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State v. Henderson3/7/2001
acted in unison with a common purpose and design to kill Griffin. Indeed, the State's theory was that both Appellants fought with Griffin, attempted to bail Griffin out of jail, set fire to Griffin's trailer, transferred the murder weapon from a truck to a car, successfully bailed Griffin out of jail, and then were present while one of them fired the fatal shot. The defense theory for both Appellants was that neither one of them committed the murder. Indeed, much of the defense proof went to establishing that they were friends with Griffin and had no reason to kill him, that Griffin died long after he was last seen with Appellants, and that there were several other possible culprits in this case. Thus, the evidence in the record created an "all or nothing" situation in which Sutton and Dellinger both actively participated and promoted the murder of Griffin or neither one of them did. There is simply no evidence in the record from which a rational jury could conclude that Sutton provided substantial assistance to Dellinger without having the intent to promote or assist the commission of the offense. Therefore, the trial court did not err when it failed to instruct the jury on the lesser included offense of facilitation of a felony. This issue has no merit.
XXI. SPECIAL INSTRUCTION ON REBUTTAL EVIDENCE
Appellants contend that the trial court erred when it failed to give the jury a special instruction about rebuttal evidence. We conclude that Appellants have waived this issue.
Appellants claim that the trial court should have instructed the jury that it could only consider the State's rebuttal evidence for the impeachment of defense witnesses and it could not consider the testimony as substantive evidence. However, Appellants have failed to provide a specific explanation for why this instruction should have been given. In addition, Appellants have failed to cite any authority for their proposition that this instruction should have been given and they have also failed to provide a proper citation to the record. Thus, Appellants have waived this issue. Tenn. Ct. Crim. App. R. 10(b).
XXII. SPECIAL INSTRUCTION ON "LAST SEEN ALIVE"
Appellants contend that the trial court erred when it refused to instruct the jury that it could not convict Appellants simply because Griffin was last seen alive in their presence. We disagree.
The record indicates that the trial court refused to give this special instruction because "the charge sets out very clearly . . . what has to be proven to establish guilt." Indeed, the charge clearly instructs the jury that it can only convict Appellants of an offense if the State proves the elements of that offense beyond a reasonable doubt. In addition, the charge clearly instructs the jury on the elements of first degree murder and its lesser included offenses and the charge also instructs the jury about criminal responsibility for the conduct of another. In short, the charge accurately and correctly instructs the jury on burden of proof, presumption of innocence, elements of the offenses, and the nature of different kinds of evidence. "When the instructions given by the trial judge are a correct statement of the law, and the instructions fully and fairly set forth the applicable law, it is not error for a trial judge to refuse to give a special instruction requested by a party." State v. Bohanan, 745 S.W.2d 892, 897 (Tenn. Crim. App. 1987). This issue has no merit.
XXIII. CHARGING THE JURY ON SUNDAY
The record indicates that the proof was closed and closing arguments were made on Saturday, August 31, 1996. After the trial court informed the jury that it would be instructed the next day, court was
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