State of Tennessee v. L. B. Rittenberry, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 21, 2012

STATE OF TENNESSEE v. L. B. RITTENBERRY, JR.

Direct Appeal from the Criminal Court for Davidson County

No. 2009-A-646 Mark J. Fishburn, Judge

No. M2011-00857-CCA-R3-CD - Filed July 26, 2012

A Davidson County Criminal Court Jury convicted the appellant, L. B. Rittenberry, Jr., of

second degree murder, and the trial court sentenced him to twenty years to be served at one

hundred percent. On appeal, the appellant contends that (1) the evidence is insufficient to

support the conviction; (2) the trial court should have granted his motion to suppress his

statements; (3) the trial court erred by allowing the State to refer to the deceased as “the

victim”; and (4) his sentence is excessive. Based upon the record and the parties’ briefs, we

affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which R OBERT W.

W EDEMEYER, and R OGER A. P AGE, JJ., joined.

Jeffrey A. DeVasher and Jason Gichner (on appeal) and Laura J. Getz and Laura C. Dykes

(at trial), Nashville, Tennessee, for the appellant, L. B. Rittenberry, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Robert Elliott McGuire and

Joel Crim, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

The record reflects that in November 2008, the Davidson County Grand Jury indicted

the appellant for the first degree premeditated murder of Charles Kurt Steele. At trial, Erin

Dutton testified that she was the custodian of records for the Emergency Communications

Center, which received 911 telephone calls. At 6:08 p.m. on November 23, 2008, the Center

received a call from the appellant.

The State played the audio-recorded call for the jury. During the call, the appellant

said, “I think I’ve killed a man over here. He busted into my apartment. . . . He busted in my

front door, . . . and he come at me.” The 911 operator asked if the appellant knew the victim,

and the appellant said, “He’s a homeless person. . . . I think he tried to rob me.” The operator

asked the appellant how he killed the victim, and the appellant answered, “Ah, pretty much

beat him in the head with a baseball bat.” The appellant said he was scared and did not know

what else to do. The appellant told the operator that he was sitting outside his apartment, that

blood was splattered everywhere in his apartment, and that he did not want to go back inside.

The operator asked if the appellant would check on the victim. The appellant said that he

could open his door and look but that the victim “ain’t moved in thirty minutes because I

didn’t know what to do.” The appellant reiterated that the victim broke into his apartment

and that he defended himself. The operator asked the appellant what happened, and the

appellant said that the victim came to his apartment earlier and asked to borrow money but

that the appellant would not give him any. While the appellant was cooking supper, the

victim “busted open” the apartment door. The appellant told the operator that the victim

“took a bunch of pills and stuff I think” and that the victim “come at me with a knife.” The

appellant stated that “I had to beat him to get him off of me” and that “I just started wailing

on him.” The appellant went to his neighbor’s house for help, but no one would help him.

The operator offered to give the appellant instructions for CPR, but the appellant told her the

victim was dead. The appellant said he could not go back inside his apartment because

“there’s just piles of goo, blood everywhere.” At the conclusion of the call, the appellant

said, “I’m freaking out on what’s happening.” He informed the operator that the police had

arrived and stated, “Let me roll me a cigarette. They ain’t going to let me have one.”

Officer Joshua Hill of the Metropolitan Nashville Police Department (MNPD)

testified that he responded to the appellant’s call, went to the appellant’s apartment on South

Gallatin Pike, and saw the appellant sitting in front of the apartment. Officer Hill said the

appellant waved to him and “went back to rolling his cigarette.” Officer Hill said the

appellant told him, “I think I killed a man.” The officer asked the appellant what he used to

kill the victim, and the appellant said, “A bat.” Officer Hill stated that the appellant was

calm and soft-spoken and that the appellant said the victim’s name was “Chucky.” Officer

Hill opened the appellant’s front door, stepped inside the apartment, and saw the victim lying

on the floor near the front door. The victim was face-down with his arms around his head.

A lot of blood was on the floor, and a large knife was in the victim’s right hand. Officer Hill

arrested the appellant and placed him in the back of a patrol car. Medics from the Nashville

Fire Department arrived and declared the victim dead.

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Officer Hill testified that it was dark outside and that he did not see any blood or

injuries on the appellant. While the appellant was in the patrol car, he complained of back

or shoulder pain and told Officer Hill that he had been hit by a car a few years earlier. Officer

Hill said that a dog and numerous cats were in the apartment and that officers “ushered” them

outside. The appellant became very upset and began yelling from the patrol car. Officer Hill

said he went to the car and asked the appellant “what the problem was.” The appellant told

the officer that he was afraid his pets would run away. Officer Hill informed the appellant

that the officers needed to protect the scene. Officer Hill said appellant stated that “he didn’t

give a [sh**] about [the victim], that his animals were all that he had.”

On cross-examination, Officer Hill testified that based upon his conversation with the

appellant, he thought the appellant was intoxicated. He noticed damage to the appellant’s

front door but did not examine the damage. Officer Hill acknowledged that he prepared a

two-page report and that he did not include in the report any information about the damaged

door or the appellant’s statement about his not giving a sh** about the victim.

Sergeant Robert Nielsen of the MNPD testified that he went to the appellant’s

apartment on November 23, 2008, and that two or three patrol units were present. Sergeant

Nielsen went into the apartment and saw the victim lying on the floor in the living room. Just

beyond the living room was the kitchen. The apartment’s back door was in the kitchen. The

back door was unlocked, so Sergeant Nielsen locked it in order to secure the scene.

William Seay, a pharmacist and the Pharmacy Manager for the Kmart Pharmacy on

Long Hollow Pike in Goodlettsville, testified that on November 20, 2008, the victim filled

two prescriptions. One prescription was for a thirty-day, ninety-pill supply of Lortab, also

known as hydrocodone, and the other prescription was for a thirty-day, ninety-pill supply of

Xanax, also known as Alprazolam.

On cross-examination, Seay testified that Xanax taken in high doses could cause

confusion and hallucinations. He acknowledged that Xanax also could cause muscle

twitching and “worsening mental mood” and that Lortab could cause confusion and unusual

thoughts. He said that taking marijuana with the two drugs could have an “additive effect”

and that taking antidepressants with Xanax could increase sedation.

Officer Tim Matthews of the MNPD testified that he went to the appellant’s apartment

about 6:00 a.m. on November 24, 2008, and assisted Officer Johnny Lawrence with the

collection of evidence. The apartment consisted of a living room, a bedroom, a kitchen, and

a bathroom. In the living room, the officers found an open medicine bottle and a lid on the

floor beside a chair. Another medicine bottle was in a trash can in the living room. A chair

had been turned over, and blood splatter was on a wall and on the living room furniture.

