State v. Pierce ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
DECEMB ER SESSION, 1997 September 10, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9703-CR-00117
)
Appellee, ) SULLIVAN COUNTY
)
vs. )
) HON. R. JERRY BECK, JUDGE
LON MITC HEL L PIER CE, JR ., )
) (FELONY MURDER; THEFT OVER
Appe llant. ) $10,000; MISDEMEANOR THEFT;
) EVADING ARREST)
FOR THE APPELLANT: FOR THE APPELLEE:
JAMES S. ROACH JOHN KNOX WALKUP
Attorney at Law Attorney General and Reporter
128 E. Market Street
Johnson City, TN 37604 MARVIN E. CLEMENTS, JR.
Assistant Attorney General and
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
DONALD E. SPURRELL Nashville, TN 37243
Attorney at Law
128 E. Market Street
Johnson City, TN 37604 H. GREELEY WELLS
District Attorney General
TERESA M. SMITH
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Appella nt, Lon M itchell Pierce , Jr., was fou nd guilty by a Sullivan
Coun ty jury of the crim es of first degree felony murder, theft over $10,000,
misdemeanor theft, and evading arrest. At the time of the instant offenses, the
Appellant was fifteen years of age. Following a hearing in the Juvenile Court, the
Appellant was transferred to the Criminal Court for trial as an adult. Although the
Appellant was also indicted on a charge of simple pos session of co caine, the jury
returned a verdict of not guilty as to this count. In accordance with the sentencing
provisions for the capital crime of felony murd er, the tr ial cou rt fixed th e App ellant’s
sentence at life imprisonment. Following a sentencing hearing for the remaining
convictions, the trial court imposed an effective sentence of four years and ordered
that this sentence run con currently to the life sente nce. In this a ppeal a s of right, the
Appellant raises the following issues:
I. W h ether the State of Tennessee had jurisdiction over the
offense s of felony m urder an d felony the ft;
II. Whether the evide nce is su fficient to sus tain the Appella nt’s
conviction for felony m urder;
III. Whether the trial court properly denied the Appellant’s request
for special instructions regarding the felony murder charge;
IV. Whether the court properly charged the jury regarding lesser
offenses of felony murder; and
V. Whether the trial court erred in allowing the jury to sentence the
Appellant to life in prison.
After a review o f the record, we affirm the judgment of the trial
court.
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Background
Although the events which resulted in the Appellant’s conviction for
felony murder occurred on November 22, 1995, in Sullivan County, Tennessee, the
events which ultima tely lead to this tragedy began in Orlando, Florida on November
2, 1995. O n this date in Orland o, Nora Com acho a nd her h usban d stopp ed at a
convenience store for gasoline. Passengers in the Comacho’s blue 1995 Dodge
Caravan included their fourtee n year old dau ghter, Sarah, the Appellant, age fifteen,
his sixteen year old girlfriend, April Worley, and a four year old child in Worley’s care.
Mrs. Comacho entered the convenience store to purchase a soft drink for her
daughter. Upon Mrs. Comacho’s return to the minivan, an argument ensued
between herse lf and her daughter, Sarah, because the soft drink was in a cup and
not in a bottle. Mr. Comacho got out of the minivan and went to purchase a bottled
soft drink for his daugh ter. Meanwhile, Mrs. Comacho began to pum p gaso line into
the minivan’s gas tank. Sarah “slippe d over in the driver’s se at, hit the autom atic
[door] locks, turned the ignition on and dro ve off with the gas hose in the van.” An
employee of the convenience store immediately notified the Orlando Police
Depa rtment. Nora Comacho advised law enforcement authorities that her daughter
had taken her vehicle on two prior occasions, only to be returned without legal
repercussions. However, regarding the present offense, she advised authorities that
she wanted to press charges. The Dodge Caravan was subse quently e ntered in to
the NCIC computer to provide a nationwide bulletin of the stolen vehicle.
After fleeing the convenience store, Sarah Comacho commandeered
the minivan for approximately twenty minutes before asking the Appe llant to drive
due to her inexp erience . The Appellant took control of the vehicle and returned the
3
four year old child to his home. April Worley sugg ested that the trio travel to Bristol,
Virginia, in order to visit her grandmother. With the Appellant and Worley driving in
alternating shifts, the trio reached Virginia in about twelve hours. For the next
several weeks, the teenagers stayed with Worley’s grandmother at her res idenc e in
the Rice Terrace Apartments and in local mote ls. The three s pent th eir time “mos tly
[riding] around . . . to different cities [in Tennessee].” During this period, the group
was involved in several incidents of shoplifting, and on one occasion, “Sarah
[Comacho] got caug ht shop lifting a Notre Dam e jacket fro m K-M art in Kin gsport.”
