he must have panicked when he saw the victim
coming out of his truck. He said he had no plan or intent to kill the victim that day.

        On cross-examination, the defendant acknowledged the victim did not directly threaten him
in the weeks before the shooting. He denied he had made harassing telephone calls to the victim.
The defendant disagreed the store surveillance videotape showed he initially pulled directly up to


                                                 -15-
the Golden Gallon building rather than stopping at the gas pumps, and denied he had been parked
right outside the building, as the store manager had testified. He agreed the videotape showed he
had started toward pump three at the same time the victim exited the store, but denied that he had
seen the victim at that point. He said he never called the victim’s name. He testified the victim
never got out of his vehicle, he did not see him with a gun, and he did not remember having told the
detectives otherwise. He did not recall having leaned over into the victim’s truck after the shots were
fired and denied having planted a knife in the victim’s vehicle. He also denied having told his uncle
that he had taken care of “that son-of-a-bitch Harvey.” He did not know if, at the time he shot the
victim, he had thought the victim was about to kill him.

        William McCarver, Jr., testified he was thirty years old and the son of the defendant and
Delilah McCarver. He said his mother’s filing for divorce hurt and depressed the defendant, but the
defendant never showed any bitterness toward her and never expressed any anger toward the victim.
McCarver testified the defendant’s severe seizures caused him to become easily fatigued and have
difficulty remembering things, and his heart surgery left him “[v]ery weak” and depressed.

        McCarver testified he personally answered several harassing telephone calls, including hang-
up calls and two threatening messages, while staying at the defendant’s home before the shooting.
During the first threatening call, which occurred late at night two or three months before the
defendant’s surgery, the caller said, “Ricky Harvey is going to take your family.” During the second
call, which occurred not long after the first, the caller said something to the effect of “You better be
careful where you walk in front of your curtains and tell your children to be careful where they walk
in front of the curtains.” The defendant reacted to the threats by pulling and pinning the drapes
closed and moving the bookkeeper’s work area away from the window. McCarver testified he
immediately went to the jail after hearing about the shooting. When the defendant saw him, he broke
into tears, slid down the wall to the floor, and sat and cried for several minutes without saying a
word.

        On cross-examination, McCarver testified he was never able to identify the voices of the
anonymous telephone callers. He acknowledged that about a month after the shooting, a crew from
the family’s nursery business performed the landscaping job at Mrs. Phelps’ house using the estimate
that the defendant had prepared the morning of the shooting. He testified on redirect that he did not
recognize either of the two knives that were found on the floorboard of the victim’s truck.

        Don Whittenberg testified he was friends with William McCarver, Jr., had known the
defendant since he was fifteen, and lived in the defendant’s home. He corroborated the previous two
witnesses’ testimony regarding the decline in the defendant’s health and the depression he had
suffered following his heart surgery. He also corroborated their accounts of the harassing telephone
calls that had been made to the defendant’s house prior to the shooting. Whittenberg said
approximately three weeks before the defendant’s heart surgery, he answered the telephone at about
1:30 a.m. to hear someone say, “Watch your back. I’m coming after you.” Because he was not
aware of anyone else with whom the defendant was having problems at that time, he assumed the
caller was the victim. Whittenberg said he informed the defendant of the telephone call.


                                                 -16-
         Whittenberg further testified he answered the telephone at about 4:00 p.m approximately one
week after the defendant’s surgery, to have the caller, who identified himself as the victim, tell him
to inform the defendant that he did not appreciate him sugaring his gas tank. Whittenberg said he
responded by telling the caller that the defendant had just gotten home from the hospital following
heart surgery, to which the caller replied, “Well, you tell him I can play games, too.” Whittenberg
testified he informed the defendant of this telephone call as well. The defendant responded to the
threatening telephone calls, as well as the repeat hang-up phone calls that occurred three to four
nights per week, by closing the curtains and moving his office area away from the window.
Whittenberg said he was not familiar with the knives found on the floorboard of the victim’s truck.

