State of Tennessee v. Michael D. Frazier ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
JANUARY SESSION, 1997
FILED
June 4, 1997
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) No. 03C01-9602-CR-00084
Appellee, )
) KNOX COUNTY
)
v. ) HON. RICHARD BAUMGARTNER,
) JUDGE
MICHAEL D. FRAZIER, )
) (Attempt to commit voluntary
Appellant. ) manslaughter)
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY P. ISAACS JOHN KNOX WALKUP
1 Centre Square Attorney General and Reporter
Second Floor
Knoxville, TN 37902 TIMOTHY F. BEHAN
Assistant Attorney General
RONALD A. RAYSON 450 James Robertson Parkway
1 Centre Square Nashville, TN 37243-0493
Second Floor
Knoxville, TN 37902 RANDALL E. NICHOLS
District Attorney General
WILLIAM H. CRABTREE
Assistant District Attorney
City-County Building
Knoxville, TN 37902
SALLY JO HELM
Assistant District Attorney
City-County Building
Knoxville, TN 37902
OPINION FILED: _______________
AFFIRMED
CURWOOD WITT, JUDGE
OPINION
The appellant, Michael Frazier, appeals from the sentencing
judgment of the Criminal Court of Knox County. He was tried for attempt to
commit murder in the first degree and was convicted of attempt to commit
voluntary manslaughter, a Class D felony. The appellant received a sentence of
four years as a standard (Range I) offender. On appeal the following issues are
raised: (1) sentencing at the maximum time within the range and (2) the denial of
probation.
For reasons explained below, the judgment of the trial court is
affirmed.
The appellant was tried before a jury for the attempted first-degree
murder of Robert Whedbee. The appellant testified he was in love with
Whedbee’s wife, Lisa Whedbee, and fearing she was being brutalized by her
husband, he entered the Whedbee home in the early evening hours of June 7,
1994, planning to kill Robert Whedbee. Armed with a knife, he hid within a closet
for several hours. In the early hours of June 8, with knife in hand he entered the
room where Mr. Whedbee slept. Mr. Whedbee awoke, and a scuffle ensued. The
defendant testified that before he began any assault he decided to abandon the
plan and retreat from the house. He testified that Robert Whedbee awoke as the
appellant was leaving the bedroom. Mr. Whedbee, however, testified he awoke
and found the appellant standing over him, making a downward motion. The
struggle resulted, according to Mr. Whedbee, when he tried to fend off the blow
and subdue the attacker. Mr. Whedbee received very minor wounds to his ear
and throat and a more serious cut on his thumb. This latter injury occurred when
Mr. Whedbee grabbed the knife during the struggle. The appellant was acquitted
of attempt to commit murder in both the first and second degrees but was
convicted of attempt to commit voluntary manslaughter.
2
At the sentencing hearing, the appellant requested probation and
minimal sentencing, citing his lack of criminal record and his state of mental
despair at the time of the offense. Dr. Diana McCoy, a clinical psychologist,
testified for the defense that violence was out of character for the appellant, that
he was depressed, and that at the time of the offense, his mental state was
impaired due to his anxiety over the safety of Lisa Whedbee. In her opinion
incarceration was inappropriate for the appellant. She further stated, however,
that the appellant went to the Whedbee home “for the purpose of killing Rob
Whedbee. That was his point in going there at that time.” She stated that later he
realized he couldn’t go through with the crime and intended to withdraw. The
appellant did not testify at the sentencing hearing. The presentence report reflects
the appellant has no prior criminal record. The trial court set the sentence at four
years, the maximum in the range, and denied the appellant’s request for probation.
I. Standard of Review
When there is a challenge to the length, range, or manner of service
of a sentence, it is the duty of this Court to conduct a de novo review on the record
with a presumption that the determinations made by the trial court are correct.
Tenn. Code Ann. § 40-35-401(d) (1990). 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). “The burden of showing that the sentence is improper is
upon the appellant.” Id. In the event the record fails to demonstrate the required
consideration by the trial court, review of the sentence is purely de novo. Id. If
appellate review reflects the trial court properly considered all relevant factors and
its findings of fact are adequately supported by the record, this court must affirm
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the sentence, “even if we would have preferred a different result.” State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
In making its sentencing determination, the trial court, at the
conclusion of the sentencing hearing, determines the range of sentence and then
determines the specific sentence and the propriety of sentencing alternatives by
considering (1) the evidence, if any, received at the trial and the sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments
as to sentencing alternatives; (4) the nature and characteristics of the criminal
conduct involved; (5) evidence and information offered by the parties on the
enhancement and mitigation factors; (6) any statement the defendant wishes to
make in the defendant’s behalf about sentencing; and (7) the potential for
rehabilitation or treatment. Tenn. Code Ann. § 40-35-210(b) (Supp. 1996); Tenn.
