IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
JANUARY 1995 SESSION
STATE OF TENNESSEE, * C.C.A.# 01C01-9406-CC-00204
APPELLEE, * DICKSON COUNTY
FILED VS. * Hon. Leonard Martin, Judge
PAUL GALBREATH, * (Voluntary Manslaughter)
APPELLANT. * September 1, 1995
Cecil Crowson, Jr. Appellate Court Clerk For the Appellant: For the Appellee:
Shipp R. Weems Charles W. Burson District Public Defender Attorney General and Reporter
Carey J. Thompson Clinton J. Morgan Ass't Dist. Public Defender Counsel for the State P.O. Box 160 450 James Robertson Parkway Charlotte, TN 37036 Nashville, TN 37243-0493
Robert Wilson Ass't District Attorney P.O. Box 580 Charlotte, TN 37036
OPINION FILED:
AFFIRMED, SENTENCE MODIFIED
Gary R. Wade, Judge OPINION
The defendant, Paul Galbreath, indicted for second
degree murder, was convicted of voluntary manslaughter. The
trial court imposed a Range I sentence of six years.
In this appeal, the defendant challenges the
sufficiency of the evidence and presents the following issues
for our review:
(1) whether the trial court erred by allowing the admission of certain photographs into evidence; and
(2) whether the sentence was excessive.
We affirm the judgment; the sentence is modified to
five years.
On March 13, 1993, the defendant shot and killed the
victim, Randall Dailey, Jr. The two had been friends for
sometime and on the day of the shooting had spent most of the
day together looking for automotive parts. Afterwards, the
two men returned to the victim's residence, which he shared
with Pam Lemoine, a cousin to the defendant. Later in the
evening, the victim became angry when he thought the defendant
had "messed with" his .357 Magnum and pointed a rifle at the
defendant's head. Thereafter, the disagreement escalated and
the defendant threatened to kill the victim. Sometime even
later, the two men walked outside. A shot was fired and the
victim fell. Ms. Lemoine called 911, but rescue personnel were
unable to save the victim.
At trial, Ms. Lemoine testified that she and her two
2 children from a prior marriage had just moved into the house
they intended to share with the victim. The defendant and his
friend, Butch Winters, had helped with the move. On the day
of the murder, Ms. Lemoine had picked up the victim's two
daughters, who planned to spend the night. Winters was also
present. Although the evening was very cold, the group
grilled pork chops outdoors because the gas line for their
stove had not been connected. The men were drinking, but Ms.
Lemoine testified that she did not believe any of them were
drunk. Late in the evening, the victim noticed that his .357
was not in its holster, which had been hung on the wall. He
retrieved his .22 caliber rifle, pointed it at the defendant,
and warned that "nobody messed with his guns." Although the
defendant did not have the .357 in his hands, it lay on a
shelf in front of his chair. As the victim walked to his
bedroom, the defendant promptly returned the gun to its
holster.
Ms. Lemoine testified that she was not alarmed
because the victim and the defendant had playfully pointed
guns at each other on prior occasions. She became concerned,
however, when the victim admitted that he had been angry with
the defendant and felt badly about pointing the gun. Ms.
Lemoine described the victim, who had a severe headache, as
crying and "very emotional." When she gave the victim
prescription headache medicine, he complained that two pills
were not enough and angrily knocked the bottle out of her hand
when she refused to give him more. The children were
apparently upsetting the victim. Ms. Lemoine's son, who was
3 crying, had hurt himself and the victim's two daughters had
apparently changed their minds about spending the night. Ms.
Lemoine testified that she loaded the children into the car,
realized that she did not have her keys, and went back to the
residence. Upon her return, the victim, again angry, told her
that he had changed his mind and decided that the children
should eat before they left.
After she had finished cooking, Ms. Lemoine went
back into the bedroom to talk to the victim, who said he
wanted to talk to the defendant. Ms. Lemoine testified that
the defendant, who appeared to be holding something behind his
back, entered the bedroom. She heard the victim apologize for
pointing the gun and the defendant reply, "I could kill you."
The victim then said to go ahead that he had wanted to die
earlier that day anyway.
Ms. Lemoine next saw the defendant and victim
together as she looked out to the deck through the sliding
glass door. She saw the defendant point a gun at the victim,
who had his head down, heard a shot, and then saw the victim
fall. When she went outside, the defendant claimed that the
victim had just been "nicked." Ms. Lemoine observed, however,
that the victim was seriously injured and called 911.
