State v. John Robinson ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
December 30, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9710-CR-00496
Appellee, )
) Davidson County
v. )
) Honorable Cheryl Blackburn, Judge
JOHN HENRY ROBINSON, III, )
) (Sentencing)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Jeffrey A. DeVasher John Knox Walkup
Assistant Public Defender Attorney General & Reporter
1202 Stahlman Building 425 Fifth Avenue North
Nashville, TN 37201-5066 Nashville, TN 37243-0493
(On Appeal)
Timothy Behan
J. Michael Engle Assistant Attorney General
Assistant Public Defender 425 Fifth Avenue North
1202 Stahlman Building Nashville, TN 37243-0493
Nashville, TN 37201-5066
(At Trial) Victor S. (Torry) Johnson, III
District Attorney General
OF COUNSEL: 222 Second Avenue North, Suite 500
Karl Dean Nashville, TN 37201-1649
District Public Defender
1202 Stahlman Building Dan Hamm
Nashville, TN 37201-5066 Assistant District Attorney General
222 Second Avenue North, Suite 500
Nashville, TN 37201-1649
Roger D. Moore
Assistant District Attorney General
222 Second Avenue North, Suite 500
Nashville, TN 37201-1649
OPINION FILED: _____________________________
AFFIRMED
L. T. LAFFERTY, SENIOR JUDGE
OPINION
The appellant, John Henry Robinson, III, referred herein as the defendant, appeals
as of right his sentence for voluntary manslaughter imposed by the Davidson County
Criminal Court. The defendant, charged with murder first degree, was convicted by a
Davidson County jury of voluntary manslaughter. The trial court imposed a Range I
sentence of confinement for six years in the Corrections Corporation of America. Also, the
trial court denied the defendant’s request for probation or split confinement, finding
continuous confinement was the appropriate sentence.
The defendant raises one issue for our review:
Whether the trial court erred in imposing the maximum
sentence allowable by law, and further erred in imposing a
sentence of continuous confinement.
Based upon our review of the entire record, briefs of the parties, and applicable law,
we affirm the trial court’s judgment.
FACTUAL BACKGROUND
The Davidson County grand jury indicted the defendant for the offense of murder
first degree for the killing of Marvin Lewis Bright on May 15, 1996 at their place of
employment. The defendant and victim were co-employees at Trailers Conditioners, Inc.
and had developed a turbulent relationship over the years. The following salient facts
evolved during the trial.
Carl Reed, a trailer mechanic at Trailers Conditioners, Inc., had known the
defendant and the victim for many years. Reed testified that the victim told Reed, “I’m
going to go ahead and mess with him [the defendant].” The victim and defendant
exchanged words and Reed heard a “lick.” Reed and another employee, James Smith,
went into the restroom and separated the defendant and victim, who were in a scuffle. The
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victim had the defendant on the floor. As Reed and Smith were walking out of the
restroom, they heard a gunshot and the victim stumbled in front of Reed. Both Reed and
Smith ran to the office. The victim got up and ran to the other side of the office, where he
fell again. The defendant walked up to the victim who was lying on his back. Reed
testified the defendant said, “I told you . . . to stop messing with me or what would happen.”
The defendant then fired a second shot. The victim responded, “Okay man, you know.
That is enough.” Before the second shot, the gun appeared to jam, but the defendant
cocked it again. The victim got up and ran. The defendant followed the victim and fired
a third shot. The victim ran outside and was found under the rear wheels of a truck. The
defendant left in his blue Ford pickup truck.
Reed testified the defendant and victim had a long history of extremely verbal
confrontations. Several months before the shooting, Reed attended a boxing match at the
Music City Mix Factory, in which the victim and the defendant agreed to a fist fight to
resolve all their differences. The victim was the winner of the fight and later bought Reed
and the defendant rounds of beer. The victim had a videotape made of the match which
was shown to fellow employees at the shop.
James Smith, friend of both the defendant and victim, testified both men began
arguing. Smith told the victim to leave the defendant alone. However, the defendant
struck the victim and both went into the restroom. Smith and Reed followed them and
broke up the fight. As Smith was leaving the restroom, he heard a gunshot. The victim
staggered out the door, followed by the defendant with a gun in his hand. The victim had
his hand on his back, which was bloody. The victim fell and the defendant stood over him
with his gun. The victim said, “It’s over, man, it’s over.” The defendant responded, “I told
you if you hit me, I was going to kill your ass dead.” The defendant cocked his gun, but it
jammed. The defendant recocked the gun and fired. The victim got up and ran out of the
building. The defendant followed and fired another shot at the victim.