Code Ann. § 40-35-103(5) (1990); State v. Holland, 860 S.W. 2d 53, 60 (Tenn.
Crim. App. 1993).
In Ashby, our supreme court said:
?[A] case-by-case approach to sentencing underlies this
Act as a fundamental policy. An individual criminal is
sentenced based on the nature of the offense and the
totality of the circumstances in which it was committed,
including the defendant’s background .... Any case-by-
case approach will embody discretion, since all of the
appropriate factors and circumstances must be weighed
and considered as a whole for the disposition of each
case.”1
State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991) (quoting State v. Moss, 727
S.W.2d 229, 235 (Tenn. 1986)).
1
While Moss was decided under the 1982 sentencing law, the court in
Ashby commented upon the Tennessee Criminal Sentencing Reform Act of
1989 that is controlling in the case now before us.
4
II. Length of Sentence.
The record affirmatively reflects that the trial court considered the
elements enumerated in Ashby and in the above-cited statutes. Accordingly, our
review is accompanied by the presumption of correctness. Given this presumption
there is ample support in the record for the trial court’s determination of the
sentence.
The trial judge considered the evidence presented at trial and said
he had a “very clear recollection of the facts of this case.” After hearing testimony
at the sentencing hearing, the trial court referred to his consideration of the
presentence report and admitted it into evidence. After hearing arguments
concerning enhancement and mitigation factors, the court recessed for a brief
interval to reflect upon the sentencing determination, and then the trial judge
announced he had considered the evidence at trial, the evidence presented at the
sentencing hearing, the presentence report, the arguments of counsel, and the
principles of sentencing. The court added, “[A]s always, again, the nature and
character of the criminal conduct involved in the particular case are a major factor
for the court’s consideration.” The court cited the necessity of appropriateness of
the sentence in view of the “nature of the defendant and his background history,
and conduct during this particular incident.” The court acknowledged the appellant
had no prior felony convictions but reflected that the jury verdict was in his view
“kind” to the appellant, giving him “the benefit of the doubt in this case” in finding
him guilty “of the least offensive criminal conduct of which they were given a
choice.” The trial judge expressed his view that there was sufficient proof to
support a finding of an attempt to commit first or second-degree murder.
The court stated, “[W]e start with presumptive minimum sentencing”
and then reviewed the enhancement factors set forth in Tennessee Code
Annotated Section 40-35-114, determining that factors (2), (4), (5), (7) and (16) did
5
not apply. The court found factor (9), the use of a deadly weapon, and factor (12),
a willful infliction of bodily injury, were the only applicable enhancement factors.
As to mitigating factors under Tennessee Code Annotated Section 40-35-113, the
court found the presence of factor (8), a mental condition that reduced the
defendant’s culpability, and rejected factors (2), (3), (11) and (12).
(a) Enhancement factors selected.
The court applied two enhancement factors in its sentencing
determination. The factors the court found applicable are:
(9) The defendant possessed or employed a firearm, explosive
device or other deadly weapon during the commission of the offense;
[and]
(12) During the commission of the felony, the defendant willfully
inflicted bodily injury upon another person, or the actions of the
defendant resulted in the death of or serious bodily injury to a victim
or person other than the intended victim[.]
Tenn. Code Ann. § 40-35-114 (9), (12) (Supp. 1996). The application of factor (9)
was conceded by the appellant and is supported without contradiction in the record.
The application of factor (12) is likewise supported by the record. Factor (12) is
appropriate where the defendant has either willfully inflicted bodily injury or the
defendant’s actions have resulted in serious bodily injury (or death). Although the
injury to Mr. Whedbee’s thumb may not have been willfully inflicted, the court found
the wound to the victim’s ear and the scratch wound to his neck to be willfully
inflicted bodily injuries. The court correctly applied enhancement factors (9) and
(12).
(b) Mitigating factors rejected.
The court declined to apply the following mitigating factors:
(2) The defendant acted under strong provocation;
(3) Substantial grounds exist tending to excuse the defendant’s
6
criminal conduct, though failing to establish a defense;
(11) The defendant, although guilty of the crime, committed the
offense under such unusual circumstances that it is unlikely that a
sustained intent to violate the law motivated his conduct; [and]
(12) The defendant acted under duress or under the domination of
another person, even though the duress or the domination of another
person is not sufficient to constitute a defense to the crime [.]
