         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON               FILED
                            MAY SESSION, 1998             August 14, 1998

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

STATE OF TE NNE SSE E,            )    C.C.A. NO. 02C01-9708-CR-00309
                                  )
           Appellee,              )
                                  )    SHELBY COUNTY
V.                                )
                                  )
                                  )    HON. W. FRED AXLEY, JUDGE
BRIAN J. HUN TER ,                )
                                  )
           Appe llant.            )    (INTERLOCUTORY APPEAL)



FOR THE APPELLANT:                     FOR THE APPELLEE:

W. MARK WARD                           JOHN KNOX WALKUP
201 Poplar Avenue, Suite 2-01          Attorney General & Reporter
Memphis, TN 38103
                                       PETER M. COUGHLAN
GARLAND ERGUDEN                        Assistant Attorney General
242 Poplar Avenue                      2nd Floor, Cordell Hull Building
Memphis, TN 38103                      425 Fifth Avenu e North
                                       Nashville, TN 37243

                                       JOH N W. P IERO TTI
                                       District Attorn ey Ge neral

                                       JOHNNY R. McFARLAND
                                       Assistant District Attorney General
                                       Criminal Justice Center, Suite 301
                                       201 Poplar Avenue
                                       Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
       The Appellant, Brian J. Hunter, appeals by permission pursuant to Rule 9 of

the Tenn essee Rules o f Appella te Proce dure. A ppellant w as indicted for second

degree murde r and wa s tried by a ju ry in the Sh elby Co unty Criminal Court. At the

end of the State’s proof, the Appellant moved for a judgment of acquittal which was

overruled by the trial court. Following the conclusion of the evidenc e, the trial cou rt,

over the objection of Appellant, charged the jury on the lesser grade offense of

voluntary manslaughter. The State did not request the trial court to charge the

lesser grade o ffense of voluntary mans laughte r. The jury w as ultima tely unab le to

reach a verdict. Wh en polled , the jury state d that they found A ppellant n ot guilty of

second degree murder, but were unable to reach a verdict as to whether he was

guilty of voluntary man slaughter. The trial court declared a mistrial on the voluntary

mans laughte r charge .



       The State was prepared to retry Appellant on the voluntary manslaughter

charge, however, Appellant filed a Motion to Dismiss the indictment. Appellant

argued the following three issue s in his Motion to D ismiss: (1) the trial court erred

in charg ing voluntary manslaughter; (2) the trial court erred in charging a lesser

grade offense since Appellant waived the right to charge lesser grade offenses; and

(3) a re-trial on the lesser grade offense of voluntary m anslau ghter wo uld cons titute

doub le jeopardy. After taking Appellant’s motion under advisement, the trial court,

in a written o rder with find ings of fac t and con clusions of law, den ied the m otion.



       Appellant subsequently filed a Motion to Reconsider Dismissal Based on

Dou ble Jeopa rdy and/o r Motion fo r Interlocuto ry Appeal. After taking that motion

                                            -2-
under advisem ent, the trial court denied Appellant’s Motion to Reconsider Dismissal

but grante d App ellants ’s Motio n for Inte rlocuto ry App eal. Th is Cou rt subs eque ntly

granted Appellant’s app lication for an interlocutory appeal by order entered

Septem ber 16, 1 997.



       In Appe llant’s Design ation as to Appella te Record, Appellant states that “the

only issue to be raised on ap peal is whether double jeopardy prevents the retrial of

the [Appellant] for the lesse r [grade] offense o f voluntary man slaughter.” How ever,

Appellant goes on to s ay that “[i]ncident to this inquiry, [Appellant] will challenge the

sufficiency of the evidence presented at the first trial to support voluntary

manslaughter and whether the trial judge was obligated to and erred in instructing

the jury as to voluntary m anslaughte r.”



       An appeal is approp riate und er Rule 9 of the Te nness ee Ru les of Ap pellate

Procedu re if the appellant will suffer “irreparable injury,” if there will otherwise be

“needless, expensive and p rotrac ted litiga tion,” an d if there is a “need to develop a

uniform body of law.” Although p ermission to a ppeal was g ranted by this Co urt

pursuant to Rule 9, we are of the opinio n that it was improvid ently gran ted in part.

After reviewing the issues presented by Appellant, we will not address the issue

pertaining to the trial court charging the lesser grade offense of voluntary

manslau ghter.    Issues relating solely to prior proceedings such as evidentiary

rulings, jury charges, and arguments by counsel, are generally not appropriate for

appellate review unde r Rule 9.          Since there is no conviction for voluntary

manslaughter in the instant case, Appellant cannot appeal this type issue by way of

interlocutory appe al.     In other words, the trial court’s ch arge on volun tary




                                            -3-
manslaughter is not presently an issue in the pending case before us, and we

therefore decline to addres s it.



       As to the sufficiency of the evidence of the voluntary manslaughter charge, we

find that the evidence was not insufficient as a matter of law to suppo rt a conviction

for volunta ry ma nslau ghter. W e will brie fly sum mariz e the fa cts in th is case for the

purposes of our review.        The Appellant and the victim, Bill Herrington , were

neighbors in an East Memphis apartment complex. On September 14, 1994, Ford

Beach was living with the Appellant, and Beach arrived at the apartment between

5:00 and 5:30 p.m. Herringto n, Appellant, and another friend, S teve Fortini, were

already there drinking and talking. Late that afternoon, there was a scuffle between

Herrington and the Appellant in the kitchen. Herrington and the Appellant then

visited Herrington’s apartment and again be came involved in a heated argum ent,

during which H errington ’s wife told A ppellant to go hom e after their pushing and

shoving cause d wine to b e spilled.



       That same evening, after Herrington had eaten dinner and taken a nap, he

returned to the Appellant’s apartment after Beach had gone to sleep on the couch.

