IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY SESSION, 1996
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9502-CC-00043 ) Appellee, ) ) ) HARDIN COUNTY VS. ) ) HON. CREED MCGINLEY MARIO GUTIERREZ, ) JUDGE
Appellant. ) ) (Delayed Appeal) FILED May 15, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk FOR THE APPELLANT: FOR THE APPELLEE:
Mr. Donald Holt Charles W. Burson 216 Dr. Hicks Blvd. West Attorney General and Reporter Florence, AL 35631 Michael J. Fahey, II Mr. Lee Lackey Assistant Attorney General 507 Water Street 450 James Robertson Parkway Savannah, TN 38372 Nashville, TN 37243
Larry Bryant Robert Radford P. O. Box 663 District Attorney General Camden, TN 38120 John Overton Assistant District Attorney Hardin County Courthouse Savannah, TN 38372
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
This is a delayed appeal granted by the trial court pursuant to Tenn. Code
Ann. § 40-30 -120 (1 990). A ppella nt Ma rio Gu tierrez s eeks relief from his 1992
voluntary manslaughter conviction which resulted from the fatal shooting of Ms.
Deborah McK ee, his girlfriend with whom he lived. Mr. Gutierrez received a six
year sentence as a Range 1 standard offender. He was also fined $10,000.
There are four issues presented for review:
(1) whethe r the evide nce is leg ally sufficient to suppo rt the verdict;
(2) whether the pros ecution unconstitutiona lly used perem ptory
challenges to remove two prospective African-American jurors;
(3) whether Appe llant receive d the e ffective a ssista nce o f coun sel at h is
trial; and
(4) whether Appellant’s sentence was excessive.
After a review of the record, we find no error and affirm the judgment of the
trial court.
I. Sufficiency of Evidence
When an appeal challenges the sufficiency of the evidence, the sta ndard
of review is whethe r, after vie wing th e evide nce in the ligh t mos t favora ble to the
prosecution, any rational trier of fact cou ld have fo und the essen tial eleme nts of
the crime beyond a reasonable doubt. Jack son v. V irginia, 443 U.S. 307, 318
(1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992); Tenn. R. App. P.
13(e). In a criminal trial, great weight is given to the result reached by the jury.
State v. Johnson, 910 S.W .2d 897, 899 (Tenn. Crim . App. 1995 ).
-2- 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, 835 (Tenn. 1978). The weight
and credibility of the testimony o ffered at trial are matte rs entru sted e xclusive ly
to the jury as trie r of fact. State v. Sheffie ld, 676 S.W.2d 542, 547 (Ten n. 1984).
A convic tion m ay be b ased entirely on circ ums tantial evidence where th e facts
are “so clearly interwoven and connected that the finger o f guilt po ints un erring ly
at the defendant and the defenda nt alone.” State v. Duncan, 698 S.W.2d 63, 67
(Tenn. 19 85).
Once approved by the trial court, a jury verdict accredits the witnesses
presented by the Sta te and re solves all co nflicts in favor o f the State . State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Moreover, a guilty verdict removes
the presumption of innocence and raises a p resum ption of gu ilt. State v. Tug gle,
639 S.W.2d 913, 914 (Tenn. 1982). The defendant then bears the burden of
overcoming this pre sum ption o f guilt on appe al. State v. Black, 815 S.W.2d 166,
175 (Ten n. 1991).
Viewed in the light of these well-established standards of appellate review,
the record reflects that on January 12, 1992, Deborah McKee was shot and killed
in the home she shared with Appellant. Th e medica l examiner, Dr. Jerry
Francisco, testified that the fatal gunshot wound was inflicted to the left side of
Ms. McKee’s head, just above the eyebrow. The wound indicated that the gun
had been less that two feet from Ms. McKee’s head, but not in contact with her
head. Dr. Francisco stated that the wound to the left side of the head was
inconsistent with suicide since the victim was right-handed. According to the
-3- medical examiner, Ms. McKee had sustained abrasions and contusions over
most of her body. The bruises on her back were consistent with her having been
beaten by an object, and Ms. McKee’s broken fingernails and injured hand
indicated she ha d tried to de fend he rself.
