# FILED
February 25, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE OCTOBER 1998 SESSION

STATE OF TENNESSEE, * C.C.A. No. 03C01-9803-CR-00084 Appellee, * UNICOI COU NTY VS. * Honorable Lynn W . Brown, Judge MARTIN PALMER JONES, * (Sentencing) Appellant. *

For Appellant : For Appellee : Julie A. Martin John Knox Walkup Attorney for Appellant Attorney General and Repor ter P.O. Box 426 Knoxville, TN 37901-0426 Todd R. Kelley (on appeal) Assistant Attorney Gener al Criminal Justice Div

ision David F. Bautista 425 Fifth Avenue, North District Public Defender Cordell Hull Buildi ng, Second Floor Nashville, TN 37243 Robert Oaks and David Crockett Deborah Huskins District Attorney General Assistant Public Defenders 142 East Market Street Lisa Nidiffer Johnson City, TN 37605 Assistant District A ttorney General (at trial) Johnson City, TN 37601

OPINION FILED:__________________
AFFIRMED GARY R. WADE, PRESIDING JUDGE1 See North Carolina v. Alford , 400 U.S. 25 (1970). 2 OPINION The defendant, Martin Palmer Jones, ent ered best interest pleas of guilt to two counts of felony murder and received sentenc es of life with the possibil ity of parole. 1 The trial court ordered the sentences to be served consecutively. In this appeal of right, the defendant argue s that the trial court er

red by imposing consecutive sentences in the absence of any aggravating circumstances. W e affirm the judgment of the trial court

.

On October 10, 1996, the fifteen-year -old defendant admitted in a taped interview w

ith TBI special agent Shannon M orton, that on the previous day he had shot and killed the victims, John Harder and Marsena Ratliff. Only days earlier, he had stolen a car from a local college and burglari zed a residence, steali ng several guns. Armed with a .22 caliber rifle, he had driven up Unaka Mountain intending to cross into North Carolina. As he near ed the top of the mountain, he recalled having pass

ed an automobile parked at a sceni c overlook. Decidi ng that he needed money, the defendant parked a shor t distance from the overlook and walked toward the victims intending to commit a robbery. When he saw the defendant approach, Harder asked for assistance in jump starting his car. The def endant did not reply and, without

any warning, shot

Harder once in the head. The defendant confessed that he shot Harder tw ice more because "he didn't look like he was dead ... I didn't want him to s uffer." At that point, the defendant shot Ms.Ratliff, who had attempted to flee. He told officers tha t the weapon had to be cocked before each shot. After taking a dollar from Harder's pocket and ten dollars from Ms. Ratliff's purse, the defendant drug Harder 's body a short distance . He denied having undressed Ms. Ratliff, sex ually accosting her, or moving her body . While driving down the mountain, the defendant wr ecked the stolen car. He the n fled on foot to a3 trailer where he was later taken into custody by North Carolina authorities. Shortly after his arrest, the defendant prov ided a similar statement to C hris Buchanan, chief detective with the s heriff's department of Mitchell C ounty, North Carolina.
At the submission hearing o n the Alford plea, the defendant denied killing the victims. He explained that he confessed to the killings only because an officer had informed him that "a ll the evidence was pointing towards me and it would be the best thing to do." He testified that he had stolen a car and driven to Unaka Mountain, where he parked and then walked to a water fall. He claimed that someone stole his car during his absence and further stated as f ollows:

I walked up the mountain and that's when I found the car. ... I wasn't aware the people were even dead at that time. And when I got to the car, when I looked over, and that's when I seen the people. And I got scared and I didn't want to be there so I got back in the car and I didn't see nobody around. ... [T]here w as a .22 rifle laying beside the bodies when I walk ed up on them. ... I picked it up and put it in the car and drov e on.... The defendant admitted that when he was taken into custody he had a . 22 caliber weapon in his possession , Harder's driver 's license, a ten dollar

bill, and a one dollar bill.
TBI Agent Shannon Morton testified that on October 9, 1996, he responded to a call concerni ng a double homicide on Unaka M ountain. Upon arrival at the scene, he found the body of a w oman near the front of a white automobil e. She had been shot in the head several times and her clothing had be en partially removed. He found the male vi ctim, who had been shot sev eral times in the head, located in the woods nearby. The body appeared to have been dragged from the parking lot. Shortly

after his arrival, Ag ent Morton learned that an automobi le had been wrecked about five mil es from the murder scene on the Nor th Carolina side of the mountain. Two hunters had informed officials that they had come upon the4 wreck and talked wi

th a young man, the descri ption of whom matched the defendant. The hunters saw the defendant hi ding weapons and other it ems in a wooded area. Officers establi shed roadblocks and, later that evening, the defendant was apprehended and taken to th e Mitchell County Sher iff's Department for questioning. When defendant's parents arr ived, Agent Morton informed the defendant of his rights and recor ded his statement. Agent Mor ton testified that the physical evidence found at the crime scene was consistent with the defendan t's statement.
In accepting the plea, the trial court determined that Agent Morton's testimony established sufficient facts to con stitute the offense. The trial court characterized the defendant's testimony as "absolutely incomprehensible" and determined that the defendant was g uilty as charged.

