        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                    SEPTEMBE R SESSION, 1996


STATE OF TENNESSEE,      )    C.C.A. NO. 02C01-9603-CR-00081
                         )
      Appellee,          )
                         )                                FILED
                         )    SHELBY COUNTY
VS.                      )                                 January 9, 1998
                         )    HON. CHRIS CRAFT
ANDREA D. MILES,         )    JUDGE                       Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
                         )
      Appe llant.        )    (Direct Appeal-First Degree M urder)



FOR THE APPELLANT:            FOR THE APPELLEE:

CHARLES E. WALDMAN            JOHN KNOX WALKUP
147 Jefferson Avenue          Attorney General and Reporter
Suite 1102
Memphis, TN 38103             ELLEN H. POLLACK
                              Assistant Attorney General
                              450 James Robertson Parkway
                              Nashville, TN 37243

                              WILLIAM L. GIBBONS
                              District Attorney General

                              JERRY C. BEASLEY, JR.
                              JERR Y HAR RIS
                              Assistant District Attorn eys
                              201 Poplar Avenue - 3rd Floor
                              Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION
       Appellant Andrea D. Miles was convicted on August 11, 1995 in the Shelby

Coun ty Criminal Court of murder in the first degree. She received a sentence of

life imprison ment w ith the Tennes see Dep artment of C orrections. Add itionally,

the court imposed a fine of $50.00 to be paid to the Criminal Injuries

Compensation Fund. Appellant presents three issues for our consideration on

this direct appeal: (1) whether the evid ence was s ufficien t to sus tain Appe llant's

conviction for first degree murde r; (2) wheth er the trial co urt erred in failing to

instruct the jury regarding post traumatic stress disorder; and (3) whether the

prosecution failed to carry its burden of proving that Appellant was sane at the

time the offense was committed.

       After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                           I. FACTUAL BACKGROUND

       The proof shows that on August 5, 1992, Appellant, along with M r. Daris

Barrett and Mr. Shinny Leverett, murdered Mr. Frank Miles, Jr., Appe llant's

husband. Mr. Miles was shot seven times, stabbed five times, and run over with

his own automobile at his home in Memphis.

       Appellant had been married to her husband for only one year at the time

of his death ; howeve r, the co uple h ad lived togeth er for nin e year s befo re their

marriage. On A ugus t 1, 199 2, App ellant a nd the victim q uarre led ab out ch ild

care. Beca use o f this disp ute, M r. Miles h it Appellant, causing a cut over her

right eye. On this same day, Mr. Eddie Walker, a friend of Appellant's, drove

Appellant to her mo ther's h ouse , to her s ister's h ouse , and to Daris Barre tt's

house before finally taking Appellant to the hospital to receive treatment for the



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cut over her eye. While at Daris Barrett's house, Appellant showed Barrett the

cut over her e ye. Acco rding to Mr. Walker's testimony, Mr. Barrett then asked

Appellant whether she would like her husband to be killed. Appe llant alle gedly

replied, "Yes" and laughed. Shinny L everett, a friend of both Ap pellant's and M r.

Barrett's, was pre sent du ring this brie f exchan ge betw een M r. Barrett and

Appe llant.

         Later that day, Appellant saw her husband at Methodist Central Hosp ital.

Appellant went to the hospital in order to receive treatment for the cut above her

eye. Mr. Miles went to the hospital for the purpose of receiv ing treatmen t for a

gunshot wound which allegedly had been inflicted by M r. Barrett an d Mr. Lev erett.

According to Mr. W alker's testimony, upon being informed that her husband had

come to the hospital to rece ive treatment, Appellant replied, "Fuck him. . . he

need [s ic] to die any way."

         Mr. Walker testified that on August 2, he overhea rd App ellant spe aking to

Mr. Barrett and that she informed him that her husband would be at home on

Monday.       Mr. Walker further testified that Appellant said that because this

proba bly was the time wh en Appe llant and her two friend s intended to kill Mr.

Miles.

         Between August 1 and August 5, Appellant did not reside at her home.

When Appellant phoned Mr. Walker and asked to borrow his car to retrieve some

clothing from her home, Walker declined to lend his car to her and urged her not

to return home so that an altercation between Appellant and her husband might

be avoided.

         Mr. Wa lker's warn ing notw ithstandin g, Appellant, Mr. Barrett, and Mr.

Leverett took a cab to A ppellant's home on Aug ust 5 at approximately 1:00 A.M.

