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State v. Pyburn8/16/2004
d for analysis. We conclude that the trial court did not abuse its discretion when it allowed Dr. Harlan to testify as an expert for the purpose of identifying blood spatter and brain tissue in crime scene photographs.
E. Jury Instructions
Finally, the appellant challenges the trial court's charge to the jury. A defendant has a "constitutional right to a correct and complete charge of the law." State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). In determining whether jury instructions are erroneous, this court must review the charge in its entirety and only invalidate the charge if, when read as a whole, it fails to fairly submit the legal issues or misleads the jury as to the applicable law. State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998). When the charge correctly, fully, and fairly sets forth the applicable law, it is not error for the trial court to refuse to give a special instruction requested by a party. State v. Brown, 53 S.W.3d 264, 281 (Tenn. Crim. App. 2000).
The appellant first contends that the trial court failed to instruct the jury on the presumption of second degree murder. " lleged omissions in the charge must be brought to the trial judge's attention at trial or be regarded as waived." State v. Haynes, 720 S.W.2d 76, 84-85 (Tenn. Crim. App. 1986). However, there is no requirement for an objection to the inclusion of an erroneous instruction or otherwise inaccurate charge. State v. Lynn, 924 S.W.2d 892, 898-99 (Tenn. 1996). As the State correctly notes, the appellant did not object to the omission of the instruction at trial. Moreover, the appellant did not raise the issue in his motion for new trial, precluding consideration of the issue on appeal. Tenn. R. App. P. 3(e). Regardless, the issue is without merit.
In ruling on a similar request for a jury instruction on the presumption of second degree murder, this court has previously stated,
e acknowledge our supreme court's observation in State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992), that " he law in Tennessee has long recognized that once homicide has been established, it is presumed to be murder in the second degree." However, the import of this presumption is that " he state bears the burden of proof on the issue of premeditation . . . sufficient to elevate the offense to first-degree murder." Id.; see also State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999); State v. Schafer, 973 S.W.2d 269, 274 (Tenn. Crim. App. 1997). Therefore, when a trial court's charge omits the language of "presumption" but otherwise clearly informs the jury that the State carries the burden of proving each and every element of first degree premeditated murder beyond a reasonable doubt and also includes a correct and complete instruction on second degree murder, a criminal defendant is not entitled to relief.
State v. Coulter, 67 S.W.3d 3, 68 (Tenn. Crim. App. 2001) (citations omitted); see also State v. Robert L. Leach, Jr., No. M2001-01421-CCA-R3-DD, 2003 WL 22002630, at * 17 (Tenn. Crim. App. at Nashville, Aug. 25, 2003).
In the instant case, the trial court did not charge the jury on the presumption of second degree murder. However, the trial court informed the jury that the State was required to prove each and every element of first degree murder beyond a reasonable doubt. The trial court also provided a complete and accurate instruction on the lesser-included offense of second degree murder. Accordingly, we conclude that the substance of the presumption of second degree murder was addressed in the trial court's charge to the jury. The appellant is not entitled to relief on this issue.
Next, the appellant contends that the trial court failed to instruct the jury tha
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