IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE JACKSON
AUGUST SESSION, 1996 FILED December 30, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9508-CC-00216 ) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, )
)
) MADISON COUNTY
VS. )
) HON. JOHN FRANKLIN MURCHISON EDW ARD L EE M OON EY, SR .,) JUDGE )
Appe llant. ) (Direct Appe al - Attempted First ) Degree Murde r and Po ssession of a ) Deadly Weapon with Intent to ) Employ it in the Commission of an ) Offense)
FOR THE APPELLANT: FOR THE APPELLEE:
PAT RICK MAR TIN JOHN KNOX WALKUP D. TYLER KELLY Attorney General and Reporter 213 E. L afayette S t. Jackson, TN 38301 CHARLOTTE H. RAPPUHN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243
JERRY W OODALL
District Attorney General
DON ALLEN
Assistant District Attorney P. O. Box 2825
Jackson, TN 38301
OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE
OPINION
On September 28, 1994, a Madison Co unty jury co nvicted A ppellant, Edward Lee Moo ney, Sr., of two counts of attempted first degree murder and one count of possession of a deadly weapon with intent to employ it in the commission of an offense. On November 8, 1994, the trial court sentenced Appellant as a Ran ge I standard offender to concurrent sentences of twenty-five, twenty-two, and two years. App ellant c hallen ges b oth his convic tions a nd his sentences, raising the following issues:
1) whether the evidence was sufficient to support his convictions for attempted first de gree mu rder;
2) whether the trial cou rt erred by not instructing the jury on the e lemen ts of aggravated assault, attempted voluntary manslaughter, and attempted criminally negligent homicide;
3) whethe r the trial court committed reversible error when it admitted evidence about Appellant’s prior criminal record and other criminal behavior;
4) whether the tria l court should have granted a mistrial when the prosecutor commented on defense counsel’s closing argument; and 5) whether Appellant’s sentences are excessive.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTS
On November 20, 19 93, at a pprox imate ly 11:30 p.m., Melvin Eckford went to a club in Jackson, Tennes see for a night of socializing. Soon after he arrived, he met his frie nd, Da rrel W omac k. At one point when Eckford was alone, Appellant approached him and said, “Tell Darrel I’ve got something for him and I’ve got something for you.” Appellant then went outside, an d Eckford followed him. Eckford then saw Appellant reach under the driver’s seat of his ca r and p ull out a gun. When Eckford turned around and saw Womack coming out of the
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club, Eckford yelled “Ru n. He’s b ehind u s. He’s got a pistol.” Eckford and Wom ack then ran in oppos ite directions . After Eckford and W omack ran away, Appellant waited by Womack’s car for twenty to thirty minutes. When Appellant finally left, Eckford and W omack waited for anothe r ten to fifteen minutes before they got into Wo mack ’s car and drove aw ay.
As Wom ack and Eckford drove down the street o n their w ay to E ckford ’s house, Appellant pulled his car out of a parking lot and began shooting at Womack and Eckford. Appellant followed Womack’s car, shot out the back window, and attempted to pull alongside the car. Appe llant fired appro ximate ly four to five shots at Womack’s car, and one of these shots hit Eckford in the arm. There were a lso bu llet hole s in the roof, the driver’s headre st, and the back door on the d river’s side.
When Appellant was directly behind Womack’s car, Womack slammed on the brakes and Ap pellant ran into him. Appellant then turned his car around and left. Womack and Eckford then went to Wom ack’s house and W oma ck’s girlfriend, Jean etta An n Bro oks, to ok the m to th e hos pital. Ec kford re main ed in the hosp ital for fou r days fo r surge ry and treatm ent of tw o nerv es in his left arm that were paralyze d as a re sult of the g unsho t injury.
Eckford testified that on the night he was adm itted to th e hos pital, he told the police, “I knew who shot me, and I’ll take care of it myself.” Eckford explained that he made this statement when he “was all ou t of it.” Eck ford su bseq uently told the po lice that Ap pellant wa s the one who sh ot him.
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Eckford testified that he had never ha d any pro blems with App ellant.
Wom ack, however, testified that h e had b een in se veral con frontations with Appe llant. The first incident occurred two to three years before the November 1993 shooting, when Appellant pulled a knife on Womack while they were bo th at Brooks’ home. Later, Appellant went to Womack’s residence, pulled a gun, fired several sh ots at W omac k, and thre atened to kill him. A few months b efore the November 1993 shooting, Appellant went to Womack’s residence, pulled a gun on him, and threaten ed to kill him .
