### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Februar y 13, 2002 Se ssion
STATE OF TENN ESSEE v. SHANNO N WADE JACOBS
Direct Appeal from the Circuit Court for Giles County No. 9416 Robert L. Holloway, Judge

No. M2001-00349-CCA-R3-CD - Filed July 5, 2002

Defendant

was convicted of second degree murde r, a Class A felony. On appeal, defendant contends that the trial court improperly exclude d defen dant’s medical records and improperly sentence d defendant. We affirm the judgment of the trial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OHN E VERETT W ILL IAMS , J., de livered t he opinion of the court, in which J OSEPH M. T IPTON and A LAN E. G LENN , JJ. , joined.

Keith R. Pe

terson, Pulaski, Te

nnessee , for the

appella nt, Shanno n Wade Ja

cobs.
Paul G. Summers, Attorney General and Reporter; Renee W . Turner, Assistant Attorney Genera l; T. Michel Bottoms, District Attorney General; Richard H. Dunavant and Patrick S. Butler, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

On March 8, 2000, defendant, Shannon Wade Jacobs, was indicted by a Giles County grand jury on one count of first degree murder. The c ase was submitted to a j ury, and defendant was subseque ntly found guilty of second degree murder. The trial court sentenced defendant to twentythree years for second degree murder and ordered the sentence to be served c onsecutively to a two year probatio n revoca

tion. Def endant s ubseq uently filed a motion for new trial and an amended motion for new trial. The trial court denied the motion, and defendant filed his notice of appeal.

Facts-2-

Defendant

Shannon Wade Jacobs was charged with the Janua ry 9, 2000, murder

of Andre Demetrius Martin in Pulaski, Tennessee. Officer L. C. Gill, a patrolma n wit h the Pulaski Police Departm ent, testified that on the night o f Januar y 9, 2000, h

e responded to a c all that shots had been firedon North Third Street. He stated that he was the first to arrive on the scene and foundthe victim lying beside the road and facing the roadway. The victim was struggling to breathe and was unable to communicate. He statedthat he assured the victim that an ambulance was on the way. H e testified that

near the victim lay a

small bag containing what appeared to be crac k cocaine residue. He testifie d that af

ter leav ing the sc ene, he

arrive d at the ho spital wh ere he met his supervising officer, Lieutenant John Dickey, who instructed him to sear

ch for the vehicl e believed to be driven by the suspect.

Patrolman Dwight Garner, a patrolman with the Pulaski Police Department, testified that he also answered the call of a possible s h ooting on N orth Thir d Street. He testif

ied that u pon his arriva l, Patrolman Gill turned over a Ziplock bag containing drug residue. He stated tha the secured the evidenc e and lat

er turne d it over to

Investigator

Vickie Maddox. He stated that he also recovered
a spent .308 cartridge from the area. He stated that he later patrolled the city looking for a light blue, four-door Ford Tempo with

the drive r’s windo w missing, w

hich was believe d to be the car driven by the suspect.

Dr. Charles Harlan, a forensic pathologist for the State of Tennessee and the a ssistant c ounty medical examiner for Giles County, testified that the victim died as a result of a gunshot wound to the ches t.

Robert Larry Allen testified that he was sitting in his vehicle on North Third Street talking withthe victim when a car pulled up beside

them. He s tated tha

t the victi m started

to walk ov er to the driver’s side of the car, at which point a gun was fired. The glass shattered and the victim went flying across t

he road. He state d that the victim stoo d to his feet and fell down again. The car, a blue Ford Tempo, remained for about thirty to forty-five seconds before leaving. Allen testified that he knew def

endant, and defendant was sitting in the passenger’s side of the car. He also testified that he saw the rifle and saw it go off.
Cheryl Radtke te stifie d th at she ha d been sta

ying at a t

railer p ark with b oyfrien d Scotty Campbell, and she and Campbell were in the proc ess of moving in with D onna Fros t and def endant. Defendant

was Frost’s boyfriend at the time. The day o f the shoo ting, Radtk e, Frost, Campbell, and defendant went to La

wrence burg to ge

t a stove f rom Frost’ s mother’ s house and then proceeded

to Frost’s sister’s house to get a deep freezer . She then stated that they moved the app liances out to defendant’s house, after which time they took Frost to work at Pulaski Web. Radtke testified that she, Frost’s two children, Ca mpbell, Michael “PeeWee” Bryant, and def endant went to the trailer park so Campbell could ge

