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

Briefs O ctober 15, 2003
STATE OF TENNESSEE v. MARTIN STUART H AMMOCK
Direct Appeal from the Criminal Court for Davidson County

No. 98-B-1430 Carol Soloman, Judge

No. M2002-01326-CCA-R3-CD - F iled January 23, 2004

Defend ant, Martin Stuart Hammock, was originally convicted o f first degree murder following a jury trial. On appeal, this Court found that there was insufficient evidence of pre meditation to support a conviction for

first degree murder. Acc ordingly, we modified the judgment to reflect a conviction of second degree murder a

nd remanded

the case to the trial court for re-sentencing. State v. Martin Stuart Hammock , No. M2000-00334-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 824, (Tenn. Crim. App. at Nashville, Oct. 12, 2001), no perm. to app. filed . Foll owing a new sen tenci ng heari ng, the trial court sentenced Defendant to serve twenty-five y

ears. Defendant appeals. After a re view of the record, the

briefs, and the a

pplicabl e law, we

affirm t he judg ment of the

trial cou rt. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cr

iminal Court Affirm

ed
T HOMAS T. W OODA LL , J., deliver ed the opinion of the

court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined. C. LeAnn Smith, Nashville, Tennessee, for the a ppellant, Martin Stuart Hammock.
Paul G. Summers , At torney Genera l and Repo

rter; John H . Bledso e, Assista nt Attorne

y General ; Victor S. Johnson III , District Attorney Gene ral; and Bret T. Gunn, Assistant District Attorney General, for the appellee, the State of Te nnessee.
OPINION
A detailed accounting of the facts which ultimately led to Defendant’s conviction for second degree murder is found in this Court’s opinion in State v. Martin Stuart Hammock , supra
. A brief summary of those fa

cts as they per

tain to the sentencing hearing is nece ssary to addre ss the issues raised by De

fendant in this appeal.
In the ligh

t most favorable to the State, the proof showed that Defe ndant and Darren Brent Rollins went to the

apartme nt of th e v ictim, Gary Jackson, on the evening of February

15, 1998. Prior to arriving at thevictim’s a partmen t at appr oximately 10:30 p.m., Defendant and Mr. Rollins-2-

had eachconsumed about a 12-pack of beer. At the victim’s apa rtment, Defendant and

Mr. Rollins drank beer that they broug

ht with them, and the victim consumed his own beer. Mr. Rollins testified that the victim was intoxicated. The three men ran out of beer and De fendant and Mr. Rollins went to the store to buy more beer. Upon their retur n, Mr. Rollins asked the victim for his share of the money for the newly -purchased beer, but the victim refused. The victim got mad when Mr. Rollins said that he and Defendant were lea ving, more words were

exchanged, and the victim shoved Mr. Rollins, who then fell over a couch.
Mr. Rollins testified that he saw Defend ant then g rab the v ictim fro m behind a

nd strike him over the head with a knif

e handle . The vic tim tried to protect himself by putting his hands on top of his head. The victim fell, and Defendant put his foot in the middle of t he victim’s back and grabbed the top of the victim’s hair, pulling the victim’s head back. Defendant then cut the victim’s throat.
Dr. Bruce

Levy , the medi cal examin er for D avidson County , per formed an autopsy on the victim. He found

that t he victim s usta ined multip le injurie s to his hea d and nec k and that

his forear ms and hands had what appeared to be def ensive wounds. Dr. Levy

determined that

the victim died from a sharp cut to his neck, resulting in a substantial loss of blood. As noted by this Court on direct appeal, Dr. Levy

testified that the cut severed the victim’s jugular veins, his lary nx, and was “deep to the neck bone.” State v. M artin Stuar

t Hammoc

k, supra . The victim’s blood alcohol level was 0.24.
The presentence report was made a n exhibit at the sentencing hear ing. At the time of sente ncing, Defendant was forty -two year s old. The p resente nce rep ort refl ects that Defendant had at least nineteen prior convictions, which ranged f r om third deg

ree bur glary , agg ravate d assault , weapons offense s, and ass ault to va ndalism, d

riving u nder the influenc e of intoxic ants on at least three occasions, and other motor vehicle r elated c rim inal offe

nses. The

present ence re port also showedthat Defendant had been found in violation of probation o n at least fi ve prior occasio ns. Defendant’s criminal history extended over a period of approximately twenty y ears.
Defendant

