IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1998 SESSION FILED March 26, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9803-CC-00084 Appellee, ) ) Henry County V. ) ) Honorable Julian P. Guinn, Judge ) THOMAS EDWARD BRADLEY, ) (Voluntary Manslaughter) ) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
J. MARK JOHNSON JOHN KNOX WALKUP BILL R. BARRON Attorney General & Reporter 124 East Court Square Trenton, TN 38382 J. ROSS DYER Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243
ROBERT “GUS” RADFORD District Attorney General
STEVE GARRETT Assistant District Attorney General P.O. Box 686 Huntingdon, TN 38372
OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIAMS, Judge O P I N IO N
Thomas Edward Bradley was convicted of voluntary manslaughter and
sentenced to six years in the Tennessee Department of Correction. He appeals
this sentence as of right, arguing that the trial court erred in applying certain
enhancement factors. We AFFIRM the judgment of the trial court.
FACTS
The appellant has failed to include the trial transcript in the record on
appeal. Thus, the circumstances of the appellant’s crime are somewhat sketchy.
Briefly stated, on February 21, 1997, the appellant struck Maelene Cardwell on
her face with his hand, causing blunt trauma to, and bleeding of, her brain. The
victim was discovered the following day in a comatose state. She never
regained consciousness and, on September 23, 1997, she died as a result of her
injuries.
The appellant was indicted on November 3, 1997, for second degree
murder. Following a jury trial in the Circuit Court of Henry County, he was
convicted of the lesser included offense of voluntary manslaughter, a class C
felony. At his sentencing hearing, the trial court found applicable three
enhancement factors:
A victim of the offense was particularly vulnerable because of age or physical or mental disability . . . ; Tenn. Code Ann. § 40-35- 114(4).
The defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offense; Tenn. Code Ann. § 40-35-114(5).
The defendant had no hesitation about committing a crime when the risk to human life was high; Tenn. Code Ann. § 40-35-114(10).
The trial court noted the appellant’s poor physical health as a possible mitigating
circumstance but assigned no weight to that factor. Based on these findings, the
trial court enhanced the appellant’s sentence to the range I maximum of six
-2- years. The appellant challenges the applicability of each of the enhancement
factors found by the trial court.
STANDARD OF REVIEW
When an accused challenges the length or manner of service of a
sentence, it is the duty of this Court to conduct a de novo review on the record
“with a presumption that the determinations made by the court from which the
appeal is taken 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).
In conducting our de novo review, this Court must consider (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to
sentencing alternatives; (4) the nature and characteristics of the criminal conduct
involved; (5) any statutory mitigating or enhancement factors; (6) any statement
made by the accused in his own behalf; and (7) the potential or lack of potential
for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The appellant
carries the burden of showing that his sentence is improper. See Tenn. Code
Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan, 929 S.W.2d
391, 395 (Tenn. Crim. App. 1996).
ANALYSIS
The trial court based its finding that the victim was particularly vulnerable
primarily on the “disparate differences in sizes between the [appellant and victim]
and [the victim’s] physical condition. [The victim] was . . . intoxicated at the time
that [the appellant] killed her, and she weighed either a hundred pounds or
-3- somewhat less that a hundred pounds.” The appellant challenges this finding,
arguing that there was no evidence of the victim’s weight at the time of she was
assaulted, but only of her weight at the time of her autopsy, after she had been
comatose for over seven months. However, no evidence is before this Court on
this issue, as the appellant has failed to provide a transcript of the trial in the
record on appeal.
"When a party seeks appellate review there is a duty to prepare a record
which conveys a fair, accurate and complete account of what transpired with
respect to the issues forming the basis of the appeal." State v. Ballard, 855
S.W.2d 557, 560 (Tenn. 1993); see Tenn. R. App. P. 24(b). In the absence of
an adequate record, we are precluded from considering the issue and must
presume that the determinations of the trial court are correct. See State v. Oody,
823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); State v. Roberts, 755 S.W.2d
833, 836 (Tenn. Crim. App.1988). This issue is, therefore, without merit.
The appellant next challenges the trial court’s finding that the appellant
treated the victim with exceptional cruelty. Unlike his challenge to factor (4), the
appellant does not dispute the factual basis of this enhancement. Rather, he
admits that the manner in which he treated the victim would warrant a finding of
exceptional cruelty if this factor it were available for consideration. He argues,
however, that the exceptional cruelty enhancement is inapplicable to a conviction
for voluntary manslaughter as a matter of law.
The appellant asserts that malice is an essential element of second-
degree murder. Therefore, he argues, the jury’s verdict convicting him of
voluntary manslaughter rather than second degree murder implies that the jury
found his offense to have been committed without malice. Malice, the appellant
further asserts, is equivalent to exceptional cruelty, so that one cannot commit an
offense without malice yet involving exceptional cruelty.
-4- While this argument is flawed in several points, it is sufficient to note that
malice is not an element of second degree murder. See Tenn. Code Ann. § 39-
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1998 SESSION FILED March 26, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9803-CC-00084 Appellee, ) ) Henry County V. ) ) Honorable Julian P. Guinn, Judge ) THOMAS EDWARD BRADLEY, ) (Voluntary Manslaughter) ) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
J. MARK JOHNSON JOHN KNOX WALKUP BILL R. BARRON Attorney General & Reporter 124 East Court Square Trenton, TN 38382 J. ROSS DYER Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243
ROBERT “GUS” RADFORD District Attorney General
STEVE GARRETT Assistant District Attorney General P.O. Box 686 Huntingdon, TN 38372
OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIAMS, Judge O P I N IO N
Thomas Edward Bradley was convicted of voluntary manslaughter and
sentenced to six years in the Tennessee Department of Correction. He appeals
this sentence as of right, arguing that the trial court erred in applying certain
enhancement factors. We AFFIRM the judgment of the trial court.
