State v. David Vaughn ( 1999 )


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  •             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    SEPTEMBER SESSION, 1999          FILED
    December 27, 1999
    STATE OF TENNESSEE,             *                       Cecil Crowson, Jr.
    *                      Appellate Court Clerk
    No. W1999-01647-CCA-R3-CD
    Appellee,                 *
    *      SHELBY COUNTY
    vs.                             *
    *      Hon. James C. Beasley, Jr., Judge
    DAVID ALLEN VAUGHN,             *
    *      (Attempted Second Degree Murder)
    Appellant.                *
    For the Appellant:                     For the Appellee:
    W. Mark Ward                           Paul G. Summers
    Asst. Public Defender                  Attorney General and Reporter
    Suite 2-01, 201 Poplar Ave.
    Memphis, TN 38103                      J. Ross Dyer
    Assistant Attorney General
    A C Wharton                            Criminal Justice Division
    District Public Defender               425 Fifth Avenue North
    2d Floor, Cordell Hull Building
    Nashville, TN 37243-0493
    William L. Gibbons
    District Attorney General
    Ms. Phyllis Gardner
    Ms. Karen Cook
    Asst. District Attorney General
    Shelby County Dist. Atty. General's Office
    201 Poplar Avenue - Third Floor
    Memphis, TN 38103
    OPINION FILED:
    AFFIRMED
    David G. Hayes, Judge
    OPINION
    The appellant, David Allen Vaughn, appeals his conviction by a Shelby
    County jury for the offense of attempted second degree murder. In this appeal as of
    right, the appellant raises the following issues for review:
    I. Whether attempted second degree murder exists as a criminal
    offense in this state;
    II. Whether the trial court erred in refusing to instruct the jury that the
    offense of attempted second degree murder requires the specific
    intent to kill; and
    III. Whether the trial court’s instructions to the jury as to the elements
    of the offense of attempted second degree murder constitute error.
    After review, we affirm the judgment of the trial court.
    Background
    Although the issues raised by the appellant present questions of law, we note
    briefly the following undisputed facts established at trial. On June 5, 1997, Memphis
    Police Officers responded to a request for emergency assistance at the residence of
    the appellant. Upon their arrival, the officers discovered pieces of the victim’s skull
    and pieces of brain tissue on the floor, blood splattered throughout the residence,
    and a bloody aluminum baseball bat under one of the beds.1
    The appellant informed law enforcement officers that “he had hit his girlfriend
    in the head with a baseball bat” and that “he thought that he hurt her real bad.”
    Subsequently, after his arrest and after waiving his rights, the appellant provided a
    more detailed statement, which related the following information: The appellant had
    been living with Carey Doty for seven years and they had a four year old son
    together. On June 5, 1997, the appellant and Ms. Doty had an altercation during
    which the appellant struck Ms. Doty three or four times on the head with a baseball
    1
    Although the victim survived the attack, she remained hospitalized for approximately four
    months after the beating. She sustained severe skull and brain damage. “[H]er skull is being
    recons tructed p iece by piec e . . . in an effort to try to restore s ome norm alcy just to he r face an d to
    the con figuration o f her sk ull.” “She lost a n eye . . . [and] literally lost a p ortion of he r brain.” In
    addition to the severity of the physical injuries, the victim is totally disabled and is in the custody
    and care of her parents. She is no longe r able to care for her son. She has had e xtensive
    speech therapy in order to relearn her communication skills. Additionally, she has undergone
    extensive amounts of reconstructive surgery and faces additional surgical procedures in the
    future.
    2
    bat. The appellant explained that:
    Carrie [sic] and I were walking around the house talking. I asked
    Carrie [sic] where my bat was and she asked why and I told her so I
