### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs N ovember 28 , 2001 STATE OF TENN ESSEE v. GERALDE. SAYLOR Appeal from the Criminal Court for Washington County

No. 25854 Lynn W. Brown, Judge

No. E2001-00604-CCA-R3-CD Filed July 11, 2002

The defenda

nt, Gera ld E. Saylo

r, was c onvicte d by a Wa shin gton County Criminal Court jury of voluntary manslaughter, a Class C fe lony, and the trial court se ntenced him as a Range III, persistent o ffender to fifteen years imprisonment. The defendant appea ls, claiming that: (1) the evidence i s insufficient

to support

his conviction; (2) t

he trial c ourt err

ed in denying his motio n to suppre ss his confession; (3) the tr

ial cour t erred in excluding testimony that several hours before the killing the victim had stated to a third party that he was going to kill the defendant; (4) the trial court erred i n excluding testimony to rebut the state’s inference that the defe ndant pla nted wea pons on the

victim and that the victim had made prio r threa ts to the de

fendant ; (5) the t

rial cou rt erre d by failin g to declare a mistria

l when the

jury hea rd refe rencesto his being “on parole” and “on the run”; and (6) the trial cou

rt erre d in its app lication o f enhanc ement an d mitigatin g factors t o his sentence. Although we conclude that enhancement factor (5) re garding exceptional cruelty should not have been ap plied, we affirm t he judgme

nt of the tr

ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEP H M. T IPT ON , J., delivered the opinion of the court, in which J OHN E VERETT W ILL IAMS and A LAN E. G LENN , JJ., joined. Clifton L. Corker, Johnson City, Tennessee, for the appellant, Gerald E. Saylor.
Paul G. Summers, A

ttorney G eneral and Repor

ter; Kim R. Helper, Assistant Attorney General; Joe C. Crumley, J

r., Dist rict At torney General; and Victor J. Vaughn, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
The defendant was charged with the second de gree murder of John Case. Johnson City Police Officer Bruce Dowdle testified that on November 3, 1999, he was dispatched to Grover Street. He said that the dispatcher did not give him a house number and that he parked his car and began walking along Grover Street. He said t hat two people, who were covered in blood,-2-

approached

him and told

him that the

ir friend w as inside a house. He said that he went into 904 Grover Street and found the victim lying in a pool of blood in the living room. He said that a

hatchet had been shoved down the back of the victim’s pants and that an open p ocketk nife was in the victim’s back pants pocket. He said that the vi ctim wa s alive and that blood and brain matter covered the couch, walls, and floor of the room. He

said he a nd the two

people w ent outsid

e to wait for assistance. Bryan Williams, an emergency medical technician, testified that on November 3, he was sent to the vic tim’s res idence. He said he found the victim lying face down on the floor in a puddle of blood. He said the victim had severe head trauma and was breathing but unresponsive. He said he rolled the victim over and inserted an oral airway to assist the victim’s breathing. He said he and a police officer removed a small ax and a pocketknife from the back of the victim’s pants.
Johnson City Police Detective Kevin Peters testified that when he arri ved at 904 Grover Street, pa ramedic s were w orking on t he victim, who had bl ood all ove r his fac e. He sa

id a bloodstai n was on the couch and blood splatter was on the wall behind the couch and the living room ceiling. He said that there had been a scuf fle in the ki tchen and that kitchen furniture was overturned. He said that he found two mops in the kitchen and that the mops had been used to wipe up blood. H e said tha

t a vase in the living room had been broken and that an altercation appea red to have taken place near the living room couch.
Johnson City Police

Investig ator Lar

ry Brown t

estified that he wa s sent tothe hospital to take picture s of the vi ctim. He s aid that when he arrived, the victim was dead. He said the victim was covered with blood, had a la

rge cut a cross his nose, a

nd had he ad lace

rations. He said th

e victim also had cuts to the back of his hands and across the palm of his right hand.
Freida Webb testified that

on Novemb er 3, she

was living

at the vic tim’s house . She said that she left the home at 11:00 a.m. and that when she returned about 3: 0 0 p.m., the victim, the defenda nt, Brenda Hull, and Kenneth White were there. She said that tables and a microwave oven had been broken and that when she asked what had happened, the victim told her, “I hit him four times with a hammer as hard as I could.” She said that she aske d the victim why he had hit the defendant and that the victim told her that he could not control himself. She said that she did not see any blood on the vic tim or the d

efenda nt.
Ms. Webb testified

that she was afraid to stay at the victim’s home and that she went to Steve Fenner’s house. She said that about 3:30 p.m., the defendant came to Mr. Fenner’s home. She said the defendant was clean, w ith no blood on him. She said that about 6:00 p.m., they saw an ambulance go by and that

she deci ded to walk back to the victim’s house to get her medication. She said that when she and Mr. Fenner walked to 904 Grover Stree t, the police were there. She said the police took her to the police station.
Kenneth White testifie d th at on the m orning of Novembe

r 3, he ha d an argu ment with h

is girlfriendand that she took him to the victim’s house. He said he had been drinking vodka the night-3-

before and was beginning to sober up when he arrived at the victim’s home. He said th at the vic tim was there and that the defendant and Brenda Hull arrived with a half gallon of vodka. He said he, Ms. Hull, the defe

ndant, and the vict

imdrank all of the vodka. He said that he got into an argument withthe defendant, that they scuffled in the kitchen, and that he hit the defendant. He said that later in the day, “everything was sort of normal” and that he and the de fendant were in the living room. He said that t