II. SUFFICIENCY OR THE EVIDENCE
Appellant contends that the evidence was insuffic ient to s uppo rt his convictions for attempted first deg ree murd er. Specifically, Appellant claims that there was no evidence that he intended to kill Womack and Eckford, and even if there was evidence that he intended to kill them, there was no evidence that his intent to kill was deliberate or premeditated.
When an a ppellant challenges the sufficiency of the evidence , this Court is obliged to review that challenge according to certain well-settled principles. A verdict of guilty by the jury, approved by the trial judge, accredits the testimony of the State’s witnesses and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a presumption of innocence, a jury verdict removes this presumption and replaces it with one of gu ilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with Appellant to demonstrate the
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insufficiency of the convicting evidenc e. Id. On ap peal, “the [S ]tate is entitled to the strongest legitimate view of the evidence as well as all reasonable and legitimate inference s that ma y be draw n therefro m.” Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evid ence is contested on appe al, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. Harris , 839 S.W .2d at 75; Jackson v. Virgin ia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). In conducting our evaluation of the convicting evidence, this Court is precluded from reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, this Court may not substitute its own inferences “for those drawn by the trier of fact from circum stantial evidence.” Id. at 779 . Finally, R ule 13(e) of the Ten ness ee Ru les of A ppella te Pro cedu re prov ides, “fin dings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to suppo rt the finding s by the trier o f fact beyond a reasonab le doubt.” See also Matthews, 805 S.W.2d at 780.
Under Tennessee law, A person comm its crimina l attempt w ho, acting with the kin d of culpa bility otherwise required for the offense:
(1) Intentionally engages in action or causes a result that would constitute an offense if the circumstances surrounding the conduct were as the person believes them to be;
(2) Acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person’s part; or (3) Acts with intent to complete a course of action or cause a resu lt that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the
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conduct constitutes a substantial step toward the commission of the offense.
Tenn. Code Ann. § 39-12-101(a) (1997). At the time of the events in question here, Tennessee’s first degree murder statute provided that “[f]irst degree murder is: [a]n intentional, premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-13-2 02 (1993). 1 The e leme nt of pre med itation re quires a previo usly formed design o r intent to kill. State v. West, 844 S.W.2d 144, 147 (Tenn. 1992) (citation omitted). Deliberation requires that the offense be committed with cool purpose, free of the passions of the mo ment. Id. (citation omitted). In addition, the elements of premeditation and deliberation are questions for the jury which may be inferred from the manner and circumstances of the killing. State v. Bord is, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Facts showing the defen dant’s planning activity, motive, and nature of the killing can all provide evidence from which premeditation and deliberation can be inferred. See State v. Gentry, 881 S.W .2d 1, 4–5 (T enn. Crim. A pp. 1993).
It is clear that, when viewed in the light most favorable to the State, the evidence was su fficient for a ratio nal jury to co nvict Appellant of two counts of attempted first degree murder. First, any reasonable juror could conclude that Appellant intended to kill Eckford and Wo mack w hen he fired fou r or five gunsh ots into their moving vehicle. Second, the jury could have inferred from the evidence that Appellant had “a previously formed design or intent to kill.” Indeed, Appellant had assaulted Womack with a weapon on three prior occasions and had threaten ed to kill W omac k on two of those o ccasion s. In regard to Eckford,
1 A 1995 ame ndm ent elim inated de liberation as an elem ent of first de gree m urder. See Tenn.
Code Ann. § 39-13-202(a)(1) (Supp. 1998) (“First degree murder is: [a] premeditated and intentional killing of another.”).
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the evidence showed that Appellant tried to entice both men into the parking lot where he would be waiting with his loaded gun by telling Eckford that “I’ve got something for him and I’ve go t something for you.” The jury cou ld have concluded that Appellant’s premeditation was shown by his attempt to entice the two men into the parking lot, his waiting for them by W oma ck’s ca r, and h is waiting for them down the stre et until they drove by. Third, the jury could have inferred that Appellant had acted with deliberation form the evidence that he quietly waited by Womack’s vehicle for approximately thirty minutes before he finally left to wait for the m dow n the stree t. The evid ence o f intent, premeditation and de liberation is a bunda nt. This iss ue is witho ut merit.
III. JURY INSTRUCTIONS
Appellant contends tha t the trial court erred by not instructing the jury on the offenses of aggravated assault, attempted voluntary manslaughter, and attempted crimin ally neglig ent ho micid e. In ge neral, a defen dant ha s a “right to a jury instr uction on all lesser included offen ses where ‘any facts . . . are susc eptible of inferrin g guilt of any lesser include d offense.’” State v. T rusty, 919 S.W.2d 305, 310 (Tenn. 1996) (quoting State v. Wright, 618 S.W.2d 310 (Tenn. Crim. App . 1981)).
