State of Tennessee v. Victor Thompson ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 1, 2013
STATE OF TENNESSEE v. VICTOR THOMPSON
Appeal from the Circuit Court for Gibson County
No. 18590 Clayburn Peeples, Judge
No. W2013-00226-CCA-R3-CD - Filed February 14, 2014
The Defendant, Victor Thompson, was convicted by a Gibson County Circuit Court jury of
second degree murder, a Class A felony, and theft of property valued at $500 or less, a Class
A misdemeanor. See T.C.A. §§ 39-13-210(a)(1), 39-14-103 (2010). The trial court
sentenced the Defendant as a Range I, standard offender to consecutive terms of twenty-five
years for second degree murder and eleven months, twenty-nine days for theft. On appeal,
the Defendant contends that the trial court erred during sentencing. We conclude that the
lengths of the sentences are proper but that the trial court erred by failing to state on the
record the facts and conclusions which support consecutive sentences pursuant to State v.
Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). We remand the case in order of the court to
make its findings and conclusions on the record.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
in Part; Reversed in Part; Case Remanded
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH and
N ORMA M CG EE O GLE, JJ., joined.
Tom W. Crider, Trenton, Tennessee, for the appellant, Victor Thompson.
Robert E. Cooper, Jr., Attorney General and Reporter; Desha Dulany Faughn, Assistant
Attorney General; Garry Brown, District Attorney General; and Jason Scott and Hillary
Lawler Parham, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
This case relates to the stabbing death of Charlie Reagan. The evidence shows that
Carl Pickler was good friends with the victim, the owner of a local muffler shop. They
visited almost daily at the victim’s shop, and Mr. Pickler routinely picked up automotive
parts for the victim. On June 16, 2011, Mr. Pickler stopped by the shop to determine if the
victim needed parts. When he was there, a customer paid the victim $200, and the victim
placed the cash in his shirt pocket. Mr. Pickler saw the Defendant ask the victim to use his
telephone, and the victim told the Defendant where to find the telephone. The victim was
known to keep watermelons and a large knife near the telephone the Defendant used. As Mr.
Pickler began to leave the shop, he heard the victim yell, “No.” Five or six minutes after Mr.
Pickler left, he saw police cars traveling toward the shop. He learned minutes after seeing
the police cars that the victim had been stabbed.
The victim was known to keep about $300 or $400 in his pants pocket. The victim
always paid Mr. Pickler with cash from his pants pocket for automotive parts. The day of
the killing, though, Mr. Pickler saw the victim place the $200 from the customer in his shirt
pocket.
Mike Williams arrived at the victim’s muffler shop for new tires around 2:40 p.m.
He found the victim face down and attempted to wake him. The victim told Mr. Williams
to call 9-1-1 and said, “I’ve been stabbed and I’m dying.” The victim lifted his right hand
into the air and shook it and went limp.
Laura Hardin, a registered nurse, treated the victim in the emergency room at Milan
General Hospital. The victim did not have a heart beat or a pulse when he arrived, although
CPR continued for sometime. She saw four stab wounds to the abdomen. Several
medications were administered and medical procedures were unsuccessfully performed in
an attempt to restart the victim’s heart.
Milan Police Officer Chad Autry was told to be on the look out for the Defendant
because Investigator Williams wanted to talk to him about the victim’s stabbing. He went
to the local Walmart after learning the Defendant was heading there in a red Pontiac with
Shadarra Gadlen. He stopped the Pontiac, but the Defendant was not in the car. Ms. Gadlen
claimed that she dropped off the Defendant at Walmart. He and Officers Finnessee and Cook
found the Defendant at Walmart and arrested him. The Defendant met a Walmart employee
and placed a bag of clothes on the employee’s car. The bag contained bloody clothes, a
telephone, a video camera, and shoes. The clothes were sent to the Tennessee Bureau of
Investigation (TBI) crime laboratory for analysis. The Defendant did not have visible
injuries, weapons, or money at the time of his arrest. Ms. Gadlen’s Pontiac was later
searched by Humbolt police.