Although they were able to escape, the group feared that the store personnel had
obtained the license plate number of the minivan. This concern prompted the trio
to steal a “license plate from the same color and type van [they] were driving.” They
located Laura Alice Rippetoe Bassett’s light blue Dodge Caravan, bearing Sullivan
Coun ty tag number 396-NXX, near the Target store in Johnson City. After stealing
the plate, th ey “ threw th e old plate in the dum pster at a m ini-mark et.”
Twenty days after the theft of the van from Nora Comacho in Florida,
police officers in Bristol, Virginia, received information conc erning a pos sible stolen
blue Dodge minivan located in the Rice Terrace area. At approximately 3:15 p.m.
on November 22, 1995, Officers Matthew Quillen and Vic Jo rdan lo cated a vehic le
matching this description parked on Buckner Street near the Rice Terrace
Apartments. Although the van appeared unoccupied and the officers never
observed anyone enter the van, the van pulled out of the parking lot about ten
minutes later. The officers no ticed that a male, late r identified as the App ellant, was
driving the van and that a female, later identified as April Wo rley, occupied the front
passenger seat. Q uillen and Jord an began following the minivan. As the van
approached an inte rsectio n, it failed to stop before turning right. At this point the
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officers turned on the patrol car’s blue lights to initiate a vehicle stop. The van failed
to respond, accelerated, and proceeded to pass a school bus that was unloading
children. At this point, the officers activated the emergency sirens. After a three
minute pursuit thro ugh Br istol, Virginia, du ring which the App ellant con tinued to
violate nume rous traffic law s, the minivan crossed into the state of Tennessee.
Bristo l, Tennessee police were notified of the pursuit and Q uillen and Jordan
returned to Virginia.
Bristol, Tennessee Police Office r Jam es Bre uer co ntinue d the p ursuit
of the minivan. Like his Virginia counterpart, Breuer activated all emergency
equipment on his patrol car, however, the Appellant refused to stop. Breuer
described his pursuit as a low speed c hase, appro ximately forty-five miles per hour
in a twen ty-five m ile per hour speed zone, during which time the Appellant continued
to violate traffic law s. Breu er state d that th e min ivan “w ould slow down almost to a
stop to allow vehicles in front of him to pull over.” At one point during the pursuit, the
van “tapped” the back of a civilian vehicle at an interse ction, w hich ca used Breu er’s
patrol car to hit the back end of the van. No damage resulted to either vehicle.
Lieutenant Dann y Bain es join ed Br euer’s fourtee n and one-h alf mile
pursu it as the chase proceeded away from the Bristol city limits. Once leaving the
city limits, Captain Daryll Chambers of the Sullivan County Sheriff’s Department took
the lead. Although the Br istol po lice office rs con tinued as ba ckup in the pursuit, the
officers deactivated their emergency equipment. Both Bristol police officers and
Sullivan Coun ty depu ties we re notifie d that th e pos sible stolen vehicle may c ontain
both narcotics and weapons. The chase continue d throug hout the county on Ro ute
5
44, with speeds va rying between twenty-five miles per h our to sixty-five miles per
hour.
Deputy Steve M ullins radioe d to Cha mbers that “he was. . .coming down
old 421 and he advised he would come down Hick ory Tree Road and try to cut them
off.” Shortly thereafter, Chambers was able to spot the blue lights of Mullins’ patrol
car, appro ximate ly four-te nths o f a mile in the distance. It appeared that Mullins had
“a road block set up” with his vehicle. Although Mullins’ patrol car extended
approximate ly two feet over the center line, enough room remained in which a
vehicle could safely m aneuver aro und the de puty's car. Proof was introduced at trial
based upon a reconstruction of the collision. The reconstruction revealed that
oncoming traffic co uld safely m aneuve r around the positio ned pa trol car. In fact, a
Ford pickup truck pulling a dual axle cattle trailer was able to pass. The reenactment
also revealed that a vehicle travelin g app roxim ately 55 to 60 m iles pe r hour c ould
safely maneuver past the parked patrol car and turn onto Gree n Roa d imm ediate ly
past the roa d block. Additional testimon y indicated that the A ppellant could h ave
turned on to a side road prior to reaching the roadblock. Deputy Mullins positioned
hims elf behind the patrol car, and raised his weapon at the oncoming van.