FACTS
The appellant has failed to include the trial transcript in the record on
appeal. Thus, the circumstances of the appellant’s crime are somewhat sketchy.
Briefly stated, on February 21, 1997, the appellant struck Maelene Cardwell on
her face with his hand, causing blunt trauma to, and bleeding of, her brain. The
victim was discovered the following day in a comatose state. She never
regained consciousness and, on September 23, 1997, she died as a result of her
injuries.
The appellant was indicted on November 3, 1997, for second degree
murder. Following a jury trial in the Circuit Court of Henry County, he was
convicted of the lesser included offense of voluntary manslaughter, a class C
felony. At his sentencing hearing, the trial court found applicable three
enhancement factors:
A victim of the offense was particularly vulnerable because of age or physical or mental disability . . . ; Tenn. Code Ann. § 40-35- 114(4).
The defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offense; Tenn. Code Ann. § 40-35-114(5).
The defendant had no hesitation about committing a crime when the risk to human life was high; Tenn. Code Ann. § 40-35-114(10).
The trial court noted the appellant’s poor physical health as a possible mitigating
circumstance but assigned no weight to that factor. Based on these findings, the
trial court enhanced the appellant’s sentence to the range I maximum of six
-2- years. The appellant challenges the applicability of each of the enhancement
factors found by the trial court.
STANDARD OF REVIEW
When an accused challenges the length or manner of service of a
sentence, it is the duty of this Court to conduct a de novo review on the record
“with a presumption that the determinations made by the court from which the
appeal is taken 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).
In conducting our de novo review, this Court must consider (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to
sentencing alternatives; (4) the nature and characteristics of the criminal conduct
involved; (5) any statutory mitigating or enhancement factors; (6) any statement
made by the accused in his own behalf; and (7) the potential or lack of potential
for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The appellant
carries the burden of showing that his sentence is improper. See Tenn. Code
Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan, 929 S.W.2d
391, 395 (Tenn. Crim. App. 1996).
ANALYSIS
The trial court based its finding that the victim was particularly vulnerable
primarily on the “disparate differences in sizes between the [appellant and victim]
and [the victim’s] physical condition. [The victim] was . . . intoxicated at the time
that [the appellant] killed her, and she weighed either a hundred pounds or
-3- somewhat less that a hundred pounds.” The appellant challenges this finding,
arguing that there was no evidence of the victim’s weight at the time of she was
assaulted, but only of her weight at the time of her autopsy, after she had been
comatose for over seven months. However, no evidence is before this Court on
this issue, as the appellant has failed to provide a transcript of the trial in the
record on appeal.
"When a party seeks appellate review there is a duty to prepare a record
which conveys a fair, accurate and complete account of what transpired with
respect to the issues forming the basis of the appeal." State v. Ballard, 855
S.W.2d 557, 560 (Tenn. 1993); see Tenn. R. App. P. 24(b). In the absence of
an adequate record, we are precluded from considering the issue and must
presume that the determinations of the trial court are correct. See State v. Oody,
823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); State v. Roberts, 755 S.W.2d
833, 836 (Tenn. Crim. App.1988). This issue is, therefore, without merit.
The appellant next challenges the trial court’s finding that the appellant
treated the victim with exceptional cruelty. Unlike his challenge to factor (4), the
appellant does not dispute the factual basis of this enhancement. Rather, he
admits that the manner in which he treated the victim would warrant a finding of
exceptional cruelty if this factor it were available for consideration. He argues,
however, that the exceptional cruelty enhancement is inapplicable to a conviction
for voluntary manslaughter as a matter of law.
The appellant asserts that malice is an essential element of second-
degree murder. Therefore, he argues, the jury’s verdict convicting him of
voluntary manslaughter rather than second degree murder implies that the jury
found his offense to have been committed without malice. Malice, the appellant
further asserts, is equivalent to exceptional cruelty, so that one cannot commit an
offense without malice yet involving exceptional cruelty.
-4- While this argument is flawed in several points, it is sufficient to note that
malice is not an element of second degree murder. See Tenn. Code Ann. § 39-
13-210 (“Second degree murder is: (1) A knowing killing of another.”). Absent
this essential premise, the appellant’s argument clearly fails. This issue is
without merit.
Finally, the appellant challenges the applicability of enhancement factor
(10)--that he had no hesitation about committing a crime when the risk to human
life was high. The state correctly concedes that the trial court erred in applying
this factor, as it is inherent in the offense of voluntary manslaughter. “It is well
settled . . . that this enhancement factor is generally inapplicable in sentencing in
voluntary manslaughter cases where the only 'risk' imposed was to the victim of
the homicide." State v. Samuel D. Braden, No. 01C01-9610-CC-00457 (Tenn.
Crim. App. filed Feb. 18, 1998, at Nashville). Nothing in the commission of the
appellant’s offense suggests a risk to human life other than to the life of the
victim. Thus, the trial court erred in applying enhancement factor (10).
Elimination of factor (10) does not, however, require reduction of the
appellant’s sentence. Enhancement factors (4) and (5) are each entitled to
significant weight, and we find them more than sufficient to justify imposition of
the maximum sentence in this case.
CONCLUSION
The judgment of the trial court is affirmed.
____________________________
JOHN EVERETT W ILLIAMS, Judge
-5- CONCUR:
_____________________________
GARY R. WADE, Judge
THOMAS T. W OODALL, Judge
-6-