Milan Police Investigator Jason Williams, the lead investigator assigned to this case,
asked the victim who hurt him, but the victim was unable to talk. He identified photographs
of a homemade mallet or hammer lying near the victim, which had blood on it, and a pool
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of blood in the area where the victim was found. A bloody, large socket wrench and a pair
of pliers were found at the scene. The hammer, socket wrench, and pliers were sent to the
TBI crime laboratory for analysis. Blood spatter was found on the wall and boxes nearby,
and swabs were taken to the TBI crime laboratory for analysis. Footprints leading from the
back door of the victim’s shop were also recovered. A customer’s check was found on the
desk inside the office, but no cash was found. The victim’s family later found cash in the
shop. The victim’s clothes were sent to the TBI crime laboratory for analysis. Investigator
Williams learned from an informant that the Defendant might have been involved in the
victim’s death.
The Defendant’s recorded police interview was played for the jury. The Defendant
stated that when he arrived at the shop an older man was there and that a woman also stopped
by the shop. He was embarrassed and waited for them to leave but talked to the older man.
He asked the victim for a job, but the victim refused. He asked the victim why he could not
have a job because he had previously worked for the victim. He said that the victim called
him a “n-----,” that he told the victim he was not a “n-----,” and that the victim picked up a
sledge hammer and came toward his face. The Defendant said that he attempted to block the
hammer but that it hit his face and “busted his lip.” The Defendant grabbed a knife when the
victim came toward him with the hammer. He claimed that the victim came at him several
times, that the knife went into the victim, and that he did not “give it a force.” They
struggled, and the knife “slid across” the Defendant’s hand because his hand was loose
around the knife handle. The Defendant picked up the knife and ran. He provided the police
directions to the knife’s location. The knife matched a knife set owned by the victim.
The Defendant claimed to have mentioned the killing to his uncle Bug when he was
at his uncle’s mother’s house in Milan on the day of the stabbing. His then-girlfriend was
with him when he spoke to his uncle, but the Defendant denied telling her what occurred,
although he told her he might have killed someone. When asked if he thought the victim was
going to hurt him, he said, “No, I didn’t think -- I don’t know if he’d hurt . . . I really thought
I was gonna use my fist, but then I saw the knife and I was like, he got a hammer.” He
denied taking anything from the victim.
The Defendant had $11 at the time of his arrest. The Defendant changed clothes
before the interview and admitted the clothes he wore during the stabbing were inside the bag
recovered by the police. Buccal swabs were obtained from the Defendant and sent to the TBI
crime laboratory for analysis. Although the Defendant said the victim hit him with a hammer
in the lobby of the muffler shop, no blood was found there. All the blood was found in the
shop area. Investigator Williams did not see any wounds on the Defendant’s head or lip,
although the Defendant had a small cut to his finger.
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Investigator Williams believed a robbery occurred because no money was found at the
scene, although the victim’s wallet, pocket calender, and some money were found by the
victim’s family. The victim’s family found $599 cash at the victim’s shop, which was
provided to the police. The $200 cash given to the victim by the customer the day of the
stabbing was not found. Although money was found inside the shop sometime after the
killing, no money was found on the victim’s person. It was this missing money that was the
basis for the robbery charge.
Chad Ferrell, the victim’s son-in-law, knew the victim always to have money in his
pockets when he was at work. He recalled one occasion when the victim pulled $3000 from
his pocket to help Mr. Ferrell purchase a truck. He said the victim carried money loose in
his pants pocket. Mr. Ferrrell found the victim’s wallet and calender wallet inside the shop
in its usual place two days after the killing.
Sara Reagan, the victim’s daughter, knew the victim to keep money in his right
pocket. Larry Reagan, the victim’s brother, knew the victim always carried money in either
his pants or shirt pockets. The victim kept the money folded in his shirt and pants pockets
and used it to make change for his customers.