Glenn Bloodworth, a co-worker with the victim and defendant, testified as he went
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into the office the defendant and victim were arguing. Bloodworth heard a “slap.” Reed
and Smith went out to break up the fight between the defendant and victim. Bloodworth
heard a gunshot and went to the office door as Reed and Smith came running in, knocking
Bloodworth against the wall. Bloodworth saw the victim lying against the tool cabinet. The
defendant was about six feet from the victim with a gun in his hand. The victim said, “You
know, you got me, it’s over with, John.” The defendant responded, “No, I told you if you
ever put your hands on me, I was going to kill you. It’s not over with now until I say it is.”
The defendant cocked the gun and shot the victim. While Bloodworth ran for the
supervisor, the victim got up and ran.
Officer James Arendall, Metro Police Department, testified he heard a broadcast for
a Ford pickup involved in a shooting. Officer Arendall was advised of the defendant’s
home address and proceeded to that location. The defendant’s wife answered the door
and informed the officers her husband was in the back bathroom. The defendant yelled
out and told the officers of his location and that the gun was in the blue coat in the chair.
Officer Arendall found the gun with one live round in the clip.
Both the state and the defendant stipulated that the autopsy report revealed the
victim died from two gunshot wounds to the torso. Two small caliber bullets were
recovered.
The defendant testified that from late April to May 15, 1996, he worked many long
hours for United Parcel Service and Yellow Freight Lines as an over-the-road truck driver.
Apparently, this work was in addition to his work for Trailers Conditioners, Inc. The
defendant described the victim as a bully in the shop who was always fighting and arguing
with different people. The victim also liked to spit on people. For about eight years, the
victim had harassed the defendant. The defendant informed his doctors, supervisors, and
co-employees about his problems with the victim. As a result of his difficulties, the
defendant was prescribed medication. The defendant testified that the victim had
assaulted him on two occasions away from work. The victim promised the defendant if
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he and the victim boxed at the Mix Factory, the victim would leave him alone. The
defendant agreed to this boxing match; however, the victim continued to harass the
defendant.
As to the offense, the defendant testified he was approaching the water fountain
when the victim began calling him insulting names and spitting on him. The victim told the
defendant, “Bitch, I’m going to rape your wife and daughter, and then I’m going to f--- your
son.” As the defendant turned to leave, the victim spat on him, grabbed him, and carried
him into the restroom. The defendant and victim scuffled in the restroom. The victim
pinned the defendant on the floor by the commode and struck the defendant, saying “[I’m]
going to cut [your] pretty ass face off.” The victim had something in his hand which the
defendant could not identify. While on the floor, the defendant got his gun and fired it
twice. The victim turned and ran. The defendant thought the victim was running to his
toolbox where he kept his weapons. The defendant could not recall his exact movements
after the shooting.
Based on this testimony, the jury found the defendant guilty of voluntary
manslaughter.
SENTENCING
In the first part of his appellate issue, the defendant contends the trial court erred
in imposing the maximum sentence of six years in lieu of three years. The defendant
argues the sentence is excessive in that the trial court improperly applied two statutory
enhancement factors and failed to apply at least five statutory mitigating factors. The state
insists the trial court properly confined the defendant.
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A.
When a defendant complains of the imposition of his or her sentence, we must
conduct a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-
401(d). Therefore, the burden of showing that the sentence is improper is upon the
appealing party. Id. The presumption that determinations made by the trial court are
correct 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); State v. Smith, 891 S.W.2d 922, 929 (Tenn.
Crim. App.), per. app. denied (Tenn. 1994).
If appellate review reflects the trial court properly considered all relevant facts and
its findings of fact are adequately supported by 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). In arriving at the proper determination of an
appropriate sentence, the trial court must consider: (1) the evidence, if any, received at
the trial or guilty plea 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 enhancement and mitigating factors; (6) any statements the defendant
wishes to make in the defendant’s behalf about the sentencing; and (7) the potential for
rehabilitation and treatment. Tenn. Code Ann. §§ 40-35-210(a) and (b) (1997), § 40-35-
103(5) (1990); State v. Holland, 860 S.W.2d 53 (Tenn. Crim App. 1993).
In the case before us, the trial court correctly applied the sentencing principles, thus
the presumption of correctness applies. As part of our analysis, we recognize a sentence
imposed under the Tennessee Criminal Sentencing Reform Act of 1989 should be the least
severe measure necessary to achieve the purposes for which the sentence is imposed.
Tenn. Code Ann. § 40-35-103(4). The defendant was convicted of voluntary manslaughter.
