State v. Thomas Booker ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL SESSION, 1999
FILED
STATE OF TENNESSEE, ) May 6, 1999
) No. 02C01-9810-CC-00323
Appellee ) Cecil Crowson, Jr.
) HARDIN COUNTY Appellate Court Clerk
vs. )
) Hon. C. Creed McGinley, Judge
THOMAS BRANDON BOOKER, )
) (Second Degree Murder)
Appellant )
For the Appellant: For the Appellee:
Richard W. DeBerry Paul G. Summers
Asst. District Public Defender Attorney General and Reporter
117 Forrest Avenue North
Camden, TN 38320 Patricia C. Kussmann
Assistant Attorney General
Criminal Justice Division
Guy T. Wilkinson 425 Fifth Avenue North
District Public Defender 2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
G. Robert Radford
District Attorney General
John W. Overton, Jr.
Asst. District Attorney General
P. O. Box 484
Savannah, TN 38372
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Thomas Brandon Booker, was convicted by a jury in the
Hardin County Circuit Court of second degree murder. The trial court imposed a
twenty-two year sentence. On appeal, the appellant raises three issues for our
review: (1) the sufficiency of the convicting evidence; (2) the “inadequate
deliberation” by the jury; and (3) the trial court’s failure to apply a mitigating factor.
After review of the record, we affirm the appellant’s conviction and sentence.
BACKGROUND
On the afternoon of December 1, 1997, the appellant; the victim, Donald
Davidson; Jeremy Miller; Sam Todd; and Scotty McLain congregated at the
Savannah residence of Sandy Haynes, the sister of Jeremy Miller. Davidson arrived
at the residence around 4:30 p.m., followed by the appellant’s arrival one hour later.
That afternoon, the appellant, Davidson, and Jeremy Miller were drinking beer and
peppermint schnapps and ingesting whatever prescription drugs they could find in
the residence. Miller could not remember if they had used marijuana but
acknowledged that “if we had it, yeah we smoked it.” By early evening, Davidson
had already engaged in two separate fights in which blows were exchanged.
At some point, the appellant gave Davidson money to purchase additional
beer at a nearby convenience store. Upon discovering that the store was closed,
the appellant asked Davidson to return his money and Davidson refused. Tension
arose between the two, however, things eventually died down. Around midnight,
Jerry Miller, brother of Jeremy, arrived at the residence and found the home in
disarray. Davidson had spilled food on the floor and Jerry asked him and the others
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to clean up their mess. As a result, Davidson and Jerry became involved in a
“heated argument.” The appellant “stepped in and was going to take up for Jerry.”
Almost immediately, the appellant and Davidson began to exchange blows.
Davidson hit the floor and the appellant jumped on top of him. Jeremy and Jerry
broke up the fight. For a period of nearly ten minutes “the fight was over.” The
appellant went into the kitchen and Davidson went into another room to “cool . . .
down.” Shortly thereafter, the appellant emerged from the kitchen and again had
“words” with Davidson saying, “Die, mother f-----, die.” The two moved toward each
other and the appellant began “swinging.” During this encounter, the appellant
produced a knife and stabbed Davidson multiple times. As the appellant left the
house, he said, “[t]hat will teach you to f--- with me.”
Around 1 a.m. on December 2, 1997, Officer Timothy Kelley and Sergeant
Tim Cunningham of the Savannah Police Department responded to a 911 call at the
Haynes’ address. While approaching the residence three to four minutes later,
Officer Kelley observed a white male, later identified as the appellant, walking away
from the house. Officer Kelley proceeded to the residence and Sergeant
Cunningham approached the appellant. Officer Kelley followed Jeremy to where the
victim, Donald Davidson, was lying on the kitchen floor with visible stab wounds.
The victim had a weak pulse and was barely breathing. Blood was observed
throughout the house beginning at the front door continuing through the living room
door and into the kitchen. The victim was taken to the hospital where he died
shortly thereafter.
After being detained, the appellant stated to Sergeant Cunningham that “he
had stabbed a man down there and that we needed to get him some help down at
the house.” The officer noticed blood on his hands and clothing. After searching
the appellant for weapons, the officer placed the appellant in the patrol car. Then,
Sergeant Cunningham proceeded to the scene searching outside for the weapon.
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With the appellant’s assistance, Detective Donald Derr recovered the knife from the
kitchen sink.
Dr. O’Brian Smith, the medical examiner, testified that the victim exhibited
stab wounds to both arms, bruises to the right knuckles and abrasions to the left
wrist which were all possibly defensive wounds; however, he died of multiple stab
wounds to the chest all delivered contemporaneously. One of the stab wounds
penetrated the heart while another penetrated the liver and continued through the
diaphragm and heart. Dr. Smith stated that the victim had a blood alcohol level of
.18 grams. The victim also had trace amounts of various drugs in his system
including Phentermine, Valium, Cogentin, Atrophine, and Reglan. Dr. Smith further
testified that the appellant’s blood alcohol level was .14 grams. The appellant tested
positive for Butalbital in addition to trace amounts of Valium, Phenergan,
Dextromethorphan, and Prozac.
