State v. Hayles ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
FEBRUARY SESS ION, 1997
FILED
June 25, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TE NNE SSE E, ) C.C.A. NO. 03C01-9603-CR-00113
)
Appellee, )
) KNOX COUNTY
)
V. )
) HON. RAY L. JENKINS, JUDGE
FERNANDO REMIRUS HAYLES, )
)
Appe llant. ) (VOLUNTARY MANSLAUGHTER)
FOR THE APPELLANT: FOR THE APPELLEE:
KIMBERLY A. PARTON JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
407 Union Avenue, Suite 209
Knoxville, TN 37902 WILLIAM D. BRIDGERS
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
RANDALL E. NICHOLS
District Attorney General
S. JO HELM
Assistant District Attorney General
400 Main
P.O. Box 1468
Knoxville, TN 37901-1468
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Fernando Remirus Hayles, appeals as of right
according to Rule 3 of the Tennessee Rules of Appellate Procedure. Following
a jury trial, the Defendant was convicted of voluntary manslaughter in the
Criminal Court of Knox County. He was senten ced by the trial court to serve six
(6) years imprisonment as a Range I Standard Offender. The Defendant raises
two issues in his app eal: (1) the trial court erred in refusing to allow testimony
which would ten d to support the Defendant’s theory of self-defense on the issue
of the first aggressor; and (2) the sentence imposed by the trial court was
excessive due to the trial c ourt’s improper consideration of both aggravating and
mitigating factors. We affirm the Defendant’s conviction.
W hile the Defendant does not challenge the sufficiency of the
evidence, a short recitation of the facts is necessary for our review. On April 16,
1994, the Defendant and the victim, James Lawrence Lewis, became involved
in a verba l argum ent afte r arriving in different vehicles in the area of G oins Drive
in Knoxville. The Defendant and the victim had been friends for several years.
It was not uncommon for the two to argue, but prior to this date the argume nts
had never resulted in violence. On this particular evening, their argument
became heated. Witnesses testified the Defendant appeared “wide-eyed and
frightene d.” Subse quently, the Defen dant pu lled out a gun from unde rneath his
jacket and fired several times at the victim. Several persons were standing in the
imme diate area. Three bullets struck the victim, and, shortly thereafter, he died.
The Defenda nt ran away from the scene, bu t he later turned himself in to the
-2-
police. Indicted for second degree murder, the jury found him guilty of the lesser
grade offens e of voluntary ma nslaughter.
I.
The Defendant argues that the trial court erred in denying admission
of testimony which would tend to support the Defendant’s theory of self-defense.
Whether or not the Defendant acted in self-defense is a ques tion for the ju ry to
determine. See Arterbu rn v. State , 216 Tenn. 240, 391 S.W.2d 648, 653 (Tenn.
1965); State v. Fugate , 776 S.W .2d 541, 545 (Tenn. Crim . App. 1988 ).
Defendant sought to prove through both cross-examination of State’s witnesses
and through direct examination of defen se witn esse s that h is shoo ting the victim
was only as a result of the victim’s acts of aggression. Through various
witnesses the Defendant sought to introduce threats the victim made against the
Defen dant. After hearing various arguments of counsel, the trial court ruled these
statemen ts were inadm issible hearsay.
Tennessee Rules of Evidence 803 sets forth the hearsay evidence
exceptions. The “state of mind” exception provides the following:
Then existing Mental, Emo tional or Physical C ondition. --A
statement of the declarant’s then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive,
design, men tal feelin g, pain , and b odily health), but not including a
statement of mem ory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation, identification,
or term s of de claran t’s will.
Case law which predates the ado ption of the Tennessee Rules of Evidence
provides that statements by the victim which ten d to show the victim’s a nimos ity
toward the de fenda nt in a case wh ere self-de fense is an iss ue are adm issible if
-3-
relevant to explain the conduct of the d ecea sed in establishing who was the first
aggres sor. See State v. Butler, 626 S.W .2d 6, 11 (Te nn. 1981).