he victim c ame into th

e room an d that the

victim had one hand behind his back. He said that he heard a scuffle and looked over at the victim and the defendant. He said that the victim was holding a hammer and that the defendant had a mark on his face. He said the victim had hit the defendant with the hammer. He said the defe ndant took

the hamme

r away f rom the victim and hit the victim in the face and head with it.
Mr. White

testifie d that the

victim fell onto the couch and was barely moving. He said he ran next door to telephone the police but that no onewas home. He said he ran back to the victim’s home and saw a

hatchet in the back

of the vic tim’s pant s. He said th e defendant was gone. He said that the victim

was lying on the living roo m floor and that Ms. H ull was hol ding the vi ctim. He s aid he and Ms. Hull went to another house and telephoned9-1-1. He said he and Ms. Hull went back to the victim’s house and waited for the police.
On cross-examination, Mr. Whit e testifi ed that be fore the killing, the

victim and

Ms. Hull had argued in the kitchen and that the victim had ripped an earr ing out of Ms. Hull’s ear. He acknowledged

that ear lier in the day, the v

ictim had t

old him and

the defe ndant toleave the house. However, he said th at b efore t hey left , the victim changed his mind and asked them to stay at the home. He said that before the victim attacked the defe ndant, the defendant did not have a weapon or threaten the victim. He said the victim approached the defe ndant in the living ro om and sudd enly hit the defendant on the head with the ha

mmer. He

said that the fight was over within seconds and that the victim fell back onto the couch. H e said the defe ndant did n ot hit the vi ctim while the victim was on the couch.
On redirect examination, Mr. White acknowledged that he did not see the victim pull the earring out of

Ms. Hull’s ear. He

said that a s the def

endant w as hitting t

he victim, the victim was holding up his hand s. He said that bef ore the i ncident i n question , he had n ot seen th e victim w ith a hatchet or a knife.
Brenda Hull testified that in November 1999, she was living in the victim’s house with the defenda nt, the victim, and Freida Webb. She said the defendant was her boyfriend. She said that on November 3, she and thedefenda nt awoke about 9:00 a.m. and began drinking beer with the victim and Kenneth White about 11:00 a.m. She said that at 1:00 p.m., she and the defendant we nt to the liquor store and bought vodka. She said that t hey went back to the victim’s house and that everyone drank heavily. She said that about 6:00 p.m., she and the defendant left the house again. She said she w ent to the

store to b uy cigar

ettes whi le the defendant

went to Ste

ve Fenne r’s home to use the telephone. She said that when she returned to the victim’s house, the defendant was not there. She said that when the defendant returned from Mr. Fenne r’s house, he and thevictim went into the kitchen. She said she went in the kitchen to see what washappening and saw that the victim-4-

had hit t he side of the defendant’s head with a hatche t or a hammer. She said the defenda n t staggered and fell. She said the defendant got up, picked up the hatchet, and hit the vic tim. She sa

id the victim fell and did n ot get up. Sh e said tha t she begg ed the de

fendant to stop hitti ng the vic tim and that Kenneth White held her back from the de fendant.
Ms. Hull testified that Mr. White and the defendant had argued e arlier in the day but that she had not seen them physically fight. She denied that the victim

ripped the earring out of her ear a nd said that Mr. White tore the earring out while he was holding her back from the de fendant. She said the defe ndant hit th

e victim several times with the hatchet and then handed it to her. She said she droppedthe hatchet and blacked out. She said that when she awoke , the victim was lying in the living room and that blood was everywhere. She said that the defenda nt was gone and

that she held the victim and tried to wake him. She said she did not see a hatchet in the victim’s pants while he was lying on the floor. She said that she did not try to clean up the blood and that she did not see anyone using a mop . She said the polic e took her

to the polic e station a

nd questio ned her. She said that lat er, th e police took her and the defendant to the hospital. She said that at the hospital, the defendant told her that the victim “would never hit no one else in the hea d with a hammer.”
On cr oss -examination, Ms. Hull acknowledged that she and the victim were drunk on November

3. She den

ied that th e victim threw he r onto the kitchen t able, and she said

that she d

id notknow how the kitchen table got broken. She sai d that she had not seen the defendant with a knife, hatchet, or any other weapon that day and that she did not know why the victim had hit the defenda nt. She acknowledged telling the police that she found the beaten victim when she returned from buying cigarettes and that she was not at the house when the defendant hit the victim. She said, however, that she made those statements because she was scared.
Steve Fen ne r testified that he lived about one block from the victim’s house. He said that on November 3, 1999, he was at his apartment with Freida Webb a nd that the defenda

nt came to

his home and told him that two African-American men were looking for

the victim. He said Ms. Webb wantedto walk back to the victim’s house in or der to get her medication. He said that the defendant would not go with Ms. Webb and that the defendant asked him to walk with her. He said that before he and Ms. Webb left his apartment, the d efenda nt to ld him to tell any police officers that two African-American

men were looking for the victim. He said that he and Ms. Webb walked to the victim’s house and that t he police were the re. He s aid the po lice took him and Ms. Webb to

th e police station for questioning. He said that whenhe retur ned to his a

partmen t, his wife told him that the defendant was hiding in their closet. He said that his wife told police about the defendant being in the apa rtment and that the