The results of the guns hot residue test p erformed o n Ms. McK ee were
more consistent with her having handled the gun than with her having fired the
gun. Wh ile the test performed on Appellant was inconclusive, a gunshot residue
expert testified that, in his opinion, Appellant was in close proximity of the gun
when it was fired. Fu rthermore , a firearm s expe rt testified that the gun in
question wo uld not have fired w ithout a finger pulling the trigge r.
According to a statement made by Appellant during the course of the police
investigation, Ms. McKee returned home upset on the night of January 12, 1992.
She complained of physical pain and other problems. She then stated that she
was “going to finish this” and, after a discus sion with Appellant, retrieved a gun
from the living room cabinet. A struggle e nsued as App ellant attem pted to
prevent Ms. McKee from harming herself. During the struggle, the gun fired, and
a bullet struck Ms. M cKee in the head. Appellant stated that while Ms. McKee lay
on the floor bleeding, he took the gun to the bathroom and wrapped it in a wet
towel to hide it from her. He then phoned the police and arranged to meet an
ambulance at a nearby YMCA. He placed Ms. McKee on the floor of his van and
departed. Appellant stated that, because of previous injuries suffered by Ms.
McKee, he made no attempt to stop the bleeding or render first aid. The police
officer who met the van testified that Ms. McKee was bleeding from the left side
-4- of her head and that her blouse was open and “messed up.” She died later that
evening.
Other statem ents m ade by A ppellant followin g the incident were somewhat
inconsistent with the above statement. Appellant told one officer that Ms. McKee
simp ly shot herself. Appellant told another officer that he and Ms. McKee
quarreled and the n she sh ot herse lf. Later, App ellant told a neighbor that Ms.
McKee threatened to shoot him before the struggle for the weapon began.
Moreover, Appellant initially reported to the police that Ms. McKee had no fam ily,
when, in fact, he ha d met m embe rs of her fam ily in the past.
Witnesses described Ms. McKee as personable, optimistic, and cheerful
on the day she was shot. In addition to working out at the YMCA, she spent
appro ximate ly three hours with her friend Diana Thomas. Ms. Thomas testified
that Ms. McKee was not up set an d ma de no men tion of a ny phy sical pa in or other
problems. Ms. Thomas also testified that Ms. McKee became nervous just
before she departed for home.
According to witnesses, Ms. McKee intended to leave Appellant and return
to Texas . A neighbor testified that Appellant had told him that he and Ms. McKee
had argued ab out her leaving. Ad ditionally, the neighbor testified that prior to the
shooting, Appella nt had sh own him the gun which killed Ms. McKee. Ms.
McK ee’s twin sister, Marti Bronikowski, a law enforcement officer in Texas,
testified that she spoke with Ms. Mc Kee by phone on the nig ht of the inc ident.
She stated that her sister was frightened and unhappy. Consequently, Ms.
Bronikowski advised Ms. McKee to return to Texas. Ms. Bronikowski also
-5- testified that her sister was disturbed by guns, displaying uneasiness when she
was within sight of M s. Bronikows ki’s service revolver.
Based on the fore going e vidence , the jury foun d Appe llant guilty of
voluntary manslau ghter. Voluntary manslaughter is defined at Tenn. Code Ann.
§ 39-13 -211(a) (1 991) as :
the intentional or knowing killing of another in a state of passion produ ced b y adeq uate p rovoc ation sufficient to lead a reasonable person to act in an irrational manne r.
Appellant argues that the evidence is insufficient to support a jury finding that he
intentio nally shot Ms. McKee. We must disagree. The evidence revealed that
Appellant and Ms. McKee were the only people present when the shooting
occurred, that App ellant ma de incon sistent state ments regarding the shooting,
that Appe llant an d Ms. M cKee were in volved in a dispute concerning Ms.
