State v. Maria Maclin ( 1998 )


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  •             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    MARCH 1998 SESSION
    STATE OF TENNESSEE,                 *    No. 02C01-9710-CR-00383
    Appellee,          *    Shelby County
    vs.                                 *    Hon. James C. Beasley, Jr., Judge
    MARIA MACLIN,                       *    (Second Degree Murder)
    Appellant.             *
    FILED
    August 21, 1998
    For Appellant:                           For Appellee:    Cecil Crowson, Jr.
    Appellate C ourt Clerk
    C. Michael Robbins                       John Knox Walkup
    Attorney at Law                          Attorney General & Reporter
    3074 East Street
    Memphis, TN 38128                        Peter M. Coughlan
    (on appeal)                              Assistant Attorney General
    425 Fifth Avenue North
    Gary W. Ball                             Cordell Hull Building, Second Floor
    and                                      Nashville, TN 37243-0493
    Jane E. Sturdivant
    Attorneys at Law                         Janet S. Shipman
    242 Poplar Avenue                        and
    Memphis, TN 38103                        Johnny R. McFarland
    (at trial)                               Assistant District Attorneys General
    Criminal Justice Complex
    201 Poplar Street, Suite 301
    Memphis, TN 38103
    OPINION FILED:___________________________
    AFFIRMED
    GARY R. WADE, JUDGE
    OPINION
    The defendant, Maria Maclin, was convicted of second degree murder.
    The trial court sentenced the defendant, who qualified as a violent offender, to
    twenty-two years imprisonment. A fine of ten thousand dollars was imposed. In this
    appeal of right, the defendant does not challenge the sufficiency of the evidence but
    does present the following issues for our review:
    (1) whether the trial court erroneously instructed the jury
    by defining "reasonable" and by providing a "dynamite
    charge"; and
    (2) whether the sentence is excessive.
    We find no error and affirm the judgment of the trial court.
    The defendant and her family had been feuding with the victim, Glenn
    Taylor, and his family for many years. On the evening of January 26, 1996, the
    defendant, the victim, and members of each of their families, attended a basketball
    game at East High School in Memphis. The families sat on opposite sides of the
    arena and gestured to each other throughout the game. At its conclusion, the
    defendant stood in the crowded school parking lot with her sister, Latrice W oods,
    who accused Kena "Shea" Blakney, the older sister of the victim, of having stolen
    $100.00 from her. In response, Ms. Blakney accused Ms. Woods of slashing her
    tires. A fist fight followed. When the victim saw his sister fighting, he intervened,
    striking either Ms. Woods or the defendant in the process. The defendant then drew
    her gun and, as the victim attempted to flee, she shot him twice, killing him.
    The defense theory was that the victim and his sister were armed and
    had struck the defendant and her sister with their weapons. Witnesses for the state
    testified that neither the victim nor his sister were armed and that the victim had
    2
    turned to run away when he was shot. No weapon was recovered from the victim.
    The autopsy indicated that the victim had been shot twice in the back.
    I
    The defendant contends that the trial court erred in its response to two
    questions from the jury, thereby depriving her of the constitutional right to a trial by
    jury. The state maintains that the trial court acted properly.
    (A)
    After the trial court charged the jury on second degree murder, it
    provided the following instructions on voluntary manslaughter:
    For you to find the defendant guilty of [voluntary
    manslaughter], the state must have proven beyond a
    reasonable doubt the existence of the following
    elements:
    (1) that the defendant unlawfully killed the
    alleged victim; and
    (2) that the killing was intentional or
    knowing; and
    (3) that the killing resulted from a state of
    passion produced by adequate provocation
    sufficient to lead a reasonable person to act
    in an irrational manner.
    (Emphasis added).
    During its deliberations the jury asked the trial court to "[d]efine
    reasonable as pertains to 'reasonable person.'" The state argued for a dictionary
    definition to be provided, "[J]ust, proper, ordinary, usual, fit and appropriate to the
    end in view...." The trial court determined that the terms usual, ordinary and rational
    fit the connotation of reasonable person. Neither defense counsel nor the state
    objected to the supplemental instruction:
    There is no set definition for reasonable as set forth in
    your question. Some terms such as ordinary, usual, or
    rational may apply, but the ultimate issue is for you to
    3
    determine what a reasonable person is.
    The trial court, of course, has a duty to give a complete charge of the
    law applicable to the facts of the case. State v. Harbison, 
    704 S.W.2d 314
    , 319
    (Tenn. 1986). It is presumed that the jury follows the instructions of the trial court.
    State v. Blackmon, 
    701 S.W.2d 228
    , 233 (Tenn. Crim. App. 1985); Klaver v. State,
    
    503 S.W.2d 946
    (Tenn. Crim. App. 1973). A jury instruction can be found
    "prejudicially erroneous" only if "it fails to fairly submit the legal issues or if it
    misleads the jury as to the applicable law." State v. Hodges, 
    944 S.W.2d 346
    , 352
    (Tenn. 1997). In Hodges, our supreme court warned that the instructions should be
    "read ... as a whole":
    [J]urors do not sit in solitary isolation booths parsing
    instructions for subtle shades of meaning in the same
    way that lawyers might. Differences among them in
    interpretation of instructions may be thrashed out in the
    deliberative process, with common sense understanding
    of the instructions in the light of all that has taken place
    at the trial likely to prevail over technical hairsplitting.
    
