# FILED May 14, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9806- CC-00204 ) Appellee, ) ) COCKE COUNTY V. ) ) ) HON. REX

HENRY OGLE , JUDG E NORMAN SUTTON, ) ) Appe llant. ) (VOLUNTA RY MANSLAUGHT ER)

FOR THE APPELLANT : FOR THE APPELLEE : EDWARD CANTRELL MILLER JOHN KNOX WALKUP District Public Defe nder Attorney General& Reporter SUSAN NA LAW S THO MAS MICH AEL J. F AHEY , II Assistant Public Defender Assistant Attorney General 102 Mims Avenue 2nd Floor, Cordel l Hull Bui lding Newport, TN 37821-3614 425 Fifth Avenue North Nashvill e, TN 37243 AL C. SCHMUTZER, J R. Distri ct Attor ney General WILL IAM BR OW NLO W M ARSH , II Assistant Distri ct Attor ney General 339-A East M ain Stree t Newport, TN 37321

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Norman Sutton, appeals as of right f ollowinghis sentenci ng hearing in the C oc ke County Circuit Court. In a two-count indict ment, Defendant
was charged with two (2) counts of fi rst degree murder for the de aths of Mart ha Williams, Defenda nt’s sister, and C linton Ha nce. De fendan t entered a guilty plea to voluntary manslaughter on bot h counts. The Defendant’s sole i ssue on appeal is the failure of the trial court to all ow Defendant to ser ve an alternative sentence rather than inca rceration . We affirm the ju dgme nt of the trial co urt.

When an accused chall enges the lengt h, range or t he manner of servi ce of a sentence, this cour

t has a duty t

o conduct a de novo review of the sentence wit h a presumption that the de termina tions ma de by the trial court are correct. Tenn. Code Ann. § 40-35 -401(d). This p resum ption is “conditi oned upon the aff irmative showing in the record t hat the trial court considered t he sentencing princip les an d all relevant facts and circum stances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de novo review of a sentence, t his court must consider: (a) the evidence, if any, received at the trial and the sentencing hearing; ( b) the presentence report; (c) the princi ples of sentencing and arguments as to sentencing alternatives; (d) the nature and chara cteristics of the criminal co nduct involved; (e) an y statutory mitigati ng or enhancement factor s; (f) any statement t hat the defen dant m ade o n his
own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent. Tenn. Code Ann. §§ 40-35-1 02, -103 , and -210; see State v. S mith , 735 S.W.2d 859, 863 (T enn. Crim. A pp. 1987).-3- If our review reflects tha t the trial court f ollowed the statu tory sentencing procedure, imposed a lawful sentence after havi ng given due co n siderati on and properweight to t he fac tors and principl es set out under the sentenci ng law, and made finding s of fact

adequately su pported by t he record, the n we m ay not m odify t he senten ce even if we wou ld have p referred a different res ult. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

A defen dant w ho “is an especially mitigated or standard of fender convi cted of
a Class C, D or E felony is presumed to be a favorab le candidate for a lternative sentencing options in the absence of evidence to the cont rary.” Tenn. Code Ann. § 40-35-102(6). Our sentencing law al so provides t hat “convi cted fel ons committing the most severe offenses, possessi ng criminal histori es evinci ng a clear disregard forthe laws and moral s of societ y, and evi ncing fai lure of past effor ts at rehabili tation, shall be give n first priori ty regardi ng sentences inv olving incarcer ation.” Tenn . Code Ann. § 4 0-35-10 2(5). Th us, a defendant sentenced to eight (8)years or l ess who is not an offender for who m inc arcera tion is a priority is presumed eligi ble f or al ternati ve sentencin g unless suff icient evidence rebut

s the presumption. Howe ver, th e ac t does not pr ovide that

all of fenders who meet t he criteria are entit led to such r elief; rather, it requi res that se ntencing i ssues be determined by the facts and circu mstan ces pre sented in each c ase. See State v. Taylor , 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).

Additional ly, t he princi ples of sentencing refl ect that t he sentence should be
no greater than that deserved for the offense committed and should be the l east
severe measur e nec essa ry to ach ieve the purpo ses fo r which the se ntenc e is imposed. Tenn . Code Ann. § 4 0-35-10 3(3) - (4). The court should also consider the-4-

potentialforrehab ilitation o r treatm ent of th e defe ndan t in determining the sentence alternative. T enn. C ode An n. § 40-3 5-103(5 ).

