Summary
reversing and remanding the case for a new trial after concluding that the trial court committed plain error when it gave a pattern jury instruction that provided "the inapplicable definitions of 'knowing' relating to second degree murder" and "fail[ed] to instruct on the proper applicable definition of 'knowing'"
Summary of this case from State v. WatkinsOpinion
No. W1999-01019-CCA-R3-CD.
Filed January 30, 2001. January 9, 2001 Session.
Direct Appeal from the Criminal Court for Shelby County No. 98-11254; Chris Craft, Judge
Reversed; Remanded for New Trial.
Charles D. Wright (at trial), Wayne Emmons (on appeal), and Robert C. Brooks (on appeal), Memphis, Tennessee, for the appellant, Keith T. Dupree.
Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; William L. Gibbons, District Attorney General; Elaine K. Sanders and Betsy L. Carnesale, Assistant District Attorneys General, for the appellee, State of Tennessee.
Joe G. Riley, J., delivered the opinion of the court, in which David G. Hayes and John Everett Williams, JJ., joined.
OPINION
Defendant, Keith T. Dupree, appeals his conviction by a Shelby County jury for second degree murder. Although we find the evidence sufficient to support the verdict, we find plain error in the jury charge which improperly defined the mental state of "knowing" for the offense. Accordingly, we reverse and remand for a new trial.
FACTS
It is undisputed that the defendant shot and killed the victim, Deshauna Stewart, on July 6, 1998, at approximately 7:00 a.m. with a .380 caliber pistol. The only disputed facts relate to whether the killing was "knowing" or accidental.
The state's proof revealed that the victim was the defendant's ex-girlfriend and mother of one of his children. After getting off work at 6:30 a.m. on July 6, 1998, the defendant went to the victim's apartment. The victim and her three children were present when the defendant arrived.
It is undisputed that the defendant and the victim had a disagreement about personal matters, and the defendant shot the victim in the head with a pistol. Immediately thereafter, the defendant called 911 and reported an accidental shooting. After putting the pistol in a closet, he fled the residence with the victim's children. He eventually turned himself in to authorities at approximately 1:00 p.m. It is further undisputed that the defendant had previously assaulted the victim and was under a domestic violence order enjoining him from threatening or committing acts of violence against the victim.
The state introduced into evidence the defendant's two pre-trial statements. In the first statement the defendant said he asked the victim to return a pistol that belonged to another person. He said he laid the gun on the bed when she gave it to him. He stated that they then discussed getting back together, but the victim accused him of not wanting to pay the bills. He stated they talked "loud," but did not argue. He said that he picked up the gun, took the clip out, took a bullet out of the clip, and put the clip back into the gun. He stated he accidentally pulled the trigger, thereby shooting the victim. He stated that he called 911, attempted to revive the victim, tossed the gun somewhere in the apartment, panicked, and left the apartment with the children.
In his second statement the defendant said that the victim referred to the defendant's son as "slow" and "retarded," and stated the defendant "was going to be with project bitches." Defendant said he then accused the victim of seeing another man. He conceded they were arguing. He stated he then took the clip out of the pistol, removed a bullet, placed the empty clip in the gun, and put the bullet in his pocket. He said that he then told the victim, "I ought to kill you;" he pointed the gun at the victim; and the gun went off accidentally. He told the officer that he held the gun in a position where the handle was parallel to the ground, which the officer described as a "gangster-type" position.
The defendant did not testify at trial.
The state argued to the jury that the killing was "knowing," while defense counsel argued that the killing was accidental and not second degree murder. The jury found the defendant guilty of second degree murder.
SUFFICIENCY OF THE EVIDENCE
Defendant contends the evidence is insufficient to establish that the killing was "knowing." We conclude otherwise.
In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. Id. This Court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant demonstrates that the facts contained in the record and the inferences which may be drawn therefrom are insufficient, as a matter of law, for a rational trier of fact to find the accused guilty beyond a reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn.Crim.App. 1996). Accordingly, it is the appellate court's duty to affirm the conviction if the evidence, viewed under these standards, was sufficient for any rational trier of fact to have found the essential elements of the offense beyond a reasonable doubt. Tenn.R.App.P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).
