Opinion
No. W1999-06610-CCA-R3-CD.
Decided May 12, 2000.
Direct Appeal from the Circuit Court for Haywood County, Dick Jerman, Jr., Judge, Affirmed, No. 2971.
Tom W. Crider, District Public Defender, and Joyce Diane Stoots, Assistant Public Defender, Trenton, Tennessee for appellant, Joe Mitchell.
Paul G. Summers, Attorney General and Reporter, J. Ross Dyer, Assistant Attorney General, Clayburn L. Peeples, District Attorney General, Brian Fuller, Assistant District Attorney General, and Shannon Poindexter, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION I. FACTS
Tyree Mann testified that when he and Alex Jones were leaving school at approximately 3:00 p.m. on December 1, 1997, they were involved in a fight with Defendant and several other individuals. The fight began when one of Defendant's friends "blocked one of [Mann's] friends in trying to fight him." At some point during the fight, Defendant attempted to strike Jones, but his attempt was unsuccessful.
Mann testified that after the fight, he and Jones left the school in Jones' truck and started driving to Jones' home. When Mann and Jones stopped at the intersection of Thomas and McLemore near the Market Place, Mann noticed that Defendant was to their right in his white or tan Cutlass. Defendant then pointed a gun at Jones' truck, fired shots at the truck, and sped away. Mann was unsure of the time, but he estimated that the shooting at the intersection occurred anywhere from twenty five minutes to one hour and fifteen minutes after the fight at the school.
Mann testified that after the shooting at the intersection, he and Jones went to a friend's house on Ricky Street to examine the damage to the truck. While Mann and Jones were examining the truck, Mann heard some gun shots and he and Jones ran behind a house. Mann did not see who had fired the shots because he ran as soon as he heard them. Shortly thereafter, Mann and Jones went to Jones' house and called the police.
Alex Jones testified that when he and Mann were leaving school at 3:05 p.m. on December 1, 1997, he observed a fight that occurred after two vehicles almost collided and the drivers got out of their vehicles and charged each other. Defendant joined the fight almost immediately, but Jones and Mann did not participate in the fight. After the fight, Jones and Mann drove to the intersection of Thomas and McLemore, where somebody fired at least three gun shots at Jones' truck. Jones did not see who fired the shots at his truck because he was focused on getting away.
Jones testified that he and Mann subsequently drove to a residence on Ricky Street. When they arrived, Jones examined his truck and observed that the truck had been hit by three shots. A few minutes later, someone fired more gun shots. Although Jones did not see who fired the shots, he did see that the shots came from a white "Oldsmobile or Cutlass." At this point, Jones ran in back of a house. Shortly thereafter, Jones drove for five minutes until he arrived at his home and called the police at 4:05 p.m. Jones estimated that he called the police about ten to fifteen minutes after the shots were fired on Ricky Street.
Sergeant Shawn Williams testified that he examined Jones' truck on the day of the shooting and he observed several bullet holes in the truck. Williams also testified that the shooting was reported to the police at 4:16 p.m.
Defendant testified that as he was driving by the high school with Dryfuss Russell, he saw one of his friends surrounded by eight other individuals who appeared to be ready to fight. Defendant then jumped out of the car and began fighting in order to help his friend. Although the fight was fairly brief, Defendant's eye was injured during the fight. Defendant subsequently left the school and eventually drove his vehicle to several different locations.
Defendant testified that he saw Mann and Jones when he stopped at the intersection of Thomas and McLemore, but he denied shooting at them. Defendant subsequently went to his aunt's house and shortly thereafter, he went to the hospital to receive treatment for his eye.
When Defendant was asked during cross-examination about his relationship with Mann and Jones, Defendant stated, "[W]e ain't the best of friends. I'll put it like that. We ain't the best of friends."
Travis Evans testified that while he was using a telephone in front of the Market Place at approximately 3:30 p.m. on December 1, 1997, he saw Defendant stop at the intersection. Evans did not observe any shooting while he was at the Market Place.
James Currie testified that he was by the Market Place at approximately 3:15 or 3:30 p.m. on December 1, 1997. At that time, J. Currie saw Defendant in a white Cutlass at the intersection of Thomas and McLemore. J. Currie also saw Mann and Jones in the area at approximately the same time that Defendant was there.
Tylus Currie testified that Defendant came to his house at approximately 3:25 to 3:40 p.m. on December 1, 1997. Shortly thereafter, T. Currie and Dryfuss Russell took Defendant to the hospital. T. Currie estimated that they arrived at the hospital sometime after 4:00 p.m.
Dryfuss Russell testified that he picked up Defendant to take him to the hospital at approximately 3:45 or 3:50 p.m.
Tremain Newbern testified that sometime after December 1, 1997, Jones called her on the telephone and stated that Defendant did not shoot his truck and if he found out who did shoot the truck, he would drop the charges against Defendant.