Cham bers testified that, as the minivan approa ched th e roadb lock:
. . .the van slowed some. It was in my mind at that time that it was
going to stop. But, he slowed down to a constant speed and then he
didn’t, he didn’t slow down any more and I was still right behind him.
He proceeded on towards where the cruiser was at in the highway. He
didn’t try to avoid co llision with the cruiser. H e didn’t try to go to the
right. He didn’t, he dro ve straigh t into the fron t of that cruise r. . . .
Upon impac t, the van veered off to the right. [Deputy] Mullins, it just
sent him flying through the air, like a rag doll really, just, he went back
and they [sic] was a tire truck . . . parked some distance from the
cruiser behind the cruiser. And, it knocked him back, it looked like he
hit the front of the truck and then veered off to the right, landed in the
midd le of the highway. . . . I jumped o ut of my c ruiser an d I run to
Steve and h ollered at him and s hook him, a nd he was b leeding real,
6
real bad he was blee ding. . . . And , then he q uit bleedin g, he w asn’t
bleeding any more and I checked his pulse, he didn’t have a pulse, he
wasn’t br eathing . . . .
Depu ty Mullins, a nineteen year veteran of the Sheriff’s Department, died on the
scene as a resu lt of massive head injuries sustained during the incident. The Bristol
police officers already on the scen e arres ted the Appe llant, Ap ril Worley, and Sarah
Comacho. No weapons were found in the vehicle, although officers did discover
one-ten th of one gram of cocaine, which the teens stated be longed to Wo rley’s aunt.
In a subsequent statement to law enforcement officers, the Appellant
explained that “[t]he rea son I didn ’t stop [during the purs uit by law enforcement
officials] was because I was scared . . . all I wanted to do was get on the inte rstate
and get out of the van and leave it there and get away from it. . . .” Furthermore, he
recounted his version of the collision resulting in Deputy Mullins’ death:
I saw the police car pull out across the road in front of me. He was
across his lane and in my lane just a little bit, but I had enoug h room to
go around him in my lane. I was trying to go around him and that’s
what I wa nted to do .
I saw the police officer open his car door and he pointed a . . . pistol at
the van. . . .
When I saw the pistol, I thought I put m y foot on the brake , I’m not sure
if I did or not. I let go of the steering wheel and ducked straight down
with my arm s covering my face. I then heard and felt the crash and
knew I’d hit something. I thought I was swerving to the right and would
miss the police office r when I d ucked my hea d.
Based upon the evidence presented at trial, the jury found the Appellant
guilty of felony murder, felony theft of the minivan, misdemeanor theft of a license
plate, and evading arrest.
7
I. Jurisdiction
In his first issue, the Appellant challenges his convic tion for felon y theft
of the minivan which established the predicate offense for his first degree murder
conviction. The Appellant, citing only an Illinois case as authority, argues that the
State of Tennessee lacked jurisdiction to prosecute the Appellant for a felony
committed in Florida a nd a killing c omm itted in Te nness ee. A fortiori, if there was
no theft, there could be no felony murder conviction. He offers no argument or
explanation in support of his conclusory statem ent. As such , he ha s effec tively
waived review of this issue. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R.
10(b). Notwithstanding waive r, we elect to proceed upon the merits of the
Appe llant’s conte ntion.
Any person is liable to pu nishm ent unde r the la ws of this state for an
offense com mitted either w holly or partly within th is state. See Tenn . Code Ann. §
39-11-103 (a). Rule 1 8 of the Ten ness ee Ru les of C rimina l Proce dure p rovide s, in
part:
(a) . . . offenses shall be prosecuted in the county where the offense
was committed.
(d) Offense s com mitted w holly or in pa rt outside th is state, under
circumstances that give this state jurisdiction to prosecu te the offender,
may be prosecuted in any county in which an element of the offense
occurs, or in the ca se of a n offen se co mm itted wh olly outside th is state
in any cou nty in which the offend er is found .
There is no dispute that Deputy Mullins was killed in S ullivan County,
Tennessee. Thus, the State has jurisdiction over this homicide. However, the penal
laws of a particular sovereignty usually have no extraterritorial effect and, since one
sovereig nty cannot enforce the penal laws of another or punish offenses committed
8
in and against another sovereignty, it is a general rule of criminal law that the courts
of a particular sovereignty have no jurisdiction of offens es co mm itted ou tside th eir
sover eign’s territorial jurisdictio n. 22 C.J .S. Criminal Law § 161(a ) (1989). See also
Coffee v. Peterbilt of Nashville, Inc., 795 S.W.2d 656, 659 (Tenn. 1990); 21 A M. J UR.