    could play ball with my son. She said something that struck me wrong,
    she smarted off. I turned around and struck her with the bat and then I
    struck her a couple of more times. I threw the bat down in the other
    room and got in the car and left. I went to my mother’s house and
    called my mother at work and told her what happened. I told her I was
    fixing to take the gun and shoot myself and she told me not to do that.
    ...
    Based upon this evidence, the jury found the appellant guilty of attempted
    second degree murder.
    I. Validity of Offense of Attempted Second Degree Murder
    Relying upon our supreme court’s decision in State v. Kimbrough, 
    924 S.W.2d 888
     (Tenn. 1996), the appellant contends that “there is no such criminal
    offense of attempted second degree murder in the state of Tennessee.” In State v.
    Kimbrough, the supreme court held that the offense of attempted felony murder
    does not exist in Tennessee, as “it is logically and legally impossible to attempt to
    perpetrate an unintentional killing.” Kimbrough, 924 S.W.2d at 892. Utilizing this
    holding, the appellant submits, by analogy, that the “intent” requirements of the
    attempt statute cannot be combined with the lesser mental state of “knowing.” We
    reject the appellant’s argument.
    In State v. Kimbrough, the supreme court observed that, because the intent
    required for an attempt is an intent to commit the contemplated crime, attempt to
    commit murder requires a specific intent to kill. Kimbrough, 924 S.W.2d at 891.
    The court suggested that the statutory provision on criminal attempt is inapplicable
    to any crime requiring less than a specific intent. See generally Tenn. Code Ann. §
    39-12-101(a)(1), (2), (3) (1997). Accordingly, the court held that the specific intent
    required by the criminal attempt statute was inconsistent with the requisite felony
    murder mental state of “reckless” because one cannot intend to commit an
    unintentional, i.e., reckless, act. State v. Rodney D. Palmer, No. 02C01-9804-CR-
    00111 (Tenn. Crim. App. At Jackson, Jul. 8, 1999) (citing Kimbrough, 924 S.W.2d at
    890). Notwithstanding this conclusion, the court observed that “if an accused
    3
    actually possesses the requisite intent to kill, he or she may be charged with
    attempted murder.” Kimbrough, 924 S.W.2d at 892.
    Indeed, there is a difference between the mental states of intentional and
    knowing as distinguished from reckless and criminal negligence. See State v. Dale
    Nolan, No. 01C01-9511-CC-00387 at n.9 (Tenn. Crim. App. at Nashville, Jun. 26,
    1997), perm. to appeal denied, (Tenn. Mar. 2, 1998). The mens rea of both
    intentional and knowing involve a level of conscious awareness and volitional,
    affirmative conduct, whereas, the mental states of reckless and criminally negligent
    contemplate a disregard of the situation and unintentional conduct or failure to act.
    Id. at n.9; see also State v. Rodney D. Palmer, No. 02C01-9804-CR-00111. Thus,
    homicides requiring a mental state of “intentional” or “knowing” require the “intent to
    kill.”
    “Second degree murder is a knowing killing.” Tenn. Code Ann. § 39-13-210
    (1997). “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. See Tenn. Code Ann. § 39-11-
    302(b)(1997). 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. Id. One commits second degree murder if one knowingly tries to kill
    another and succeeds in doing so. See State v. Craig Bryant, No. 02C01-9707-CR-
    00286 (Tenn. Crim. App. at Jackson, Jan. 8, 1999), perm. to appeal denied, (Tenn.
    Jun. 14, 1999). Accordingly, attempted second degree murder may be proven by
    showing that the defendant “intentionally acted with the requisite culpability to
    commit the offense of murder in the second degree” and the defendant “could have
    been convicted of murder in the second degree . . . if he had actually killed the
    victims.” State v. Dale Nolan, No. 01C01-9511-CC-00387 (citations omitted). In
    accord with prior decisions of this court, we conclude that Tennessee’s attempt
    statute is applicable to the offense of second degree murder. See, e.g., State v.
    Eldridge, 
    951 S.W.2d 775
     (Tenn. Crim. App. 1997); State v. Rodney D. Palmer, No.