Shadarra Gadlen and the Defendant were “trying to date” before his arrest. She and
the Defendant visited often, and he spent the night at her apartment a few times. On June 16,
2011, she visited her friend, T.J., in Milan, and the Defendant asked to join her. The
Defendant asked to be dropped off at the four-way stop just inside the Milan city limits. She
dropped off the Defendant and met her friend. Before she and the Defendant drove to Milan,
the Defendant had money and helped pay for gas. She took him to Walmart earlier that week
to pick up at least $50 from his father. The Defendant arrived at T.J.’s house sometime after
lunch and asked if she was ready to leave, and they left. The Defendant was not wearing a
shirt when he arrived. As they got in her car, the Defendant asked to stop by a friend’s
house, and she took him there. The Defendant talked to his friend, and they left between
2:00 and 3:30 p.m. and returned to her apartment. The Defendant offered to pay for gas on
the way home. The Defendant took a shower when they arrived at her apartment and
watched television but left to talk to his cousin. The Defendant returned and asked her to
drive him to the Walmart in Milan because of a family emergency. She drove the Defendant
there and noticed he had a bag of clothes, money, and a cell phone. The Defendant told her,
“Today, I hurt someone.” She thought the Defendant was in a fight, but the Defendant said,
“I killed someone.”
Ms. Gadlen thought the Defendant acted “weird” when they returned to her apartment
because he paced and talked to various people on the phone. She did not recall the
Defendant’s complaining of a headache or seeing a busted lip. She only saw a little, thin cut
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on his finger. She said the Defendant lied about his name and his age. Although she denied
that the Defendant had a “larger” amount of money after they returned from Milan, she said
the Defendant’s “roll” of money looked “fairly larger.”
Jason McCain had known the Defendant for about five years. On June 16, 2011, he
saw the Defendant at Mr. McCain’s mother’s house in Milan, which was a two minute drive
from the victim’s shop. He called the Defendant that day, who came to see him immediately.
They talked, and the Defendant admitted stabbing and killing someone and taking money
from the person he killed.
William Jerrell had known the Defendant for about seven years and had served time
in jail with the Defendant. When they were both in police custody, the Defendant told him
that he planned to go “in there” and take money but that things did not go as planned. It was
supposed to be “a run of the mill robbery.” The Defendant heard the victim had money, did
not expect the victim to fight back, and stabbed the victim when he fought back. The
Defendant took up to $4000 from the victim and bragged about “getting” thousands of
dollars. The Defendant threatened to “do [Mr. Jerrell] just like he did that old man” if he
testified. The Defendant referred to the victim as the old man.
Justin Adams also spent time in the local jail with the Defendant. The Defendant
admitted killing the victim “[b]ecause he wouldn’t sell me no tires” and taking $4000. The
Defendant said the victim fought back with a hammer when the victim was about to stab him.
The Defendant assaulted Mr. Adams and threatened that he knew “gang people” who could
“get” to Mr. Adams’s family.
Gibson County Correctional Officer Joel Hughey was involved in an altercation with
the Defendant after attempting to remove contraband from his cell. The Defendant stated,
“Well, you know what happened to Charlie. It will happen to you, too.” A second
altercation occurred during the Defendant’s pretrial confinement regarding a lighter the
Defendant had inside his cell. Sergeant Bobby Rogers and Officer Chad Droke searched the
Defendant’s cell after they smelled something burning. The officers attempted to perform
a strip search, but the Petitioner refused and said, “Y’all are just picking on me because I
killed your friend, Charlie Reagan.” The Defendant threatened to kill Officers Hughey and
Droke.
