The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
DECEMBER 1994 SESSION
June 25, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
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5
STATE OF TENNESSEE, 5
Appellee 5 No. 03C01-9404-CR-00144
5
vs. K SULLIVAN COUNTY
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5 Hon. Edgar P. Calhoun, Judge
CLYDE DEWAYNE WESEMANN, 5
Appellant 5 (1st Degree Murder)
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FOR THE APPELLANT: FOR THE APPELLEE:
Stephan M. Wallace Charles W. Burson
District Public Defender Attorney General & Reporter
P.O. Box 839
Blountville, TN. 37617 Merrilyn Feirman
Assistant Attorney General
Greg L Lauderback Criminal Justice Division
Attorney at Law 450 James Robertson Parkway
Lauderback & Lauderback Nashville, TN 37243-0493
434 Shelby Street
Kingsport, TN. 37660 H. Greeley Wells, Jr.
District Attorney General
Rebecca H. Davenport
Asst Dist. Attorney General
Blountville, TN. 37617
OPINION FILED: _______________________
AFFIRMED
Robert E. Burch
Special Judge
OPINION
Following a jury trial, Appellant was found guilty of Murder
in the First Degree, Aggravated Burglary and Theft of less than
five hundred ($500)Dollars. The jury sentenced Appellant to life
for the murder and the trial court sentenced him to ten years for
the burglary and eleven months twenty-nine days for the theft.
The trial court ruled that the burglary sentence shall be served
consecutively to the murder sentence. He appeals of right to
this Court assigning four issues for review:
1). Whether the proof of deliberation was insufficient
to sustain a conviction of murder in the first degree.
2). Whether evidence of a prior theft from the victim
by the appellant was improperly admitted.
3). Whether the confession of the appellant was
improperly admitted.
4). Whether the trial court erred in sentencing the
appellant in that mitigating factors not listed in the statute
were not considered and whether consecutive sentencing was
proper.
We find that none of these issues constitute prejudicial
error and affirm the conviction.
FACTS
On June 11, 1992, at approximately eight p.m., Mrs. Virginia
Trusley was found dead in the living room of her home in rural
Sullivan County. The house had been ransacked and Mrs. Trusley
had apparently been shot as she dozed in front of the television
with her Bible open on her lap.
Very quickly, suspicion centered upon Appellant, who had
mowed Mrs. Trusley’s yard. Appellant’s girlfriend led police to
an out-of-the-way bridge under which she had watched Appellant
hide the murder weapon, which had been stolen from the home of
the deceased. When brought in for questioning, Appellant
confessed to this crime.
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In his confession, Appellant stated that he entered the
house about five a.m. on the day that the body was discovered by
breaking the glass in a back door. He searched the kitchen but
found nothing which he considered worth taking. Appellant then
walked down the hall to the bedroom. First searching the closet,
he found a .410 shotgun. Upon discovering the shotgun, Appellant
walked back up the hall to the living room where Mrs. Trusley was
sleeping. He aimed the shotgun at her and pulled the trigger.
The shot entered Mrs. Trusley’s temple, instantly killing her.
Appellant stated that the shot surprised him because he “didn’t
know for sure” that the gun was loaded. Appellant stated that he
immediately regretted what he had done. After killing Mrs.
Trusley in her sleep, Appellant resumed searching the house.
After the search, he left with the only possession of the
deceased which he considered valuable, the shotgun.
After leaving the house, Appellant then went home and went
to bed. The following day, Appellant talked to several people
about selling the shotgun. The police questioned Appellant
briefly but he denied any knowledge of the murder. The following
day, Appellant learned that the police were again searching for
him. Since Appellant’s car would not start, he called his
girlfriend who drove him to the Sensabaugh Hollow bridge where he
hid the shotgun.
SUFFICIENCY OF PROOF OF DELIBERATION
In his first issue presented for review, Appellant insists
that the evidence introduced at his trial is not sufficient as a
matter of law to sustain a conviction of murder in the first
degree.
Standard of Review
On appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate
inferences which may be drawn therefrom. State v. Cabbage 571
S.W.2d 832 (Tenn. 1978). A verdict of guilt, approved by the
3
trial judge, accredits the testimony of the State's witnesses and
resolves all conflicts in testimony in favor of the State. State
v. Townsend 525 S.W.2d 842 (Tenn. 1975). The presumption of
innocence is thereby removed and a presumption on guilt exists on
appeal. Anglin v. State 553 S.W. 2d 616 (Tenn. Crim. App. 1977).
