State v. Terry Logan ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY SESSION, 1997
STATE OF TE NNE SSE E, )
FILED
C.C.A. NO. 02C01-9609-CC-00297
) April 10, 1997
Appellee, )
) FAYETTE COUNTY Cecil Crowson, Jr.
V. ) Appellate C ourt Clerk
) HON . JON K ERR Y BLA CKW OOD ,
TER RY LO GAN, ) JUDGE
)
Appe llant. ) (SECOND DEGREE MURDER)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF FAYETTE COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
TIMOTHY JOEL WILLIAMS CHARLES W. BURSON
Attorney at Law Attorney General & Reporter
147 Jefferson Avenue, Suite 909
Memphis, TN 38103 DEB ORAH A. TULL IS
Assistant Attorney General
450 Jam es Robe rtson Parkw ay
Nashville, TN 37243-0493
ELIZABETH RICE
District Attorney General
CHRISTOPHER MARSHBURN
Assistant District Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Appellant, Terry Loga n, pled guilty as charg ed in th e Circ uit
Court of Fayette County to the offense of second degree murder of the victim,
Michael Hood . Follow ing a s enten cing hearing, the trial court sentenced the
Appellant to serve the presumptive sentence of twenty (20) years in the
Department of Corrections as a Range I Standard Offender. On appeal, the
Appellant subm its that th e sen tence is exce ssive. H e argu es thre e issue s in his
appe al: (1) That an enhancement factor applied by the trial c ourt do es no t apply
to his case; (2) that certa in mitigating factors we re not applied by the trial co urt;
and (3) that the presumption of corre ctnes s norm ally afforded to sentencing by
the trial court should not be applied in this case . Finding no error, we affirm the
judgm ent of the tria l court.
In the early morning hours of October 21, 1995, the Appellant was
drinking beer in his house along w ith the vic tim, Su san B ond, a nd Ap pellan t’s
roommate, Johnny Logan. Logan and Appellant became involved in an argument
over the rent and utility bills. During this argument, the victim got into a fist-fight
with the Appe llant. Afte r the alte rcation ende d, the A ppella nt wen t into his
bedroom and retrieved a wooden baseball bat. Appellant returned to the dining
room, where the victim was located, and struck the victim in the head area with
the baseball bat several times, leaving the victim unconscious on the floor. As
the victim lay on the floor unconscious, Appellant stood over the victim and
delivered another blow to the victim’s head with the base ball ba t. The victim was
transported to a hospital and died the following day.
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Appellant told a deputy sheriff who arrived at the scene that “[the
victim] hit me in my own house an d I beat his ass w ith a bat.” At the sentencing
hearing, the Appellant admitted that he told the deputy that if Appellant had been
in posse ssion of a firearm, h e would have sh ot the victim .
As an enhancement factor, the trial court found that the Appellant
allowed the victim to be treated with exceptional cruelty during the commission
of the offense. Tenn. Code Ann. § 40-35-114(5). The trial court found two (2)
mitigating factors, that the Appellant acted under strong provocation and that he
had ad mitted his guilt.
I.
In his first issue, Appellant submits that the presumption of
correctness normally afforded to a sentence imposed by the trial court m ust fail
in this case “due to lac k of spec ificity in the reco rd.”
When an accused challenges the length, range, or the manner of
service of a sentence, this court has a duty to conduct a de novo review of the
sentence with a presumption that the determinations made by the trial court 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 rele vant facts a nd circum stance s." State v. Ashby,
823 S.W .2d 166, 169 (Tenn. 199 1).
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In conducting a de novo review of a sentence, this court must
consider: (a) the evidence, if any, received at the 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 rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,
and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
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 principals 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 sen tence even if we would have
preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991 ).
The Appellant complains that the trial court failed to follow proper
sentencing procedures by failing to make specific findings of fact in the record.
The comments of the trial court at the conclusion of the sentencing h earing are
as follows:
THE COURT: Mr. Logan, w ill you stand, please, sir.
Upon entering a plea of guilty to Murder in the Second
Degree, the Court finds tha t you allowe d the victim to
be treated with exceptional cruelty, but you acted under
strong provocation as a mitigating offender, and
sentences you to the presumptive sentence of 20 years
in the De partm ent of C orrect ions, as a Standard
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Offender, to serve 30 percent before you’ll be eligible
for release classification .
You’ll be give n cred it for 186 days while in jail awaiting
trial.
Thank you.
The sentencing order entered by the trial cou rt insofa r as it
addresses enhancing and mitigating factors states as follows:
“And it appearing to the C ourt that there is an enhancement factor
that the defendant allowed a victim to be treated with extreme
cruelty, and the Court finds the mitigating factors that the defendant
acted u nder stro ng provo cation an d he ha s adm itted his gu ilt.”
Tennessee Code Annotated Section 40-35-209(c) provides in part,
“[T]he record of the sentencing hearing is part of the record of the case and shall
include specific findings of fact upon which application of the sentencing
principals was b ased.” (Em phasis add ed).
As correctly noted by the App ellant, State v. S mith, 910 S.W.2d 457(Tenn. Crim. App.) cert. denied, id. (Tenn. 1995) stands for the proposition that
the findings by the trial court in a sentencing hearing must be recorded in order
to allow ad equate review on appea l. Smith , 910 S.W.2d at 460.
The presumption of correctness does not apply in this case.
Howeve r, even though the trial cou rt should have stated the specific findings of
fact from the record to support application of the enhancement factors and
mitigating factors found by the court, we do not find that the failure to do so
requires a new sentencing hearing in this case or modification of the sentence.
