State v. Johnny Cruse ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL 1999 SESSION FILED
July 15, 1999
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate Court Clerk
) C.C.A. No. 02C01-9810-CC-00319
Appellee, )
) Decatur County
v. )
) Honorable C. Creed McGinley, Judge
JOHNNY LYNN CRUSE, )
) (Sentencing)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
J. Michael Ivey Paul G. Summers
36 Tennessee Avenue South Attorney General & Reporter
P. O. Box 127
Parsons, TN 38363 Georgia Blythe Felner
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
G. Robert Radford
District Attorney General
111 Church Street
P. O. Box 686
Huntingdon, TN 38344-0686
Jerry W. Wallace
Assistant District Attorney General
P. O. Box 637
Parsons, TN 38363-0637
OPINION FILED: ______________________________
AFFIRMED PURSUANT TO RULE 20
L. T. LAFFERTY, SENIOR JUDGE
OPINION
The appellant, Johnny Lynn Cruse, appeals as of right from the judgment of the
Decatur County Circuit Court imposing a sentence of twenty-five years following his guilty
plea to murder second degree. The appellant submits one appellate issue: whether the
trial court erred in imposing the maximum sentence of twenty-five years as a Range I,
violent offender.
After a review of the entire record, briefs of the parties, and appropriate law, we
AFFIRM the trial court’s judgment.
On February 16, 1998, the Decatur County grand jury indicted the defendant
(Johnny Lynn Cruse), Daniel Lynn Matthews, and Terry Dale Miller for the premeditated
murder of Thomas L. Hay on December 1, 1997. On May 7, 1998, the defendant, in the
presence of his attorney, entered a plea of guilty to the reduced offense of murder second
degree and requested that the trial court determine the appropriate sentence. The trial
court ordered a presentence report.
At the sentencing hearing on June 22, 1998, the defendant testified he did not wish
to call any witnesses, nor did he wish to testify. The presentence report was submitted to
the trial court for consideration of the appropriate sentence. After the defendant’s arrest,
he gave a statement to the Decatur County Sheriff’s Department, which was incorporated
into the presentence report. Prior to the shooting, the defendant, Daniel Matthews, and
Terry Miller were at a friend’s house drinking beer. Miller started talking about how some
guy had “f----- them.” The defendant did not know who they were talking about. After
riding around, they arrived at “Hook’s” house. Matthews had a rifle, and he and Miller
cleaned the bullets with Windex and loaded the rifle. They drove up the victim’s driveway.
Miller went up to the house, returned to the car, and told Matthews to “go do it. . . . He’s
sitting in the chair. Go do it or we’ll leave.” Matthews got out, walked up to the house, and
fired several shots through the door. The defendant drove off, but stopped down the road,
and all three returned to the house, where Miller took some rocks and arrowheads.
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Matthews took two long guns, a lever-action rifle, and something in a “zip-up” bag. The
defendant admitted that he knew “we were going to kill that man. . . . My only participation
was that I was driving them around, went back to the house after the man was dead, and
talked to them about not parking down the road, when the planning was going on.”
The State submitted three enhancement factors for the purpose of enhancing the
defendant’s sentence: (1) the defendant has a previous history of criminal convictions or
criminal behavior; (2) the defendant was a leader in the commission of an offense involving
two or more criminal actors; and (3) the defendant possessed or employed a firearm in the
commission of the offense. Tenn. Code Ann. § 40-35-114(1), (2), and (9). The trial court
found enhancement factors (1) and (9) applicable. The defendant stipulated there were
no mitigating factors, but took issue that he was a leader in the commission of the offense.
The trial court rejected the application of factor (2), the defendant was a leader in the
commission of the offense. In the absence of any mitigating factors, the trial court imposed
the maximum sentence within Range I for murder second degree at twenty-five years in
the Department of Correction.
When the accused challenges the length, range, or manner of service of a
sentence, this Court has a duty to conduct a de novo review of the sentence with a
presumption of correctness that the determinations made by the trial court are correct.
Tenn. Code Ann. 40-35-401(d). This presumption is “conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
When conducting a de novo review of a sentence, this Court must consider: (a) the
evidence, if any, received at the trial and sentencing hearing; (b) the presentence report;
(c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature
and characteristics of the criminal conduct involved; (e) any statutory mitigating or
enhancement factors; (f) any statement made by the defendant regarding sentencing; and
(g) the potential or lack of potential for rehabilitation or treatment. State v. Smith, 735
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S.W.2d 859, 863 (Tenn. Crim. App. 1987); Tenn. Code Ann. §§ 40-35-102, -103, -210.
From a review of the record, the trial court followed the sentencing principles of the
Tennessee Criminal Sentencing Reform Act of 1989, thus this review is de novo with a
presumption of correctness. As part of his argument, the defendant contends that the trial
court should have applied the following mitigating factors: (4) the defendant played a minor
role in the commission of the offense; and (10) the defendant assisted the authorities in
locating and recovering the gun and stolen property. Tenn. Code Ann. § 40-35-113(4) and
(10). From our review of the record, we have been unable to find any evidence in support
of factor (10), Tenn. Code Ann. § 40-35-113. In denying the State’s request to apply
enhancement factor (2), Tenn. Code Ann. 40-35-114, namely, that the defendant was a
leader in the commission of the offense, the trial court found the evidence was not clear
as to which of the three defendants was the “leader” of the offense. However, the
evidence was clear that “there was substantial involvement by all” of the defendants. Thus,
the trial court was not in error for failing to apply mitigating factor (4), Tenn. Code Ann. §
40-35-113.
The trial court found that the defendant was an offender whose record of criminal
activity is extensive. See Tenn. Code Ann. § 40-35-115(b)(2) (1997). The record of the
defendant’s prior criminal history and behavior is uncontroverted and more than adequately
supports the trial court’s conclusion. The sentence imposed by the trial court reasonably
relates to the severity of this offense and was necessary to protect society from the
defendant’s criminal activity. State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). If
appellate review reflects that the trial court properly considered all relevant factors and its
findings of fact are adequately supported in the record, this Court must affirm the sentence,
“even if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785,
789 (Tenn. Crim. App. 1991).
The judgment of the trial court is affirmed pursuant to Rule 20 of the Tennessee
Court of Criminal Appeals.
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________________________________________
L. T. LAFFERTY, SENIOR JUDGE
CONCUR:
___________________________________
JOSEPH M. TIPTON, JUDGE
___________________________________
DAVID G. HAYES, JUDGE
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