IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE July 13, 1999
Cecil Crowson, Jr. APRIL SESSION, 1999 Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9810-cr-00368 ) Appellee, ) ) ) HAMILTON COUNTY VS. ) ) HON. DOUGLAS A. MEYER STANLEY WARREN MILLS, ) JUDGE ) Appe llant. ) (Direct Appeal - Second Degree ) Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
TOM LAND IS PAUL G. SUMMERS Suite 327 Attorney General & Reporter 744 McCallie Avenue Chattanooga, TN 374063 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243
BILL COX District Attorney General
RODNEY STRONG Assistant District Attorney 600 Market Street Chattanooga, TN 37403
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
On July 25, 1996, Juvenile Court of Hamilton County charged Appellant
with the first degree murder of Keith Hood. Appellant was nearly seventeen
years old at the time of the murder and was transferred to Criminal Court to be
tried as an adult. Appellant was indicted for first degree murder on December
11, 1996. In September of the following year, a jury found Appellant guilty of
second degree murder. He was sentenced to twenty years incarceration as a
Range I Standard O ffender.
Appellant raises the following three issues on appeal: (1) whether the
evidence was sufficient to convict him of second degree murder, rather than
voluntary manslaughter; (2) whether the trial court erred in sustaining the
State’s objection to Appellant’s counsel’s reference to the victim as a “drug
kingpin”; a nd (3) wh ether the trial court ab used its d iscretion in fa iling to
sentence h im as an es pecially mitigated offen der. After a careful review of the
record the judgment of the trial court is affirmed.
Facts
On M ay 5, 19 96, Ap pellan t attend ed a p arty at th e YMC A in
Chattanooga. At approximately 2:00 a.m. most of the attendees, including the
Appellant, left the party and gathered at a neighborhood market. While at the
marke t, a couple of individua ls, including Appella nt’s brothe r, fired guns into
the air. Ap pellant ha d stolen a gun from his father. B efore lea ving the m arket,
Appellant obtained the gun from his brother and left with two of his friends. He
was seated in the back seat of the vehicle. As Appellant and his friends rode
away, another vehicle, driven by the victim (Mr. Hood), came upon them and
-2- swerved in front of their vehicle. Appellant claimed that Mr. Hood had
threatened him, and actually shot at him one week prior to this, so when he
saw H ood sw erve in fron t of them Appella nt claime d he fea red for his life.
While Mr. Hood was stopped at a traffic light, the vehicle in which Appellant
was a p assen ger app roache d Mr. Ho od’s veh icle in the left-tur n lane.
Appe llant’s vehicle stoppe d just befo re com ing para llel to Mr. Ho od’s veh icle.
Appellant asked to be let out of the car so that he could “handle some
business.” Appellant claimed he attempted to flee, but Hood’s maneuvering of
the vehicle “made him think it was useless.” There was no other testimony
concerning an attempt to flee. Appellant claimed that he heard the “pop” of
Hood’s elec tric locks and believe d that Hood was getting ou t of the car to hurt
him, so he shot at Hood from the passenger side of Hood’s car. The bullet
entered Hood’s heart and caused internal bleeding, which led to death after
only a few minutes. The investigation after the shooting revealed that Hood
had ne ver unloc ked his d oors an d no we apon w as foun d in his car .
I. Sufficiency of the Evidence
When an appellant is challenging the sufficiency of the evidence the
question to address is “whether a rational trier of fact could find from the
evidence that the essential elements of the crimes for which the defendant
stands con victed were prove n beyond a reasonab le doubt.” Jackson v.
Virgin ia, 443 U.S. 307 (1979). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one
of guilt, so that on appeal a convicted defendant has the burden of
demon strating that the eviden ce is insufficient.” State v. Tug gle, 639 S.W.2d
913, 914 (Tenn. 1982). The Court of Criminal Appeals does not “reweigh the
-3- evidence adduced at a criminal trial. A guilty verdict, approved by the trial
judge , accre dits the testim ony of th e State ’s witne sses and re solves all
conflicts in testimony in favo r of the theory of the state .” State v. H atchett, 560
S.W .2d 627 , 630 (T enn. 19 78).
Appe llant claims on app eal that the evidenc e could o nly supp ort a
conviction for voluntar y mans laughte r, rather tha n seco nd deg ree mu rder.
Second degree murder is a “knowing killing of another.” Tenn. Code Ann. §
39-13-210. “Kno wing” is “when the pe rson is aware that the cond uct is
reasonab ly certain to cause the result.” Id., § 39-11-106 (a)(20). Voluntary
Manslaughter is “the intentional or knowing killing of another in a state of
pass ion pro duce d by ad equa te prov ocatio n suffic ient to le ad a re ason able
person to ac t in an irrational mann er.” Id., § 39-13 -211.