    Id., 944 S.W.2d at
    352 (quoting Boyde v. California, 
    494 U.S. 370
    , 380-81 (1990)).
    Trial courts may provide supplemental instructions in response to jury
    questions. State v. Forbes, 
    918 S.W.2d 431
    , 451 (Tenn. Crim. App. 1995). Trial
    courts are not required to define or explain words or terms in common use which are
    understood by persons of ordinary intelligence. State v. Summers, 
    692 S.W.2d 439
    ,
    445 (Tenn. Crim. App. 1985).
    Voluntary manslaughter is an intentional or knowing killing committed
    while under a "state of passion produced by adequate provocation sufficient to lead
    a reasonable person to act in an irrational manner." Tenn. Code Ann. § 39-13-211.
    The Sentencing Commission Comments to this section suggest that the basic
    4
    common law principles of voluntary manslaughter remain intact. Neither the
    statutory law nor the Tennessee Pattern Jury Instructions provide a definition for the
    term "reasonable person." See Tenn. Code Ann. § 39-13-211; T.P.I. § 7.06,
    Instruction on Voluntary Manslaughter.
    Under common law, an objective rather than a subjective standard is
    used to determine whether adequate provocation reduces the offense of first or
    second degree murder to voluntary manslaughter. See State v. Freddo, 
    155 S.W. 170
    (Tenn. 1912). In Seals v. State, our supreme court referred to an "ordinary
    [person], of fair average disposition ...." in the context of provocation. 
    62 Tenn. 459
    ,
    462 (1874) (internal quotations omitted). Similarly, in Whitsett v. State, the supreme
    court held that the person provoked must be "laboring under an adequately aroused
    passion so great as to obscure his reason." 
    299 S.W.2d 2
    , 6 (Tenn. 1957).
    In our view, the instruction on "reasonable person," in the context of
    the entire charge, is not erroneous. That "ordinary, usual, or rational may apply," as
    indicated in the supplemental charge, is a correct statement of law. Other words
    such as moderate, fair and sensible would also serve as adequate definitions.
    American Heritage Dictionary 573 (Office Ed. 1983); Webster's New World
    Dictionary 399 (Modern Desk Ed. 1976).
    (B)
    After four and one-half hours of deliberation, the jury asked of the trial
    court, "What happens if we agree that she is guilty but cannot [agree] on 2nd degree
    vs. voluntary manslaughter?" In response, the trial judge reread the following
    sections of the original charge:
    The verdict must represent the considered
    judgment of each juror. In order to return a verdict, it is
    5
    necessary that each juror agree thereto. Your verdict
    must be unanimous.
    It is your duty, as jurors, to consult with one
    another and to deliberate with a view to reaching an
    agreement, if you can do so without violence to individual
    judgment. Each of you must decide the case for
    yourself, but do so only after an impartial consideration of
    the evidence with your fellow jurors. In the course of
    your deliberations, do not hesitate to reexamine your own
    views and change your opinion if convinced it is
    erroneous. But do not surrender your honest conviction
    as to the weight or effect of evidence solely because of
    the opinion of your fellow jurors, or for the mere purpose
    of returning a verdict.
    When you retire to consider your verdict ... you will
    first inquire, is the defendant guilty of Murder Second
    Degree as charged in the indictment? ...
    If you find the defendant not guilty of this offense,
    or if you have a reasonable doubt of her guilt of this
    offense, you will acquit her thereof and then proceed to
    inquire whether or not she is guilty of Voluntary
    Manslaughter as included in the indictment.
    ***
    Take the case, consider all the facts and
    circumstances fairly and impartially and report to the
    Court such verdict as truth dictates and justice demands.
    The defendant contends that the trial court should have inquired
    whether the jury was, in fact, deadlocked and that the trial court erred by directing
    the jury to consider second degree murder before voluntary manslaughter.
    In State v. Kersey, 
    525 S.W.2d 139
    (Tenn. 1975), our supreme court
    adopted Sec. 5.4 of the ABA Standards Relating to Trial by Jury, and directed its
    use by the trial courts faced with deadlocked juries; the court disapproved of the
    Allen or "dynamite" charge. See Allen v. United States, 
    164 U.S. 492
    (1896);
    Commonwealth v. Tuey, 
    62 Mass. 1
    (1851). In Kersey, our supreme court ruled that
    the "dynamite" charge constituted an impermissible, judicially mandated majority
    verdict and concluded that the only proper inquiry of the jury "as to its progress [is]
    6
    ... whether it believes it might reach a verdict after further deliberations." 
    Kersey, 525 S.W.2d at 141
    .
    The charge under challenge by the defendant is identical to the Kersey
    instruction. Unlike the Allen case, this jury was not instructed to surrender individual
    judgment. In the event of an inability to agree on the part of the jury, trial judges
    may require the jury to continue deliberating and may give or repeat this instruction.
    
