State of Tennessee v. Kendall Rivers

11/03/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 19, 20201
STATE OF TENNESSEE v. KENDALL RIVERS
Appeal from the Criminal Court for Knox County
No. 113503 Scott Green, Judge
No. E2019-01541-CCA-R3-CD
The defendant, Kendall Rivers, appeals his Knox County Criminal Court jury conviction
of voluntary manslaughter, claiming that the trial court erred by admitting into evidence a
video recording taken from the defendant’s cellular telephone, by imposing the maximum
sentence, and by ordering the defendant to serve his sentence in confinement. Discerning
no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and J. ROSS DYER, JJ., joined.
Joshua Hedrick, Knoxville, Tennessee, for the appellant, Kendall Rivers.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Kevin Allen, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The Knox County Grand jury charged the defendant with one count of
second degree murder for the January 30, 2018 death of the victim, Michael Crosby.
At the May 2019 trial, Victoria Loveday, who lived next door to the victim,
testified that, on the evening of January 30, 2018, she heard two men arguing outside and
that “it sounded like they were in front of my window.” Ms. Loveday walked to the back
1
The defendant originally requested Oral Argument in this case. With the assent of the parties, this
court moved the case to the On-Brief Docket due to the suspension of in-person court proceedings due to
the Covid-19 pandemic. See In Re: Covid-19 Pandemic, No. ADM2020-00428 (Tenn. Apr. 24, 2020)
(Order).
of the house to escape the noise, and, while standing in the kitchen, she “heard a pop which
was the first gunshot. So I crawled back to the living room trying to stay down from the
windows, and got my phone, crawled -- was crawling back to the kitchen dialing 911, and
two more pops.” Ms. Loveday clarified that she heard one shot followed by a brief pause
and then two more shots. Records from the 9-1-1 call center established that Ms. Loveday
placed the call to 9-1-1 at 8:28 p.m.
The victim’s other neighbor, graduate student Abigail Randall, testified that,
on the evening of January 30, 2018, she was preparing dinner when she “heard three
gunshots, about three in quick succession.” She initially thought the sound might be
fireworks until she “heard a woman’s voice yelling.” Ms. Randall stepped outside and saw
the victim lying on the ground. She dialed 9-1-1 as she walked down her driveway because
she thought “that something very bad was happening.” Ms. Randall removed her gray
hooded sweatshirt and used it to place pressure on the victim’s wound as instructed by the
9-1-1 operator.
The victim’s nephew, Sammy Moore, testified that the victim lived with Mr.
Moore and Mr. Moore’s mother, who was the victim’s sister. At the time of the offense,
the victim worked at the KFC on Chapman Highway and had been dating the defendant’s
mother, Christine Rivers, for five or six months. As far as Mr. Moore knew, “it was a good
relationship.” Mr. Moore said that the defendant, who lived with Ms. Rivers, and the victim
had “[s]trong disdain for each other.”
Mr. Moore said that the victim consumed alcohol “[w]hen he was awake.
Often. All the time.” The victim’s drink of choice was “the strawberry Bud Light
margaritas.” He testified that it was the victim’s habit on his days off to buy the Bud Light
Strawberry Margaritas and pour them into “a canteen” that he would drink from throughout
the day. The victim was off of work on January 30, 2018, and he and Mr. Moore spent
much of the day together, during which time the victim consumed numerous Bud Light
Strawberry Margaritas out of the canteen. At one point, Mr. Moore drove the victim to
Kroger so that he could purchase flowers for Ms. Rivers and then drove the victim to Ms.
Rivers’ apartment to deliver the flowers. Mr. Moore left after a brief visit because the
victim planned to spend the evening with Ms. Rivers. He returned home and, to his
surprise, the victim returned home a short time later. The victim was upset with the
defendant, so Mr. Moore suggested that the victim spend the evening with him. Mr. Moore
explained that animosity between the defendant and the victim had been brewing for
several months.
