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May 19, 1992


LOUDON COUNTY. HON. E. EUGENE EBLEN, JUDGE. (Murder in the Second Degree)

Scott, Jones, Peay

The opinion of the court was delivered by: Scott

Indicted for two counts of murder in the first degree, the appellant was convicted of one count of murder in the second degree and was acquitted of the other murder charge. He was sentenced to thirteen years and six months in the state penitentiary as a Range I standard offender. On appeal he has presented three issues, none of which challenge the sufficiency of the convicting evidence. However, a short synopsis of the facts will be helpful to understanding the issues.

In the late summer of 1989, Elker Jones asked the appellant to find a buyer for two kilos of cocaine. The appellant arranged for Daron Meade and Maurice Mills to purchase the cocaine for $36,000.00. The appellant, knowing the likelihood of violence in a drug transaction, gave Mr. Meade a .357 Magnum pistol.

Around midnight on September 10, 1989, the appellant picked up Messrs. Meade, Mills and Jones in his wife's car. They were going to a motel in Lenoir City to consummate the deal with a man who was bringing the cocaine from Atlanta. The appellant drove. Mr. Meade sat beside him. Mr. Mills sat in the back seat behind the appellant and Mr. Jones sat in the back seat behind Mr. Meade. As they entered Loudon County, the appellant heard a gunshot. Mr. Jones had shot Mr. Mills. Both the appellant and Mr. Meade turned, whereupon Mr. Jones shot Mr. Meade. According to the appellant, Mr. Jones told him that he was going to kill him also, to which the appellant said "no, just be cool." The appellant then stopped the car where he and Mr. Jones got Mr. Meade and Mr. Mills out of the car and rolled them into a ditch. Noticing that Mr. Mills was still breathing, the appellant said he didn't want to leave him "down in the ditch like that." Mr. Jones told the appellant to hold a cigarette lighter so he could see to shoot Mr. Mills again. The appellant held the light; Mr. Jones shot Mr. Mills again; and Mr. Mills quit breathing.

Mr. Jones and the appellant then split the money and cleaned up the car at a car wash. The appellant hid his half of the money at his father's house. He went by his apartment, told his wife what had happened and went to Atlanta, Georgia to his brother's apartment. After he left, his wife called the police and he was met at the Atlanta apartment by DeKalb County law enforcement officers.

When questioned about the offense, the appellant gave detailed directions on how to find the victims, the guns and the money, all of which were found exactly where the appellant said they could be located.

From this proof, it is clear that the jury could have readily found the appellant guilty of murder in the first degree. However, the trial Judge granted the appellant's motion for judgment of acquittal as to that offense. Thereafter, the jury found him guilty of the murder in the second degree of Mr. Mills and acquitted him of the killing of Mr. Meade.

There was ample, indeed overwhelming, evidence from which any rational trier of fact would conclude that the appellant was guilty of aiding and abetting the killing of Mr. Mills beyond a reasonable doubt. Rule 13(e), Tenn.R.App.P., Jackson v. Virginia, 443 U.S. 307, 314-324, 99 S.Ct. 2781, 2786-2792, 61 L.Ed.2d 560 (1979).

In his first issue the appellant contends that the trial Judge erred by refusing to charge the jury as to matters of coercion and malice with regard to the offense of murder in the second degree as set out in his special request for jury instructions. Specifically he wanted the Judge to charge the jury as follows:

The essential element distinguishing second degree murder from voluntary manslaughter is the presence or absence of malice at the time of the killing. In the event you should find that the defendant was acting without malice then he cannot be guilty of second degree murder and you must consider his guilt or innocence upon the charge of voluntary man slaughter. (sic)

The appellant admits that the charge given by the trial Judge regarding murder in the second degree and voluntary manslaughter was correct, but he contends that the charge was deficient because it merely stated the two offenses independently without describing them in relationship to each other.

Of course, it is hornbook law that a defendant has a constitutional right to a "correct and complete charge of the law" applicable to the case. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). If the jury instruction given fully and fairly states the applicable law, it is not error to refuse to give a specially requested instruction. Edwards v. State, 540 S.W.2d 641, 649 (Tenn. 1976).