This Court re cently held that a victim’s state of mind w as releva nt to
the defendant’s claim of self-de fense and a dmis sible pursuant to the Tennessee
Rules of Evidence and Butler. State v. Ruane, 912 S.W.2d 766, 778-79 (Tenn.
Crim. App . 1995).
Howeve r, in the case sub judice, the Defendant made no offer of
proof as to wha t the witnes ses wo uld testify reg arding th reats made by the victim.
In addition, in one of the s ituations where Defendant claims error by the trial
court, counsel stated in the record that she wa s not ask ing the witn ess to tes tify
as to the declarant’s state men t, but wa s only a sking the witn ess if a c ertain
question was asked the declara nt. While the record is clear that defense
coun sel, at certain points, was anticipating the witnesses would testify as to
threats made by the victim, without any offer of proof, we are una ble to determine
whether or not the w itnesses could ac tually testify as to whether an y threats were
made by the victim toward th e Defe ndant.
-4-
Rule 103 Ten ness ee Ru les of E videnc e prov ides in part as follows:
Rule 103. Rulings on Evidence - (a) Effect of erroneo us ruling. --
Error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected, and
***
(2) Offer o f Proo f. -- In cas e the ru ling is one excluding evidence, the
substance of the evidence and the s pecific eviden tiary ba sis
supporting admission were made kn own to the co urt by offer or were
appare nt from th e conte xt.
This Court has h eld that there are two purposes of an offer of proof:
(1) the proo f informs th e trial court w hat the party intends to prove so that the
court may make an intelligent ruling and (2) an o ffer of proof creates a record so
that the appellate court can determine whether or not there was reversible error
in excluding the evide nce. Alley v. State, 882 S.W.2d 810, 815 (Tenn. Crim. App.
1994).
In this particular case, we are unable to determine whether or not
revers ible error occurred absent an offer of proof by the Defendant at trial.
Accordingly, pursuant to Rule 103, Tennessee Rules of Evidence, this issue is
without m erit.
II.
The Defendant argues that the six (6) year sentence imposed by the
trial court wa s exces sive given conside ration of the facts as they relate to the
enhancing and mitigating factors of Tennessee Code Annotated sections 40-35-
113 and -114. When an accused challenges the length, range, or the manner of
-5-
service of a sentence, this court has a duty to conduct a de novo review of the
sentence with a presumption that the determination s made by the trial court are
correct. Tenn. Code Ann. § 40-35-401(d). Th is presu mptio n of co rrectn ess is
conditioned upon the affirm ative sh owing that the trial court considered the
sentencing principles and a ll relevant facts and circumstances in the record.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Even if we would h ave
preferred a different result, if our review reflects that the trial court followed th e
statutory senten cing proc edure, im posed a lawful se ntence after having given
due consideration and prope r weigh t to the fa ctors a nd prin cipals set out under
the sentencing law , and suppo rted the findings of fact a dequately from th e
record, then we may no t modify the sente nce. State v. Fletcher, 805 S.W.2d 785,
789 (Ten n. Crim. App . 1991).
In conducting a de novo review of the sentence, this court must
consider: (a) the e videnc e, if any, received at trial and the sentencing hearing;
(b) the pres entenc e 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 de fenda nt ma de on his ow n beh alf; and (g) the p otentia l or lack of
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
and -21 0; see State v. S mith, 735 S.W .2d 859 , 863 (T enn. C rim. App . 1987).
For the offense of voluntary manslaughter, the legislature has
designated a Class C felony sentence of not less than three years nor more than
six years for a Rang e I standa rd offend er. See Tenn. Code Ann. § 40-35-
-6-
112(a)(3). In applying the m aximum range of pun ishment of six yea rs, the trial
court in the case sub judice used the following enhancement factors: (1) the
Defendant has a previous history of unwillingness to comply with the conditions
of a sentence involving release; (2) the Defendant possessed or employed a
firearm during the commission of the crime; (3) the Defendant had no hesitation
about committing a crime when the risk to human life was high; (4) the crime was
committed under circumstances in which the poten tial for bo dily injury to a victim
was great; ( 5) the fe lony wa s com mitted while the Defendant was on release from
probation of a felony c onviction in the juven ile system . See Tenn. Code Ann. §
40-35-114.
