State v. Floyd Smith, II ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST SESSION, 1998 September 30, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9711-CR-00511
)
Appellee, )
)
) WILSON COUNTY
VS. )
) HON. J. O. BOND
FLO YD W AYNE SMIT H, II, ) JUDGE
)
Appe llant. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF WILSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY D. SMITH JOHN KNOX WALKUP
One Public Square, Ste. 321 Attorney General and Reporter
Clarksville, TN 37040
TIMOTHY F. BEHAN
KAR EN C HAF FIN Assistant Attorney General
Assistant Public Defender 425 5th Avenu e North
213 N orth Cu mberla nd St. Nashville, TN 37243
Lebanon, TN 37087
TOM P. THOMPSON, JR.
District Attorney General
DAVID DURHAM
Assistant District Attorney General
111 Cherry Street
Lebanon, TN 37087
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant was convicted on a jury verdict of second d egree m urder.
For this Class A felony offense, he was sentenced to serve twenty years in the
Department of Correction as a Range I standard offende r. He app eals the le ngth
of his sen tence. W e affirm the judgm ent of the tria l court.
At approximately midnight on the evening of February 18, 1995, a fifteen-
year-o ld high school sophomore was killed after a fight broke out among several
individu als in a shopping center par king lo t. The caus e of de ath wa s a sing le
stab wound to the victim’s chest which penetrated his heart. Immediately prior
to the killing, the group of young people gathered on the parking lot had been
involved in some sort of an altercation. Although the evidence demonstrated that
the Defendant inflicted the fatal knife wound to the victim, the Defendant argued
that he acted in self defense. The jury rejected his defen se and found h im guilty
of second degree murder as charged. After conducting a sentencing hearing, the
trial judge sentenced the Defendant as a Range I standard offend er to twen ty
years in the Department of Correction, which is a mid-range sentence for this
Class A felony. It is from the length of the sentence imposed by the trial judge
that the D efenda nt appe als.
When an accused challenges the length, range, or manner of service o f a
sentence, this court has a duty to conduct a de novo review of the senten ce with
a presumption that the determinations made by the trial court are correct. Tenn.
Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive
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showing in the record that the trial court considered the sentencing principles and
all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 19 91).
In 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 princip les of sen tencing a nd argu ments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
that the defendant made on his own behalf; and (g) the potential or lack of
potential for rehabilitation or treatme nt. State v. S mith, 735 S.W.2d 859, 863
(Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principles set out under the sentencing law, and
that the trial court's findings of fact are adequately supported by the record, then
we may not modify 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 presentence report reflects that at the time of sentencing the
Defendant was twenty-one years old and unm arried. He dropped out of high
school in the eleventh grade. The report referenced a history of alcohol and drug
abuse. His rather brief em ploym ent his tory ha d bee n in co nstruc tion wo rk. His
juvenile record consisted of adjudications for theft, destruction of property, being
unruly, unauthorized use of emergency equipment, and violation of probation.
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As a juvenile, he was committed to the Department of Youth Development, under
whose custody he remained until he was discharged after his nineteenth birthda y.
At the time of his sentencing , burglary of an autom obile and theft cha rges were
pending ag ainst him in ano ther county.
In sente ncing the De fenda nt, the tria l court fo und a nd ap plied as
enhancement factors that the Defendant had a history of criminal convictions or
criminal behavior, that the Defendant was a leader in the commission of the
offense, that the offense was committed to gratify the Defendant’s desire for
pleasure or excitement, and that the Defendant poss esse d or em ployed a dea dly
weapon during the com mission of the offen se. Tenn. C ode Ann . § 40-35-114 (1),
(2), (7), (9). The trial court found no mitigating factors applicable.
The Defendant argues that the trial court erred in setting his sentence at
twenty years because the evidence does not establish that he was a leader in the
commission of an offense involving two or more criminal actors. We disagree.
W e believe the record establishes that the Defendant and his companions
proceeded to the parking lot that night looking for a fight. The Defendant let it be
known to his co mpa nions that he was a rmed with a k nife and indicated that he
would use it if necessary. The Defendant stated tha t he “wo ndere d wha t it felt
like if someone got cut.” Although it appears clear that the Defendant acted
alone in stabbing and killing the victim, we cannot conclude that the trial judge
erred in finding that the Defendant was a leader in the commission of an offense
involving two or more criminal actors.
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The Defendant also points out that the trial judge found the Defendant was
not “remo rseful” a bout h is conduct and argues that the court improperly applied
this finding as a “non-s tatutory” en hance ment fa ctor. Although the trial court was
clearly concerned over the Defe ndant’s apparent lack of remorse for killing the
victim, we believe the record is clear that th e court did not apply his lack of
remorse as an enhancement factor. The court specifically found and a pplied only
the four enhancement factors stated above.
The Defe ndan t also a rgues that the trial cou rt erred in failing to find and
apply the following mitigating factors provided by Tenn. Code Ann. § 40-35-113:
the Defendant acted under strong provocation; substantial grounds exist tending
to excuse or justify the Defendant’s criminal conduct, though failing to establish
a defense; the Defendant, because of youth or old age, lacked substantia l
judgment in committing the offense; the Defendant, although guilty of the crime,
committed the offense unde r such unus ual circ ums tance s that it is unlikely that
a sustaine d intent to vio late the law motivate d the crim inal cond uct; and th e
Defendant expressed remorse, cooperated with the authorities and withdrew from
the fight once his “attack ers” left him alon e. See Tenn. Code Ann. § 40-35-113
(2), (3), (6), (11), (13). Based on our review of this record, we simply cannot
conclude that the trial judge erred by not finding or applying any of these
mitigating factors.
W e are not persuaded that the trial judge erred or abused his disc retion in
setting the Defendant’s sentence in the middle of the applicable range. The
judgment of the trial court is accordingly affirmed.
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______________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JERRY L. SMITH, JUDGE
___________________________________
JOHN K. BYERS, SENIOR JUDGE
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