FILED

May 14, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9806-CC-00204 

)

Appellee, )

) COCKE COUNTY

V. ) 

)

) HON. REX HENRY OGLE, JUDGE

NORMAN SUTTON, )

)

Appellant. ) (VOLUNTARY MANSLAUGHTER)

FOR THE APPELLANT: FOR THE APPELLEE:

EDWARD CANTRELL MILLER JOHN KNOX WALKUP 

District Public Defender Attorney General & Reporter

SUSANNA LAWS THOMAS MICHAEL J. FAHEY, II

Assistant Public Defender Assistant Attorney General

102 Mims Avenue 2nd Floor, Cordell Hull Building

Newport, TN 37821-3614 425 Fifth Avenue North 

Nashville, TN 37243

AL C. SCHMUTZER, JR.

District Attorney General

WILLIAM BROWNLOW MARSH, II

Assistant District Attorney General

339-A East Main Street 

Newport, TN 37321 

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Norman Sutton, appeals as of right following his sentencing

hearing in the Cocke County Circuit Court. In a two-count indictment, Defendant

was charged with two (2) counts of first degree murder for the deaths of Martha

Williams, Defendant’s sister, and Clinton Hance. Defendant entered a guilty plea to

voluntary manslaughter on both counts. The Defendant’s sole issue on appeal is the

failure of the trial court to allow Defendant to serve an alternative sentence rather

than incarceration. We affirm the judgment of the trial court.

When an accused challenges the length, range or the manner of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presum ption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circum stances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives;

(d) the nature and characteristics of the criminal conduct involved; (e) any statutory

mitigating or enhancement factors; (f) any statement that the defendant made on his

own behalf; and (g) the potential or lack of potential for rehabilitation or treatm ent.

Tenn. Code Ann. §§ 40-35-102, -103, and -210; see State v. Smith, 735 S.W.2d

859, 863 (Tenn. Crim. App. 1987).
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If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

made findings of fact adequately supported by the record, then we may not modify

the sentence even if we would have preferred a different result. State v. Fletcher,

805 S.W .2d 785, 789 (Tenn. Crim. App. 1991).

A defendant who “is an especially mitigated or standard offender convicted of

a Class C, D or E felony is presumed to be a favorable candidate for alternative

sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann.

§ 40-35-102(6). Our sentencing law also provides that “convicted felons committing

the most severe offenses, possessing criminal histories evincing a clear disregard

for the laws and morals of society, and evincing failure of past efforts at

rehabilitation, shall be given first priority regarding sentences involving

incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a defendant sentenced to

eight (8) years or less who is not an offender for whom incarceration is a priority is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the

presumption. However, the act does not provide that all offenders who meet the

criteria are entitled to such relief; rather, it requires that sentencing issues be

determined by the facts and circumstances presented in each case. See State v.

Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

Additionally, the principles of sentencing reflect that the sentence should be

no greater than that deserved for the offense committed and should be the least

severe measure necessary to achieve the purposes for which the sentence is

imposed. Tenn. Code Ann. § 40-35-103(3) - (4). The court should also consider the
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potential for rehabilitation or treatment of the defendant in determining the sentence

alternative. Tenn. Code Ann. § 40-35-103(5). 

While we do have the transcript from the sentencing hearing, the Defendant

failed to include the transcript of his guilty plea hearing within the record. However,

two (2) separate statem ents of the Defendant detailing the events precipitating the

deaths of the victim were entered as exhibits at the sentencing hearing. In a

statement given by Defendant on December 1, 1996 at 3:11 a.m., he stated as

follows:

I was downtown drinking with Martha Williams and Clinton Hance at

Freddy’s Bar and the Sidewalk and came home. Martha and Clinton

started argueing (sic). I went to my room and Martha opened the door.

I told Martha, “I ain’t gonna take your s___ no more.” She spouted off

at me and called me a name. I told her to go on in and lay down. She

jumped at me and I shot her. Clinton jumped up and had a knife in his

hand, called me a “son-of-a-bitch” and I shot him. I am not sorry I shot

Clinton but I am sorry I shot Martha. Clinton was a sorry son-of-a-bitch.