Tenn. Code Ann. § 39-13-211. As a Range I offender, the defendant’s sentencing range
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is three to six years. The trial court found the following enhancement factors applicable to
this cause: the defendant has a previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range; the defendant
possessed or employed a firearm, explosive device or other deadly weapon during the
commission of the offense;1 and the defendant had no hesitation about committing a crime
when the risk to human life was high. Tenn. Code Ann. § 40-35-114(1)(9)(10).
As mitigating factors, the trial court found the defendant had a long and stable work
history, as well as family and community support. Tenn. Code Ann. § 40-35-113(13).
The defendant maintains the trial court erred in applying enhancement factor (1),
Tenn. Code Ann. § 40-35-114, a previous history of criminal convictions or criminal
behavior in addition to necessary to establish the range. In its ruling, the trial court found
the defendant had a 1978 misdemeanor conviction and the defendant’s criminal behavior
consisted of his past use of marijuana and the persistent carrying of a weapon for many
years, both violations of the law and company policy. A review of the presentence report
established the defendant was 43 years of age and used marijuana between the ages of
21 to 26, more than fifteen years ago. Standing alone, this factor would not rise to the level
of criminal behavior permitting enhancement of a sentence. State v. James E. Brice, No.
03C01-9605-CC-00189 (Tenn. Crim. App., Knoxville, December 3, 1996); State v. Clifford
Atkins, No. 03C01-9302-CR-00058 (Tenn. Crim. App., Knoxville, March 3, 1994).
In State v. Carrico, 968 S.W.2d 280, 288 (Tenn. 1998), our Supreme Court
addressed for the first time the term “criminal behavior.” In Carrico, the defendant was
convicted of aggravated rape of a 10-year-old child. In May 1985, the victim told her
school teacher that during the preceding year the defendant on numerous occasions had
fondled her breasts and genitalia, digitally penetrated her vagina, forced her to perform
fellatio on him, and committed other sexual acts upon her. The trial court sentenced the
defendant to twenty-five years, finding the defendant had a history of criminal behavior
1
The defendant concedes the trial court properly applied this factor.
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based on evidence of acts committed other than the specific act on which the conviction
was based. Our Supreme Court held that a trial court may utilize criminal behavior shown
by a preponderance of the evidence to enhance a sentence without violating federal or
state due process. More specifically, the Supreme Court stated:
The phrase “criminal behavior” has not been defined by this
Court for purposes of the enhancement factor, but, whatever
the precise definition may be, sexual acts with a 10 year old
child clearly constitute criminal behavior. The evidence of the
appellant’s prior sexual acts was properly considered by the
trial court as criminal behavior. That evidence supports the
finding that enhancement factor (1) was established in this
case.
Id. at 288.
We find the trial court was correct in finding that the defendant had a history of
criminal behavior in the continuous carrying of a weapon for many years. 2
Next, the defendant contends the trial court was in error for finding that he had no
hesitation about committing a crime when the risk to human life was high, under Tenn.
Code Ann. § 40-35-114(10), in that the evidence is insufficient to support the application
of this factor. Also, the defendant submits that this factor is inherent in the offense of
voluntary manslaughter and thus cannot be applied. The state argues this factor is not
inherent in this case and the trial court properly applied this factor under the facts in this
cause.
In its ruling, the trial court found that three individuals, Carl Reed, James Smith, and
Glenn Bloodworth, were in very close proximity to the defendant when he fired his gun at
the victim. It was necessary for Reed and Smith to run from the restroom, when they heard
the gunshot behind them. The evidence reflects the witnesses were within four to eight feet
of the different shots. We find the record supports enhancement factor (10). While this
court has consistently held that this factor should not be applied when the only person
subject to being injured is the victim, this factor is not inherent, as the state points out,
2
The defendant’s act of carrying this weapon for self-defense purposes was not
justifiable.
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when other persons present could have been injured. State v. Makoka, 885 S.W.2d 366,
373 (Tenn. Crim. App.) per. app. denied (Tenn. 1994).
Further, the defendant contends the trial court failed to apply five statutory mitigating
factors, Tenn. Code Ann. § 40-35-113:
(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 the
defendant’s culpability for the offense; however, the
voluntary use of intoxicants does not fall withing the
purview of this factor;
(10) The defendant assisted the authorities in locating or
recovering any property or person involved in the
crime; and
(11) The defendant, although guilty of the crime,
committed the offense under such circumstances
that it is unlikely that a sustained intent to violate the
law motivated the criminal conduct.
