Opinion
No. E1999-00002-CCA-R3-CD.
Decided April 18, 2000.
Direct Appeal from the Criminal Court for Sullivan County, No. S38,912, R. Jerry Beck, Judge.
J. Wesley Edens, Bristol, Tennessee, for the appellant, Andrew Young Johnson.
Paul G. Summers, Attorney General and Reporter, Marvin S. Blair, Jr., Assistant Attorney General, H. Greeley Wells, Jr., District Attorney General, and Mary Katherine Harvey, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The defendant, Andrew Young Johnson, appeals as of right his conviction by a jury in the Criminal Court of Sullivan County of reckless endangerment with a deadly weapon, a Class E felony, and attempted first degree murder, a Class A felony. The trial court sentenced the defendant as a Range I standard offender to two years on the reckless endangerment charge and twenty-three years on the attempted first degree murder charge, the sentences to be served consecutively for an effective sentence of twenty-five years.
The issues presented by the defendant are organized for review by this court as follows:
I. Whether the evidence was sufficient to convict the defendant for attempted first degree murder;
II. Whether the trial court properly refused to submit the defendant's five special instruction requests to the jury;
III. Whether the trial court erred in failing to excuse a prospective juror who had overheard a conversation between the defendant's attorney and the defendant's grandmother; and
IV. Whether the trial court erred in failing to obtain the defendant's consent for appointed counsel to continue to represent him in light of the comments made by appointed counsel to the family member.
Based upon our review, we affirm the judgment of the trial court.
PROCEDURAL BACKGROUND
The defendant was indicted by a Sullivan County Grand Jury on two counts: (1) reckless endangerment with a deadly weapon, arising from an incident in which he fired a nine millimeter handgun into a residence; and (2) attempted first degree murder of a police officer with the Bristol, Tennessee Police Department. Following a three-day trial, the jury found the defendant guilty on both counts. The defendant filed a motion for a new trial. On the day of filing, the trial court permitted the defendant's trial counsel to withdraw and appointed new counsel. Time was granted to amend the motion for a new trial. The motion for new trial, as amended, was denied, and the defendant timely appealed.
FACTS
Late in the evening of February 12, 1996, the defendant was at the home of Andrew Birdwell in Bristol, Tennessee, where he was drinking and partying with Birdwell, James Felty, and one other young man. Felty testified that the defendant showed the others a Derringer, a twenty-five millimeter semi-automatic pistol, and a nine millimeter Ruger semi-automatic pistol, all of which were on the defendant's person at Birdwell's house.
Later in the evening, the four companions drove to Weaver Pike to shoot the guns. Felty testified that only the defendant shot the nine millimeter pistol. After shooting the guns, the group got back into the car, with Felty driving, and ended up on Auburn Street. As they were driving along Auburn Street, the defendant told Felty to stop the car, which he did. According to Felty's testimony, the defendant alone got out of the car, and then Felty heard gunshots. The defendant got back into the car and said "go." Felty testified he drove off, quite shaken by what had happened. When the defendant later said he wanted to go back to the scene of the shooting, Felty told the defendant he would have to drive himself, and Felty got in the backseat.
When the defendant got close to the house where he had fired the shots, he and his companions could see that the police were there, so the defendant drove the car down a side street. Somehow the car was wrecked on this street. Felty testified that he and the companion in the backseat ran in one direction, and the defendant and Birdwell ran in another. Felty also testified that the defendant was wearing a Michigan jacket and Birdwell was wearing a Kansas City jacket. Felty did not see the defendant again that evening.
Lieutenant Craig Beyer of the Bristol, Tennessee Police Department testified that he responded to a call that shots had been fired in the Auburn Street area. He was directed by neighbors to 101 Auburn Street, the residence of Mike Walling, who was inside the house at the time of the shooting. The house was located on the corner of Auburn and College Avenue with a drive that exited onto College. A red Mustang was parked at the back of the house. Lieutenant Beyer testified that he observed three bullet holes in this vehicle, one in the right rear quarter panel and two in the glass. He also testified that there were six bullet holes in the rear of the house itself. One bullet had passed through a window into the interior of the house.