The trial court clearly did not err when it declined to instruct the jury on aggravated assault because under Tennessee law, aggra vated assa ult is not a lesser gra de or clas s of attem pted first de gree m urder. Id. at 311–12.
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Further, the trial cour t did not err w hen it declined to instruct the jury on attempted voluntary man slaughter. Un der Tenn essee law, “[v]olunta ry manslaughter is the intentional or knowing killing of another in a state of passion produced by adequate provocation sufficie nt to lea d a rea sona ble person to act in an irrationa l mann er.” Ten n. Cod e Ann. § 39-13-211(a) (1 997). T here is abso lutely no evidence in the record that Appellant was provoked or that he was enraged at any time during the events in question here. “[W ]here the record clearly shows that the defendant was guilty of the greater offense and is devo id of any ev idenc e perm itting an inferen ce of g uilt of the lesser offense, it is not error to fail to charge on a lesser offense.” State v. Boyd, 797 S.W.2d 589, 593 (Tenn. 1990) (citation om itted).
Finally, the trial court did not err when it declined to instruct the jury on attempted criminally negligent homicide. T his Court has previously held that the crime of attempted crimin ally negligent homicide does not exist under Tennessee law becau se one canno t intend to p erform a n uninten tional act. State v. Dale Nolan, No. 01C01-951 1-CC-00387 , 1997 W L 351142, at *9 (Tenn. Crim. App., Nashville, June 26, 1997) (citing State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996)). T hus, this iss ue has no me rit.
IV. PRIOR BAD ACTS
Appellant contends that the trial court violated Rule 404(b) of the Tennessee Rules of Evidence when it admitted evidence of his misdemeanor record and prior criminal behavior. Rule 404(b) states that
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Evidence of other crim es, wron gs, 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 upo n requ est m ust ho ld a he aring o utside the jury's presence;
(2) The court must determ ine that a m aterial 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 prob ative va lue is outweighed by the danger of unfair prejudice.
Tenn. R . Evid. 404(b).
The record indicates that after a hearing outside of the jury’s presence, the trial court ruled that evidence of the prior threats and assaults by Appellant against Womack were admissible to prove both intent and motive.2 Wom ack then testified that Appellant had pulled a knife on him on one occasion and had pulled a gun on him and threatened to kill him on another occasion. When the prosecutor asked Wom ack when this second incident had occurred, Womack stated, “You will have to go back and get the police report. I reported it.” Wom ack then testified, without objection, that Appellant had pulled a gun and threatened to kill him on a third occasion and that he had also reported that incident to the police. Appellant cla ims that this evidence should have been excluded becau se its prejudic ial effect outw eighed its probative value. We
2 The record does not indicate that the trial court made an express finding that there was clear and convincing evidence that Appellant had committed the prior crimes or made an express determination that the d ang er of preju dice did no t outw eigh t he pr oba tive va lue of the e viden ce as requ ired b y State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985). However, the fact that the trial court ruled that it would allow evidence of the crimes themselves, but not evidence of the convictions for those crimes, indicates that the court had made these required determinations. When, as in this case, a trial court substantially complies with the procedural requirements of the rule, its determination will not be overturned absent an abuse of discretion . State v. Dubose, 953 S.W .2d 649, 652 (Tenn. 1997 ).
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disagree. This evidence was clearly probative on the issues of intent and motive. Further, Womack only testified that he had reported two of these incidents to the police, he never testified that Appellant was either charged or convicted of these offenses. Whether to admit evidence is within the d iscretion o f the court, a nd its decision will not be ov erturned absen t an abu se of that d iscretion. State v. Bigbee, 885 S.W.2d 797, 807 (Tenn. 19 94). Given the h ighly probative nature of this evidence and its limited potential for prejudice, the trial court did not abuse its discretion in finding that this evidence was admissible.
Appella nt also argues that he was p rejudic ed wh en W oma ck stat ed in response to a que stion a bout w here h e was living du ring the events in question: “the morning Jeanetta Brooks got shot, Mr. Mooney did that too.” Although W oma ck’s comm ent was p rejudic ial to Ap pellan t, the rec ord ind icates that his answer was unres ponsive and was in no wa y elicited by the prosec utor. Moreover, the trial court imme diately adm onishe d W omac k to confine h imself to his trouble with Appellant. The court subsequently instructed the jury that they were to disregard this comment because there was no proof that Appellant had anything to do with that incident or that it had any releva nce to this case. W e presume that the jury followed this in struction. See State v. Little, 854 S.W.2d 643, 64 9 (Ten n. Crim. A pp. 199 2). Thu s, this issue is without m erit.