Tenn. Code Ann. § 40-35-113 (2), (3), (11), (12) (1990).
Factors (2) and (3). In rejecting these factors, the trial court referred
to the jury’s decision to acquit the appellant of attempt to commit murder and
convict him only of attempt to commit voluntary manslaughter. It found the jury
relied upon provocation to reduce the grade of the offense and found that the
appellant had already received the benefit of a finding of provocation through the
jury’s verdict.
This court reviewed a similar situation in State v. McKinzie Monroe
Black, No. 01C01-9401-CC-00006 (Tenn. Crim. App., Nashville, July 14, 1995), in
which the trial court cited the jury’s application of “strong provocation” to reduce the
offense from murder to voluntary manslaughter, finding it “inappropriate that the
same factor be used as a mitigating factor.” Slip op. at 7-8. This court observed
that, although “essential elements of the offense” cannot also serve as
enhancement factors, there is no prohibition against “double mitigation,” and it is
permissible to use provocation as a mitigator in appropriate voluntary manslaughter
cases.2 We need not assess the propriety of the trial court’s rationale in the case
before us, however, because the record does not support the use of provocation as
a mitigation consideration. The appellant secreted himself in the victim’s house for
several hours before the attack. He had ample opportunity to reflect in solitude
about the actions he would take. There were no intervening stimuli that caused or
renewed the provocation, and the appellant approached his selected victim, not
2
In McKinzie Monroe Black, we found the circumstances were not
appropriate to require the trial court to apply “double mitigation.”
7
while the latter was engaged in any menacing conduct, but while he was asleep.
On these facts, provocation did not exist, and the trial court correctly rejected
mitigating factors (2) and (3).
Factor (11). In rejecting this factor, the trial court relied upon the proof
at trial which showed the appellant prepared for his assault upon the victim by
obtaining a weapon, buying surgical gloves, then going to the victim’s home around
five o’clock p.m. to lie in wait, and significantly, that he laid in wait for approximately
seven hours until the intended victim was asleep. Pointing out that the jury’s verdict
necessarily repudiates the defense of renunciation of the crime, the trial judge
stated he was “satisfied that the jury was convinced, as am I, that when Mr. Frazier
entered the bedroom his intent was to kill Mr. Whedbee, and that he -- he followed
through with that intent until he was stopped by Mr. Whedbee in this matter.” The
trial court was justified in finding these facts demonstrated a sustained intent to
violate the law.
Factor (12). The record supports the trial court’s conclusion that there
was no proof to support the use of this mitigation factor. The court noted that
according to appellant’s testimony at trial Lisa Whedbee did not dominate him nor
cause him to attack Mr. Whedbee.
(c) Weight of the factors.
The court again referred to the presumptive sentence and observed
that the enhancing factors “far outweigh” the mitigating factor. The appellant,
however, cites the following comment made by the trial judge:
Anytime an individual attempts to take the life of
another person and engages in that type of conduct,
uses a deadly weapon to commit that offense, it is clear
in my mind that those factors outweigh the fact that he
-- that he has some emotional or mental problem at that
particular point in time.
8
The appellant asserts the first clause in the passage evinces arbitrariness such that
the court below has “failed to adhere to the principles of presumed minimum
sentencing as required.” We do not agree. The trial judge’s language as cited is
contextually insignificant. A fair reading of the record demonstrates the court
embarked upon a particularized evaluation process and endeavored to take the
“case-by-case” approach authorized by the supreme court.
Accordingly, the appellant has failed to rebut the presumption of the
correctness of the trial court’s determination of the sentence.
III. Probation.
In determining the manner of service of the sentence, the court
referred to the sentencing purposes and considerations, and after acknowledging
the appellant was eligible for alternative sentencing, the court stated:
Now, when you deal with homicide there’s another
factor clearly established in the case law. And that is
that when the death of an individual is involved or in this
case the attempted homicide of an individual is
involved, that presumption of probation is removed.
And, indeed, it is the overwhelming obligation in that
case for the defendant to convince the court that, in
fact, probation should be imposed as opposed to
incarceration.
It’s always this court’s objective and the sentencing
guidelines objective to treat defendants fairly and justly
and equally. And I attempt to do that throughout any
time I serve up here on the bench.
The appellant is clearly eligible for alternative sentencing in general,
Tenn. Code Ann. § 40-35-102(5), (6) (Supp. 1996), and he is eligible for probation
as a particular alternative to confinement. Tenn. Code Ann. § 40-35-303(a) (Supp.