The instructions given, taken directly from the Tennessee pattern Jury Instructions-Criminal §§ 20.04 and 20.05, did not mislead the jury. *fn1 The instruction concerning murder in the second degree clearly explained that malice is an essential element of that offense, and the instruction concerning voluntary manslaughter clearly illuminated the fact that malice is not an element of voluntary manslaughter. The jury was correctly instructed and this issue has no merit.

In another issue the appellant contends that the trial Judge erred by permitting the prosecution to argue to the jury during closing argument that the state would not be able to charge the appellant with other offenses arising from the same facts and that this proceeding represented the state's only opportunity to charge the defendant with crimes arising from these facts. The state contends that defense counsel opened the door to this argument with his remarks during his closing argument and that if there was any error here it was invited error.

In his closing argument defense counsel stated:

I don't ask you to like Greg Patterson. I don't tell you he's naive. I don't call him poor old little Greg Patterson. He's none of those things. He's cocaine dealer. But punishment for that crime comes at a different time, in a different trial, on different charges.

In response to this statement the prosecutor opened his rebuttal argument as follows:

There's one I want to get on right off the bat before I forget it. There's some things that lawyers can't really talk about unless other lawyers bring those questions up: And then there's something called fair comment. And something I want to comment to you on is this. Be very careful about someone trying to shuffle this case off into another day or to another charge. The defendant is charged in the indictment as stated, he was involved in the killing of these two people. He is not charged with conspiracy to distribute cocaine. And the law says that to be charged with all things that are reasonable (sic) related at the same time.

Defense counsel "vehemently" objected to "the state attempting to tell the jury that this is there (sic) only shot at this man." The trial Judge overruled the objection and the prosecution continued:

That is misleading to suggest to you there's another trial on down the road, something he commented on, suggested to you that if there is, then you can slough this off and that will take care of it, then that is misleading to you. This is the day when the charges reasonably related to this case have been heard.

The prosecutor then turned his argument back to the facts of the case.

Argument of counsel is a valuable privilege that should not be unduly restricted. Therefore, great latitude is given to counsel in arguing their case before the jury. State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). The control of argument lies within the "wide discretion" of the trial Judge and the trial court's determination regarding argument will not be overturned absent an abuse of that discretion. Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). when a defendant raises an issue in his defense, he cannot complain of argument on that issue by the prosecutor if the argument is fairly warranted by the facts and circumstances of the case. State v. Sutton, supra, at 823-24.

The prosecutor responded to defense counsel's remarks to dispel the notion that there would be another trial some day concerning the cocaine charges. Rule 8(a), Tenn.R.Crim.P., provides for the mandatory joinder of offenses "if the offenses are based upon the same conduct or arise from the same criminal episode;" are known to the prosecutor at the time of the indictment; and are within the jurisdiction of a single court. This was the subject of the prosecutor's brief remark, which was clearly invited by the appellant's counsel. One cannot benefit from an error that was committed, invited or induced by the appellant or his counsel or which was the natural consequence of his own negligence or misconduct. State v. Garland, 617 S.W.2d 176, 186 (Tenn.Crim.App. 1981), Rule 36(a), Tenn. R. App. P. This issue has no merit.

In the final issue the appellant contends that the trial Judge erred by sentencing him to more than the minimum of ten years in the state penitentiary.

Since a sentencing issue has been alleged, this Court has conducted a de novo review on the record, with a presumption that the findings of the trial Judge were correct. Tenn. Code Ann. § 40-35-401(d).

This offense occurred on September 10, 1989 before the effective date of the Tennessee Criminal Sentencing Reform Act of 1989, but the appellant was sentenced after the effective date of that act. Thus, his sentencing was under the new act. Tenn. Code Ann. § 40-35-117(b). Under the new act, the punishment for murder in the second degree is imprisonment for not less than fifteen and not more than sixty years. Tenn. Code Ann. §§ 39-13-210, 40-35-111(b)(1). Under the law that existed at the time of the offense, the penalty for murder in the second degree was imprisonment for "life ore for a period of not less than ten (10) years." Tenn. Code Ann. § 39-2-212 (repealed). Of course, the appellant had to be sentenced under the prior law to avoid running afoul of the ex post facto provisions of Article I, § 10 of the United States Constitution and Article I, § 11 of the Tennessee Constitution. For a Range I standard offender the punishment was not less than ten nor more than thirty-five years. Tenn. Code Ann. § 40-35-109(a) (repealed).