On the following day, the Defendant provided yet another statement as follows:

My sister, Martha Williams, had been to Niagara Falls to see Richard

Williams’ mother, she was sick. They got back here on Friday night,

November 30, 1996. Me, my sister, Richard and Clinton Hance lived

at Richard and Martha’s trailer. I’ve been living at the trailer for about

three years and Clinton had been living at the trailer for two years. The

little boy at the trailer was Scott Allen W illiams. On Saturday, Dec. 01,

1996, I took my sister to Freddies Bar. Clinton works at Freddies. We

also went over to the Sidewalk. Me, Martha and Clinton were all

drinking. I got in an argum ent with some one at the Sidewalk, but I

don’t remember who. Clinton and my sister Martha go together and

Martha sleeps with Clinton when Richard is gone. Richard drives a

truck. Richard and Martha have been married about 4 years this time.

They had been married before but got a divorce. We left the Sidewalk

around closing time and went back to the trailer. W e didn’t drink

anymore at the trailer. I keep a 32 pistol at the foot of my bed in the top

of the chester (sic) drawers. Clinton and Martha was arguing (sic), they

argue all the time about something. They were arguing in the hall near

the bathroom. Clinton looked like he had a knife in his hand. I tried to

stop Clinton and Martha from arguing. Clinton threatened to kill me. I

got the pistol from the drawer. I was going to protect myself. Clinton

came toward me, Martha got between us and I shot and hit her. I didn’t

mean to shoot her but she got between us. Clinton was still coming at
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me with something that looked like a knife. I shot Clinton. I shot twice.

After the shooting I called 911 and told them I shot my sister and

Clinton. I waited on the deputies and gave them my gun. W e were all

drinking and arguing and I thought Clinton was going to cut me. Me

and Clinton had never fought before. I never saw Richard, he must

have slept thru it all. I don’t know if Scott was awake or not. I loved my

sister and I liked Clinton but I thought he was going to hurt me.

Medical evidence indicated that Defendant’s blood alcohol level at the time of

the offense was 0.26. The State’s evidence at the sentencing hearing centered

upon the impact of the loss of the victim, Martha W illiams, by her family. 

The Defendant presented testimony from his daughter, Sherry Cameron.

Cameron stated that the Defendant had always been very close to his sister, the

victim. He lived with Martha in her trailer. Cameron described the Defendant’s

medical problems, including alcoholism and emphysema. However, Cameron stated

that she was willing to take the Defendant into her home and care for him if he was

placed on probation. Cameron described that Defendant was trying to defend the

victim, Martha, from Clinton Hance at the time of the shooting. 

The Defendant testified in his own behalf, stating that he loved his sister

dearly and was very close to her. Defendant described that he “was the best of

friends” with Clinton Hance until Hance threatened Defendant’s life with a knife and

knocked Martha Williams into the bathroom. After hearing Hance and Martha

Williams scuffling, Defendant came out into the hallway where he was threatened

by Clinton Hance. Defendant reached into his chest of drawers for his pistol and

fired. As he fired, Defendant explained that his sister jumped between he and

Clinton Hance. As Hance “was threatening to cut my guts out,” Defendant fired

again and feared for his life. Defendant admitted to the trial court that he had been

drinking that night. 
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After finding that the Defendant’s version of the facts were questionable and

that Defendant should serve the maximum sentence of six (6) years, the trial court

found as follows on the issue of alternative sentencing:

The Court further finds that because of the totality of the circumstances

that justice would be completely denied, that justice would be a joke if

you can gun down two people in a situation like this. And in fact the

Court would say that I am sure that this situation was aggravated by the

use of intoxicants by all of the parties. You know, I wasn’t there, I don’t

know, but to on one hand find that this defendant quickly and without

hesitation during a period of extreme intoxication guns down two people

for no reason and then to place him on probation I think would, as I say,

justice would be a joke. So this Court cannot place him on probation

due to the nature of the offense and the manner in which it happened.