At that point, the defendant went back inside, sat
quietly at the bar, and directed Winters to take his pistol to
his truck and leave. The truck did not start, however, and
Winters returned to the residence. The defendant then placed
4 his gun on the bar and said, "there wasn't nothing to do now
but wait."
Heather Dailey, the victim's oldest daughter,
remembered that her father had a severe headache on the day of
the shooting. She saw the victim point his gun at the
defendant and sensed that the victim was angry. She did not
realize her father had been shot until so informed by Ms.
Lemoine.
Winters testified that he had been out drinking with
the victim and the defendant on the day of the murder. During
the course of the afternoon, there had been some discussion
between the defendant and the victim about the victim pointing
a gun at Winters, but Winters stated that their conversation
was not tense. However, upon returning to the residence, the
victim became agitated and pointed his .357 Magnum at Winters,
who covered his head and retreated into the hallway without
further incident. Winters also observed the victim hit and
kick a punching bag so viciously as to cause the victim's
younger daughter to cry. Thereafter, when the victim had left
for his bedroom, Winters asked the defendant to unload the
.357 before the victim aimed it at someone else. The victim,
however, returned before the defendant could do so and angrily
pointed his rifle at the defendant when he noticed that the
.357 had been removed from its holster.
Later, Winters went to the truck and got the
defendant's gun. He then went into the bedroom where the
5 children were watching television. At that point, Winters
walked out of the bedroom and overheard the victim "hollering"
at the defendant, saying "I'll kill you or you kill me."
Winters saw the victim with his arms in the air and heard a
shot fired. As the defendant came back inside, Winters
checked on the victim and asked Ms. Lemoine to call 911.
After the shooting, Winters, who explained that he
had been drinking heavily throughout the evening, had told
officers that the victim and Ms. Lemoine had engaged in a
terrible fight, with the victim swearing and making threats.
He informed the investigating officers that the victim had
wanted to do some target shooting and yelled, "I'll kill you,"
just before he was shot.
Charles Seay, Jr., with the Dickson County Ambulance
Service, arrived to find the victim lying on a walkway
attached to the deck. He was not breathing, but was briefly
revived. Seay observed a large knife or machete to the right
of the victim's head.
Donald Shirley, a Dickson County Sheriff's
Department officer, helped emergency personnel tend to the
victim. He then placed the defendant in his police car, read
him his rights, and eventually transported him to the police
station.
Officers John Bowlerjack and Debbie Jones
Bowlerjack, also with the Dickson County Sheriff's Department,
6 secured the inside of the residence until detectives arrived.
John Bowlerjack spoke with the defendant first, describing his
attitude as "nonchalant." The defendant told him that he and
the victim had been target shooting and that, just as he
pulled the trigger, the victim jumped into the path of the
bullet. Winters also spoke briefly with John Bowlerjack,
corroborating the defendant's claim that he and the victim
were target shooting, but adding that the two men had been
arguing. The two officers then found several guns in the
residence and a long knife hanging on the wall behind the bar.
Dickson County Detectives Randy Starkey and Wayne
Heflin took two statements from the defendant. In those
statements, the defendant claimed that the victim had never
appeared angry during the course of the day, had asked him to
target shoot outside, and had jumped into the pathway of the
first shot. The defendant could not explain the actions of
the victim and did not know why the machete was on the deck.
Robert Daniel Royce, a TBI forensic examiner,
confirmed that a .44 Remington Magnum belonging to the
defendant had fired the fatal shot. He determined that the
weapon was one of the loudest and most powerful available.
Dr. Charles Harlan, Chief Medical Examiner for the
State of Tennessee, performed the autopsy. He found that a
"tight contact gunshot wound" to the forehead caused the
victim's death. It was his opinion that the gun had been
pressed against the victim's skull at the time the shot was
7 fired. The victim had a .15 percent blood alcohol level.
On appeal, the state is entitled to the strongest
legitimate view of the evidence and all inferences which might
be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to
be given their testimony, and the reconciliation of conflicts
in the proof are matters entrusted exclusively to the jury as
triers of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn.
Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing
the evidence in the light most favorable to the state, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. State v. Williams,
657 S.W.2d 405, 410 (Tenn. 1983), cert. denied, 465 U.S. 1073
(1984); Tenn. R. App. P. 13(e).