Appellant instructed the two men to get out of the cab approximately one block

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from her residence. Appellant testified that she d esired tha t Barrett an d Levere tt

arrive unann ounce d as thou gh they were visiting her. Appellant further stated

that upon arriving, she left the door op en in case the victim attempted to harm

her. Mr. Miles was watching television in his bedroom when Appellant entered

the house. Mr. Miles and Appellant then argued. Wh en Bar rett and L everett

arrived, a fight ensued. The victim w as sh ot and stabb ed as he ran from h is

bedroom, down th e hallway , and ou t the front door to the drivewa y. Once Mr.

Miles was no longer inside the house, the two males obtained the keys to his

automobile. In their has te to depa rt from the murde r scene , Barrett and Leverett

drove the car o ver the victim as he lay in the driveway.

       A trail of blo od be gan in the bedroom and continue d down the hall an d onto

the driveway. Teeth fragments were scattered around the front door and on the

driveway. Broken knives were found throughout the house. A bullet hole was

found in the front door and in a window.



                     II. SUFFICIENCY OF THE EVIDENCE

       Appe llant's first con tention on this direct appeal is that the evidence was

insufficient to sustain her conviction for first degree murder. We disagree.

       This Court is obliged to review challenges to the sufficiency of the

convicting evidence according to certain w ell-settled pr inciples. A verdict of gu ilty

by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's

witnesses and res olves all co nflicts in the tes timony in favor of the State. State

v. Cazes, 875 S.W.2d 253, 259 (Ten n. 1994); State v. Harris , 839 S.W.2d 54, 75

(Tenn. 1992). Although an accused is originally cloaked with a presumption of

innocence, a jury ve rdict rem oves th is pres ump tion and replaces it with one of

guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the

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burden of proof re sts with Ap pellant to d emon strate the in sufficiency of the

convicting evidenc e. Id. On appeal, "the [S]tate is entitled to the strongest

legitimate view of the evidence as well as all rea sonab le and leg itimate

inferences that may be drawn therefro m." Id. (citing State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978)).          W here th e suffic iency o f the evid ence is

contested on appea l, the relevant question for the reviewing cou rt is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reaso nable d oubt. Harris , 839 S.W .2d 54, 75 ; Jackson v.

Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In

conducting our evaluation of the convicting evidenc e, this Court is precluded from

reweighing or recons idering the evidenc e. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. A pp. 199 6); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences "for those

drawn by the trier of fact from circumstantial evidenc e." Matthews, 805 S.W.2d

776, 779. Fina lly, T ENN. R. A PP. P. 13(e) provides, "Findings of guilt in criminal

actions wheth er by th e trial co urt or jur y shall b e set a side if th e evide nce is

insufficient to support the findings by the trier of fact of guilt beyon d a rea sona ble

doubt." See also Matthews, 805 S.W.2d 776, 780.

       At the time of this offense, Tenn. Code Ann. § 39-13-202(a) provided in

pertinent part: "F irst deg ree m urder is: (1) An intentional, premeditated and

deliberate killing of another. . . ." Tenn. Code Ann. § 39-13-202(a)(1) (1991,

Repl.).

Tenn. Code Ann. § 39-13-201 provided in part: "(b) The following definitions

apply in this part: (1) `Deliberate act' means one performed with a cool purpose;

and (2) `Premeditated act' means one done after the exercise of reflection and

judgmen t. Prem editatio n ma y includ e insta nces of hom icide committed by poison

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or by lying in wait." Tenn. Co de Ann . § 39-13 -201(b) (1 991, R epl). The State

was required to prove each and every element of the offense beyond a

reason able do ubt.

       In State v. Brown, the Tennessee Supreme Court emphasized that

"premeditation" and "deliberation" are two separate elements of first degree

murder, each requ iring independ ent proof. 836 S .W.2d 530, 538 (T enn. 1992 ).

The court explained that although premeditation may be formed instantaneou sly,

Id. at 539 , "it is now abun dantly clear that the de liberation necess ary to establish

first degree m urder cannot be formed in an instant. It requires proof. . . that the

homicide was `comm itted with `a cool purpose' and without passion or

provo cation .'" Id. at 543. This C ourt has held "that th e elem ents of premeditation

and deliberation are questions for the jury and may be inferred from the manner

and circums tances of the killing." State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim.

App. 1993). It is axiomatic that once a homicide has been proved, it is presumed

to be m urder in the secon d degre e. Gentry, at 3-4; Brown, 836 S.W.2d 530, 543.

In order to elevate the offense to murder in the first degree, the State mu st carry

its burden of proving bo th prem editation a nd delibe ration. Brown, 836 S.W.2d

530, 543.