The defendant has the burden of overcoming this presumption.
State v. Brown 551 S.W. 2d 329 (Tenn. 1977).
When the sufficiency of the evidence is challenged on
appeal, the test is whether, after reviewing the evidence in a
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt. State v. Duncan 698 S.W. 2d 63 (Tenn. 1985);
Rule 13(e), T.R.A.P.
Analysis
In this appeal, able counsel for Appellant have sagely
narrowed the focus of their evidentiary sufficiency attack upon
the single element of deliberation. Under the law as it existed
at the time of this crime, if this essential element of the crime
of murder in the first degree was not established by the proof, a
conviction of first degree murder could not stand.
At the time of the commission of this crime, first degree
murder not committed in the perpetration of a specific felony
required the "intentional, premeditated and deliberate killing of
another." T.C.A.§ 39-13-202 (a)(1) (1992 Supp.). A death caused
by the intentional act of another was then and is now presumed to
be second degree murder. State v. Brown 836 S.W.2d 530, 543
(Tenn. 1992). Thus, at the time of the trial of this case, the
State must have proven premeditation and deliberation to raise
the offense to first degree murder. Id. Premeditation
necessitates "the exercise of reflection and judgment," T.C.A.§
39-13-201(b)(2) (1992 Supp.), requiring "a previously formed
design or intent to kill." State v. West 844 S.W.2d 144, 147
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(Tenn. 1992). Deliberation, on the other hand, was defined as a
"cool purpose . . . formed in the absence of passion." Brown, 836
S.W.2d at 538. It involved the process of weighing matters such
as the wisdom of proceeding with the killing, the manner in which
it will be accomplished, and the likely consequences if
apprehended. Brown 836 S.W.2d at 540-41. Deliberation also
required "some period of reflection, during which the mind is
free from the influence of excitement." Id. The deliberation and
premeditation must be akin to the deliberation and premeditation
shown for a murder performed by poisoning or lying in wait. Brown
836 S.W.2d at 539 (quoting Rader v. State 73 Tenn. 610, 619-620
(1880))
No specific time is required to form the requisite
deliberation. State v. Gentry 881 S.W.2d 1(Tenn. Crim. App.
1993). Deliberation is present when the circumstances suggest
that the murderer contemplated the manner and consequences of his
act. West 844 S.W.2d at 147. Though similar, deliberation and
premeditation are defined separately and are distinct elements of
the crime of murder in the first degree. See State v. Brooks 880
S.W.2d 390, 392-93 (Tenn. Crim. App. 1993). Each may be inferred
from the circumstances where those circumstances affirmatively
establish that the defendant premeditated his assault and then
deliberately performed the act. State v. Richard Nelson
(unreported) 1993 Tenn. Crim. App., No. 02C01-9211-CR-00251
(Tenn. Crim. App., at Jackson, Oct. 13, 1993). This court has
previously held that the holding in Brown requires "proof that
the offense was committed upon reflection, 'without passion or
provocation,' and otherwise free from the influence of
excitement" before a second degree, intentional murder can be
elevated to murder in the first degree. State v. David L. Hassell
(unreported) 1992 Tenn. Crim. App., No. 02C01-9202-CR-00038, slip
op. at 3 (Tenn. Crim. App., at Jackson, Dec. 30, 1992). The
5
circumstances must suggest that the murderer reflected on the
consequences of the act and that the thought process took place
in a cool mental state. State v. David Hassell, supra.
The elements of premeditation and deliberation were
questions for the jury and may have been inferred from the
circumstances surrounding the killing. State v. Gentry, supra.
Still, a jury may not engage in speculation. State v. Bordis 905
S.W.2d 214, 222 (Tenn. Crim. App.1995).
Premeditation and deliberation, like intent to kill, are
subjective states of mind. Often there is no witness to the
killing; and even if there is a witness, the killer does not
always speak aloud what is in his mind. Therefore, the existence
of the facts of premeditation and deliberation must be determined
from the defendant's conduct (so far as we can learn of it,
usually from circumstantial evidence) in the light of the
surrounding circumstances. Substantive Criminal Law, 2nd, LaFave
and Scott (1986) at Section 7.7.
We now examine the facts of this case in light of the above
authorities.