First, the De fenda nt’s pre sente nce re port do cum ents h is
unwillingness to comply with the conditions of his earlier p robatio n in the juvenile
system. The D efenda nt was to continue to atte nd high schoo l and to m eet a
variety of other conditions , including paying co urt costs and restitution and doing
comm unity service work. At the time of the report, the Defendant had dropped
out of school. Furthermore, the presentence report indicates that Defendant was
asked by the reporting officer why he had dropped out of school during his senior
year. The Defendant replied that “I got lazy and started running with the wrong
crowd.” Application of the first enhancement factor was therefore appropriate.
During the commission of the crime, Defendant possessed and
employed a handgun, and therefore application of this particular enhancement
factor was also appropriate. As use of a firearm is not an element of voluntary
manslau ghter, this sentencing factor can be used to enhance the De fenda nt’s
-7-
sentence. See State v. Raines, 882 S.W.2d 376 (Tenn . Crim. A pp. 199 4); State
v. Butler, 900 S.W .2d 305, 312 -13 (Tenn . Crim. App. 19 94).
The record re flects that the trial court considered the enhancement
factors of a lack of hesitation to commit the crime when the risk to hum an life is
great and that the crime was committed under circumstances in which the
potential for bodily injury to a victim was great together. As the facts of this case
show, the crime was committed by the Defendant firing up to five shots from his
handgun at a time when several people were in the immediate area, therefore
application of both the se enh ancem ent factors is approp riate. State v. Ruane,
912 S.W.2d 766, 784 (Tenn. Crim. App. 19 95); State v. Sims, 909 S.W.2d 46, 50
(Tenn. C rim. App. 199 5).
Howeve r, the trial court erred by applying the enhancement factor
that the crim e was com mitted while the Defendant was on probation from a prior
felony conviction. Defendant was on proba tion from a findin g of de linque ncy in
the Juvenile Court of Knox County. While the act committed by the Defendant
as a juvenile may have constituted a felony if committed by an adult, the
Defendant did not have a prior felony conviction, and therefore his release status
was no t from a p rior felony co nviction.
The Defendant raised the following mitigation factors at the
sentencing hearing: (1) the Defendant acted under strong provocation; (2)
substantial grounds existed to excuse the Defendant’s criminal conduct, though
failing to establish a defense; (3) because of his youth, the Defendant lacked
substantial judgment in committing the offense; (4) the Defendant assisted the
-8-
authorities in recovering pers ons or prope rty involved in the crime; (5) the
Defen dant, though guilty of the crime, committed the crime under such unusual
circumstances that it is un likely a s ustain ed inte nt to viola te the la w mo tivated his
condu ct. See Tenn. Code Ann. § 40-35-113. It is evident from our review of the
record that the trial court used due consideration and proper weight in denying
application of these mitigation factors. Even if some evidence of mitigation
existed, where th e mitigation factors are strongly outweighed by the
enhancement factors, as in this case, the ma ximum senten ce is warra nted. State
v. Ruane, 912 S.W .2d 766 , 785 (T enn. C rim. App . 1995).
Even though the trial court erroneously applied one enhancement
factor, we find tha t the trial court p laced great weight on the remaining
enhancement factors, and the reco rd reflects th at the app ropriate enhancement
factors stro ngly outw eigh an y evidenc e of mitiga tion.
We therefore affirm the trial court’s sentence of six (6) years.
-9-
Finding no reve rsible error, we affirm the ju dgme nt of the trial co urt.
____________________________________
THOMAS T. WOODALL, JUDGE
CONCUR:
___________________________________
JOSEPH M. TIPTON, Judge
___________________________________
JERRY L. SMITH, Judge
-10-