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State v. Payne11/20/2002
nesses. The State asserts that the evidence at trial, taken in the light most favorable to the State, was more than sufficient for the jury to reject the defendant's claim of self-defense and find that he committed a knowing killing of the victim. Regarding the defendant's claim that the shooting constituted voluntary manslaughter instead of second degree murder, the State argues that the evidence did not show the defendant was provoked, the jury was entitled to reject his diminished capacity defense, and his subjective serotonin level was irrelevant to the determination of whether he was in a state of passion sufficient to lead a reasonable person to act in an irrational manner.
Second degree murder is defined as " knowing killing of another." Tenn. Code Ann. § 39-13-210(a) (1997). Voluntary manslaughter is defined as "the intentional or knowing killing of another in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner." Tenn. Code Ann. § 39-13-211(a) (1997). Tennessee Code Annotated section 39-11-611 provides, in pertinent part:
Self-defense. -- (a) A person is justified in threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force. The person must have a reasonable belief that there is an imminent danger of death or serious bodily injury. The danger creating the belief of imminent death or serious bodily injury must be real, or honestly believed to be real at the time, and must be founded upon reasonable grounds. There is no duty to retreat before a person threatens or uses force. Tenn. Code Ann. § 39-11-611(a) (1997).
The defendant first contends that the State failed to refute the existence of self-defense beyond a reasonable doubt. Since the defense of self-defense was fairly raised by the evidence, the State carried the burden of proof to negate the defense beyond a reasonable doubt. See Tenn. Code Ann. § 39-11-201(a)(3) (1997); State v. Belser, 945 S.W.2d 776, 782 (Tenn. Crim. App. 1996). However, whether or not a defendant acted in self-defense is a question of fact for the jury to determine. See State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). The jury was instructed on the defense of self-defense. By finding the defendant guilty of second degree murder, it obviously rejected the defendant's claim that he shot the victim in self-defense, choosing instead to accredit the testimony of the witnesses for the State. This was its prerogative.
The defendant argues, nonetheless, that the jury's failure to convict him of either premeditated or felony murder demonstrates that it could not have accepted the State's theory of the case or accredited the testimony of the State's witnesses. According to his reasoning, had the jury accredited the testimony of the State's witnesses, "the verdict would of necessity have been guilty of premeditated murder or murder in the perpetration of a felony." However, he concedes that there is "decided authority contrary to position."
The "decided authority" the defendant recognizes, Wiggins v. State, 498 S.W.2d 92, 93 (Tenn. 1973), holds that there is no requirement for consistency between verdicts on separate counts of an indictment. In Wiggins, our supreme court adopted the reasoning used by the United States Supreme Court in Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), concluding that "consistency in the verdicts is not necessary as each count of an indictment is to be regarded as a separate indictment." 49
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