# FILED
May 7, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

STATE OF TENNESSEE, * C.C.A. No. 03C01-9707-CC-00314 * Appellee, * ANDERSON C OUNTY * VS. * Hon. James B. Sc ott, Jr., Judge * WILLIE D. GRAHAM, * (Voluntary manslaughter) * Appellant. *

For Appellant: For Appellee: J. Thomas Marshall, Jr. John Knox Walkup Public Defender Attorney General and Repor ter 101 South Main Street Clinton, TN 37716 Elizabeth B. Marney Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 Jan Hicks Assistant District A

ttorney General 127 Anderson County Courthouse Clinton, TN 37716

OPINION FILED:__________________
REVERSED AND REMAND ED GARY R. WADE, JUDGE2 OPINION Indicted for first degree murde r, the defendant, Willie D. Graham, was convicted of voluntary

manslaughter in the death of his brother-in-law, R ay Anthony Shervington. The trial court imposed a Range I sentence of six years.

In this appeal of right, the de fendant presents the following issues for our review: (I) whether the ev idence is sufficient to sustain the conviction; (II) whether the tri al court erred by all owing the state to use peremptory challenges based on gender; (III) whether the trial court erred by refusing to instruct the jury on the lesser included offenses of reckless homicide and criminally negligent homicide; (IV) whether the tri al court erred by all owing the state to impeach the defendant with prior convictions for selli ng marijuana; and (V) whether the trial court erred in sentencing and in denying probation.

Because the trial c ourt fai led to cha rge each o f the les ser off enses, we must reverse the judgment of the trial court and remand the cau se for a new trial.

Ann Shervington, the defendant's sister, is the wi dow of the victim. The Shervingtons, who were married in 1983, hav e two daughters. Tamisha w as twelve years ol d at the time of trial and Keisha w as eight. Elizabeth G raham, the mother of the defendant and Ann Shervington, is affected with Alzheimer's disease and resides only a few ho uses away from the Sherv ingtons. At approximatel y 10:00 A.M. on Sunda

y, July 3 0, 1995, Ann Sh ervingto n, Paul "Bud" B yrum, Tommy Littlejohn, the victim and the defendant had gathered in the Gr aham backyard. They3 socialized and drank beer for much of the morning and afternoon. M s. Graham spent the day inside the house

.

The Shervingtons, who had each consumed about three quart s of beer over the course of the day, left about 5:30 P.M. to purchase m ore beer. While unaware of the amount of alcohol ing ested by the defendant, Ms. Sherv ington described the victim as "pretty high" because he h ad consumed a lot of alcohol the previous night. She di d not recall unpleasantness bet ween the victim and the defendant or M s. Graham. While c onceding th at she had arg ued with th e victim, she revealed that that was not unusual.

When Jerry Weaver arrived, at about 9:00 P.M.,Ms. Shervington recalled that the defendant and the v ictim began to argue. Both of the men entered the back door of the house. Ms. Sher vington followed, saw

the victim on the front porch with his hands outs tretched toward the defendant, and then heard the defendant say, "Go on, man. Go on, man." She testified that the two men st ood chest to chest. From fifteen to tw enty feet away, Ms. S hervington saw the defendant draw a knife from the pocket of hi s shorts, open the blade beside his leg, raise the knife, and strike the victim. She ran tow ard the victim, who was not wearing a shirt, a nd saw a bloody woun d on his left side and also a w ound on the right side of his chest. Ms. Shervington ran to the house of her sister, Mary Graham, who lived nex t door and then to Joyce Dy e's house to call for help. H er sister attempted to stop the bleeding. The ambulance arriv ed at about 10:00 P.M. When Ms. Shervington returned from the hosp ital at approximately 1:30 A.M., she went to the store with Littlejohn. Upon their return to her residence, police were searching for the weapon us ed by the defendant. Byrum helped them locate the knife.4 Ms. Shervington testified that the knife was found in her front flowerbed at about 2:00 A.M. Li ttlejohn, Byrum, Weaver, and Willis were pr esent at the time. Ms. Shervington acknowledged that the victim and Littlejohn had a history of conflict.

Keisha testified that she saw the victim and the defendant go in the back door of the Graham house and saw Littlejohn enter from the front por ch. Within minutes she saw the defendant and the vi ctim on the front porch. She recalled the defendant saying, "Go on, man; go on, man ," while the victim held his arms extended in the direction of the defendant. Keisha testified that the defendant stabbed the victim and that s he saw blood on the vic tim's chest, as he fell to the sidewalk. Keisha did not remember anyone else being nearby. Afterward, s he ran to find her sister and informed her that "something was wrong." She denied telling Tamisha that Weaver stabbed the victim and claimed a good relationship with the defendant.
Tommy Littlejohn testified that he arrived at the Graham house at 8:00 A.M. on the day in question. He recalled that they all drank beer and got al ong fine throughout the day. Littlejohn recalled that he awoke from a nap when he he ard Ms. Shervington cryi ng. He then overheard the defendant say, "I'm going t o jail," as the defendant handed him an open knife with bl ood on it. Littlejohn, w ho had seen the knife before, placed it inside an o ld television set in the back yard.