V. CLOSING ARGUMENTS
Appellant argues that the trial court erred when it failed to grant a mistrial when the prosecutor commented on defense counsel’s closing argument. The record indicates that during closing argument, defense counsel suggested that
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Wom ack and Eckford were shot at during a drug transaction that had somehow gone awry and that they had blamed the shooting on App ellant in ord er to cover up their own wrongdoing. During the State’s closing argument, the prosecutor stated that there had been no evidence that drugs were involved in this case and that defense counsel was “trying to muddy the waters” by interjecting something that was not in the p roof.
W e agree with Appellant that the prosecutor’s comment was imprope r.
See State v. West, 767 S.W.2d 387, 395 (Tenn. 1989) (stating that it was improper for prosecutor to tell jury that defense counsel was “trying to throw sand in the eyes of the jury” and “b lowing smo ke in the face of the jury”). “Where argument is found to be improper the established test for determining whether there is rever sible error is ‘whether the improper conduct could have affected the verdict to the prejudice of the defendan t.’” State v. Cauthe rn, 967 S.W.2d 726, 737 (Tenn. 1998) (quoting Harring ton v. State , 215 Tenn. 338, 385 S.W.2d 758, 759 (1965)). “We must consider: 1) the conduct complained of, viewed in light of the facts and circumstances of the case; 2) the curative measures undertaken by the court and the prosecution; 3) the intent of the prosecutor in making the improper statem ent; 4) the c umula tive effect of the improper conduct and any other errors in the record; and 5) the relative strength or weakness of the case. Id. (citations om itted).
The application of the above test indicates that althou gh the prose cutor’s statement was improper, it was harmless because it did not affect the ve rdict to the prejudice of Appellant. First, the record indicates that the conduct complained of consiste d of one brief, isolated statem ent. Second, the trial court
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imm ediate ly instruc ted the jury that this statement was just “lawyer talk” and that the two attorneys we re merely giving the ir interpretation of what the proof showed. The trial court also a ssured the jury that defense counsel had not done anything uneth ical du ring his closing argum ent. T hird, the re is no indication that the prosecutor was acting it bad faith. It appears that his intention was merely to refocus the jury on deciding the case based on the evidence actually presented at trial. Fourth, we cannot say that the cumulative effect of this error and any other errors justifies relief beca use we have no t found an y error with respec t to Appe llant’s previo us issu es. Fin ally, the S tate’s c ase w as rela tively strong. Both victims ide ntified App ellant as th e shoo ter. Thu s, this issue has no merit.
VI. SENTENCING
Appellant conte nds th at the tria l court imposed excessive sentences for the attempted murder convictions. “When reviewing sentencing issues . . . including the granting or denial of probation and the length of sentence, the appellate cou rt shall condu ct a de no vo review o n the rec ord of su ch issue s. Such review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are correct.” Tenn . Code An n. § 40-35-40 1(d) (1997). “Howeve r, the pre sum ption o f correc tness which acco mpa nies th e trial co urt’s action is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all rele vant facts a nd circum stance s.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider all the evidence, the presentence report, the sentencing principles, the enhan cing and mitigating factors, arg umen ts of coun sel, the appellant’s statements, the nature and character of the offense, and the appellant’s potential
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for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp. 1998); Ashby, 823 S.W.2d at 169. “The defendant has the burden of demonstrating that the se ntence is improp er.” Id. Because the record in this case indicates that the trial court failed to properly consider the sentencing principles and all relevant facts and circumstances, our review is de novo without a presumption of correctness.
In making its sentencing determinations, the trial court found that no significant mitigating factors we re applica ble. Although the trial court found that Appe llant’s good beha vior in jail was a mitigating factor, the court concluded that this factor was not significant because it was not one of the enum erated factors of Tennessee Code Annotated § 40-35-113. We agree that this factor was entitled to very little weight and that no evid ence w as pres ented to suppo rt a finding tha t any of the e nume rated fac tors of we re prese nt. 3
The trial court foun d that enh ancem ent factor (1 ) applied to both convictions for attempted murder because Appellant had a previous history of criminal convictions or crim inal behavior in addition to thos e nece ssary to establish the app ropriate ra nge. See Tenn. Code Ann. § 40-35-114(1) (19 97). Appellant concedes that the trial court correctly applied this factor, and we agree that it applied to both co unts of attemp ted murde r.