1996). Moreover, he is presumed to be a favorable candidate for alternative
sentencing, Tenn. Code Ann. § 40-35-102(6) (Supp. 1996), and the trial court is
required to automatically consider probation as a “part of its sentencing
determination at the conclusion of the sentencing hearing.” § 40-35-303(b). The
9
presumption of suitability for alternatives to confinement may be overcome by
evidence to the contrary, Tenn. Code Ann. § 40-35-102(6) (Supp. 1996), and
furthermore, the appellant has the burden of establishing suitability for probation.
§ 40-35-303(b) (Supp. 1996).
Our analysis includes the considerations enumerated in Tennessee
Code Annotated Sections 40-35-210(b) and 103(5). One of these considerations
is the “nature and characteristics of the criminal conduct involved.” Tenn. Code
Ann. § 40-35-210(b)(4) (Supp. 1996). Ashby, 823 S.W .2d at 169. In addition we
utilize the considerations for ordering confinement that appear in Code Section 40-
35-103(1). The only one of these which was cited by the trial court is found in
Section 103(1)(B): “Confinement is necessary to avoid depreciating the seriousness
of the offense or confinement is particularly suited to provide an effective deterrent
to others likely to commit similar offenses.” Tenn. Code Ann. § 40-35-103(1)(B)
(1990). Of course, as noted above, the trial court referred also to the “nature and
character of the criminal conduct involved.”
(a) Deterrence.
The trial court based its denial of probation in part upon the deterrence
clause of Section 103(1)(B). This consideration is not operative where, as here, no
evidence was presented to support the need for deterrence. State v. Davis, 940
S.W.2d 559, (Tenn. 1997); State v. Hartley, 818 S.W.2d 370, 375 (Tenn. Crim.
App.), perm. app. denied (1991). Therefore, the denial of probation based on
deterrence is not justified.
(b) Confinement necessary to avoid depreciating
the seriousness of the offense.
With the elimination of deterrence as a basis for denying probation,
10
the first clause of Section 103(1)(B) stands as the only other basis used by the trial
court for denying probation. After reviewing the record, we find no other basis and
conclude that, if the trial court’s denial of probation is to be sustained, it must rest
solely upon the determination that confinement was necessary to avoid depreciating
the seriousness of the offense. Tenn. Code Ann. § 40-35-103(1)(B).
In Tennessee there is a well-recognized nexus between the “nature
and characteristics” of the offense and sentencing to avoid depreciating the
seriousness of the offense. The nature and characteristics, or circumstances, of the
offense have long been recognized as grounds for denying probation. Stiller v.
State, 516 S.W.2d 617, 621 (Tenn. 1974); Powers v. State, 577 S.W.2d 684, 685-
86 (Tenn. Crim. App. 1978); Mattino v. State, 539 S.W.2d 824, 828 (Tenn. Crim.
App. 1976). The courts have used this rationale for denying probation often in
cases of homicide or in other cases in which the offense was violent. See Kilgore
v. State, 588 S.W.2d 567 (Tenn. Crim. App. 1979). See also Powers, 577 S.W.2d
at 685-86; Mattino, 539 S.W.2d at 828. However, our supreme court established
a rule whereby the nature and circumstances of the offense could justify a denial
of probation in cases not necessarily involving homicides or violent acts. This rule
provides that the nature and circumstances of the offense may serve as the sole
basis for denying probation when they are “especially violent, horrifying, shocking,
reprehensible, offensive, or otherwise of an excessive or exaggerated degree; and
it would have to be clear that, therefore, the nature of the offense, as committed,
outweighed all other factors... which might be favorable to a grant of probation.
”State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981). See also State v. Cleavor, 691
S.W.2d 541, 543 (Tenn. 1985). Significantly, “[t]his standard has essentially been
codified in the first part of T.C.A. Section 40-35-103(1)(B) which provides for
confinement if it ‘is necessary to avoid depreciating the seriousness of the offense.’”
State v. Hartley, 818 S.W.2d 370, 375 (Tenn. Crim. App.), perm. app. denied (Tenn.
1991). Thus, in a proper case, probation may be denied solely on the basis of Code
Section 40-35-210(b)(4) (when the nature and characteristics of the offense
11
outweigh all factors that support probation) or under Section 103(1)(B) (when they
justify confinement to avoid depreciating the seriousness of the offense), provided
that, under either approach, one of the Travis qualifiers is present.3
Since the trial court is required to consider the evidence adduced at
trial, Tenn. Code Ann. § 40-35-211(b)(1) (Supp. 1996), the court’s determination
that the jury acted with exceptional leniency is a reasonable influence upon the
court in making its finding that confinement is necessary under Section 103(1)(B).