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Blood splatter was on the bedroom door, and a recently-cut pork loin was in the kitchen. A

large butcher knife was in the victim’s right hand, and the officers collected other knives

from the kitchen. Officer Matthews collected blood samples from the walls and ceiling and

an aluminum baseball bat from just inside the front door. Blood was on the bat.

On cross-examination, Officer Matthews testified that the deadbolt lock on the front

door was damaged. He said that the door frame was cracked and that “the catch on the frame

was askew a little bit.” The medicine bottle on the floor was for hydrocodone prescribed to

the victim on November 20, 2008, and the bottle was broken. The medicine bottle in the

trash can was for cough medicine. Officers dusted both bottles for fingerprints. On redirect

examination, Officer Matthews acknowledged that he did not collect the evidence until about

twelve hours after the appellant’s call to 911. He said that the delay was due to the police

department’s waiting for a search warrant to be issued. The apartment was secured during

the delay.

Officer Johnny Lawrence of the MNPD testified that four beer cans were on a small

table in the living room and that the contents of an ashtray were on the floor. The victim was

lying on the floor, and blood splatter was on a wall.

Williams Townes testified that at the time of trial, he had worked for Smith Brothers

Carwash, near the appellant’s apartment, for about seven years. In November 2008, Townes

was dating Jennifer Griggs, who lived in an apartment very close to the appellant’s

apartment. Townes was at Griggs’ apartment almost every day and spoke to the appellant

occasionally. The victim was Townes’ good friend, and Townes had known him for about

ten years. Townes said that the victim lived with him one time for two or three months but

that the victim “never stayed in one place very too long.” Townes stated that the victim was

a peaceful man, that the victim “wouldn’t raise his hand to a fly,” and that Townes never

heard the victim raise his voice. The victim took prescription medication, and Townes saw

him take too much medication on several occasions. Townes said that taking too much

medication caused the victim to “pass out” but never made him agitated or violent. Around

the time of the victim’s death, Townes saw the victim go in and out of the appellant’s

apartment for three or four days. The victim would enter the appellant’s apartment without

knocking on the door.

On cross-examination, Townes denied that he was caught stealing money from Smith

Brothers Carwash. He also denied that the victim sold drugs at the carwash or out of motel

rooms. However, Townes acknowledged that the victim stayed in different motels. The

victim had more than one prescription for pills and sold the pills in order to survive and have

a place to stay.

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Dr. Laura Boos of the Serology/DNA Unit in the Tennessee Bureau of Investigation

(TBI) testified as an expert in serology. The TBI tested beer cans from the appellant’s

apartment for DNA. Some of the cans had the appellant’s DNA on them, and some of the

cans had the victim’s DNA. The blood on the bat belonged to the victim.

Detective Danny Satterfield of the MNPD testified that he arrived at the appellant’s

apartment between 7:00 and 8:00 p.m. on November 23, 2008. The appellant was sitting in

a patrol car. Detective Satterfield asked the appellant to step out of the car and informed the

appellant that he was there to determine what happened. The appellant told the detective that

the victim came into his apartment and that he beat the victim with a baseball bat. Detective

Satterfield did not notice any blood on the victim’s clothes. The appellant’s apartment was

preserved until a search warrant could be obtained, and the appellant was transported to the

police department. The appellant complained of foot pain, and Detective Satterfield decided

that he should be transported to the hospital. Prior to taking the appellant to the hospital,

Detective Satterfield and some other officers were standing around the patrol car and

discussing what appeared to be blood on the appellant’s boots. The appellant was sitting in

the backseat of the car. Detective Satterfield said that the appellant overheard their

conversation and that the appellant said that “he did not kick anybody he had beaten [the

victim] with the baseball bat and was glad that he did.” An officer took the appellant to the

hospital. Detective Satterfield said that after the appellant was released, he was taken to

night court, “booked,” and charged by the commissioner. The detective stated that while the

commissioner was advising the appellant of the murder charge via video, the appellant said

“something to the effect of, [he] didn’t want to do it, but [the victim] got what he deserved.”

Detective Satterfield acknowledged that on January 29, 2009, he interviewed Jamie Freeman,

who was incarcerated in Davidson County. Freeman gave the detective information about

the appellant’s case that had not been released to the media.

On cross-examination, Detective Satterfield testified that when he talked with the

appellant on November 23, 2008, he thought the appellant had been drinking alcohol. At the

appellant’s preliminary hearing, Detective Satterfield testified that, in his opinion, the

appellant was intoxicated on the night of November 23.

Jamie Freemen testified that at the time of the appellant’s trial, he was on supervised

probation for a felony criminal simulation conviction. Freemen also had two or three

additional felony convictions. On December 23, 2008, Freeman violated the terms of his

probation by being arrested for driving under the influence (DUI) and was put in jail. The

appellant was his cellmate and told Freeman the following: The appellant and the victim had

spent some time together in jail. The victim claimed he could get pills and offered to “hook

up” the appellant with the victim’s doctor so that the appellant could get pills and sell them.

However, the deal fell through, and the appellant and the victim began arguing. On the night

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of November 23, 2008, the appellant was cooking pork loin and drinking beer. At some

point, he received a message that the victim was upset with him.

Freeman testified that the victim came to the appellant’s apartment. The appellant

never told Freeman that the victim forced his way into the apartment or that the victim tried

to rob the appellant. Freeman said the appellant demonstrated how he “walked over to the

wall by the door,” “reached over to the wall by the door and [picked] up the bat,” and

“[came] around like this and [hit] the guy.” The appellant told Freeman that he hit the victim

for eight to ten seconds and that he ran to a neighbor’s house for help. The appellant could

not get any help, so he ran back to his apartment, tripped over his coffee table and telephone

cord, and called 911. The appellant told Freeman that he hit the victim “in the head in the

same spot knowing that nobody would know that because he had worked at a slaughterhouse

slaughtering cows.” Freeman said the appellant thought he “put a knife in the wrong place.”

Freeman wrote down what the appellant told him and hid his notes under his bunk mattress

because he was hoping to “cut a deal” with the State. Later, Freeman realized his

information would be important to the victim’s family.

On cross-examination, Freeman acknowledged that he was eighteen years old when

he was convicted of his first crime of dishonesty, receiving stolen property. He also

acknowledged that he had more than ten prior felony convictions. At the time of the

appellant’s trial, Freeman was employed by Falcon Trucking. Initially, he claimed that he

was truthful with the company about his prior convictions. However, when defense counsel

confronted him with his employment application, Freeman acknowledged that he lied on the

application by stating that he did not have any prior felony convictions and that he had not

been involved in any traffic accidents. Freeman also lied about his criminal history on

additional employment applications. He acknowledged that by talking with Detective

Satterfield, he was hoping to get “some assistance” with his DUI charge because he probably

would lose his job if convicted of DUI.

