### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs M

ay 8, 2001

STATE OF TENNESSEE v. LUKE B. C OLE

Appeal from the Criminal Court for Shelby County No. 98-09236 W. Otis Higgs, Judge

No. W2000-01530-CCA-R3-CD - Filed August 10, 2001

The Defendant, Luke B. Cole, was convicted by a jury of second degree murder in the shooting death of David Burson. Th

e trial court sent

enced the Defe

ndant as a Range I

, violent offende

r to twenty years incarcer ation. In this appeal as of right, the Defendant contends that the trial court erred i n r uling admissible certain photographs of the victim; that the trial court erred in admitting certain rebuttal evidence submitted by the State; and that his senten ce is excessive. Finding no reversible error in the Defendant’s trial, we affirm his conviction. Finding that the trial court erred in sentencing the D

efendant, we mod

ify his sentence t

o seventeen yea

rs.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed as Modified

D AVID H. W ELLES , J., delivered the opinion of the court, in which A LAN E. G LENN , J. and L. T. L AFFERTY , S R .J., joined.

Tim Albers, Memphis, Tennessee, for the appellant, Luke B. Cole.

Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William L. Gibbons, District Attorney General; and Camille McMullen, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On the evening of August 23, 1996, the nineteen-yea r -old Defendant and his girlfriend, Samantha Sharpe, returned to the Defendant’s home from an outing. They were sitting in the living

roomwhen someone pulled into the driveway. The Defendant stood up ; Ms. Sharpe remained seated. David Burson entered the house, yelling “Get those f’ ing cars out of the driveway.”

Burson also lived in the home with the Defendant’s mother, and he had earlier told Ms. Sh

arpe that he did not wan t he r par kin g in t he d riv eway.-2-

The Defendant told Burson to shut up, and Burson responded by throwing a twelve-pack of beer in Ms. Sharpe’s direction, hitting her in the head. The Defendant took umbra ge and the two

men began “tussling” in the living room. They fell to the floor and knocke d over s ome furniture. The struggle continued for a short time. When the two men broke up, the D

efendant walke

d into his bedroom and shut the door. M

s. Sharpe testifiedthat she saw Burson “bent over picking something up.”

Ms. Sharpe left

the house to move her car. While in that process, she testified, she heard “a loud pop.” The Defendant came out a short time later, looking “shocked and scared.” Ms. Sharpe observed blood spots on the Defendant’s shirt and face. The Defendant told Ms. Sharpe tha t she needed to go and that he had shot Burson. When she asked the Defendant why he had d

one so, Ms. Sharpe testified, the Defendant responded, “[H]e pulled a knife on me.”

The Defendant

called 911 for assistance. When the police arrived, the Defendant cooperated and was taken into custody. He also si gned a consent to search form, and the police searched the house. They found the sho tgun used to kill Burso

n in the Defendan

t’s bedroom close

t, covered with a jacket. They also found several other guns in the house, some of which belonged to Burson.

Dr. O’Brian Cleary Smi

th performed the

autopsy on Burson’s body and testified that he had been killed by a shotgun wound entering the mouth. Dr. Smith testified that the shot had been fired “certainly within . . . eighteen inches . . . [but] most likel y within six inches.” Two photographs taken of the victim’s face were admitted with Dr. Smith’s testimony which showed the extent of the wound. Dr. Smith also testified that the victim’s blood alcohol content was .17.

The police found the victim sprawled on the living room floor wi th a knife in his left hand. Paulette Sutton, a forensic sero l ogist and bloodstain pattern expert, testified that, based on photographs of the crime scene, it was her opinion that Burson had been uprightwhen he was shot in the vicinity of the Defendant’s bedroom doorway. She opined that the body had been moved from the place where

it had originally

fallen. She further opined that the knife had not been in the victim’s hand when he was

shot.

The Defendant testified and admitted that he had shot Burson, moved his body, and placed the knife in

Burson’s hand. He explained that, during their “tussle,” Burson had placed his knee on the Defendant’s chest and a hand on his throat, and then pulled a pocket knife ou t of hi s pocket. Burson was “slicing” at the Defendant with theknife while the Defendant “was swatting it away.” The Defendant hit Burson in the throat, making Burson drop the knife. The Defendant then got out fr om under Burs on and got up and went into his bedroom, shutting the door behind him. The Defendant testified that

he quickly

loaded his shotgun b

ecause he was a

fraid Burson was g

oing to

come after him. When he heard Burson at his bedroom door, he told Burson “not to enter the room because [he] had a gun.” Burson then opened the door, the Defendant testified, and “had his [right] hand up in the air with a knife in it.” The Defendant “defended [him]self” and shot Burson.-3-