Lieutenant George Eden and Officer Austin reported to the scene at 101 Auburn and photographed, collected, labeled, and sealed the physical evidence. Eden testified that, in addition to the bullet holes in the exterior of the house, a bullet was recovered from the kitchen area where it had lodged above the stove toward the ceiling. Eden testified that he recovered eleven casings. Seven or eight bullets had hit the house, and four or five had hit the car.
Patrol Officer Gary Privette testified that on the evening of February 12, 1996, at about 11:30 p.m., he received information while he was on patrol about the shooting at 101 Auburn and about the car accident on the nearby side street. Privette learned that the four suspects included two black males wearing sports jackets. He began to assist in the search, which soon included a SWAT team and a helicopter. Privette began his search from the area of the accident, moving out into ever-widening areas. He heard that the two white male suspects had been apprehended. He reasoned that the two other suspects would have had time to reach Volunteer Parkway, so he drove in that direction. Soon, he spotted two black males in sports insignia-type jackets walking along the street. He was unable to use his radio to alert backup because another officer had come on the radio at the same moment, and he could not get through. He stopped his police car and got out. Officer Privette testified as to what happened next:
I exited the vehicle. I went to the rear of the vehicle. I had my gun drawn. I had it in a gun — what we call a — refer to as a gun ready position, which is an angle like this, down toward the ground.
. . . .
Q. And why in this instance would you use a gun ready position?
A. Well, we had — had a shooting of course . . . into a dwelling and had information that two black males were still on the loose and one of them had a — had a weapon. . . .
Q. All right. What happened next?
A. As I said, I had the gun in the gun ready position, I asked them to get their hands up.
Q. Okay. Did they raise their hands?
A. And they — not immediately. So, I screamed out again for them to get their hands up.
Q. At that point, did they raise their hands?
A. Yes. Mr. Johnson raised his hands up first. And then he went to say something, he dropped his hands down like this. He was saying something.
Q. Could you understand what he was saying?
A. No. No, ma'am.
Q. Okay. All right. Then what happened?
A. Then, he — he dropped down behind a wall and immediately came back up.
Q. Now, when you say he dropped down behind a wall . . .
A. It was a — it was a — it was these timbers that was reinforcing a — like a flower bed, there was a couple of trees in there and . . .
Q. Did he have to move to either side?
A. No, he just . . .
Q. Or was the wall between the two of you?
A. He was just continually walking toward the wall and then he just — he dropped down and he disappeared. He was out of sight.
Q. Was he — was he walking at a fast pace or a slow pace?
A. No, at a slow pace. . . . He dropped down behind the wall and then it was just a couple of seconds went by until he popped back up. Then, when he came up, he came straight up like this and aimed at me.
Q. His arms were extended?
A. With his hands — hands together.
Q. Could you see anything in his hands?
A. Yes, I — I couldn't tell you exactly what it was, there was something in his hands. After I heard two clicks, I presumed it to be a weapon. . . . He dropped back down behind the wall again and then I took cover by the left rear of my cruiser, which would have been at the left tire, and trying to regroup. . . . I felt like there was going to be a confrontation, gunfire. And I heard the gun rack. . . . I was trying to get in a position where I could get up and see where the subjects were and I never made it. Immediately after I heard the gun rack, firing started and was hitting the cruiser. I heard it hitting the metal and the tire that I was standing at or kneeled down at, air coming out of the tire. The right front window was shot out.
At this point, with two tires shot out, Officer Privette was able to move his vehicle to a point where he called for backup assistance. Although the lighting was not sufficient for Privette to identify the faces of the two, he was able to identify the sports jackets. The individual shooting at him was wearing a blue and yellow Michigan State jacket that appeared mostly gray in the light. The other male was wearing a red and yellow jacket.