Kevin Carroll, an investigator for the Davidson County Sheriff’s Office, testified that

he was familiar with the Office’s computerized Jail Management System, which kept records

of inmates. According to the records, the appellant and Jamie Freeman were housed in the

same jail cell from December 23, 2008, to December 31, 2008.

Becky Matlock, the custodian of records for the Tennessee Department of Labor and

Workforce Development, testified that unemployment records showed the appellant began

receiving weekly unemployment payments in April 2008. In order to receive the payments,

the appellant had to certify over the telephone each week that he qualified for an

unemployment check. The appellant continued to receive the payments and certified by

telephone on November 25, 2008, that he qualified for an unemployment payment. On cross-

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examination, Matlock acknowledged that the telephone certification system was automated,

meaning that a collect telephone call from jail could not be accepted.

Dr. Feng Li, the Senior Associate Medical Examiner for Davidson County, testified

as an expert in forensic pathology that he performed the victim’s autopsy. The victim had

multiple blunt force injuries on his head. Specifically, the victim had five lacerations on the

back of his head caused by blows powerful enough to split the skin. The victim also had

contusions on his head, including one on his forehead with a cloth or carpet imprint on it. Dr.

Li stated that the imprint was consistent with the victim’s having been hit on the head while

he was lying face-down on the carpet. Additional injuries to the victim’s head included

abrasions, internal skin bleeding, internal brain hemorrhages, and bruising to the brain. The

victim’s skull was broken into multiple pieces, and the fractures were caused by tremendous

blunt force. The victim had a contusion on his tongue, likely caused by the victim’s biting

his tongue. The numerous injuries caused the victim to die very quickly. However, blood

was in his lungs, meaning he lived long enough to breathe blood into them. The victim had

a superficial cut between his right thumb and forefinger that was made from a sharp object

such as a knife. The victim’s blood alcohol level was 108 milligrams per decimal liter,

which was above the legal limit for driving a vehicle. Xanax, also known as Alprazolam;

desmethyldiazepam, a product of Valium; THC, a product or marijuana; and antidepressants

also were in the victim’s system. The cause of the victim’s death was blunt force injuries,

and the manner of death was homicide. At the conclusion of Dr. Li’s testimony, the State

rested its case-in-chief.

The parties stipulated that Nancy and Chris Brewer would have testified as follows:

They lived in the same apartment building as the appellant. In the week preceding the

victim’s death, they saw the appellant and the victim drinking beer with nearby carwash

workers. On the night of November 23, 2008, the appellant knocked on the Brewers’ door.

Mrs. Brewer answered the door, and the appellant told her, “I think I just killed a guy, you

better call the law, somebody had just burst in my door.” Mrs. Brewer told him to go away

because she thought he was intoxicated. She looked out the window and saw the appellant

walk to his patio. The appellant sat on his patio until the police arrived.

Dr. Felix Adetunji, a psychiatrist at Middle Tennessee Mental Health Institute

(MTMHI), testified for the appellant as an expert in psychiatry. Dr. Adetunji was the

victim’s attending physician on three occasions: September 28, October 7, and November

13, 2008. On all three occasions, the victim was admitted to MTMHI on an emergency basis

for a drug overdose. The victim’s drug overdose on November 13 was his second overdose

that week. The victim was an alcoholic and abused prescription medication. On one

occasion, the victim was described as confused and agitated. On cross-examination, Dr.

Adetunji acknowledged that he never saw the victim exhibit violent behavior.

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The appellant testified that in November 2008, he was living alone in an apartment

on Gallatin Road. He was unemployed but had worked as a roofer and house framer. His

unemployment payments were about to stop, and he was planning to look for a job. In April

2008, a man named Kenny, who worked at the nearby carwash, introduced the victim to the

appellant. The victim said his name was “Chucky.” Kenny told the appellant that the victim

was known for selling pills in the neighborhood and that the victim sold pills to William

Townes and Jennifer Griggs. The appellant stated that he did not see the victim again until

July 2008. Between July and November 2008, the victim stopped by the appellant’s

apartment once or twice. The appellant said the victim “seemed a little weird sometimes.”

The appellant testified that on the morning of Saturday, November 22, 2008, the

victim came to his apartment, and they ate breakfast. He said he and the victim “hung

around” the apartment, drank beer, and watched football. That afternoon, they cooked

hotdogs and hamburgers on the grill and talked. The appellant said that the victim “bragged

about taking pills” and that the victim said he had “OD’d like months before.” The victim

did not reveal that he had been released from MTMHI just days earlier. While the appellant

was drinking beer, he saw the victim ingest pills. The appellant told the victim that he did

not allow pills in his house and told the victim not to take any more. About 9:00 p.m., the

appellant made the victim leave because the appellant did not allow anyone to spend the

night in his apartment.

The appellant testified that the next morning, he woke about 10:00 a.m. and fixed

breakfast. The victim arrived about 10:30 a.m., and the appellant fixed breakfast for him.

The appellant went to the store and bought beer, and he and the victim watched football. The

appellant caught the victim ingesting pills twice. The second time, the appellant told the

victim that if he saw the victim take pills again, the victim would have to leave. The victim

promised not to take any more pills. The victim had a small bag of clothes with him, and the

appellant allowed him take a shower. The appellant said that after the victim got out of the

shower, the victim was “acting kind of weird” and “jerking.” The appellant went into the

kitchen. When he returned to the living room, he saw the victim with an open pill bottle and

saw him taking pills. The appellant told the victim to leave. The victim begged to stay, but

the appellant said no. The victim asked to borrow money, but the appellant said no. The

victim left the apartment about 2:00 p.m.

The appellant testified that he went to the grocery store, bought a pork tenderloin, and

returned to his apartment. He said that while he was in the apartment cooking, he heard

“boom boom.” He said that he looked out the living room window to see what was

happening and that “boom the door busted . . . and here come [the victim]. He -- he just

rushed in.” The victim was in a rage, reached into his back pocket, and said he was going

to kill the appellant. The appellant was scared and thought the victim was going to kill him.

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The appellant said that the victim pulled out a knife, held the knife in his right hand, and

started “swinging” it at the appellant. The appellant hit the victim’s hand and felt his own

hand get cut by something. He grabbed the baseball bat that he kept for protection and hit

the victim on the left side of the face. The appellant said that the victim was swinging the

knife at him and that he hit the victim two or three more times. The appellant did not hit the

victim after the victim fell onto the floor. The appellant said the victim “would have cut me

to death if I didn’t get him off me.”