Although the state claims the sufficiency issue has
been waived on procedural grounds, we chose to address the
merits of the claim. Voluntary manslaughter is defined as
"the intentional or knowing killing of another in a state of
passion produced by adequate provocation sufficient to lead a
reasonable person to act in an irrational manner." Tenn. Code
Ann. § 39-13-211(a).
Here, the defendant admitted that he fired the shot
that killed the victim. While he claimed that the shooting
was accidental, there was evidence that he and the victim had
8 exchanged heated words and that the victim had angrily pointed
a gun at the defendant just a short while before the shooting.
Medical evidence suggested that the defendant's gun was
pressed against the victim's head when fired.
These were contested facts. Under such
circumstances, it is the prerogative of the jury to determine
whether the shooting was purposeful or accidental. Clearly,
there was sufficient evidence to establish each of the
elements of voluntary manslaughter.
I
Next, the defendant contends that the trial court
erred by admitting autopsy photos of the victim, depicting the
gunshot wound to his head. He claims that the graphic nature
of the photographs was so prejudicial as to outweigh their
probative value.
The admission of photographs is governed by
Tennessee Rule of Evidence 403. See State v. Banks, 564
S.W.2d 947 (Tenn. 1978). To be admissible, the evidence must
be relevant and its probative value must outweigh any
prejudicial effect. Tenn. R. Evid. 403; State v. Banks, 564
S.W.2d at 950-51. Whether to admit the photographs is within
the discretionary authority of the trial court; its ruling
will not be reversed absent a clear showing of an abuse.
State v. Allen, 692 S.W.2d 651 (Tenn. Crim. App. 1985).
Here, the photographs were especially probative in
9 light of the defendant's claim that the shooting was
accidental. Two eyewitnesses testified that the two men were
several feet apart immediately before the fatal shot. Dr.
Harlan's autopsy led him to conclude that the gun was held
directly to the victim's head when fired. Thus, the place and
nature of the gunshot wound were highly probative of guilt.
Moreover, the photographs were not particularly gruesome.
While the entry wound was visible, the forehead remained
intact and very little blood could be seen. In short, we find
that the trial court properly admitted these photographs into
evidence.
II
The defendant also insists that the trial court
erred by imposing the maximum possible sentence of six years
and argues that it should have suspended the entire sentence.
He submits that neither of the two enhancement factors applied
by the court were applicable and complains that mitigating
factors were given insufficient weight.
When there is a challenge to the length, range, or
manner of service of a sentence, it is the duty of this court
to conduct a de novo review with a presumption that the
determinations made by the trial court are correct. Tenn.
Code Ann. § 40-35-401(d). This presumption is "conditioned
upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). The Sentencing Commission Comments provide that
10 the burden is on the defendant to show the impropriety of the
sentence.
Our review requires an analysis of (1) the evidence,
if any, received at the trial and sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and the
arguments of counsel relative to sentencing alternatives; (4)
the nature and characteristics of the offense; (5) any
mitigating or enhancing factors; (6) any statements made by
the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§
40-35-102, -103, and -210; State v. Smith, 735 S.W.2d 859, 862
(Tenn. Crim. App. 1987).
The defendant argues that Tenn. Code Ann. § 40-35-
114(9), the employment of a firearm during the commission of
the crime, cannot be used to enhance his sentence because it
is an element of the offense of voluntary manslaughter. This
argument was rejected, however, in State v. David Keith
Daugherty, No. 03C01-9203-CR-00082 (Tenn. Crim. App. at
Knoxville, August 27, 1993), which specifically held that the
use of a firearm was not an essential element of manslaughter.
Consequently, this factor was properly applied.
The defendant also disputes the applicability of
Tenn. Code Ann. § 40-35-114(16), that the potential for injury
to the victim was particularly great. We agree. In
Daugherty, this court held that the factor was an element of
any homicide case and, therefore, could not be considered to
11 enhance a sentence.
The state argues that Tenn. Code Ann. § 40-35-
114(10), that the defendant had no hesitation about committing
a crime when the risk to human life was high, should have been
applied as an enhancement factor by the trial court. It bases
its claim, for the most part, on the powerful nature of the
defendant's weapon. In State v. Lambert, 741 S.W.2d 127, 134
(Tenn. Crim. App. 1987), however, this court determined that
this factor was also inherent in any homicide and could not be
used to enhance the defendant's sentence.
The trial court afforded the defendant some
mitigation because this crime was committed "under such
unusual circumstances that it is unlikely that a sustained
intent to violate the law motivated his conduct." Tenn. Code
Ann. § 40-35-113(11). It refused, however, to apply Tenn.
