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State v. Payne11/20/2002
8 S.W.2d at 93. An appellate court should not, therefore, "upset a seemingly inconsistent verdict by speculating as to the jury's reasoning" if it is "satisfied that the evidence establishes guilt of the offense upon which the conviction was returned." Id. at 94.
The evidence here, viewed in the light most favorable to the State, was sufficient for the jury to reject the defendant's claim of self-defense. Conflicts in the trial testimony are resolved by the trier of fact, not this court. See Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). The defendant's testimony that he shot the victim during a struggle that was precipitated by the victim's having pulled a gun on him was contradicted by the witnesses who testified on the State's behalf. Kenneth Ezell testified that he did not see anyone other than the defendant with a gun, and that the victim and the defendant were not fighting. Eric Rogers testified that he heard Brown yell "Derek, don't shoot," and that he saw the defendant and the victim together on the porch. Although he was uncertain, Rogers thought he saw the defendant standing over the victim's body. Kevin Phillips, an eyewitness to the shooting, testified that the defendant grabbed the victim, threw him down onto the porch, and demanded his money. The victim told the defendant he did not have any money, and pulled his pockets out to demonstrate that they were empty. The defendant then shot the victim as the victim lay facedown on the porch with his hands out to his sides, pleading not to be shot or killed. Phillips did not see the victim with a gun. As the defendant was shooting the victim, Brown was yelling to him, "Don't shoot him" and "Don't kill him." This evidence was more than sufficient for a rational trier of fact to conclude that the shooting did not occur in self-defense.
The defendant next contends that the evidence was insufficient to show that he was capable of forming the knowing mens rea required for second degree murder. He argues that evidence that his low serotonin level impairs his ability to resist impulses, combined with evidence that the victim provoked him by confronting him about the stolen drug sale, supports the conclusion that his "reason was obscured to the point that he acted in the heat of passion engendered by adequate provocation." He further argues that " he testimony of Dr. Rossby renders mental state at the time of the encounter with [the victim] objectively reasonable," sufficient to support a conviction for voluntary manslaughter, rather than second degree murder. We respectfully disagree.
The concept of diminished capacity recognizes that a defendant may present expert, psychiatric testimony "`aimed at negating the requisite culpable mental state.'" State v. Perry, 13 S.W.3d 724, 734 (Tenn. Crim. App. 1999) (quoting State v. Hall, 958 S.W.2d 679, 688 (Tenn. 1997)). "While diminished capacity is not an excuse or justification for committing the offense, it contemplates an acquittal of the indicted offense and a conviction for a lesser included offense." Id. (citing Hall, 958 S.W.2d at 688). The jury heard Dr. Rossby's exhaustive testimony on serotonin, as well as the defendant's testimony regarding his long history of chronic drug and alcohol abuse, his childhood treatment for intermittent explosive disorder, and his heavy drug and alcohol use at the time of the shooting. Before deliberating, the jury received appropriate instructions on the elements required to prove first degree premeditated murder, first degree felony murder, second degree murder, and voluntary manslaughter, including the requisite mens rea for each offense. It also received an instruction on diminished capacity. By finding the defendant guilty of second degree mur
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