In his defense, the appellant testified that he pulled Davidson off Jerry Miller
and held him tightly in a “Half-Nelson.” When Davidson appeared to calm down, the
appellant turned Davidson loose. Davidson then hit the appellant in the mouth and
a fight ensued. The appellant ended up on top of Davidson. The appellant further
testified that Jerry and Jeremy began kicking Davidson while the appellant was
holding Davidson down. The appellant stopped fighting when the fight became
three on one. He admitted that he entered the living room with the knife and said,
“[h]e’s [victim] not going to hit on me anymore.” Prior to this incident, the appellant
had undergone extensive surgery on his face. He stated that he stabbed the victim
because he was frightened and did not want the victim to hit him in the face
anymore.
The trial court properly charged the jury on second degree murder and the
lesser offense of voluntary manslaughter. Additionally, the court instructed the jury
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on the defenses of self defense and intoxication. The jury returned a guilty verdict
for second degree murder.
I. SUFFICIENCY OF THE EVIDENCE
First, the appellant contends that the evidence was insufficient to convict him
of second degree murder. Specifically, he contends that the evidence establishes
that he acted in self-defense. Alternatively, the appellant contends that if this
homicide was unjustified, that the evidence at best, supports only a conviction for
voluntary manslaughter.
Following a jury conviction, the initial presumption of innocence is removed
from the defendant and exchanged for one of guilt, so that on appeal, the defendant
has the burden of demonstrating the insufficiency of the evidence. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982). It is the duty of this court to affirm the
conviction unless the evidence adduced at trial was so deficient that no rational trier
of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S. Ct. 2781, 2789 (1979); State v.
Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e). In State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.
1990), this court held this rule is applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both direct and circumstantial
evidence.
This court does not reweigh or reevaluate the evidence, nor may we replace
our inferences for those drawn by the trier of fact. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Furthermore, the State is entitled to the strongest legitimate
view of the evidence and all reasonable inferences which may be drawn therefrom.
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113
S. Ct. 1368 (1993). A jury verdict accredits the testimony of state’s witnesses and
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resolves all conflicts in favor of the state’s theory. State v. Williams, 657 S.W.2d
405, 410 (Tenn. 1983).
In order to obtain a conviction for second degree murder, the State is
required to prove that the appellant caused the knowing killing of another. See
Tenn. Code Ann. § 39-13-210(a)(1) (1997). “A person acts knowingly with respect
to a result of the person’s conduct when the person is aware that the conduct is
reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b). “Whether
the acts constitute a ‘knowing killing’ (second degree murder) or a killing due to
‘adequate provocation’ (voluntary manslaughter) is a question for the jury.” State v.
Johnson, 909 S.W.2d 461, 464 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.
1995); State v. Estes, 655 S.W.2d 179, 183 (Tenn. Crim. App. 1983). As the trier of
fact, the jury determines whether the defendant acted in self defense. Arterburn v.
State, 391 S.W.2d 648, 653 (Tenn. 1965); State v. Clifton, 880 S.W.2d 737, 743
(Tenn. Crim. App. 1994); State v. Fugate, 776 S.W.2d 541, 545 (Tenn. Crim. App.
1988). Within that determination by the jury, they decide whether the defendant’s
belief in imminent danger was reasonable. State v. Renner, 912 S.W.2d 701, 704
(Tenn. 1995).
The proof at trial established that the appellant stabbed the victim multiple
times. His intent was corroborated by retrieving a knife from the kitchen after the
initial fight had ended and his own admission that “[h]e’s not going to hit me
anymore.” Moreover, one witness testified that before the stabbing the appellant
said, “Die, mother f------, die!” Another witness testified that following the stabbing,
the appellant said, “That will teach you to f--- with me.” Implicit within the jury’s
verdict of second degree murder is their rejection of the appellant’s contention that
he acted in self defense or with adequate provocation. W e will not disturb this
finding on appeal. Cabbage, 571 S.W.2d at 835. The proof in the record is
sufficient for a rational trier of fact to conclude that the appellant was consciously
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aware of the nature of his conduct and that the conduct was reasonably certain to
cause death. Accordingly, we find the evidence more than sufficient to support his
conviction for second degree murder. This issue is without merit.
II. INADEQUATE JURY DELIBERATION
The appellant argues that the jury failed to follow the court’s instructions and
adequately deliberate and give fair consideration to his case because it returned its
verdict in thirteen minutes. The State argues that the majority of the material facts
were undisputed and the only determination for the jury was whether the evidence
constituted second degree murder or voluntary manslaughter and whether the
defenses of intoxication or self-defense factually applied. The record reflects that
the jury retired to consider a verdict at 4:15 p.m. and returned with its verdict at 4:28
p.m.