Second degree murder is a "knowing killing of another." Tenn. Code Ann. § 39-13-210(a)(1). A "knowing" killing is one in which "the person is aware that the conduct is reasonably certain to cause the result." See Tenn. Code Ann. § 39-11-106(20); _State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000).
Viewing the evidence in a light most favorable to the state, as we must, we conclude the evidence is sufficient to establish a knowing killing. The jury could reasonably conclude from defendant's statements that he and the victim were arguing; he picked up the pistol; he pointed the pistol directly at the victim's head in a "gangster-style" position; he stated an intention to kill the victim; and he deliberately pulled the trigger, thereby killing the victim. The jury could further reasonably conclude that the defendant's flight from the crime scene and failure to turn himself in for several hours were not consistent with an accidental shooting. The question of whether the killing was "knowing" or an accident was a question for the jury. See State v. Elder, 982 S.W.2d 871, 876 (Tenn.Crim.App. 1998). It was within the jury's prerogative to reject defendant's contention of an accidental shooting.
JURY INSTRUCTION DEFINING KNOWING
In defining the mental state of "knowing" in the second degree murder jury instruction, the trial court instructed the jury as follows:
A person acts "knowingly" if that person acts with an awareness either: (1) that his conduct is of a particular nature; or (2) that a particular circumstance exists.
The trial court omitted that portion of the definition of "knowing" which provides that "[a] person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result." See Tenn. Code Ann. § 39-11-106(20). Defendant contends this is plain error which requires reversal. The state, on the other hand, contends this issue was not raised in the trial court, and that, regardless, the trial court instructed the jury in accordance with the Tennessee Pattern Jury Instructions in effect at the time of trial. We agree with the defendant's argument.
A. Failure to Raise Issue in Trial Court
Defendant voiced no objection to the jury charge and did not raise this issue in the motion for new trial. Generally, a defendant waives the right to challenge a jury instruction when the defendant did not object to the instruction and did not include it in the motion for new trial. See State v. Kendricks, 947 S.W.2d 875, 885 (Tenn.Crim.App. 1996). However, an error which has affected the substantial rights of a defendant may be noticed at any time at the discretion of the appellate court where necessary to do substantial justice. Tenn. R. Crim. P. 52(b);State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). The plain error doctrine applies where the trial court fails to give a jury charge on matters characterized as "fundamental," despite the fact that the defendant did not request the omitted instruction. State v. Stephenson, 878 S.W.2d 530, 554 (Tenn. 1994). We conclude the jury instruction utilized in this case constituted plain error.
B. Applicable Definition of Knowing
As stated, second degree murder is the "knowing killing of another." Tenn. Code Ann. § 39-13-210(a)(1). The word "knowing" is defined in our Code as follows:
"Knowing" refers to a person who acts knowingly with respect to the conduct or to 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 of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.
Tenn. Code Ann. § 39-11-106(20).
We note that this definition is divided into three parts; namely, the nature of the defendant's conduct, the _circumstances surrounding the defendant's conduct, and the result of the defendant's conduct. Second degree murder is a "result- of-conduct offense" which "requires that the culpable mental state accompany the result as opposed to the nature of the conduct."State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). In second degree murder, the result of the conduct is the sole element of the offense, whereas the nature of the conduct is inconsequential. Id. Thus, in order to satisfy the "knowing" mental state for second degree murder, the state must prove beyond a reasonable doubt that the defendant "[was] aware that the conduct [was] reasonably certain to cause the result." It is insufficient to establish that the defendant was simply aware of the nature of his conduct or that the circumstances surrounding his conduct existed.