police a rrested the defe ndant.
Joe Minor, a f

orensic scientist with the Te

nnessee Bureau o f Invest

igation (T BI), te stifi ed that he performed blood tests on various items that police took from the crime scene. He said that he found the victim’s blood on a kitchen mop, a paper towel, a sample of the living room ceiling, and clothing that Ms. Hull, Mr. White, and the defendant were wea ring at the time of the killing. He said th

ere we re no bloo dstains on

the hatc het.-5-

Johnson City Police Lieutenant Debbie Barron testified that she went to the victim’s home and saw the victim lying on the living room floor. She said that items in the room were broken and turned over and that therehad bee n a scuff le in the r oom. She sa

id blood was on the couch and the wall behind the cou ch. She sa id she we nt back to the polic e depar

tment to int

erview witnesses.
Lieutenant

Barron testifie d that the

defenda nt waived his rights a

nd that she

interviewed him on videotape about 8:45 p.m. She said that he was nervous and that she could smell alcohol on his person. She s aid the defenda nt was cle an exce pt for one speck of blood on hispants. On

crossexamination, she said

that witne sses told her that th e victim w as known f

or carr ying a hat chet. She acknowledged

that after the interview, a blood test revealed that the de fendant’s bloo d alco hol content was .17%.
The defendant’s videotaped interview was played f or the jury. On the tape, the defendant said he, the victim, Brenda

Hull, and Kenneth White we

re drink ing at the victim’s h ouse. He

said that Ms. Hull “got wild” and the victim started slapping her. He said that he and Mr. White tri ed to stop the victim and that the victim stated, “D on’t make me g o get my hatchet.” He said that the victim broke items in the house and that the victim made him and Mr. White leave the home. He said that he and Mr. White went back to the victim’s house and that as he was standing at the door, the victim hit h

im in the he ad with

a hammer. He said he defended himself by snatc hing the hammer away from the victim and hitting the victim with it. He said that after hitting the victim, he left the house. He said that he did not remember how many times he hit the victim but stated that he hit the victim “probably too much.” The defendant also stated, “I might have lost control.”
Dr. Murr ay Marks , a

forensi c anthro

pologist, te stified th at he exa mined the victim’s s kull. He said that the victim’s nose hadbeen brokenand that t he victim h ad been

hit in the he ad at lea st six times. He said the fact that the victim’s skull was completely broken showed that the defendant hit the victim with a blunt object and with a large amount of force.
Dr. Ellen Wallen testified that she performed the victim’s autopsy. She said the victim had injuries to his nose

and the left side of his face. She said the victim suffered multiple sk

ull frac tures, br ain lacerations, and brain contusions. She concluded that the victim died of multiple “ch o p wounds” to his head and that the wounds were consistent with wounds produced by a hatchet. She said that the victim also had defensive wounds to his right hand. She testified t hat the aut opsy revealed the victim’s blood alcohol level was 0.275%. On cross-e xamination, she said that it was possible that the victim remai ned s tanding while the defendant was hitting him. However, on redire ct, she said

she could not rule out the possibility that the defendant continue d to hit the v

ictim after the victim fell onto the couch.
The defense called Joseph Malone, who testified that he lived with the victim , the def

endant, and Ms. Hull in 1999. He said he moved out of the victim ’s house about one week before the killing. He said the defendant and the victim were fr iends. He said that the defenda nt previously had dated a girl that the victim was dating and that this appeared to bother the victim. He said that-6-

while he was living with the victim and the defendant, he heard the victim tell the defendant that the victim could make a person go to sleep by putting the person in a headlock.
Ruthie Hall testified that she owned Mom’s Taxi and Limo and that the victim ca me to her business about

1:55 p.m. on November 3, 1999. She said that the victim had a bloody handkerchief wrapped around his hand and that he wanted a taxicab. The jur y convicted the defendan t o f voluntary manslaughter.
I. SUFFICIENCY OF THE EVIDENCE
The defenda

nt claims that the e

vidence is insuffi cient to

support his conviction. He contends that the proof showed that he acted in self-defense. The state conte nds thatthe evide

nce is suf ficient. We agree with the state.
Our standard of review when the sufficienc y of the e vidence is question

ed on app eal is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virgini a , 443 U.S. 30 7, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh the evidence but presume that the jury has resolved

all conflicts in the testimony and drawn all reasonable inference s from the evidence in favor of the state. See State v. She ffield , 676 S.W.2d 542, 547 (Tenn. 1984); Statev. Cabbage , 571 S.W.2 d 832, 835 (Tenn. 197 8). Ques ti ons about witness credibility were resolved by the jury. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997). Voluntary manslaughter is defined as “the intentionalor knowin g killing of another in a state of passion pr

oduced b y adequa

te provoc ation suf

ficient t o lead a r easonab le perso n to act in an irrational manner.” Tenn. Code Ann. § 39-13-211(a). Te nnessee’s self-defense statute, Tenn. Code Ann. § 39- 11-611(a

), provid es as fol lows:
A person is justified i n th reatening or using force against another person when and to the degree the person rea sonably believes the force is immediately necessary to protect agai nst the o ther’s use or attempted use of unlawful force. The person must have

a reaso nable belief that there is an imminent danger of death o r serious b odily inju ry. The dang er cre ating the belief o f imminent

death or serio u s bodily injury must

be real , or hone stly belie

ved to be real at the time, and must be founded upo n reason able grounds. The re is no du

ty to retreat before a person thre atens or uses force.
The state has the burden of negating any defense r a ised by s upporting evidence. See Tenn. Code Ann. § 39-11-201.-7-