W hile we do have the tr anscript from the sentenc ing hearing, t he Defendant failed to include th e transcr ipt of his guilty plea hearing w ithin the record. Ho wever, two (2) sepa rate statem ents of the De fendan t detailing the events precipit ating the deaths of the v icti m we re entere d as exhibi ts at the sentencing hear ing. In a statementgiven by Defend ant on Decem ber 1, 19 96 at 3:11 a. m., he stated as follows: I was downtow n drinki ng with Mart ha Williams and Cli nton Hance at Fred dy’s Bar and the Sidewal k and came home. Martha and Cli nton started argueing (sic). I wentto my room and Martha opened th e door. I told Marth a, “I ain’t gon na take your s__ _ no m ore.” She spoute d off at me an d ca ll ed me a nam e. I told her to g o on in an d lay dow n. She jumped at me and I shot her . Clinton jumped up an d had a knife in his hand, cal led me a “son-of- a-bitch” and I shothim. I am not sor ry I shot Clinton but I am sorry I shot Martha. Cli nton was a sorry son- of-a-bi tch. On the following day, t he Defendant provided yet another statement as follows: My sister, Martha Willia ms, had b een to Niag ara Falls to see R ichard Williams’ mothe r, she wa s sick. They got ba ck here on Frida y night, November 30, 1996. Me, my si ster, Ri chard and Clinton Hance lived at Richard and Mart ha’s trai ler. I ’ve been living at the tr ailer for about three years and Cli nton had been li ving at t he trailer for two ye ars. The little boy at the trailer was S cott Allen W illiams. On Saturd ay, Dec. 01, 1996, I took my sister to Fre ddies B ar. Clinton works a t Freddie s. W e also went over to the Sidewalk. Me, Martha and Cli nt on wer e all drinking. I got in a n argum ent with so me on e at the S idewalk, b ut I do n’t remem ber who. Clinton and my siste r Martha go tog ether a n d Martha slee p s with Clinton when Richard is gone. Richard drives a truck. Richard and Mart ha have been married about 4 years thi s time. They had been married before but got a divorc e. W e left the Sidew alk around closing tim e and w ent bac k to the trailer. W e did n’t dri nk anymore at the trailer. I keep a 32 pistolat the foot of my bed in t he top of the chester (sic)drawers. Clinton and Mar tha was arguing (s ic), t hey argue all t he time about somethi ng. Theywere arguing in the hall near the bathroom. Cli nton looked l ike he had a knife in his hand. I tried to stop Clinton a nd Ma rtha from arguing . Clinton thre atened to kill me. I got the pi stol f rom the drawe r. I w as going to pr otect myself . Clinton came toward me, M artha g ot betw een u s and I shot a nd hit h er. I didn ’t mean to shoot her

but she got bet

ween us. Clint

on was stil l coming at-5- me with somethi ng that lo oked like a kn ife. I shot Clinton. I shot t wice. After the shooti ng I call ed 911 and told t hem I sho t my sister and Clinton. I waited on the deputi es and g ave the m m y gun. W e were all drinkingand arguing and I thought Cli nton was going to cut me . Me and Clinton had nev

er fough t before. I never saw Richard, he must have sleptthru it all. I d on’t kno w if Scot t wa s awa ke o r not. I l ove d my sister an d I li ked Clinton but I thought h e was going to hur t me. Medical evidence i ndicated t hat Defendant’s bl ood alcohol l evel at the ti me of the offen se was 0.26. The State’s evidence at the sentencing heari ng centered upon th e impa ct of the loss of the victim , Martha W illiams, by he r family.

The Defenda nt presented testimony fro m his daughter, Sher ry Cameron. Cameron s tated that the Defendant had al ways been very c lose to hi s sister , the vi cti m. He lived wi th Martha i n her trai ler. Camero n des cribed the De fenda nt’s medical problem s, includi ng alcoholism and emphy sema . However, Cameron stated thatshe was will ing to take t he Defendant into her home and care for hi m if he was placed on probation. Cameron described that Defendant was t rying to defend t he victim, Ma rtha, from Clinton H ance a t the time o f the shoo ting.

The Defen dant testi f ied in hi s own behalf, statingthat he l oved his si ster dearly and was very close toher . Defendant described that he “was the best of friends” with Clinton Hance until Hance threatened Defendant’s l ife wit h a knife and knocked Martha William s into th e bat hroom. After hearing Hance and Mart ha Williams scuffl ing, Defendant came out into t he hal lwa y where he was thr eatened by Clinton Hance. Defendant reached i nto hi s chest of dr awers for hi s pistoland fired. As he fired , Defendant ex plained t hat his si ster jumped bet ween he and Clinton Hance. A s Hance “w as th reatening to cut my guts out ,” Defendant fired again and feared for

his li fe. Defendant

admitted to the tri al court t hat he had been drinking th at night.-6- After findingthat the Defendant’s ver sion of t he facts were questionabl e and thatDefendant should serve the maxi mum sentence of six (6) years, the trial court found as fol lows on the i ssue of alternative sentencing: The Court furth er finds tha t becau se of the to tality of the circumstances thatjusti ce would be completely denied, t hat just ice would bea joke if you can gun down two people i n a situat ion li ke this. And in f act th e Court would say that

I am sure that

this si tuation was aggravated by the use of intoxi cants by al l of theparties . You k now, I w asn’t th ere, I do n’t k now , but to on one hand f ind that t his defendant quickly and without hesitati on du ri ng a p eriod o f extrem e intoxic ation g uns d own tw o peo ple forno reason and then to place him on probation I think would, as I say, justice would b e a joke. So this Cou rt cannot place hi m on probation due to the nature of t he offense and the mannerin which i t happened. In es sence, in fact it would be bad enough in t his sit uation i f he kil led one person, but to k ill two, to s hoot o ne in th e bac k, certa inly this Court would think

that it would be a great

injust ice for t hat to happen. I’m sorry for him, I’m sorry that h e’s sick . . . But when you get mad and when you get drunk and when you take weaponsand wh en you gun down people over not hing, I t hink just ice demands thatthe sentence be executed.