3 Appellant contends that the trial court should have considered his good employment history as a mitigating factor. While the trial court could have considered this fact under Tennessee Code Annotated § 40-35-113(13), the trial court was not required to do so and, even if it had, this fact, when balanced against th e violent na ture of this o ffense , would ha ve been entitled to little weigh t.
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The trial court found that enhancement factor (3) applied because th e offense involved more than on e victim. See Tenn. Code Ann. § 40-35-114(3) (1997). We conc lude th at the c ourt im prope rly app lied this factor because each count of attempted murder involved only one victim and there were separate conviction s for each offense. See State v. Clabo, 905 S.W.2d 197, 206 (Tenn. Crim. App. 1995) (holding that factor (3) was an “improper enhance ment factor, since there we re separate c onvictions for each victim”).
The trial court found that enhancement factor (6) applied to the conviction for attemp ted mu rder of Ec kford be cause Eckford sustaine d serious injuries. See Tenn. Code Ann. § 4 0-35- 114(6 ) (1997 ). The trial cou rt corre ctly app lied this factor. Indeed, the record indica tes that the bullet that ente red Eckford’s left arm paralyzed two of his nerves and that E ckford had to have surgery to repair the damag e. Further, this Cou rt has previously held that this factor can be applied to enha nce a convic tion for a ttemp ted first d egree murd er bec ause particu larly great injuries are not esse ntial to the co mm ission of the offense. State v. Nix, 922 S.W .2d 894, 903 (Tenn. Crim . App. 1996 ).
The trial court found that enhancement factor (9) a pplied to b oth convictions for attempted murder because Appellant employed a firearm in the commission of the offens es. See Tenn. C ode Ann . § 40-35-114 (9) (1997). Appellant contends that this factor was not applicable because he was also convicted of the firearms charge. However, this Court has previously stated that factor (9) can be applied regardless of whether a defendant has also been convicted of an offense involving a weapo n. State v. Timothy N. Mosier, No. 2, 1991 W L 93019, a t *1 (Tenn. C rim. App., Jack son, June 5 , 1991).
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The trial court found that enhancement factor (10) applied because Appellant had no hesitation in comm itting an offen se whe n the risk to huma n life was high. See Tenn. Code Ann. § 40-35-114(10) (1997). However, the trial court clearly erred in applying this factor because a high risk to hum an life is inherent in the offense of attempted murder. State v. Griffis, 964 S.W.2d 577, 603 (T enn. C rim. App . 1997).
The trial court also applied one nonstatutory enhancement factor—the place where the offense occurred.4 Specifically, the trial court took judicial notice of the fact that the street where the shooting occurred, Royal Street, was the main thoroughfare in Jackson. The court stated that even though no evidence had been introduced abou t the m atter, it wa s likely that other people and vehicles had been prese nt on th is busy street a t the tim e of the shoo ting. Th e trial co urt’s application of this nonstatutory enhancement factor was clearly erroneous. Regardless of whether the court erred when it took judicial notice of the nature of Royal Street, it is well settled that nonstatutory factors cannot be used to enhance a senten ce. State v. Grissom, 956 S.W.2d 514, 518 (Tenn. Crim. App. 1997); State v. Strickland, 885 S.W .2d 85, 89 (T enn. Crim. A pp. 1993).
Even though we hold that the trial court erred in applying some of the enhancement factors, a find ing that enha ncem ent fac tors we re erro neou sly applied does n ot equa te to a redu ction in the senten ce. State v. Keel, 882 S.W.2d 410, 4 23 (T enn. C rim. App. 1994). Two enhance ment factors w ere
4 Appellant also contends that the trial court improperly based the enhancement of the sentences on its decis ion no t to im pos e con sec utive s ente nce s. Ho weve r, the r eco rd ind icate s tha t the tr ial cou rt did not enhance Appellant’s sentences on this basis. Rather, the trial court merely stated that, for some reason that is not clear, it believed that it could not apply enhanceme nt factors (3) and (9) to consecutive senten ces.
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correc tly applied to the conviction for the attempted murder of Womack and three factors were correctly applied to the conviction for the attempted murder of Eckford. Furthe r, we ag ree tha t the m itigating factor in this cas e is entitled to little weight. Under thes e circumstan ces, we con clude that the re cord supports a sentence near the upper e nd of the ra nge for both counts of attempted first degree m urder.
Accordingly, the judgment of the trial court is AFFIRMED.
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JERRY L. SMITH, JUDGE
CONCUR:
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GARY R. WADE, PRESIDING JUDGE
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WILLIAM M. BARKER, SPECIAL JUDGE