State of Tennessee v. James Lackey ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 19, 2016
STATE OF TENNESSEE v. JAMES LACKEY
Appeal from the Circuit Court for White County
No. 2012-CR-5631 David Alan Patterson, Judge
No. M2015-01508-CCA-R3-CD – Filed July 27, 2016
Following a jury trial, the Defendant, James Lackey, was convicted of one count of
second degree murder, see Tennessee Code Annotated section 39-13-210, for which he
received a sentence of twenty-two years to be served at one-hundred percent. On appeal,
the Defendant contends (1) that the evidence was insufficient to support his conviction,
arguing that the proof supported a finding that he acted in self-defense, and (2) that the
twenty-two year sentence imposed was excessive. Following our review, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and TIMOTHY L. EASTER, JJ., joined.
Manuel Benjamin Russ, Nashville, Tennessee (on appeal), and John Philip Parsons,
Cookeville, Tennessee (at trial), for the appellant, James Lackey.
Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Gary McKenzie
and Phillip Hatch, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
FACTUAL BACKGROUND
On August 28, 2012, the Defendant was indicted for the first degree premeditated
murder of the victim, James Caldwell. The case proceeded to trial in January 2014,
where the following evidence was adduced. Around 1:30 a.m. on February 23, 2012,
Deputy Steven Daugherty of the Bedford County Sheriff’s Office (“BCSO”) received a
phone call from the Defendant. According to Deputy Daugherty, the Defendant’s “voice
was pretty shaken[,] and [he] could tell something was wrong.” The Defendant asked for
Deputy Daugherty’s help, saying that the deputy “was the only one he could trust.”
Deputy Daugherty explained that on that date, he had known the Defendant for
approximately six months from their “shared hobby” of “work[ing] on Jeeps.” The
Defendant told Deputy Daugherty that he had shot someone and that he needed help
contacting the Federal Bureau of Investigation (“FBI”).
Deputy Daugherty contacted his supervisor and “instructed [the Defendant] to
meet [him] at the [BCSO].” The deputy estimated that the Defendant arrived at the
BCSO two hours later. When the Defendant arrived, Lieutenant Nikia Elliott of the
BCSO went to the Defendant’s truck, where he saw a gun in the front passenger seat;
however, the gun was not removed at that time. Deputy Daugherty sat down with the
Defendant and asked where the shooting had taken place. The Defendant was unable to
provide a street address, but with the assistance of a global positioning system, the deputy
was able to ascertain the location, which was in White County. Also, the Defendant
confirmed that the victim was deceased.
Agent Larry Davis of the Tennessee Bureau of Investigation (“TBI”) was
dispatched to the BCSO to take the Defendant’s statement. The Defendant’s statement
was recorded and played for the jury. In his statement, the Defendant told Agent Davis
that he went to see the victim that night to talk to him. The Defendant explained that
several weeks earlier, the Defendant had been at the victim’s home in Warren County
when the TBI conducted a drug raid. The Defendant’s brother, Tommy Lackey, 1 lived
with the victim, and the Defendant was at the home to assist Tommy with repairing a
horse trailer. About twenty minutes after the Defendant arrived, TBI drug task force
agents arrived and searched the house. The Defendant claimed that after TBI agents left
the victim’s home, there were drugs strewn throughout the house. In particular, the
Defendant said there was methamphetamine and marijuana. The Defendant said that
“didn’t seem right to [him]” and “made [him] suspicious of what was going on.” The
Defendant also said that a gun had been confiscated from his truck during the raid, but it
was returned to him within a week.
The Defendant told Agent Davis that he met with the victim several times after the
drug raid to discuss what had happened. According to the Defendant, he was “trying to
figure out . . . what was going on” and was concerned about Tommy. The Defendant
explained that he was suspicious because no one had been arrested following the raid and
1
Because the Defendant and his brother share a surname, we refer to Tommy by his given name to avoid
confusion. We intend no disrespect in doing so.
-2-
because drugs were left in the house. The Defendant wanted to ensure that “the victim
didn’t get out of everybody’s reach.” The Defendant said that the victim was “trying to
blame everything on [Tommy].” The Defendant told Agent Davis that he was keeping up
with the victim for two reasons: (1) “there was something wrong with the [drug] bust”
and (2) he “didn’t trust [the victim].”