On cross-examination, Officer Privette stated that there was no natural light that night, only a street light. On further cross, Privette responded to questions concerning a number of central communications transcripts of conversations that had taken place shortly after the shootings. Officer Privette admitted that when a report came in that a security officer had seen two black males, one in a Dallas Cowboys jacket, Privette had agreed that this was the shooter. Privette also testified that he was called to the site in Bristol, Virginia, where the defendant was apprehended to identify him. Privette testified that he was directed to one of the cruisers where one of the suspects was sitting in the backseat. He opened the door and looked in. The following exchange with defense counsel occurred:
Q. And what did you see?
A. Walked over. A black male sitting there.
Q, And did he have — was he handcuffed?
A. He was handcuffed.
Q. And what was he wearing?
A. I can remember, seemed like he had a — a gray sweatshirt on.
Q. A gray sweatshirt on. Was it this man?
A. I can't tell you by looking at his face, no.
Q. Did you identify, though, did you tell them that's the man?
A. By the jacket. Again, the other subject was at the trailer wearing the red and yellow jacket.
Officer Harold Wayne Tucker, also with the Bristol Police Department, testified that shortly before midnight on February 12, 1996, he received a call at his home. Within ten minutes he was on the road with Boris, his trained police dog, and met Lieutenant Senter at a location close to the scene of the gunfire to receive instructions. When the officers were told that the suspects had been seen in the area of Rutherford Storage, Officer Tucker and another officer left to check that area. By now, there was a light dusting of snow on the ground. Officer Tucker was close to the line with Virginia and stopped to talk to a Virginia unit driving on Williams Street in Bristol, Virginia. As they compared notes, a report came over the radio that tracks had been seen nearby in the snow on the Virginia side of Bristol close to Virginia Woodworking. The Virginia unit's supervisor approved Officer Tucker's using the police dog to track the suspects in the area. The police dog quickly picked up a trail that led to a construction trailer behind a red metal building. Officer Tucker testified to the following sequence of events:
It takes longer to tell it than the way it actually happened. We got up to the trailer, which had probably taken three or four seconds, approximately, he [the police dog] goes right up underneath the trailer. About that time, I see this white tennis shoe come out from underneath it. It goes back in and then I start hearing gunfire. At this time, I've already moved up to where I'm between the building and the construction trailer itself. This firing is going right on right at — it sounds like right at my feet. I get there and I'm — like I said, a lot of things are going through my mind. I'm worried about one, main thing, I — I had a feeling that I was going to get hit at any minute. When I say hit, I mean shot. I'm dancing from foot to foot, you know, I'm going — you know, you're always taught to try to seek cover and get away from it, well, I didn't have any place to go. I — where I was at was where I was at. There was at least four gunshots and Boris came out from underneath the trailer, take — took one, maybe two steps that I could see and then collapsed. I then had dropped my flashlight during this — during this time and had drawn my weapon and I collapsed right down on top of him, you know, I was worried, you know, I knew something bad was wrong, you know, he did — he don't act, so I knew he was hurt. I get there and my flashlight had fell to where it's shining up underneath the trailer. And I could see two individuals under it. One, they were laying perpendicular to the building with their feet towards me. And they — their feet weren't two, maybe three feet away from me from that. I seen the one individual, he had a large frame automatic in his hand, it was pointing towards where my back up officers were at. I heard them, they were, you know, saying that they were the — with the police department, you know, drop your guns and, you know, identifying themselves. And, I don't know, the one with the automatic said something about shooting someone. At that time, the pistol comes back and he points it directly at me. I then didn't — I was afraid that he was going to — this person was going to shoot me, you know, there — I was — like I said, I was afraid that I was going to die because the gun did — it seemed like it was right in my face. I know it wasn't, but it was real close. And I was afraid he was going to fire at any time. I got there and fired one round from my weapon. As soon as I had fired, the individual — not — not really dropped it and not really threw it, but it came from his hand and landed next to him. I then decocked my pistol, holstered up. People at that time, officers were starting to assist the individuals from underneath the trailer. I then started working on Boris, trying to do CPR on him, seeing how badly he was hurt, trying to get him help. I noticed on him he'd been shot at least — I could see four entry wounds approximately in his right chest, just behind his front right leg. I tried doing CPR about — no less than — no more than five minutes, and there was no response. There was no pulse. By that time, I called my supervisor and let him know that my dog was dead.