At a subsequent sentencing hearing, Agent Morton t estified that the murder weapon was a bolt action .22 caliber rifle which had been recover ed from the defendant's wrecked vehicle. These facts were consistent with the def endant's pretrial statements. The officer al so related that he had interv iewed witnesses w

ho had seen the defendant on Unaka Mountain on the day before the murders. Other witnesses had observ

ed the defendant in the possession of a w eapon near the murder scene only forty minutes or so prior to the s hootings.

The autopsy reports indicat ed that Harder was shot twice in the head and three times in the body. Ms. Ratliff sustained three g unshot wounds to the head.
Kitty Mendez Ratli ff, mother of the victim Marsena R atliff, testified that5 the death of her daughter was devastating for her and her husband . Linda Harder, mother of the victim John Har der, and Christy Har

der, his wife, testified to the gravity of their loss.
Scott Wayne Verran, a teacher in Happy Valley High School

in Carter County, testified that the defendant ha d been his student for six weeks. He described the defendant as quiet, withdrawn, and hav ing average intell igence. David Allen Hughes, also a teacher at the high school, described the defenda nt as a somewhat interested, adequat e student who did not pose dis ciplinary problems. Both teachers, however , confirmed that the defendant had a problem w ith truancy. Claudette Bennett, who had taught the defend ant during elementary school, remembered him as a good student. School librarian Chery l White characterized him as a quiet, averag e student. Holly Johnson,the fifth grade teacher of the defendant, remembered him as a pleasant, fri endly child who w as not disruptive. Rhonda Delft h remembered the defenda nt as non-violent and possessing a verage intelligence.
Ralph Sparks, an administr ator for the Upper East Tennessee Regional Juvenile Detention Center, where the defendant was housed, described the defendant as non-violent and unusually cooperat ive. Sam Kerns, a jail supervisor of the Unicoi County Sheriff's Department w here the defendant had been in solitary confinement, des cribed the defendant as "a model pris oner" who was non-violent, courteous, neat and clean. Sam Garland, a f riend of the defendant's family who had known th e defendant all his life, testified that the defendant had been a polite child with very supportiv e parents.
Pauline Edmondson, in custody of the defendant from the age of three6 months, adopted him when he was ten years old. She descr ibed her son as quiet, shy, independent, and non-v iolent. She stated that he had atten ded church most of his life. Ms. Edmondson, w ho could not identify any ev ent that might have prompted the defendant to runaway, confir med that her son had stolen a car later used in the murders and had been involv ed in a burglary. Sh e expressed the belief that her son had not committed the killings because he had falsely admitted to acts in the past. Ms. Edmondson thought the case had not been adequately inve stigated.
When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commissi on Comments provide that the burd en is on the defendant to show the i mpropriety of the sentence.

Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigat ing or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and - 210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987). The record in this case demonstrates that the trial court made adequate findi ngs of fact.2 The first f our crit eria are f

ound in Gray . A fif

th category

in Gray , based on a speci fic number of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion

. See Tenn. Code Ann. § 40-35-1 15, Sentenci ng Comm ission Comments. 7 Prior to the enactment of the Cri minal Sentencing Reform Act of 1989, the limited classifications for the imposition of co nsecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 39 3 (Tenn. 1976). In that case our supreme court ruled that aggravati ng circumstances must be pr esent before placement in any one of the classifications. Later, in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), the court established an addition al category for those defendants convicted of two or more statutory offenses involving sexual abuse of minors. There were, however, additional words of caution :

[C]onsecutive sentences s hould not routinely be impos ed . . . and . . . the aggre gate maxim um of co nsecutive terms must be reasonably r elated to the severity

of the offenses involved. Taylor , 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the holdings in Gray and Taylor ; consecutive sentences may be imposed in the discretion of the t rial court only upon a determination that one or more of the following criteria 2 exist:

(1) The defendant is a professional criminal who has knowingly dev

oted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose r ecord of criminal activity

is extensive; (3) The defendant is a dangerous ment ally abnormal person so declared by a c ompetent psychiatrist w ho concludes as a result of an inv estigation prior to sentencing that the defendant's cr iminal conduct has been characterized by a pattern of repetitive or compulsive behavior w ith heedless indifference to consequences; (4) The defendant is a dangerous offe nder whose behavior indicates little or no regard for human l ife, and no hesitation about committing a crime in which the risk to human life is high;8 (5) The defendant is convicted of two (2) or more statutory offenses involv ing sexual abuse of a minor with consideration of the aggrav ating circumstances ari sing from the relationship between the defend ant and victim or victims, the time sp

an of defendant's undetected sexual activity , the nature and scope of the sexual acts and the extent of the residual, p hysical and mental damage to the victim or victims; (6) The defendant is sentenced for an of fense committed while on probatio n; (7) The defendant is sentenced for cr iminal contempt. Tenn. Code Ann. § 40-35-115(b).