Upon entering the apartment, Herrington told Beach that he wanted to “straighten

things out” with the Appellant.        Appellant and Herrington went back into the

Appe llant’s bedroom so that Beach could sleep. Beach heard nothing further from

the bedroom until he was awakened by the “click, clock” noise of an automatic pistol

being “racke d.” Be ach h eard th ree sh ots in rapid succession as he ran out of the

apartm ent.




                                             -4-
       Appellant described Herrington that evening as “hostile and irate,” angry that

Appellant had poss ibly told a secret entruste d to him by H errington and angry

regarding Appellant’s lack of c once rn ove r his m edica l cond ition.        Du ring the ir

discussion in the bedroom, Appellant excused himself to use the bathroom. When

he returned, he saw Herrington holding a Beretta which Appellant kept und erneath

his bed.    While the gun was aimed away from the Appellant, Herrington was

describing his “perfect plan” to kill the Appellant. Herrington stuck the gun against

Appe llant’s ear and threatened his life. After A ppella nt beg ged fo r his life, Herrington

dropped the gun into Appellant’s lap and leaned back against the bed. When

Appellant tried to put the gun away on top of the desk, Herrington said, “Someone

is going to die to night,” a nd a s truggle ensued. Three shots were fired in succession

during this struggle, then the Appellant ran to call 911 and stayed there until the

police arrive d.



       Voluntary manslaughter is the unlawful and intentional or knowing killing of a

victim as a result of a state of passion produced by adequate provocation. Tenn.

Code Ann. § 3 9-13-21 1. It is clear from the evidence presented that a rational trier

of fact could have found Appellant guilty of voluntary manslaughter. As a side note,

it can then be said that the trial court did not err by charg ing voluntary ma nslaughter.



       W e will now address the merits of whether double jeopardy prohibits retrial for

voluntary manslaughter when the jury acquitted the Appellant of second degree

murder. Over objection by Appellant’s trial counsel, the trial court charged the jury

on voluntary man slaug hter in addition to secon d degree m urder. W hile the trial court

stated upon th e record he believe d the Ap pellant to be guilty of murder in the second

degree or nothing else, he held that State v. Sum mera ll, 926 S.W.2d 272, 278-79

                                             -5-
(Tenn. Crim. App. 1995), required the trial court to instruct the jury on the charge of

voluntary manslaughter based upon the evidence. Appellant argues that by virtue

of the jury’s verdict of not guilty as to second degree murder, the jury rejected at

least one of the essential elements nece ssary to su pport a find ing of guilt as to

voluntary man slaughter.



      Second degree murder is the unlawful and knowing killing of the victim. Tenn.

Code Ann. § 39-13-210. As mentioned previously, voluntary manslaughter is the

unlawful and intentional or knowing killing of a victim as a result of a state of passion

produced by adequate provocation. Tenn. Code Ann. § 39-13-211. Appellant

argues that the case of Wh itwell v. State, 520 S .W .2d 33 8 (Te nn. 19 75) is

controlling. In W hitwell, the defendants were indicted and tried for the grand larceny

of cattle and receiving and concealing stolen property. Defendants were acquitted

by the jury o f grand larc eny and the jury exp ressly de termine d that the d efenda nts

did not know that they were stealing the cattle. The jury was unable to reach a

verdict on the charges of receiving and concealing stolen property or the lesser

charges of petit larcen y. A mistrial was declared by the trial court. Th e defen dants

appealed on the basis that the jury’s verdict nullified the criminal intent element

essential for their conviction and, therefore, double jeopardy principles would be

violated if they we re retrie d. The Ten ness ee Su prem e Cou rt held th at “the ju ry’s

finding a lack of intent to steal clearly exonerates defendants of an essential element

of petit larceny,” and remanded the case to the trial court to dismiss all charges. Id.

at 344.



      Appe llant’s case differs from tha t of W hitwell in that th e only d ifferenc e in the

eleme nts of the offenses of grand and petit larceny at that time was the m onetary

                                            -6-
amount of prope rty taken b y the defe ndants . There is not a se parate eleme nt as

there is in the case sub judice. As the State co rrectly points out in its brief, the jury

could have found that both elements of second degree m urder were m et and still

acqu it of second degree murder, so long as the jury found the Appellant acted in a

state of passion produced by adequate provocation. This additional element of

passion produced by adequate provocation reduces second degree murder to

voluntary manslau ghter, even thou gh all elemen ts of second d egree m urder have

been met. Also, Appellant justified his actions as self-defense at trial. Self-defense

implies Appellant had at least a “knowing” menta l state in orde r to com mit a killing

of another human being. The verdict of acquittal as to second degre e mu rder in th is

case does n ot man date a finding that the jury determined the element of a “knowing”

killing to be a bsent.



       A more recent case distinguishes W hitwell and holds that “the double jeopardy

clauses of the state and federal constitutions do not preclude retrial of a defendant

after a mist rial was decla red at a n earlier trial because the jury could not reach a

verdict on de fenda nt’s gu ilt of lesse r offens es inclu ded in the crime for which he was

indicted.”   State v. Seagroves, 691 S.W.2d 537, 541 (Te nn. 1985). T he court

pointed out in Seagroves that the defendant in W hitwell was either guilty of the

greater offense of no offense at all. Such is not the true in the case sub judice.

Accordingly, we find no violation of App ellant’s cons titutiona l rights a gains t doub le

jeopard y.



       We affirm the ju dgme nt of the trial co urt.



                                   ____________________________________

                                            -7-
                         THOMAS T. W OODALL, Judge



CONCUR:


___________________________________
JOHN H. PEAY, Judge


___________________________________
DAVID G. HAYES, Judge




                               -8-