        The defendant’s daughter, Debrina McCarver, testified as follows. The defendant was
depressed at the departure of his wife, the witness’s mother, but still loved her. She never heard the
defendant express any anger or bitterness toward the victim. The defendant’s health deteriorated
beginning in 1993. He became depressed and forgetful and began experiencing panic attacks. She
did not receive any threatening telephone calls herself, but was present at the defendant’s home when
others did and relayed the messages to the defendant. The defendant reacted by closing curtains and
moving his work area away from the windows. She arrived in Dunlap from Nashville at about 2:00
p.m. on the day of the shooting and went straight to the jail to see the defendant, where she found
him crying, confused, remorseful, and in shock.

        R. Fredrick Harding testified he taught physics and chemistry at White County High School
in Sparta and was the pastor of the Church of God of Prophecy on Highway 30 in Spencer. He was
married to a sister of Delilah McCarver, and had known the defendant for twenty-four years. He
noticed a change in the defendant’s personality around 1993, with the defendant seeming to be “more
placid,” “[n]ot so spontaneous,” and not the same “bouncy person” he used to be. The defendant
became a regular attendee of his church around the time of his heart surgery, and attended church
services on the Sunday before the shooting.

        Inez Smith testified she had a part-time bookkeeping business and had worked as often as
three to four days per month at the defendant’s home handling the bookkeeping associated with his
nursery. Approximately two months before the shooting, she noticed that the drapes in the home
were kept closed and her work area had been moved from the desk in front of the bay window to the
dining room. On cross-examination, she acknowledged that the defendant’s drapes had remained
closed since the victim’s death and that the business’s papers were still kept on the dining room
table.

        After deliberating, the jury found the defendant guilty of first degree premeditated murder,
and the trial court subsequently sentenced him to life imprisonment. Following the denial of his
motion for a new trial, the defendant filed a timely appeal to this court, raising four issues which he
states as follows:

               I.    Did the court err in not granting a judgment of acquittal as to the
               indicted offense of first degree murder in that the State’s proof was


                                                 -17-
                insufficient to show that the killing of the deceased was the
                intentional and premeditated act of the defendant in that the defendant
                was unable to form the requisite intent due to his diminished
                capacity?

                II. Was the verdict of the jury in this case against the weight of the
                evidence and did the evidence preponderate against the verdict of first
                degree murder?

                III. Did the court commit prejudicial and reversible error in
                admitting into evidence enhanced and altered videotapes from the
                Golden Gallon security camera which inaccurately had gaps and
                spaces in time and which were enhanced to show only selected
                portions of the recording?

                IV. Did the court commit prejudicial and reversible error in giving
                its jury instruction as to the word intentional by giving said
                instruction in the disjunctive form and in a manner which authorized
                a conviction based only upon an awareness of the nature of the
                conduct and not the result of conduct?

                                             ANALYSIS

                                   I. Sufficiency of the Evidence

        As his first two issues, the defendant argues the trial court erred in denying his motion for
judgment of acquittal at the conclusion of the State’s proof, and that the evidence was insufficient
to support the jury’s verdict finding him guilty of first degree murder. Since “[t]he standard by
which the trial court determines a motion for judgment of acquittal at the end of all the proof is, in
essence, the same standard which applies on appeal in determining the sufficiency of the evidence
after a conviction,” State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim. App. 2000), we will
address the defendant’s first two issues together as a challenge to the sufficiency of the evidence.

        When the sufficiency of the convicting evidence is challenged on appeal, the relevant
question of the reviewing court is “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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.
2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.
Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R. App. P. 13(e) (“Findings of guilt
in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient
to support the findings by the trier of fact of guilt beyond a reasonable doubt.”). All questions
involving the credibility of witnesses, the weight and value to be given the evidence, and all factual
issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.