Mr. Moore drove the victim to the Weigel’s on Chapman Highway so that
the victim could purchase more strawberry margaritas. He recalled that, as they drove, the
victim communicated with the defendant via cellular telephone “[j]ust multiple calls back
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and forth. Not a whole one conversation.” He said that the two men were cursing and
calling each other out, explaining, “They were both . . . pretty hostile.” At one point, the
victim was in the parking lot of the Weigel’s arguing with the defendant over the telephone
when Mr. Moore spotted a police officer and told the victim “to just come on, get in the
car, get off the phone.” The victim hung up the phone, and they drove back home. Mr.
Moore backed his car into the driveway, and the two men sat in the vehicle while the victim
continued yelling and carrying on about the defendant.
Mr. Moore testified that the victim planned “to whup the [d]efendant,”
explaining that the victim “was a Golden Glove boxer so he was going to use what he used
best.” He said that the victim wanted to teach the defendant a lesson. Mr. Moore recalled,
however, that the victim was “[o]ut of shape and he had a bad leg.” In addition, the victim
“had just had surgery” to get “stents put in ‘cause he wasn’t getting like, blood flow to his
legs and such.” Mr. Moore said that he tried to calm the victim down and persuade him to
“[j]ust go in the house, lay down, sleep off his anger. ‘Cause he was getting worked up.
And I . . . know my uncle. And . . . I could tell he . . . was real mad, fired up.” The victim
eventually agreed to go inside, and Mr. Moore stayed outside to finish a cigarette.
Mr. Moore testified that just as the victim turned on his bedroom light, Mr.
Moore saw “a white car pull up slowly, creeping up slow.” The car drove down the street
and then came back and parked across the street. The victim then came out of the house
and did not look at or speak to Mr. Moore. Mr. Moore looked to his left and saw the
defendant running. The victim and the defendant met at an access road near the parking
lot of the South-Doyle Middle School. Mr. Moore said that “[t]he [d]efendant ran up, tried
to Superman punch my uncle,” explaining, “So he jumped in the air, leaped forward.
That’s what you call a Superman punch ‘cause you’re lunging forward like you’re
Superman.” “After that, they get to tussling right there at the dot.” He said that neither
man landed any punches “that were flush. Just wild swings from both sides.” Mr. Moore
said that the victim’s “pants came down a little bit and he stumbled” and that “[a]t that
point, the [d]efendant raised from the hip. I seen the nose of the gun. My uncle raised his
hands in the air.” Mr. Moore heard the victim say, “‘You going to shoot me?’” before the
defendant fired a single shot. At that point, Mr. Moore ran to his house to alert his mother.
As he ran back toward the men, he saw the defendant “fleeing away.” The victim, he said,
stood “up right there . . . and says, ‘He shot me, Nephew. He shot me.’” Mr. Moore then
shouted, “I know it’s you, Kendall. I know it’s you. I’m going to kill you, Kendall.” He
then saw the defendant get into the car and drive away. Mr. Moore insisted that he did not
see the victim give any indication that he had a knife but admitted that he saw the small
Sheffield knife that the victim routinely carried at the scene after the victim was taken to
the hospital.
During cross-examination, Mr. Moore conceded that the victim was upset on
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the day of the offense and that he wanted to find the defendant so that he could rough him
up and teach him a lesson. He agreed that the two men telephoned each other repeatedly,
noting that the victim “had a habit of hanging up in people’s face that he was tired of talking
to.” Mr. Moore said that, despite his age, the victim was strong.
The victim’s sister, Angie Crosby, testified that on the day of the offense, she
got off of work early and was preparing to take a shower when she telephoned the victim
to find out where he and Mr. Moore were. The victim told her they were pulling into the
driveway, and she looked out the window and saw the car pull into the driveway. The
victim told her “that he had been over at Christine[’s] house and that him and [the
defendant] had got into it.” After speaking to the victim, Ms. Crosby got into the shower.