In Anglin v. State, 553 S.W.2d 616, 620-621 (Tenn. Crim. App. 1977)
(citations omitted), where the jury deliberated ten minutes, this court held that “[t]he
length of time that a jury deliberates has no bearing on the strength or correctness
of their conclusions or the validity of their verdict.” See also State v. Gray, 960
S.W.2d 598, 605 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1997); State v.
Spafadina, 952 S.W.2d 444, 451 (Tenn. Crim. App. 1996), perm. to appeal denied,
(Tenn. 1997). We find the above statement of law applicable to the case sub judice.
Accordingly, this issue is without merit.
III. SENTENCING
The appellant challenges the length of his sentence based upon the trial
court‘s failure to apply a mitigating factor. For a Range I standard offender
convicted of second degree murder, the sentencing range is fifteen to twenty-five
years. See Tenn. Code Ann. § 39-13-210; Tenn. Code Ann. § 40-35-112(a)(1)
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(1997).1 Because the appellant was convicted of a Class A felony, the starting point
for sentencing purposes is twenty years, which is the midpoint in the range. Tenn.
Code Ann. § 40-35-210. After weighing the enhancing and mitigating factors, the
trial court imposed a twenty-two year sentence.
This court’s review of the length, range, or manner of service of a sentence is
de novo with a presumption that the determination made by the trial court is correct.
Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is only applicable if the
record demonstrates that the trial court properly considered relevant sentencing
principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Here, the
presumption applies.
Upon our de novo review, we consider the evidence heard at trial and at
sentencing, the presentence report, the argument of counsel, the nature and
characteristics of the offense, any mitigating and enhancement factors, the
defendant’s statements, and the defendant’s potential for rehabilitation. Tenn. Code
Ann. § 40-35-102, -103(5), -210(b) (1997). The burden is on the appellant to show
that the sentence imposed was improper. Sentencing Commission Comments,
Tenn. Code Ann. § 40-35-401(d).
The presentence report reflects that the appellant is twenty-six years old and
has a high school education. He has been convicted of numerous misdemeanor
offenses including theft of property, driving offenses, and alcohol related offenses.
The appellant is unemployed, however, he receives social security disability
benefits. He admits to frequent use of alcohol and marijuana. The appellant states
that he has been prescribed Valium and Prozac.
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The trial court sentenced the appellant as a range I standard offender. We note that the
court set the appellant’s release eligibility date at 100% pursuant to Tenn. Code Ann. § 40-35-
501(i)(1) a nd (2) (19 97).
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The trial court applied the following enhancement factors in determining the
appropriate sentence for the appellant’s conviction of second degree murder: “[t]he
defendant has a previous history of criminal convictions or criminal behavior in
addition to those necessary to establish the appropriate range,” see Tenn. Code
Ann. § 40-35-114(1) (1997), and “[t]he defendant possessed or employed a . . .
deadly weapon during the commission of the offense.” See Tenn. Code Ann. § 40-
35-114(9). The appellant does not challenge the trial court’s application of either
enhancement factor. Upon our de novo review, we conclude that the trial court
properly applied the appropriate enhancement factors.
With regard to mitigating factors, the trial court applied, “[t]he defendant
assisted the authorities in locating or recovering any property . . . involved in the
crime. See Tenn. Code Ann. § 40-35-113(10) (1997). The trial court properly
applied this mitigating factor. The appellant’s only challenge to his sentence is that
the trial court should have applied Tenn. Code Ann. § 40-35-113 (2), that the
appellant acted under strong provocation. The trial court noted,
[t]he Court does not find that he acted under the strong provocation. I
don’t think the proof would support that. This arose out of an
altercation as the proof would show, but the Court finds it doesn’t really
consist of what the Court would find as strong provocation.
The proof does not preponderate against this finding. The record establishes that
the appellant voluntarily injected himself into the fracas between Davidson and Jerry
Miller. After the fight between Davidson and the appellant ceased and a ten minute
“cooling-off” period had transpired, it was the appellant who reinitiated contact with
the victim after arming himself with a knife. These facts, in addition to the
appellant’s stated intentions before and after the stabbing, do not support a finding
that the appellant acted under strong provocation.
In sum, we conclude that two enhancement factors and one mitigating factor
apply. Beginning at the midpoint in the range, the reviewing court is to enhance the
sentence based upon the appropriate factors and reduce the sentence within the
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range as appropriate under the mitigating factors. See Tenn. Code Ann. § 40-35-
210(c) and (e). Accordingly, we find the appellant’s sentence of twenty-two years is
justified.
The judgment of the trial court is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
__________________________________________
JOSEPH M. TIPTON, Judge
__________________________________________
L. T. LAFFERTY, Senior Judge
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