State v. Wilson ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY SESS ION, 1998 September 15, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9708-CR-00343
)
Appellee, )
)
) HAMBLEN COUNTY
VS. )
) HON. JAMES EDWARD BECKNER
LARRY WILSON, ) JUDGE
)
Appe llant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
P. RICHARD TALLEY JOHN KNOX WALKUP
P. O. Box 950 Attorney General and Reporter
Dandridge, TN 37725
SANDY C. PATRICK
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0943
BERKELEY BELL
District Attorney General
JOHN DUGGER
Assistant District Attorney
510 Allison Street
Morristown, TN 37814
OPINION FILED ________________________
MODIFIED AND REMANDED
JERRY L. SMITH, JUDGE
OPINION
On Ma rch 12, 1997 , a Hamb len County jury fou nd Appe llant, Larry
Wilson , guilty of reckless hom icide. The jury imp osed a fine of $5 ,000. After a
sentencing hearing, the trial court sentenced Appellant to the maximum
penalty of four years incarceration to be served as a R ange I stand ard
offender. Appellant appeals from the trial court’s sentence, raising two issues:
1) whether the trial court erred in imposing the maximum sentence and
in failing to consider applicable mitigating factors, and
2) whe ther the trial cou rt erred in den ying A ppella nt prob ation o r spilt
confinem ent.
After a revie w of the re cord, we modify th e judgm ent of the tria l court to
reflect a sentence of three years with one year incarceration followed by two
years of supervised probation.
FACTS:
According to testimony pres ented at trial, Appellan t and his brother,
Randy Wilson, the victim, had a strained relationship for many years. The
victim threatened Appellant’s life on many occasions. On the morning of the
homicide, around 4:30 in the morning, the victim and his girlfriend, Rocky
Ward showed up unannounced at Appellant’s door. Appellant allowed the two
to sleep in his home until sometime after midday. Appellant testified that the
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victim and Ms. Ward appeared to have been under the influence of drugs and
alcohol. The pair left the farm around two o’clock with Ms. Ward going
sometime in the evening to pick up her son for her summer visitation with him.
Randy Wilson returned to the farm late that evening, and Ms. Ward arrived
with he r fourte en yea r old so n and her five y ear old daug hter to m eet him
around 11:30.
Randy Wilson was reclining on the porch, and when Ms. Ward arrived,
she did not im mediately see him. So M s. Wa rd went into the sh ed where
Appellant was working and asked him where Randy was. Appellant pointed
toward the house. Ms. Ward then got her children out of the car, slamming the
car door in the process. When Randy Wilson heard the car door he sat up,
and M s. W ard joined him on the porc h.
Randy Wilson and Ms. Ward checked for the key on the porch, and, not
finding it, Ms. Ward returned to the shed to ask Appellant for the key. She got
no response from Appellant, and returned to the porch without the key. Randy
Wilson then stated that he would get the key and went to the shed. A few
seconds after Randy Wilson entered the shed, Appellant shot him. Randy
Wilson turned to leave the shed, holding his stomach, and Appellant followed
him out of the shed, shooting him in the back. Ms. Ward and her two children
fled the property, hearing a third shot as they ran. Ms. Ward flagged down a
car which took her to call the authorities.
The victim’s body was recovered at the scene with three gunshot
wounds to the body (and an additional wo und to the ha nd which co uld have
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been from the same shot as one of the wounds to the body): one shot to the
chest which c rossed throu gh the ches t wall and the top of the victim’s liver,
another sho t to the abdom en which w ent through the top of the left kidney,
injured the spleen and passed through the victim’s stomach, and a third shot
which entere d high unde r the victim’s jaw and e xited just below his ea r,
severing the carotid artery. According to medical testimony at trial, either of
the first two wound s would have been fatal had the victim received e xtensive
medical care within thirty minutes of receiving either wound. The third shot
caused d eath instantane ously.
Appellant initially denied killing his brother, but eventually signed a
statem ent adm itting to shoo ting Ran dy W ilson after h is brother th reatene d to
“blow his brains out” if he did not give the victim the key to his house.
Appe llant wa s afraid of the vic tim as a resu lt of the vic tim’s p rior thre ats to k ill
him and felt that, if he did not protect himself, the victim would shoot him.
Appellant further testified that when the victim turned to leave the shed, he
feared that the victim would retrieve a gun from his car and return to kill him.
Though the victim was unarmed at the time of the shooting, undisputed
testimony was presented that the victim always carried a gun, usually wore a
bullet proof-vest, and had a reputation for violence.
I. Length of Sentence
Appellant argues that the trial court erred in imposing the maximum
sentence for this crime. When a defendant complains of his or her sentence,
we must conduct a de novo review with a presumption of correctness. Tenn.