Elaine Lewis testified that she was working at the Methodist Haywood Park Hospital on December 1, 1997. Lewis began the process of admitting Defendant to the hospital at 4:16 or 4:18 p.m. and finished at 4:21 p.m.
II. SUFFICIENCY OF THE EVIDENCE
Defendant contends that the evidence was insufficient to support his two convictions for attempted second degree murder. We disagree.
Where the sufficiency of the evidence is contested on appeal, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this Court substitute its inferences for those drawn by the trier of fact from circumstantial evidence.Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the State the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn.Crim.App. 1995). Since a verdict of guilt removes the presumption of a defendant's innocence and replaces it with a presumption of guilt, the defendant has the burden of proof on the sufficiency of the evidence at the appellate level. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
Under Tennessee law, second degree murder is "[a] knowing killing of another." Tenn. Code Ann. § 39-13-210(a)(1) (1997). In addition, "[a] person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense . . . [a]cts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person's part." Tenn. Code Ann. § 39-12-101(a)(2) (1997). A person acts knowingly "when the person is aware that the conduct is reasonably certain to cause the result." Tenn. Code Ann. § 39-11-106(a)(20) (1997).
We conclude that when the evidence is viewed in the light most favorable to the State, as it must be, the evidence was sufficient for a rational jury to find beyond a reasonable doubt that Defendant was guilty of the attempted second degree murder of Mann and Jones. Defendant and Mann both testified that Defendant participated in a fight between Defendant's friend and several other individuals. Mann testified that he and Jones participated in the fight and during the fight, Defendant attempted to strike Jones. Mann and Jones both testified that shortly thereafter while they were at the intersection of Thomas and McLemore, someone fired several shots at the truck they were in. Mann testified that Defendant fired the shots from a white or tan Cutlass. Defendant admitted that he was at the intersection at the same time as Mann and Jones. In addition, Evans and J. Currie confirmed that Defendant was at the intersection at the approximate time of the shooting. Mann and Jones testified that while they were at a house on Ricky Street shortly thereafter, someone drove by them and fired more shots. Although neither Mann nor Jones saw the shooter, Jones testified that the shooter was in a white "Oldsmobile or Cutlass."
From the above evidence, a rational jury could find that Defendant was angry with Mann and Jones for participating in a fight with his friend, that Defendant fired several shots at Mann and Jones when they were in Jones' truck at the intersection, and that Defendant fired several more shots at Mann and Jones when they were outside of the truck examining the bullet holes. A rational jury could also infer that Defendant acted "knowingly" in regard to the attempted second degree murder charges. Whether an accused "knowingly" attempted to kill his or her victim is a question of fact for the jury. State v. Elder, 982 S.W.2d 871, 876 (Tenn.Crim.App. 1998). "Intent, which can seldom be proven by direct evidence, may be deduced or inferred by the trier of fact from the character of the assault, the nature of the act and from all the circumstances of the case in evidence." Id. The above evidence was sufficient to support the jury's finding that defendant was aware that his conduct of firing multiple shots at Mann and Jones was reasonably likely to result in their death.
Defendant essentially argues that the evidence was insufficient because Mann and Jones were simply not credible witnesses and because the State's evidence was contradicted by proof that Defendant could not have fired the shots at Mann and Jones because he was being treated for his injury at the hospital when the shots were fired. However, "[t]he credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the evidence are matters entrusted exclusively to the jury as the triers of fact." State v. Cribbs, 967 S.W.2d 773, 793 (Tenn. 1998). The jury obviously believed the testimony of Mann and Jones and rejected the alibi proof submitted by the defense.
In this case, Defendant essentially asks us to reconsider the evidence and substitute a verdict of not guilty in place of the verdict found by the jury. That is not our function. Instead, we conclude that a rational jury could have found beyond a reasonable doubt that Defendant committed the two counts of attempted second degree murder. See Tenn. R. App. P. 13(e). Defendant is not entitled to relief on this issue.
III. NEWLY DISCOVERED EVIDENCE
Defendant contends that the trial court erred when it failed to grant a motion for a new trial based on newly discovered evidence. We disagree.
Officer Nigal Peeples testified during the hearing on a motion for a new trial that he worked for the Brownsville Police Department at the time of the events in this case. Peeples investigated the shooting and as part of that investigation, he interviewed Jones and Jones provided him with a written statement. Peebles testified at the preliminary hearing in this case, but he subsequently left the Brownsville Police Department and began working for the Memphis Police Department. When he left the Brownsville Police Department, Peeples took his files with him and thus, Jones' statement was in his possession and was not in the possession of the Brownsville Police Department.
Diane Stoots, Defendant's trial counsel, testified that during the discovery process, she met with the prosecutor and he told her that he was unaware of any recorded statements given by Mann or Jones. However, the prosecutor told Stoots that if there were any written statements, she would be entitled to see them and she should go to the police department and ask to see any statements in the department's files. Stoots then went to the police department and was told that there were no written statements in the department's files.