The only proof of deliberation in this case comes from the
physical evidence found in the house of the deceased and from the
confession of the appellant.
Appellant’s statement indicated that he approached
Deceased’s home about five a.m. and found her asleep in a chair
in the living room(she could be seen from the door). Entry was
accomplished by forcing a screen door and breaking the glass in
the door. In his signed statement, Appellant states that he does
not remember what he used to break the glass but police notes of
the statement reflect that Appellant said a garden tool container
was used. The physical evidence indicates that it may have been
a can of paint, the top of which came loose during the process.
After entry, Appellant determined that the deceased remained
asleep.
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Although not in his signed statement, police notes indicate
that Appellant stated that as soon as he “pulled the screen
door”, he “went berserk”. In his signed statement, Appellant
indicated that he was “very anxious” that the deceased would wake
up.
The signed statement then reflects that Appellant opened the
back door and went into the kitchen. He then searched all of the
kitchen cabinets but failed to find anything which he considered
worth taking. Appellant then walked past the deceased into the
bedroom. He looked into the closet and found the .410 shotgun.
Appellant took the shotgun, walked back up the hall to the living
room where the deceased was asleep, aimed the shotgun at her and
pulled the trigger. In his signed statement, Appellant stated
both that he did not know “for sure that the gun was loaded” and
that he “figured the gun was loaded” because county people often
keep a gun loaded so that it may be used quickly, if needed. In
his statement, Appellant stated that he “immediately regretted
shooting her”. If this is true, subsequent facts give no
indication of it. After killing the deceased in her sleep,
Appellant searched the living room, then returned to the kitchen
where he searched a hutch. He then returned to the bedroom from
whence he had taken the shotgun and searched that room, including
the closet where he had found the gun. Upon concluding his
search and finding nothing which he considered valuable,
Appellant returned to the kitchen and used a towel to wipe the
house for fingerprints. He then took the shotgun and left the
house. After trying to sell the shotgun, Appellant disposed of
it under a culvert when he heard that the police had asked about
him.
Exhibits ## 24 through 42 (pictures of the entry and inside
of the house) are instructive. From these pictures, it can be
determined that the deceased kept a neat house, with everything
in its place with the possible exception of some personal papers
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on the kitchen table. It can also be determined that Appellant
methodically searched the house looking for items of value. He
threw the contents of the dresser drawers on the floor but
otherwise disturbed very little other than he left the drawers
open. We note that nothing has been knocked over in spite of
there being numerous small items on the kitchen counter and the
end table in the living room.
In looking at the evidence to determine Appellant’s state of
mind at the time of the killing, we initially note that he said
he went “berserk” as soon as he entered the residence. We do not
know what meaning Appellant ascribes to that word, but it seems
unlikely to be the dictionary definition. The word “berserk”
means “destructively or frenetically violent; deranged”. American
Heritage Dictionary of the English Language American Heritage
Publishing Co.,Inc. New York 1969. In fact, the word has its
derivations in Norse mythology and describes warriors who were
considered to be so uncontrollably inflamed with the fury of
fighting that they were dangerous to friend and foe alike. These
warriors shunned coats of chain mail armor in favor of a bear
skin fastened over one shoulder. They were thus called
“berserkers”, from the Norse words for “bear” and “shirt”. Funk,
Charles E., Litt.D. Thereby Hangs a Tale, Stories of Curious Word
Origins, Harper & Row New York 1950. The word connotes
uncontrollable frenzy. We see no evidence of any such frenzy in
the photographs of the crime scene nor do we detect any
indication of it in Appellant’s narrative of the killing. In the
only other mention of his mental state prior to the killing,
Appellant said he was “very anxious”. This is certainly an
understandable state of mind on the part of one who is
burglarizing the occupied house of another but it is certainly
not berserk. We must conclude, therefore, that Appellant’s
meaning of berserk is not that shared by the population in
general or that he was being untruthful.
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The events narrated by Appellant and the photographs in fact
paint quite a different story. The appellant entered the house,
methodically searched the kitchen then proceeded to the bedroom
where he found the shotgun in a closet. Up until this point, we
have no difficulty accepting the fact that Appellant had no
intention to kill the deceased but only to steal her belongings.
We note, however, that it was at this point that Appellant
temporarily abandoned his methodical search of the house for
items to steal and walked back down the hall with the shotgun.