Q. The two people that were under the trailer, were they two men?
A. Yes, sir.
Q. What kind of jackets were they wearing?
A. The one individual with the large frame pistol was wearing dark pants and a bluish jacket. It had a couple of other colors, I think it was yellow on them. And then the other one was a maroon jacket, the one that was laying in front of him.
. . . .
Q. And who was the one wearing the yellow and blue jacket?
A. Mr. Johnson.
Q. Is that the Defendant seated over here at counsel table?
A. Yes, sir.
Q. Was he the one that had a gun in his hand and pointed it at you?
A. Yes, sir.
Officer Kenneth Smith of the Bristol, Virginia Police Department testified that Officer Eller took charge of the weapon underneath the trailer, a nine millimeter Ruger pistol. Officer Smith further testified that he removed two other weapons from the defendant's person at the time of arrest — a Derringer and a twenty-five millimeter pistol.
Richard Van Roberts, firearms examiner for the Commonwealth of Virginia, Division of Forensic Science, testified as an expert witness in the field of firearm ammunition and tool mark identification. Prior to Van Roberts's testimony, the parties had stipulated that the following evidence had been turned over to Van Roberts: eleven shell casings taken from Auburn Street; six shell casings from English Street where Officer Privette was fired on, as well as other shell casings taken from Williams Street in Bristol, Virginia; two bullets taken from the police dog at the Williams Street site; other bullets from Auburn Street; and bullets taken from Officer Privette's police car. Van Roberts testified that all shells and casings had come from the same nine millimeter Ruger, the one in evidence that Officer Eller had retrieved from underneath the trailer at the Williams Street site in Bristol, Virginia, at the time of the capture of the defendant.
ANALYSIS I. Sufficiency of the Evidence
The defendant argues first that the evidence adduced at trial was insufficient as a matter of law to convict him of attempted first degree murder. The defendant specifically claims that the State did not identify him as the perpetrator with sufficient certainty; and the State did not prove that he acted with intent to cause the death of Officer Privette.
In considering this issue, we apply the familiar rule that where sufficiency of the convicting evidence is challenged, the relevant question of the reviewing court is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn.Crim.App.), perm. app. denied (Tenn. 1992); Tenn. R. App. P. 13(e) ("Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt."). All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn.Crim.App.),perm. app. denied (Tenn. 1987). "A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State." State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (Tenn. 1963)). A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
A. Proof of Identity
The defendant contends that the State failed to identify him with sufficient certainty as being the perpetrator of the crime based on the inability of Officer Privette to place a weapon in the defendant's hands and to identify the defendant in person rather than by a sports jacket that appeared to be "gray" in color.
James Felty testified that the defendant had three guns in his possession on the night of February 12; one was a nine millimeter Ruger, which only the defendant fired during the target practice spree that night. Felty further identified the defendant as the person who shot at the house and red Mustang at 101 Auburn Street in Bristol, Tennessee that same night. The casings and bullets recovered from Auburn Street were tested and positively identified by an expert as having been fired by the nine millimeter Ruger in evidence.
Officer Tucker identified the defendant as the person who pointed a "large frame" weapon at him after his police dog had emerged from under the construction trailer where the defendant was hiding. The bullet recovered from the dog's body was also tested by an expert and determined to be from the same nine millimeter Ruger that had been fired at the house on Auburn Street.
Officer Privette was fired on by a black male in a "gray jacket." The casings and bullet taken from the police cruiser Privette was using as a shield were identified by an expert witness as having come from the same nine millimeter Ruger that the defendant had used to fire on the house at Auburn and to kill the police dog. The jury had sufficient evidence to find that the defendant used the same gun to fire on Officer Privette that he had used earlier and would use again later that evening — the same gun with him under the trailer when he was arrested.