Here, the jury accredited the testimony of the State’s witnesses and
discredited the testimony of the Appellant and determined that there was
insufficient provocation to warrant a verdict finding Appellant guilty of volunta ry
manslaughter. This was the prerogative of the jury and we will not second-
gues s the d ecisio n of tha t pane l on the ques tion of p rovoc ation. T his issu e is
without m erit.
II. Reference to Victim as “Drug Kingpin”
Appe llant next co ntends that susta ining the S tate’s obje ction to
Appellant’s counsel’s reference in his closing argument to the victim as a “drug
kingpin” had the effect of making the jury discount Hood’s actions and
foreclose d cons ideration o f the hom icide as vo luntary m anslau ghter.
Howe ver, we dis agree. T he State conten ded at trial th at “kingpin ,” while not a
legal term, is a term that carries a high prejudicial connotation and there was
-4- no evidence in the proof to support it. While evidence of the reputation of the
victim fo r peac e or viole nce in the co mm unity is “g enera lly adm issible a s is
proof of specific acts of violence directed toward the defendant by the person
he is acc used o f killing if the defe ndant c laims to h ave bee n motiva ted to self-
defense, by fea rs engend ered by such knowledge ,” Broz v. S tate, 472 S.W.2d
907, 910 (Tenn. Crim. App. 1971), evidence of the victim’s drug-related
activities are irre levant. See e.g., State v. Copenny, 888 S.W.2d 450 (Tenn.
Crim. App. 1993). Appellant was allowed to testify regarding the incident one
week before the killing , when the victim allege dly sho t at App ellant. E ven if
there had been evidence that the victim was a “drug kingpin,” such information
is not relevant and it is not a justification for a killing. Appellant was not
entitled to characterize the victim in a pejorative manner in order to create an
inference that the ho micide w as justifiable . This issu e is withou t merit.
III.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE July 13, 1999
Cecil Crowson, Jr. APRIL SESSION, 1999 Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9810-cr-00368 ) Appellee, ) ) ) HAMILTON COUNTY VS. ) ) HON. DOUGLAS A. MEYER STANLEY WARREN MILLS, ) JUDGE ) Appe llant. ) (Direct Appeal - Second Degree ) Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
TOM LAND IS PAUL G. SUMMERS Suite 327 Attorney General & Reporter 744 McCallie Avenue Chattanooga, TN 374063 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243
BILL COX District Attorney General
RODNEY STRONG Assistant District Attorney 600 Market Street Chattanooga, TN 37403
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
On July 25, 1996, Juvenile Court of Hamilton County charged Appellant
with the first degree murder of Keith Hood. Appellant was nearly seventeen
years old at the time of the murder and was transferred to Criminal Court to be
tried as an adult. Appellant was indicted for first degree murder on December
11, 1996. In September of the following year, a jury found Appellant guilty of
second degree murder. He was sentenced to twenty years incarceration as a
Range I Standard O ffender.
Appellant raises the following three issues on appeal: (1) whether the
evidence was sufficient to convict him of second degree murder, rather than
voluntary manslaughter; (2) whether the trial court erred in sustaining the
State’s objection to Appellant’s counsel’s reference to the victim as a “drug
kingpin”; a nd (3) wh ether the trial court ab used its d iscretion in fa iling to
sentence h im as an es pecially mitigated offen der. After a careful review of the
record the judgment of the trial court is affirmed.
Facts
On M ay 5, 19 96, Ap pellan t attend ed a p arty at th e YMC A in
Chattanooga. At approximately 2:00 a.m. most of the attendees, including the
Appellant, left the party and gathered at a neighborhood market. While at the
marke t, a couple of individua ls, including Appella nt’s brothe r, fired guns into
the air. Ap pellant ha d stolen a gun from his father. B efore lea ving the m arket,
Appellant obtained the gun from his brother and left with two of his friends. He
was seated in the back seat of the vehicle. As Appellant and his friends rode
away, another vehicle, driven by the victim (Mr. Hood), came upon them and
-2- swerved in front of their vehicle. Appellant claimed that Mr. Hood had
threatened him, and actually shot at him one week prior to this, so when he
saw H ood sw erve in fron t of them Appella nt claime d he fea red for his life.
While Mr. Hood was stopped at a traffic light, the vehicle in which Appellant
was a p assen ger app roache d Mr. Ho od’s veh icle in the left-tur n lane.
Appe llant’s vehicle stoppe d just befo re com ing para llel to Mr. Ho od’s veh icle.