The appellant testified that he went into the kitchen and rinsed the cut on his hand.

He said that he was “freaking out,” that he could not find his telephone, and that he did not

know how a table and a chair in the living room got overturned. The appellant checked the

victim for a pulse and nudged the victim with his foot, but the victim was dead. The

appellant said that he went to his neighbors’ apartment and that he told Nancy Brewer, “Hey,

I need you to do me a favor. . . . I need you to call 9-1-1 or call the cops for me if you will.

. . . A man just busted in my apartment and I think I’ve killed him.” Mrs. Brewer thought he

was intoxicated and told him to go back to his apartment. The appellant knocked on some

other doors, but no one answered. The appellant returned to his apartment, found his

telephone, and grabbed a beer and some cigarettes. He went outside, sat down, and called

911. He acknowledged that he told the 911 operator that the incident happened thirty

minutes prior to his call. However, he said he estimated the time.

The appellant testified that Officer Hill arrived and that he waved to the officer. The

appellant told Officer Hill that he needed some help and that “I think I’ve killed somebody.”

Officer Hill asked the appellant what he used to kill the person, and the appellant said a

baseball bat. The officer asked about the location of the bat, and the appellant told him that

the bat was in the apartment. The appellant and the officer went inside the apartment. The

appellant picked up an overturned table and realized that he should not touch anything. A

second officer arrived and stood just outside the door, and Officer Hill pulled splinters off

the doorframe. The appellant said he told Officer Hill, “What are you doing? . . . You’re

messing with the evidence, man. . . . Are you sure you have a right to be in here[?]” He said

that Officer Hill told the second officer, “Get this drunk out of here right now.”

The appellant testified that a detective arrived and told Officer Hill to arrest the

appellant. The appellant said he asked the detective, “You don’t even want to talk to me or

ask me what happened?” He said the detective told him, “I know you’re drunk. . . . We’re

going to take and put you in the police car, we are going to take you downtown . . . , and we

are going to have a talk.” Officer Hill handcuffed the appellant and put him into a patrol car.

The appellant saw his animals come out of the apartment and banged his head against a

window to get Officer Hill’s attention. He said that he complained to the officer about his

animals being outside and that the officer said, “All right. We’ll take care of it.” The

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appellant never told Officer Hill that he did not care what happened to the victim. The

appellant was treated at a hospital because his foot, which he had broken in April 2008, was

hurting. Then the appellant was returned to the police department. He said that as he was

about to get out of the patrol car, an officer looked down, pointed to the appellant’s shoe, and

said, “I think that is blood splatter.” The appellant said that the officer asked him, “What did

you do, kick somebody to death?” The appellant said he responded, “No, I didn’t kick

nobody to death. . . . I beat him with a bat.” The appellant said he did not tell the officer that

he was glad he beat the victim.

The appellant testified that he was “booked” and “put in front of a judge.” He said

that the commissioner kept asking if he murdered someone and that he said, “No, sir, I didn’t

murder nobody. . . . A man busted into my house and I defended myself.” The commissioner

asked the appellant if he was guilty of murder, and the appellant said, “No, sir. I didn’t mean

to hurt nobody, but . . . sometimes they get what they deserve.” The appellant explained, “I

meant that as in people that break the law and do things, breaking into people’s homes and

that type of thing, sometimes bad things happen to them because they are doing the wrong

thing, that is what I meant.” The appellant discussed his case with some of his cellmates.

However, he told them exactly what he told the jury. He said that Jamie Freeman was lying

and that Freeman “turned everything I said around pretty much.” He said that he did not

plant the knife in the victim’s hand and that he had never worked for a slaughterhouse.

On cross-examination, the appellant acknowledged that he allowed the victim into his

apartment, knowing the victim abused prescription drugs. The victim was angry when he left

the apartment on November 23, but the appellant was not angry. The appellant’s front door

was locked when the victim forced his way inside. Although the victim did not demand

money from the appellant, the appellant assumed the victim was there to rob him. The

appellant said that the victim was “coming at” him, that he blocked the victim, that he leaned

over, and that he picked up the bat. The appellant, using the bat, demonstrated for the jury

how he fought with the victim and testified about the following chain of events: The

appellant hit the left side of the victim’s face with the bat, and the victim stumbled. The

victim began “slinging” the knife at the appellant, and the knife hit the bat two or three times,

making a “ting ting” sound. The appellant hit the victim on the right side of his face, and the

victim hit the bat with the knife again. The appellant said that he “kicked the chair and stuff

over . . . because [the victim] was coming at me again” and that he “laid into [the victim] just

as hard as [he] could.” The victim fell onto the floor. The appellant denied hitting the victim

while the victim was on the floor and said the time between his killing the victim and calling

911 may have been fifteen minutes. He acknowledged that he talked with Freeman about the

case. He also acknowledged that he told Freeman he killed the victim with a baseball bat and

that some of Freeman’s testimony was true.

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On redirect examination, the appellant acknowledged that marks on the bat looked like

marks created by the victim’s knife hitting the bat. He also acknowledged that it was

possible he hit the back of the victim’s head as the victim was turning away. He said, “I

didn’t even think, it was just a reaction.”

On recross examination, the State asked the appellant why the police did not find

blood on his clothes. The appellant said he had been wearing shorts when he killed the

victim and that he put on a pair of pants before he left his apartment to get help. However,

he did not change his shirt. The State showed the appellant some knives collected from his

apartment, and the appellant acknowledged that some of them were Chef Deluxe knives. He

also acknowledged that the knife in the victim’s hand was a Chef Deluxe. The jury convicted

the appellant of second degree murder as a lesser-included offense of first degree

premeditated murder.

II. Analysis

A. Sufficiency of the Evidence

The appellant contends that the evidence is insufficient to support his conviction for

second degree murder because the evidence shows that he killed the victim in self-defense.

In the alternative, he asserts that the evidence shows he is guilty only of voluntary

manslaughter. The State argues that the evidence is sufficient to support the appellant’s

second degree murder conviction. We agree with the State.

Second degree murder is the knowing killing of another. Tenn. Code Ann. §

39-13-210(a)(1). 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. § 39-11-106(a)(20).

Tennessee Code Annotated section 39-11-611(b)(1) provides that

a person who is not engaged in unlawful activity and is in a

place where the person has a right to be has no duty to retreat

before threatening or using force against another person when

and to the degree the person reasonably believes the force is

immediately necessary to protect against the other’s use or

attempted use of unlawful force.

Self-defense is a fact question for the jury. State v. Clifton, 880 S.W.2d 737, 743 (Tenn.