The defendant argues further that Officer Privette's testimony concerning the sports jacket was insufficient to inculpate him when Privette could not identify him in person. Privette admitted that the light at the English Street site was such that he could not identify the faces of the two men. Nevertheless, he was certain about the fact that the male wearing the brighter "red and yellow" jacket was not the individual who shot at him. The red and yellow jacket, a Kansas City sports insignia-type jacket, had been identified by Felty as being worn by Birdwell, not the defendant. Privette had no trouble distinguishing this jacket from the darker, "gray" jacket that the defendant wore. Privette noted that the color on the jacket that was most visible when the defendant had his arms extended in position to fire the Ruger was the darker color on the jacket. When Privette identified the defendant at the site in Bristol, Virginia, it was clear that the fact that the jacket worn by the defendant and the jacket worn by Birdwell were visually distinguishable aided in Privette's identification of the defendant as the one in the "gray" jacket who fired at him. The members of the jury saw both jackets and apparently believed that the jackets were distinguishable and provided believable identity proof.
We conclude that a rational trier of fact could have found beyond a reasonable doubt that the defendant was in possession of the nine millimeter Ruger on the evening of February 12, 1996, and that he was the person in the "gray" jacket who fired the Ruger, hitting Officer Privette's cruiser.
B. Evidence of Intent
The defendant also contends that the proof adduced at trial was insufficient to prove that he acted with intent to cause the death of Officer Privette and that the defendant believed that the conduct on his part would have caused the death of Officer Privette.
The essential elements of the crime with which the defendant was charged, attempted first-degree murder, include the statutory elements of criminal attempt as set out in Tenn. Code Ann. § 39-12-101. The crime is described as "an offense directed at the individual whose intent is to commit an offense, but whose actions, while strongly corroborative of criminal intent, fail to achieve the criminal objective intended." Tenn. Code Ann. § 39-12-101, Sentencing Commission Comments (1997). The three subdivisions of § 39-12-101(a) set out "alternative statutory tests for determining if a course of conduct that does not produce a proscribed harm can be classified as an attempt to commit an offense." Id. Those alternative tests are:
(a) A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense:
(1) Intentionally engages in action or causes a result that would constitute an offense if the circumstances surrounding the conduct were as the person believes them to be;
(2) Acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person's part; or
(3) Acts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.
The Sentencing Commission Comments to § 39-12-101(a)(2) note that "[i]f an offense is defined in terms of causing a certain result, an individual commits an attempt at the point when the individual had done everything believed necessary to accomplish the intended criminal result." The comments to subsection (a)(2) illustrate this test with the following example:
[A] wife commits attempted murder when she replaces her husband's nightly sleeping pill with a cyanide tablet, intending to cause his death and believing he will take the tablet and die as a result. The fact that the husband does not take the tablet, or that he does not die following its ingestion, does not alter the wife's responsibility for attempted murder, since she believed her conduct would cause her husband's death without further conduct on her part.
Here, the evidence is sufficient to support the offense of criminal attempt under the tests of § 39-12-101(a)(1) and (2). The evidence showed that the defendant had a deadly weapon in his possession. When he first aimed the weapon directly at Officer Privette and pulled the trigger, only the fact that the gun misfired prevented the intended result of the death of Privette. The defendant had certainly done everything necessary to accomplish that result. Once the defendant cleared or "racked" the gun, his intentionally opening fire on Privette's cruiser could have completed the offense of murder had the cruiser not shielded Privette. We find the evidence sufficient to support criminal attempt.