The only motive for this action which can be derived from the
proof is that Appellant left the bedroom with the intention of
shooting the deceased. In light of subsequent events, there
could have been no other reason for his action. Therefore,
Appellant had formed the intention to kill before he left the
bedroom and walked up the hall to the living room. He certainly
had an opportunity for premeditation and deliberation.
These circumstances “affirmatively establish that the defendant
premeditated his assault and then deliberately performed the
act”. State v. Richard Nelson, supra. For these circumstances to
fail to establish deliberation, one would have to assume that
Appellant was simply passing the vicinity of the deceased on
another errand when he spontaneously decided to shoot her. This
explanation defies logic. There is absolutely no indication of
any mental state except that of calm deliberation. The pictorial
exhibits show that Appellant methodically searched the house both
before and after the shooting. Nothing was knocked over nor
displaced, only the contents of drawers and cabinets examined.
The only indications of the search of the house were the cabinets
and drawers having been left open and the contents thereof having
been thrown to the floor. The facts negate any agitation on the
part of Appellant. The term “in cold blood” aptly describes the
circumstances of this killing. The circumstances affirmatively
establish that the murderer reflected on the consequences of the
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act and that the thought process took place in a cool mental
state. See State v. David Hassell, supra.
In his signed statement, Appellant stated that he pulled the
trigger, not knowing for sure that the gun was loaded (emphasis
supplied). He stated that it surprised him when the gun went
off. Appellant gave as the reason for his action, “I shot her
because I never killed anyone before”. A note to his statement,
which was not signed by Appellant but was presented to the jury
added the phrase, “...and I wanted to know what it felt like”.
Apparently, this was the “consequences” of the act upon which he
reflected before he killed the deceased. In another part of
Appellant’s unsigned statements to the police, he admitted that
he expected the gun to be loaded because country people who keep
guns for protection usually do keep them loaded. Certainly the
fact that Appellant stated that he did not “know for sure that
the gun was loaded” is not indicative of a lack of deliberation.
If he actually thought the gun might not be loaded, we cannot
imagine any reason at all for his trip back up the hall.
For the reasons above stated, we are convinced that the
facts affirmatively establish that this murder was accomplished
only after both premeditation and deliberation. The issue is
without merit.
ADMISSION OF STATEMENT
We next deal with Appellant’s third issue because it is
necessary to our examination of his second issue.
Appellant submits that the trial court erred when it refused
to suppress Appellant’s statement or, at least, redact same.
Standard of Review
A determination by the trial court that a confession has
been given voluntarily and without coercion is binding upon the
appellate court in the absence of a showing that the evidence
preponderates against the ruling. Lowe v State 584 S.W.2d 239
10
(Tenn. Crim. App. 1979). On appeal, the appellant has the burden
of showing that the evidence preponderates against the findings
of the trial court. Brasiel v State 529 S.W.2d 501(Tenn. Crim.
App. 1975). With regard to the claim that a confession was
involuntary, a trial court's determination at a suppression
hearing is presumptively correct on appeal. This presumption of
correctness may only be overcome on appeal if the evidence in the
record preponderates against the trial court's findings. State v.
Kelly 603 S.W.2d 726, 729 (Tenn. 1980). The appellate courts of
this state are bound to accept that determination by the trial
court that a confession was freely and voluntarily given unless
the evidence in the record preponderates against that finding.
State v. Adams 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992).
Findings of fact made by the trial judge after an evidentiary
hearing of a motion to suppress are afforded the weight of a jury
verdict, and an appellate court will not set aside the trial
court's judgment unless the evidence contained in the record
preponderates against the findings of the trial court. State v
Odom 928 S.W.2d 18 (Tenn. 1996).
The determination of whether a confession has been obtained
improperly, by coercive or improper inducement, can only be made
by examining all the surrounding circumstances involving the
interrogation leading to the confession. Monts v State 400 S.W.2d
722(Tenn. 1966). The question in each case is whether the
conduct of the law enforcement officers was such to undermine the
accused's free will and critically impair his capacity for
self-determination so as to bring about an involuntary
confession. Columbe v. Connecticut 367 U.S. 568, 602, 81 S. Ct.
1860, 1879, 6 L Ed. 2d 1037, 1057-58 (1961); State v. Kelly 603
S.W.2d 726, 728(Tenn. 1980).