When she got out of the shower, she heard Mr. Moore call for her and then heard “a couple
of gunshots.” Ms. Crosby put on her robe, went outside, and saw the victim standing alone
across the street in the parking lot of the school. She saw Mr. Moore running toward the
defendant but called out “to stop him.” When Mr. Moore stopped, Ms. Crosby went back
into the house to put something on under her robe, and when she came back outside, she
saw the victim lying on the ground. She ran to the victim and saw that he had been shot.
After the victim was taken from the scene, she used his cellular telephone to call several
people, including the defendant and the defendant’s mother.
Knoxville Police Department (“KPD”) Officer Jeff Damewood testified that
he was “working a[n] off-duty job at” the Kroger at the “Chapman Square Shopping Center
at Chapman and Young High Pike” when the dispatcher “put out a call of a shooting on
Taylor Road near South Doyle Middle School.” Because Officer Damewood was “less
than a quarter of a mile away,” he responded to the scene. When he arrived, he observed
the victim lying “in a grassy area next to a tree that is actually school property, right there
behind the school on Taylor Road.” He also saw a woman leaning over the victim “holding
pressure to . . . some type of wound.”
KPD Officer Derek White responded to the scene and was sent to 2710
Morning Crest Way, “where the suspect was.” When Officer White arrived on Morning
Crest Way, he saw the defendant “out in the parking lot area bleeding from the forehead,
upper area.” The defendant did not resist arrest, and Officer White placed the defendant
into his patrol car “pretty quick just to secure him.” The defendant’s mother gave them
consent to search the apartment, and Officer White and several other officers entered the
apartment. Officer White said that he did not observe any signs that a struggle had taken
place inside the apartment. He specifically did not see any broken furniture or lamps and
did not observe any holes in the walls. Officer White recalled that officers found a weapon
inside a closet in the apartment after communicating with someone on the telephone.
KPD Sergeant Brian Dalton, who was certified as an expert in firearms and
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toolmark examination, testified that he examined the weapon found in this case and
compared it with three recovered cartridge cases and a bullet recovered during the autopsy
of the victim. He described the weapon as “a five-shot, double-action revolver” that “was
made between 1905 and 1907.” All three cartridge cases had been fired from the weapon,
as had the bullet recovered during the autopsy.
During cross-examination, Sergeant Dalton testified that the amount of
gunshot residue deposited on the surface around a gunshot could be measured to determine
the distance from which the shot was fired. He said that this was determined by using the
recovered weapon to fire shots from different distances to establish test patterns that could
then be used to narrow down the distance. He was not asked to do that in this case.
Sergeant Dalton explained that one would not only need “test patterns, you’d need to look
at the environment. If you compare that to, like, an indoor firing range, it is set up as a
downdraft so everything is pulled away from the firing point.” Sergeant Dalton explained
that “[a] contact shot typically leaves some telltale signs. But as soon as you start moving
past about 12 inches, everything needs to be tested.”
KPD Investigator Jeff Day acted as the lead investigator in this case.
Investigator Day interviewed the defendant following his arrest and, during that interview,
received the defendant’s consent to search his cellular telephone. A video recording of that
interview was exhibited to Investigator Day’s testimony and played for the jury. After
being informed of and waiving his constitutional rights, the defendant told officers that the
victim was his mother’s boyfriend and that he did not like the way that the victim treated
him or his mother. The defendant told Investigator Day that he and the victim had a
confrontation at his mother’s apartment that included the victim’s threatening to kill the
defendant. The defendant said that he left the apartment, but the victim called him on his
cellular telephone and called him names and threatened him. The defendant said that he
eventually decided to fight the victim, so he drove to the victim’s house. The defendant
told the investigator that, as the two began to struggle, the victim sliced across his forehead
with a knife. The defendant claimed that he fell and that the victim got on top of him and
threatened to kill him. The defendant admitted that he had a pistol in his pocket when he
went to the victim’s house and that he shot the victim with the pistol. The defendant said
that he fired the gun twice, aiming for the defendant’s leg. The defendant said that after
shooting the victim, he returned to his apartment and called the police. He insisted that he
went to fight the victim but did not intend to kill the victim. He said that he took the gun
because he was afraid of the victim, saying that the victim was “a big guy” who had bragged
about having been to prison.