testifie d at his s enten cing hearing that he had been a se lf-employed c ontractor from 1986

until 1998, when he was arrested for the instant offe nse. Defendant

expresse d remors e for the deat h of the victim. Two character witnesses and Def endant’s mother also testified on behalf of Defendant at the sentencing hea ring. They

testified about Defendant’s good qualities, including his good work habits and the fact that they ha d never had any

problems with Defendant and that he didnotshow or di splay

anger . In a

ddition, De

fendant ’s mother

testifie d as to her strong belief that Defendant had acted in self-defe nse or in defense of Mr. Rollins.
At the ti me of t he sen tenci ng heari ng, there were twenty -two statutory enhanc ement factors listed in Tennessee Code Annotatedsection 40-35-114. See Tenn. Code Ann. § 40-35-114 (1997). Su bs eq ue nt ly, in Public Acts 2002, ch. 849, § 2 c, the legislature added a twenty -third enhancement factor, but listed it as enhancement factor (1) a nd renumbered previous factors (1) throug h (22) as (2) through (23). See Tenn. Code Ann. § 40-35-114 (Supp. 2002). In this opinion, we will refer to-3-

the enhancement factors of Tennessee Code Annotatedsection 40-35-114 as they existed at t

he time of the sentencing hearing on A pril 25, 2002.
The trial court found that there were no applicable mitigating factors and found the existence of the following enh anceme nt facto rs: (a) t he defe ndant had a prev ious history of criminal con victions or criminal behavior in addition to those necessary to establish the appropriate range, Tenn. Code Ann. § 40-35-1 14(1); ( b) the victim of the o ffense was par ticularl y vulnerabl e becau se of age or phy sical or

mental dis ability

due to the victim’s intoxication, Tenn. Code Ann. § 40-35- 114(4); (c) the defendant treated the victim with exceptional cruelty during the commission of the offense, Tenn. Code Ann. § 40-35-114(5); (d) the defendant had a pr evious history

of unwillingness to comply with the conditions of a sentenc e involving release in the community, Tenn. Code

Ann. § 40-35-114(8); (e) the

defendant possessed

or employed a de adly wea pon during the commission of the offense, Tenn. Code Ann. § 40-35-114(9); and (f ) the offense was com mitted while the defendant was on probation for a prior fe lony conviction, Tenn. Code Ann. § 40-35- 114(14).
In itsbrief, th

e State does not mention the trial court’s finding of enhancement fa ctor (13). This enhancement factor was appar ently relied upon by

the trial court, but we conclude that it was improper ly applied. Defendant was on probation for a misdemeanor a t the time of the commission of second degree

murder, and application of this enhancement factor requir es proof that a defendant was on probation for a prior felony conviction. See Tenn. Code Ann. § 40-35-114(13) (1997).
On appeal, Defend ant conte sts the tri al c ourt’s a pplication of enhancement factor (4), that the victim wa s particu

larly vulnerable because of his intoxication, and enhancement factor (5), that Defendant

treated the v ict im wit h ex cep ti ona l cr uel ty du rin g th e co mm is si on o f th e offen se. In addition, Defendant argues that the trial c ourt erre d b y n ot apply ing mitig ating f

actors f ound in Tennessee Co de Annota

te d section 40-35-113(2) and (3), that the defenda nt acted under strong provocation, and substantial grounds existed tendi ng t o excuse or justify the defe ndant’s criminal conduct, though failing to establish a defense, r espectively.
A defendant’s sentenc e is revie wed by the appe llate cou rts de novo with apresumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40- 35- 401(d); Stat e v. Imfeld , 70 S.W.3d 698, 704 (Tenn. 2002). For this presumption to apply to the trial court’sactions, there must be an affirmative showing in the reco rd that the t rial court considered sentencing principles and all relevant facts and circumstance s. State v. Pettus , 986 S.W.2d 540, 543-44 (Tenn. 1999). While dete

rmining or revie wing a s entence , the cour ts must cons ider:(1) the evidence received at trial and the sentencing hearing ; (2 ) the pre-sentence report; (3) the pr inciples of sentencing an d arg uments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence offered by the parties on the enhancement and mitigating factor s; (6) any state

ment the defendant wishes to make in the defend ant’s behal f abou t sent encin g; and (7) the p ote ntial f

or rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103(5), -210( b); State v. Ashby , 823 S.W.2d 166, 16 8 (Te nn. 1991) ; State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).-4-