When he returned to the front yard, the vic tim was lying i n a pool of blood. When police left the scene sometime later, he informed Ms. Shervingt on as to the location of the knife. He r etrieved the knife, took it to the Shervington house, and placed it on a chair on her front porch near where Byrum sat. Littlejohn recal led5 being asked to get some more beer. When he and Ms. Shervington retur ned, the police asked about the knife. Lit tlejohn showed them wher e he had placed it but the knife was no longer ther e. He subsequently le

arned that Byrum had throw n the knife in the side yard by a walnut tree.
Littlejohn denied ever carrying the defendant's knife into Ms. Graham's front yard. He recalle

d that the defendant was uncharacter istically quiet that day. Littlejohn did not, howev er, hear anyone threaten any one else. He acknowledg ed that he and the victim had ex perienced trouble in the past and that, in fact, he had shot the victim in 1990, y et he denied that there was any recent ill-feeling. Littlejohn also admitted that in August o f 1995, Ms. Shervington had called the sheriff to remove him from her home.

Paul "Bud" Byrum testified he was in the house with Littlejohn and Ms. Shervington on the day of the stabbing. The defendant was i n the kitchen when the victim entered the back door. An argument ensued and the two men went toward the front porch, followed by Ms. Shervington. B

yrum testified that he did not see a knife. He did notice Littlej ohn follow Ms. Shervi ngton outside. Byrum recalled that he left by way of the back door, went to the Sherv ington house, and sat on the porc h. He learned the victim had been killed when Ms. She rvington returned from th e hospital. He saw Littlejohn place a knife on a chair next to him. He descri bed the knife blade as closed; it w as too dark to see whether there was blood on it. Byrum testified that he kicked the kni fe off of the porch but pointed out its locati on when police arrived.

Lieutenant Penny Baker testified that she located a lock-bl ade knife on the Shervington propert y. When she found the knife, the blade was clos ed.6 Hugh Kring, a paramedic with the Anderson County E.M.S., arrived at the Graham residence at about 10:00 P .M. The victim, in cr itical condition, wa

s lying in a supine pos ition in front of the house. Polic e arrived within

four to seven minutes. Kring transpor ted the victim to Lakefront Par k in Clinton and the Lifestar helicopter flew the vi ctim to the Universit y of Tennessee Hospital in Knox ville.
Rick Harrington, a Lifestar flight paramedic, chemi cally paralyz ed the victim, inserted a tube into his windpipe, and pr ovided blood and fluids. Cons cious but not alert, the victi m was in severe shock. The victim maintained a pul se during the twelve minute flight and no resuscitation was required. Harrington did not recall smelling a ny alcohol

as he treated the victi m.
Dr. Richard Clark,whose specialty i s emergency and internal medicine, treated the victim in the emergency room at 11:19 P.M. Dr. Clark and his staff employed life-saving procedures for fift een or sixteen minutes, all of which failed. The victim died at 11:3 1 P.M.

Dr. Cleland Blake, a forens ic pathologist, performed the autopsy and described the victim as a young, black male, fiv e-feet-eleven-inches tall , and weighing 200 pounds. Dr. Blake found that the vic tim had suffered three stab wounds to his chest. A dow nward diagonal woun d to the right side caused a collapse of the right lung and was of a lethal nature. A second wound to the left side of the chest, pierced the heart and punctured the lung cavity. This wound was also lethal and would h ave bled profus ely. A third wound alo ng the victim's lef t rib cage was angled steeply

downward, entering

the chest wall but not th e lung cavity. Death resulted from the two wounds to the front of the chest. Dr. Blake testified that all three wounds were cons istent with having been made by the same knife and that7 the lock-blade knife with the chip in the blade could hav e made these wounds. It was his opinion that the k itchen knife, which w

as more slender and had a serr ated edge, would have produc ed as smaller, serrated ty pe wound not present here.

Dr. Blake could not determined the order of the wounds. He recognized the possibi lity that the two l ethal wounds could have been inflicted when the victim was ly

ing flat. He found no defensive w ounds other than some minor scratches on the back of the v ictim's fingers. The v

ictim had grass on his h ands consistent with a fall. While acknowledging it wa s possible that a knife other than the two he had examined coul d have inflicted wounds, Dr. Blake testified that the two lethal wounds in

volved tearing dur

ing the penetration whi ch was consistent w ith the notch in the blade of the lock- blade knife.