Crim. App. 1994); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). When a

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defendant relies upon a theory of self-defense, it is the State’s burden to show that the

defendant did not act in self-defense. State v. Sims, 45 S.W.3d 1,10 (Tenn. 2001).

The appellant contends that the evidence shows he acted in self-defense because the

proof established that he repeatedly told the 911 operator and the police that the victim burst

into his apartment and that the victim attacked him with a knife. The appellant also contends

that the physical proof and his statements to police, although insensitive, do not contradict

his version of events.

Granted, the appellant has maintained since the night of the killing that the victim

forced his way into the apartment and attacked the appellant with a knife. However, Jamie

Freeman, the appellant’s cellmate for eight days, testified that the appellant claimed he had

been arguing with the victim about pills prior to the victim’s death. On the evening of

November 23, 2008, the victim came to the appellant’s apartment. Freeman said the

appellant demonstrated how he walked to the front door, picked up the bat, and hit the victim.

Dr. Li testified that the victim was struck repeatedly with enough force to break the victim’s

skull into pieces, and the victim’s injuries showed that the appellant continued to hit him

after he was lying on the floor. The appellant never told Freeman that the victim forced his

way into the apartment or that the victim tried to rob him. An open and broken hydrocodone

bottle was found near the victim, supporting Freeman’s claim that the victim and the

appellant had been arguing about pills. Although the police found a knife in the victim’s

hand, the appellant told Freeman that he thought he “put a knife in the wrong place.”

Moreover, the brand of the knife was Chef Deluxe, the same brand as many of the knives in

the appellant’s kitchen. The appellant contends that Freeman was impeached with his

criminal record and history of dishonesty. However, the jury, not this court, was in the best

position to judge the credibility of the witnesses. This court does not second-guess factual

determinations made by the jury, and it was within the jury’s province to reject the

appellant’s theory of self-defense. The fact that the jury convicted the appellant of the lesser-

included offense of second degree murder demonstrates that the jury carefully considered the

evidence. Taken in the light most favorable to the State, we conclude that the evidence is

sufficient to support the appellant’s conviction for second degree murder.

B. Motion to Suppress

Next, the appellant contends that the trial court erred by denying his motion to

suppress his statements. Specifically, the appellant is challenging his statements that he “did

not kick anybody[,] he had beaten [the victim] with the baseball bat and was glad that he did”

and that the victim “got what he deserved.” The appellant claims that the statements were

the product of custodial interrogation without Miranda warnings. He also contends that even

if the statements were not the product of custodial interrogation, they were still inadmissible

-12-

because their probative value was substantially outweighed by the danger of unfair prejudice.

The State argues that the trial court properly denied the motion to suppress. We agree with

the State.

The appellant filed a pretrial motion to suppress, arguing that the trial court should

suppress the statement he made in front of the group of officers and the statement he made

to the night commissioner because he was interrogated without receiving Miranda warnings.

Relying on State v. Sawyer, 156 S.W.3d 531 (Tenn. 2005), the appellant argued that the

statements were not the result of express questioning but were the result of police action

designed to elicit a response from him.

At the end of the first day of trial, the trial court held a jury-out hearing on the

appellant’s motion. During the hearing, Detective Satterfield testified that the appellant was

transported from his apartment to the police department and complained about needing

medical attention for a broken foot. Detective Satterfield decided that the appellant should

be transported in a patrol car to the hospital. While the appellant was sitting in the backseat

of the patrol car, Detective Satterfield and several other officers were standing around the

car. They were looking at the appellant’s boots, which appeared to have blood on them. One

of the officers made a comment to the other officers about keeping the boots as evidence.

Detective Satterfield stated that the appellant heard the comment and that the appellant said

that “he didn’t kick anybody, he beat them with a baseball bat and was glad that he did.”

Later, Detective Satterfield took the appellant before the night court commissioner to be

charged. Detective Satterfield and the prosecutor were in the courtroom with the

commissioner. The appellant was in the booking area and appeared in front of the

commissioner via video monitor, but he could hear and respond to what was being said in the

courtroom. Detective Satterfield said that while the commissioner was advising the appellant

of the charges, the appellant stated that the victim “deserved what he got.”

On cross-examination, Detective Satterfield acknowledged that he testified at the

appellant’s preliminary hearing. He also acknowledged that during the hearing, he testified

that the appellant said in front of the commissioner that “he didn’t want to hurt [the victim],

but [the victim] deserved what he got.” Detective Satterfield specifically remembered the

appellant saying he did not want to hurt the victim. The appellant had not received Miranda

warnings prior to making the statements. The trial court concluded, “I can’t help that he’s

drunk and starts spitting stuff out that you wish he hadn’t spit out, but I do not see that there

has been any police activity that elicited any of these comments.”

In reviewing a trial court’s determinations regarding a suppression hearing,

“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of

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fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact

in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.

Nevertheless, appellate courts will review the trial court’s application of law to the facts

purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the

State, as the prevailing party, is “entitled to the strongest legitimate view of the evidence

adduced at the suppression hearing as well as all reasonable and legitimate inferences that

may be drawn from that evidence.” Odom, 928 S.W.2d at 23.

Both the Fifth Amendment to the United States Constitution and article I, section 9

of the Tennessee Constitution provide protection against compulsory self-incrimination. To

this end, “‘once warnings have been given, . . . if the individual indicates in any manner, at

any time prior to or during questioning, that he wishes to remain silent, the interrogation must

cease. At that point, he has shown that he intends to exercise his Fifth Amendment

privilege.’” State v. Crump, 834 S.W.2d 265, 269 (Tenn. 1992) (quoting Miranda v.

Arizona, 384 U.S. 436, 473-74 (1966)). Under Miranda,

“interrogation”. . . refers not only to express questioning, but

also to any words or actions on the part of the police (other than

those normally attendant to arrest and custody) that the police

should know are reasonably likely to elicit an incriminating

response from the suspect. The latter portion of this definition

focuses primarily upon the perceptions of the suspect, rather

than the intent of the police. This focus reflects the fact that the

Miranda safeguards were designed to vest a suspect in custody

with an added measure of protection against coercive police

practices, without regard to objective proof of the underlying

intent of the police. A practice that the police should know is

reasonably likely to evoke an incriminating response from a

suspect thus amounts to interrogation. But, since the police

surely cannot be held accountable for the unforeseeable results

of their words or actions, the definition of interrogation can

extend only to words or actions on the part of police officers that

they should have known were reasonably likely to elicit an

incriminating response.

Rhode Island v. Innis, 446 U.S. 291, 301-02 (1980) (footnotes omitted).