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This issu e is withou t merit.
II.
In his second issue, the Appellant argues that the enhancement
factor relied u pon b y the tria l court is an es sentia l elemen t of second degree
murder and therefore, is not applicable in this case.
Second degree m urder is the knowing killing of another. Tenn. Code
Ann. § 39-13-2 10(a)(1). Appellant maintains on appeal that the “malice” that
caused Appellant’s crim e to be seco nd degree murder rath er than voluntary
manslaughter cons titutes c ruelty, a nd the refore this enhancement factor cannot
be use d. How ever, ma lice is no lon ger an e lemen t of secon d degre e murd er.
The record re flects that the Appellant struck the victim several times
about his head with a wo oden b aseba ll bat until the victim fell to the floor
unco nscio us. At that point, the Appellant then walked over to the victim and
delivered anoth er blow to the vic tim’s head with the base ball ba t. The re is
adequ ate evide nce in the record to support use of the enhancement factor that
the Appellant treated the victim with exceptio nal cruelty during the commission
of the offense. In addition, a s correctly pointed out by the State in its brief, the
Appellant emp loyed a dead ly weap on, the base ball bat, during commission of the
offense. Therefore, Tennessee Code Annotated Section 40-35-114(9) is an
applic able enha ncem ent fac tor. Th is cour t is allow ed, in conducting its de novo
review to consider any enhancement or mitigating factors supported by the
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record, even if it was not relied u pon by th e trial court. State v. Adams, 864
S.W .2d 31, 34 (Tenn . 1993); Smith , 910 S.W .2d at 460 .
Appe llant’s seco nd issue is without m erit.
III.
Appe llant’s third issue is, “Whether any mitiga ting factors apply to
your Appella nt.” The tria l court did find two (2) mitigating factors, that the
Appellant acted under strong provoc ation a nd tha t the Ap pellan t adm itted his
guilt. In his appeal, the Appellant urges that the trial court sh ould have
considered the following additional mitigating factors: (1) That the Appellant
assisted the authorities in locating or recovering any property or person involved
in the crim e; (2) th at the A ppella nt com mitted the offense under such unusual
circumstances that it is un likely a s ustain ed inte nt to viola te the la w mo tivated his
conduc t; and (3) that the Appellant, because of his youth, lacked substantial
judgment in comm itting the o ffense. T enn. C ode An n. § 40-3 5-113(1 0),(11),&
(16).
Appellant relies upon State v. Shelton, 854 S.W.2d 116 (Tenn. Crim.
App. 1992), perm. to appeal denied, id. (Tenn. 199 3), in support of his argument
that the mitiga ting factor th at Appe llant lacked a sustain ed intent to violate the law
shou ld be applicable. We have reviewed State v. Shelton and c onclu de tha t it is
disting uisha ble from Appellant’s case. In Shelton, also a second degree murder
case, the defe ndant killed his wife by u se of a firearm. T his Court held that the
mitigating factor contained in Tennessee Code Annotated Section 40-35-113(11)
was applicable because the trial court did not find that the domestic difficulties
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between the parties related to a sustained inten t to violate the law which
motivate d the killing. Shelton, 854 S.W.2d at 123.
In Appellant’s case, he was involved in an altercation with the victim,
left the altercation and went into his bedroom and retrieved a wooden baseball
bat. He returned and hit the victim several times about the head area, and struck
the victim at least one more time on the head after he had fallen to the floor
unconscious. When the first law enforcement officer arrived, the Appellant came
out of the house and yelled at the officer “(the victim] hit me in my own house and
I beat his ass with a bat.” Appellant also admitted at the sentencing hearing that
he told the officer that he would have shot the victim if he had had a gun . There
is no error in the trial court not ap plying this mitigating factor.
Appellant urges that the trial court should have applied the mitigating
factor that he assisted authorities in locating a person involved in a crime.
Appellant called 911 following the incident. Wh ile we a gree th at this m itigating
factor is ap plicable, w e afford it very little weight.
Finally, the Appellant argues that the mitigating factor that he lacked
substantial judgment in committing the offense because of his youth shou ld have
been applied by the trial court. The record reflects that the Appellant was one
month shy of his twenty-first birthday when he comm itted the offense. Th ere is
simply nothing in this record to indicate that this mitigating factor is applicable.
Although we find that the trial court should have applied the
mitigating factor contained in Tennessee Code Annotated § 40-35-113(10), we
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find that this mitigating factor should be afforded little weight and do es not jus tify
a mod ification of Ap pellant’s se ntence .
This issu e is withou t merit.
In conc lusion , we ha ve foun d that th e trial co urt pro perly applied one
enhancement factor, and that an additional enhancement factor, use of a dea dly
weapon in commission of the offense, is applicable in this case. Furthermore, we
find that the trial court properly ap plied two (2) mitigating fa ctors, and fa iled to
apply one (1) m itigating facto r, though it is entitled to little weight. Appellant was
convicted of a Class A felony, and the presumptive sentence, if there are no
enhancement or mitigating factors is 20 years. If there are enhan cemen t factors
and mitigating factors, the court m ust start at the presumptive sentence in the
range, enhance the sentence as appropriate for enhancement factors, and
reduce the sente nce as approp riate for m itigating facto rs.
After a thorough review of the record, we have determined that the
twenty-year senten ce imp osed b y the trial cou rt is approp riate. The judgment of
the trial court is therefore affirmed.
____________________________________
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THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
PAUL G. SUMMERS , Judge
___________________________________
DAVID G. HAYES, Judge
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