If t he trial court has imposed a lawful sentence by following the statutory se ntencing procedure, has given d

ue consid eration and prop er weig

ht to the fac tors and s entencing principles, and has mad e findings of fact adequately supported by the record, this Court may not modify the sentence even if it would have preferred a dif ferent result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, if the trial court do es not comply with statutory sentencing provision s, our revi ew of the sentenc e is de novo with no presumption the trial court’s determinations were correct. State v. W infield, 23 S.W.3d 279, 283 (Tenn. 2000).
The weight given to each enha ncement or mitigating fac tor is in the discretion of the trial court, providedthe trial court has complied with the purposes and principles of the Sentencing Act and its findings are supported by the rec ord. State v. Zonge , 973 S.W.2d 250, 259 (Tenn. Crim. App. 1997). The statutes prescribe no particular weight for an enha ncement or mitigating factor. State v. Gosne ll , 62 S.W.3d 740, 750 (Tenn. Crim. App. 2001).
The wrongful application of one or more enha ncement factors by

the trial co urt does not necessa rily lead to a reduction in the length of the sent ence. Wi nfield , 23 S.W.3d a t 284. This determination require s a

review of theevidence supporting any remaining enhancement factors, as well as the evidence supporting any mitigating factors. Imfeld , 70 S.W.3d at 707.
Second degree murder is a Class A felony . Tenn. Code Ann. § 3 9-13-210(b). The presumptive sentence for a Cla ss A felon y isthe midpoin

t of the ra nge of possible punishment

if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). Defendant was sentenced as a Range I offe nd er , a nd th er efor e t he po ss ib le ra ng e o f p un is hm en t i s f if te en to tw en tyfive ye ars. Ten

n. Code An

n. § 40-35 -112(a) (1). The midpoint of

the rang e is there

fore twe nty ye ars. If there ar e enhancement but

no mitigating factors for a Class A felony , the trial court must set the sentence at or

above the midpoint of the range. Tenn. Code Ann. § 40-35- 210(d). Should there be bothenhancement and mitigating factors for a Class A felony , the trial court must start at the midpoint of the range , enhance the sentence within the rang e as appropriate for the enhance ment factor s, and then r

educe th e sentence within

the range as appropriate f

or the mitigating factors. Tenn. Code Ann. § 40-35-210(e). Regardingenhancement factor (4), the victim’s vulnera bility, the trial court found that the victim was particularly

vulnerable because at the time that his throat was cut by Defendant, the victim was on the floor

and “at least, half unconscious.” The rec ord reflects that the re were at least two dozen injuries to the victim’s head in a ddition to the cut wound to his throat. While this issue is close, e specially

in the absence of

detailed findings of fact by the trial court on the application of this enhancement factor, we conc lude that there is sufficient evidence in the recor d to uphold the trial court’s application of enhancement factor (4). See State v. Gray , 960 S.W.2d 598, 611 ( Tenn. Crim. App. 1997). Rega rding enhanc ement fa ctor (5) , exceptio nal crue

lty, the rec ord ref

lects tha t the victim w a s struck on the hea

d with the handle of Defendant’s knife approximately two dozen times. While the victim was on the

floor in th

is conditio n, Defe

ndant the n slit the victim’s throat. Proper application-5-

of this factor

requires a finding of cruelty “over and above” what

is required for the offense itself, such as in cas es of abu se and torture. State v. A rnett , 49 S. W.3d 2 50, 25 8 (Te nn. 20 01). We conclude that the trial court did not err in apply ing this particular enhancement factor. As noted by t he State, De

fendant abused, battere d, and be at the victim befor e violent ly s lashing

the victim ’ s throat from “ea r to e ar.”We further conclude that the trial court did not err in declining to apply the mitigating factors argued by Defe ndant. Having found that the trial court erroneously applied one enhancement factor, we conc lude that five enhancement factors were properly a

pplied and that no mitigating factors were a pplicable. Despite the fact that one enhancement factor was inappropriately applied by the trial cour t, we conc l ude a sentence of twenty -five ye ars is appropriate under our de novo re vi ew . A cc or di ng ly, Defend ant is not e

ntitled to r

elief in t his appea l.
CONCLUSION
For the r easons st ated abo ve, we a

ffirm the judgmen t of the tr ial cour t.

____________________________________ THOMAS T. WOODALL , JUDGE