The Defendant testified that he thought Burson was attacking him and that he shot Burson because he “was afraid of him.” The Defendant expla

ined that he “was

trying to protect [himself] because [Burson] had pulledguns on [him] on various occasions.” The Defendant testified that he moved Burson’s body in an effort to determine hi s cond ition because he could not see the wound where Burson originally lay. He explained that he put the knife in Burs

on’s hand becaus

e he was scared and did not think anyone would otherwise believe that Burson had been attacking him. The Defendant testif

ied that he and Bur

son were approx

imately five fee

t apart when he f

ired the shot.

Janet Cole, the Defendant’s mother, testified that she and Bur son were engaged to be married. She an d Burso n had been drinking prior to arriving home on the evening of August 23. When they arrived home, shetestified, Burson went into a rage because of the cars in the driveway. She told him to go in, go to bed, and calm down; she then left , returning about forty-five minutes later, after Burson had

been shot. Cole

testified that Burson had a drinking problem and that he had beco me violent in

the past. She testified that Burson kept his guns under their bed in the master bedroom of the house.

On rebuttal the State called the court reporter to certify a page of transcript from the D efendant’s testimony on direct examination and to testify concerning a portion of that page of transcript.

ADMISSION OF PHOTOGRAPHS During Dr. Smith’s testimony the State tendered two photographs of the victim’s face taken during the autopsy. The ph otographs graphi

callydemonstrated the extent and nature of the gunshot wound which killed the victim. Defense counsel objected to the admission of these photographs, arguing that they were unnecessary, that they would inflame the jury, and that their probative value was substantially outweighedby the danger of unfair prejudice. The trial court disagreed, finding the photographs “significant and relevant [in] that the jury is able to see the powder burns on [the victim’s] face and . . . then in addition to that the manner in which the man was killed in the face.

. . . [I]t might even go to the defendant’s state of mind.” The Defendant now contends that the trial court’s ruling was harmful error.

We respectfully disagree. “The admissibility of relevant photographs

. . . of . . . victims is within the sound discretion of

the tria l judge, and his or her ruling on admissibility will not be disturbed on appeal absent a clear showing of an abuse of that discretion.” State v. Carruthers , 35 S.W.3d 516, app. 576 (Ten n. 2000). “Moreov

er, the modern tr

end is to vest more discre tion in the trial judge’s rulings on admissibility.” Id. at app. 577.

The two photographs at issue graphically illustrated Dr. Smith’s testimony about the manner of death and the short distance from which the shotgun was fired. Thus, the phot ographs were relevant and, therefore, generally admissible. See Tenn. R. Evid. 401, 402. We acknowledge that relevant evidence may be excluded “if its probative valu

e is substantially

outweighed by the danger of unfair prejudice, . . . or by considerations of . . . needless presentation of cumulative evidence.” Tenn. R. Evid. 403. However, “simply because evidence is prejudicial does not mean the evidence-4-

must be excl ude d as a matter of law.” Carruthers , 35 S.W.3d at app. 577. It is the trial court’s responsibility

to determine the relevance of the photographs and to

weigh the probati

ve value against any undue prejudice. Id.

We agree with the trial court that the photographs at issue were relevant to proving how the Defendant

killed the victim. “Photographs showing the injuries of the victim are properly admitted if the defendant admits he killed the victim but seeks to show a non-criminal homicide or that the offense was of a lesser degree than murder.” State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978). Here, the Defendant

claimed to have shot and killed the victim in self-defense. He claimed to have been several feet away from Burson when he fired his shotgun. Dr. Smith’s testimony, together with the photographs, cons

tituted proof that t

he Defendant sho

t the victim

from only

a few inches away. See State v. Keen , 31 S.W.3d 1 96, app . 231 (Tenn. 2000) (“[P]hotograph

s may be introduce

d in order to illustrate testimo

ny . . . [and] a re

levant p hotograph is not re ndered inadmissib

le merely because it is cumulative.”)