t some clot

hes from his mother ’s house. She state d that at t his point , Campbell was driving Frost’s light blue Ford Tempo. At the trailer park, defendant left the others for a little while, then returned with Bryant, and told theothers that they were going to North Third Street to purchase some crack coca ine. Radtke stated that while driving up North Third Street, they encountered

the victim who sold crack cocaine to either Bryant or

defendant. Radtke stated that she-3-

didnot know if the victim gave the drugs to Bryant or defendant, but she did see defendant with the money before

he gave it to Bryan

t. She said th at d efendant laid the drugs on the dash of the car. Bryant was then taken home, and Radtke and defe ndant re tu rned to defendant’s residence. Defendant

subsequently realized that the drugs were fake. At that point, Frost called and stated that she was finished with work and needed to be picked up. Radtke began to leave to pick up Frost, at which point defendant told her he was going to ride into town with h er. She stated that she was driving, defendant

was in the passenger’s seat, and defenda nt had a .270 caliber deer rifle in the ca r. The testimony from three separate witnesses indicates that defe ndant kept the deer rifle with hi m most of the time. Radtke sta

ted that o n the way

into town, d

efenda nt was say

ing, “I’ m going to ki ll me a n---er . I’m going to kill me a n---er.”

Radtke stated that

defendant instructed her to drive down North Third Street. Instead, she drove past North Third Street and told defendant she was going to pi ck up Frost, at which point defendant told her, “No, you’re n ot. Turn th is car around. Turn it around now.” Radtke turned around, went back, and again, did not stop. She said defendant told her to turn the car around and had his hand on

the gun the

whole time . They we

nt to North Thi

rd Stree t a total of three tim es, and every time defendant kept saying, “I’m gonna kill me a n-- -er. I’m gonna kill me a n---er.”

The two eventually saw the victim leaning over a truck a nd talking to someone . The vic tim flaggedthem down, and Radtke stopped the car. The gun was lying across her lap at this time. She said the last ti me they tu

rned ar ound, def endant pu t the gun in

her lap w ith the barrel pointing to the driver’s side door. The victim began walking towards the car , and defendant instructe d Radtke to roll down the window. She stated she tried to roll down the window, but it would not roll down by itself so she had

to push it

down. She told def

endant to wait bec ause he h ad the gun up, read y to shoot. Before she could open a window, defendant shot through the window. Up to this point, the victim was saying, “No, man, no.” She state d that af ter they drove of f, defe ndant sai d, “See, I told you I was gonna shoot me a n---er.”

Ra dtk e stated that, when they picked up Frost from work, Frost wanted to know what had happened to the wind

ow, and de

fendant responded that he h ad ju st killed a “n- --er.” Frost asked why, and defendant said it was over $40.00 worth of powder cocaine. Defe ndant told Frost it was powder cocaine because Frost did not want defendant to be using cr ack cocaine. She stated that defendant told them that if they ever said anyt hin g about wh at happe

ned, he w ould kill the

m all. Radtke testified that when defendant went to bed that night, Radtke called a friend and asked him to come pick her up. The friend arrived a nd took Radtke and Campbell back to town.
Finally, Radtke testified that, for her involvement in this matter, she was originally charged withcriminal responsibility for facilitation of a felony, a Class A felony. However, she pled guilty to conspiracy to possess a Schedule II drug, a Class C felony, with a sentenc e of thre e to six ye ars. Investigator

John Dickey testified that, at approximately 5:00 a.m. the next morning, Officer David McVeigh stopped Fr

ost as she was driving her blu e Ford Te mpo. Frost

and her car were then taken to the Pulaski Police Department, whereshe gave a statement to the police. Subsequently, the-4-

police obtained a search warrant for defendant’s residence. De fendant was not there upon arrival but was later arrested in Lewisburg and transporte d back to the Giles County Sheriff’s Office.
Upon executing a search warra nt, the officers found several .270 cartridge s, but no highpowered rifles. The following morning, defenda nt gave a statemen t to Inves tigator D ickey and also signed a writte

n waiver of his Miranda

rights. He told Investigator Dickey about the events that occurred the night b efore a

nd that he had the gu

n in his hands when the

gun went o ff. He a

lso told Investigator

Dickey where

the gun could be located. Subseque ntly, Inve stigator D ickey re turned to defendant’s res idence and found the rifle. He testified that no fingerprints were take n from the weapon to ascertain whether defe ndant’s prints, or any other prints, were on the weapon.