At some point after the raid, the Defendant was involved in a confrontation with
the victim. The Defendant said that he was with Tommy when the victim showed up.
The victim was angry, and the Defendant admitted pulling a gun on the victim. The
victim told the Defendant that he did not have a gun and that the Defendant did not need
to pull a gun on him. The Defendant told the victim that he did not trust him, that he
knew that the victim had previously been convicted of murder, and that he was just trying
to protect his brother. According to the Defendant, at the time of this confrontation he
had heard that the victim believed that the Defendant was a “snitch” and that he was
responsible for the TBI’s raid at the victim’s home. The encounter ended, and the
Defendant said that he lost contact with the victim after that.
The Defendant said that after losing touch with the victim for about a week,
Tommy called the Defendant on February 22 and said that the victim was ready to talk.
Tommy told the Defendant where the victim was staying, and the Defendant drove from
his mother’s house in Manchester to the house where the victim was staying in White
County, arriving around 12:00 a.m. The Defendant said that Tommy had been at the
house earlier but was gone by the time he arrived. According to the Defendant, he “was
real cautious” when he went to see the victim that night because he had been told that the
victim and his family would “have snipers shoot him and all kinds of stuff.” The
Defendant told Agent Davis “it was just a matter of time before somebody was killed,”
and he knew he had “a target” on his back.
The Defendant said that the door to the house was open, and he let himself in,
telling Agent Davis that the victim’s “leg was bad,” so he did not expect him to answer
the door. After entering the house, the Defendant called out to let the victim know he had
arrived, and the victim said he was in the back. The Defendant went to a bedroom in the
back of the house, where he found the victim who was sitting on the bed. The Defendant
claimed he was “pretty nervous” and said that “it was just like [the victim] had it planned
out for [the Defendant] to come up there.” The victim lit a cigarette, and then, according
to the Defendant, the victim reached for a gun with his left hand from the “side of the
bed.” The Defendant said that his gun was in a holster on his hip, which he took out as
soon as he thought he saw the victim reach for his gun. According to the Defendant,
“before [the victim] ever got a chance to point at [him], [the Defendant] fired.” The
Defendant shot the victim in his chest, and the victim fell back on the bed. The
Defendant claimed that the victim sat back up and pointed a gun at him, and the
-3-
Defendant fired a second shot, hitting the victim in his head. He estimated that he was
eight to ten feet from the victim when he fired the shots.
The Defendant said that he checked the victim’s pulse and then left the house
immediately because the victim had “kinfolk” nearby, and the Defendant was worried
that someone might have heard the gunshots and would come after him. He estimated
that he was in the house for a total of five minutes. The Defendant said that he did not
see where the victim’s gun was and did not look for it after shooting him. After leaving,
the Defendant called Tommy and instructed him to stay away from the house. The
Defendant told Agent Davis that the victim was “known to keep a gun with him wherever
he’s at.”
Sheriff Oddie Shoupe of the White County Sheriff’s Office (“WCSO”) was
notified about the shooting and arrived at the scene at 4:15 a.m. Sheriff Shoupe parked at
the bottom of the driveway and walked up to the house; he estimated the driveway was
350 feet long. The door to the house was open, and the sheriff entered the residence.
Sheriff Shoupe found the victim in a bedroom. He observed that the victim was lying on
his back on the bed and that he was deceased. Sheriff Shoupe said that it was still dark
outside when he arrived. According to the sheriff, the lighting in the bedroom was “low,”
but he was able to “see the room and everything in it quite well.” After securing the
house, Sheriff Shoupe exited the residence and taped off the area.
WCSO Detective Chris Isom was assigned as the lead investigator on the case.
Detective Isom testified that the bedroom where the victim’s body was found was “well-
lit,” noting that a lamp and the television were on. The victim had two visible gunshot
wounds—one to his chest and another under his right ear. Two shell casings were
recovered from the room, one was located on a dresser, which was to the right of the bed,
and the other was on the bed to the right of the victim’s body. Detective Isom said that
the placement of the casings was unusual because, based on the Defendant’s account of
what happened, he would have expected the casings to be in close proximity to one
another. More specifically, Detective Isom said that one shell casing—the one recovered
from the dresser—was consistent with the victim’s being shot while he was sitting on the
bed. However, the second casing—which was on the bed—was more consistent with the
shooter “stepp[ing] closer” to the bed, “invert[ing]” the gun, and lowering it. According
to Detective Isom, the victim’s home was searched, but no guns were found. Also,
Detective Isom said that the victim had a cell phone on his belt on his right side.