In rejecting to apply mitigating factors (2) and (3), the trial court ruled that these two
factors did not apply, referring to them as “double mitigation.” By the very nature of the
jury’s verdict in finding the defendant guilty of voluntary manslaughter, the jury found the
defendant acted with provocation and there was no substantial excuse or justification for
the killing. In rejecting factor (8), the trial court found the evidence did not support this
factor. The trial court found the defendant’s claim of total exhaustion was brought on by
the defendant’s voluntary working conditions. The defendant’s co-employees testified as
to the clearness of the defendant’s statements to the victim. In rejecting factor (10), the
trial court found the recovery of the pistol from the defendant’s jacket at the time of his
arrest was not applicable. As to factor (11), the trial court ruled this factor was not
applicable in that the defendant and victim’s conduct had been ongoing for years, bolstered
by the fact that the defendant had carried a pistol for years. The trial court did find as
mitigation the defendant had a long history of employment and family and community
support.
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After due consideration, the trial court found, “the enhancing factors . . . far outweigh
any mitigation in this case, and, therefore, a sentence of six years is appropriate.” We find
the record supports the trial court’s judgment that a six-year sentence is appropriate.
There is no merit to this issue.
B.
The defendant argues that the trial court erred in sentencing him to continuous
confinement and that the trial court should have placed him on probation after a period of
confinement.
In its ruling, the trial court stated:
These events and the facts of this case are violent, horrifying,
shocking, and reprehensible to this community. The jury in this
case chose, based on the facts, to find Mr. Robinson guilty of
only voluntary manslaughter. That is their choice and that is
their duty, and the verdict in this case would clearly support a
conviction of not only voluntary manslaughter, but murder in
the first degree.
It is by Mr. Robinson’s good fortune that he was found guilty of
voluntary manslaughter, but I cannot, in good conscience,
allow Mr. Robinson on probation, given the nature and the
facts of this case, and, therefore, I’m finding that confinement
is necessary to avoid depreciating the seriousness of this
offense. It is very important that people be able to go to work
during the course of their day and not have to be afraid that
somebody is going to whip out a gun and take care of some
altercation that could easily have been handled in some other
manner. . . .
The standards governing a trial court’s determination of whether continuous
confinement should be imposed are outlined in Tenn. Code Ann. § 40-35-103(1):
(A) Confinement is necessary to protect society by
restraining a defendant who has a long history of
criminal conduct;
(B) Confinement is necessary to avoid depreciating the
seriousness of the offense or confinement is
particularly suited to provide an effective deterrence
to others likely to commit similar offenses, or
(C) Measures less restrictive than confinement have
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frequently or recently been applied unsuccessfully to
the defendant.
Since the defendant was found guilty of voluntary manslaughter, a Class C felony,
the defendant is presumed to be a favorable candidate for probation, in the absence of
evidence to the contrary. Tenn. Code Ann. § 40-35-102(6).
Where a defendant is entitled to the statutory presumption of alternative sentencing,
the state has the burden of overcoming the presumption with evidence to the contrary.
Conversely, the defendant has the burden of establishing suitability for full probation, even
if the defendant is entitled to the statutory presumption of alternative sentencing. Tenn.
Code Ann. § 40-35-303(b)(1994 Supp.); State v. Bingham, 910 S.W.2d 448, 455 (Tenn.
Crim. App.), per. app. denied (Tenn. 1995). In order to deny an alternative sentence based
on the seriousness of the offense, “the circumstances of the offense as committed must
be especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an
excessive or exaggerated degree,” and the nature of the offense must outweigh all factors
favoring a sentence other than confinement. Bingham, 910 S.W.2d at 454 (quoting State
v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)).
Ordinarily, the death of an individual in a homicide, a Class C felony, cannot by itself
constitute sufficient “evidence to the contrary” to deny an alternative sentence. Based on
the facts in this record, we find the trial court was correct in imposing continuous
confinement. The record clearly establishes that the defendant and victim had an ongoing
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turbulent relationship even to the extent of conducting a boxing match to resolve their
differences. Notwithstanding the results of the boxing match, the verbal jousting continued
between the defendant and victim. On the day in question, the defendant, who had been
assaulted by the victim, pulled an automatic pistol and shot the victim in the back as the
victim left the restroom. Not satisfied with shooting the victim in the back, the defendant
followed the victim out of the restroom. Even though the victim lay on his back pleading
for his life, the defendant recocked his jammed automatic and fired again. There is no
merit to this issue.
________________________________________
L. T. LAFFERTY, SENIOR JUDGE
CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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