McKee’s plan to retu rn to Te xas, and that phys ical eviden ce surro unding the
weapon and the wound implicate d Appe llant. Because this proof was m ore than
sufficient for a rational trier of fact to conclude beyond a reas onab le doubt that
Appe llant intention ally shot M s. McK ee, this issu e is withou t merit.
II. Use of Peremptory Challenges by the Prosecution
In Appellant’s second issue, he alleges that the prose cution impe rmiss ibly
used peremptory challenges to remove two African-Am erican prospe ctive jurors
from the petit jury. T he exerc ise of a peremp tory challenge based solely on the
race of the challenged prospective juror violates federa l and state equal
protection guaran tees. Batson v. Kentucky, 476 U.S . 79, 89 (1986); State v.
Jones, 789 S.W.2d 545, 548 (Tenn. 1990). However, the dismissal of one or
-6- more black jurors, without more, is not uncon stitutional. State v. Bell, 759 S.W.2d
651, 653 (Ten n. 1988). The defendant must present a prima facie case of racial
discrimination by sho wing that the totality of the relevant facts surrounding the
questioned peremptory challenge gives rise to an inference of discriminatory
purpos e. Batson, 476 U.S . at 94; State v. Ellison, 841 S.W.2d 824, 825 (Tenn.
1992). Once the defendant presents a prima facie case of discriminatory
purpos e, the bur den sh ifts to the prosecution to provide a rational, race-neutral
explanation for the exe rcise of the perem ptory cha llenge. Batson, 476 U.S. at 94.
In this case, the prosecution used peremptory challenges to dismiss two
African-American prospective jurors. In providing an explanation for the
challenge to prospective juror Siner, the prosecution stated that Siner had been
under more than one police investigation for drug- and alcohol-related activities.
In providing an explanation for the challenge to prospective juror Sparks, the
prosecution stated that Sp arks h ad on voir dire untruth fully denied being related
to an individual convicte d of second degree m urder. Nothing in the record
indicates that the prosecutor was being less than candid in these assertions.
The trial court ruled that each reason given by the prosecution constituted
a rational, non-racial basis for the exercise of a peremptory challenge. The
record amply supports the ruling of the trial court. We find no unconstitutional
use of peremptory challenges in this case.
III. Assistance of Counsel
-7- Appellant also argues that he failed to receive the effective assistance of
counsel at trial, such that he was denied his cons titutional right to couns el. When
an appeal challenges the effective assistance of counsel, the standard of review
is whether the representation was within the range of competence demanded of
attorneys in criminal cases. Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 197 5).
To prevail on a claim of ineffective assistance of counsel, the defendant must
show that (1) counsel’s performance was deficient, and (2) the deficient
performance prejudiced the defense so as to d eprive the defend ant of a fair trial.
Barr v. State , 910 S.W .2d 462, 464 (Tenn. Crim . App. 1995 ).
In order to prove deficient performance, the defendant must establish that
the representation fell below a n objective standa rd of reas onable ness. Id. at 462.
On review, the re is a stron g presu mption of satisfacto ry represe ntation. Id. In
order to prove prejudice, the defendant must establish that, bu t for cou nsel’s
ineffectiveness, a reaso nable p robability exists that the result of the proceedings
would have been differe nt. Id. A reasonable probability is defined as a
probab ility sufficient to unde rmine c onfiden ce in the re sult. Id.; see also Overton
v. State, 874 S.W .2d 6, 11 (Te nn. 1994).
First, Appellant argues that trial counsel failed to file a timely motion to
suppress Appe llant’s sta teme nt to the police . Appe llant ap pears to bas e this
argument on the fact tha t, in over ruling an objection to the statement, the trial
court stated that the issu e shou ld have b een raise d earlier. However, Appellant
fails to demon strate that, b ut for coun sel’s failure to file a timely m otion to
suppress the statement, a reasonable probability exists that the result of the
proceedings would have been different. Furthermore, there is no evidence in the
-8- record that the police ob tained the sta teme nt in viola tion of A ppella nt’s
constitution al rights.