2 D Criminal Law § 344 (1981); P.H. Vartanian, Annota tion, Larcen y in Othe r State
or Country, 156 A.L.R. 862, 863 (1945). Thus, although a criminal may be found
within its territorial bord ers, a sta te will not attempt to punish a person for the
comm ission in an other sta te of a crime which is consummated and which is not of
such continuing nature as to constitute an infringement of the laws of the forum after
the alleged c riminal ha s entere d its territorial jurisd iction. See P.H. Vartanian,
Annotation, Larceny in Other S tate or Co unty, A.L.R. at 863. The Appellant contends
that, since the felony theft of the Comacho van occurred in the State of Florida, the
State of Tennessee lacks jurisdiction over the offense. Again, if there is no theft,
there can be no felony murde r. Accordingly, we are confronted with the following
question: Is a perso n crim inally liable for theft under our current criminal code if that
person steals property outside this state and brings the stolen property into
Tennessee? We answer in the affirmative.
According to an a ncien t rule of c omm on law , if a ma n stole good s in
one county and carried them into another, he might be indicted and tried in either;
because, for con venien ce sa ke, it was easier to try the offend er in the coun ty in
which he was apprehended, although the law of venue required that the crime be
tried by a jury of the vicinage. See P.H. Vartania n, Anno tation, Larceny in Other
State or Country , 156 A.L.R. at 864, footnote 3 (citing State v. Le Blanch, 31 N.J.L.
82 (186 4)). Thu s, a legal fiction was cre ated, that is ,
9
the continued possession of stolen property, animo furandi, is, at every
step, a new caption and that therefore the stealing of property in one
county of the State and taking it into another was larceny in the latter
county. Every moment’s possession by the thief is a continuance of the
trespass, and am ounts, in le gal conte mplation , to a new caption and
asporta tion.
State v. Matthews, 87 Tenn. 689, 691-9 2, 11 S.W. 793, 793-94 (1889) (citations
omitted). See also 21 A M. J UR. 2d Criminal Law § 353; P.H. Vartanian, Annotation,
Larceny in O ther State or Co untry, 156 A.L.R. at 866.
The State of Tennessee, which had at one time rejec ted this theory, see
Simpson v. State, 23 Tenn. (4 Hum.) 455 (1844), legitimatized this fiction of the
common law through the enactme nt of statutes providing in substance that “[w]here
property is stolen in another S tate an d brou ght into this Sta te, the ju risdictio n is in
any county into which the property is brou ght,” Matthews, 87 Tenn. at 690, 11 S.W .
at 793 (qu oting Te nn. Co de § 49 77 (185 7)); see also Henry v. S tate, 47 Tenn . (7
Cold.) 331, 33 3 (1870 ), and by mak ing it an offens e in this state to “bring in to this
state personal pro perty stolen in another state, knowing the same to have been
stolen.” See Tenn . Code § 4697 (1857); see als o Tenn. Code Ann. § 39-3-1115
(repealed 1989). This crime is authorized, not for the crime committed in the other
state, but for th e larce ny com mitted within th is state by the a ct of brin ging stolen
property in to the jurisd iction. See 50 A M. J UR. 2d Larceny § 126 (1 995).
Argument may be made that, with the enactment of the 1989 Criminal
Code, base d large ly on the Model Penal Code, Tennessee abolished the offense of
bringing stolen pro perty into this state. W e hold to the contrary. With the passage
of Tennessee Code Annotated section 39-14-101 et seq., the legislature eliminated
the traditional distinctions between various unlawful takings in favor of one general
10
theft statute. State v. Byrd, No. 03S 01-970 5-CR -00057 , slip op. at 4, S evier Co unty
(Ten n., Kno xville (he ard at K ingsp ort), Ap ril 27, 1998). The reason for the change
was to replace “antiquated and confusing statutes with a modern easily understood
langua ge.” Sentencing Commission Comments, Tenn. Code Ann. § 39-14-101.
Although the new chapter eliminated the antiq uated termin ology o f the old , it
continues to prohibit the criminal conduct contemplated by the former theft statutes,
see Byrd, No. 0 3S01 -9705 -CR- 0005 7, slip op. at 4, thereby, clearly encompassing
the offense o f bringing s tolen pro perty into the state. See Tenn. Code Ann. § 39-3-
1115. Tennessee Code Anno tated section 39-14-101 provides:
Conduct denominated as theft in this part constitutes a single offense
embracing the separate offenses heretofore known as: embe zzlem ent,
false pretens e, fraudulent conversion, larceny, receiving/concealing
stolen property, and other similar offenses.