On cross-examination, Detective Isom admitted that it was possible that one of the
casings could have hit and bounced off the wall, landing away from the other casing.
Detective Isom opined that, based on the location of the victim’s head wound, he did not
believe the victim was sitting up at the time he was shot in the head. On re-direct
-4-
examination, Detective Isom said that he thought it was unlikely that one of the casings
bounced off the wall.
Agent Dan Friel of the TBI assisted with the investigation. He identified a text
message sent from the Defendant’s cell phone to Tommy’s cell phone at 3:27 a.m. on
February 22, 2012.2 The text message read, “tell big jim he can run but he cnt hide for
lng i will be seeing yall in a few hes got yall fooled but not me hes a low life pos.”3
Agent Friel said that “pos” meant “piece of s--t.”
Agent Friel took a statement from the Defendant on the evening of February 23 at
the WCSO, accompanied by Detective Isom. Agent Friel said that the statement was not
recorded and that his recollection of the interview was based on notes he had taken. In
that statement, the Defendant told Agent Friel that he had been present at a drug raid that
occurred at the victim’s home on February 2. The Defendant said that the victim
suspected that the Defendant was a snitch but that he and the victim met several times
after the drug raid and before the shooting. The Defendant told Agent Friel that on the
night of the shooting, he had been at his mother’s house and that Tommy had called him
and told him the victim wanted to meet to “talk stuff out.” The Defendant was wearing a
black shirt, black pants, and black boots and had a gun with him.
The Defendant went to the victim’s house, saw that the door was open, and went
inside. He “called for [the victim],” who stated he was in the back. The Defendant also
said that he yelled “U.S. Marshalls” when he entered the house, explaining that he knew
the victim was wanted by the U.S. Marshall so he thought it would be funny. The
Defendant told Agent Friel that he walked to the bedroom where the victim was, that the
victim lit a cigarette, and that he saw the victim reach for something with his left hand.
The Defendant then pulled out his gun and shot the victim in the chest, but the victim sat
back up and pointed a gun at him. The Defendant said he was not sure, but he might
have stepped closer to the victim before shooting the victim in the head. The Defendant
described the victim’s gun as a black “sub-compact.”
Agent Friel testified that the Defendant’s statement was inconsistent with the
evidence at the scene, explaining that the location of the shell casings did not match the
Defendant’s account. The Defendant told Agent Friel that he called Tommy after the
murder. Agent Friel testified that the last call made from the Defendant’s cell phone to
Tommy occurred at 11:54 p.m. Agent Friel said that the Defendant did not call law
2
The cell phone records had been previously authenticated and introduced by a records custodian for
Verizon Wireless.
3
We have reproduced the text message exactly as it appears in the cell phone records.
-5-
enforcement to report what occurred until he arrived back at his mother’s house in
Manchester. The Defendant told Agent Friel that he changed clothes before driving to
the BCSO.
Agent Friel was aware that the Defendant had a firearm seized on February 2,
2012, which had subsequently been returned to him. He said that when the gun was
seized, a record was made of the serial number and make and model.
Dr. Adele Lewis testified as an expert in forensic pathology. She performed the
victim’s autopsy. Dr. Lewis testified that the victim sustained two gunshot wounds. One
wound was to the “middle part of his chest” and the other was to the right side of his head
near his ear. According to Dr. Lewis, the bullet that entered the chest hit the aorta and
left lung. She opined that this injury would have very likely been fatal. She further
opined that it was very unlikely that someone with this type of injury would be able to sit
up. She said that this bullet traveled from front to back and downward, which was
consistent with the shooter standing over the victim. The bullet that entered the victim’s
head entered below the right ear and traveled through the brain stem and exited the left
side of the head. According to Dr. Lewis, the trajectory of this bullet went from behind
the ear and up through the victim’s head. Dr. Lewis said that it was “very unlikely” and
“not physically possible” for the bullet to have been fired downward. Rather, she opined
that it was more likely that the victim was lying down when the bullet entered his head.