Analysis
Appellant insists that his interrogation for four hours by
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two detectives in a five foot by ten foot room constituted a
coercive environment and that his interrogators used coercive
tactics, including shouting at the appellant to overpower his
will and bring about the confession. In addition, Appellant
submits that his interrogators made a promise to him that his
girlfriend would not be charged if he confessed to this crime,
thus inducing him to confess.
Appellant agrees that he was read his Miranda rights and did
sign a waiver of them. He does not contest the validity of the
waiver, but focuses upon the actions which followed the waiver.
The trial court, after a hearing on the motion to suppress,
found that the confession had been voluntary. In the ruling on
the motion, the trial court stated, “There was no threat or undue
pressure placed on him. There was never any threat to charge
Marlene Waters (Appellant’s girlfriend) or to hold her until he
confessed... “.
Obviously, the trial court accepted the testimony of the
officers present at the interrogation that they were not
oppressive in their manner. It was also accepted by the trial
court that the officer ignored the advice, passed to him in the
form of a note, to “invade his (Appellant’s) space” and to “bear
down on him”. The trial court likewise found that the confession
was not induced by any promises with respect to Appellant’s
girlfriend. From an examination of the record, we find no reason
to disagree with the findings of the trial court with respect to
the voluntariness of the confession.
Appellant argues in the alternative that the confession
should have been redacted because additions were made to
Appellant’s signed statement after he had signed it. He cites no
authority for this proposition.
At the beginning of the interrogation, Appellant denied
committing the crime, mentioning as possible suspects “Waldo” and
“John”. After about an hour and a half, Appellant admitted
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committing the crime. Obviously, the four hour conversation
included many subjects, including inquiries concerning
Appellant’s comfort. One of the officers wrote a three page
statement containing the pertinent facts and Appellant signed it.
Thereafter, the officer discovered that he had omitted some facts
which he considered important and interlineated them into the
confession. Appellant refused to initial the changes because
“they were incriminating”. The Sheriff then questioned Appellant
about his statement and had him sign the same again, this time
using his full name. When asked by the Sheriff whether he had
made the statements contained in the interlineations, Appellant
admitted that he had.
At the hearing of the motion to suppress, the trial court
ruled the additions to the original statement to be an accurate
reflection of what Appellant actually said. We cannot disagree.
The interlineations were explained to the jury and it was
told to them that they were added after Appellant had signed the
statement. The procedure was not misleading.
The issue is without merit.
EVIDENCE OF EARLIER THEFT
Appellant insists that it was error to admit evidence of
Appellant having stolen some rings from the deceased and a
confrontation some ten days before the killing between the
deceased and the appellant concerning this theft. There are two
closely related questions presented in this issue:
1). The admissibility of evidence of the confrontation;
2). The admissibility of evidence of the theft.
With regard to the confrontation, Beverly Jones, the
daughter of the deceased, testified that the deceased told her
that she had confronted Appellant and accused him of stealing
four rings from her house. The trial court instructed the jury
that this evidence could only be considered by them to show the
Appellant’s “state of mind and his intent”. The trial court had
13
previously ruled that this evidence was admissible to establish
the motive of the appellant to premeditate and deliberate to kill
the deceased.
There are two principal problems with this evidence. First,
although the accusation itself was not hearsay, the testimony of
the witness to the accusation was hearsay, second, the evidence
was not relevant.
The testimony of Ms. Jones was not that she heard her
mother make the statement, but that her mother told her that she
made the statement. Thus the out-of-court declarant (the
deceased) told the witness that the declarant had made the
statement. The witness was not present when the accusation was
made. Ms. Jones’ testimony was hearsay. It was offered to show
that the statement from the deceased declarant to the witness was
true (the deceased had accused the appellant). The statement
testified to by Ms. Jones was not an expression of a state of
mind but a narrative of events which did not occur in her
presence. Rule 802, Tenn. R. Evid. provides that hearsay is not
admissible unless it comes within a recognized exception to the
rule. This statement does not. The testimony was improperly
admitted.
Appellant submits that the hearsay exception of Rule 803(3)
Tenn. R. Evid.(generally known as the “state of mind” exception)
does not allow the introduction of the accusation. The State
concedes that the testimony of Ms. Jones does not fit this
exception but correctly points out that the accusation was not
hearsay. We would also add that the trial court did not rule at
the trial that the accusation fit within the 803(3) exception.