Sc otty Campbell testified tha t at the time of the mur

der, he w as living w ith Radtke, defenda nt, and Frost, along with Frost’s two children. At the time, he and Radtke were dating, and Frost and defendant were frien ds. He stated tha t on Janua

ry 9, they

made pla

ns to go to Lawrenceburg to get a refrigerator and stove for the house. They went to Lawrencebur g in Frost’s blue Ford Tempo and then r eturned h ome. Subse quently, t hey took Fr

ost to work . Campbell , Radtke, and defendant then went to Campbell’s mother’s home to get some clothe s. While they
were there, defendant exited the car a nd began looking for some crack c ocaine. Campbell knew this because defendant told him that defendant had gone to Larry Allen’s to look for some crack cocaine. Campbell and defe ndant the n went to A

llen’s house. Def

endant a nd Allen w ent to a back

room and stayed for abou

t five minu

tes. Campb ell said

that when they exited the back room, Bryant entered the house and, upon returning to the car, defendant and Brya nt were t alking in th

e middle of the road. At this point, defendant told Campbell that they were going over to the “bad side of town” because Bryant knew where they could get some crac k cocaine.
Campbell stated he did not want to go, but defendant told him he had not choice but to get in the car and take him and Bryant over there. Campbell was driving the car, defe ndant was in the middle of the f ront sea t, and Bry ant was in

the fron t passeng er seat

directin g Campbell

where to drive. Upon arriving at some apartments, Bryant exited the car and w ent to an apartment for ten or fifteen minutes. Campbell stated thatBryant returned and said that they did not have any. He a

lso went to a different

home, but no one was there. Campbell stated that defendant stayed in the car but had given money to Bryan t. Campbel l s aid they then returned to the first house and waited for
someone he thought was the victim. He said that the victim came up to the car, showed them what he had, dro

pped it into

Bryant’shand, an d Bryant g ave the v ictim the mo ney. Def

endant th en told Bryant he wantedto see his “shit,” and Campbell said Bryant gave it to defendant and told him that he wanted his piece for getting it. At this point, defendant gave Bryant a piece , and they left the area, dropping off Bryant.
After dropping Bryant off, Campbell, Radtke, defendant, and the two childre n were le ft in the car. They then returned home. On arrival, Frost called and stated that she was ready to be picked up from wor

k. At this po int, defendant had gone upstairs, and Campbell and Radtke were cooking dinner. Campbell stated that Radtke left to go pick up Frost from work. He stated that, as Radtke-5-

began to leave, defendant came downstairs. Def endant was upset because the crac k cocaine was fake and showe d them tha

t it was ac tually pe anuts. Campbell stated that defendant told him to watch the kids because defenda nt was going to ride into town w ith Radtke to pick up Fr

ost. Campbe

ll said it was about an hour to anhour-and-ahalf before they returned. He said when they pulled up, he saw Frost sweeping glass out of the front seat of her car. Defendant was smiling and saying, “I got him. I got him.” Campbell did not know who defendant was talking about, and upon questioning defendant, defe ndant said, “I killed me a n---
er. I killed me

a n---e r.” Campb ell said de

fendant brought hi s gun into th

e house, and Campb ell recognized

it as the gu

n defend ant car

ried with him all of the time. Camp

bell said t hat Radtke

also said, “He’s not playing, Scotty. He done it.”

Donna Frost testified that at the time of the victim’s death, she was living with defendant and drove a blue 1992 Ford Tempo. She stated that Radtke and defendant came to pick her up when she gotoff of work on January 9. Radtke wa s driving, and defe ndant wa s in the pa ssenger ’s seat. Frost gotinto the back seat and notic ed that the driver’s side window was gone. She asked what happened, and Radtke responded, “Shannon just shot a n---er.” De fendant then turned around and said, “Yeah, and if

anybody snitches on me, I’ll shoot them too. It don’t make me no difference.” Frost said that defendant told her that if shetried to leave, defendant would shoot every tire out from under the car.