In the written statement Jones gave to Peeples, Jones related that on the day of the shooting, he stopped at the intersection by the Market Place and "Joe Mitchell was coming up Tibbs Road at the stop sign and he turned, stopped, opened up his white Cutlass door, and got out and started shooting at me and Tyree Mann for no apparent reason. . . ."
Defendant argues that he should have been granted a new trial based on the discovery of the above statement because the statement contradicts Jones' testimony that he did not see who shot at him while he was stopped at the intersection and thus, the statement would have been extremely valuable for use in impeaching Jones at trial. We note that Defendant does not allege any wrongdoing on the part of the State in regard to the statement.
In order to obtain a new trial based on newly discovered evidence, the defendants must establish (1) reasonable diligence in attempting to discover the evidence; (2) the materiality of the evidence; and (3) that the evidence would likely change the result of the trial. State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994). "In order to show reasonable diligence, the defendant must demonstrate that neither he [she] nor his [her] counsel had knowledge of the alleged newly discovered evidence prior to trial." State v. Caldwell, 977 S.W.2d 110, 117 (Tenn.Crim.App. 1997). The grant or denial of a motion for a new trial on the basis of newly discovered evidence is a determination that rests within the sound discretion of the trial court. Id.
Defendant has failed to establish reasonable diligence in attempting to discover the evidence. During the trial, the trial court allowed the defense to read a portion of Officer Peeples preliminary hearing testimony to the jury and the court then allowed the State to read a portion of Peeples testimony. During his preliminary hearing testimony, Peeples stated that as part of his investigation, he took statements from both Mann and Jones and "the paperwork is in the front office." Clearly, Defendant became aware during the preliminary hearing that Peeples had obtained statements from both Mann and Jones and those statements were recorded. However, Defendant apparently took no steps to obtain the statements from Peebles until after the trial was completed. Thus, Defendant has failed to establish reasonable diligence.
In addition, Defendant has failed to establish that the introduction of Jones' written statement at trial would have likely changed the outcome. "A new trial will not be granted on newly discovered evidence when the effect is merely to impeach a witness' testimony at trial unless the impeaching evidence is so crucial to the defendant's guilt or innocence that its admission would change the outcome of the case." State v. Parchman, 973 S.W.2d 607, 610 (Tenn.Crim.App. 1997). Here, Jones' written statement is not so crucial to Defendant's guilt or innocence that its admission would have changed the result of the trial. Nothing in Jones' written statement indicates that Defendant was not the individual who fired the shots or that Defendant is any less culpable for his criminal conduct. Indeed, introduction of the statement would have done nothing to refute Mann's eyewitness testimony that he personally observed Defendant fire the shots at the intersection. If anything, introduction of the statement would have been harmful to Defendant in that it would have bolstered the State's theory of the case.
In short, Defendant has failed to establish that he exercised reasonable diligence in attempting to discover the evidence or that its introduction would have likely changed the outcome of the case. Thus, we hold that the trial court did not abuse its discretion when it denied the motion for a new trial based on newly discovered evidence. Defendant is not entitled to relief on this issue.
IV. LENGTHS OF SENTENCES
Defendant contends that the trial court erred when it determined the lengths of his sentences. We disagree.
"When reviewing sentencing issues . . . including the granting or denial of probation and the length of sentence, the appellate court shall conduct a de novo review on the record of such issues. Such review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d) (1997). "However, the presumption of correctness which accompanies the trial court's action is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider all the evidence, the presentence report, the sentencing principles, the enhancing and mitigating factors, arguments of counsel, the defendant's statements, the nature and character of the offense, and the defendant's potential for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 Supp. 1999); Ashby, 823 S.W.2d at 169. "The defendant has the burden of demonstrating that the sentence is improper." Id. Because the record in this case indicates that the trial court did not consider the sentencing principles and all relevant facts and circumstances, our review is de novo without a presumption of correctness.
Defendant was convicted of two counts of attempted second degree murder, which is a Class B felony. See Tenn. Code Ann. §§ 39-13-210(b), 39-12-107(a) (1997). The sentence for a Range I offender convicted of a Class B felony is between eight and twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (1997). The presumptive sentence for a Class B felony is the minimum sentence in the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c) (1997). If there are enhancement, but no mitigating factors, the court may set the sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-210(d) (1997).
The record indicates that in imposing a sentence of ten years for each of Defendant's convictions, the trial court found that the following enhancement factors applied: (1) Defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate sentencing range, (3) the offenses involved more than one victim, and (10) Defendant had no hesitation about committing crimes when the risk to human life was high. See Tenn. Code Ann. § 40-35-114(1), (3), (10) (1997). In addition, the trial court apparently applied a nonstatutory enhancement factor that Defendant was fighting on school property shortly before he committed the offenses in this case. The trial court apparently found that none of the enumerated mitigating factors of Tennessee Code Annotated section 40-35-113 were applicable.