The trial court ruled that it was not hearsay. The statement is
not hearsay. It was not admitted for the proof of the fact
contained in the accusation but rather that the deceased had
accused Appellant of the theft and that accusation was a motive
for the murder. It should also be noted that Appellant’s
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assertion that the accusation does not fit within the Rule 803(3)
exception would be correct if the statement were hearsay. Rule
803(3) does not allow the admission of a statement to show a non-
declarant’s state of mind. Darron Keith Daniel vs. The Atlanta
Casualty Co. (unreported) Tenn. App.(W/S) No.02A01-9508-CV-00167
opinion filed December 31, 1996.
Even if the accusation had been properly admitted, it was
irrelevant. There exists no other evidence in the record that
Appellant was motivated by this accusation to kill the deceased.
As has been pointed out with respect to the first issue presented
for appeal, Appellant was unarmed when he broke into the home of
the deceased and did not initially harm her. His intention when
he entered the house was burglary, not homicide. For the jury to
find that this accusation was a motive for murder in this case
would have required rank speculation. This evidence was not
relevant. No objection upon this ground was made by Appellant.
Without such an objection and subsequent inquiry by the trial
judge, there is no way that the trial judge can know whether
evidence is relevant. The trial judge is not privy to the
planned testimony in a case and must rely upon counsel to insure
that evidence is relevant or to object when it is not so that
inquiry can be made as to its relevance.
The error in this case was compounded when Appellant’s
statement admitting the theft of the rings was introduced into
evidence. The trial court recognized that this was proof of
other crimes and allowed its introduction to establish intent and
motive. An additional basis for the ruling by the trial court
was that it established that the allegations of the deceased
(mentioned above) were true. It was also ruled that the
probative value of the proof of the prior theft outweighed its
prejudicial effect.
The procedure to be followed in this situation is controlled
by Tenn. R. Evid. 404(b).
15
Other Crimes, Wrongs, or Acts. Evidence
of other crimes, wrongs, or acts is not
admissible to prove the character of a person
in order to show action in conformity with
the character trait. It may, however, be
admissible for other purposes. The conditions
which must be satisfied before allowing such
evidence are:
(1) The court upon request must hold a
hearing outside the jury's presence;
(2) The court must determine that a
material issue exists other than conduct
conforming with a character trait and must
upon request state on the record the material
issue, the ruling, and the reasons for
admitting the evidence; and
(3) The court must exclude the
evidence if its probative value is outweighed
by the danger of unfair prejudice.
The trial court basically complied with the procedural
requirements of Rule 404 (b). The question now becomes whether
the trial court’s determination that the prior theft was
admissible to establish Appellant’s motive and intent and to show
that the deceased’s accusation was accurate was proper.
Evidence of other crimes is excluded unless it falls within
certain well-defined exceptions. State v. Rickman 876 S.W.2d 824,
827 (Tenn. 1994). Even if other crimes evidence is relevant to a
disputed material issue, it is still excluded "if its probative
value is outweighed by the danger of unfair prejudice." Tenn. R.
Evid. 404(b)(3). After hearing the evidence and arguments of
counsel outside of the presence of the jury, a trial court must
determine whether the proffered evidence is relevant to a
disputed, material issue in the case (other than the propensity
of a defendant to commit crimes) and whether the state has
established that relevance by clear and convincing evidence. If
relevant, the court must then weigh the probative value of the
evidence against its potential for unfair prejudice by
considering the unique facts and circumstances of the case. These
circumstances include (1) the similarities between the other
16
conduct and that charged, (2) the time that has elapsed between
the two events, (3) the strength of other evidence in the state's
case to prove the disputed issue, and (4) the strength of the
evidence of and connecting the defendant to the other crime. If
the probative value of the other crimes evidence and the
legitimate inferences which may be drawn therefrom are
sufficiently strong to outweigh its prejudicial effect, the
evidence may be admitted. If the unfair prejudice is "dangerously
close to tipping the scales," the court must exclude the evidence
despite its relevance to some material issue. State v. Luellen
867 S.W.2d 736, 741.
Tennessee recognizes three instances in which evidence of
uncharged crimes may be admissible: (1) to prove identity
(including motive and common scheme or plan); (2) to prove
intent; and (3) to rebut a claim of mistake or accident if
asserted as a defense. State v McCary 922 S.W.2d 511 (Tenn.
1996).
According to the ruling of the trial court, admission of
this statement in order to show that the accusation of the
deceased was true was indicative of motive on the part of the
appellant.