The Defendant argues t hat he meets the statut ory requ irements to be presumed eligi ble for pr obation and that thetrialcourt “di d not make findi ngs related to the cons iderations set forth in sta tute, particu larly [Defen dant’s] lack of cri minal history and long employmen t reco rd, his age , physicalinfirmities and potential f or rehabilitation .” Wh ile Defendant agrees t hat the enhancing factors and seriousness of the offense correctly resulted in t he maximum sentence on both counts, h e asserts that the manner of the servi ce of his sentence was not treated by the court
as an independent i ssue. The State a rgues that the trial cou rt properly relied upo n the seriousness of

the offens e and the circ umstances surrounding its commission, and proba tion wo uld have depreciated the seri ousness of the of fense. Tenn. Code Ann. § 40-3 5-103(1)(B).-7- When imposing a sentence of tot al confinement, our CriminalSentencing R eform Act mandates the t rial cour t to base i ts decisi on on the conside rations se t forth in Tennessee Code Annotated s ection 40-35- 103. The s e considerations which militate against al ter n ative sentencing incl ude: the need to protect s ociety by restrai ning a de fendant havi ng a long history of cr iminal conduct , whether confinementis particularly a ppropria te to effective ly deter othe rs likely to comm it a similar offense, th e need to avoid depreciati ng the seri ousness of the of fense, and the need to order

confinement i n cases in whic h less rest rictive measures have often
or recently be en uns uccess fully applied to the defe ndant. T enn. C ode An n. § 40-35- 103(1).

This court has recognized that the volu ntary c omb ination of alco holic intoxi cation with dangerous ins tr umenta lities is a matter of serious p ublic concern whi ch may jus tify a denial of p robation
. State v. Bob by Ru ssell , No. 03C01-960 8 - CR-00319, slip op. at 8, Po lk County (Tenn. Crim. App., at Knoxvill e, September 16, 1997), p erm . app . denied (Tenn. 199 8) ( citing State v. Cleavor , 691 S.W.2d 54 1 (Tenn. 1985)) ; State v. Butler , 880 S.W .2d 395, 401 (Tenn. Crim . App. 1994 ). Defe ndan t’s conduct was the r esult of his volun tary combinat ion of i ntoxicat ion and firearms, and his reckl es s cond uct and disr egard for t he lives of his family and friendsjusti fies some confi nement to av oid depreciati ng the seri ousness of the offense. Id . ( citing Tenn. Code Ann . § 40- 35-103(1)(B) ). A court may deny probation solely f rom the circ umstances of the crime itsel f, if the crime ascommitted
was “espe cially violent , horri fying, shocking, r eprehensibl e, offensive, or otherwise of an excessive o r exaggera ted deg ree.” State v. Hartley , 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991). Under the cir cumstances of thi s shocking and-8-

repre hens ible offense, we conclude that the seriou snes s of the offens e ade quate ly suppo rts the trial cou rt’s decision to deny p robation
.

W hile Defendant is correct t hat he meets t he statutor y requirements for presum ptive eligibility for prob ation, his lack of a criminal record and history of employment and various medi cal maladies wi ll not suffice to overc ome the seriousness of this o ffense . Two (2) lives w ere los t as a re sult of Def enda nt’s firi ng of a deadly weapo n w hile he was extrem ely intoxicated. One of the victim’s, Mr. Hance, was shot in t he back. The tri al court ap propriately rel ied upon theneed to avoid depreciating the se riousness of this offense in den ying an alternative sentence. State v. Michael Benson , No. 02C 01-970 8-CC -00333 , Hardin C ounty ( Tenn. Cri m. App., at Ja ckson, J uly 21, 19 98), perm . app . denied (Tenn. 1999) (Voluntary manslaughter of the vic tim wh ile defendant was under the infl uence of an intoxi cant and us ed a de adly wea pon wa s sufficient to ju stify a total denial of alternative sentencing w here defen dant pled gu ilty to voluntary mansl aughter of brother-in-law).

The burden is on t he Defend ant to sho w that th e sen tence he rec eived is improperand that he i s entitl ed to proba tion. Ashby , 823 S.W.2d at 169. Defendant has failed to mee t this burde n, and w e affirm the judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:-9-

___________________________________ JERRY L. SMITH, Judge

___________________________________ L. T. LAFFERTY, Senior Judge