In essence, in fact it would be bad enough in this situation if he killed

one person, but to kill two, to shoot one in the back, certainly this Court

would think that it would be a great injustice for that to happen.

I’m sorry for him, I’m sorry that he’s sick . . . But when you get mad and

when you get drunk and when you take weapons and when you gun

down people over nothing, I think justice demands that the sentence be

executed.

The Defendant argues that he meets the statutory requirements to be

presumed eligible for probation and that the trial court “did not make findings related

to the considerations set forth in statute, particularly [Defendant’s] lack of criminal

history and long employment record, his age, physical infirmities and potential for

rehabilitation.” While Defendant agrees that the enhancing factors and seriousness

of the offense correctly resulted in the maximum sentence on both counts, he

asserts that the manner of the service of his sentence was not treated by the court

as an independent issue. The State argues that the trial court properly relied upon

the seriousness of the offense and the circumstances surrounding its commission,

and probation would have depreciated the seriousness of the offense. Tenn. Code

Ann. § 40-35-103(1)(B).
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When imposing a sentence of total confinement, our Criminal Sentencing

Reform Act mandates the trial court to base its decision on the considerations set

forth in Tennessee Code Annotated section 40-35-103. These considerations which

militate against alternative sentencing include: the need to protect society by

restraining a defendant having a long history of criminal conduct, whether

confinement is particularly appropriate to effectively deter others likely to comm it a

similar offense, the need to avoid depreciating the seriousness of the offense, and

the need to order confinement in cases in which less restrictive measures have often

or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-

103(1).

This court has recognized that the voluntary combination of alcoholic

intoxication with dangerous instrumentalities is a matter of serious public concern

which may justify a denial of probation. State v. Bobby Russell, No. 03C01-9608-

CR-00319, slip op. at 8, Polk County (Tenn. Crim. App., at Knoxville, September 16,

1997), perm. app. denied (Tenn. 1998) (citing State v. Cleavor, 691 S.W.2d 541

(Tenn. 1985)) ; State v. Butler, 880 S.W.2d 395, 401 (Tenn. Crim. App. 1994).

Defendant’s conduct was the result of his voluntary combination of intoxication and

firearms, and his reckless conduct and disregard for the lives of his family and

friends justifies some confinement to avoid depreciating the seriousness of the

offense. Id. (citing Tenn. Code Ann. § 40-35-103(1)(B)). A court may deny

probation solely from the circumstances of the crime itself, if the crime as committed

was “especially violent, horrifying, shocking, reprehensible, offensive, or otherwise

of an excessive or exaggerated degree.” State v. Hartley, 818 S.W.2d 370, 374

(Tenn. Crim. App. 1991). Under the circumstances of this shocking and
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reprehensible offense, we conclude that the seriousness of the offense adequately

supports the trial court’s decision to deny probation. 

While Defendant is correct that he meets the statutory requirements for

presumptive eligibility for probation, his lack of a criminal record and history of

employment and various medical maladies will not suffice to overcome the

seriousness of this offense. Two (2) lives were lost as a result of Defendant’s firing

of a deadly weapon while he was extrem ely intoxicated. One of the victim’s, Mr.

Hance, was shot in the back. The trial court appropriately relied upon the need to

avoid depreciating the seriousness of this offense in denying an alternative

sentence. State v. Michael Benson, No. 02C01-9708-CC-00333, Hardin County

(Tenn. Crim. App., at Jackson, July 21, 1998), perm. app. denied (Tenn. 1999)

(Voluntary manslaughter of the victim while defendant was under the influence of an

intoxicant and used a deadly weapon was sufficient to justify a total denial of

alternative sentencing where defendant pled guilty to voluntary manslaughter of

brother-in-law).

The burden is on the Defendant to show that the sentence he received is

improper and that he is entitled to probation. Ashby, 823 S.W.2d at 169. Defendant

has failed to meet this burden, and we affirm the judgment of the trial court.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:
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___________________________________

JERRY L. SMITH, Judge

___________________________________

L. T. LAFFERTY, Senior Judge