In addition to meeting one or more of the statutory tests of subdivisions (a)(1) to (3), the offender must, as stated in the introductory phrase of § 39-12-101(a), act with the "kind of culpability otherwise required for the offense." First-degree murder is "[a] premeditated and intentional killing of another." Tenn. Code Ann. § 39-13-202(a)(1). As used in this section, "`premeditation' is an act done after the exercise of reflection and judgment. `Premeditation' means that the intent to kill must have been formed prior to the act itself." Id. § 39-13-202(d). Additionally, "[t]he mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation." Id. When the charged offense is first degree murder, the element of premeditation is a jury question and "may be established by proof of the circumstances surrounding the killing." State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997) (citing State v. Brown, 836 S.W.2d 530, 539 (Tenn. 1992)).
Here, the evidence is sufficient to prove that the defendant also acted with the requisite culpability for first degree murder. When Privette stopped the defendant and Birdwell, the defendant did eventually raise his hands as ordered, but he moved very carefully to what he determined would be a suitable barrier behind which he could draw his gun, jump up, and fire directly at Privette. Only the misfiring of the gun thwarted his plan. After the misfire, the defendant dropped back behind the barrier, cleared his weapon, and then opened fire on Privette. The jury could have reasonably inferred that the defendant formed the intent to kill Officer Privette when he slowly walked toward the barrier, dropped out of sight, pulled his gun out, raised up, aimed at Privette, and pulled the trigger. The jury could also have reasonably inferred that the defendant continued in his intention to kill Privette because his subsequent shots hit the cruiser in a pattern placed so as to deprive Privette of cover. The defendant's gunfire hit the cruiser near the front right wheel well; in the right front door, penetrating the passenger compartment; forward of the right rear wheel well; in the right rear tire; and in the left rear tire, behind which Officer Privette was crouching.
The evidence in this record is sufficient to support the conclusion that the defendant, without excitement or passion, consciously engaged in conduct which was intended to cause Officer Privette's death after exercising judgment and reflection. Therefore, we conclude that the evidence is sufficient to establish attempted first-degree murder beyond a reasonable doubt.
II. Special Jury Instructions
The defendant offered five special jury instructions, each of which was denied by the trial court. The five special instructions were as follows:
1. That more than a split second intention to kill is required to constitute premeditation, which by its very nature is not instantaneous, but requires some time interval.
2. More than the mere fact of repeated shots must be shown to establish premeditation.
3. Repeated shots can be delivered during a moment of excitement without reflection.
4. Only if repeated shots are made as a result of premeditation can they be said to prove premeditation.
5. Once homicide or attempted homicide is established, it is presumed to be murder in the second degree.
The defendant's proposed special instructions all deal, in one way or another, with the issue of premeditation. The trial court instructed the jury on premeditation in the following way:
A premeditated act is one done after the exercise of reflection and judgment. Premeditation means that the intent to kill must be formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite period of time. The mental state of the accused at the time of the decision to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation. If the design to kill is formed with premeditation, it is immaterial that the accused may have been in a state of passion or excitement when the design is carried into effect. Furthermore, premeditation can be found if the decision to kill is first formed during the heat of passion, but the accused commits the act after the passion has subsided.
The trial court addressed each of the defendant's proposed jury instructions prior to argument of counsel. The court, upon considering all of the proof introduced, was of the opinion that the Tennessee Pattern Jury Instructions, which the court followed, accurately reflected the present status of the law in general and would also accurately reflect the law as it should be applied in the defendant's case. Further, the trial court noted case authority concerning premeditation and determined that the repeated shots could be one piece of evidence in a particular case from which the jury could infer premeditation. The weight to be given such evidence is left to the jury, and the trial court rightly declined instructions that, in essence, commented on the evidence. As for the fifth requested special instruction, the trial court determined that request was superfluous in that the instructions given would clearly charge that the State must prove the element of premeditation to establish attempt to commit murder in the first degree. We agree with the trial court's analysis of the instructions actually given and the requested special instructions.