See State v. Fredrick Dona Black, No. 03C01-9404-CR-00139, slip op. at 3-4 (Tenn.
Crim. App., Knoxville, April 6,1995). See also State v. Nealy Walter Perry, No. 89-
133-III, slip op. at 4-5 (Tenn. Crim. App., Nashville, August 29, 1990), perm. app.
denied (Tenn. 1990), Dwyer J., concurring and dissenting. Although the trial court
did not expressly mention the Travis qualifiers in the case now before us, the basis
for applying one or more of these qualifiers appears in the record. We may look to
the record to see if it sufficiently reflects the apparent reasons for the lower court’s
action so as to allow for meaningful appellate review. State v. Swanson, 680
S.W.2d 487, 489 (Tenn. Crim. App. 1984). See also Johnny Eugene Johnson v.
State, No. 01C01-9508-CC-00247 (Tenn. Crim. App., Nashville, October 10, 1996),
perm. app. denied (Tenn. 1997). The record in this case demonstrates a basis for
concluding that the nature of the offense, as committed, is especially reprehensible
or offensive. Assuming, arguendo, as appellant contends, the circumstances are
not especially violent, horrifying, or shocking, the circumstances are nevertheless
grave enough to support a finding that they are especially reprehensible and/or
offensive.
The appellant asserts that the trial court acted arbitrarily in denying
probation merely because this is a case in which homicide was attempted. The trial
3
The Travis qualifiers are stated in the disjunctive, and evidence that only one
applies is sufficient to support denial of probation based upon the nature and
circumstances of the offense. See State v. Kyte, 874 S.W.2d 631, 633 (Tenn. Crim.
App.), perm. app. denied (Tenn. 1993).
12
court commented that it is “clearly established in the case law” that in homicide
cases the presumption of probation is inappropriate. Although it has been held that
“exceptional circumstances must be shown in order to support probation in a case
involving the death of another person,” Kilgore v. State, 588 S.W.2d 567, 568
(Tenn. Crim. App.), perm. app. denied (Tenn. 1979), the legislature has altered the
rule for offenses, such as the one now before us, in which probation is available.
“[R]eliance upon the mere fact that a violent crime was committed in order to deny
probation is ordinarily insufficient to justify total denial of probation.” State v.
Howard Martin Adams, No. 03C01-9403-CR-00123, slip op. at 18 (Tenn. Crim.
App., Knoxville, January 11, 1995). Indeed, “when the legislature provides
probation eligibility for an inherently violent offense, the mere fact that the offense
was committed is an insufficient basis to deny probation.” Id. See also Travis, 622
S.W.2d at 533-34; Hartley, 818 S.W.2d at 374. Therefore, if the trial judge denied
probation merely because this probation-eligible offense was committed, the denial
of probation for such reason alone would be unjustified.
In view of the record as a whole, however, we find this locution of the
trial court, if imprecise, to be again contextually insignificant. The court expressly
grounded the denial of probation in the evidence and the statutory considerations
and principles of sentencing, focusing upon the need to avoid depreciating the
seriousness of the offense. He expressly referred to the nature and characteristics
of the offense and found this consideration to far outweigh the factors favoring
probation. The basis for this determination is apparent in the record in that the
nature of the offense committed is at least especially reprehensible and/or
offensive.
Alternative sentencing issues must be determined by the facts and
circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986). If the trial court has considered the relevant facts and the findings are
adequately supported in the record, the trial court has the discretion to resolve these
13
issues, bottoming the case upon its own facts. State v. Taylor, 744 S.W.2d 919,
922 (Tenn. Crim. App. 1987). See Ashby, 823 S.W.2d at 168; Fletcher, 805
S.W.2d at 789.
We hold (1) the presumption of correctness attends this aspect of the
sentencing determination, and (2) the appellant has failed to overcome it.
Moreover, were we to strip away the presumption of correctness because of the
challenged phrasing, we would nevertheless find support for a de novo
determination that the circumstances are especially reprehensible and/or offensive,
such that confinement is necessary to avoid depreciating the seriousness of the
offense, thereby arriving at the same result reached by the trial court.
IV. Conclusion.
The appellant has failed to overcome the presumption of correctness
of the trial court’s judgment that (1) the sentence shall be set at four years and (2)
the request for probation is denied. Therefore, the judgment is affirmed.
_________________________
Curwood Witt, Judge
CONCUR:
________________________
Gary R. Wade, Judge
________________________
Joseph M. Tipton, Judge
14