                                                  -18-
1987). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

                      This well-settled rule rests on a sound foundation. The trial
                judge and the jury see the witnesses face to face, hear their testimony
                and observe their demeanor on the stand. Thus the trial judge and
                jury are the primary instrumentality of justice to determine the weight
                and credibility to be given to the testimony of witnesses. In the trial
                forum alone is there human atmosphere and the totality of the
                evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        The defendant contends the State failed to prove the requisite element of premeditation to
support his first degree murder conviction and that the evidence, at most, supports a conviction for
second degree murder. Although he argued both self-defense and diminished capacity at trial, he
focuses on appeal on the evidence he presented as to his diminished capacity, arguing that he proved
he suffered from a diminished capacity “so severe as to negate the premeditation required for first-
degree murder.” In support, he cites, inter alia, his expert witnesses’ testimony regarding his
neurological problems and impaired cognitive functioning. The State responds by arguing the
evidence was sufficient to support the defendant’s conviction and that it was within the jury’s
province to disbelieve that the defendant’s mental and physical problems rose to the level to negate
the element of premeditation. We agree with the State.

       For the purposes of this case, first degree murder is “[a] premeditated and intentional killing
of another.” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation is defined as

                an act done after the exercise of reflection and judgment.
                “Premeditation” means that the intent to kill must have been formed
                prior to the act itself. It is not necessary that the purpose to kill pre-
                exist in the mind of the accused for any definite period of time. The
                mental state of the accused at the time the accused allegedly decided
                to kill must be carefully considered in order to determine whether the
                accused was sufficiently free from excitement and passion as to be
                capable of premeditation.

Tenn. Code Ann. § 39-13-202(d).



                                                  -19-
         In Tennessee, once a homicide is established it is presumed to be second degree murder and
the State bears the burden of proving the element of premeditation to elevate the offense to first
degree murder. See State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999); State v. Brown, 836 S.W.2d 530,
541 (Tenn. 1992). Whether premeditation exists is a question for the jury to determine based on the
evidence, and may be established by the defendant’s conduct and the circumstances surrounding the
killing. See State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). Our courts have listed a number of
facts from which premeditation may be inferred, including evidence of a motive for the killing,
evidence that the defendant procured a weapon, use of a deadly weapon upon an unarmed victim,
infliction of multiple wounds, and evidence of the defendant’s calmness immediately following the
killing. See State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000); State v. Dellinger, 79 S.W.3d 458,
492 (Tenn. 2002); Bland, 958 S.W.2d at 660.

        Viewed in the light most favorable to the State, the evidence was more than adequate to
establish that the defendant’s killing of the victim was intentional and premeditated. As for the
defendant’s motive, the victim had been having an affair with the defendant’s wife and had been
openly living with her for several months prior to the shooting. The defendant admitted at trial that
he had been unhappy about the separation, still loved his wife, and had not wanted the divorce to
become final. Approximately four weeks before the shooting, the victim’s sister had a confrontation
with the defendant in which he denied having sugared the victim’s gas tank, but also stated that he
was not through with the victim yet. On the morning of the shooting, Jeff Turner was having a
conversation with the victim outside his automotive repair shop when he saw a distinctive, late
model, extended cab white Ford pickup truck with a bug deflector, a vehicle that looked like the
defendant’s, pull off the highway and sit for a moment behind the victim’s vehicle before pulling
back onto the highway and heading north in the direction of the Golden Gallon. Although Turner
acknowledged he could not be sure, he testified he thought the defendant was the driver.

         Golden Gallon store manager Deanna Sims witnessed the defendant pull his pickup truck up
to the store building, where he sat for a few minutes before reversing out of the parking spot and then
pulling up to the island at which the victim’s vehicle was parked. Sims saw the defendant open his
door and assumed he was getting gasoline. However, the proof established that the defendant had
already purchased 9.5 gallons of gasoline for that same vehicle at the B Quick Market at 9:16 that
morning. Moreover, the store surveillance tape shows that the defendant began moving from his
parking spot to the pump island only after the victim had exited the store and started walking back
to his vehicle.