Regarding the first statement, the officers were standing around the appellant, looking

at his boots, and discussing whether they should collect the boots as evidence. The

conversation was between them and did not invite a response from the appellant. Moreover,

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there is no indication that the officers should have known that their conversation was

reasonably likely to elicit an incriminating statement from him. Therefore, we agree with the

trial court that the appellant voluntarily made the statement and that it was not the product

of a custodial interrogation.

Regarding the appellant’s statement to the night commissioner, in Sawyer, 156 S.W.3d

at 532, police officers arrested the defendant pursuant to a warrant for aggravated sexual

battery. They transported him to the police department; took him into a detective’s office;

and seated him facing the detective, who was sitting behind a desk. Id. The detective then

read the arrest warrant and the affidavit of complaint to the defendant. Id. The arrest warrant

provided only that the defendant was charged with aggravated sexual battery. Id. at 532-33.

The affidavit of complaint, however, detailed the facts of the crime. Id. at 533. After the

detective read the affidavit of complaint, but before he read Miranda warnings to the

defendant, the defendant admitted to rubbing the victim’s leg but denied vaginal contact as

alleged in the affidavit. Id. In determining whether the reading of the affidavit amounted

to an “interrogation,” our supreme court stated the following:

Some jurisdictions have held that an officer’s statement advising

an accused of the specific charges is not the functional

equivalent of interrogation. See e.g., Enoch v. Gramley, 70 F.3d

1490, 1499-1500 (7th Cir. 1995) (officer advised the defendant

that he was charged with murder and identified the victim);

People v. Celestine, 9 Cal. App. 4th 1370, 12 Cal. Rptr. 2d 179,

181 (Cal. Ct. App. 1992) (officer informed the defendant that he

was under arrest for “possession of rock cocaine for sale”);

United States v. Brown, 737 A.2d 1016, 1021 (D.C. 1999)

(officer told the defendant that he was charged with murder and

identified the victim); People v. Parker, 344 Ill. App. 3d 728,

801 N.E.2d 162, 167, 279 Ill. Dec. 870 (Ill. App. Ct. 2003)

(officer read arrest warrant to the defendant); Commonwealth v.

Lark, 505 Pa. 126, 477 A.2d 857, 861 (Pa. 1984) (officer

advised the defendant of his rights and the charges); Gates v.

Commonwealth, 30 Va. App. 352, 516 S.E.2d 731, 733 (Va. Ct.

App. 1999) (officer read arrest warrant to the defendant). Had

the officers in this case read only the warrant to the defendant,

we would agree.

Id. at 534-35; see also State v. Randy C. White, No. W2005-01794-CCA-R9-CD, 2006 Tenn.

Crim. App. LEXIS 371, at **10-11 (Jackson, May 4, 2006) (stating, “While the Defendant

was informed of why he was under arrest, [Officer] Dicus made no further attempt to engage

-15-

the Defendant in a conversation or discuss the specifics of the arrest so as to prompt a

response from the Defendant.”); State v. Richard Frank D’Antonio, No.

M2003-03052-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 1152, at *40 (Nashville, Oct.

26, 2005) (stating that “defendant’s statement in this case was not directly responsive to the

charges and were unforeseeable results of stating the crime charged and the possible range

of punishment”).

Unlike the facts in Sawyer, it was the night commissioner, not a police officer, who

was advising the appellant of the charge. Moreover, the appellant was in a separate room

from the commissioner and the detective; he was not sitting in an interrogation-type

environment in a police officer’s office. Finally, nothing indicates that the facts and

circumstances in this case went “beyond merely reading the arrest warrant or otherwise

informing the defendant of the charge.” Sawyer, 156 S.W.3d at 535. Therefore, the evidence

does not preponderate against the trial court’s finding that the appellant’s statement was not

the result of a custodial interrogation.

Regarding the appellant’s claim that the statements were inadmissible under Rule 403,

Tennessee Rules of Evidence, because their probative value was substantially outweighed

by the danger of unfair prejudice, the appellant failed to make that argument at trial. See

Tenn. R. App. P. 36(a). In any event, the appellant had been charged with intentionally

killing the victim. In our view, his stating that he was glad he beat the victim and that the

victim got what he deserved could be probative to his intent. Moreover, Detective Satterfield

testified on cross-examination at the suppression hearing that he specifically remembered the

appellant stating on the night of the crimes that he did not want to hurt the victim, reducing

the prejudicial effect of the statements. Therefore, we cannot say that the probative value of

the evidence was substantially outweighed by the danger of unfair prejudice.

C. State’s Referring to the Deceased as “the Victim”

The appellant contends that the trial court erred by allowing the prosecutor to refer to

the deceased as the “victim” throughout the trial. Specifically, he argues that allowing the

prosecutor to refer to the deceased as “the victim” resulted in the State’s invading the

province of the jury. The State argues that the trial court did not err. We agree with the

State.

On the morning of the second day of trial, defense counsel made an oral motion that

the trial court not allow the State to refer to the deceased as “the victim.” The prosecutor

argued that “you can be a victim of a natural disaster and that’s not a crime. I don’t know

that victim denotes that fact that a crime has befallen you.” Without any explanation, the trial

court ruled that the prosecutor could refer to the deceased as “the victim.” According to the

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appellant’s brief, the prosecutor and the State’s witnesses subsequently referred to the

deceased as “the victim” forty-nine times.

In support of his argument that the trial court erred, the appellant cites State v.

Nomura, 903 P.2d 718, 721 (Haw. Ct. App. 1995), in which the Hawaii Intermediate Court

of Appeals held that the trial court erred by referring to the complaining witness as “the

victim” during the jury instructions because “the term ‘victim’ is conclusive in nature and

connotes a predetermination that the person referred to had in fact been wronged.” The

appellant also cites Jackson v. State, 600 A.2d 21, 24 (Del. 1991), in which the Delaware

Supreme Court held,

The term “victim” is used appropriately during trial when there

is no doubt that a crime was committed and simply the identity

of the perpetrator is in issue. We agree with defendant that the

word “victim” should not be used in a case where the

commission of a crime is in dispute.

Addressing the cases cited by the appellant, the State first relies on State v. Mateo,

262 P.3d 669, ___ (Haw. Ct. App. 2011), a case more akin to the case at hand, in which the

Hawaii Intermediate Court held that the trial court did not err by allowing the State to refer

to the deceased as “the victim,” stating,

Mateo’s reliance on State v. Nomura, 79 Hawai’i 413, 903 P.2d

718 (App. 1995), for the proposition that referring to a

complaining witness as “victim” is prejudicial is misplaced. This

court in Nomura based its holding on Hawaii Rules of Evidence

Rule 1102, which forbids the court from commenting on the

evidence. Nomura, 79 Hawai’i at 417, 903 P.2d at 722. In the

instant case, the circuit court made no such comment on the

evidence, but rather only the State and a witness referred to

Rafol as “victim.”

