State v. Poe , 1981 Tenn. Crim. App. LEXIS 330 ( 1981 )

OPINION

TATUM, Judge.

This is an appeal from a judgment denying probation. The appellant, Paul David Poe, was indicted for assault with intent to commit first-degree murder. The jury found the appellant guilty of assault and battery with punishment fixed at 11 months and 29 days in the county jail plus a $1,000 fine.

The record consists mostly of statement and argument of counsel. No actual evidence is in the record except the appellant’s answers to a few questions asked him by the court. These questions mostly concern the appellant’s employment status and history. There is also a probation report in the record which was considered by the trial judge. The probation report was generally favorable to the appellant.

The trial judge assigned the following reasons for denying probation:

1. Deterrence to crime in that area.

2. The nature of the particular crime.

3. His disbelief of the appellant’s testimony concerning his employment.

The crime was committed on April 29, 1978. Deterrence was specified by the Legislature as a factor to be considered in probation cases by an amendment to T.C.A. § 40-2904 which became effective May 5, 1978. In Boykins v. State, 584 S.W.2d 194 (Tenn.1979), our Supreme Court held that this new standard as grounds for denial of probation did not apply to offenses committed prior to the effective date of the amendment. We are bound by the Boykins case and hold that the deterrence factor was improperly applied in this case.

The next factor assigned by the trial court was the nature of the offense. The appellant shot at the victim three times with a .22 rifle and hit him twice, one time in the back. The victim almost died from these gunshot wounds but eventually made a good recovery. The appellant’s attorney describes this crime as being one of passion, but the appellant says that he shot to defend himself. The version given by the appellant to the probation officer was as follows:

“I was working at West Side Amoco Service Station in the early part of 1978. My nephew, Darrell Poe, came by to see me and he called a girl I had been dating and told her that I was married, but separated from my wife for over a month. We started arguing and he pulled a knife on me because I was going to hit him. I went to my car and got my .22 rifle out and told him to put the knife up. He started swinging the knife at me so I fired the gun three (3) times and hit him twice (2). My intentions were to defend myself.”

It is now settled that crimes of violence against the person, or particularly heinous crimes, might indeed be the controlling factor in a probation determination. Kilgore v. State, 588 S.W.2d 567 (Tenn.Cr.App.1979); Powers v. State, 577 S.W.2d 684 (Tenn.Cr.App.1978); Mattino v. State, 539 S.W.2d 824 (Tenn.Cr.App.1976). The record leaves no doubt other than that the crime was of extreme violence. The jury rejected the appellant’s theory of self-defense. The trial judge did not abuse his discretion in finding that the appellant was not entitled to probation on this ground.

The trial judge also noted that he did not believe the appellant to have been truthful in some of his testimony. This is a factor of which the court may note at a probation hearing. State v. Grear, 568 S.W.2d 285 (Tenn.1978). In United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 2617, 57 L.Ed.2d 582, 589 (1978), the United States Supreme Court held that a defendant’s false testimony, observed by the trial court during the trial, was probative in sentencing as having a bearing on a defendant’s prospects for rehabilitation.

While not mentioned by the trial judge, we note that the record contains little, if any, evidence that probation will benefit both the appellant and the public, that the appellant is willing and able to rehabilitate himself, or that there is a reasonable probability that the appellant will henceforth practice good citizenship. The record does not even contain the appellant’s testimony concerning those elements. The burden of proving these facts is upon an applicant for probation. Ball v. State, 604 S.W.2d 65 (Tenn.Cr.App.1979); Frazier v. State, 556 S.W.2d 239 (Tenn.Cr.App.1977).

We do not find that the trial court abused his discretion, and we must therefore affirm the judgment denying probation

BYERS, J., concurs. O’BRIEN, J., dissents.