(emph asis add ed).
In construin g that "bring ing stolen property into this state" is included as
an "other similar offense" within the general theft provision of the current code, we
rely upon references to judicial decisions and common law interpretations to effect
the objec tives of the c ode. See Tenn. Code Ann. § 39-11-104.
W hile the gen eral theft sta tute proh ibits the same conduct as the
former, the State is no long er require d to prove the elem ents of the former in order
to gain conviction un der the current statute. By its terms, Tennessee Code
Annotated section 3 9-14-10 3 provide s that “[a] pe rson co mm its theft of property if,
with intent to deprive the owner of property, the person knowingly obtains or
exercises control over the property without the owner’s effective consent.” In the
present case, it is un disputed that the App ellant exercised co ntrol over Nora
11
Com acho ’s 1995 Dodge Caravan, without Ms. Comacho’s consent, while in Sullivan
County, Tennessee. See Tenn. Code Ann. § 39-11 -103; T enn. R . Crim . P. 18. T his
issue is w ithout me rit.
II. Sufficiency of the Evidence
Next, the Appellant a rgues that the e vidence is insufficient to su pport
his conviction for felony murder committed during the perpetration of a theft. The
Appellant does not contest the sufficiency of the evidence resulting in his convictions
for felony theft, misdemeanor theft, and evading arrest. Relying extensively upon a
prior opinion by a panel of this cou rt, State v. Gilliam, C.C.A. No. 03-C-01-9109-CR-
00287, Ham ilton Cou nty (Ten n. Crim. A pp., Kno xville, Apr. 20, 1 992), perm. to
appeal denied, (Tenn . Sept. 21, 1992), he limits his sufficiency issue to whether the
hom icide w as m erely incidental, and not in perpetration of, the underlying offense.
Additionally, he challenges the constitutionality of the felony murder statute. Our
supreme court has, on previous occasions, addressed this issue and determined
that the felony murder statute is “a legitimate and constitutional legislative fun ction.”
State v. Walke r, 893 S.W.2d 429, 430 (Tenn. 1995) (emphasis added). The
Appellant questions the trial court’s interpretation of the lan guage “an y . . . theft” to
include misdem eanor thefts. A p anel of this court has recently addres sed this very
argument and, relying upon Walker, concluded that it was the legislature ’s intent to
encompass all theft offenses, regardless of moneta ry value of the property stolen,
within the felony m urder sta tute. See State v. Harris , C.C.A. No. 02C01-9603-CR-
00095 (Tenn. Crim. A pp., Jack son, De c. 3, 1997 ); Walker, 893 S.W.2d at 430
(citing State v. Hopper, 695 S.W .2d 530 , 535 (T enn. C rim. App . 1985)); see also
12
State v. Randolph, 676 S.W.2d 943, 946 (Tenn. 1984). Thus, we reject the
Appellant’s constitutional challenge to Tennessee’s felony murder statute.
When there is a c hallenge to the verdict based upon the sufficiency of
the evidence, this court must review the evidence in the light most favorable to the
prosecution and determine whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jack son v. V irginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979 ); State v. Cazes, 875 S.W.2d 253,
259 (Tenn. 1994); Tenn. R. App. P. 13(e). We do not reweigh or reevaluate the
evidence; these are iss ues re solved by the trier of fac t. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Furthermore, a guilty verdict accredits the testimony
of the witnesses for the State, and a presumption of guilt replaces the presumption
of innocen ce. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Guilt may be
predicated upon direct evidence, circumstantial evidence, or a combination of direct
and circums tantial evide nce. State v. Carey, 914 S.W.2d 93, 95 (Tenn. Crim. App.
1995).
In order to determ ine the issue of su fficiency of the evid ence in this
case, the controlling statutes must be analyzed. Appellant was convicted of first
degree murd er in the perpetration of a theft. Tennessee Code Annotated section
39-13-202 emb odies what is commonly referred to as “felony murder” and defines
it in part as “[a ] killing of ano ther com mitted in th e perpe tration of or a ttempt to
perpetrate any . . . theft.” Tenn. Code Ann. § 39-13-202(a)(2) (empha sis added).
A person is guilty of the c rime of the ft if “with intent to deprive the owner of prop erty,
the person know ingly obtains or exercise s control o ver the prop erty without the
owne r’s effective consent.” Tenn. Code Ann. § 39-1 4-103 (em phasis add ed). Prior
13
to the 1989 revision of the criminal code, the only type of theft included in the felony
murder statute wa s larceny . See Tenn. Code Ann. § 39-2-202 (Supp. 1982)
(repeale d 1989 ).