Although there is ample evidence that Appellant is the one
who perpetrated this crime, it can be argued that motive
(normally an identity issue) and intent are contested issues in
the trial of Appellant because they could establish the elements
of premeditation and deliberation. The problem is that they do
not. The theft of the rings and subsequent accusation are not
connected by other evidence in any way to the crime for which
Appellant is on trial. In another murder case, evidence such as
this may be admissible but in the case before us there is simply
no evidence from which a reasonable person could infer that the
appellant went to the home of the deceased that morning in order
to murder her because of her accusation. In fact, the evidence
17
in the case refutes such a theory. It is highly unlikely that
Appellant would have gone unarmed to the house that morning if he
had intended homicide. Even if he had done so, Appellant’s
actions once in the house are those of one who came to steal, not
those of one who came to murder. From the evidence, it can only
be inferred that Appellant only decided to kill the deceased
after he had entered the house. The accusations of ten days
earlier had no bearing upon his decision. To infer homicidal
intent from the accusation of theft would have required the jury
to engage in rank speculation.
Admission of the statement of the appellant in which he
admitted stealing the rings was error.
The question now becomes whether these errors were
prejudicial to a fair trial of the appellant in this case. We
hold that they were not.
There is ample evidence of Appellant’s guilt. His detailed
confession is corroborated by the physical evidence. Appellant’s
girlfriend led police to the bridge under which Appellant had
hidden the murder weapon. Several people saw Appellant with the
stolen shotgun after the crime. Likewise, the evidence of
Appellant’s premeditation and deliberation are strong. As noted
with respect to Appellant’s first issue presented for review,
there can be no other explanation for Appellant’s walk up the
hall with the shotgun except that he did so intending to kill the
deceased when he finished his travel. The prejudicial effect of
proof that Appellant stole four rings from the deceased prior to
the homicide is slight especially when the proof of the homicide
involved proof that the appellant was stealing from the deceased
when he committed the murder. We further find that the proof of
other crimes added no "new dimension to the jurors' view of the
defendant". See State v. Carter 714 S.W.2d 241, 247, 248 (Tenn.
1986). The situation in this case is not unlike the one dealt
with by our Supreme Court in State v. Harris 839 S.W.2d 54 (Tenn.
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1992). In the Harris case (a murder prosecution), admission of
evidence that a few days before the killings, defendant and
codefendant stole credit cards and jewelry was harmless error
under Rule 36(b), T.R.A.P. This rule states:
(b) Effect of Error. A final judgment from
which relief is available and otherwise
appropriate shall not be set aside unless,
considering the whole record, error involving
a substantial right more probably than not
affected the judgment or would result in
prejudice to the judicial process.
We have considered the whole record and are of the certain
opinion that the error did not rise to the level required by Rule
36(b).
The error is harmless.
SENTENCING
As his last issue presented for review, Appellant insists
that the trial court erred in sentencing the defendant.
Appellant does not quarrel with the sentence of life as the
result of the first degree murder conviction. He does cite two
alleged errors in sentencing by the trial judge on the burglary
and theft convictions:
1). That the trial court did not give proper weight to
the non-statutory mitigating factors presented at the sentencing
phase of the murder trial in setting the sentence for the
burglary and theft.
2). That the trial court erred in ordering the
sentences to be served consecutively to the life sentence for
murder.
Standard of Review
The standard of review in sentencing in criminal cases is a
de novo review with a presumption that the sentence set by the
trial court is correct if the record shows that the trial court
followed the principles of the Sentencing Act of 1989, considered
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the relevant factors and made proper findings of fact in the
record. State v Fletcher 805 S.W.2d 785, 789 (Tenn. Crim. App.
1981). If this is done, then we must affirm even if we would
have preferred a different result. Id. The burden of showing
that the sentence is improper is upon the Appellant. Id.
A portion of the Sentencing Reform Act of 1989, codified at
T.C.A. § 40-35-210, established a number of specific procedures
to be followed in sentencing. This section mandates the court's
consideration of the following:
(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
the enhancement and mitigating factors in §§
40-35-113 and 40-35-114; and
(6) any statement the defendant wishes to make in his
own behalf about sentencing.
The record before us indicates that the trial judge
considered all of the above factors which applied to this case.
Analysis
Appellant insists that the trial judge did not give
sufficient weight to the non-statutory mitigating factors in his
determination of his sentence.