A thorough analysis by Judge David G. Hayes of the separate applications of the three definitions of "knowing" is contained in this court's opinion in State v. Jennie Bain Ducker, C.C.A. No. 01C01-9704-CC-00143, 1999 WL 160981 at *15-17 (Tenn.Crim.App. filed March 25, 1999, at Nashville). Permission to appeal was granted by the Tennessee Supreme Court; this court's judgment was affirmed; and the Tennessee Supreme Court's opinion has been cited above. See State v. Ducker, 27 S.W.3d 889 (Tenn. 2000). Judge Hayes' opinion discusses the historical basis for the mens rea analysis, the dangers inherent in a blanket jury instruction in all offenses utilizing all three definitions, the confusion and ambiguity that has accompanied the definitions, and the recognition that legislative revisions may be necessary to negate the confusion. We see no conflicts in Judge Hayes' opinion and the opinion by the Tennessee Supreme Court. Accordingly, we attach the pertinent portion of Judge Hayes' opinion as an appendix to this opinion.
The jury instruction utilized in this case stating that the "knowing" mental state could be established by showing that the defendant was aware that his conduct was of a particular nature or that particular circumstances existed was improper and placed a lesser burden on the state than required for this result-of-conduct offense.
C. Pattern Jury Instruction
The state contends the trial court utilized a pattern jury instruction in effect at the time of trial; therefore, there could be no error. We respectfully disagree.
We do note that the trial court indeed used a published, pattern jury instruction which omitted the applicable definition of "knowing" and which was an alternative instruction on the definition of "knowingly." See T.P.I. — CRIM 2.09 (4th Ed. 1995). Subsequently, the Fifth Edition of the pattern jury instructions was published, and it included all three definitions.
However, pattern jury instructions are merely patterns or suggestions, have not been officially approved by an appellate court or the general assembly, and must be revised or supplemented if necessary to fully and accurately conform to applicable law.State v. Hodges, 944 S.W.2d 346, 354 (Tenn. 1997). Reliance upon an erroneous pattern jury instruction does not alleviate error.
D. Harmless Error
Finally, we must determine whether the omission of the definition of the proper mental state was harmless error. The United States Supreme Court and the Tennessee Supreme Court have both determined that the erroneous omission of an element of the offense from a jury instruction is subject to harmless error analysis. See Neder v. United States, 527 U.S. 1, 8-9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); State v. Garrison, ___ S.W.3d ___ , ___ (Tenn. 2000); see also State v. Walker, 29 S.W.3d 885, 894- 95 (Tenn.Crim.App. 1999).
We are unable to find harmless error. The sole issue in this case was whether the killing was knowing or accidental. In other words, the sole issue was whether the defendant was aware that his conduct was reasonably certain to cause the result. Yet, this element was not conveyed to the jury, and a lesser standard was set forth.
The harmful nature of the omission is further evidenced by the jury's question posed to the trial court. During deliberations, the jury submitted the following written question to the trial court: "According to the law, does pointing a gun at someone else assume that the person pointing the gun `knows' that the gun will hurt the other person?" The trial court's written response was that the jury had already been given the definition of "knowing" in the charge, and the jury must decide the mental state of the defendant from the law already given. We also note that the state argued to the jury that even if the jury believed the defendant's second statement, the defendant could still be convicted of second degree murder. Thus, the jury could have erroneously concluded from the jury instruction that the mere act of knowingly pointing a gun thought to be unloaded at someone necessarily establishes that such conduct is reasonably certain to result in a killing.
For these reasons, we can only conclude that the inapplicable definitions of "knowing" relating to second degree murder, combined with the failure to instruct on the proper applicable definition of "knowing," was prejudicial to the defendant. Thus, we reverse and remand for a new trial.
CONCLUSION
In fairness to the trial court, we recognize that our disposition is primarily controlled by State v. Ducker, supra, which was decided by the Tennessee Supreme Court long after the trial of this case. We further observe that the trial court gave a pattern jury instruction contained in the then-existing Tennessee Pattern Jury Instructions. Nevertheless, we are constrained to conclude that, in light of the facts and circumstances of this case, the erroneous jury instruction constituted plain error enuring to the prejudice of the defendant. Accordingly, we reverse and remand for a new trial.