TBI Special Agent Jennifer Milsaps, an expert in serology and DNA analysis,
analyzed the evidence. She concluded that the victim’s blood and DNA were on the hammer
and that partial DNA profiles matching the Defendant were on four places on the handle of
the hammer. She concluded that a partial DNA profile matching the victim’s was on the
socket. Regarding the Defendant’s clothes recovered at the time of his arrest, she concluded
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that the victim’s blood and DNA were on the front, lower right portion of the blue t-shirt and
that the victim’s DNA was on the Defendant’s jeans. Although blood was present on the
knife blade and handle, she was unable to detect the presence of DNA.
Miguel Laboy, an expert in the field of forensic pathology, performed the victim’s
autopsy and concluded that the cause of death was sharp force injuries to the chest. He found
four stab wounds and one superficial incision. One stab wound extended into the chest
cavity, injured three ribs, and perforated the lower right lung. Another stab wound perforated
the left chest wall and penetrated the left chest. A third stab wound penetrated the soft tissue
of the abdominal wall. He concluded that the victim died within minutes to hours of
receiving the injuries and that it was possible the victim was able to fight his attacker before
collapsing. The victim had defensive wounds on his left cheek, right arm, right elbow, right
forearm, right wrist, right hand, left elbow, left hand, left middle knuckle, and left ring
finger.
Upon this evidence, the jury convicted the Defendant of second degree murder and
theft. The trial court sentenced the Defendant as a Range I, standard offender to consecutive
terms of twenty-five years for second degree murder and eleven months, twenty-nine days
for theft. This appeal followed.
The Defendant contends that the trial court erred during sentencing. He argues that
the court misapplied mitigating and enhancement factors and that the court erroneously
ordered consecutive sentences. The State responds that the court properly sentenced the
Defendant. We conclude that the lengths of the sentences are proper but that the trial court
erred by failing to state on the record the facts and conclusions which support consecutive
sentences pursuant to Wilkerson, 905 S.W.2d 933 at 938. We remand the case in order of the
court to make its findings and conclusions on the record.
The record shows that the Defendant was seventeen years old at the time of the
offenses and that the Gibson County Juvenile Court ordered that the Defendant’s case be
transferred to the Gibson County Circuit Court. The transfer was based on the aggravated
nature of the offenses and the juvenile court’s finding that treatment and rehabilitation
through the juvenile court was not possible.
At the sentencing hearing, the presentence report was received as an exhibit. The
report showed a pending vandalism charged in Gibson County. Although no convictions
were reported, the Defendant admitted having a juvenile record in Denton, Texas for
possessing and inhaling Freon and providing false police reports. The Defendant reported
serving a six-month sentence on probation.
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The Defendant reported completing the tenth grade, and his stated reason for leaving
was that he was being transferred. Disciplinary records from John H. Guyton High School
showed that the Defendant threatened to blow up the world during a classroom discussion,
possessed marijuana on school property, and used vulgar language. The Defendant reported
no disabilities or physical health problems. The psychological examination conducted to
determine whether the Defendant was competent to stand trial showed that the Defendant
suffered from post traumatic stress syndrome and borderline personality disorder. The
Defendant reported using marijuana daily from age nine to seventeen and claimed his
incarceration required him to stop the drug use. He also admitted inhaling Freon and using
alcohol occasionally, beginning at age seventeen. During the presentence report interview,
the Defendant reported no childhood abuse but claimed during the competency evaluation
that his father and stepmother physically abused him.
The Defendant provided the following statement during his presentence report
interview:
I went to the muffler shop in Milan to get a job and while I was there
the mechanic - Charlie Reagans [sic] - told me to wait and he will talk to me
in a little bit. So I waited and when he was done I asked him if I can get a job
working for him. He said no he doesn’t want any n----- working for him. Well
I said I’m not a n----- I’m just Black, and he said that what makes you a n-----
[.] I said you racist b------. By the time I look at him there is a hammer
coming straight at my face so he hit me, then I circle him and pick up a knife
that was on the counter and he come again at me and I put the knife in him[.]
He came at me 3 more times and each time he comes at me he got stabbed[.]