Defendant

testified that the shooting was an accident. He did not mean to shoot the victim

. He stated tha

t he and Ra

dtke both h ad their

hands on the gun at the time of the shooting and that the victim was reaching through the car door. He a lso said that he was intoxicated. Defendant further stated that he ha

d taken c ocaine a

fter the shooting a

nd befor e he was a rrested an d made the statemen t. Analysis

I. Admission of Medical Records into Evidence

Def endant contends that the trial court erred in not allowing defendant to int roduce hi s medical record s into evid ence at trial. The eventsgiving rise to the current case occurred in 2000, and the medical records defendant sought to introduce date d from 1992 to 1995. Def endant a sserts that the rec ords wer

e admissib le to show that he suffered from a mental disorder. Though de fendant didnot allege insanity and was not asking to use the records for a def ense, counsel stated that he had not ruled out diminish

ed capa city. Thus , he asserts that the records were admissible to negate the
mens rea element of the crime. The trial cou rt ruled t hat the r ecords w ere not r

elevant to the instant
case. In so ruling, the trial court found that the records did not constitute a defense and were no t offered to prove a severe mental disease or def ect to justify the defense of insanity. We agree with the trial court and affirm.-6-

Evidence is deemed relevant if it tends to “make the existence of any fa ct that is of consequence to the determination of the action more probable or less probable tha n it woul d b e without the evidence.” Tenn. R. Evid. 401. Further, re levant evi dence isgenera lly admissi

ble in Tennessee unless its probative value is substantially outweighed by its prejud icial ef fect. Te nn. R. Evid. 402 and 403. “Since th e gener al crimin al law requires th at mental state be proven b y the State beyond a reaso nable dou bt, it is ce

rtainly a ‘fact o f conseq

uence’ to the outc ome of a cri min al prosecution

. Therefore, evidenc e which te nds to prov e or dispr

ove the r equired mental sta

te is relevant and generally admissible under Tennessee law.” State v. H all , 958 S.W.2d 679, 689 (Tenn. 1997).
However, the admissibility of evidenc e is a matter within the sound discretion of the trial court, and this Cou

rt will not d

isturb the trial cou rt’s ruli ng absen

t a clea r sh owing of an abuse of that discretion. State v. Cauthern , 967 S.W.2d 726, 743 (Ten n. 1998); State v. Banks , 564 S.W.2d 947, 949 (Ten

n. 1978). Abuse of

discreti on contem

plates a sit uation where t he “court applied an incorrect legal standard, or re ached a decision which is against logic or reasoning that ca used an injustice to the party complaining.” State v. Shuck , 953 S.W.2d 662, 669 (Ten n. 1997) ( citing Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996)).

The medical records in this case, though revealing that defe ndan t suffered from a bipolar disorder betwee n 1992 and

1995, wer

e in no wa y connec ted with

the events surrounding the shooting in 2000. Though case law allows evidence rega rding a defendant’s mental state at issue in a given crime, see Hall , 958 S.W.2d at 689, the trial court found these records irrelevant. We, too, believe the record s were ir

releva nt to the iss ue of def

endant’ s mental st

ate at the tim e of the s hooting in 2000, given the length of time between the compilation of the records and the shooting. The record reflec ts that the tr

ial cour t held a ju

ry-out he aring on t

he matter and allow ed the records to b e considered

as an offer of proof. We see no abuse of the trial court’s discre tion. As such, w e affir

m.

II. Sentencing

This Court’s review of

the sente nce impos ed by the t

rial cou rt is de novo witha presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This pre sumption is conditioned upon an affirmative showing in the record that the trial judge c onsidere d th e sentencing principles a nd all relevant facts and circumstances. State v. Pettus , 986 S.W.2d 540, 543 (Tenn . 1999). If the trial
co urt fails to comply with the statutory directives, there is no presumption of correctness and ou r review i s de novo

. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997).

If no mitigating or enhancement factors for sentencing ar e present, Tennessee Code Annotated section 40-35-210(c) provides that the presumptive sentence for most offenses shall be the minimum sentence within the applicable range. State v. Lavender , 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher , 805 S.W.2 d 785, 788 (Tenn. Cri m. App. 199 1). Howe ver, if such factors do exist, a tr

ial cour t s hould enhance the minimum sentence within the range for enha ncement factors and then reduce the sentenc e within the range for the mitigating factors. Tenn. Code Ann. § 40-35-21 0(e); State v. A rnett , 49 S.W.3d 250, 257 (Tenn. 2001). No particular weigh t for each-7-

factor is prescribed by the statute, as theweight giv en to eac h factor is left to the discretion of the trial court as long as the trial court complies with the purposes and principles of the sentencing act and its findings are supported by the record. State v. Mo ss , 727 S.W.2d 229, 238 (Ten n. 1986); State
v. Kelley , 3 4 S.W.3d 47 1, 479 (Te nn. Crim. A

pp. 2000) ; see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.