Deputy Richard Carr

observed a large amount of bl ood on the sidewalk as paramedics placed the victim onto a g urney. There was blood splattered on the front porch and the steps. When Deputy Carr saw the defendant walk onto the front porch ca rrying a dishpan of w ater, he instructed him not t o disturb the crime scene.

As Deputy Carl Bailey arrived on the scene, he overheard Ms. Shervington scream, "Willie cut Ray." He recalled seeing Littlejohn sitting in a chair on the front porch. Deputy Bailey took the pan of water from the de fendant when it appeared he might attempt to clean the area where the vic tim had fallen, escorted the defendant to the patrol car, and l ater transported him to the county jail.8 Deputy Bailey retur

ned to the crime scene between 2:00 and 3:00 A.M. to search for the knife. H e initially searche d the front porch of the Graham residence and continued his s earch at the Shervingto n house.
No fingerprints wer

e found on the lock-blade knife. The v ictim's blood alcohol level was 0.16 percent. Michael Ly ttle, a forensic scientist , testified that a person with a blood alcoh ol level that high w ould experience diminish ed judgment and reaction time, have sl urred speech, and perhaps an alt ered gait. He explai ned that some heavy drinker s might develop a behav ioral tolerance. He tes

tified that humans metabolize alcohol at a rate of 0.01 to 0.02 percent per hour and that metabolism ceases at death.

Mark Squibb, a TBI serol ogist, tested the serrat ed knife and found no blood present. His tests indicated that human blood was present on the lock-blade knife but he could not type it conclusively. H e found human blood on the defendant's shir

t under the left ar

mhole, u nder the

neckli ne, in th e center of the le ft side, and on the chest area.

Squibb also tested blood sampl es taken from the defendant and the victim. He determined th at the blood found on the shoes of the defendant w as consistent with that of the v ictim according to one tes t but inconsistent with that of the victim according to another.

Sergeant William Breeding testified tha t he took three statements from the defendant, who did not appear to be intoxicated. In the ini

tial conversation, he stated that he was standing in the kitchen when Ms. Shervington and the victim began to argue. Ms. Gr aham told the victim to go and then he repeated the order.9 He claimed that he walked back toward the kitchen and then heard that Ms. Shervington had gone to Mary Graham's house to c all an ambulance. He insis ted that he next saw Ms. Shervington standing over the victim as he lay outside on the sidewalk.
At about 2:20 A.M., Sergeant Br eeding and Detective Tow nes questioned the defendant a second time after he had been booked. He provid ed the officers with substantially the same statement that he had given a few hours earlier. The defendant claimed that h e asked the victim wh y he brought fights ov

er to his house, then walked away, and about three minutes later, heard Ms. Shervington call for he lp.

The defendant made a third statement to Serg eant Breeding at 5:10 A.M. By then the vic

tim had died and the suspected murder weapon had been located. The defendant stated as f ollows:

I was at 106 Coward R oad, Clinton, Tn, where I l ive with my mother. A

nn Shervin gton, Tommy Littlejohn, my mother Elizabeth, and Ray were all there. Ann and Ray were arguing w

ith each other, my mother had t old Ray to get out of the house. I came from the kitchen and Ray was inside the house near the door. I told every one that they needed to go somewher e else, because Ray had been fussing with Ann and Tommy . Ray then started fussing and pu shing my mother. I t old him he had t o go and mom told Ann she was goin g to have to go. Ray started pushing and grabbi ng me and I hit him with the knife. I walked into the k itchen. Ray turned around and walked toward the door. Mom told Ann again she w as going to have to go.I took the knife in the kitche n and put it on the table and started c ooking. The knife was about 6 or 8 inches long and l ooked like a steak knife[. I]t has grooves in the blade. About 5 or 6 minutes later I heard Ann screaming and I w alked out of the kitchen, and through the house and o ut on the porc h with my mother and saw Ray lay ing on the sidewalk. I looked down at him and my sister was over him and he w as talking, then I saw the blood and I went down to Mary's house and told her to call the ambulance, and she said they had already been cal led. I went back up to the10 house. Mary walke

d up there too. Ann had a rag hol ding it on Ray, by then the a mbulance came. This statement was signed but unrecorded. The two prev ious statements were not recorded or reduced to w riting.

In addition to the lock-blade knife, Sergeant Breeding s eized from the Graham h ouse thr

ee other weapon s: a serrated st eak knif e from the

kitche n, a kni fe without a handle from the kitc hen sink, and a long-bladed k nife found on the floor of a bedroom. Only the serra ted knife and the lock-blade knife were tested by TBI. Breeding testified that the lock-blade knife could be op ened with one hand. He conceded that the victim's clothing was not tes

ted.
Alex Witherspoon, the six-year -old nephew of defendant, testified for the defense. Alex remembered that th e victim argued w ith Ms. Graham and Weaver. He testified that he saw the defendant put down the knife he was us ing and saw Weaver pick it up. Alex claimed that he left the house bri efly and that when he returned, the defendant raised a but cher knife toward the v ictim. Alex then corrected himself, saying that it was Weaver, not the def endant, that he saw raise the knife. He explained that he did not see the stabbing.