Then he fell to his [knees] and I ran.
Several victim impact statements were attached to the presentence report. The
victim’s wife discussed her unhappiness without the victim and how her children were
without their father. She expressed her dissatisfaction with the second degree murder
verdict. She stated that she became depressed after the killing and that she took medication
to prevent her from crying continuously. She wanted the Defendant to receive the maximum
sentence.
Sheila Bell, the victim’s sister-in-law, stated that she and the victim’s wife were
allowed to see the victim in the hospital after he died. She described the condition of the
victim’s body, the amount of blood, and the victim’s children saying goodbye. She discussed
the impact of the victim’s death on their family and commented that the victim would never
see his three daughters marry, his grandchildren grow up, or grow old with his wife. She
claimed about 2000 people came to the funeral home when the victim died. She asked the
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judge to sentence the Defendant severely to “make up” for the jury’s failure to convict the
Defendant of felony murder.
Ruth Reagan, the victim’s mother, condemned the court system for the verdict and
discussed her medical problems since the victim’s death. She said that the victim’s death
almost killed her and that she took six medications “just to keep going.” She said the victim
had never been happier at the time of his death.
David Reagan, the victim’s brother, discussed the family’s reaction to the victim’s
killing and stated that they lived in constant fear. He discussed his dissatisfaction with the
trial court’s ruling to exclude photograph evidence of the victim holding money immediately
after the killing and with the jury’s verdict. He requested the Defendant receive the
maximum sentence.
Larry Reagan, the victim’s brother, testified that he had been a pastor for thirty-two
years and that he and his family turned to their religion to deal with the loss of the victim.
He said that God helped him find the ability to move on with his life but that he missed the
victim greatly. He discussed the victim’s love for football and said the victim was the
unofficial chaplain of the Milan Bulldog Football team, maintained the flag at the football
field, encouraged and counseled the players, and provided money to the team. He could not
describe the impact of the victim’s death on his mother but said they were together when he
received the telephone call about the victim’s being stabbed. He disagreed with the jury’s
verdict and believed the killing was intentional and premeditated.
Mr. Reagan testified that he did not hate the Defendant but wanted the trial court to
give him the maximum sentence. He said he and his family wanted to see the Defendant
repent and turn to Christ. He said he would have liked to have heard the Defendant’s version
of events at the trial. He noted that all the victim’s family saw during the trial was the
Defendant’s “hard, cold stares” and a lack of remorse.
Lora Mosely, the victim’s sister, read a previously prepared statement. She asked the
court to consider the brutality of the victim’s murder and to sentence the Defendant to
twenty-five years. She said the victim was “a blessing to his church, to his community, and
to his family.” She discussed the victim’s wife and children and said the victim’s youngest
child was twelve years old.
Defense counsel read the Defendant’s previously prepared statement, which stated,
There’s not enough words to heal the hearts of the family that I’ve hurt
because of a very bad decision. I can only pray that y’all can forgive me, even
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though I know you will never forgive me for this. I’m sorry for taking away
a great man, husband, father, and friend to so many and if I could go back and
change things I would. Please accept my apology for what I did.
The trial court considered the evidence at the trial and sentencing hearing, the
principles of sentencing, arguments of counsel, the nature and characteristics of the offense,
and evidence regarding enhancement and mitigating factors. Regarding mitigation, the court
refused to find that mitigating factor (2) applied, stating that no “legitimate provocation”
existed. See T.C.A. § 40-35-113(2) (2010) (“The defendant acted under strong
provocation.”). The court found that factor (6) applied because the Defendant was seventeen
years old at the time of the killing. See id. § 40-35-113(6) (“The defendant, because of youth
or old age, lacked substantial judgment in committing the offense.”). Regarding factor (10),
the court found that any assistance the Defendant provided to the police in recovering
evidence was “insignificant.” The court refused to find that factor (11) applied, stating that
“this type of crime, even though we’re seeing so much more of it than we used to, is still
highly unusual as a criminal offense, but the Defendant’s conduct was not unusual at all in
terms of the way people commit these offenses who do that[.]” See id. § 40-35-113(11)
(“The defendant, although guilty of the crime, committed the offense under such unusual
circumstances that it is unlikely that a sustained intent to violate the law motivated by
criminal conduct.”).
