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State v. Wilcox10/19/1999
xamined different bodies. Next, he argues that no proof exists to show that the injuries he inflicted caused the victim's death. He argues that the evidence shows that only three shots were fired from his rifle but that there were four gunshot wounds, that the state failed to prove that these three shots killed or even struck the victim, and that the chop wounds were not fatal.
We believe the evidence sufficiently supports the defendant's conviction. First, the defendant's argument that Doctors Foree and Toolsey may have examined two different bodies is not supported by the record. The defendant correctly asserts that Dr. Foree's initial report and Dr. Toolsey's autopsy report are somewhat inconsistent regarding the types of injuries. However, Dr. Toolsey explained at trial that it is difficult to determine the type of inflicting instrument until one physically pulls the tissue together, which is typically not done until the post-mortem examination. The defendant argues that Dr. Toolsey could not identify the body upon which he performed the autopsy as being that of Terry Bohannon. However, Dr. Toolsey was able to identify and discuss photographs of the victim's injuries, not made during the autopsy, as being those of the person upon whom he performed the autopsy.
The defendant also contends that no evidence exists to show that the injuries he inflicted upon the victim caused the victim's death. He argues that the evidence shows that he fired only three shots and that no evidence exists to show that the three shots struck or killed the victim. He further argues that Dr. Toolsey testified that the chop wounds would not have caused the victim's death.
We disagree with the defendant's interpretation of the trial record. The prosecutor asked Dr. Toolsey which of the victim's wounds was sufficient to cause death. Dr. Toolsey responded, "Well, I think probably the better question would be to ask which one would not. With the exception of probably one, each of them would have proved eventually to be fatal." Dr. Toolsey testified that the only injury that would not have been fatal was the gunshot wound to the right leg. The evidence shows that the defendant fired at least three shots at the victim. The shots obviously hit the victim because the defendant's own testimony was that the victim toppled off the horse after the shots were fired.
With respect to the chop injuries, Dr. Toolsey testified that they were "very significant and deep wounds, chopping their way almost all the way through to the bone . . . . And it is possible to bleed to death from any one of these." Although Dr. Toolsey testified that sometimes clean chop wounds that completely sever an artery are less lethal or less dangerous, he never testified, as the defendant states in his brief, that the victim's chop wounds would not have caused his death. The evidence shows that the defendant shot and chopped the victim. All but one of the victim's wounds were lethal. The defendant's argument to the contrary is not supported by the record.
B. Provocation
The defendant contends that the evidence is insufficient to support a finding that he knowingly killed the victim. He argues that the killing was, at most, voluntary manslaughter because he was provoked by the victim's burglary of his home and by the victim's attack upon him when he went to retrieve his property. We hold that the evidence is sufficient to support the second degree murder conviction.
Second degree murder is defined as a knowing killing of another. Tenn. Code Ann. § 39-13-210. Tenn. Code Ann. § 39-11-302(b) provides that:
"Knowing" refers to a person who acts knowingly with respect to the conduct
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