Mary Graham, sister to the defendant, had returned from wor k at about 10:00 P.M. on the date of the homicide. She confirmed that her son, Alex , had gone next door to his grandmother's house to retriev e a toy. About ten minutes lat er, he returned. Ms. Shervi ngton, who followed, w as screaming at the door. Ms. Graham testified that when she did not answer the door, Ms. S hervington left. She ex plained that Ms. Shervington,her sister, often fought wi th the victim and screamed for help; usually her concerns w ere unfounded. A few minutes later, Keisha and Tamisha returned and asked her to call an ambulance. Ms. Graham testif ied that she did11 nothing because she did not bel ieve them. She then called th e police, went to her mother's house, and observed the victim lying on his back near the front steps . She recalled that Ms. Shervington was treating the victim's stab wounds.

The defendant testified that he worked a t the plants in Oak Ridg e from 1976 to 1986, when he hurt his back and contracted a lung di sease. At the time of the victim's death, he lived with and cared for his mother.

The defendant, who denied being intox icated, testified that there had been arguments that evening between Weaver and Littlejohn. He cl aimed that he had returned to the kitchen to prepare supper when the victim entered the house and began to argue. The defendant insisted th at he walked away and the victim and Ms. Shervington began to argue. The defendant recalled that his mother ordered them to take their arg ument elsewhere. The defendant testified that when the victim also argued with Littlejohn, he directed the victim to "[G]o on out of here [and g]ive my mom a break." The defendant claimed that he also directed Ms. Shervington to leav

e.

The defendant insisted that the Sherv ingtons continued to quar rel with his mother and that the victim pushed her. He testified that the victim attacked w ith both hands. The defendant, who was holding a knife he had used to cut onions, "felt cutting , and I just p ushed him off of it. Which at the tim e I hit him, s tabbed him, I guess. I hit him rig ht here [in the left shoulder]." He recalled that the vi ctim turned and walked onto the front porch then Littlejohn took the knife, saying, "You don't need this no more."12 The defendant described his knife as a br own handled butcher knife. He testified that when Littl ejohn returned, he said, "[T]he son- of-a-bitch has died and he deserved to die." The defendant hea rd Ms. Shervington crying for an ambulance and saw the victim outs ide on the ground. He contended that he remained at the scene until the authorities arrived. The defendant denied hav ing any animosity toward the victim and insisted that he stabbed the v ictim only once. While denying that he had implicated Weaver to the police, he asserted that he did not ki ll the victim. The defendant admitted that he had two felony convic tions for selling marijuana in 1992.

I

The defendant first challenges the suffici ency of the evidence. On appeal, of course, the state is entitled to the strongest l egitimate view of the evidence and all reasonabl e inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as triers of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is challeng ed, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the es sential elements of the crime beyond a reasonable doubt

. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).

Voluntary manslaughter i s the "intentional or know ing killing of another in a state of passion produced by adequate provocation suffici ent to lead a reasonable person to act in an irrational manner." Tenn. Code Ann. § 39-13-211. "'Intentional' refers to a per son who acts intentionall y with respect to the nature of13 the cond uct or to a result of the cond uct when it is the per son's con scious ob jective or desire to engage in the conduct or cause the result." Tenn. Code Ann. § 39-11- 302(a). "'Knowing' refers to a person who acts knowingly w

ith respect to the conduct or circumstances s urrounding the conduct w hen the person is aware of the nature of the conduct or that the ci rcumstances exist. A per son acts knowingly

with respect to a result of the pers on's conduct when the person is aware that the conduct is reasonably certain to cause the result." Tenn. Code Ann . § 39-11-302(b).

Here, there was proof that the defendant remo ved a knife from his pocket, opened the blade, and stabbed the victim in the chest. A deep stab wound to the chest is reasonably certain to cause death. A pathol ogist testified that of the three chest wounds, the ri ght and left chest wounds w ere lethal. Ms. Sherv

ington claimed to have seen the defendant st ab the victim. She saw wounds in both the left and right sides of his c hest. From this, the jury could have concluded that the defendant inflicted either or both of the more serious wounds. There was also proof that the defendant and the victim had a rgued and that the victi m had pushed the defendant's ailing and elderl y mother. A jury co uld have determined that the defendant acted under provocation. In our view, the ev idence was clearly

sufficient to support a conviction for voluntary manslaughter.