Second, Appellant argues that trial counsel failed to object to the testimony
of Marti Bronikowski, twin sister of the victim. Appellant maintains that the
testimony was objectionable because Ms. Bronikowski was improperly allowed
to hear the testimon y of other w itnesses . In an effort to show prejudice, Appellant
asserts that Ms. Broniko wski’s testim ony rega rding a p hone c onversa tion with
Ms. McKee on the night of the incident was vital to the pros ecution in its effort to
show that the sh ooting w as intentio nal. How ever, acc ording to the record , all
testifying witnesses were properly removed from the courtroom at the beginning
of the trial. T he on ly mem bers o f the victim ’s fam ily that remained in the
courtroom were those that were not going to testify. No evidence exists in the
record indicating that Ms. Bronikowski remained in the courtroom during the
testimon y of the othe r witnesse s.
Third, Appellant argues that trial counsel failed to investigate Ms.
Bronikowski for impeachment purposes. Appellant mainta ins that an adequ ate
investigation would have revealed the following impeachment evidence: the fact
that the phone call between Ms. Bronikowski and Ms. McKee did not appear on
Appe llant’s phone card; the fact that Ms. Bronikowski had been forced to resign
her employment; and the fact that Ms. Bronikowski had been physically removed
from Ms. McKee’s property on one o ccas ion. Du ring the hearin g on A ppella nt’s
petition for post-conviction relief, trial counsel testified that he did conduct an
investigation of Ms. Bronikowski. He stated that his investigator had made phone
calls to Texas in an effort to lo cate im peac hme nt evide nce o n Ms. B roniko wski.
-9- Trial counsel also testified that he reviewed the resu lts of the inves tigation with
Appe llant. No evidence exists in the record that the investigation performed by
trial counsel was deficient. Even assuming that this investigation fell below an
objective standard of reasonableness, Appellant has failed to show prejud ice--
that, but for cou nsel’s failure to satisfacto rily impeac h Ms. B ronikow ski, a
reaso nable proba bility exists that the result o f the pro ceed ings w ould have been
different. Becau se mo st of Ms. B ronikow ski’s testim ony was cumu lative,
impeaching Ms. Bronikowski with the above evidence wo uld, in all probability,
have n o ma de a d ifferenc e in the outco me o f the trial.
Thus, in light of Appellant’s failure in each case to make a showing
sufficient to overcome the strong presumption of satisfactory representation, we
find that Ap pellant wa s afforde d effective a ssistanc e of coun sel at trial.
IV. Sentencing
In his final issue Appellant allege s that his six year sente nce is excess ive
and that he should have received some form of a lternative se ntence to
incarceration. We will in turn discuss both the length of Appellant’s sentence and
his suitability for an alternative sentence.
W hen an appeal challenges the length, range, or manner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determination of the tria l court was correct. Tenn. Code Ann. § 40-35-401(d)
(1990). However, this pre sumption o f correctness is “conditioned upon the
affirmative showing that the trial court in the record considered the sentencing
principles and all relevant facts and circu mstance s.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). In the event that the record fails to demonstrate such
-10- consideration, review of the sente nce is purely de novo . Id. In conducting a
review, this Court must consider the evidence, the presentence report, the
sentencing principles, the arguments of counsel, the nature and character of the
offense, mitigating and enhancement factors, any statements made by the
defend ant, and the potential for rehabilitation or treatme nt. State v. Holland, 860
S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears the burden of
showing the impropriety of the sentence impos ed. State v. Grego ry, 862 S.W.2d
574, 578 (T enn. Crim. A pp. 1993).
W e note initially that the trial judge did consider on the record the statutory
sentencing princip les an d the fa cts an d circu msta nces of the c ase. F or this
reason, our review of Appellant’s sentence will be de novo with a presumption
that the se ntence is correct.
A. Length of Sentence
In this case the jury convicted Appellant of voluntary manslaughter, a Class
C felony. As a Range 1 standard offender for this offense Appellant’s sentence
must be between three and six years. Tenn. Code Ann. Sec. 40-35-112 (a)(3).