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Cod e Ann . § 40-3 5-401 (d). Th e burd en of s howin g that th e sen tence is
improper is upon the appealing party. Tenn. Code Ann. § 40-35-401(d)
Sente ncing Com miss ion Co mm ents. T his pre sum ption, h owev er, is
conditioned u pon an affirm ative showing in the record that the trial court
considered the sentencing principles and all the relevant facts and
circum stance s. State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).
The Sentencing Reform Act of 1989 established specific procedures
which must be followed in sentencing. These procedures, codified at Tenn.
Code Ann. § 40-35-210, mandated the court’s consideration of the following:
(1) The evidence, if any, received at the trial and the
sentencing hearing; (2) [t]he presentence report; (3)
[t]he princip les of sen tencing a nd argu ments as to
sentencing alternatives; (4) [t]he nature and
characteristics of the criminal conduct involved; (5)
[e]vidence and information offered by the parties on the
enhancement and mitigating factors in §§ 40-35-113
and 40-35-114; and (6) [a]ny statement the defendant
wishes to make in his own behalf about sentencing.
T.C.A. § 40-35-210.
This section further provides that the minimum sentence within the
range is the presumptive sentence. The court must begin with the minimum
sentence a nd enhan ce that senten ce to approp riately reflect any statutory
enhancement factors that the court finds to be present. After enhancing the
sentence, the court must reduce the sentence giving consideration to the
weight of any mitigating factors that the court finds. The weight to be given
each fa ctor is left to the discretion of the trial judg e. State v. Shelton, 854
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S.W .2d 116, 123 (Tenn. Crim . App. 1992 ). Because w e find the trial court
erred in rejecting a number of applicable mitigating factors out of hand, our
review of the sen tence in this case is purely de novo.
Having bee n convicted of a C lass D felony as a Range I standard
offender Appellant is subject to a minimum sentence of two years and a
maximum sentence of four years. The trial court found that two enhancement
factors were applicable, i.e., Appellant treated Randy Wilson with exceptional
cruelty , Ten n. Co de An n. Sec . 40-35 -114( 5), and Appe llant us ed a fire arm in
the commission of the offense, Tenn. Code Ann. Sec. 40-35-114(9). The trial
court declined to find that any of the mitigating factors offered by Appellant
were applicab le to the case. It is from the refusal on the pa rt of the trial court
to apply any of these mitigating factors that Appellant appeals.
Appe llant urged the trial cour t to apply the following m itigating facto rs to
his sentence:
(2) the defendant acted under strong provocation;
(3) substantial grounds exist tending to excuse or
justify the defendant’s criminal conduct, though
failing to establish a defense.
(8) the defendant was suffering from a mental or
physical condition that significantly reduced
culpability for the offense; and
(11) the defendant, although guilty of the crime,
committed the offense under such unusual
circumstances that is unlikely that a sustained
intent to violate the law m otivated the condu ct.
Tenn. Code Ann. § 40-35-113.
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We will address the applicability of each factor in turn.
Strong Provocation.
The evidence in this record is undisputed that Appellant was a peaceful
man who h ad ne ver be en in tro uble b efore in his life. Lik ewise it is
uncontradicted that Randy Wilson was a violent man who wore a bullet proof
vest an d wen t arme d virtua lly all the tim e. Ran dy W ilson h ad intim idated his
brother, th e Appe llant, for years through threats an d belligere nt beha vior.
Indeed the mother of both Appellant and Randy Wilson testified that the latter
was so violent she was sca red of him and ac tually slept w ith a base ball bat to
protect herself from her own son. Appellant testified that at the time of the
shooting his bro ther threatened to kill him as he had many time s previously.
It is obvious the jury believed that Appellant acted under some degree
of prov ocatio n that re duce d his cu lpability fo r the ho micid e. Altho ugh o riginally
indicted for second degree murder, i.e. a “knowing” killing the jury found
Appellant guilty of only the “reckless” killing of Randy Wilson. We believe that
under the circumstances the trial court should have found that Appellant when
he shot Randy Wilson was acting under strong provocation.
Substa ntial Grou nds Exis t Wh ich Ten d to Excu se App ellant’s Co nduct.
From its verdict it is clear that the jury rejected the notion that Appellant
acted in a m anne r which would cons titute the com plete d efens e of se lf
defens e thereb y excusin g Appe llant from c riminal res ponsib ility altogether.
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However, for the reasons stated in the preceding section it is also clear that
the jury did not believe Appellant to be guilty of a murder or any intentional
homicide. S ince Appe llant admitted sho oting his brother rep eatedly we are
left to conclude that the jury must have believed that Randy Wilson’s previous
threats and his reputation for violence and going armed tended to excuse the
Appe llant’s cond uct. 1 From the rec ord we agree and fin d the tria l court s hould
have applied this mitigating factor to Appellant’s sentence.
Appellant’s Mental Condition.