Code Ann. § 40-35-113(2), that "the defendant acted under
strong provocation." We do not disagree with either
conclusion.
The defendant was charged with second degree murder.
His conviction of the lesser included offense of voluntary
manslaughter was apparently based upon the jury's conclusion
that he acted under "adequate provocation." The defendant
claims that the jury verdict warrants application of the
"strong provocation" mitigating factor. See Tenn. Code Ann. §
40-35-113(2). There is no prohibition against trial courts
giving a defendant "double credit" in these circumstances.
12 Yet, this court has previously ruled that the factor need not
be automatically applied in voluntary manslaughter cases. See
State v. McKinzie Monroe Black, No. 01C01-9401-CC-00006 (Tenn.
Crim. App. at Nashville, July 14, 1995). Here, the defendant
had been drinking and "playing with guns." These factors
contributed to a heated argument, which apparently led the
defendant to shoot the victim at point blank range. While the
provocation may have been adequate to reduce the degree of the
defendant's culpability, the nature and the circumstances of
this crime do not necessarily demonstrate the kind of "strong
provocation" required to mitigate the sentence. We,
therefore, defer to the finding made by the trial court.
As a standard Range I offender, the defendant was
eligible for a sentence ranging between three and six years.
Tenn. Code Ann. § 40-35-112(a)(3). The trial court properly
applied one enhancement and one mitigating factor, but
improperly applied a second enhancement factor. That the
defendant employed a firearm in the commission of the crime
carries particularly great weight. Alcohol and firearms are a
particularly dangerous combination. That the defendant
handled a firearm in the presence of four children is also a
concern. The enhancement factor justifies a sentence above
the minimum, but not the absolute maximum. From our de novo
review of the record and application of the appropriate
mitigating and enhancing factors, we conclude that a sentence
of five years is warranted. The length of the sentence is so
modified.
13 Among the factors determinative on the issue of
probation are the circumstances of the offense, the
defendant's criminal record, social history, present
condition, his potential for rehabilitation or treatment, and
the deterrent effect upon and best interest of the defendant
and the public. State v. Grear, 568 S.W.2d 285 (Tenn. 1978);
Stiller v. State, 516 S.W.2d 617, 619-20 (Tenn. 1974).
Especially mitigated or standard offenders convicted of Class
C, D, or E felonies are presumed to be favorable candidates
"for alternative sentencing options in the absence of evidence
to the contrary." Tenn. Code Ann. § 40-35-102(6). With
certain statutory exceptions, none of which apply here,
probation must be automatically considered by the trial court
if the sentence imposed is eight years or less. Tenn. Code
Ann. § 40-35-303(a). The ultimate burden of establishing
suitability for probation, however, is still upon the
defendant. Tenn. Code Ann. § 40-35-303(b).
Alternative sentencing issues must be determined by
the facts and circumstances of the individual case. State v.
Moss, 727 S.W.2d 229 (Tenn. 1986). "[E]ach case must be
bottomed upon its own facts." State v. Taylor, 744 S.W.2d
919, 922 (Tenn. Crim. App. 1987).
The defendant, who lives with his mother, has no
significant prior criminal history and works sporadically as
an auto mechanic. His ability to work is limited by a
crippling injury he sustained to his left arm in a motorcycle
accident. Those factors weigh in favor of a grant of
14 probation. The death of the victim, however, has
traditionally required a showing of exceptional circumstances
to warrant probation. State v. Blackwood, 713 S.W.2d 677, 682
(Tenn. Crim. App. 1986). While the fact that a life was
taken, standing alone, is no longer an adequate basis for
denying probation, see State v. McKinzie Monroe Black, No.
01C01-9401-CC-00006 (Tenn. Crim. App. at Nashville, July 14,
1995), the nature and circumstances of this offense, among
other things, warrants the denial of probation. The
defendant's social history is not entirely positive. At
thirty-eight, the defendant should have had the maturity to
appreciate the foolishness of his conduct on the night of the
shooting. His disregard for the safety of others was blatant
and his casual attitude toward the use of a weapon was
inexcusable. The grant of probation would clearly depreciate
the seriousness of the offense.
The conviction is affirmed. The sentence is
modified to five years.
______________________________ Gary R. Wade, Judge
CONCUR:
____________________________________ David H. Welles, Judge
____________________________________ William S. Russell, Special Judge
15 16