It is well-established that the fundamental role of this Court in construing
statutes is to ascer tain and g ive effect to legislative intent. State v. Sliger, 846
S.W.2d 262, 263 (Tenn. 1993). The Legislature is presumed to know the existing
state of the law w hen it ena cts a statu te. Owen s v. State, 908 S.W .2d 923, 926
(Tenn. 1995). Moreover, the Legislature has said that statutes must “be construed
according to the fa ir impo rt of their terms , includin g reference to judicial decisions
and common law interpretations.” Tenn. Code Ann. § 39-11-104. Where, as here,
the intent of the Legislature appears clear when reading the ordinary meaning of the
statutory language, this Court should not limit or extend that language’s import,
regardless of how we might perceive the equities o f the caus e. Overma n v.
Overman, 570 S.W.2d 857, 859 (Tenn. 1978). By the Legislature not limiting the
term “theft” in the felony murder statute, then we can only conclude that the
Legislature intended it to em body a ll types o f theft, inc luding all types forme rly
defined as som ething oth er than larc eny.
As noted above , the Ap pellan t princip ally relies upon the case of State
v. Gilliam, C.C.A. No. 03-C-01-9109-CR-00287, Hamilton C ounty (T enn. C rim. App .,
Knoxville, Apr. 20, 1 992), perm. to appeal denied, (Tenn ., Sept. 21, 1992). The
instant case, however, can be distinguished from Gilliam. In Gilliam, the court
focused on the fact that the underlying felony of theft was theft by taking and that the
Appe llant’s purpose was to stea l the ca r and th at this goal had been accomplished.
Id. at 3. In the instant case, the theft with which Appellant was charged and
14
convicted was based on his exercise of control over the s tolen pro perty without the
owne r’s effective consent. The police chase was already in progress when the
crime of theft (exerc ising con trol over the stolen property) occurred in Sullivan
County, Tennessee. Because Appellant was driving the stolen vehicle at the time
of the incident, he was certainly exercising control over the s tolen pro perty. See
Tenn. Code A nn. § 39-14-1 03. The A ppellant explained th at “[t]he reaso n I didn ’t
stop [during the pursuit by law enforcement officials] was because I was scared
. . . all I wanted to do was get on the interstate and get out of the van and leave it
there and get away from it.” Obviously, from Appellant’s statement, he was in the act
of exercising control over the stolen property as he admitted that he wanted to get
rid of property of which he was not the owner. Furthermore, the instant case can be
distinguished from Gilliam in that the officers involved here knew that the veh icle was
stolen, regardless of the fact that the initial atte mpt to pull the vehicle over was for
a traffic violation.
W e acknowledge that the killing must have been comm itted “in
pursuance of the unlawful act, and not collateral to it.” State v. Farmer, 296 S.W.2d
879, 883 (Tenn. 1956). However, we disagree with the Appellant’s argument that
his actions in the pres ent case we re collateral to the homic ide and bore no intimate
relation ship to the underlying felony of theft. A homicide is committed during the
perpetration of a felony if the homicide is committed within the res gestae of the
felony. See Smith v. State, 354 S.W.2d 450, 452 (Ten n. 1961). W ithin the context
of the felony murder rule, the res gestae requires that the felony and homicide be
part of a continuous transaction, that the h omicide be incident to the felony, or that
there be no brea k in the ch ain of eve nts betw een the felony an d the ho micide. See
gene rally Erwin S. Barbre, Annotation, What Constitutes Termination of Felony for
15
Purpose of Felo ny-M urder Rule , 58 A.L.R. 3d 851, 856, 865-874 (1974). The res
gestae embraces not only the actual facts of the transaction and the circumstances
surrounding it, but also the matters immediately antecedent to the transaction and
having a direct causa l connec tion with it, as well as acts immediately following it and
so closely co nnecte d as to form in reality a pa rt of the occ urrence . Payne v. State,
406 P.2d 922, 925 (Nev. 1965). Thus, the res gestae of the crime begins at the
point where an indic table attem pt is reach ed, and ends w here the chain of e vents
between the initia l crime and th e hom icide is broken . See Parker v. State, 570 So.
2d 104 8, 1051 (Fla. Dist. C t. App. 1 1 990); State v. Rider, 625 P.2d 425, 430-431
(Kan. 1981); Payne, 406 P.2d d at 924 ; Com mon wealth v. Kelly, 10 A.2d 431, 433 (Pa.