Our review r equires an analy sis of (1) the evidence, if any, received a t the trial and sentencing hearing ; (2) the p resente nce rep ort; (3) t

he princ iples o f sentenci ng and the argumen ts of counsel r elative t o sentencing alternatives; (4) the nature and cha racteristics of

the offense; (5) any mitigating or enhan

cing factors; (6) any state ments made

by th e def

endant in his own behalf; and (7) the defendant’s potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, 103, 210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In the instant case, defe nda nt alleges that the trial court failed to properly consider the evidenc e in its app lication o f the enh ancing a nd mitigati

ng facto rs. We di sagree

and aff irm.

The trial court found the following enhancement factors applicable to def endant’s sentence: (1) The defendant

has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range;

. . . . (7) The offense involved a victim and was committed to gratify the defendant’s desire f or pleas ure or e

xcitemen t; (8) The defendant has a previous history of un will ingness to comply with the condition of a sent ence inv olving release in

the commu

nity; (9) The defendant

possesse d or emplo yed a fir earm, e xplosive d

evice or other de adly weapon during the commission of the offense; . . . [and] (13)The felony w as committ ed while o n any of th

e followi ng forms o f relea se status if such release is from a prior felony conviction: . . . (C) Probation[.] Tenn. Code Ann. § 40-35-114.

Defendant

challenges the application of enhancement factor (7) . In applying factor (7), the trial court re

lied on tri a l testim ony from three witnesses who stated that both before and af ter the shooting, defendant made statements regarding the victim, who was blac k. Indeed, the record

does reflect testimony wherein defe ndant wa s quoted as referring to the victim as a “nigger,” a nd defendant repeatedly stated, “I’m gonna kill me a n---e r.” Defend ant submitsthat because the jury
r et urneda verdict of second degree murder , a crime requiring a knowing mental state, Tennessee Code Annotated section 39-13-2 1 0(a)(1), rather than the indicted first degr ee intentional premeditated murder, the application of the sentencing fa ctor is contrary to the verdict.

We agree with the trial court’s imposition of this factor. The record reflects that defenda nt received some bad drug s from the victim and

obviously b ecame v ery angr y. He the

n basica lly hunted down the victim, all the while touting that he was going to kill the victim, a black man. The-8-

record also reflects that defendant acted as if he was actually prou d of what he had done as he gloated over his accomplishment. The record supports the application of this fac tor. See State v. Strader , No. 03C01- 9812-CR-0 0425, 1999Tenn. Cr i m. App. LEXIS 1130 (Tenn. Crim. App. at Knoxville, Nov. 10, 1999) (trial court properly applied factor where defendant was involved in an argumen t, was angry and “willing to fight,” assisted while shots were fired, hurriedly left the scene, and hid from the police).

Defendant also asserts that the trial court erre d by not applying mitigation factor (9) under Tennessee Code Annotated section 40-35

- 113. Spec ifically , he conte nds that a iding the p olice in lo cating the wea

pon used in

the crime

was appl icable to mitigate th

e sentence. The

tr ial cour t refused to apply the factor because of what it “perceive[ d] to be the motive of the defendant in giving that information to the police,” during a search of defe ndant’s residence that may or maynot have revealed the weapon anyway. De fendant told the police about the weapon after telling police that the shooting was accidental.

We conclude that the trial court did not err in not applying this mitigating factor because it only relatesto uncove

ring crim es and of fender s. Howeve

r, even i f we wer

e to conc lude that

catcha ll factor (13) is applicable because of his “coopera tion,” when viewe d in light of the appli cable enhancing factor s, this mitiga ting fac tor is of such small value that ther e would be no effect on the length of defendant’s sentence.

CONCLUSION
Accordingly, we affirm the judgment of the trial court.

_________________________________ JOHN EVERETT WILLIAMS, JUDGE