    02C01-9804-CR-00111; State v. Craig Bryant, No. 02C01-9707-CR-00286; State v.
    Jose Holmes, No. 02C01-9505-CR-00154 (Tenn. Crim. App. at Jackson, Dec. 10,
    1997), perm. to appeal denied, (Tenn. Sept. 21, 1998); State v. Cecil Skidmore, No.
    4
    03C01-9502-CR-00039 (Tenn. Crim. App. at Knoxville, Apr. 24, 1997); State v.
    Timothy Jenkins, No. 01C01-9508-CC-00269 (Tenn. Crim. App. at Nashville, Nov.
    15, 1996). This issue is without merit.
    II. Jury Instructions
    Next, we address the appellant’s related issues involving jury instructions. At
    trial, the appellant submitted a special instruction, requesting that the trial court
    inform the jury that in order to be guilty of attempted second degree murder, the
    defendant must have had the specific intent to “kill.” The trial court denied the
    request. The appellant now contends that the trial court erred because: (1) the jury
    was instructed that it could find the offense based on the intent to commit a
    “knowing” homicide and (2) the court failed to instruct the jury that in order to find the
    offense the defendant must have “intended” the killing.
    In the present case, the trial court instructed the jury:
    Any person who attempts to commit a criminal offense is guilty of a
    crime.
    For you to find a person guilty of criminal attempt, the state must have
    proven beyond a reasonable doubt the existence of the following
    essential elements:
    (1) that the defendant acted intentionally and knowingly to commit the
    specific offense of murder second degree . . .
    and
    (2) (a) that the defendant intentionally engaged in action or caused a
    result that would constitute murder second degree . . . if the
    circumstances surrounding the conduct were as the person believed
    them to be;
    or
    (b) that the defendant acted with intent to cause a result that is an
    element of the offense of murder second degree . . . and believed the
    conduct would cause the result without further conduct on his part;
    or
    (c) that the defendant acted with intent to complete a course of
    action, or cause a result that would constitute murder second degree .
    . . under the circumstances surrounding the conduct as the person
    believed them to be, and the conduct constituted a substantial step
    toward the commission of murder second degree . . . defendant’s
    action does not constitute a substantial step unless the defendant’s
    entire course of action is corroborative of the intent to commit the
    offense.
    The court additionally instructed the jury as to the elements of second degree
    murder:
    5
    For you to find the defendant guilty of [second degree murder], 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 knowingly.
    (emphasis added).
    This instruction is almost verbatim Tennessee pattern instruction 4.01 on
    attempt. See T.P.I. – Crim. 4.01 (4th ed. 1995). In State v. Eldridge, this court
    approved the language in the fourth edition of the pattern jury instruction as the
    instruction “expressly includes the defendant’s intent to commit the specific offense
    as an essential element.” 951 S.W.2d at 779. This holding is in accord with State v.
    Kimbrough, which holds that an attempt to commit murder requires a specific intent
    to kill. Eldridge, 951 S.W.2d at 779 (citing Kimbrough, 924 S.W.2d at 891). See
    also State v. Rodney D. Palmer, No. 02C01-9804-CR-00111. Accordingly, we
    conclude that the trial court did not err in its instructions to the jury. The appellant’s
    challenges to the jury instructions are without merit.
    In accordance with our supreme court’s holding in State v. Kimbrough and
    consistent with previous decisions of this court, we conclude that no error of law
    exists requiring reversal. The judgment of the trial court is affirmed.
    ____________________________________
    DAVID G. HAYES, Judge
    CONCUR:
    ________________________________________
    JOE G. RILEY, Judge
    ________________________________________
    THOMAS T. W OODALL, Judge
    6
    

Document Info

Docket Number: W1999-01647-CCA-R3-CD

Filed Date: 12/27/1999

Precedential Status: Precedential

Modified Date: 10/30/2014