The evidence at trial showed that the defendant had do ne nothing to provoke the victim’s initial a ttack and that the victim was the first aggressor. However, the proof also showed that the defendant took the w eapon a

way fro m the victi m and rep eatedly hit the vic tim

in the face and head withenough f

orce to b reak the victim’s s kull and splatter blood and brain matter around the room. Viewed in the light

most favo

rable to the state, the evidence justified the jury’s conclusion that the victim adequately provoked the defendant but that the sever ity of the defendant’s response went beyond that necessary to d ef end himself. We hold that the state sufficiently overcame the defendant’s self-de

fense c laim and th at the evidence i s su ff icient to convict the defendant of voluntary manslaughter.
II. MOTION T O SUPPRESS
The defenda

nt conten ds that t

he trial co urt erred in denyin g his motion t o suppres s his confession. He contends that his videotaped confession was inadmissible because (1) he ha d made an unequivocal request for an attorney, and (2) even

if his request for an attorney was equivocal, the police should have clarified his request prior to questioning him. The state claims that the trial court correctly determined that the defendant never clea rly invoked his right to counsel and, therefore, that the police were under no obligation to stop questioning him. We believ e that the d efendant’s videotaped statement was admissible.
We have reviewed the videotape, which bega n by showing the defendant handcuffed and in a police in terview room. An u

nidentifi ed police

office r was i n th e room but off camera, and the following exchan ge occu

rred:
Defend ant: [Inaudible.]
Officer: You’re arrested ain’t you?
Defend ant: For what?
Officer: We’ll let you know in a minute.
Defend ant: People, I haven’t done nothing. Only thing I can

figure is that I’ve violated my parole. That’s th e only thing I can figure. That’s abou t the onl y thing I can figure.
Officer: What are you on parole for?
Defend ant: Well. . . I gue ss it don’t matter un til I can g et a lawyer p resent.
Officer: It don’t make any difference to me.-8- Defend ant: I’m supposed to have a lawyer, though, don’t I?
Officer: Hmmm?
Defend ant: I have to

have a la wyer pr esent, I reckon’. Before you ask me. Th at’s the s tory, isn’ t it?
Officer: What’s th at?
Defend ant: You have to have a lawyer present before questioning.
Officer: I ain’t a sked you n o question s!
Defend ant: That’s r

ight.

. . . . About ten minutes later, Lieutenant Barron entered the interview room and read the defendant his Miranda rights. She then asked the defendant to sign a waiver of rights form, and the follow ing exchange occurred:

Defend ant: But I’ ll talk to you , but I don’ t want to w aive my

rights. I’ll sign it, but what I’m saying is . . .
Barron: Well, your basically, if you sign that you are waiving

your righ ts.
Defend ant: But I haven’t done no thi ng is what I ’m trying t o tell you.
Barron: Wellif you haven’t done anything, then y ou don’t

need a la wyer, r ight?
Defend ant: No. I might need a lawyer because somebody might try to accuse me of something I didn’t do.
Barron: Well, I will too. I don’t know. I can’t make any

promises. If you sig n that, you’re waiving your rights. I mean, that’s what it says right there.
Defend ant: No, I don’t need to do

that, do I? Of course, I haven’t done anything, but . . . and I can stop at any time, right?-9- Barron: You can stop anytime you want to. [Defendant appears to sign form.]
Defend ant: I shouldn’t have done that really. Of course, I haven’t

done anything.
The defendant then told Lieutenant Barron that the victim hit him with a hammer, that he “snapped,” and that h e took the hammer a

way fro m the victi m and hit the victim with

it.
The d efendant filed a motion to suppress his confession on the grounds that he made a n unequivocal request for an attorney and t ha t even if his request was equivocal, the police were obligated to clarify the request befor e qu estioning him. At the suppression hearing, Lieutenant Barron testified that

she was n ot in the int

erview r oom while

the other police of ficer w as in the r

oom. She said that w

hen she w ent intothe interview room, she read the defenda nt his Miranda

rights and that he appeared to understand them. She s aid

that she was the only officer to question the defendant and that she d

id not thre aten or c oerce h im into talk

ing to her . Durin g cross-exam ination, the defense played th

e beginning of the v

ideotape for Lieu tenant B arron. She said that she had been unaware of the conversation betwee n the unidentified officer and the defendant.
The trial court denied the motion to suppress, finding that the defendant made an equivoca l request for an attorney and that the police were under no duty to clarify his request. In its ruling, the trial court also noted that at the time the defendant made his equivocal request for counsel, he was not being interrogated by the police.
A trial court’s decision on a motion to suppress will be upheld unl ess the evidence in the record preponderates against it. Statev. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Also, questions of the “cr edibility o f the witnesses, the weight a nd value o f th e evidence, and the resolution of conflic ts in the evidence are matters entrusted to the trial judge a s the trier of fact.” Id. The prevailing par ty “ is entitle d to the str ongest le gitimate view of the evidenc e . . . as w ell as all reasonable and legitimate inferences that may be drawn from that evidence.” Id. Initially, we disagree with the trial court’s intimation that at the

time the defe

ndant mad

e his “equivoc al” request for counsel, he was not being interrogated. A defendant does not have to wait for the police to advise him of his Miranda