Dr. Lewis testified that the gun was fired from an indeterminate range but was at least
three feet away.
The Defendant testified that he met the victim through Tommy on the day of the
February 2 drug raid. On that day, Tommy called the Defendant and asked him to work
on a horse trailer located on the victim’s property. According to the Defendant, Tommy
and his wife had been living with the victim for three to four months. The Defendant
described Tommy and the victim’s relationship as being “like brothers.” The Defendant
said that just after he arrived, members of the TBI Drug Task Force raided the victim’s
house. According to the Defendant, the TBI found “a large amount of marijuana,” a
shotgun, a rifle, and two handguns. The Defendant said that the TBI also searched his
truck and seized his handgun, for which the Defendant had a permit. The Defendant said
his gun was later returned to him.
After the raid, the Defendant met with the victim several times. On one occasion,
they met at a motel in Manchester where they discussed the drug raid. The victim told
the Defendant that he was “concern[ed] for his [own] life” and “thought that his family
was going to have him killed.” Further, the victim told the Defendant that “he was not
going back to prison.” According to the Defendant, the victim thought the Defendant
could help connect him with law enforcement to protect him because the Defendant had
previously worked as an informant, and the victim was considering testifying against
-6-
members of his family who were involved in the drug trade. The Defendant said that the
victim “went on the run from there,” and he lost touch with the victim.
When asked why he was meeting with the victim, the Defendant said it was
because of “what [he saw] during the drug bust.” The Defendant elaborated, saying that
he observed TBI agents move a suitcase from Tommy’s bedroom to the victim’s
bedroom, where they took pictures of it, that no one was arrested, and that after the
agents left, “there [were] drugs everywhere” in the house.
After the raid, the Defendant became aware that the victim thought he had been a
“snitch” and was responsible for the TBI’s raid at his house. The Defendant admitted
that he had been involved in an altercation with the victim, during which he pulled a gun
on the victim. The Defendant said that he was with Tommy one day when the victim
showed up and “was mad at [Tommy].” The Defendant said that he pulled a gun on the
victim because he thought the victim “would probably have a gun” and was “coming . . .
to shoot [Tommy].”
On the night of the murder, Tommy called the Defendant, telling him that he knew
where the victim was staying. According to the Defendant, the victim had “a bad leg”
and “was taking prescription medication,” which he had been unable to obtain while “on
the run from law enforcement.” The Defendant alleged that he went to the victim’s that
night to “see what the problem was,” surmising that the victim “was suicidal probably
and homicidal.” The Defendant said that the victim was expecting him, and he parked at
the bottom of the driveway and walked up to the house. He entered the house through the
back door, which was open, and he “hollered” to let the victim know he was there. The
victim responded that he was “in the back,” and the Defendant walked to a bedroom in
the back of the house. According to the Defendant, when he entered the room the victim
pulled a gun from his left side. The Defendant said that the victim’s gun “looked like a
[.]380 or a sub-compact Glock.” Upon seeing this, the Defendant drew his gun and fired
at the victim; he waited “a couple seconds” and then fired again. The Defendant
estimated that he was six feet away from the victim when he fired the first shot and that
he took a step backward before firing the second shot. The Defendant checked the
victim’s pulse after the second shot and then left.
The Defendant said that he was afraid the victim had lured him to the house to kill
him, but he went anyway because he thought the victim needed his help. According to
the Defendant, he did not turn himself in to White County authorities because he “did not
trust law enforcement in White County [or] [the victim’s] family.”
On cross-examination, the Defendant acknowledged that he had previously
worked with the police as an informant, but he denied being paranoid about someone
finding out. The Defendant said that he became worried after he found out that the
-7-
victim thought he was a “snitch.” The Defendant admitted that as a result of his gun
being seized on the day of the drug raid, police had a record of the make, model number,
and serial number of his gun.
The Defendant agreed that after initially meeting with the victim following the
drug raid, he lost touch with the victim. However, he denied looking for the victim.
Nevertheless, he admitted that he called Tommy multiple times on February 22 and that
Tommy told him where the victim was.
Upon this proof, the jury convicted the Defendant of the lesser-included offense of
second degree murder, and the trial court sentenced the Defendant to twenty-two years to
serve at one-hundred percent.