In the absence of enhancement and mitigating factors, the presumptive sentence
for a person in Appellant’s situation is the minimum senten ce in the ra nge. Tenn.
Code Ann. Sec. 40-35-210(c). Where one or more en hancem ent factors app ly,
but no m itigating factors exist, the trial court may properly sentence above the
minimum but still within the range. Id. § 40-35 -210(d). Where there are both
enhancement and m itigating facto rs prese nt the trial court must start at the
minimum senten ce, enh ance w ithin the ran ge as a ppropria te for the
enhancement factors, and then reduce the sentence with in the range as
approp riate for the m itigating facto rs. Id. § 40-35 -210(e). The weight give n to
any existing enha ncing or mitig ating fa ctor is left to the trial cou rt’s discretion so
-11- long as the court complies with the purposes and principles of the sentencing act
and the judge’s findings a re adeq uately sup ported b y the reco rd. State v.
Shropsh ire, 874 S.W .2d 634 (Te nn. Crim. Ap p. 1993).
In the instant case the trial court found the two following enhancement
factors applic able to Appe llant’s case: Appellant employed a firearm during the
commission of the offense, Tenn. Code Ann. Sec. 40-35-114(9); and Appellant
abused a position of private trust, id. § 40-35-114(15). No mitigating factors we re
found a pplicable .
Appellant first argues that the enhancement factor dealing with the violation
of a private trust is in applic able to his case. The Tennessee Supreme Court has
affirmed the application of this enhancement factor to an adult defendant who,
while not the paren t of his ch ild victims, lived with the victims and the ir mother.
State v. Adams, 864 S.W.2d 31,34 (Tenn. 1993). Apparently, no Tennessee
case has dealt with the Application of section 40-35-114(15) to a defendant and
victim who are both adults and members of the same household, as is the
situation in the in stant c ase. H owev er, it is cle ar that m emb ers of a hous ehold
are in a special positio n of trus t with res pect to one a nothe r. Pres uma bly, this
special trust is at least one of the factors leading to the decision to cohabit. Thus,
we find the application of the enhancement factor found in 40-35-114(15) to be
appropriate in this case.
Second ly, Appe llant argues that his lack of any crim inal history should ha ve
been cons idered in mitig ation o f his sentence pursuant to Tenn. Code Ann. Sec.
40-35-113(13) which allows consideration of any factor consistent with the
purposes of the sentencin g act as a m itigating factor. It is true that this Court has
stated that a la ck of criminal history may be considered as a mitigating factor
under Sec. 40-35-1 13(13). State v. Bingham, 910 S.W.2d 448 (Tenn. Crim. App.
-12- 1995), N.2. Unlike Bingham in which the lack of a criminal record was
considered in sentencing mitigation for a reckless vehicular homicide, the case
sub judice involve s the in tention al or kn owing killing of another human being.
See, Tenn. Code Ann. Sec. 39-13-211. Under the circumstances and in view of
the seriousness of the two applicable enhancement factors, any weight give n to
this mitigating factor is ne gligible. See e.g . State v. Raines, 882 S.W.2d 376, 386
(Tenn. C rim. App. 199 4).
We therefore affirm the imposition of a six year sentence in this case.
B. Manner of Sentence Service
Although Appe llant do es no t spec ifically argue he should have received an
alternative sentence to incarceration in the penitentiary, he obliquely makes
reference to his suitability for such a sentence. We will therefore address the
propriety of Appe llant serving his senten ce in the peniten tiary.