II Next, the defendant asserts that he had establishe d a prima facie case of purposeful gender discrimin ation in the state's use of its peremptory challenges. The state insists that no constitutional violation oc curred because the prosecutor provided neutral reasons for its challenges to male jurors.14 In Batson v. Kentucky , 476 U.S. 79 (1986), the United State s Supreme Court held that the prosecutor's use of peremptory challenges to inten tionally exclude jurors of the defendant's race violated his r

ight to equal protecti on under the fourteenth amendment to the U.S. Constit ution. See also Tenn. Const., art. I, § 9. In Powers v. Ohio , 499 U.S. 400 (1991), the Supreme Court upheld the principle s of Batson but eliminated the requirement that the defen dant and the wrongfully excluded juror be of the same r ace in order for there to be an eq ual protection claim. See State v. Ellison , 841 S.W.2d 824, 826 (Tenn. 1992). The Court extended the Batson rule and rationale to the use of peremptory challenges based on gender in J.E.B. v. Alabama ex. r el. T.B. , 511 U.S. 127 (1994). Our s upreme court adopted that ruling in State v. Turner , 879 S.W.2d 819 (Tenn. 1994). Thus, we apply the standards for determining r acial discrimination, as set forth in Batson and its progeny, to peremptory challenges where g ender discrimination is alleged.
When the defendant is able to establish a prima facie c ase of purposeful discrimination ag ainst a prospective jur or based on gender, the prosecution must then come forwa rd with a gender-neut ral explanation for the challenge of the juror. J.E.B , 511 U.S. at 144-45. The expl anation does not have to rise to the level of justifying a challenge for cause, so long as the explanation is based on a characteristic of the juror other than gender and is not pretextual. Id. at 145. That is, the state must "'articulate a neutral explana tion related to the particul ar case ....'" Ellison , 841 S.W .2d at 827 (quot ing Batson , 476 U.S. at 97). It is th e court's responsibilit

y to determine whether there has been a purposeful discrimination on the part of the state. Batson , 476 U.S. at 98; State v. Bell , 745 S.W.2d 858, 867, after remand 759 S.W.2d 651, 654 (Tenn. 1988). "[T]he exercise of even one peremptory challenge in a purposefully discriminatory manner would violate equal protection." Ellison , 841 S.W.2d at 827. If the court were to determi ne15 a neutral reason does not ex ist, the conviction must be reversed. Id. at 826; see also Batson , 476 U.S. at 100.

The defendant must show that "these facts and any other relevant circumstances raise an i nference that the prosecutor used that practice to exclude [certain of] the venirem[e]n fro m the petit jury on account of their [gender]." Batson at 96 (alteration added). A trial court must look to the "totality of the relevant f acts" to determine whether the stat e's use of peremptory challe nges gives rise to an inference of discriminatory purpose. Bell , 759 S.W.2d at 653. In Turner , our supreme court clarified that peremptory challenges c ould be utilized by bo

th the state and defendant in an effort to eliminate j urors perceived to be bi ased or unsympathetic: "Peremptory strikes, by definition , may be exercised for any reason unless that reason is speci fically prohibited by

legislation or by

judicial decision." 879 S.W.2d at 821.

Here, the record reflects that the jury was c omposed of five men and seven women. Defense counsel used peremptory challenges to remove two male prospective jurors.The state used only three of it s four peremptory challeng es. The prosecutor challenged one j uror because the juror did not believe that he had been treated fairly by the state in proceedings foll owing his arrest some fourteen years earlier. The pr

osecutor, who had questi oned another prospective j uror about an arrest s

ome ten or fifteen years be fore, believ

ed she had caus

ed the juror

some embarrassment and thus, issued the second pe remptory challenge. A third prospective juror was challenged due to his opposition to the death penalty. W hile this was not a capital case, the state argued that tho se opposed to capital punishment tend to be more "defe nse oriented." At the conclusion of an in camera1 First degr ee murder is "[ a] premeditat ed and intent ional ki lli ng of another. " Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 199 6).

2 Second degree murder is " [a] knowing ki lli ng of another. " Tenn. Code Ann. § 39- 13- 210(a)( 1) (Sup p. 1996)

.

3 Voluntary

manslaughter is "the i ntenti onal or knowin g kill ing of anot her in a st ate of passi on produced by adequat e provocati on suffici ent to l ead a reasonable per son to act i n an irrat ional man ner." Te nn. Cod e Ann. § 39-13-2 11(a). 16 hearing, the trial judge ruled that the state had not engaged in any systematic exclusion.