    Kersey, 525 S.W.2d at 145
    . In our view, this instruction was not erroneous.
    The instruction that the jury should render a verdict for second degree
    murder before considering voluntary manslaughter is not erroneous. This type of
    "acquittal first" instruction has been repeatedly upheld. See Harris v. State, 
    947 S.W.2d 156
    , 175-76 (Tenn. Crim. App. 1996). This issue has no merit.
    II
    Next, the defendant challenges the length of her sentence. When
    there is a challenge to the length, range, or manner of service of a sentence, it is the
    duty of this court to conduct a de novo review with a presumption that the
    determinations made by the trial court 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); see State v.
    Jones, 
    883 S.W.2d 597
    (Tenn. 1994). The Sentencing Commission Comments
    provide that the burden is on the defendant to show the impropriety of the sentence.
    Our review requires an analysis of (1) the evidence, if any, received at
    the trial and sentencing hearing; (2) the presentence report; (3) the principles of
    7
    sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
    nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
    any statements made by the defendant in her own behalf; and (7) the defendant's
    potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
    -210; State v. Smith, 
    735 S.W.2d 859
    , 863 (Tenn. Crim. App. 1987).
    At the time of this offense, the presumptive sentence for a Class A
    felony was the midpoint in the range if there were no enhancement and mitigating
    factors. Tenn. Code Ann. § 40-35-210(c). Should the trial court find mitigating and
    enhancement factors, it must start at the minimum sentence in the range and
    enhance the sentence based upon any applicable enhancement factors and then
    reduce the sentence based upon any appropriate mitigating factors. Tenn. Code
    Ann. § 40-35-210(e). While there must be compliance with the 1989 Act
    documented by the record, the weight given to each factor is discretionary with the
    trial court. See 
    Ashby, 823 S.W.2d at 169
    ; Tenn. Code Ann. §§ 40-35-209 and
    -210.
    At the sentencing hearing, Icymae Franklin, mother of the victim,
    testified that her son was a good student and athlete. She suffered deep anguish
    after his death, has had difficulty working, and had lost seventy pounds. The
    medical bills for life-saving efforts amounted to $16,000.00. Ms. Franklin asked the
    trial court to impose the maximum sentence possible.
    Patricia Garrett, principal of Lester School where the victim had
    attended elementary school, testified that she had known the victim since he was
    five years old. She described the victim as motivated, conscientious, and popular
    among his classmates. She characterized his death as a devastating event in the
    8
    community.
    Leutissue Elliott, mother of the twenty-four-year-old defendant, testified
    favorably for her daughter, asserting that she had worked hard to support her two
    children. She asked the trial court to extend mercy. Reverend Joe Hayes, the
    pastor at Greater Lakeview Baptist Church, testified that the defendant came from a
    good family and deserved another chance. Latrice Woods, sister of the defendant,
    testified that the victim hit her in the head with a gun on the night of the shooting.
    She contended that the defendant had saved her life by shooting the victim.
    The trial court sentenced the defendant as a violent offender. See
    Tenn. Code Ann. § 40-35-501(i)(1), (2) (No release eligibility for a defendant who
    commits second degree murder after July 1, 1995; sentence credits shall not
    exceed fifteen percent). It found that the defendant possessed or employed a
    firearm during the commission of the offense, had no hesitation in committing an
    offense when the risk to human life was high, and had committed the offense on
    school property. Tenn. Code Ann. § 40-35-114(9), (10), & (17). The trial court
    determined that the circumstances were especially serious because the defendant
    had chosen to arm herself at a school function, had fired the shot in a high school
    parking lot, and, due to the crowd in attendance at the game, had endangered
    others. The trial court placed great weight on these factors and enhanced the
    sentence to twenty-five years, the maximum possible. Because, however, the trial
    court found in mitigation that the defendant acted under strong provocation and that
    substantial grounds existed tending to excuse or justify the conduct but which did
    not amount to a defense, the sentence was reduced to twenty-two years. Tenn.
    Code Ann. § 40-35-113 (2), (3).
    9
    The defendant maintains that the use of a firearm and the commission
    of the offense on school property should be consolidated into one enhancement
    factor. We disagree. In our view, the trial court followed the dictates of Ashby,
    made adequate findings of fact, and adhered to the purposes and principles of the
    1989 Act. The enhancement factors and mitigating factors applied by the trial court
    were appropriate and the sentence, while lengthy, is not unduly harsh given the
    circumstances of the offense. When the sentence has been administered within the
    statutory guidelines, the presumption of correctness prevails. See State v. Fletcher,
    
    805 S.W.2d 785
    (Tenn. Crim. App. 1991).
    Accordingly, the judgment of the trial court is affirmed.
    __________________________________
    Gary R. Wade, Judge
    CONCUR:
    _________________________________
    Joe B. Jones, Presiding Judge 1
    _________________________________
    Jerry L. Smith, Judge
    1
    Honorable Joe B. Jones died May 1, 1998, and did not participate in this
    opinion. We acknowledge his faithful service to this Court, both as a member of the
    Court and as its Presiding Judge.
    10