Investigator Day testified that the data extracted from the defendant’s cellular
telephone established that calls between the defendant and the victim on January 30, 2018,
began at 7:21 p.m. and that the defendant telephoned the victim seven times between 8:13
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p.m. and 8:24 p.m. Instant messages between the defendant and a contact listed only as
“Dodo” showed the defendant’s telling Dodo at 7:05 p.m., “I just got into a fight, Fool.”
At 7:35 p.m., the defendant sent a text message to a contact listed as “Momma” that said,
“Tell dude to quit calling my phone before I really hurt him.” A text message from the
defendant’s 13-year-old sister Kinsley sent at 9:49 p.m. read, “What about the gun?” The
defendant responded via text message 21 seconds later with “Throw it away.” Kinsley
said, “Okay.” Later, the defendant sent a text to Kinsley that said, “Give the gun to the
office.” Eventually, at 10:18 p.m., the defendant told her to give the gun to “Officer Wilson
whenever you get home” and “say I put it under your mattress.” When Kinsley eventually
replied, telling the defendant that the gun was in her closet, the defendant responded,
“Okay. Tell them where the gun [is] at.”
Investigator Day testified that, when he reviewed the photographs and video
recordings on the defendant’s cellular telephone, one video recording in particular drew
his attention. The recording, which featured the defendant performing a freestyle rap while
sitting in his car was played for the jury. Parts of the recording are difficult to understand.
The State espoused the following interpretation:
IT’S GETTING REAL BIG BRO, LET’S GET REAL. UHH
. . . RIDING OUT LATE AT NIGHT . . . EYES OPEN WIDE.
HUHH . . . . I AIN’T PLAYING N**** . . . WANT TO FIGHT
. . . . ON THE PLAYGROUND, I REALLY BIG D***, MY
S***, I’M THE SHOOTER B**** . . . UHM . . . PULL UP
WIT A RUGER B****. BUSSIN’. I’MA DO THIS B**** .
. . . AH AH AH . . . . AS I CREEP, LATE AT NIGHT, DOWN
TO CREEP WHERE MICHAEL FIGHT. F*** N****’S
TRYING TO TRY ME. I CAN’T LET HIM PICK ON ME.
I’M HARD BODY B****. I WAS BUILT FOR THIS S*** .
. . YOU CAN’T F*** WITH ME CAUSE YE AIN’T DO
THIS S***. YE AIN’T RIDE FOR ME, YE AIN’T DIE FOR
ME, YE AIN’T SITTIN’ DOWN AND DO THE TIME FOR
ME. SPENDING MONEY ALL ON ME. AHH AHHH . . . .
CAUSE I’M A RIDER . . . . SEEM LIKE LIFE GOT SO
HARD. I JUST PRAY LOUDER. HMMMM. HMMMMM.
LIGHT A BOWL WITH A LIGHTER. BAD LITTLE BIT IS
SHAPED LIKE A BOTTLE. COOLIN’ LITTLE N** AND I
LOVE POPPIN’.
Investigator Day obtained the video recordings from the surveillance
cameras at South Doyle Middle School. The video recordings and still photographs taken
therefrom were entered into evidence. The recording showed the defendant and the victim
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“come together for approximately about four seconds, and then you see the muzzle flash
of the weapon.” Because the video cameras were motion activated, the entirety of the
encounter was not captured.
Forensic testing of the victim’s Sheffield knife, which was found at the scene,
established the presence of human blood as well as the presence of a mixture of DNA, for
which one of the contributors was a male. The sample was insufficient for any further
testing.