rights or t o interro gate him b efore h e can inv oke his Fif

th Amendment

right to counsel. See McNeil v. Wisconsi n , 501 U.S. 171, 178, 111 S. Ct. 2204, 2209 (1991) (holding t

hat the Fif

th Amendme

nt requires , “at minimum, some statement that can reasona bly be construed to be an expression of a desire for the assistance of an attorney in dealing withcustodial interrogation by the police ”); United States v. Kelsey , 951 F.2d 1196, 1199 (10th C ir. 1991) (providing that the fact that the defendant invoked his right to counsel before the police were required to Mirandize him was irrelevant when the defendant was in custody and it was clear that the police intended to question him); People v. Villalobos , 737 N.E.2d 639, 646 (Ill. 2000) (holding that in order “to invoke the Miranda right to counsel, an individual must be both in c u stody and-10-

subject to interr ogation or

under imminent thre at of inte rrogatio n”); State v. Torres , 412 S.E.2d 20, (N.C. 1992) (pr

oviding tha

t “[i]t wo uld make l

ittle sens e to require a

defendant already in custody to wait until the onset of questioning or the recitation of her Miranda rights before being permitted to invoke her right to counsel”). Regarding the trial court’s concluding that the police need not clar ify an eq uivocal r equest for an attor ney, our supreme court ha s previou sly held un der the U nited St ates and Ten nessee Constitutions that when

a suspec t ma

ke s an “ambiguous or equivocal request for counsel, fur ther questions by offic ers th er eafter must be limited to clarifying the suspect’s desire for an a ttorney.” Statev. Stephenson , 878 S.W.2d 530 , 548 (Te nn. 1994) . Subseque

ntly, the U

nited State s Supreme Co urt concluded that procedural safeguar ds under the Fifth Amendment to the United State s Constitution d o not require that an officer stop questioning upon an ambiguous invocation of the suspect’s right to counsel. Davis v. United States , 512 U.S. 452, 460-61, 114 S. Ct. 2350, 2355 (1994). Then, in State v. Huddleston , 924 S.W.2d 666, 6 69 (Tenn. 199 6), our supreme court co ncluded in light of Davis that the Fif th Amendme

nt did not r

equire a cease i n questi oning if a defendant made only an equivocal or ambiguous request for an attorne y. However, the court

did not refer to Stephenson or to the state constitution. In any event, in several cases, this court has interpreted Huddleston as overruling Stephenson relative to the effect of an equivocal request for an attorney under the Tennessee Constitution. See, e.g. , State v. James Clayton Young, Jr. , No. 01C01- 9605-CC-00208, Rutherfo rd County (Tenn. Cri m. App. Ma y 22, 1998) ; Statev. Jack Jay North, Jr. , No. 02C01- 9512-CC-0 0369, Har din County (Tenn. Crim. App. Dec. 9, 1996), app. denied (Tenn. July 7, 1997). We believe, howeve r, that reg ardless of the sta ndard ap plied unde

r our sta te constituti on, the de

fendant ’s claim f

ails.
The evidence shows tha

t the def endant w as under

arrest and sitting in the police interview roomat the time of his conversation with the unidentified police officer. The def

endant ob viously knew that the police were preparing to question him and, in anticipation of that questioning, made equivocal statemen

ts to the officer regarding obtaining an attorney. La ter, when Lieutenant Barron entered the interrogation room and read the defendant his rights, she wa s unawar e of his sta

tements to the unidentified officer and asked the defendant to sign a waiver of rights form. The defendant then told her that

he did not

want to waive his rights and stated that he might need a lawyer, which was another eq uiv ocal request for counsel. Lieutenant Barron e xplained to the defendant that he would be waiving his rights if he signed the form, and the defendant decided to sign it. Under these facts, we conclude that the evidence does not preponderate against the trial court’s finding that the defendant’s statements were equivocal requests for an a ttorney. Moreover, we conclude that the record reflec ts that Lie

ute nant Barron clarified the defendant’s request and that the defenda nt decided notto have an attorney present during questioning. Thus, the defendant’s videotaped statement was admissible

at trial.
III. EXCLUSION OF RUTHIE HALL’S TESTIMONY
The defenda

nt claims t

hat the tr ial cour t erred in exclud

ing testimo ny by Ruthie

Hall t hat while the victim was at her taxi business on the afternoon of November 3, 1999, he told her that he-11-

was going to kill the defendant. The def endant c ontends th at the vic tim’s state ment was r

elevant to the self-defense claim and that the statement was admissible under the state of mind exception, Tenn. R. Evid. 803(3), to the hea rsay rul e to show th at the vic tim intende d to kill the defendant with the hammer. The state

claims tha

t the tria l court properly

excluded Ms. Hall’s proposed testimony because the victim’s threat was never communi cated to the defendant and, therefor e, was not relevant to his self