(cita t ions omitted). Moreover, we do not think that admission of the instantphotographs unfairly prejudiced the Defendant or amounted to unduly cumulative evidence. The photographs, while certainly unpleasant to view, are not unduly gory or

gruesome: they me

rely illustrate what the Defendant did to the victim. The photographs were taken after the victim had been moved to the morgue and illustrate only the condition of the victim’s face. These photographs

were properly admitted. See Keen , 31 S.W.3d at app. 231 (finding the postmortem photograph of the victim “relevant to supplement and clarify the testimony of the medical examiner and the officer in establishing the c

ause of death”) ; Stat e v. Schafer , 973 S.W.2d 269, 274-75 (Tenn. Crim. App. 1997) (photograph of vi

ctim showing gun shot wound properly admitted where used to prove that the gunshot had been fired at very close range). The

Defendant having failed to demonstrate that the trial court abused its discretion in admitting the photographs, this issue is without merit.

REBUTTAL EVIDENC

E The Defendant next contends that the trial court erred in a

llowing the State

to call the court reporter as a rebu ttal witness in

order to testify about a portion of the Defendant’s testimony on direct examination. During direct examination, defense counse l asked the Defe

ndant, “So what did you do then after you loaded [the shotgun]?” The Defendant responded, “I just sat in my room.” On cross-examination, the prosecutor stated to the Defendant, “And when you got

to your room you

s at on th e bed,” to which the Defendant responded, “No, ma’am.” A few questions later, the prosecutor

again stated, “A

nd you sat on your be

d.” Again the Def

endant replied, “

No, I didn’t sit

on my bed.” Later, the prosecutor again attacked the subject of what the Defendant did after he entered his bedroom: “Now, correct me if I’m wrong, Mr. Cole. On your direct testimony did you just n ot tell this jury that you went back inside your room, loaded your gun, and sat on the bed ? ” Once again, the Defendant stated, “I didn’t say I sat on the bed.”

On rebuttal the State called the court reporter and asked her to read that portion of the Defendant’s direct examination in which he stated, “I just sat i n my room.” Apparently the prosecutor

was trying to point out an inconsistenc y in the Defendant’s direct testimony, thereby impeaching his credibility. On cross-examination, defense counsel requested the court reporter to read the remaining questions and answers that were transcrib

ed on that page, w

hich she did. These-5-

responses included the Defendant’s direct testimony that he told the victim not to enter his

bedroom because he had a gun, that the victim then opened the door, and that the victim at that tim

e “had his hand up in the air with the knife in it.”

Rebuttal evidence “is that whi ch tends to explain or controvert evidence produced by an adverse party.” Cozzolino v. State , 584 S.W.2d 765, 768 (Tenn. 1979). It is “properly admitted for the purpose of impeaching a witness through the use of a prior inc onsistent sta tement.” State v. Braden
, 867 S.W.2d 750, 760 (Tenn. Cri m. App. 1993). The a

dmissibility

of rebuttal evidence lies within the sound discretion of the trial court, and this Court will not overturn a trial court’s admission of rebuttal proof unless it is clear on the face of the record that an abuse of discretion has occurred. Id.

Where a witness denies having made a prior inconsisten

t statement, his

or her credibility may be impeached through the admission of the statement. See State v. Jones , 15 S.W.3d 88 0, 891 (Tenn. Crim. App. 1999). Here, the State was trying to do just that: to show that the Defendant had stated on direct examination that he had sat on his bed after having loaded his gun, which he denied stating on cross-examina

tion. The State’s e

ffort failed bec

ause the Defendant’s denial was accurate: he never testified that he had sat “on his bed.” The State’s “rebuttal” evidence merely ser ved t o underscore the State’s own misu nderstandin

g of the Defendant’s direct testimony. Therefore, wh ethe r or not the so-called rebuttal evidence was, in fact, worthy of admission as rebuttal proof,

we find any error in

its admission to be har

mless. Indeed, it g

ave defense

counsel the oppor

tunity to put before the jury a second time the Defendant’ s self-defense theory. This issue i

s without merit.

SENTENCING In his final issue, the Defendant contends that his sentence is excessive. He argues that the trial court misapplied an enhancement factor and failed to give sufficient weight to three ap

plicable mitigating factor

s. The State disagr

ees.

When an accused challenges the length, range, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence witha presumption that the determinations made by the trial court are co rrect. Tenn. C ode Ann. § 40-35-4 01(d). This presu

mption is “condition e d upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Thus, in order to allow meaningful appellate review, the trial court “must

place on the record

its reasons for arriving at the final sentencing decision, identify the mitigating and enhancement fac tors fou nd, state the spec ific facts supporting each enhancement factor found, and articulate how the mit igating and enhancement f

actors have been evaluated and balanced in determining the sentence.”