In our view, the rec ord does not support the defendant's claim of purposeful discrimination i n the use of peremptory challeng es. On appeal, the "trial court's f inding of intentio nal discri minatio n is entit led to 'ap propriat e defere nce by a reviewing cour

t.'" State v. Smith , 893 S.W.2d 908, 914 (Tenn. 1994) (quoting Batson , 476 U.S. at 98, n.21). In thi s instance, the trial jud ge observed voir dire, the demeanor of counsel, and considered the gender composition of the jury. The trial court specifically ruled that the state was not intentionally discriminating against men. The defendant has not alleged facts or circumstances that woul d convince us otherwise. Thus, we d efer to the ruling of the trial court.

III The defend ant contends that the trial cou rt erred by refusin g to charge reckless homicide and cri minally negligent homicide as lesser inclu ded offenses. The defendant was indicted for first degree murder; the jury was so charged. 1 The trial court also instr

ucted the jury on second deg ree murder 2 and voluntary manslaughter. 3 The defendant's specific complaint is that the evidence also4 Reck less hom icide is "a rec kless k illing of anothe r." Tenn . Code A nn. § 39- 13-215 (a). "'Reckless'

refers to a

person who acts reckl essly wi th respect t o circumstances surroun ding the conduct or the result of the conduct when t he person is awar e of but consci ously di sregards a substanti al and unjust ifiabl e risk that the circumstances exi st or the r esult wi ll occur

.... " Tenn. Code Ann. § 39-11-302(c).

5 Crim inally negligent h omic ide is "[c]rim inally negligent c onduc t which res ults in death ...." Tenn. Code Ann. § 39-13-2 12(a). " 'Criminal negligence' refers to a

person who acts wi th criminal negligence wi

th respect t

o the circu mstances surrounding t hat person's conduct or the result of that conduct when the per son ought to be awar e of a substant ial and unj ustifi able ri sk that the circumstances exist or the result willoccur...." Tenn. Code Ann. § 39-11-3 02(d). 17 warranted an instructi on on reckless homicide 4 and criminally negl igent homicide. 5 The state argues that based upon the proof presented at trial neither instruction was warranted.

In State v. Trusty , our supreme court observ ed that "Tennessee law recognizes two t

ypes of lesser offenses ... : a l esser grade or class of the charged offense and a lesser included offense." 919 S.W.2d 305, 310 (Tenn. 1996) . The trial judge has a statuto ry duty to charge the jury "on lesser g rades or classes of the charged offense supported by the ev idence." Id. ; Tenn. Code Ann. § 40-18-110. The trial judge also has a duty grounded in case l aw to instruct the jur y on lesser included offenses. Trusty , 919 S.W.2d at 311.

A lesser grade or cl ass of the charged offense is determine d by reference to the statutory s cheme. State v. Wright , 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981). For ex ample, varying g rades and classes of homicide ar e defined at Tenn. Code Ann. § 39-13-201 and codified at Tenn. Code Ann. §§ 39-13-202 et. seq.
The other type of lesser offense is one "necessarily includ ed in the indictment." Trusty , 919 S.W.2d at 311. In Wright v. State , 549 S.W.2d 682 (Tenn. 1977), our supreme court outli ned the test to determine whethe r an offense is lesser18 and included in the greater offense. Quoting the late Ju stice Weldon W hite in Johnson v. State , 397 S.W.2d 170, 17 4 (Tenn. 1965), the court ruled as follows:

The true test of which is a l esser and which is a g reater crime is whether the elements of the former are complet ely contai ned within the latte r, so that to prove the greater the State must firs t prove the elements of the lesser. Wright , 549 S.W.2d at 685-86.

Two years later, our

supreme court again address ed the subject: We believe that the better rule, and the one t o be followed henceforth in this St ate, is the rule adopted implicitly by thi s court in Wright v. State , supra , that, in this context, an offense is neces sarily included in another if the elements of the greater offense, as those elements are set forth in the indictment, include, but are not congruent with, all elements of the lesser. If there is evidence to support a conv iction for such a lesser offense, it must be charged by the trial judge. T.C.A. § 40-2519 [now Tenn. Code Ann. § 40- 18-118(a)]; Whitwell v. State , 520 S.W.2d 338 (Te nn. 1975). Howard v. State , 578 S.W.2d 83, 85 (T enn. 1979).

Second degree murder, reckl ess homicide, and criminall y negligent homicide are all lesser included and lesser grad e offenses of first degree murder. See State v. Belser , 945 S.W.2d 776, 79 0 (Tenn. Crim. App. 1996). Voluntary manslaughter is a lesser grade offense of first degree murder

. Id. ; Trusty , 919 S.W.2d at 311; see Tenn. Code Ann. §§ 39-13-201 throug h -213.