In Nomura, this court held that the term “victim” includes a

“person who is the object of a crime as the victim of a robbery

is the person robbed” or “one that is acted on and . . . adversely

affected by a force or agent or one that is injured.” Nomura, 79

Hawai’i at 416, 903 P.2d at 721 (internal quotation marks,

citations, brackets, and ellipsis in original omitted). At most,

referring to Rafol as the “victim” concludes that Rafol was

harmed by another, an issue that is not in dispute in this case.

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The State also relies on State v. William W. Chism, II, No. 54895-6-I, 2005 Wash.

App. LEXIS 3228, at **8-9 (Wash. Ct. App. Dec. 27, 2005), in which the Washington Court

of Appeals stated,

We disagree with the Delaware [court’s holding in Jackson v.

State]. Using the term “victim” is not the same as expressing an

opinion that the defendant was guilty of a crime; the term

“victim applies to anyone who suffers either as a result of

ruthless design or incidentally or accidentally.” WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY 2550 (1993).

We agree with the State that the trial court did not err by allowing the prosecutor to

refer to Steele as “the victim.” The State’s theory of the case was that the appellant did not

kill Steele in self-defense, and the prosecutor’s use of “the victim” reflected that party’s view

of the evidence. In any event, the trial court instructed the jury that facts alleged by counsel

were not evidence. Ordinarily, juries are presumed to follow the instructions given by a trial

court. State v. Young, 196 S.W.3d 85, 111 (Tenn. 2006). Therefore, the appellant is not

entitled to relief.

D. Excessive Sentence

Finally, the appellant contends that his sentence is excessive because the trial court

misapplied an enhancement factor and should have applied two mitigating factors. The State

argues that the trial court properly sentenced the appellant. We agree with the State.

At the appellant’s sentencing hearing, Karlon Steele, the victim’s mother, testified that

the victim’s death had been devastating and “almost unbearable.” The victim’s grandchild

was born after his death, and Mrs. Karlon expressed regret that the victim would never get

to know or hold the child. After the victim’s death, Mrs. Karlon was treated for depression.

She said that she missed the victim’s loyalty and that he was loving, compassionate, and very

protective of his family. She said that the appellant’s lack of remorse was intolerable and

that the appellant could have gotten out of the apartment without killing the victim if the

appellant had feared for his life. She asked that the trial court sentence the appellant to

twenty-five years in confinement.

Charles Steele, the victim’s father, testified that he had been devastated by the

victim’s death. He said that he lived alone and that the victim “was always at my beckon

call.” The victim helped Mr. Steele when Mr. Steele had an operation by cooking for him

and administering his medication. Mr. Steele stated that the appellant could have disabled

the victim by hitting him one time and that the appellant’s hitting the victim repeatedly

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warranted “putting him away forever as far as I’m concerned.” Mr. Steele said that he and

his wife separated after the victim’s death and that the loss of the victim had had a “ripple

effect” on the victim’s brothers and sisters. The victim was loyal and loving and was just

getting to know his son when he was killed.

Ann Toy testified for the appellant that she had known him for nine years and that she

had been his friend and landlord. She said that the appellant was like a part of her family;

that he was kind, loving, and gentle; and that she never saw him exhibit any violence. After

Toy’s husband died, the appellant checked on Toy and made sure she ate. He also did yard

work for her. She said that the appellant “feels like he’s my child” and that his mother died

when he was a boy. She asked that the appellant not receive the maximum sentence.

The appellant testified that his mother died when he was two years old and that he had

twelve brothers and sisters. After his mother’s death, his father put the children in an

orphanage. When the appellant was ten years old, his father remarried and took some of the

children, including the appellant, out of the orphanage. Five years later, the appellant’s

father died of lung cancer. The appellant moved to Alaska and lived with a cousin. However,

his cousin was a homosexual and made advances toward him, so he left. The appellant was

in the ninth grade at the time, quit school, and began working. In 1985, he returned to

Tennessee and began working as a roofer for Bagsby Roofing. In 1992, the appellant went

to visit one of his sisters in California and was hit by a car while trying to cross an eight-lane

road. He said that the accident “messed [him] up badly,” that it took about three years for

him to recover, and that he still experienced pain. The appellant said that he had “always

drunk beer,” and he acknowledged that he had struggled with his addiction to alcohol. He

said that he was sorry the victim died but that he did not purposely kill the victim and

defended himself.

On cross-examination, the appellant acknowledged that he was arrested for assault in

Alaska in 1983 but said that the charge was later dismissed. He said that in 1992, he was

arrested for assault in Tennessee when he and a man “argued a little bit” and the man pulled

a gun on him. The appellant was released on bond and went to California, where he was hit

by a car. He denied that he was intoxicated at the time of the accident but said that he had

consumed two beers. The appellant returned to Tennessee and pled guilty to the assault

charge in 1994. The appellant was placed on probation but could not complete probation

because he was using crutches and was homeless. He denied that the victim was providing

him with pills in exchange for a place to stay and said that “I ain’t never sold drugs, been

around drugs or nothing. I do drink.” Upon being questioned by the trial court, the appellant

acknowledged that he occasionally took Lortab for pain he still experience from being hit by

the car.

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The State introduced the appellant’s presentence report into evidence. According to

the report, the then forty-nine-year-old appellant was divorced and completed the eighth

grade. In the report, the appellant stated that he began using alcohol when he was nine years

old, tried marijuana twice when he was fourteen years old, and tried LSD twice when he was

sixteen years old. The appellant reported that when he was forty years old, he began taking

Lortab for pain as needed. The appellant described his mental health as “good” and his

physical health as “poor,” stating that he suffered from gout, diabetes, high blood pressure,

pain in his legs due to metal pins, constant back pain, chronic constipation, high cholesterol,

and memory loss. He also reported that his diet and drinking alcohol caused extreme

perspiration. According to the report, the appellant took various medications for his

ailments. The report shows that the appellant worked for Richards Framing from 2003 to

2007 and for Bagsby Roofing from 1985 to 2007.

The report shows that the appellant has been convicted of numerous crimes since

1985. Specifically, the appellant has been convicted of disorderly conduct, violating the

driver’s license law, larceny, public intoxication, driving on a suspended license, DUI,

assault, misdemeanor theft, and criminal trespass. The report also shows that the appellant

violated his probation for the 1994 assault conviction and the DUI conviction.