ANALYSIS
I. Sufficiency of the Evidence
The Defendant first contends that the evidence is insufficient to support his
conviction. The Defendant does not deny responsibility for the victim’s death. Rather,
he asserts that the State failed to disprove his claim that he acted in self-defense beyond a
reasonable doubt. The State responds that there was adequate evidence that the
Defendant did not act in self-defense and asks that we affirm the conviction.
An appellate court’s standard of review when the defendant questions the
sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). This court does not reweigh the evidence; rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s
proof be uncontroverted or perfect.” State v. Williams, 657, S.W.2d 405, 410 (Tenn.
-8-
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.
The above standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Our supreme
court has held that circumstantial evidence is as probative as direct evidence. State v.
Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the supreme court rejected
the previous standard which “required the State to prove facts and circumstances so
strong and cogent as to exclude every other reasonable hypothesis save the guilt of the
defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v. Crawford,
470 S.W.2d 610, 612 (Tenn. 1971)) (quotation marks omitted).
Instead, “direct and circumstantial evidence should be treated the same when
weighing the sufficiency of such evidence.” Dorantes, 331 S.W.3d at 381. The reason
for this is because with both direct and circumstantial evidence, “a jury is asked to weigh
the chances that the evidence correctly points to guilt against the possibility of inaccuracy
or ambiguous inference . . . .” Id. at 380 (quoting Holland v. United States, 348 U.S. 121,
140 (1954)). To that end, the duty of this court “on appeal of a conviction is not to
contemplate all plausible inferences in the [d]efendant’s favor, but to draw all reasonable
inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67
(Tenn. 2011).
The jury convicted the Defendant of the lesser included-offense of second degree
murder. See Tenn. Code Ann. § 39-13-210. There is no question that the Defendant
killed the victim; rather, the crux of the Defendant’s sufficiency challenge is that the
State failed to refute his claim that he acted in self-defense. Tennessee Code Annotated
section 39-11-611(b)(2) provides as follows:
[A] person who is not engaged in unlawful activity and is in a place where
the person has a right to be has no duty to retreat before threatening or
using force intended or likely to cause death or serious bodily injury, if:
(A) The person has a reasonable belief that there is an imminent
danger of death or serious bodily injury;
(B) The danger creating the belief of imminent death or serious
bodily injury is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.
-9-
Self-defense is a factual question for the jury to resolve. State v. Clifton, 880 S.W.2d
737, 743 (Tenn. Crim. App. 1994); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App.
1993). When a defendant relies upon a theory of self-defense, it is the State’s burden to
show that the defendant did not act in self-defense. State v. Sims, 45 S.W.3d 1, 10 (Tenn.
2001). However, it is within the prerogative of the jury to reject a claim of self-defense.
State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997).
In the light most favorable to the State, the evidence showed that the victim
suspected the Defendant had worked as an informant for the TBI and was responsible for
a drug raid at the victim’s house that took place three weeks prior to the murder.
Although the Defendant and the victim met several times to discuss the raid, the
Defendant eventually lost touch with the victim. The Defendant was concerned that the
victim was going to evade law enforcement and that his brother, Tommy, would be held
solely responsible for the drugs and guns recovered during the raid. Prior to the murder,
the Defendant and the victim were involved in an altercation where the Defendant pulled
a gun on the victim. Despite the Defendant’s testimony that the victim was known to
always carry a gun, the victim told the Defendant he was not carrying a weapon during
that earlier altercation.
Less than twenty-four hours before the murder, the Defendant sent Tommy a text
message, referring to the victim as a “pos,” meaning “piece of s--t,” and stating that he
could run but that he could not hide for long. The Defendant admitted to calling Tommy
several times in an attempt to locate the victim, and on the evening of February 22, 2012,
Tommy told the Defendant where the victim was staying. Despite feeling like he had “a
target” on his back, the Defendant traveled alone to see the victim at approximately 12:00
a.m., taking his gun with him. The Defendant gave conflicting stories as to why he went
to see the victim that night: during his initial interview with Agent Davis, he alleged that
he just wanted to talk to the victim, while at trial he testified that the victim had medical
issues and the Defendant wanted to check on him. When he arrived at the house, rather
than parking his car near the house, he parked at the bottom of the driveway and walked
uphill approximately 350 feet.