        The defendant fired two shots at the victim, one of which went through his brain and the
other of which struck him in the heart and liver. Immediately before the first shot was fired, Michael
Scoggins heard the defendant call out the victim’s name. He then saw the defendant step up onto
the pump island and lean over toward the victim’s vehicle before the second shot was fired. Two
other eyewitnesses, Jeff Sutherland and Marian Lance, also saw the defendant lean toward the
victim’s vehicle, with Sutherland corroborating Scoggins’ testimony that the defendant stepped up
onto the pump island before the second shot was fired, and Lance testifying that she saw the
defendant reach his arm almost inside the victim’s vehicle before firing the second shot. A number


                                                 -20-
of witnesses testified that there was an interval of several seconds between the two shots, and the
TBI firearms expert testified that the murder weapon was a six-shot, single action pistol that required
the hammer to be manually cocked before each successive shot could be fired.

         According to Jeff Sutherland, the defendant appeared calm immediately after the shooting,
returning to his vehicle, putting something under the seat, and unhurriedly driving from the gasoline
station toward town. The defendant also appeared calm upon his arrival at the sheriff’s department,
stating to sheriff’s department employee Marilyn Shaw that he was the one responsible for the
shooting and had acted in self-defense after the victim pulled a knife on him. However, none of the
eyewitnesses saw or heard the victim threaten the defendant, and the defendant himself admitted the
victim never got out of his vehicle. He also admitted that the victim did not have a gun. Further, he
testified he had no memory of the victim’s having a knife or of having claimed self-defense in his
statement to Shaw. The victim’s sister testified that the victim was not in the habit of carrying a
knife on his person, and she did not recognize either of the two knives recovered from his vehicle.
Finally, the victim’s nephew testified he did not see any knives on the victim’s person or in the truck
on the morning of the shooting, but he saw the defendant climbing out of the cab of the victim’s
truck immediately after the shooting.

        From all of this evidence, the jury could have reasonably concluded the defendant formed
the intent to kill the victim because of his affair with his wife, armed himself with a pistol in order
to carry out his plan, stalked the victim through town, watched until he saw him return without his
nephew to his vehicle, and then took the opportunity presented by driving over to the pump island,
calling the victim’s name, and shooting him through the brain and heart to kill him. The jury could
have further reasonably concluded that the defendant planted the knives found in the victim’s truck
in order to support a claim of self-defense.

        The defendant argues, nonetheless, that the “uncontroverted and unimpeached testimony
from” his “highly qualified expert witnesses, taken together with the testimony of the lay witnesses
demonstrates” that he was suffering from diminished capacity at the time of the offense, such as to
make him incapable of acting with “a significant degree of coolness and deliberation required in
order to commit the offense of premeditated first-degree murder.” We respectfully disagree. The
concept of diminished capacity recognizes that a defendant may present expert, psychiatric testimony
“‘aimed at negating the requisite culpable mental state’” of an offense. State v. Perry, 13 S.W.3d
724, 734 (Tenn. Crim. App. 1999) (quoting State v. Hall, 958 S.W.2d 679, 688 (Tenn. 1997)).
“While diminished capacity is not an excuse or justification for committing the offense, it
contemplates an acquittal of the indicted offense and a conviction for a lesser included offense.” Id.
(citing Hall, 958 S.W.2d at 688).

        In arguing that the evidence does not support his conviction, the defendant stresses his expert
witnesses’ testimony regarding his mental limitations, which he asserts proves he lacked the capacity
for premeditation, and the fact that the State put on no expert psychiatric or psychological witnesses
of its own. However, as the State points out, the jury was not required to accept the defendant’s
expert testimony to the exclusion of the other evidence presented in the case. See State v. Nesbit,


                                                 -21-
978 S.W.2d 872, 886 (Tenn. 1998); State v. Holder, 15 S.W.3d 905, 912 (Tenn. Crim. App. 1999).
Although Dr. Brown testified at great length about the defendant’s medical history and the likelihood
of his having suffered neurological damage as the result of his heart surgery, as well as the
probability that he was experiencing side effects from his many medications, there was substantial
proof that the defendant was able to function normally in his daily life, including proof of his having
successfully estimated a landscaping job for a customer of the family’s nursery business on the very
morning the shooting occurred. And even if the jurors accepted the defendant’s experts’ testimony
that the defendant had a cognitive disorder and a mood disorder that resulted in a lowering of his IQ
and difficulties with his concentration, memory, and control of emotions, they nonetheless could
have reasonably concluded from the evidence that the defendant’s mental and physical problems did
not prevent him from premeditating the victim’s murder. Therefore, after viewing the evidence in
the light most favorable to the State, we conclude it was sufficient for a rational trier of fact to find
the defendant guilty of first degree premeditated murder beyond a reasonable doubt.