In sentencing, the presumptive sentence shall be the minimum within the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). Should there be enhancement factors but no mitigating factors, then the court may set the sentence above the minimum in the range. Tenn. Code Ann. § 40-35-210(d). If there are both enhancement and mitigating factors, the court must start at the minimum sentence in the range, appropriately enhance the sentence within the range for the enhancement factors and then reduce the sentence within the range as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e).

In sentencing the appellant the trial Judge noted that the crime was committed at a time when the appellant was involved in "a highly illegal activity." There is no such enhancement factor. However, he went on to note that the appellant was "out there to make a dangerous drug deal," apparently referring to the fact that this murder was committed under circumstances in which the potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-35-114(16). Obviously the sale of a large amount of cocaine is an activity in which there is great potential for violence and serious bodily injury. Indeed, the appellant, as the catalyst in this drug transaction, recognized that fact and provided a .357 Magnum pistol to one of the participants.

We note one additional enhancement factor from the record. The appellant has a previous history of criminal behavior. Tenn. Code Ann. § 40-35-114(1). While there is no indication in the pre-sentence report that the appellant has any convictions fore crimes since adulthood, by his own admission he has "dealt drugs" in the past. Also, at the age of thirteen he was placed on probation for burglary.

The pre-sentence report lists as enhancement factors that more than one victim was involved, Tenn. Code Ann. § 40-35-114(3), and that he inflicted serious bodily injury. Tenn. Code Ann. § 40-35-114(12). Neither of these factors are applicable. while there were two victims, there were separate counts of the indictment for each victim and a separate verdict for each crime. Because the jury chose to acquit the appellant of killing one of the victims does not mean that the death of that victim can then be used to enhance the sentence on the other murder. Obviously, "serious bodily injury" is an element of murder in the second degree. An element of the offense is not a criterion for enhancement of a sentence. State v. Morris, 750 S.W.2d 746, 750 n.5 (Tenn.Crim.App. 1987).

As mitigating factors, it could be said that the appellant played a minor role in the commission of the offense. Tenn. Code Ann. § 40-35-113(4). Since he did not pull the trigger, but only held the light for the triggerman, one could draw that Conclusion. On the other hand, one could conclude that as the man who set up the entire transaction, he was a key figure in the commission of the offense, not a minor player.

It is clear that the appellant assisted the authorities in locating and recovering the weapons, the money and the bodies of the victims. This is a mitigating factor which must be weighed in his favor. Tenn. Code Ann. § 40-35-113(10). Indeed, the trial Judge described his actions as "admirable" and noted that he was mitigating the sentence because of those actions.

The trial Judge also noted that other mitigating factors were applicable. Unfortunately the trial Judge failed to tell us what they were. There is no reason for trial Judges to fail to state to the parties and, through the record, to the appellate courts what factors are being considered, whether they be enhancement or mitigating factors.

The trial Judge properly weighed the applicable enhancement and mitigating factors in setting the appellant's sentence. The sentence of thirteen and one-half years was entirely proper and we adopt that sentence as our own. This issue has no merit.

In his reply brief the appellant has sought to raise an additional issue, which he concedes was never raised in the trial court. Specifically he contends that it was plain error for the trial Judge to fail to charge the jury concerning facilitation of a felony, Tenn. Code Ann. § 39-11-403, as a lesser included offense. Since this crime was created by the Tennessee Criminal Sentencing Reform Act of 1989, which was not effective until November 1, 1989, some six weeks after this offense occurred, there was no such offense at the time of this crime. Obviously, he could not be convicted of an offense which did not exist. Therefore, there was no requirement that the trial Judge charge the jury regarding that offense. The issue has no merit. Furthermore, having never been raised in the trial court, this issue was waived. State v. Jones, 729 S.W.2d 683, 685 (Tenn.Crim.App. 1986). The failure to charge a non-existent offense was not, as the appellant alleges, plain error affecting the appellant's substantial right. Therefore, it was not the type error which can be raised at any time under Rule 52(b), Tenn.R.Crim.P., State v. Caldwell, 671 S.W.2d 459, 465 (Tenn. 1984).

Finding no merit to any of the issues, the judgment is affirmed.





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