Expert testimony established that Appellant had a low I.Q. although he
was not retarded. He also suffered from a form of post-traumatic stress
syndrome. However, Appellant was a fully functioning individual who ran a
farm, dated, and took care of his elderly aunt. He had never been treated for
men tal or em otiona l proble ms. U nder th ese c ircum stanc es the trial cou rt did
not err in rejecting this m itigating factor.
Sustained Intent to Violate the Law.
The uncontradicted proof in the record revealed that Appellant is a
peace ful man who ha s never c rossed paths w ith the law p rior to this incid ent.
By all accounts he led a quiet life on his family farm where he cared for an
elderly aunt. Again, it is apparent from its verdict that the jury found the killing
of Randy Wilson to be at most an isolated act motivated by fear and
1
The trial judge in rejecting this mitigating factor indicated that the jury’s having apparently taken
this factor into account in reaching its verdict precluded him from considering it. We know of no case or
statute which mandates such a conclusion.
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intimidation. W e find that Appe llant’s actions were n ot motivated by a
sustaine d intent to vio late the law . This facto r should h ave bee n applied to
Appellant’s sentence.
In summary is it the opinion of this Court that mitigating factors (2), (3)
and (11) apply to the sentence in this case. In balancing these factors against
the su bstan tial weig ht acc orded by the tr ial cou rt to the a pplica ble
enhancement factors we modify the sentence of four years to one of three
years in length.
II. Alternative Sentencing
Appellant further challenges the trial court’s order that he serve the
entirety of his sentence in confinement. The Sentencing Reform Act requires
the trial court to begin its consideration with the presumption that the appellant
is subject to alternative sentencing if he meets the requirements of Tennessee
Cod e Ann otated § 40-3 5-102 (6), wh ich req uires th at the a ppella nt not fa ll
under Tennessee Code An notated § 40-35-102(5) and that he receives a
sentence of less than eight years. This means that the defendant must be a
standard or mitigated offender, convicted of a Class C, D, or E felony who
cannot have a criminal history evincing either “clear disregard for the laws and
morals of society” or “failure of past efforts at rehabilitation.” Tenn. Code Ann.
§ 40-35-102(5). Appellant clearly falls within the parameters of the
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presumption that he is entitled to a sentence other than continuous
confinem ent.
The presumption that Appellant is a candidate for alternative sentencing
does not settle the matter. This presumption may be rebutted by “evidence to the
contrary.” Tenn. Code Ann. § 40-35-102(6). Tennessee Code Annotated § 40-35-
103 gives guidance as to what may be considered in making this determination:
(1) Sentences involving confinement should be
based on the following considerations:
(A) Confinement is necessary to protect
society by restraining a defendant who has a long history
of crimina l conduc t;
(B) Conf inement is ne cess ary to a void
depreciating the seriousness of the offense or confinement
is partic ularly suited to provide an effective deterren ce to
others likely to commit similar offenses; or
(C) Meas ures le ss restrictive than
confinement have frequently or recently been applied
unsuc cessfully to the defen dant.
State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1). In this case, the trial court
found that confinement was necessary to avoid depreciating the seriousness
of the offense. The trial court specifically based the sentence of continuous
incarceration upon the lawlessness of society saying, “so what should the
mess age be ?”. In my o pinion, pro bation w ould say that it’s okay to go bac k to
lawlessness in a time when violence causes all of us to live in fear. What we
need more of, folks , is just pla in old la w and order, and th en if you kill
someone and it’s not in self-defense, and you know what you’re doing, and
you do it cruelly, you go to jail. Those are hard words, but they’re true. So
that’s the mes sage.”
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We agree with the trial court that this case is serious and that some
incarceration is necessary to avoid depreciating this fact. However, Tenn.
Code Ann. S ec. 40-3 5-103(4 ) cautions us that:
The sen tence impo sed shou ld be the least seve re
measure necessary to achieve the purposes for
which the sentence is imposed.
The hom icide in th is case is not on ly seriou s, as is a ny hom icide, b ut it
is also trag ic. Here o ne othe rwise law abiding b rother is ap parently d riven to
kill his violent sibling through threats and intimidation meted out by the latter
for the better part of a lifetime. As stated previously, although Appellant
cann ot and shou ld not b e com pletely r elieved of crim inal res pons ibility for his
actions, a sentence of continuous confinement in the penitentiary does not
appear to be the least severe measure necessary to avoid depreciating the
seriousness of the offense. It is our opinion that pursuant to Tenn. Code Ann.
Sec. 40 -35-306 , Appella nt shou ld serve a senten ce of one year in the c ounty
jail or workhouse followed by a period of two years supervised probation upon
such terms and conditions as the trial court may deem appropriate.
The judgment of the trial court is modified to reflect a sentence of three
years to be served as set forth hereinabove. This case is remanded to the
trial court for further proceedings consistent with this opinion.
____________________________________
JERRY L. SMITH, JUDGE
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CONCUR:
___________________________________
THOMAS T. WOODALL, JUDGE
___________________________________
WILLIAM B. ACREE, SPECIAL JUDGE
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