Defendant challenges the application of enhancement factor (1). However, we conclude that the factor was properly applied. The record indicates that Defendant has a previous criminal record consisting of convictions for: giving a false report, driving with a suspended license, evading arrest, criminal trespass, disorderly conduct, and leaving the scene of an accident. We note that although all of these convictions occurred after the offenses in this case were committed, the convictions occurred before Defendant was sentenced in this case. This Court has previously stated that criminal convictions or criminal behavior occurring prior to the sentencing hearing may be considered under enhancement factor (1), regardless of whether the criminal conduct occurred before or after the commission of the offense under consideration. State v. John Allen Chapman, No 01C01-9604-CC-00137, 1997 WL 602944, at *20 (Tenn.Crim.App., Nashville, Sept. 30, 1997), app. denied, (Tenn. May 11, 1998).
Defendant challenges the application of enhancement factor (3) and the State concedes that the trial court erred when it applied this factor. We agree with the parties that this factor was improperly applied. Indeed, the only victims in this case were Mann and Jones, and Defendant was convicted of a separate offense for each victim. Thus, the trial court should not have applied factor (3). See State v. Clabo, 905 S.W.2d 197, 206 (Tenn.Crim.App. 1995) (holding that factor (3) was an "improper enhancement factor, since there were separate convictions for each victim").
Defendant challenges the trial court's application of enhancement factor (10), and we conclude that it was improperly applied. This Court has previously held that this factor generally cannot be applied to a sentence for an attempted murder offense because a high risk to human life is inherent in the offense. See State v. Nix, 922 S.W.2d 894, 903 (Tenn.Crim.App. 1995). However, this Court has also held that even when factor (10) is an element of the offense, it may still be applied where the defendant creates a high risk to the life of a person other than the victim.State v. Bingham 910 S.W.2d 448, 452 (Tenn.Crim.App. 1995). The trial court apparently applied this factor based on a finding that other people were in the vicinity of the Market Place when the shooting occurred and the lives of those people were at risk. This finding is not supported by the record. Although Evans and J. Currie were at the intersection at the same time as Defendant, neither of these witnesses were aware of any shooting. There is simply no evidence in the record that the lives of anyone other than Mann and Jones were placed at risk by Defendant's conduct. Thus, factor (10) was not applicable.
Defendant also challenges the trial court's application of the nonstatutory enhancement factor that he was involved in a fight on school property shortly before the offenses were committed. The State concedes that the trial court erred in this regard. We agree with the parties that the trial court should not have considered the fight as an enhancement factor. It is well settled that nonstatutory factors cannot be used to enhance a sentence.State v. Grissom, 956 S.W.2d 514, 518 (Tenn.Crim.App. 1997); State v. Strickland, 885 S.W.2d 85, 89 (Tenn.Crim.App. 1993). There is no proof in the record that Defendant's participation in the fight amounted to conduct that could be considered under any of the enhancement factors of Tennessee Code Annotated section 40-35-114. Thus, the trial court should not have considered the fight to enhance the sentences.
The State contends that the trial court should have applied enhancement factor (9), that Defendant used a firearm in the commission of the offenses. See Tenn. Code Ann. § 40-35-114(9) (1997). We agree that the trial court should have applied this factor. Since the use of a firearm is not an essential element of attempted second degree murder, it may be considered as an enhancement factor. See State v. Jerry M. McMullican, No. 01C01-9607-CC-00282, 1998 WL 117265, at *4 (Tenn.Crim.App., Nashville, March 17, 1998),app. denied, (Tenn. Nov. 2, 1998). This Court may consider this factor even though it was not relied upon by the trial court. State v. Pearson, 858 S.W.2d 879, 885 (Tenn. 1993).
Finally, Defendant makes the conclusory allegation that the trial court erred when it failed to apply any mitigating factors. However, Defendant has failed to support this allegation with any citation to authorities or with any argument whatsoever. Thus, this issue is waived. Tenn. Ct. Crim. App.R. 10(b). Nevertheless, we have carefully reviewed the record and we conclude in our de novo review that no mitigating factors are applicable.
Even though we hold that the trial court erred in applying various enhancement factors, a finding that enhancement factors were erroneously applied does not equate to a reduction in the sentence. State v. Keel, 882 S.W.2d 410, 423 (Tenn.Crim.App. 1994). Indeed, two enhancement factors and no mitigating factors apply to Defendant's sentences. Under these circumstances, we conclude that sentences of ten years are entirely appropriate in this case. Defendant is not entitled to relief on this issue.
Accordingly, the judgment of the trial court is AFFIRMED.