                            II. Admissibility of Enhanced Videotapes

       As his next issue, the defendant contends the trial court committed reversible error by
admitting into evidence the enhanced versions of the store’s surveillance videotape. Relative to
weighing probative value against prejudice or the potential for prejudice, the admissibility of
evidence rests within the discretion of the trial court. See State v. DuBose, 953 S.W.2d 649, 652
(Tenn. 1997). An abuse of discretion appears when the trial court applied an incorrect legal
standard, or where the trial court’s ruling is against logic or reasoning and causes an injustice to the
complaining party. See State v. James, 81 S.W.3d 751, 760 (Tenn. 2002).

        The defendant argued in a pretrial motion that the altered and enhanced versions of the store
surveillance videotape should be excluded as unfairly prejudicial. He asserted that Will Walker’s
slowed down version gave a distorted picture of the time frame involved in the incident, and that the
alterations involved in the creation of Dr. Edwards’ version created inaccurate and unfair depictions
of the crime scene and the activities of the defendant at the time of the shooting. After viewing the
tapes, the trial court ruled them admissible provided the State first laid the foundation for their
admission:

                      I’m ruling, for the record, that the State will have to lay the
                foundation and an explanation, but I’m ever [sic] bit satisfied that the
                jury’s got as much common sense as I’ve got in understanding what’s
                being done and that that explanation can be given to the jury and you
                can cross-examine him on that point if you think it’s a distortion, and
                they can draw their own judgments and conclusions from that.

The defendant renewed his objections to the videotapes at several points during the trial. Each time,
the trial court overruled his objection, reiterating its belief that the jury had the common sense to




                                                  -22-
understand the State’s expert’s testimony regarding the changes that had been made to the original
surveillance tape.4

         We find no abuse of discretion by the trial court in this matter. Agent Davis clearly explained
to the jury that the only changes Walker had made to the tape was to slow the action down, and that
the tape Walker had created contained three versions of the incident: the original scenes as recorded
by the store surveillance tape in fast action and the two slower versions. As for the second enhanced
tape, Dr. Edwards provided a lengthy explanation to the jury of the necessity for creating an
enhanced version and of the processes employed in its creation, including his slowing down of the
action and enlargement of certain scenes and deletion of others. He testified the surveillance tape
recorded images at the rate of one frame per second, whereas images on regular video are recorded
at the rate of thirty frames per second, which meant that the surveillance tape, when put into a regular
VCR, played thirty times faster than normal. He explained:

                   The regular TV that you’re looking at is expecting 30 frames a
                   second. This is one frame a second, so it’s going 30 times faster, so
                   it comes in front of your face like a speeding train, and to try to digest
                   that, well, you can’t do it. We don’t have the ability, as people, to.
                   It’s just all nonsense. So that’s why you go through all this
                   processing. You slow it down, you look at the individual frames, you
                   do all sorts of things to it to try to make sense out of it. If you just
                   played it on a regular K-Mart special, or Wal-Mart, or whatever, VCR
                   it’s just right past your face. You just can’t make sense out of it. It’s
                   very hard to, let’s put it that way.