The trial court has a duty to give a complete char ge of the law applicable to the facts of the case. State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986). It is settled law

that "where there are any facts that are susceptible [to an inference] of guilt of any lesser included offe nse or offenses, then there is a mandatory duty upon the trial judge to charge on such offense or of fenses. Failure19 to do so denies a defendant his consti tutional right of trial by a jury." Wright , 618 S.W.2d at 315

(citat ions omitted). When there i s a tria l on a si ngle ch arge of a felony, there is also a tr ial on all lesser included offenses, "as the facts may be." Strader v. State , 362 S.W.2d 224, 227 (Tenn. 1962). Trial courts may omit an instruction on a lesser included offense only when the record is devoid of evidence to support an inference of guilt of the lesser offense. State v. Stephenson , 878 S.W.2d 530, 550 (Tenn. 1994); State v. B oyd , 797 S.W.2d 589, 593 (Tenn. 1990). There is an affirmative duty o n the part of the trial judge to charge the jury on lesser included offenses charged in the i ndictment whether reques ted to do so or not. See Howard , 578 S.W.2d at 85.

Here, the defendant was charg ed with first degree mur der, defined as "[a] premeditated and intentional k illing of another." Tenn. Code A nn. § 39-13- 202(a)(1) (Supp. 1996). To omit the instructions on reckless homicide and criminally negligent homicide effectiv ely deprived the defendant of his right to jury on the issue. Our guiding principle is that if there is any evidence in the record from which the jury could have concluded that the lesser included offense was committed, there must be an instruction for the l esser offense. See Johnson v. State , 531 S.W.2d 558, 559 (Tenn. 1975).

In State v. Boyce , 920 S.W.2d 224 (Te nn. Crim. App. 1995), this court ruled that an omission of a lesser included off ense from the charge to the jury always requir

es a new trial. The opini on was largely based upon the ruling of our supreme court in Poole v. State , 61 Tenn. 288, 294 (1872):

However plain it may be to the mind of the Court that one certain offense has been committed and none other, he must not confine himself in his char ge to that offense. Whe n he does so he invad es the pro vince of t he jury, whose peculiar duty it is to ascertain the g rade of the offense. However clear it may be, the Court should20 never decide the facts, but must leave them unemba rrassed t o the jury.
There was some proof that the defendant st ruck the victim in a reckless or criminal ly negligent manner.The defendant testified that he interv ened on behalf of his mother when the v ictim initiated an argument . He claimed that the victim grabbed him w

ith both hands and was stabbed o nly because the defendant, who held a kitchen knife bei ng used to cut onions, attempted t o push away. The underly ing theory w

as that the defenda nt eithe r disregarded or was unawar e of a substantial

risk that h e would stab the victi m. The defendant testified, "[ The victim] grabbed me and I felt cutting, and I just pushed him of f of it. Which at the tim e I hit him, stabbed him, I guess. I hit him right here [in the left shoulder]." After the incident, the defendant remained at the scene and surrendered to police on their arrival.
During the deliberatio ns, the jury submitted the following question t o the trial court: "Do we have any other options of verdicts, for example, involuntary manslaughter?" Under these circumstances, it woul d be difficult to conclude that the record is devoid of any evidence upon which the jury could infer gui lt of the accused of a lesser offense. The jury may have convicted the defendant of the lesser offense had it been charged;certainly, they w ould have considered it. An instruction on both of the lesser offense s was warranted even if the trial court viewed the testimony

of the defendant as unworthy of accr editation. The right to a jury trial inclu des the consideration of all pos sible lesser grade and lesser included offenses. We are constrained to hold that the trial court's failure to instr

uct on reckless homicide and cri minally negligent homicide requires a rev ersal of the conviction and the grant of a new trial as to the c harge of voluntary mansl aughter. A conviction for voluntar

y manslaughter, after the j ury has been given a full opportunity21 to consider a verdict on both first and second degree mur der, serves as an acq uittal as to first and second degree murder. Price v. Georgia , 398 U.S. 323, 329 (1970).

IV The defendant claims that the trial c ourt erred by allow

ing the state to use evidence of a prior conv iction for selling mari

juana for purposes of impeachment. See Tenn. R. Evid. 609. Particularly, the defendant asks this court to revisit our decis ion in State v. Tune where we held that a fel ony drug possession conviction could be used for impeachment purposes. 872 S.W.2d 922, 927 (Tenn. Crim. App. 1993). The state cont ends that the defendant has not demonstrated that he was prejudiced by the inquiry, parti cularly in ligh t of the trial court's ins

truction to the jury.
The Tennessee Rules of Evidence prov ide that a judgement of conviction may be used by the state to generally

impeach the testimony of the defendant: (a) General Rule. For the purpose of attacking the credibility of a wi