In Gray , our supreme court ruled tha t before consecutive sentenci ng could be imposed upon the dangerous offender, as now defined by subsec tion (b)(4) in the statute, oth er conditions must be present:(a) that the crimes inv olved aggravating ci rcumstances; (b) that consec utive sentences are a neces sary means to protect the public from the defendant; and (c) that the term reasonabl y relates to the severity of the offenses.

In State v. Wilkerson , 905 S.W .2d 933, 938 (T enn. 1995), ou r high court reaffirmed those principl es, holding that consecuti ve sentences cannot be required of the dangerous offender "unl ess the terms reasonably relate[] to the severity of the offenses committed and are nece ssary in order to protect the public (society) from further cr iminal acts by those per sons who resort to ag gravated criminal conduct." The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutive sentencing adopted i n State v. Woods , 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human process that neither can nor should be reduced to a set of fixe d and mechanical rules." Wilkerson , 905 S.W.2d at 938.9 The trial court based the imposi tion of consecutive sentences upon the classification of the defendant as a dang erous offender. Tenn. Code Ann. § 40-35- 115(b)(4). It concluded that the defendant had been untruthful in his testimony and was remorseless for his crimes. The trial court also determined that the record supported the conclusion that the defendant demonstrated little or no regard for human life and had no hesitation about committing a crime in whi ch the risk to human life was high: "[the defendant] armed himself. He planned a robber y. And, then he decided to kill. ... [H]e placed a greater value on the[ir] money ... than he did on their lives. So, there is no doubt that he is a dang erous offender." Furthermore, the trial court determined that the circumstances surrounding the of fenses were aggravated: This involved the use of ... a bolt action firearm, a rifle

that took time to operate. The bolt has to be moved before it will fire ag ain. ... [H]e gave absol utely no warning ... He just starts shooting him, doesn't ask him for money . ... Aft

er he sho

ots Mr. Harder , Ms. Ra tliff hollers and then starts running. And, as she is attempting to flee he shoots her. There is not heat of passion, no indication of any mental disturbance. Th is was not only felony mur der ... it was also a premeditated murder. ... There was a cons cious choice that he made to kill these people ....

Next, the trial cour

t addressed the defendant's potential for rehabilitation, which was characterized as "extremely poor." The trial court concluded as follows:

[T]ake a look at those pictures and see what he did to each of those individuals, and then wonder how could somebod y go through their poc kets. His c onfess ion says he turned Ms. Ratliff over and went through her pockets, and her face ... is full of bullet hol es. There's no indication that he's struc k then ... or ... now, or

at all ... as to the horror of what he did.... I can't understand someone who is absolutely cold. ... He's just sitting there calmly now

... as if ... he's watching a tele vision pr ogram, and that's the way ... it's been the whole time. For rehabilitation to occur, [one] has to acknowledge w hat [one has ] done. T he first step ... i s honest y ... and we10 don't have it ... and that's a key to his ... potentia l for rehabilitation. ... There is no expression of regret .... No apology ... absolutely

no remorse.

The trial court also determi ned that the aggregate le ngth of consecutive life sentences reasonably related to the severity of the offenses and that due to the severity of the crimes, the public needed to be protected from the defendant. After determining that the d efendant had no potential for rehabilit ation, the trial court sta ted that the def endant wo uld be "a s much of a danger a t age sixtyfive ... as he was on that mountain ...." While considering the defendant's youth, the trial court ruled that l ack of substantial judgment on th e part of the defendant was not demonstrated by the proof and that consecutive sentences w ere justly deserv

ed due to the seriousness of the offen ses and necessary to avoid depreciating the very serious nature of these offenses.

In our view, the ex

tensive findings by the trial court are suppor ted by the record. The defendant showed no r egard for human life and, by his own pretrial confessions, had absolutely no hesitation in shooting th e defenseless victims. The explanation that multiple g unshots were motivated b y mercy for the suffering of the victims is not credi ble. There were sever al aggravating circumstances: the defendant shot without warni ng and without provoc ation; the defendant had a prior criminal history, h aving stolen cars and burglarized a res idence only days before the shootings; the defendant exhibi ted a lack of remorse and has refused to accept responsibility for hi s crimes. His lack of candor is evident. Becaus e the defendant does not appear to be amena ble to reh abilitat ion, the impositi on of con secutive sentences may be necessary to protect the public from the possibility of f uture criminal conduct. The consecutive sentences are reasonab ly related to the gr avity of the crimes.11 Accordingly, w

e affirm the judgment of the trial cour t.

_____________________________ Gary R. Wad e, Presiding Judge CONCUR:

________________________________ David H. Wel les, Judge

________________________________ Thomas T. W oodall, Judge