State v. Thomas Bradley ( 1999 )


Menu:
  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    DECEMBER 1998 SESSION
    FILED
    March 26, 1999
    Cecil Crowson, Jr.
    Appellate C ourt Clerk
    STATE OF TENNESSEE,    )
    ) C.C.A. No. 02C01-9803-CC-00084
    Appellee,          )
    ) Henry County
    V.                     )
    ) Honorable Julian P. Guinn, Judge
    )
    THOMAS EDWARD BRADLEY, ) (Voluntary Manslaughter)
    )
    Appellant.         )
    FOR THE APPELLANT:              FOR THE APPELLEE:
    J. MARK JOHNSON                 JOHN KNOX WALKUP
    BILL R. BARRON                  Attorney General & Reporter
    124 East Court Square
    Trenton, TN 38382               J. ROSS DYER
    Assistant Attorney General
    425 Fifth Avenue North
    Nashville, TN 37243
    ROBERT “GUS” RADFORD
    District Attorney General
    STEVE GARRETT
    Assistant District Attorney General
    P.O. Box 686
    Huntingdon, TN 38372
    OPINION FILED: ___________________
    AFFIRMED
    JOHN EVERETT WILLIAMS,
    Judge
    O P I N IO N
    Thomas Edward Bradley was convicted of voluntary manslaughter and
    sentenced to six years in the Tennessee Department of Correction. He appeals
    this sentence as of right, arguing that the trial court erred in applying certain
    enhancement factors. We AFFIRM the judgment of the trial court.
    FACTS
    The appellant has failed to include the trial transcript in the record on
    appeal. Thus, the circumstances of the appellant’s crime are somewhat sketchy.
    Briefly stated, on February 21, 1997, the appellant struck Maelene Cardwell on
    her face with his hand, causing blunt trauma to, and bleeding of, her brain. The
    victim was discovered the following day in a comatose state. She never
    regained consciousness and, on September 23, 1997, she died as a result of her
    injuries.
    The appellant was indicted on November 3, 1997, for second degree
    murder. Following a jury trial in the Circuit Court of Henry County, he was
    convicted of the lesser included offense of voluntary manslaughter, a class C
    felony. At his sentencing hearing, the trial court found applicable three
    enhancement factors:
    A victim of the offense was particularly vulnerable because of age
    or physical or mental disability . . . ; Tenn. Code Ann. § 40-35-
    114(4).
    The defendant treated or allowed a victim to be treated with
    exceptional cruelty during the commission of the offense; Tenn.
    Code Ann. § 40-35-114(5).
    The defendant had no hesitation about committing a crime when
    the risk to human life was high; Tenn. Code Ann. § 40-35-114(10).
    The trial court noted the appellant’s poor physical health as a possible mitigating
    circumstance but assigned no weight to that factor. Based on these findings, the
    trial court enhanced the appellant’s sentence to the range I maximum of six
    -2-
    years. The appellant challenges the applicability of each of the enhancement
    factors found by the trial court.
    STANDARD OF REVIEW
    When an accused challenges the length 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 court from which the
    appeal is taken 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).
    In conducting our de novo review, this Court must consider (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) any statutory mitigating or enhancement factors; (6) any statement
    made by the accused in his own behalf; and (7) the potential or lack of potential
    for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;
    State v. Smith, 
    735 S.W.2d 859
    , 863 (Tenn. Crim. App. 1987). The appellant
    carries the burden of showing that his sentence is improper. See Tenn. Code
    Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan, 
    929 S.W.2d 391
    , 395 (Tenn. Crim. App. 1996).
    ANALYSIS
    The trial court based its finding that the victim was particularly vulnerable
    primarily on the “disparate differences in sizes between the [appellant and victim]
    and [the victim’s] physical condition. [The victim] was . . . intoxicated at the time
    that [the appellant] killed her, and she weighed either a hundred pounds or
    -3-
    somewhat less that a hundred pounds.” The appellant challenges this finding,
    arguing that there was no evidence of the victim’s weight at the time of she was
    assaulted, but only of her weight at the time of her autopsy, after she had been
    comatose for over seven months. However, no evidence is before this Court on
    this issue, as the appellant has failed to provide a transcript of the trial in the
    record on appeal.
    "When a party seeks appellate review there is a duty to prepare a record
    which conveys a fair, accurate and complete account of what transpired with
    respect to the issues forming the basis of the appeal." State v. Ballard, 
    855 S.W.2d 557
    , 560 (Tenn. 1993); see Tenn. R. App. P. 24(b). In the absence of
    an adequate record, we are precluded from considering the issue and must
    presume that the determinations of the trial court are correct. See State v. Oody,
    
    823 S.W.2d 554
    , 559 (Tenn. Crim. App. 1991); State v. Roberts, 
    755 S.W.2d 833
    , 836 (Tenn. Crim. App.1988). This issue is, therefore, without merit.
    The appellant next challenges the trial court’s finding that the appellant
    treated the victim with exceptional cruelty. Unlike his challenge to factor (4), the
    appellant does not dispute the factual basis of this enhancement. Rather, he
    admits that the manner in which he treated the victim would warrant a finding of
    exceptional cruelty if this factor it were available for consideration. He argues,
    however, that the exceptional cruelty enhancement is inapplicable to a conviction
    for voluntary manslaughter as a matter of law.
    The appellant asserts that malice is an essential element of second-
    degree murder. Therefore, he argues, the jury’s verdict convicting him of
    voluntary manslaughter rather than second degree murder implies that the jury
    found his offense to have been committed without malice. Malice, the appellant
    further asserts, is equivalent to exceptional cruelty, so that one cannot commit an
    offense without malice yet involving exceptional cruelty.
    -4-
    While this argument is flawed in several points, it is sufficient to note that
    malice is not an element of second degree murder. See Tenn. Code Ann. § 39-
    13-210 (“Second degree murder is: (1) A knowing killing of another.”). Absent
    this essential premise, the appellant’s argument clearly fails. This issue is
    without merit.
    Finally, the appellant challenges the applicability of enhancement factor
    (10)--that he had no hesitation about committing a crime when the risk to human
    life was high. The state correctly concedes that the trial court erred in applying
    this factor, as it is inherent in the offense of voluntary manslaughter. “It is well
    settled . . . that this enhancement factor is generally inapplicable in sentencing in
    voluntary manslaughter cases where the only 'risk' imposed was to the victim of
    the homicide." State v. Samuel D. Braden, No. 01C01-9610-CC-00457 (Tenn.
    Crim. App. filed Feb. 18, 1998, at Nashville). Nothing in the commission of the
    appellant’s offense suggests a risk to human life other than to the life of the
    victim. Thus, the trial court erred in applying enhancement factor (10).
    Elimination of factor (10) does not, however, require reduction of the
    appellant’s sentence. Enhancement factors (4) and (5) are each entitled to
    significant weight, and we find them more than sufficient to justify imposition of
    the maximum sentence in this case.
    CONCLUSION
    The judgment of the trial court is affirmed.
    ____________________________
    JOHN EVERETT W ILLIAMS, Judge
    -5-
    CONCUR:
    _____________________________
    GARY R. WADE, Judge
    _____________________________
    THOMAS T. W OODALL, Judge
    -6-