-defen se claim. We believe that the trial court properly excluded the testimony. Generally, evidence “of

other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character tra it.” Tenn. R. Evid. 404(b). However, this evidence may be admitted for other purposes if r elevant t o some matt

er actu ally in issue in the case on trial and if its probative value is not outweighed by the danger of its prejudicial effect. Tenn. R. Evid. 404(b); State v. Howell , 868 S.W.2d 238, 254 (Tenn. 1993). For example, in State v. Ruane , 912 S.W.2d 766, 779 (Tenn. Crim. App. 1995), this court stated that a victim’s prior bad act may be admissible to show that the defendant feared the victim. Howeve r, this court also stated that if the defendant is unaware of the victim’s prior ba d act, then the e vid ence is admissible

for the limited purpose of corroborating the defendant’s c laim that the victim wa s the firs t aggressor. Id.
In this case, we believe t hat Ms. Hall’s testimony about the victim’s threat to kill the defendant was inadmissible. The state stipulated to the fact that the victim was the first aggressor. Thus, the defe

ndant did not ne ed Ms. Ha ll’s testim

ony to cor

roborat e his cla im that the

victim attacked him. As to the defendant’s argument that the testimony was necessar y to show the jury that the victim intended to inflict severe harm on him, we

believe that evid ence of the victim

suddenly attacking the defendant with the hammer and hitting the defendant in the head de monstrated to the jury that the victim intended to cause se vere ha rm. We c onclude t

hat the tr ial cour t proper ly excluded the testimony.

IV. EXCLUSION OF JOSEPH MALONE’S TESTIMONY
The defendant also claims that the trial court erred by excludingportions of Joseph Malone’s testimony. First, he contends that Mr. Malone should have been allowed to testify that he knew the victim to carry a knife in h is back po cket. Accord

ing to the d

efenda nt, this tes timony wasadmissible to rebut the state’s infer enc e that the defendant planted the knife on the victim after the killing. Second, the defendant contends that Mr. Malone should have been a llowed to testify that he saw the victim show the defenda

nt how to ho ld the knif

e to keep it from being knocked out of one’s hand. The defendant contends that this testimony was relevant as a prior threa t made by the victim to the defenda nt. Finally, the defendant claims that Mr. Malone should have been allowed t o testify that sometime before the day of the murder, he heard the victim tell the defe ndant that the victim

could putthe defendant “to sleep, or he could tak e him out.”The def

endant c laims that this evidence also was rele vant as a prior thr eat made by the vic tim to the de

fendant

. In a jury-out hearing, the trial court ruled that Mr. Malone’s testimony regarding the victim’s carrying a knife in his back pocket a nd showing

the defe ndant how

to hold the knife was irrelevant-12-

because there was no evidence that a knife wa s used by either partyduring the offense in question. As for Mr. Malone’s testimony rega rding t he victim’s threat “to take the defendant out,” the trial court ruled that the testimony was relevant to the def endant’ s state of

mind and a

llowed the

defense to introduce that evidence. According to Rule 401 , Tenn. R. Evid., evidence i s relevant if it has “any tendency to make the existence of any fact that is of consequenc e to the determination of the action more probable or less probable than it would be without the evidence.” Relevant evidenc e may still be exclude d “if its probative value is substantially outweighed by the danger of unfair pre judice, confusion of the is sues, or mislea

ding the ju

ry . . . .” Tenn. R. E

vid. 403. T

he trial c ourt has d

isc retion i n determining whether evidence meets the test for re levancy. State v. Forbes , 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995). Assessing the probative value and danger of unfair pr ejudice regarding the evidence also falls within the trial court’s discretion. State v. Burlison , 868 S.W.2d 713, 720-21 (Tenn. Crim. App. 1993). This court will only reverse a trial court’s decision if the trial court a bused its discretion. State v. Williamson , 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995). Initially, we note th at the tr ial court ruled that Mr. Malone’s testimony about hearing the victim tell the defendant that he could take the defenda nt out was ad missible. Furthermore, the record reveal s that Mr. M alone te stified du ring dire ct examin ation and without obj ecti on that he heard the victim tell the defendant, “I can take a per son and put them in a h eadlock and put them asleep . . . .” Therefore, there is no basis for the de fendant’s claim that the tria l court imp roperly excluded this testimony.
As to Mr. Malone’s testimony about the knife, we do not believe that the trial court abused its discreti on inruling that testimony about the victim showing the defendant how to hold the knife was inadmissible. No evidence was presented to show that the victim was holding a knife when he attacked the defendant

or that he pulled a kni fe on the defenda nt as the d

efenda nt was hitt

ing him withthe hammer. Therefo re, we cannot conclude that the trial court improper ly excluded the testimony. However, we agree with the def endant’s contenti on that Mr . Malone s hould have been allowed to testify that he knew the victim to carry a knife in his back pocket. Office r Bruce D owdle testified that he found a hatchet that had been “shoved down” the back of the victim’s pants and an open knife in the victim’s back pocket. Furthermore, the state elicited from se veral of its witnesses that they had n ot seen the victim with a hatchet

or a knife on November 3. Thus, the state’s evidence inferred that th e defendant planted the weapons on the victim after he killed the victim, and the defendant should have been allowed to rebut that inference with Mr. Ma lone’s testimony. Nonetheless, consider

ing the wh ole r ecord, we cannot say that the error mor e probably than not affected the judgment in this case. See T.R.A.P. 36(b).
V. MISTRIAL Next, the defendant claims that the trialcourt erred by failing to grant a mistrial when the jury heard

the defendant

say in his videotaped statement that he was “on parole” and “ on the run.” The state claims that because the defendant did not replay the statements for the trial court per the-13-

trial court’s request at trial, the defendant has wa ived the issue. In addition, the state claims that any error did not rise to the level of manifest necessity to justify a m istrial. We believe that the trial court did not abuse

its discre tion in fai ling to gra

nt the def endant’ s reques t for a mis trial.
In a pretrial hearing, the defense asked tha t the defendant’s statements regardinghis being “on parole” and “on the run” be reda cted fr om the vide otape, a nd the sta te agre ed to red act those stat ements fr om the tape. However, when the state played the vide otape for the jury during Lieutenant