The trial court found that statutory enhancement factors (1), (5), (9), and (10) applied.
See T.C.A. § 40-35-114 (2010). The court found that factor (1) applied because the
Defendant had previous convictions and that his criminal history was relevant to this case.
See id. § 40-35-114(1) (“The defendant has a previous history of criminal convictions or
criminal behavior, in addition to those necessary to establish the appropriate range.”). The
court found that enhancement factor (5) applied and stated that the victim suffered a vicious
attack executed with exceptional cruelty by the repeated stab wounds. See id. § 40-35-114(5)
(“The defendant treated, or allowed a victim to be treated, with exceptional cruelty during
the commission of the offense.”). The court found that enhancement factor (9) applied
because the Defendant used a knife during the killing. See id. § 40-35-114(9) (“The
defendant possessed or employed a firearm, explosive devise or other deadly weapon during
the commission of the offense.”). The court found that factor (10) applied because the proof
showed that the Defendant had no hesitation about committing a crime when the risk to
human life was high. See id. § 40-35-114(10).
The trial court found that the enhancement factors “substantially” outweighed the
mitigating factors and that twenty-five years for the murder conviction and eleven months,
twenty-nine days for the theft conviction were appropriate. In ordering consecutive
sentences, the court found that the Defendant was a dangerous offender whose actions
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indicated little or no regard for human life. The court found that the Defendant had no
hesitation in committing a crime in which the risk to human life was high.
The Tennessee Supreme Court adopted the current standard of review for sentencing
in State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). The length of a sentence “within the
appropriate statutory range [is] to be reviewed under an abuse of discretion standard with a
‘presumption of reasonableness.’” Id. at 708. In determining the proper sentence, the trial
court must consider: (1) any evidence received at the trial and 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, (5) any mitigating or
statutory enhancement factors, (6) statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee, (7) any
statement that the defendant made on his own behalf, and (8) the potential for rehabilitation
or treatment. T.C.A. §§ 40-35-102, -103, -210; see State v. Ashby, 823 S.W.2d 166, 168
(Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).
Challenges to a trial court’s application of enhancement and mitigating factors are
reviewed under an abuse of discretion standard. Bise, 380 S.W.3d 68 at 706. We must apply
“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. “[A] trial
court’s 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.” Id. at 706. “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.
The Defendant claims that the trial court erroneously failed to apply mitigating factors
(2), (6), (10), (11), and (13). See T.C.A. § 40-35-113. Although the Defendant contends in
the issues presented for review section of his brief that the trial court failed to apply factor
(6), the record shows that the trial court applied this factor. Likewise, the Defendant states
in the argument section of his brief that the court “accepted mitigation factor 6.” See id. §
40-35-113(6). Regarding factor (2), he states that although he disagrees with the court’s
failure to apply this factor, he understands the court’s decision. See id. § 40-35-113(2). The
record is absent evidence that the Defendant acted under provocation. Although the
Defendant told the police that the victim attacked him with a hammer, no evidence was
presented showing the Defendant had wounds, defensive or otherwise, or that the victim was
the first aggressor. To the contrary, the medical examiner testified regarding the victim’s
defensive wounds to the upper extremities, indicating the Defendant was the aggressor. The
trial court did not abuse its discretion by refusing to apply this factor.