Statev. Poole , 945 S.W.2d 93, 96 (Tenn. 1997) (quo ting State v. Jones , 883 S.W.2d 597, 601 (Tenn. 1994)).-6-

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received at the

trial and sentencing hearing; (b) the presentence report; (c) the princ iples of sentencing and arguments as to sentencing alternatives; (d) the nature and chara cteristics of the criminal conduct involved; (e) any statutory mitiga ting or enhancement factors; (f) any statemen t made by the defendant regarding sentenc ing; and (g) the potential or lack of potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-1 02, -103 , -210; State v. Brewer , 875 S.W.2d 298, 302 (Tenn. Crim. App . 1993); State v. Thomas , 755 S.W.2d 838, 844 (T enn. Crim. App. 1988).

If our review reflects that

the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due c onsider ation and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately

su pported by the record, then we may not modify the sentence even if we would have preferred a different result. State v. Pike , 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher
, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

Second degree murder is a Class A felony. See Tenn. Code Ann. § 39-13-210(b). The Range I sent ence for a Class A felony is fifteen to twenty-five years. See id. § 40-35-112(a)(1). T h e presump tive sentence for a C lass A felony is midp

oint in the range, e

nhanced by applic

abl e enhancement factors and reduced by applicable mitigating factors. See id. § 40-35-210(c), (e).

The trial court applied

two enhancement factors: that the personal injuries inflicted upon the victim were particularly great and that the Defendant employed a firearm during the commission of the offense. See id. § 40-35-114 (6), (9). The Defendant contends that the trial court’s application of the first of these

two factors was e

rror, and the Stat

e correctly con

cedes. A sentence cannot be enhanced by a factor which is itself an essential element of the offense. See id. § 40-35-114. Given that the victim’s death

is an element of the crime of second degree murder, the enhancement factor for inflicting partic

ularly great per

sonal injuries ca

nnot be applied to

enhance a

sentence for a murder conviction. See, e.g. , State v. Williamson , 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995) (holding that the enhancement factor for inflicting particularly great injuries cannot be applied to enhance a sentence for vehicular ho

micide “because

the death of the victim is an elemen t of the offense”

); State

v. James Henry Dav

is
, No. M1999-02467-C

CA-R3-CD, 2000 WL 1 130139, at *3 (Ten n. Crim. App., Nashville, Aug. 2, 2000) (holding that this enhancement factor cannot be applied to a sentence for second degree murder because “the personal injuries inflicted upon the homicide victim are by definition ‘particularly great’”). Thus, the trial cou rt erred when it a

pplied thisenhancement factor to increase the Defendant’s sentence.

The trial court also a

pplied three mitiga

ting factors: that the Defendant acted under strong provocation; that, because of his youth, he lacked substantial judgment in committing the murder; and that, although guilty of the crime, the Defendant committed the murder un der such u nusual circumstances that it is unlikely that a sustained intent to violate the law motivated his conduct. See Tenn. Code Ann. § 40-35-113 (2), (6), (11). The trial court further noted that the Defendant had no1 The Defendant’s presentence re port indicates

that he has no prior r

ecord of either

adult or juvenil

e criminal activi ty.

-7- prior felony conviction

s. 1 The State argues that the trial court should not have applied the first of these factors because the jury rejected the Defendant’s self-defens e theory. We respectful ly disagree. “Strong provocat

ion” is not synonymous with self-defense, and the proof supports the application of this mitigating factor.

Because the trial court did not place its findings on the record other than by filing a “Findings of Fact” form, we are unable to discern the weight given to any of the enhancement and mitigating factors. As we have noted, the trial court erroneously applied one enhancement factor. Accordingly,

we review the trial court’s sentencing decision without the presumpt ion of correctness. See, e.g.
, Statev. William Lewis Houston , No. M1999-01430-CCA-R3-CD, 2000 WL 1793088, at *9 (Tenn. Crim. App., Nashville, Dec. 7, 2000) (holding that, “[s]ince th e trial court did no

t articulate

how each of the alleged enhancement factors applies, we must review t he defendant’s sentence de novo without any presumption of correctness”). Upon the record before us, we find that the Defe ndant’s sentence should be less than twenty years. Beginning at the midp oint of the range,

which is twenty years, enhancing on the basis of a single enhancement factor, and then reducing the sentence on the basis of three mitigating factors, theappropriate sentence should be somewhat below the midpoint of the range. We believe that each of the three mitigating factors is entitle

d to significant we

ight in this case. Accor

dingly, we modify th

e Defendant’s s

entence to seve

nteen years.
The Defendant’s conviction is affirmed. His sentence is reduced to seventeen years.

___________________________________ DAVID H. WELLES, JUDGE