       In her brief, Appellant concedes that she caused the death of her husband;

however, she claims that she did not possess the requisite intent to w arrant a

conviction for first degree murder.

       At trial, Appellant testified that she shot and stabbed the victim. Dr. Jerry

Francisco, the Cou nty Med ical Exam iner for Sh elby Co unty, testified that h is

autopsy revealed that the victim died as a result of multiple gunshot and stab

wound s.




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      Four days before the homicide, Mr. Barrett inquired of Appellant whether

she would like to see her husband dead, she answered "yes" and laughed. On

that sam e day, A ppella nt told th e rece ptionis t at Met hodis t Cen tral Ho spital:

"Fuck him [the victim]. . . He need [sic] to die anyway." Moreover, Appellant and

her two co-defe ndants traveled together to Appellant's home on the night of the

murder. Finally, Appellant testified that she left her front door open so that her

two friends could enter her home as though they were visiting h er. Th ere is

amp le evidence that this homicide was both premeditated and deliberate, and is

therefore first degree murder.



                            III. JURY INSTRUCTIONS

      Appellant next complains that the trial court erred by not instructing the jury

on post traum atic stress disorder . She buttresses this statement by asserting

that the instruction on post traumatic stress disorder was crucial in order for the

jury to competently determine whether or not Appellant possessed the required

intent necessary to convict her of first degree murder. Because Appellant neither

objected to the trial court's jury charge nor tendered any special request that the

trial court g ive a jury instructio n on post traumatic stress disorder, she cannot

now complain about this omission from the jury instruction s. See, e.g., State v.

Brewer, 932 S.W.2d 1, 16 (Tenn. Crim. App. 1996) (holding that as a general

rule, "[i]n the abse nce of an objection or a spe cial reque st, a defendant may not

later raise an issue regarding an omission in the cou rt's charge ."). Id. (quoting

State v. Norris , 874 S.W.2d 590, 600 (Tenn. Crim. A pp. 199 3)). See als o State

v. Smith , 626 S.W.2d 283, 285 (Tenn. Crim. App. 1981) (holding that a defendant

cannot "successfully assign as error the inadequacy of jury instructions unless a




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special request for further instructions is made").          Therefore, Appellant has

waived th is issue on appea l. Brewer, 932 S.W.2d 1, 16.

       Desp ite Appella nt's waiver o f this issue, w e will, none theless, b riefly

address the merits of her claim. Although diminish ed cap acity is not a c omple te

defense to a criminal charge in Tennessee, evidence of diminished capacity may

be considered by a jury in deciding whether the defendant possessed the mental

state required to comm it the offens e. State v. Phipps, 883 S.W.2d 138, 143

(Tenn. Crim. App. 19 94). How ever, Phipps is distinguishable from the case sub

judice in three respe cts. Firs t, as no ted ab ove, un like in Phipps, Appe llant did not

request the court to instruct the jury regarding post traumatic stress syndrome.

Second, in this case, Appellant's primary defense is that of insanity, whereas the

primary defense asserted in Phipps was tha t the defen dant lack ed the re quisite

mens rea necessary to commit the offense because of depression and post

traum atic stress syndro me.       Id.   Finally, here, unlike in Phipps, the jury

instructions, taken as a whole, did not "have the probable effect of excluding

evidence of Appellant's mental state from the jury's consideration of the element

of specific inte nt." Id. We , therefo re, hold that the trial court did not err in the

instructions given to the jury.



     IV. PRO SEC UTIO N'S B URD EN O F PRO OF W HER E INSA NITY IS

ALLEGED

       Finally, Appellant argues that the prosecution failed to carry its burden of

proving that Appellant was sane w ithin the m eaning of Tenn . Code Ann. § 39,11-

501 (1991, Repl.), at the time of the offense. Appellant further argues that the

evidence affords no support for the jury's conclusion that she was sane at the

time of the crime. Because we find that the prosecution presented evidence

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sufficient to satisfy its burden of proving sanity beyond a reasonable doubt, we

affirm the conviction.

       In every case, the law presumes initially that the ac cused is sane. State

v. Jackson, 890 S.W .2d 436, 440 (Tenn. 199 4). However, if the evidence raises

a reaso nable doubt a s to the accused's sanity, the burden of proof rests with the

prosecution to establish the defen dant's sa nity beyond a reaso nable d oubt. Id.