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Regarding mitigating factor (10), the Defendant claims the factor applied. See id. 40-
35-113(10) (“The defendant assisted the authorities in locating or recovering any property
. . . involved in the crime.”). The record shows that the trial court considered this mitigating
factor and found that the help the Defendant provided in locating the knife was
“insignificant.” The evidence shows that the Defendant picked up the victim’s knife, used
it against the victim, fled the scene with the knife, and discarded it. During his police
interview, he provided the location of the knife. We conclude that the trial court considered
and applied factor (10) but afforded it little weight in determining the Defendant’s sentence.
Regarding mitigating factor (11), the Defendant claims he did not have a sustained
intent to violate the law. See id. § 40-35-113(11). The evidence shows that the Defendant
went to the victim’s shop intending to steal money from the victim and that he stabbed the
victim in the chest four times while the victim struggled to defend himself. The Defendant’s
then-girlfriend had plans in Milan the day of the killing, and the Defendant asked to join her.
After they reached Milan city limits, the Defendant asked to be dropped off at the four-way
stop and went to the victim’s shop. The Defendant waited at the victim’s shop for Mr.
Pickler and the victim’s customers to leave before robbing the victim. We conclude that the
evidence does not preponderate against the court’s finding that this factor did not apply.
Regarding the enhancement factors, the Defendant claims that the trial court
erroneously applied enchantment factor (1). See T.C.A. § 40-35-114(1). He argues that his
criminal history was insignificant and should not have been used to enhance his sentence.
The presentence report showed that the Defendant admitted having a juvenile record in Texas
for possessing and inhaling Freon and providing false reports. The Defendant reported using
marijuana daily from age nine to seventeen and claimed his incarceration required him to
stop the drug use. He also admitted inhaling Freon and using alcohol occasionally, beginning
at age seventeen. Our supreme court has concluded that juvenile records may be considered
when determining a defendant’s previous criminal behavior. See State v. Adams, 864 S.W.2d
31, 34 (Tenn. 1993). The court stated that
“[i]t would serve neither the interest of society, nor protect the public from
further criminal conduct by the defendant, to wipe the slate clean and deny the
sentencing authority the benefit of a defendant’s past history of criminal
activity, in assessing his sentence, simply because some part of that history
occurred during his juvenile years.”
Id. at 34 (quoting State v. Stockton, 733 S.W.2d 111, 112-13 (Tenn. Crim. App. 1986)). We
conclude that the Defendant’s juvenile conduct supports the trial court’s applying
enhancement factor (1).
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The Defendant claims that the trial court erroneously applied enhancement factor (5)
regarding the Defendant’s treating the victim with exceptional cruelty during the commission
of the offense. See T.C.A. § 40-35-114(5). The proof at the trial showed that the victim
suffered four stab wounds to the chest and that one of those wounds was four and one-half
inches deep and perforated the victim’s lung. The medical examiner testified about the
extensive defensive wounds found on the victim’s arms and wrists. We cannot conclude that
the trial court abused its discretion by applying this factor.
The Defendant states in the issues presented for review section of his brief that the
trial court erroneously applied enhancement factor (9) regarding the use of a deadly weapon
but fails to address it in the argument section of the brief. See id. § 40-35-114(9). In any
event, the record shows that the Defendant used the victim’s knife during the killing.
The Defendant claims that enhancement factor (10) is inapplicable because the
Defendant was convicted of second degree murder. The State concedes that the trial court
erred by applying this factor. We agree and conclude that the trial court should not have
applied this factor. See State v. Butler, 900 S.W.2d 305, 314 (Tenn. Crim. App. 1994)
(stating that enhancement factor (10) “should not be considered when an accused has been
convicted of murder in the second degree”).