Doctor Darinka Mileusnic-Polchan, Chief Medical Examiner for Knox and
Anderson Counties, performed the autopsy of the victim. Doctor Mileusnic-Polchan
testified that the victim suffered three “entrance gunshot wounds, two that appear to be exit
gunshot wounds.” “The first wound was located on the left upper chest” at approximately
“the level of the areola.” The entrance of that wound “appeared to be regular,” which
indicated to Doctor Mileusnic-Polchan that “there was no barrier or intermediate object
between the muzzle and the victim.” The bullet traveled downward, breaking a rib before
entering the chest cavity, where “[i]t actually lacerated or tore part of the heart.” The bullet
pierced the victim’s diaphragm and struck the liver, pancreas, and stomach before coming
to rest in the lower lumbar region “relatively superficial under the skin on the left lower
back.” Doctor Mileusnic-Polchan described that wound as “the deadly wound” because it
“involved many organs and in particular the heart.”
The second gunshot wound “was on the right upper abdomen. . . . right under
the rib cage.” That wound “actually was survivable because it just cause[d] a contusion of
the intestine but did not really perforate anything and exited in the lower lumbar region.”
The third gunshot wound was on the victim’s left wrist. She said that there was no evidence
that any of the wounds in this case occurred at close range. Toxicology testing established
that the victim’s blood alcohol concentration was .18 percent. Doctor Mileusnic-Polchan
testified that she listed “multiple gunshot wounds” as the cause of death on the autopsy
“because it’s the totality of all the injury,” but she said that the gunshot wound to the left
chest actually caused all of the damage that led to the victim’s death.
The defendant’s mother, Christine Rivers, testified on behalf of the
defendant. Ms. Rivers recalled that on January 30, 2018, she was in her bedroom “getting
myself together to go out” with the victim as they had planned, when her daughter ran
down the hallway to tell her that the defendant and the victim were “‘into it.’” When Ms.
Rivers walked to the front of the apartment, she saw that the victim “was upset” and “just
yelling, like, I guess, talking to” the defendant. She said that the defendant had his hands
out and his palms up. Ms. Rivers “kind of pushed [the victim] in the house. And I told
[the defendant] to stay back for a minute.” Ms. Rivers said that she pushed the victim into
her bedroom, and “he was just saying, ‘Well, Christine, I -- you know, I’m going to kill
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him tonight.’” At that point, Ms. Rivers “got kind of upset with him telling me that he was
going to kill my son,” so she told him to leave. The victim became upset with Ms. Rivers
and took the vase containing the flowers he had just brought her “and threw it into the
wall.” The victim then threw one of her night tables at the wall. At that point, a neighbor
came into the apartment and restrained the victim inside the apartment before taking the
victim home.
Ms. Rivers testified that sometime later, the victim called her and said that
he needed his work uniforms, which he had laundered at her apartment that day. Ms. Rivers
drove to the victim’s house to deliver the uniforms but did not stay at the house. She
described the victim as “just mad” at that point. After she left, the victim called her more
than once, “cursing” and “saying real bad stuff.” Eventually, the victim called and told
Ms. Rivers that the defendant was at his house and then hung up. Ms. Rivers got into her
car and drove toward the victim’s house. Before she got there, Ms. Crosby called her and
said, “‘[Y]our son Kendall just shot my brother.’”
Ms. Rivers said that when she arrived at the scene, she saw that the victim
had been shot. She left the scene after finding out which hospital the victim would be taken
to. Ms. Rivers said that, before driving to the hospital, she went home to look for the
defendant. She found the defendant standing outside their apartment “shaking” and
“covered in blood on his face.” She was at the apartment when the police arrived. After
the police took the defendant to the police station, Ms. Rivers drove to the hospital to check
on the victim. After learning that the victim had died, she went back to her apartment,
where she learned from the police that the defendant had told them “where the gun was.”
During cross-examination, Ms. Rivers acknowledged that she was aware that
the defendant did not like the victim, saying that “[h]e just didn’t like the way [the victim]
would treat me.” She said, however, that the two men were “nice to each other in front of
me.”