Appellant asked to be let out of the car so that he could “handle some
business.” Appellant claimed he attempted to flee, but Hood’s maneuvering of
the vehicle “made him think it was useless.” There was no other testimony
concerning an attempt to flee. Appellant claimed that he heard the “pop” of
Hood’s elec tric locks and believe d that Hood was getting ou t of the car to hurt
him, so he shot at Hood from the passenger side of Hood’s car. The bullet
entered Hood’s heart and caused internal bleeding, which led to death after
only a few minutes. The investigation after the shooting revealed that Hood
had ne ver unloc ked his d oors an d no we apon w as foun d in his car .
I. Sufficiency of the Evidence
When an appellant is challenging the sufficiency of the evidence the
question to address is “whether a rational trier of fact could find from the
evidence that the essential elements of the crimes for which the defendant
stands con victed were prove n beyond a reasonab le doubt.” Jackson v.
Virgin ia, 443 U.S. 307 (1979). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one
of guilt, so that on appeal a convicted defendant has the burden of
demon strating that the eviden ce is insufficient.” State v. Tug gle, 639 S.W.2d
913, 914 (Tenn. 1982). The Court of Criminal Appeals does not “reweigh the
-3- evidence adduced at a criminal trial. A guilty verdict, approved by the trial
judge , accre dits the testim ony of th e State ’s witne sses and re solves all
conflicts in testimony in favo r of the theory of the state .” State v. H atchett, 560
S.W .2d 627 , 630 (T enn. 19 78).
Appe llant claims on app eal that the evidenc e could o nly supp ort a
conviction for voluntar y mans laughte r, rather tha n seco nd deg ree mu rder.
Second degree murder is a “knowing killing of another.” Tenn. Code Ann. §
39-13-210. “Kno wing” is “when the pe rson is aware that the cond uct is
reasonab ly certain to cause the result.” Id., § 39-11-106 (a)(20). Voluntary
Manslaughter is “the intentional or knowing killing of another in a state of
pass ion pro duce d by ad equa te prov ocatio n suffic ient to le ad a re ason able
person to ac t in an irrational mann er.” Id., § 39-13 -211.
Here, the jury accredited the testimony of the State’s witnesses and
discredited the testimony of the Appellant and determined that there was
insufficient provocation to warrant a verdict finding Appellant guilty of volunta ry
manslaughter. This was the prerogative of the jury and we will not second-
gues s the d ecisio n of tha t pane l on the ques tion of p rovoc ation. T his issu e is
without m erit.
II. Reference to Victim as “Drug Kingpin”
Appe llant next co ntends that susta ining the S tate’s obje ction to
Appellant’s counsel’s reference in his closing argument to the victim as a “drug
kingpin” had the effect of making the jury discount Hood’s actions and
foreclose d cons ideration o f the hom icide as vo luntary m anslau ghter.
Howe ver, we dis agree. T he State conten ded at trial th at “kingpin ,” while not a
legal term, is a term that carries a high prejudicial connotation and there was
-4- no evidence in the proof to support it. While evidence of the reputation of the
victim fo r peac e or viole nce in the co mm unity is “g enera lly adm issible a s is
proof of specific acts of violence directed toward the defendant by the person
he is acc used o f killing if the defe ndant c laims to h ave bee n motiva ted to self-
defense, by fea rs engend ered by such knowledge ,” Broz v. S tate, 472 S.W.2d
907, 910 (Tenn. Crim. App. 1971), evidence of the victim’s drug-related
activities are irre levant. See e.g., State v. Copenny, 888 S.W.2d 450 (Tenn.
Crim. App. 1993). Appellant was allowed to testify regarding the incident one
week before the killing , when the victim allege dly sho t at App ellant. E ven if
there had been evidence that the victim was a “drug kingpin,” such information
is not relevant and it is not a justification for a killing. Appellant was not
entitled to characterize the victim in a pejorative manner in order to create an
inference that the ho micide w as justifiable . This issu e is withou t merit.
III. Sentencing
Appellant next asserts that rather than being sentenced as a Range I
standard offender, he should have been sentenced as an especially mitigated
offender. Our review of the trial court’s sentencing is “de novo with a
presumption of correctness conditioned upon the affirmative showing in the
record that the trial court considered the sentencing principles and all relevant
facts and circum stances.” State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91).
Appellant has the burden of establishing that the sentence imposed by the trial
court is erroneous. In determining whether this burden has been met, we
must consider the evidence received at trial and the sentencing hearing, the
-5- presentence report, the principles of sentencing, arguments of counsel, the
nature and circumstances of the offense, existing mitigating and enhancing
factors, sta temen ts mad e by the o ffender, a nd pote ntial for reha bilitation.