      When asked if there were scenes on the original surveillance tape that did not appear on his
enhanced version, Dr. Edwards replied:

                         Sure. That’s the whole idea. We can’t take every image that
                   comes off the tape. There’s just too many of them, thousands of
                   them. So what we do is we go into, especially in the process tape
                   where we take into the computer, we just go into those areas of
                   interest and if there’s something occurring here, we’ll take those and
                   put them in the computer, enhance them and here, here, here, or here.
                   So we don’t pay attention to what doesn’t seem to be related to the


         4
          The defendant asserts in his b rief that the trial court at one point had second thoughts about allowing Dr.
Edw ards’ enhanced version of the videotape into evidence, and that it expressed conc ern that doing so wo uld co nstitute
“overreaching .” However, a close reading of the transcript reveals that the court’s statement was actually made in
response to the State’s inquiry as to whether Dr. Edwards would be allowed to explain the enhanced version of the
videotape to the jury as it was being played. The trial court initially ruled that he could, but only after the tape had first
been played in full without interruption. Upon further reflection, however, the trial court reversed itself, stating that it
did not want to create a situation in which it was “picking out a particular piece of evidence and allowing it to be given
more emphasis than other pieces of evidence.”

                                                            -23-
               incident that’s happening. So you’ll see a time stamp of this time and
               maybe another time stamp some time later. Then you see a whole
               section where the time stamps are kind of like one after the other,
               after the other[,] after the other. Then you may see a gap that may
               have a time stamp here and a time stamp there.

       As his direct examination testimony continued, Dr. Edwards explained other processes he
had used in the creation of the enhanced version of the videotape:

               Q    Did you, in creating this tape, blow up certain – that may be a
               bad word, but enlarge certain segments of it?

               A     We like to go back to the three little concepts, bigger, better and
               brighter. We have the ability to make these enlargements. That’s one
               of the features of our technology so that it looks like it’s been
               enlarged by a lenses [sic], and yes, we did go in and make certain
               frames enlarged so we can see better what was occurring in the areas
               of interest.

               Q    And do they appear, these enlargements appear on the tape that
               you produced?

               A     Yeah, they’re interspersed. You’ll see a regular frame that’s
               maybe been intensity enhanced and brightened up and maybe time
               based corrected some electronics correcting, and then you may see
               right after that an enlarged version of a region of interest, and then
               maybe another one of the regular and then an enlarged version, and
               those were the files that we actually abstracted and put into the
               computer and processed and made the tape. We can make a tape of
               all those processed images, which we have right here.

        Further, Dr. Edwards testified that the law enforcement officers had pointed out to him the
areas of interest on the tape and agreed on cross-examination that he and his staff had, in conjunction
with the officers, exercised their judgment in deciding which scenes to enhance.

         The defendant cites two cases from other jurisdictions in support of his argument that the
enhanced videotapes should not have been admitted into evidence because of their distorting effects.
However, we agree with the State that the situations presented by both cases are readily
distinguishable from that of the present appeal. In Powell v. Indus. Comm’n of Arizona, 418 P.2d
602, 610 (Ariz. Ct. App. 1966), rev’d on other grounds, 423 P.2d 348 (Ariz. 1967), the Arizona
Court of Appeals ruled that a “speeded up” motion picture should not have been admitted in a
workers’ compensation case because it unfairly portrayed the claimant as having worked at a faster
rate of speed than had been the actual case. Similarly, in Utley v. Heckinger, 362 S.W.2d 13, 17


                                                 -24-
(Ark. 1962), a case involving a collision between an automobile, a wrecker, and a truck, the
Arkansas Supreme Court concluded that the jury should not have been shown a portion of a motion
picture which appeared to depict the automobile driver as walking faster than she had actually
walked.

        By contrast, there was no danger in the present appeal that the enhanced videotapes would
mislead the jury about the speed at which the events occurred. The jury heard Dr. Edwards’
testimony regarding the manner in which the store surveillance tape recorded the action, and the
reason for his changes to the video. The jury also saw the fast action recorded on the original
surveillance tape. In addition, it was able to see the time counter on the enhanced versions of the
tape, which showed the exact time, including minutes and seconds, at which each event occurred.
 Thus, the jury was fully apprised of the time line involved in the incident.