The 22-year-old defendant testified that on January 30, 2018, the victim
visited Ms. Rivers at their apartment. At one point, the victim “was coming from the back
room to go outside to smoke a cigarette” as the defendant “was coming from the back”
carrying a plate and a cup. He said that the victim “pull[ed] the door, knocked the plate
out my hand.” The defendant told the victim, “Damn, you just knocked the plate out of
my hand,” and the victim “put his finger in my face, and sa[id], ‘You going to respect me.’”
The defendant told the victim he was “not trying to hear that s***,” and the victim “blew
up and pushed me in my shoulder to get me [to] turn around to him.” The defendant said
that he was “confused because I should be the mad one.” The defendant’s mother and
sister then came from the back of the apartment. The defendant’s sister held him back
while Ms. Rivers held the victim back. The defendant heard the victim say, “‘I’m going to
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kill him. I’m going to hurt him.’” The defendant said he left the apartment after Ms. Rivers
asked him to do so, explaining that his mother was “a pretty good mediator, so I knew
she’ll resolve the problem.”
The defendant testified that he went to a park near his apartment to cool off.
While he was there, the victim called him on his cellular telephone and said, “‘Where are
you, you p****, you p**** boy.” The defendant said that he “really laughed at it in his
face. And I guess that made him more madder.” The defendant hung up, but the victim
“called back. He got to talking. I hung up in his face and I end up going home.”
The defendant testified that, when he got home, he saw that his mother’s
bedroom had “holes in it, broken lamps, glass everywhere.” He said that he “was pretty
upset” because his mother was “a single woman and everything she owns she worked hard
for.” The defendant said that “at that time [the victim] was calling me saying, ‘Where you
at? Come to me.’” The defendant said that the victim “wouldn’t quit. He wouldn’t let
up.” The defendant testified that he decided to go and fight the victim and that he “took a
gun with me just in case, for protection,” saying that the victim had previously told him
“that he’d been to prison and he seen a lot and he’d been shot five times.”
The defendant testified that when he arrived at the victim’s house, he saw the
victim coming toward him “taking his shirt off.” The defendant ran toward the victim
“with my fist up about to fight. And he cut me in the face and I went down.” He said that,
at that point, he reached into his pocket, grabbed the gun, closed his eyes, and pulled the
trigger. The defendant claimed that he “was scared. I thought I was about to die.” The
defendant insisted that he pointed the gun at the victim’s leg, “pulled the trigger[,] and took
off running to my car and called the police and notified them [of] everything. I was scared.”
The defendant said that, although he told the police that he had fired the gun twice, he could
not be sure how many times he fired. The defendant acknowledged that the video
surveillance footage did not show the victim on top of the defendant, but he said that he
“just felt like that he was on top of me, like at that time, like, that was . . . just a bad
experience.” The defendant said that he had no idea when he left the scene whether any of
the gunshots had struck the victim. The defendant said that if he could “rewind time, I
wouldn’t ever done it.”
During cross-examination, the defendant conceded that he was aware that the
victim had recently had surgery on his leg but said that the victim “was walking around
pretty good. He . . . already recovered.” The defendant acknowledged that the victim
drank a lot. The defendant admitted being upset that his mother made excuses for the
victim’s poor treatment of her. The defendant said that his “Uncle Jake” had given him
the gun that he used to shoot the victim and agreed that he did not have a permit to carry
the handgun. He insisted that he kept the gun to protect his family because they lived in a
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rough area. The defendant claimed that he never bought ammunition for the gun and that
he had only “the bullets that came with it.” He maintained that he had only fired the gun
one time before the shooting. The defendant said that he called the police to report the
shooting as soon as he returned home; his cellular telephone records showed that he
telephoned at 8:43 p.m.