1940).
The defendant’s actions must b e one c ontinuo us integra ted attem pt to
succ essfu lly com plete h is crime a nd es cape . Facto rs to be cons idered in
determining whether there has been a break in the chain of circumstances include
the relationship between the underlying felony and the homicide in point of time,
place, an d caus al relations hip. Farmer, 296 S.W.2d at 883. In State v. Terry, our
supreme court discussed the following factors relating to the relationship between
the underlying crime and the homic ide: whe ther the victim was a w itness to th e theft-
related crime; w hether th e victim was in close proximity to the crime; and whether
the victim was killed because he might have tried to thwart the theft, expose the
theft, or interfere in any way with the commission of the theft. 813 S.W.2d 420, 424
(Tenn. 1991 ). In the c ase o f flight, an impo rtant co nside ration is whether the fleeing
felon has reache d a place of temp orary safe ty. See People v. Fo rd, 416 P.2d 132,
141 (Cal. 196 6), cert. denied, 385 U.S. 1018, 87 S. Ct. 737 (1967), overruled in part
by, Peop le v. Satc hell, 489 P.2d d 1361 (Cal. 197 1); People v. Boss, 290 P. 881, 883
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(Cal. 1930); Parker, 570 So. 2d at 1051 (citing LaFave, Substantive Criminal Law §
7.5 (1986)); Lamp kin v. State , 808 P.2d 694, 696 (Okla. Crim. App. 1991). If these
factors, considered in light of the circumstances of the particular incide nt, reve al a
definite break in the chain of events, eliminating the possibility of one continuous
transaction from the initial attempt of the underlying felony to the homicide, then the
felony m urder rule canno t be app lied.
The police officer who was killed in the instant case was a witness to the
theft (as that term is defined by the Legislature) and he was standing in the pathway
of the stolen van as A ppellant e xercised control ove r that van b y driving it right into
the officer. The victim was attempting to apprehend Appellant during the
commission of the theft. T he theft played a n integ ral role in the po lice office r’s
death. The theft was not collateral to the homicide.
The Appella nt argues that it is conceivable that a strict and literal
interpretation of the theft sta tute as it relates to felony murder could sometimes lead
to “irrational ou tcomes n ot contem plated by either the le gislature o r the cou rts.”
Howeve r, Appellant’s case is not one of those s ituations. Sufficient e vidence exists
to supp ort the con viction for felon y murd er, and th is issue is w ithout me rit.
III. Special Jury Instructions
Appellant submitted seven requests for jury instructions, four of which
related to the jury’s determination of whether the killing occurred during the
perpetration of the theft. The issue before us only involves the four requests dealing
with the perpetration of the theft. The trial court granted one of those requests in
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part, as that part followed the Tennessee Pattern Instruction, but it wholly denied the
other thre e.
The trial court’s jury instruction on a killing committed in the perpetration
of a theft pro vided th at the k illing m ust ha ve bee n “clos ely connected to the alleged
theft and was not a separate, distinct and indepe ndent e vent.” Appellant submitted
instructions which expanded on the explanation of the term “perpetration” (proposed
jury instructions 1, 5, 6 and 7). See, e.g., Terry, 813 S.W .2d 420 ; Farmer, 296
S.W .2d 879 ; Gilliam, C.C.A. N o. 03-C -01-910 9-CR -00287 .
In Tennessee, the trial court must charge the jury completely on the law
applicab le to the facts of the case . Poe v. S tate, 212 Tenn. 413, 370 S.W.2d 488,
491 (Tenn . 1963). Althou gh sp ecial re ques ts usu ally are entertained if fundamental
to the case, the trial judge may deny a special request when the existing instructions
fully cover the law on a s ubject. State v. Bryant, 654 S.W .2d 389, 390 (Tenn. 198 3).
Special jury instructions need not be given when the existing instructions are a
correct statement of the la w and adeq uately c over th e sub ject m atter co ntaine d in
the special request. Id; see also State v. Taylor, 771 S.W.2d 387, 399 (Tenn.
1989).
The statute proscribing felony murder defines the crime as “[a] killing of
another committed in the perpetration of or attempt to perpetrate” any of several
enumerated offenses. Te nn. Code Ann. § 39-1 3-202(a). As the court’s jury
instructions elaborated, our law require s that th e killing b e “clos ely connected” to the
felony and not be a “separate, distinct and indepe ndent e vent.” Althou gh Ap pellan t’s
instructions might have further elaborated on the notion of “closely connected,” we
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nevertheless conclude that the instructions given by the trial court were a correct
statement of the law and adequately covered the subject m atter co ntaine d in
Appe llant’s special reque sts. We therefore, hold that the trial court d id not e rr in
refusing to give Appellant’s sp ecially requested ins tructions. This issue is without
merit.