         The defendant also contends that the inadvertent repeat showing of Will Walker’s version
of the surveillance tape further compounded the prejudice created by the videotapes, and should have
resulted in a mistrial. We respectfully disagree. Whether or not to declare a mistrial lies within the
sound discretion of the trial court, and we will not disturb the court’s decision absent a clear showing
of abuse of discretion. State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App.), perm. to appeal
denied (Tenn. 2000) (citations omitted). A mistrial should be declared in a criminal case only when
something has occurred that would prevent an impartial verdict, thereby resulting in a miscarriage
of justice if a mistrial is not declared. See id. (citing State v. McPherson, 882 S.W.2d 365, 370
(Tenn. Crim. App. 1994)); State v. Jones, 15 S.W.3d 880, 893 (Tenn. Crim. App. 1999) (citing
Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977)). “Generally, a mistrial will be
declared in a criminal case only when there is a ‘manifest necessity’ requiring such action by the trial
judge.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991) (quoting Arnold, 563
S.W.2d at 794). The burden to show the necessity for a mistrial falls upon the party seeking the
mistrial. Land, 34 S.W.3d at 527 (citing State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App.
1996)).

        We find no abuse of discretion by the trial court for failing to declare a mistrial as a result
of the mistake with the videotapes. The record reveals that the trial court provided a thorough and
detailed curative instruction to the jury, explaining the situation and instructing the jury not to place
any significance on the fact that the videotape had been repeated:

                       Ladies and gentlemen, at the conclusion of the trial, I’m going
                to tell you when you retire to the jury room that you’re allowed [to]
                take and use your common sense when you get into the jury room.
                What’s occurred here, common sense is applicable to, we made a
                mistake. We played the tape that Mr. Davis played for you the first
                time, the second time. It was not the tape that was produced by Mr.
                Edwards simply because someone picked up the wrong tape and put
                it in the machine. So you viewed Mr. Davis’ tape twice.



                                                  -25-
                      Now, normally, in the trial of a case I try not to let people repeat
               things, questions, various things, and there’s some reasons behind
               that. The first thing that comes to mind is we kind of like to move
               trials along if we can, and the more we duplicate and waste your time,
               it’s to the detriment of everyone involved. Another reason is we
               don’t want to emphasize one particular piece of evidence over another
               piece of evidence. We want you folks to have the opportunity to
               weigh evidence yourself and it’s not the prerogative of a judge to in
               any way comment on evidence. But in this situation you have seen
               this tape twice, and I want you to understand that fact. I’ll allow the
               attorneys to make whatever arguments they want to in that regard, and
               they’ll have an opportunity in their closing arguments, if they wish to
               comment, to comment on it.

                     And I want to say something else at this point, so something is
               abundantly clear to you, because I’ve given you this explanation of
               what’s gone on I want to emphasize that I am not in any way
               attempting to or suggesting to you what your decision regarding the
               facts of this case should be. I’m not in any way attempting to inject
               myself into that process. That is not my prerogative. You are the
               sole and exclusive judges of the facts of this case. I gave you that
               explanation so that you could understand we’re all human beings and
               when we deal with human beings mistakes get made and a mistake
               happened here.

       In summary, we conclude that the trial court did not abuse its discretion either in allowing
the enhanced videotapes into evidence or in refusing to declare a mistrial upon the inadvertent repeat
showing of the first altered videotape.

                                       III. Jury Instructions

        As his final issue, the defendant contends the trial court gave erroneous jury instructions as
to the culpable mental states for first and second degree murder, thereby lessening the State’s burden
of proof. The trial court instructed the jury as follows with respect to first degree murder:

               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:

                     (1) that the defendant unlawfully killed the alleged victim; and

                     (2) that the defendant acted intentionally. A person acts
               intentionally with respect to the nature of the conduct or to a result of


                                                  -26-
                the conduct when it is the person’s conscious objective or desire to
                engage in the conduct or cause the result; and

                      (3) that the killing was premeditated.