Although the Defendant claimed that the victim had a gun, investigators found no
guns in the house. Likewise, investigators testified that the Defendant’s account of what
transpired was inconsistent with the physical evidence at the scene. Specifically, the
location of the shell casings suggested that after the Defendant shot the victim in the
chest, he stepped closer to the victim and lowered the gun when firing the second shot
into the victim’s head. Likewise, the medical examiner opined that it was “not physically
possible” that the bullet that entered the victim’s head traveled in a downward trajectory.
Rather, she testified that it was more likely that the victim was lying down when that shot
was fired, and she questioned whether the victim would have been capable of sitting up
-10-
after the first gunshot given the catastrophic nature of the wound sustained to the chest.
This testimony contradicted the Defendant’s assertion that the victim sat back up after the
first gunshot and pointed a gun at the Defendant.
In sum, the State provided sufficient evidence refuting the Defendant’s claim that
he acted in self-defense, and the jury’s verdict shows that it also found the Defendant’s
account lacking. The Defendant’s assertion that his version of events was
“uncontroverted” is simply incorrect. We defer to the jury’s ultimate decision to reject
the claim of self-defense, for which there is ample support in the record. Accordingly,
the Defendant is not entitled to relief.
II. Sentencing
Next, the Defendant contends that his twenty-two-year sentence is excessive. He
asserts that the trial court failed to engage in the requisite analysis when imposing his
sentence, and he asks that we conduct a de novo review of his sentence. The Defendant
further asserts that our supreme court’s decision in State v. Bise, 380 S.W.3d 682 (Tenn.
2012), whereby the court held that the appropriate standard of review for sentencing
decisions is an abuse of discretion with a presumption of reasonableness, is contrary to
the plain language of Tennessee Code Annotated section 40-35-401(d) and is incorrect.
Therefore, the Defendant asserts that even if we conclude that the trial court’s analysis
was sufficient, a de novo standard of review is appropriate. The State disagrees, asserting
that the trial court’s sentencing decision should be affirmed upon review under the abuse
of discretion standard and responding that this court has no authority to overrule the
supreme court’s decision in Bise. On this second point, we agree with the State and
decline the Defendant’s invitation to revisit Bise as we have no authority to overrule our
supreme court. We proceed to consider whether the Defendant’s sentence is excessive
based on currently applicable law.
Before a trial court imposes a sentence upon a convicted criminal defendant, it
must consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and arguments as to sentencing
alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)
evidence and information offered by the parties on the enhancement and mitigating
factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any
statistical information provided by the Administrative Office of the Courts as to
Tennessee sentencing practices for similar offenses; and (g) any statement the defendant
wishes to make in the defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-
35-210(b). To facilitate appellate review, “it is critical that trial courts adhere to the
statutory requirement set forth in Tennessee Code Annotated section 40-35-210(e)” and
-11-
articulate in the record its reasons for imposing the specific sentence. See Bise, 380
S.W.3d at 705 n.41.
The 2005 amendments to the Sentencing Act “served to increase the discretionary
authority of trial courts in sentencing.” Bise, 380 S.W.3d at 708. Currently, upon a
challenge to the length of the sentence imposed, it is the duty of this court to analyze the
issues under “an abuse of discretion standard of review, granting a presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. Those purposes and
principles include “the imposition of a sentence justly deserved in relation to the
seriousness of the offense,” Tennessee Code Annotated section 40-35-102(1), a
punishment sufficient “to prevent crime and promote respect for the law,” Tennessee
Code Annotated section 40-35-102(3), and consideration of a defendant’s “potential or
lack of potential for . . . rehabilitation,” Tennessee Code Annotated section 40-35-103(5).
State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2007). The burden of showing that a
sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm’n Cmts.; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).
Our amended Sentencing Act no longer imposes a presumptive sentence. Carter,
254 S.W.3d at 343. Tennessee Code Annotated section 40-35-210 was amended to
provide as follows:
(c) The court shall impose a sentence within the range of punishment,
determined by whether the defendant is a mitigated, standard, persistent,
career, or repeat violent offender. In imposing a specific sentence within
the range of punishment, the court shall consider, but is not bound by, the
following advisory sentencing guidelines:
(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and
(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement
factors set out in §§ 40-35-113 and 40-35-114.