The defendant denied using the victim’s name in his freestyle rap video,
saying that he had “no reason to say [the victim’s] name.” He insisted that he instead said,
“Creep with my pipe.” He admitted that the term “bussin’” referred to shooting. He said
that the phrase “I’m a rider” as he used it meant “do whatever for a person or . . . be there
for a person.” He admitted using the term “f*** n****” and said that the listener could
take the term “however you want to take it.”
During redirect examination, the defendant agreed that he often chose words
to use in his freestyle raps for their flow rather than their meaning.
Based upon this evidence, the jury convicted the defendant of the lesser
included offense of voluntary manslaughter. Following a sentencing hearing, the trial court
imposed a sentence of six years’ incarceration.
In this timely appeal, the defendant challenges the admission of the rap video
obtained from his cellular telephone and the propriety of the sentence.
I. Admission of Video
The defendant asserts that the trial court erred by admitting into evidence the
amateur rap video recording obtained during the search of his cellular telephone because it
was irrelevant and that, even if it was marginally relevant, the probative value of the
evidence was substantially outweighed by the danger of unfair prejudice. He argues that,
instead of evidence of a plan to harm the victim, the performance was just that, a
performance. The State contends, as it did at trial, that the video was relevant to establish
that the defendant committed a knowing killing.
Relevant evidence is evidence “having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. “Evidence which is
not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed
relevant, it may still be excluded “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence,” Tenn. R. Evid. 403.
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The probative value of the video recording was not particularly high given
that the proof overwhelmingly established that the final conflict between the defendant and
the victim was the culmination of several hours of arguing. Both second degree murder
and voluntary manslaughter require the State to prove that the defendant acted knowingly.
See T.C.A. §§ 39-13-210(a)(1); -211(a)(1). The defendant’s mentioning his well-
documented disdain for the victim in an amateur rap performance that also included
references to shooting arguably supported this element. That being said, the admission of
the video likely had little impact on the jury, as evidenced by its verdict convicting the
defendant of the lesser included offense of voluntary manslaughter, an offense that would
have been supported by the evidence adduced at trial even in the absence of the video.
Consequently, even if the trial court erred by admitting the recording, any error was
harmless.
II. Sentencing
The defendant challenges the propriety of the sentence imposed, arguing that
the trial court erred by imposing the maximum sentence within the range and by denying
all forms of alternative sentencing. The State asserts that the trial court did not err.
At the sentencing hearing, the trial court heard from the victim’s family
members regarding the impact of his death. The trial court found that, regardless of “who
made the first phone call, who shouted out the first insult,” the defendant “created the
confrontation” by going to the victim’s home. The court also found that the defendant
went to the victim’s home “knowing that you were strapped, that you had your gun with
you. You didn’t have to show up, and you sure didn’t have to bring the gun with you.”
The court applied enhancement factor (1), that the defendant had a history of criminal
behavior in addition to that necessary to establish the appropriate sentencing range, on the
basis that officers discovered marijuana in the defendant’s car following his arrest and that
the defendant was not licensed to carry a gun, but the court did not give that factor “too
much weight.” See T.C.A. § 40-35-114(1). The court also applied enhancement factor 10,
that the defendant had no hesitation about committing a crime when the risk to human life
was high, but “place[d] little weight on that.” See id. § 40-35-114(10). Finally, the court
applied enhancement factor (9), that the defendant employed a firearm during the
commission of the offense, see id. § 40-35-114(9), and “place[d] an enormous amount of
weight on the fact that you chose to arm yourself and go create this encounter.” Based
upon these findings, the court imposed a sentence of six years, the maximum within the
range. The trial court also denied all forms of alternative sentencing, finding that to impose
“anything less than what I’m getting ready to do would depreciate . . . the seriousness of
this offense. You took another human being’s life by the decisions you made that evening.”