                       A premeditated act is one done after the exercise of reflection
                and judgment. Premeditation means that the intent to kill must have
                been formed prior to the act itself. It’s not necessary that the purpose
                to kill preexisted in the mind of the accused for any definite period of
                time. It is sufficient that it preceded the act, however short the
                interval, as long as it was the result of reflection and judgment. The
                mental state of the accused at the time he allegedly decided to kill
                must be carefully considered in order to determine whether the
                accused was sufficiently free from excitement and passion as to be
                capable of premeditation. If the design to kill was formed with
                premeditation, it’s immaterial that the accused may have been in a
                state of passion or excitement when the design was carried into effect.
                Furthermore, premeditation can be found if the decision to kill is first
                formed during the heat of passion, but the accused commits the act
                after the passion has subsided.

      The trial court’s instruction on second degree murder included the following definition of
knowingly:

                      Knowingly means that a person acts knowingly with respect to
                the conduct or to the circumstances surrounding the conduct when the
                person is aware of the nature of the conduct, or that the circumstances
                exist. A person acts knowingly with respect to a result to the person’s
                conduct when the person is aware that the conduct is reasonably
                certain to cause the results.

        The defendant cites State v. Page, 81 S.W.3d 781 (Tenn. Crim. App. 2002), to argue that
because first and second degree murder are result-of-conduct offenses, the trial court erred by
including the statutory definition for intentionally that relates to nature-of-conduct offenses and the
statutory definition of knowingly that relates to the defendant’s awareness of the nature of his
conduct and the circumstances surrounding the conduct. The State concedes the trial court should
have limited the instructions on intentionally and knowingly to the definitions applicable to result-of-
conduct offenses, but submits the defendant waived the issue by failing to raise the specific objection
he raises on appeal at trial or in his motion for new trial. In the alterative, the State contends the
error was harmless beyond a reasonable doubt because the jury’s finding of premeditation necessarily
included a finding that the defendant was aware of the result of his conduct at the time he acted.




                                                 -27-
        The defendant did not object to the trial court’s definition of knowingly at trial, and did not
specifically base his objection to the definition of intentionally on its inclusion of the nature-of-
conduct language. However, the definition he proposed as an alternative to the statutory definition
of intentionally did contain a statement that intent involved the defendant’s mind being fully aware
of the nature and the consequences of his act. Thus, we disagree with the State that he has waived
the issue for appellate review.

         However, we agree with the State that the error in jury instructions in this case constituted
harmless error. In Page, a juvenile defendant was tried as an adult and convicted of second degree
murder for causing the death of the victim by striking him in the head with a baseball bat. Id. at 782.
On appeal, this court concluded that because second degree murder is a result-of-conduct offense,
the trial court erred by including the nature-of-conduct and nature-of-circumstances definitions of
knowingly in its instructions to the jury and, further, the error was not harmless because the
defendant’s trial defense had been that he was intoxicated and unable to appreciate the consequences
of his conduct at the time he acted. Id. at 789-90. Here, by contrast, the jury convicted the defendant
of the premeditated murder of the victim. As we have stated in a recent case:

               Implicit in a finding of premeditation is that it was the defendant’s
               desire to cause the result of his conduct, i.e. the death of the victim.
               Because the jury determined that the defendant acted with the design
               to kill, it is our view that the inclusion of the nature-of-conduct
               definition of intentional would be harmless beyond a reasonable
               doubt.

State v. Duane Brian Brooks, No. E2002-02040-CCA-R3-CD, 2003 WL 21554551, at *5 (Tenn.
Crim. App. July 10, 2003) (citing State v. Antoinette Hill, No. E2001-02524-CCA-R3-CD, 2002 WL
31780718 (Tenn. Crim. App. Dec. 13, 2002)). We further concluded in Brooks that any error in the
trial court’s definition of knowingly would be harmless beyond a reasonable doubt in a case in which
the jury has convicted the defendant of premeditated murder, as “a finding of premeditation
encompasses a finding that the defendant acted knowingly.” Id.

        We therefore conclude that although the trial court erred in its jury instructions on
intentionally and knowingly, the jury’s verdict finding the defendant guilty of the premeditated
murder of the victim renders the error harmless beyond a reasonable doubt.

                                          CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.


                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE



                                                 -28-