Barron’ s testimony , th e statements remained in the tape. Immediately after ea ch statemen t, the videotape jumped

as if someone had tried to edit it. After the state played the tape for the jury, a bench conference w as held and the following exchange occurre d:

[Defense]: I was a li ttl e concerned when he said he wa s

on the run . I thought

we’d cu t that out.
THE COURT: On the run? [Defense]: It sounde d like he s aid that.
THE COURT: I didn’t - - I didn’ t hear th at. [State]: I didn’t hear tha t.
THE COURT: That would have be en -- tha

t would have been releva nt. [Defense]: I think he said I was on the run, and I thought

I heard th e wor d parole, and we tried to get that out.
THE COURT: All right. I’ll just tell the jury that you want to take a break.

. . . . [Defense]: I think prob ably just to protect the record there if there was a

mention of the word parole, that was supposed to have been edited out, and .

.

. THE COURT: I didn’t hear it.

. . . .-14- [Defense]: And for that r eason I t hink -- I don’t know

if

-- I guess for the protection of the re cord. I know it was an hour and twent y mi nute interview almost. It ma y be lost, but I think just for the -- I mean, Ithink I’m o bligated to say mistrial, Your Honor . . . .

. . . . The trial court offered to give the jury a curative instru ction. Ho wever, the defe nse, afr aid that a curative instruction would draw the jury’s at tention to the defendant’s statements, asked that the court not give an instructi on. As tothe defense’s request for a mistrial, the trial cour t asked that the defense find and replay the defendant’s statements in order f or the trial court to

determine whether manifest necessity required granting the defendant’s mistrial reque st. However, the defense did not replay the videotape for the trial court.
In his motion for new trial, the defendant argued that the trial cou

rt erre d by not gra

nting his request for a mistrial. The defense finally replayed the d efenda nt’ s videotaped statements for the trial court, a

nd the tria l court he ld that although it was err

or to allow

the jury to

hear the statemen ts, the err or did not r

ise to the s tandard

of manife st neces sity to justif y granting a mistria

l. The decision of whether to grant a mistrial is within the sound discretion of the trial court. Statev. McKinney , 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). Normally, a mistrial should be declared only if there is a manifest necessity for such action. Arnold v. State , 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). Th is court will not disturb that decision unless there is an abuse of discretion. State v. Adkins , 786 S.W.2 d 642, 644 (Tenn. 199 0); State v. W illiams , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).
We hold that the trial court did not abuse its discretion in finding t hat the unred acted videotape did not warrant declaring a mistrial. The record r eflects that after viewing the videotape, the trial court, the defense, and the state disagreed as to what they heard on the videotape, and the record does not reflect whether the jury heard the de fendant’s statements. The defendant has shown no manifest necessity that would require a mistrial, and he is not entitled to relief.
VI. SENTENCING Finally, the defe

ndant cla ims that the tr

ial cour t improper

ly sentenced him to

the maximum sentence of fifteenyears for a Range III, Class C felon. Specifica lly, he contends that the trial court erred in applying enhancement factor (5), that the defe ndant treated or allowed the vi ctimto be treated wi th exceptional cruelty during the offense, and that the trial c ourt failed to afford proper weight to the applicable mitigating factor. The state claims that the trial court properly en hanced the defendant’s sentence. We a gree with the state.-15-

Appellat e review o f sentencing is de nov o on the record with a presumption that the trial court’s determ inations are correct. Tenn. Code Ann. § 40-35-401( d). As the Sentencing Commission Comments to this section no te, the bu rden is now on the defendant to show that the sentence is improper. This means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due consideration and proper weight to the factors and principles that are releva nt to sentencing under

the 1989 Sentencing Act, we may no t disturb th e sentence even

if a different result were pref erred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, “the presumption of correctness whi ch acco mp anies the trial cou rt’s act ion is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appe llate review,
the trial court

must place on the record its reasons for ar riving at the final sentencing decision, identify the mitigating and enhancement factors found, state the specific facts supporting each enha ncement factor found, and ar

ticulat e how the mitigating and enhancement factors have been evaluated and balanc ed in determining th e sentence. Tenn. Code Ann. § 40-35-210(f) (1990).
State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1994). Also, in conducting a de novo review, we must co nsider (1) the evidence, if any, rec eived at the trial and sentenci ng hearing, (2) the presentence re port, (3) the principles of sentencing and argumen ts as to sentencing alternatives, (4) the nature and c haracteristics of the cr

iminal conduct, (5) any mitigating or statutory enhancement factors, (6) a ny statement that

the defendant made on his own beha

lf, and ( 7) the pot

ential fo r rehab ilitation o

r treatm ent. Tenn. Code Ann. §§ 40-35-102, -103, -21 0; see Ashby , 823 S.W.2 d at 168; State v. Mo ss , 727 S.W.2d 229 (Tenn. 1986).
The sentence t o be imposed by the trial court for a Class C felony is presumptively the minimum in the range when there are no enha ncement or mitigating factors pres en t. Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to