T.C.A. § 40-35-210 provides that if there are enhancing and
mitigating factors in the record, the court must start at the
minimum sentence in the range and enhance the sentence as
appropriate for the enhancement factors and then reduce the
sentence within the range as appropriate for the mitigating
factors.
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The Act further provides that "whenever the court imposes a
sentence, it shall place on the record either orally or in
writing, what enhancement or mitigating factors it found, if any,
as well as findings of fact as required by § 40-35-209." T.C.A. §
40-35-210(f). This was done.
The weight, if any, to be afforded to enhancement and
mitigating factors is left to the trial judge's discretion. State
v. Moss 727 S.W.2d 229, 237 (Tenn. 1986); State v. Shelton 854
S.W.2d 116, 123 (Tenn. Crim. App. 1993).
In this case, the trial judge found four enhancing factors:
1). A previous history of criminal convictions and
behavior beyond that necessary to establish the sentencing range.
Appellant had two felony and numerous misdemeanor convictions
above and beyond that required to enhance his sentencing range to
Range II.
2). The victim was particularly vulnerable because of
her age and physical disability.
3). Appellant had a previous history of unwillingness
to comply with the conditions of a sentence involving release
into the community.
4). The crime was committed while Appellant was on
probation for another crime.
After rejecting the mitigating factor of the appellant’s age
(24), the trial court found two mitigating factors:
1). At the time of the crime, Appellant was suffering
from a mental condition which significantly reduced his
culpability of the offences.
2). The crime did not involve violence or injury.
As to the last mitigating factor, the trial judge obviously
treated the burglary and theft entirely separately from the
murder. This he is required to do. The trial judge reasoned
that the burglary was complete upon entering the house and found
that Appellant entered the house with the intent to commit theft.
21
This is entirely supported by the record as has been discussed
above. From his comments on the record, we can easily determine
that the trial judge gave this factor little, if any, weight. We
agree.
Appellant insists that the trial judge gave insufficient
weight to the mitigating factor of the appellant’s unfortunate
childhood. We disagree. The record affirmatively shows that the
trial judge considered in detail the childhood of the appellant
in his determination of Appellant’s mental state which reduced
his culpability for the offense. The proof showed, and the trial
judge recognized, that Appellant’s childhood had caused his
present mental state. The record shows that the trial judge
considered this factor.
It might be argued that the trial judge gave no weight to
the mitigating factor of mental condition because he assessed the
maximum sentence. This is not true. This mitigating factor was
simply outweighed and overwhelmed by the enhancing factors.
Appellant had an extensive criminal history and this history
established that Appellant was unwilling to comply with the
requirements of a sentence involving release into the community.
In fact, this crime was committed while Appellant was on
probation for another crime. The facts of this case establish a
need to protect the citizens of Sullivan County from Appellant
and that this can only be done by removing him from society for a
long period of time.
In the case of State v James Taylor (unreported) Tenn. Crim.
App. at Nashville No. 89-93-III, opinion filed April 25, 1990, we
considered a very similar factual situation. After a de novo
review (as required by the law at that time), we considered the
case of a defendant who had a criminal history similar to that of
Appellant and affirmed a maximum sentence for burglary during
which a murder was committed. Admittedly, in the Taylor case,
there were no mitigating factors found. Again we point out that
22
the enhancing factors in this case simply inundated the
mitigating factor. Although the mitigating factor existed, in
view of the enhancing factors, no reduction from the maximum
sentence was called for.
We agree with the sentence of the trial judge.
Next, Appellant insists that the trial judge erred in
ordering the sentences for burglary and theft to be served
consecutively to the life sentence for murder but fails to cite
any authority therefor.
T.C.A.§ 40-35-115 (b) allows consecutive sentencing if,
inter alia:
(2) The defendant is an offender whose record of criminal
activity is extensive.
(4) The defendant is a dangerous offender whose behavior
indicates little or no regard for human life, and no
hesitation about committing a crime in which the risk to
human life is high.
(6) The defendant is sentenced for an offense committed
while on probation.
The trial court found these three factors in Appellant’s
case. In addition, the trial court found it necessary to
incarcerate Appellant for the protection of the public. We
cannot disagree.
This issue is without merit.
The judgment of the trial court is affirmed.
_________________________
Robert E. Burch,
Special Judge
CONCUR:
_________________________
Gary R. Wade, Judge
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_________________________
Joseph M. Tipton, Judge
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