IV. Lesser Included Offenses
In its charge to the jury, the trial court instru cted the jury on the offenses
of felony m urder, se cond d egree m urder, voluntary manslaughter, reckless
homicide, and criminally negligent homicide. Appellant contends tha t the trial court
erred in ch arging th e lesser o ffenses to the crime of felony m urder.
Appellant has not demonstrated that he was prejudiced in any way by
the trial cou rt’s instructions on these offenses. Furthermore, this Court does not see
how any prejudice could exist since Appellant was convicted of the highest offense
for which he wa s cha rged. A s the S tate co rrectly points ou t, this is certain ly not a
case where the Appellant can argue that he could have been found guilty either of
the greatest offense or nothing at all, and that a verdict of a lesser offense prejudiced
him by permitting a conviction of an offense which lies between the two extremes.
The jury rejected all of the lesser offenses and c onvicte d him of the greatest offense
charged. Therefore, Appellant was not prejudiced by the trial court charging the
lesser included offenses to felony murder. Even if there was any error in the trial
court charging the lesser included offenses, that error would be harmless. Tenn. R.
App. P . 36(b); Te nn. R. C rim. P. 52 (a). This iss ue is witho ut merit.
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V. Sentencing
Appellant argues that the trial co urt erred in allowing th e jury to
sentence him to life in prison. When the jury announced its verdict of guilty of first
degree m urder, the foreman responded to the trial court that the jury had fixed the
sentence at life imprisonment. The trial judge then polled each juror, and each juror
answered affirma tively that he or she had found Appellant guilty of first degree
murder and had set the sentence at life imprisonment. After the jury was dismissed,
the trial judge ad dresse d Appe llant and s tated that b ased o n the jury’s ve rdict, the
trial court found him guilty of first degree murder an d sente nced h im to life
imprison ment.
Under Tennessee Code Annotated section 39-13-202(c), the minimum
sentence available for a App ellant who is convicte d of first deg ree mu rder is life
imprison ment. Tennessee Code Annotated section 39-13-208(c) does provide that
where no notice is g iven of the S tate’s inten t to seek th e death penalty o r life
imprisonment without the possibility of parole, then upon conviction for first degree
murder, the App ellant sha ll be sente nced to imprisonment for life by the trial co urt.
The State in this ca se did not seek the death penalty or life imprisonment without the
possibility of parole. Therefore, Appella nt asserts that since the statute clearly states
that the court must render such a sentencing d ecision, then it was e rror for the court
to allow the jury to do so . However, the fact that the jury indicated that it set the
sentence at life impriso nmen t is imma terial. Appe llant receiv ed the minimum
sentence under the law and can therefore show no prejudice from the fact that the
jury stated that it imposed the minimum sentence prior to the trial court also
imposing the minimum sentence.
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Appellant further argues that the trial court erred in instructing the jury
that a Appellant who receives a sentence of life impris onm ent sh all not b e eligib le
for parole consideration until the Appellant has served at least 25 full calenda r years
of that sentence. However, upon review of the rec ord, it ap pears that no t only did
defense counsel consent to the instruction, but actively insisted that the instruction
shou ld in fact b e given to the ju ry. Spe cifically, defense counsel quoted from
Tennessee Code Annota ted section 39-13-204(e)(2) stating, “[t]he jury shall be
instructed that a defendant who rec eives a se ntence of impriso nmen t for life shall not
be eligible for paro le con sidera tion un til the defendant has served at least twenty-five
(25) full calendar years of such sente nce.” H e wen t on to s ay, “If tha t is not, if th at’s
not, if the Jury’s not instructed on that, we think that’s a rea l problem.” Again, it was
defense counsel who brough t this statute to the cour t’s attention, a nd whe n the Sta te
and the co urt sub sequ ently agreed that it should be given, the trial ju dge a ccord ingly
added this to the jury charge. A party may not, in effect, invite or condone action and
then claim the action to be an error that requires relief to that party. See Tenn. R.
App. P . 36(a). Th is issue is w ithout me rit.
Having found that Appellant cannot prevail on any of his issues, we
affirm the ju dgme nt of the trial co urt.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
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_________________________________
DAVID G. HAYES, Judge
_________________________________
DAVID H. WELLES, Judge
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