Hence, sanity becomes an element of the offense. Id. (quoting State v. Clayton,

656 S.W .2d 344, 346 (Tenn. 198 3)).

       Tenn. Code Ann. § 39-1 1-501 provid es in pertinen t part: "(a ) Insan ity is a

defense to prosecution if, at the time of such conduct, as a result of mental

disease or defect, the person lacked substantial capac ity either to appreciate the

wrongfulness of the person's conduct or to conform that conduct to the

requireme nts of law." Tenn . Code An n. § 39-11-50 1(a) (1991, R epl.).1

       The State ca n satisfy its burden of proving the accu sed's sa nity at the time

of the commission of the offense by presenting evidence that is consiste nt with

sanity and inco nsistent w ith insanity. State v. Edwards, 540 S.W.2d 641, 646

(Tenn. 1976). This evidence may be in the form of expert and lay testimony on



   1
    The significant alterations to Tennessee's insanity defense statute became effective July 1,
1995. Tenn. Code Ann. § 39-11-501 now provides:

             (a) It is an affirmative defense to prosecution that, at the time of the
             commission of the acts constituting the offense, the defendant, as a result
             of a severe mental disease or defect, was unable to appreciate the nature or
             wrongfulness of such defendant's acts. Mental disease or defect does not
             otherwise constitute a defense. The defendant has the burden of proving
             the defense of insanity by clear and convincing evidence.
             (b) As used in this section, "mental disease or defect" does not include any
             abnormality manifested only by repeated criminal or otherwise antisocial
             conduct.
             © No expert witness may testify as to whether the defendant was or was
             not insane as set forth in subsection (a). Such ultimate issue is a matter for
             the trier of fact alone.
Tenn. Code Ann. § 39-11-501.

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the issue or proof of acts or statements of the defendant at or very near the time

of the offen se. Id.

       Two psycholo gists, both of whom had evaluated Appellant, testified at

Appe llant's trial.    Dr. Lynn Donna Zager, a certified forensic examiner and

Director of Clinical Services at Midto wn M ental H ealth C enter, te stified o n beh alf

of the prosecution.      Dr. Zager testified that in conducting her evaluation of

Appellant and in formulating her ultimate conclusions, she consulted numerous

outside sources, namely, the police files; the District Attorney's files; statem ents

of witnesses; Appellant's social, psychological, and medical histories; and the

conflicting statements given by Appellant to the police. Dr. Zager further stated

that she met with Appellant on two sep arate occasions fo r a total time of forty-five

minutes. She also testified that after administering a competency assessment

to Appella nt, she b elieved that Ap pellan t mos t likely suffere d from post tra uma tic

stress disorder. Finally, she rendered her expert opinion that though afflicted with

a menta l illness, App ellant non etheless posse ssed the ability to appre ciate the

wrongfulness of her condu ct and to confo rm her action to the requirements of law

at the time of the crim e.

       Dr. Ann Quinn Phyfer, a clinical psychologist and Program Director at

Mem phis Mental H ealth Institute , testified on behalf of Appellant. Dr. Phyfer

testified that in arriving at her opinion, she relied solely upon information gathered

from inte rviews with Appella nt. Like Dr . Zager, D r. Phyfer co nclude d that




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Appellant suffered from post traumatic stress disorder. 2 However, Dr. Phyfer

opined that at the time of the offense , Appellant's mental illness, i.e., post

traumatic stress disord er, ren dered her inc apab le of co nform ing he r actions to the

requirem ents of law .

       The jury was entitled to accredit the testimony of Dr. Zager, and it

appa rently did so. We decline to disturb its findings on appeal. The judgment of

the trial cou rt is, therefore , affirmed.



                                     ____________________________________
                                     JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
DAVID H. WELLES, JUDGE




   2
     Appellant's post traumatic stress disorder was caused by the occurrence of several traumatic
events. In 1986, Appellant was abducted, robbed, raped, shot twice, and left for dead. Twelve
hours later, Appellant was discovered and taken to the hospital. However, because of a gunshot
wound to the back, she is a paraplegic. Furthermore, Appellant's house burned down on the same
day of the rape and shooting. In January 1987, the youngest of Appellant's four children died of
sudden infant death syndrome. In 1991 following the couple's marriage, Mr. Miles severely
burned Appellant's leg by pressing the sole of a hot iron to Appellant's thigh. Apparently, Mr.
Miles continued to abuse Appellant until his death. Despite the testimony of severe spousal
abuse, the jury obviously concluded that the murder of Mr. Miles was deliberate and planned.
Although we are sympathetic to Appellant's plight, we are not free to disturb the jury's verdict.

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