Tenn. Code Ann. § 40-35-210. Appellant has not satisfied this burden. The
evidence, sentencing principles, and relevant facts and circumstances do not
show th at the sen tence im posed by the trial co urt was e rroneou s.
For this offens e, whic h is a C lass A felony, th e pres ump tive sen tence is
twenty years. The sentence is then raised or lowered after balancing
mitigating and enhancement factors. Tenn. Code Ann. § 40-35-2 10(d), (e).
“The weight afforded mitigating or enhancement factors derives from
balancing relative degrees of culpability within the totality of the circumstances
. . .. In other words, the weight that is given to any existing factor is left to the
trial court’s discretion so long as . . . its findings are suppo rted by the record .”
State v. Mars hall, 870 S.W .2d, 532 , 541.
The “trial court may find the defendant to be an especially mitigated
offender if he has no prior felony convictions and the court finds mitigating, but
no enh ancing factors.” T enn. C ode An n. § 40-35-109 (a). “The word ‘may’
when used in a stat ute or ru le usu ally indic ates th at the a ct to wh ich it refe rs is
discretionary rather than mandatory, and will be so construed unless the
context indicates a different mean ing.” State v. Braden, 867 S.W.2d 750, 762
(Tenn. C rim. App. 199 3). The que stion of whethe r the Appellant sh ould have
been sentenced as an especially mitigated offender “rests within the sound
discretion of the trial court.” Id. Here, the cou rt found three m itigating factors
listed in section 40-35-113 of the Tennessee Code: (1) Appellant acted under
strong p rovocatio n; (2) sub stantial gro unds e xisted tend ing to excu se or justify
his criminal conduct, though failing to establish a defense; and (3) because of
-6- his youth, A ppellant la cked su bstantial jud gmen t in comm itting the offen se.
Howe ver, the trial co urt also fou nd an e nhanc emen t factor und er § 40-3 5-114.
The enhancement factor that the trial court found was Appellant’s previous
history of criminal behavior. If the trial court’s finding of an enhancement
factor was correct, Appellant “did not qualify as an especially mitigated
offende r.” Tenn . Code Ann. S ec. 40-3 5-109(a )(2); Braden, 867 S.W.2d at
763.
Appellant argues that while he did have juvenile arrests for criminal
trespass, evading arrest, criminal impersonation and disorderly conduct after
the com mission of the insta nt offense , they are still pe nding in J uvenile C ourt;
therefore, the trial court should not have considered them as enhancing
factors of this offense. We agree with this argument. Section 40-35-114
states that the defendant’s previous history of criminal convictions or criminal
behavior” may be considered enhancement factors. Tenn. Code Ann. § 40-
35-114(1). The trial court concluded that Appellant’s juvenile arrests for the
aforem entione d cond uct cons tituted “crim inal beha vior” unde r the statute .
W e add resse d a sim ilar situa tion in State v. Buck meir, where this court
held that it was improper for a trial judge to consider pending criminal charges
as evidence of “previous criminal behavior” to enhance a sentence under
Section 40-35-114(1). We held that there was “no evidence in the record that
these charges against the defendant were anything more than charges, the
defendan t is presume d innocent un til convicted.” State v. Buck meir, 902
S.W.2d 418, 424 (Tenn. Crim. App. 1995). Such is the case here. The
charges pending in juvenile court are “nothing more than charges and the trial
court sho uld not us e eviden ce me rely show ing arres ts, without m ore, to
enhance a sentence .” State v. Mars hall, 870 S.W.2d 532, 541 (Tenn. Crim.
-7- App. 1994 ) (citing State v. Newsome, 798 S.W.2d 542, 543 (Tenn. Crim. App.
1990)); see also State v. Miller, 674 S.W.2d 279 (Tenn. 1984). Therefore, the
trial court should not have considered these charges as an enhancement
factor.
However, this does not end the inquiry. It is clear that Appellant used a
firearm in the commission of the instant offense, a factor that the trial judge
inexplic ably faile d to co nside r. This is clear ly and a pprop riately a n app licable
enhance ment factor in this ca se. See, Te nn. Code Ann. Sec . 40-35-14(a);
State v. Butler, 900 S.W.2d 305 (Tenn. Crim. App. 1994). The presence of
this valid enhancement factor disqualifies Appellant from consideration as an
espec ially mitigated offende r and am ply supp orts his twe nty year se ntence .
This issu e is withou t merit.
Having reviewed the issues presented we find no reversible error and
AFFIR M the jud gmen t of the trial cou rt.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ JOE G. RILEY, JUDGE
___________________________________ NORMA MCGEE OGLE, JUDGE
-8-