The trial court noted that it had considered the evidence at trial and sentencing, the

presentence report, the victim impact statement, the sentencing principles outlined in

Tennessee Code Annotated section 40-35-103, the nature and characteristics of the criminal

conduct involved, enhancement and mitigating factors, the appellant’s testimony at trial and

sentencing, and the appellant’s potential for rehabilitation or treatment. The trial court

applied enhancement factor (1), that the “defendant has a previous history of criminal

convictions or criminal behavior, in addition to those necessary to establish the appropriate

range.” Tenn. Code Ann. § 40-35-114(1). The court noted that all but one of the appellant’s

prior convictions were for nonviolent offenses and that most of them were alcohol-related.

The court stated that it was not going to “place nearly as significant a weight on [the factor]

that it might otherwise place on it.” The court also noted that the appellant had violated

probation twice and that “that can certainly add some weight to his criminal history.” The

trial court applied enhancement factor (5), that the “defendant treated, or allowed a victim

to be treated, with exceptional cruelty during the commission of the offense,” to the

appellant’s sentence because “the number of blows struck to Mr. Steele were unnecessary

to incapacitate him.” Tenn. Code Ann. § 40-35-114(5). However, the trial court did not

place significant weight on the factor because the victim may have been unconscious and,

therefore, “unaware of the cruelty being perpetrated upon him.” The trial court also applied

enhancement factor (9), that the defendant possessed or employed a deadly weapon during

the commission of the offense, and placed significant weight on the factor. See Tenn. Code

Ann. § 40-35-114(9).

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In mitigation, the trial court applied factor (11), that the “defendant, although guilty

of the crime, committed the offense under such unusual circumstances that it is unlikely that

a sustained intent to violate the law motivated the criminal conduct,” but gave the factor little

weight. Tenn. Code Ann. § 40-35-113(11). Finally, the trial court considered “the situation

in which [the appellant] was raised” and his employment history. See Tenn. Code Ann. § 40-

35-113(13). In consideration of the enhancement and mitigating factors and the need to

avoid depreciating the seriousness of the offense, the trial court sentenced the appellant to

twenty years in confinement, the midpoint in the range for a Range I, standard offender

convicted of a Class A felony. See Tenn. Code Ann. § 40-35-112(a)(1). The sentence was

to be served at one hundred percent.

The appellant contends that the trial court erred by applying enhancement factor (5)

because the appellant’s killing the victim with a baseball bat, “while unpleasant,” did not

amount to exceptional cruelty. The appellant also contends that the trial court should have

applied mitigating factors (2), that the “defendant acted under strong provocation,” and (3),

that “[s]ubstantial grounds exist tending to excuse or justify the defendant’s criminal conduct,

though failing to establish a defense.” Tenn. Code Ann. § 40-35-113(2), (3).

Appellate review of the length, range or manner of service of a sentence is de novo.

See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers

the following factors: (1) the evidence, if any, received at the trial 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 statistical information provided by the administrative office of the courts as to

sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant in

his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.

§§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The

burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn. Code

Ann. § 40-35-401, Sentencing Comm’n Cmts. Moreover, if the record reveals that the trial

court adequately considered sentencing principles and all relevant facts and circumstances,

this court will accord the trial court’s determinations a presumption of correctness. Id. at (d);

Ashby, 823 S.W.2d at 169.

In determining a specific sentence within a range of punishment, the trial court should

consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of

punishment is the sentence that should be imposed, because the

general assembly set the minimum length of sentence for each

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felony class to reflect the relative seriousness of each criminal

offense in the felony classifications; and

(2) The sentence length within the range should be

adjusted, as appropriate, by the presence or absence of

mitigating and enhancement factors set out in §§ 40-35-113 and

40-35-114.

Tenn. Code Ann. § 40-35-210(c).

Although the trial court should also consider enhancement and mitigating factors, the

statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; State

v. Carter, 254 S.W.3d 335, 343-44 (Tenn. 2008). We note that “a trial court’s weighing of

various mitigating and enhancement factors [is] left to the trial court’s sound discretion.”

Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select any sentence

within the applicable range so long as the length of the sentence is ‘consistent with the

purposes and principles of [the Sentencing Act].’” Id. at 343. “The appellate courts are

therefore left with a narrower set of circumstances in which they might find that a trial court

has abused its discretion in setting the length of a defendant’s sentence.” Id. at 345-46.

Moreover, they are “bound by a trial court’s decision as to the length of the sentence imposed

so long as it is imposed in a manner consistent with the purposes and principles set out in

sections -102 and -103 of the Sentencing Act.” Id. at 346.

The appellant asserts that the trial court misapplied enhancement factor (5) regarding

the victim’s being treated with exceptional cruelty. In State v. Arnett, 49 S.W.3d 250, 258

(Tenn. 2001), our supreme court concluded that the exceptional cruelty factor is applicable

in cases of “extensive physical abuse or torture.” Before a trial court may apply enhancement

factor (5), the facts of the case must support a “finding of cruelty under the statute ‘over and

above’ what is required to sustain a conviction for [the] offense.” Arnett, 49 S.W.3d at 258.

In the present case, the evidence shows that the appellant beat the victim extensively on the

back of his head, breaking his skull into pieces, causing him to bite his tongue, and

splattering blood and “goo” throughout the living room. The fact that a carpet imprint was

on the front of the victim’s face demonstrates that the appellant continued to beat the victim

after he fell onto the floor. The beating in this case went over and above what was required

for second degree murder. Id. at 258. Therefore, the trial court properly applied enhanced

factor (5).

Regarding mitigating factors (2), that the appellant acted under strong provocation,

and (3), that substantial grounds exist tending to excuse or justify the criminal conduct, the

trial court specifically rejected those factors, stating as follows:

-22-

The Court believes that an argument occurred; [it]

believes that it legitimately could have occurred over, not drug

dealing, but the use of drugs, the pills - I believe one of the pills

or one of the pill bottles that were found was Lortab or

something similar to that, and Mr. Rittenberry acknowledged

that he was taking Lortabs for his pain medication . . . . I think

they were both just drunk and got into an argument, and I think

the evidence supports that Mr. Rittenberry got fed up with it and

took the baseball bat and beat him. . . . I just don’t think the

evidence supports that there ever was a defense to be raised in

this case. I do believe that the knife was put there after the fact.

. . . I think it was in part a drunken argument, and there may

have been an issue over him not being able to provide Mr.

Rittenberry more Lortabs or whatever, but I think they just - the

alcohol played a factor into it, much further than was necessary.

Based upon our de novo review, we conclude that the trial court had sufficient

grounds to reject the appellant’s claim that the court should apply mitigating factors (2) and

(3) to his sentence. Therefore, the appellant’s twenty-year sentence is not excessive.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the trial

court.

___________________________________

NORMA MCGEE OGLE, JUDGE

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