The instruction on premeditation which the trial court gave to the jury was virtually verbatim with the premeditation instruction set out in Tennessee Pattern Instructions — Criminal 7.01(b) (4th ed.), the pattern jury instruction for first degree murder (premeditated killing). The defendant had a "constitutional right to a correct and complete charge of the law." State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). So long as the instructions are correct statements of the law and "fully and fairly set forth the applicable law," the trial court does not commit error in "refus[ing] to give a special instruction requested by a party." State v. Bohanan, 745 S.W.2d 892, 897 (Tenn.Crim.App. 1987), perm. app. denied (Tenn. 1988). In assessing the defendant's claims as to the instructions given by the court, we must review "the charge as a whole in determining whether prejudicial error has been committed." In re Estate of Elam, 738 S.W.2d 169, 174 (Tenn. 1987); State v. James Fernandez, No. 01C01-9609-CR-00394, 1998 WL 10879, at *8 (Tenn.Crim.App., Nashville, Jan. 14, 1998), perm. app. denied (Tenn. Nov. 2, 1998). Based upon our review, we conclude the pattern jury instruction given by the trial court was accurate and sufficiently instructed the jury as to premeditation so that no additional instruction was necessary. This being the case, it was not error to refuse to submit the special instructions requested by the defendant.
III. Failure to Excuse Prospective Juror
The defendant next claims that the trial court erred in failing to dismiss a prospective juror who, during the jury selection process, had overheard a conversation between the defendant's attorney and the defendant's grandmother. The conversation was described by defense counsel as being "extremely prejudicial to my client under any circumstances." During a lunch break, three prospective jurors heard bits of a conversation between the individual they knew to be defense counsel and an older woman they thought might be a member of the defendant's family. The overheard conversation took place in the hallway outside the courtroom. The contents of the conversation apparently dealt with the defendant's troubled life. The three prospective jurors were questioned at length during individual voir dire by the trial judge, counsel for the prosecution, and counsel for the defense. Two of the prospective jurors were excused by the trial court because they said they would have difficulty remaining impartial after what they claimed to have heard. The third juror, Brenda Crockett, was not excused because she stated that she heard very little of the conversation and only had "impressions" that the defendant had had many problems growing up. The trial court questioned her in the following:
Q. Mrs. Crockett, as a result of the conversation you heard, did you have any emotional feelings that would either bring about sympathy for the Defendant or prejudice against the Defendant?
A. No, sir.
Q. Would it affect you — what you overheard there, would it affect you — affect you, not infect you, in any way as you sit there now and make you lean one way or the other just because of something you heard?
A. No, sir, because I know from the past two that I've been on that you have to look at the evidence and that's what you go by.
Ms. Crockett remained on the jury panel. The trial court noted, before seating the jury, that counsel for both sides had "accepted the twelve jurors presently in the box." Later during defense argument on motion for change of venue, the trial court stated that neither side exhausted its peremptory challenges.
Having failed to object to the trial court's decision to allow Ms. Crockett to serve and having failed to use an available peremptory challenge, the defendant has waived this issue. See Tenn. R. App. P. 36(a) ("Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error.").
IV. Continued Use of Appointed Counsel
The defendant finally argues that the trial court should have had a jury-out hearing to determine if the defendant had any objection to the continued representation of appointed counsel. The defendant claims that the remarks made by counsel in the hallway to the defendant's grandmother created concerns on the defendant's part that his counsel could be relied upon for effective representation. His theory appears to be that his trust in counsel had been eroded and that the trial court should have intuited this, held a jury-out hearing, and appointed new counsel. The defendant cites no authorities or appropriate references to support his theory. We note, additionally, that the record reveals the trial court took great care to assure that the defendant's rights were protected at all times. The defendant was heard on a number of occasions with patience and respect on the part of the trial court. If the defendant had concerns regarding defense counsel's ability to effectively represent him, his stated objections would not have fallen on deaf ears. Not having made his concerns known to the trial court, this issue is waived.
CONCLUSION
For the reasons set out in the discussion above, we conclude that the defendant's issues on appeal lack merit. His conviction for attempted first degree murder is hereby affirmed.