Although we conclude that the trial court erred by applying enhancement factor (10),
we cannot conclude that the court abused its discretion in imposing the sentences. The
record reflects that the court considered the purposes and principles of the Sentencing Act
and the appropriate evidence at the trial and sentencing hearing. The court properly applied
the remaining enhancement and mitigating factors and found that the enhancement factors
substantially outweighed the mitigating evidence. The misapplication of a single
enhancement factor does not invalidate the Defendant’s sentences. See Bise, 380 S.W.3d at
706. The Defendant is not entitled to relief on this basis.
Regarding consecutive sentences, our supreme court recently concluded that the
appropriate standard of review for all sentencing decisions, including the determination to
impose consecutive sentences, is an abuse of discretion with a presumption of
reasonableness. State v. James Allen Pollard, — S.W.3d —, —, No. M2011-00332-SC-CD,
slip op. at 9, 14 (Tenn. Dec. 20, 2013). Consecutive sentencing is guided by Tennessee Code
Annotated section 40-35-115(b)(4) (2010), which states, in pertinent part, that the court may
order sentences to run consecutively if it finds by a preponderance of the evidence that the
defendant “is a dangerous offender whose behavior indicates little or no regard for human
life, and no hesitation about committing a crime in which the risk to human life is high.”
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Our supreme court has concluded that when the imposition of consecutive sentences
is based on the trial court’s finding the defendant to be a dangerous offender, the court must
also find “that an extended sentence is necessary to protect the public against further criminal
conduct by the defendant and that the consecutive sentences must reasonably relate to the
severity of the offenses committed.” Wilkerson, 905 S.W.2d at 939; see State v. Lane, 3
S.W.3d 456, 461 (Tenn. 1999). Our supreme court has concluded that the abuse of discretion
with a presumption of reasonableness standard does not eliminate a trial court’s obligation
to comply with Wilkerson. James Allen Pollard, — S.W.3d —, —, slip op. at 13. When a
trial court fails to comply with Wilkerson, the appellate courts may conduct a de novo review
of the record to “determine whether there is an adequate basis for imposing consecutive
sentences” or “remand for the trial court to consider the requisite factors in determining
whether to impose consecutive sentencing.” Id., — S.W.3d —, —, slip op. at 14 (citing Bise,
380 S.W.3d at 705 & n.41).
We conclude that the trial court failed to make the appropriate findings pursuant to
Wilkerson. The record shows that the court found that the Defendant was a dangerous
offender whose actions indicated little or no regard for human life and that the Defendant had
no hesitation in committing a crime in which the risk to human life was high. The court,
though, failed to find that consecutive sentences were “necessary to protect the public against
further criminal conduct by the defendant” and “reasonably relate[d] to the severity of the
offenses committed.” Wilkerson, 905 S.W.2d at 939. Although the court discussed the
nature of the killing and found that the attack was executed with exceptional cruelty and
without hesitation, the court failed to discuss the need to protect the public and how
consecutive sentences reasonably relate to the severity of the offenses.
In James Allen Pollard, the trial court made similar findings regarding consecutive
sentences, and this court concluded that the court failed to comply with Wilkerson and that
a new sentencing hearing was warranted in order to allow the court the opportunity to state
on the record the facts which support consecutive sentences under Wilkerson. See State v.
James Allen Pollard, No. M2011-00332-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App. Sept.
17, 2012), perm. app. granted (Tenn. Feb. 18, 2012). Our supreme court upheld this court’s
remanding for a new sentencing hearing “because the considerations required under
Wilkerson involve a fact-intensive inquiry” and concluded that “the better course is to
remand to the trial court for consideration of the Wilkerson requirements in determining the
propriety of consecutive sentencing.” James Allen Pollard, — S.W.3d —, —, slip op. at 14.
In light of our supreme court’s conclusions in James Allen Pollard, we conclude that the trial
court erred by failing to state on the record the facts and conclusions which support
consecutive sentences pursuant to Wilkerson, and we remand the case in order of the court
to make its findings and conclusions on the record. See id.
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In consideration of the foregoing and the record as a whole, we conclude that the
lengths of the sentences are proper but that the trial court erred by failing to state on the
record the facts and conclusions which support consecutive sentences pursuant to Wilkerson.
We remand the case in order of the court to make its findings and conclusions on the record.
___________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
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