increase the sentence within the range ba sed upon the existence of enhancement fact ors and then reduce the sentence as appr opriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(d), (e). T he weight to be afforded a n existing factor is left to the trial court’s discretion so long as it complies with the purposes and principles of the 1989 Sente

ncing Ac t and its findings are adequately supported by the recor d. Tenn. Code Ann. § 40-35-21 0, Senten cing Commis sion Commen ts; Moss , 727 S.W.2 d at 237; see Ashby , 823 S.W. 2d at 169. The pre sentenc e repor t reflects that the then thirty-six-year-old defendant quit high school butlater earned his G.E.D. The defenda nt reported fair physical health and good mental health and stated that he began using alcohol when he was sixteen y ears old. The report reflects that the-16-

defendant ha d been convicted of various felonies and misdemeanors, inc luding rape; theft of propert y valued more than $1,000 but less than $10,000; sale o f a Sch edule II drug; breaking and entering; passing a forged prescription; driving with a revoked license ; and public intoxication.
The trial cou

rt found t he follow ing enhan

cement f actors a pplicabl e, as liste d in Tenn. Code Ann. § 40-35-114:

(1) The def

endant ha s a previ ous histor y of criminal con victions or criminal behavior

in addition

to those necessar

y to establi sh the appropriate range;

. . . (5) The defendant treated or a llowe d a victim t

o be trea ted with exceptional cruelty during the commission of the offense;

. . . (9) The defendant possessed or employed a firear m, explosive device or other deadly weapon

during the commission of the offense; [and]

. . . (13) The felony was committed while [thedefendant was on parole.]
In mitigation, the trial court considered that 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 the conduct.” Tenn. Code Ann. § 40-35-113(11). The trial court gavelittle weight to the mitiga

ting fac tor and de

termined that ther e were more tha n enough e

nhance ment f actors t o justify inc

reasing the defe ndant’s s entence

to the maximum within t he range , fiftee

n years. The defendant contends that the trial court erred by e nhancing his sentence based upon the excep tional cruelty

factor . The stat

e contends that the

enhanc ement fa

ctor app lies bec ause

th e defendant inflicte d multiple

blows that

penetra ted the vi ctim’s skull and bec ause he contin ued to hit the victim after the victim had collapsed. Th e application of factor (5) requires “e xceptional cruelty,” which is usually found in cases of abuse or torture. See State v. Williams , 920 S.W.2d 247, 250 (Tenn. Crim. App. 1995). Our supreme court has held that the facts must “support a finding of ‘exceptional cruelty’ that

‘demonstrates a culpability distinct from and appreciably greate r than that incident to’” the crime. State v. Poo le , 945 S.W.2d 93, 98 (Tenn. 1997) (quoting State v. Jones , 883 S.W.2d 597, 60 1 (Tenn. 1 994)). I n other w ords, the

proper a pplicatio n of this fa

ctor re quires a finding of cruelty “over and above” what is required for the offense itself. State v. A rnett , 49 S.W.3d 250, 258 (Tenn. 2001).-17-

The evidenc e revea

ls that the defenda nt hit the victim at least six times with a hammer w ith enough force to break the victim’s skull and spl atte r his blood and brain matter a

round the room. The de fendant con tinued to h it the vict im as the vi ctim tried

to defen d himself f

rom the blo ws. However, the pathologist attributed the victim’s de ath to “multiple” blows and the trial court acknowledged

that the e

vent happ ened quic

kly. The e

vidence also ref lects tha t the victi m lost consciou sness. The state asserts that this court has recognized that excepti onal cru elty is app licable in a murder

case in which the victim sustained traumatic and severe da mage to the head, citing State v. Gray , 960 S.W.2d 598, 611 (Tenn. Crim. App. 1997). In Gray , the defendant severely beat his fiancee to death, and the victim had m any external injuries including a laceration on her scalp, abrasions above her right eye, on her back and r ight side, on her hip bone and on her thighs, bruises on he r breasts, and marks on her forear ms and wrists. The victim also had a fractured skull an d several internal injuries including hemorrh aging of t he small bo wel and le

ft brea st. We believe that the facts in t

he prese nt c ase ar e quite distinguishable from those in Gray . The trial court applied enhancement

factor (5) because the def endant inflicted multiple blows, “any of several which could have caused his death.” As previously noted, though, the pathologist attributed the death to several blows and the evide nce reflected that they were a dministered in quick fashion. We conclude that the c ircum stances in this case do not justify a finding of exceptional cruelty over and a bove the actions causing the victim’s death.
As for the defendant’s claim that the trial court failed to give pr oper weight

to the mitigating factor, we note that the weight accorded sentencing factors is left to the trial court’s sound decision. See Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments. In this case, the trial court determined that the mitigation proof was so minimal that it should notdecrease the sentence fr om the maximum in the range. We believe material evidenc e exists to support this determination. Moreover, although we conclude that enhance ment factor

(5) was inappropriately applied, we are impr

essed wit h the ser iousness of the re

maining e nhance ment fac tors. The defendant’s being on parole, having a substantial criminal record, and using a dead ly weapo n in the ma nner he d id justify a maximum s entence, even in the face of mitigation from the unusual c ircumstances surrounding the defe

ndant’s c onduct. We conclude that the sentence imposed by the trial court is appropriate.
Based upon the f

oregoing and the r ecord a s a whole , we aff

irm the jud

gment of th

e t rial court.

___________________________________ JOSEPH M. TIPTON, JUDGE