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Our supreme court has adopted an abuse of discretion standard of review for
sentencing and has prescribed “a presumption of reasonableness to within-range sentencing
decisions that reflect a proper application of the purposes and principles of our Sentencing
Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of the purposes
and principles of sentencing involves a consideration of “[t]he potential or lack of potential
for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial courts are
“required under the 2005 amendments to ‘place on the record, either orally or in writing,
what enhancement or mitigating factors were considered, if any, as well as the reasons for
the sentence, in order to ensure fair and consistent sentencing.’” Bise, 380 S.W.3d at 698-
99 (quoting T.C.A. § 40-35-210(e)). Under the holding in Bise, “[a] sentence should be
upheld so long as it is within the appropriate range and the record demonstrates that the
sentence is otherwise in compliance with the purposes and principles listed by statute.” Id.
at 709. The abuse-of-discretion standard of review and the presumption of reasonableness
also applies to “questions related to probation or any other alternative sentence.” State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).
Without question, the trial court erred by applying enhancement factor 10 in
this case because the risk to human life is inherent in the offense of voluntary manslaughter,
and no evidence suggested a high risk to the life of anyone other than the victim. The
record is clear, however, that the trial court placed little weight on that factor and instead
based its imposition of the six-year sentence on the defendant’s use of a firearm. In our
view, despite the misapplication of a single enhancement factor, the trial court did not
abuse its discretion by setting a sentence length of six years.
The imposition of a six-year sentence mandated the trial court’s considering
probation as a sentencing option. See T.C.A. § 40-35-303(a) (“A defendant shall be
eligible for probation under this chapter if the sentence actually imposed upon the
defendant is ten (10) years or less . . . .”). Traditionally, the defendant has born the burden
of establishing his “suitability for full probation.” State v. Mounger, 7 S.W.3d 70, 78
(Tenn. Crim. App. 1999); see T.C.A. § 40-35-303(b). Such a showing required the
defendant to demonstrate that full probation would “subserve the ends of justice and the
best interest[s] of both the public and the defendant.” State v. Dykes, 803 S.W.2d 250, 259
(Tenn. Crim. App. 1990) (quoting Hooper v. State, 297 S.W.2d 78, 81 (1956), overruled
on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000)).
When a trial court orders a fully-incarcerative sentence, it must base the
decision to confine the defendant upon the considerations set forth in Code section 40-35-
103(1), which provides:
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(1) Sentences involving confinement should be based on the
following considerations:
(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
frequently or recently been applied unsuccessfully to the
defendant; . . . .
T.C.A. § 40-35-103(1).
When, as here, “the seriousness of the offense forms the basis for the denial
of alternative sentencing,” the record must establish that “the circumstances of the offense
as committed [were] 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.” State v. Trotter, 201
S.W.3d 651, 654 (Tenn. 2006) (citations and internal quotation marks omitted).
The record establishes that the defendant managed to turn what began as an
argument over spilled food into a deadly confrontation. Although the record indicates that
the victim gave as good as he got during the verbal sparring that took place over the course
of the evening, it was the defendant who escalated the conflict. Despite expressing a desire
to teach the defendant a lesson, the victim did not go find the defendant. It was the
defendant who traveled to the victim’s home to confront the victim. Not satisfied with
confronting the victim at home, by his own account, the defendant elected to go home and
arm himself with a loaded handgun. As the trial court observed, the defendant’s decision
to bring a loaded gun to confront the victim directly resulted in the victim’s death. That
decision bespeaks an amount of planning and forethought atypical in voluntary
manslaughter cases, which, by definition, occur in the heat of passion. The evidence
established that the defendant’s conduct “was sufficiently reprehensible and offensive, and
the nature of the offense is such, as to require incarceration to avoid depreciating the
seriousness of the offense.” State v. Carter, 254 S.W.3d 335, 348 (Tenn. 2008) (citing
T.C.A. § 40-35-103(1)(B); Trotter, 201 S.W.3d at 654). Under these circumstances, we
conclude that the trial court did not abuse its discretion by ordering a fully incarcerative
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sentence.
Accordingly, the judgment of the trial court is affirmed.
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JAMES CURWOOD WITT, JR., JUDGE
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