(d) The sentence length within the range should be consistent with the
purposes and principles of this chapter.
Tenn. Code Ann. § 40-35-210(c), (d).
-12-
“[T]he 2005 amendments rendered advisory the manner in which the trial court
selects a sentence within the appropriate range, allowing the trial court to be guided by—
but not bound by—any applicable enhancement or mitigating factors when adjusting the
length of a sentence.” Bise, 380 S.W.3d at 706. In accordance with the broad discretion
now afforded a trial court’s sentencing decision,
misapplication of an enhancement or mitigating factor does not invalidate
the sentence imposed unless the trial court wholly departed from the 1989
Act, as amended in 2005. So long as there are other reasons consistent with
the purposes and principles of sentencing, as provided by statute, a sentence
imposed by the trial court within the appropriate range should be upheld.
Id.
As a Range I offender convicted of a Class A felony, the Defendant’s sentence
range was fifteen to twenty-five years. See Tenn. Code Ann. 40-35-112(a)(1). When
reaching its sentencing decision, the trial court noted it was “considering [Tennessee
Code Annotated section] 40-35-210,” specifically mentioning the six criteria in that
statute. The court stated that when determining the length of the Defendant’s sentence, it
was bound to impose a sentence that was “no greater than that deserved for the offense
and . . . the least severe necessary to achieve the purposes for which the sentence [was]
imposed.”
The court began by addressing the Defendant’s social history, noting that he was
thirty-nine years old and was married. The Defendant’s sister testified at the sentencing
hearing that the Defendant had five children and that they were “a close knit family,”
which the court took into consideration. Further, the Defendant had no criminal history,
a relatively stable employment history, and only minor health conditions. The court
applied mitigating factor (10) of section 40-35-113, stating that the Defendant provided
the murder weapon to and cooperated with law enforcement officers and “shortened the
length of time that it took for certain issues to be resolved in this case.” The court
recounted the circumstances of the offense, stating that it “place[d] a great deal of weight
in its [sentencing] decision” on the details of the crime. The court applied enhancement
factor (9)—that the Defendant possessed or employed a firearm during the commission of
the crime.
The court concluded by stating that it “doesn’t begin at the end of the range [but] .
. . applies enhancement and mitigating factors as an opportunity” to impose an
appropriate sentence between fifteen and twenty-five years. It noted that based on “the
enhancement factor and circumstances of the offense . . . in light of the mitigators [sic]
and the social history of the [D]efendant,” the State’s recommendation of a twenty-two-
year sentence was “very appropriate.”
-13-
The Defendant contends that the trial court failed to articulate how it weighed the
applicable mitigating and enhancement factors. He asserts that this failure requires that
this court undertake a de novo review of the sentence imposed. However, we note that
“[m]ere inadequacy in the articulation of the reasons for imposing a particular sentence. .
. should not negate the presumption [of correctness afforded the trial court’s sentencing
decision].” Bise, 380 S.W.3d at 705-06. Accordingly, a sentence “should be upheld so
long as the statutory purposes and principles, along with any applicable enhancement and
mitigating factors, have been properly addressed.” Id. at 706. The record belies the
Defendant’s claim that the trial court’s reasons for imposing a twenty-two-year sentence
were inadequate. The trial court systematically went through the statutory requirements
attendant to determining the length of the sentence. Therefore, we afford the trial court’s
decision a presumption of reasonableness and review only for an abuse of discretion.
The court found that one enhancement factor and one mitigating factor applied and
ultimately seemed more troubled by and placed considerable emphasis on the
circumstances surrounding the offense. Although the Defendant contends that the trial
court should have placed more emphasis on his cooperation with law enforcement and
lack of previous criminal history, the court specifically weighed those factors when
imposing the sentence. Accordingly, the Defendant has not carried his burden in
showing that the trial court abused its discretion when it imposed a within-range, twenty-
two-year sentence for second degree murder. Consequently, the Defendant is not entitled
to relief.
CONCLUSION
Based on the foregoing and the record as a whole, the judgment of the trial court is
affirmed.
_________________________________
D. KELLY THOMAS, JR., JUDGE
-14-