The Tennessee Criminal Sentencing Reform Act of 1989 recognizes the
limited capac ity of state prisons and mandates that “convicted felons committing
the most severe offenses, possessing criminal histories evincing a clear
disregard for the laws and morals of so ciety, and evincing failure o f past effors
of rehab ilitation s hall be given firs t priority regarding sentencing involving
incarcer ation.” Tenn. Co de Ann. § 4 0-35-102(5). A defendant who does not
qualify as such and who is an especially mitigated or standard offender of a Class
C, D, or E felony is “presumed to be a favorable candidate for sentencing options
in the absen ce of evidence to the contrary.” Id. § 40-35-102(6). A sentencing
court m ay then only deny alte rnative se ntencing when p resente d with sufficient
evidence to overcome the presump tion. State v. Ashby, 823 S.W.2d 166, 169
-13- (Tenn. 1991). A denial of alternative sentenc ing in the face of the s tatutory
presumption should be based on the following considerations:
(A) Confinem ent is necess ary to protect society by restraining
a defen dant wh o has a long histo ry of crimina l conduc t;
(B) Confinement is necessary to avoid depreciating the
seriousness of the offense or co nfinemen t is particularly suited to
provide an effective deterrence to others likely to commit similar
offenses; or
(C) Measure s less restrictive than confine ment have
freque ntly or rece ntly bee n app lied un succ essfu lly to the defe ndant.
Tenn. C ode Ann . § 40-35-103 (1).
As a Range I standard offender Appellant is entitled to the presumption
that he is entitled to an alternative sentence. Thus, the question becomes
whether this pre sum ption has been sufficiently rebutted. At the original
sentencing hearing in this matter th e trial judge cited the n eed to d eter othe r acts
of dome stic violence in Hardin Coun ty as a reason for incarcera tion of Ap pellant.
The trial judge indicated domestic violence was growing in the area however no
spec ific evidence of the need for deterrence was ever presented in this case.
Ordin arily the need for deterrence must be proven in a given case and a m ere
recitation of the n eed fo r deter rence is insufficient to sustain a denial of an
alternative s entenc e. State v. Ashby, supra. at 170.
Howeve r, we need not address the issue of whether in this case deterrence
may form the basis for the denial of an alternative sentenc e becaus e the nature
and circums tances of this offe nse re quire in carce ration in order to avoid
depreciating the seriousness of it. See, Tenn. Code Ann. Sec . 40-35-301(1 )(B).
-14- This particular crime arose out of an incident of domestic violence. This
particular form of violence is one that is approaching epidemic proportions in our
society. The statistics contained in the scholarly literature are quite startling.
According to some estimates, there are as many as four million incidents of domestic violence against women every year. Federal Bureau of Investigation statistics indicate that a woman is beaten every eighteen seconds, and according to the Surgeon Gen eral, abuse inflicted by intimates constitutes one of the leading causes of injury to women in the United States. Thirty percent of women murdered in the United States are killed by their male partners. No segment of society is immu ne from this violenc e-- battering is preva lent am ong e very ec onom ic, racia l, and ethnic group.
Developments in the Law -- Legal Responses to Domestic Violence, 106 Harv.
L. Rev. 1498 , 1501(199 3) (statistical citations omitted).
Another article states:
[D]om estic violence remains the greatest cause of serious injury to American women, accounting for more injurious episodes than rape, auto accidents, and mugging combined. Other statistics are just as chilling. A woman is beaten every twelve seconds. Fifteen hundred women a year (approxim ately four per day) die at the h ands of an a busive male partne r. Rou ghly twenty-one thousand domestic crimes against women are reported every week -- more than a million assaults, murde rs, and ra pes in a ye ar. These a re the reported crimes. P olice estim ate that for each of these crimes, three more go unreported. In all there are an estimated 1.8 to 4 million incidents of domestic violence each year. (statistical citations omitted)
David M. Zlotnick, Empowering the Battered Woman: The Use of Criminal
Contempt Sanc tions to Enfor ce Civ il Protec tion Orders, 56 Ohio St. L. J. 1153,
1156-57 (1 995).
Given that Ms. McKee’s death resulted from an episode of the serious and
pervasive problem of domestic violence, it is the opinion of this Court that the
-15- presumption of entitlement to an alternative se ntence has be en rebu tted. A
sentence of incarceration is warranted in order to avoid depreciating the
seriousness of this offense.
The judgment of the trial court is affirmed.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ DAVID G. HAYES, JUDGE
___________________________________ LYNN BROWN, SPECIAL JUDGE
-16-