tness, evidence that the w itness has been convicted of a crime may be admitted if the following procedures a nd conditions are satisfied: (1) The witness must be as ked about the conviction on cross-examination. If the witness denies havi ng been convicted, the conviction may be established by public record. If the witness denies being the person named in the public record, identit y may be established by other evidence. (2) The crime must be punishable by death or imprisonment in excess of one y ear under the law under which the witness was convicted or, i f not so punishable, the crime must have involved dishonesty or false statement. (3) If the witness to be i mpeached is the accused in a criminal prosecution, the State must give the accus ed reasonable written noti ce of the impeaching convic tion before trial, and the court upon r equest must determine22 that the conviction's pr

obative value on credi bility outweighs its unfa ir prejudi cial eff ect on th e substa ntive issues. The court may rule on the admissibility of such proof prior to the trial but in any event shall r

ule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused need not actually testify at the trial to l ater challenge the propri ety of the determination. Tenn. R. Evid. 609; State v. Morgan , 541 S.W.2d 385 (Te nn. 1976). A trial court's ruling under Rule 609 w ill not be reversed abs

ent an abuse of discretion. See Johnson v. State , 596 S.W.2d 97, 104 (Tenn. Crim. App. 1979).

"In determining whether the probative value of a pr ior conviction on the issue of credibility is outweighed by i ts prejudicial effect on the subs tantive issues, a trial cour t should (a)

'assess the

similarit y between the crime on trial and th e crime underlying the impeachi ng conviction,' and ( b) 'analyze the rel evance the impeaching conviction has to the issue of credibili ty.'" State v. Farmer , 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992) ( quoting N. Cohen, D. Pa ine, and S. Sheppeard, Tennessee Law on Evidence , § 609.9 at 288 (2d ed. 1990)); see also State v. Jerry Lee Finch , No. 02C021-9309-CC-00224 ( Tenn. Crim. App., at Jackson, J une 7, 1995). The defendant argues that marij uana sales have little, if any, relevance to the issue of his credibili ty. He contends that the r ule is arbitrary because if he had sold a lesser amount of marijuana, the conviction would have been a misde meanor, and thus, inadmissible.

Here, following a jury out hearing under Rule 609, the trial judge held as follows: I think it is a questi on for the Jury to determine w hether or not a person who wo uld be guilty of selli ng two counts of marijuana, would be guil ty of coming here and maybe falsif ying a state ment. .. . But basi cally spea king, I bel ieve that a person who commits cr ime as closely related

as this one is-- it's not stale ... when that crime is so23 unrelated to the crime for w hich we are investi gating here, [the state] should be able to at least have that for the purpose of testing credibi lity, and credibili ty only. Immediately f ollowing impeachm ent of the de fendant by the state, the trial judge provided the jury with an appropriate instruction limiting the consideration of these prior convictions t

o the issue of credibility . These convictions may have served the state only marginall

y to illuminate the defendant's credibility. Ye t, the prejudicial effect was also slight i n that the convictions di d not involve crimes of violence or the use of a weapon. Drugs were not involved in this matter. Under these circumstances, we cannot say that the trial cour

t abused its discretion i n admitting this evidence.

V

The defendant also insists that the tr ial court erred by i mposing the maximum possible sentence of six years and argues that i t should have suspended the entire sentence. He submits that the enhancing factors i dentified by the trial court are not proper under th e Criminal Sentencing R eform Act of 1989 and that the trial court ignored valid mitigating factors. The state contends that the sentence is presumptively corr

ect because the trial court followed the mandates of the 1989 Act. Although we have held that the defendant is entitled to a new trial, we will nonetheless address the question of sentencing.

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); see24 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 mitigating 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. §§ 40-35- 102, -103, and -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

At the time of this offense, the presumptiv e sentence was the minimum in the range if there w ere no enhancement and mitigating factors. Tenn. Code Ann. § 40-35-210(c). Sho uld the trial court find miti gating and enhancement factors, it must start at the mi nimum sentence in the range and enhan ce the sentence based upon any applicab le enhancement factors, and then reduce the sentence based upon any appropri ate mitigating factors. Tenn. Code Ann. § 40-35- 210(e). The weight g iven to each factor is w ithin the trial court's

discretion provided that the record supports it s findings and it complies with the 1989 Act. See Ashby , 823 S.W.2d at 169. The trial court should, how ever, make specific findings on the record which indicat

e its application of the sentenci ng principles. Tenn. Code A nn. §§ 40-35-209 and -210.

At the sentencing hearing , a former probation officer testified that the defend ant had f ulfilled the requir ements o f his prob ation sat isfacto rily for th e two felony convictions of 1992. The defendant expressed remorse ov er the death of the25 victim but denied stabbing the victim three times, insisting he had only "hit" the victim once. The trial judge found three enhancing factors including lack of candor, a history of criminal beh avior, and the use of a deadly weapon. He found no mitigating factors and i mposed the maximum sentence of six years.

Lack of candor with the cour t is not recognized b

y statute as an enhancement factor. Tenn. Code Ann. § 40-35- 114. A lack of truthfulness or candor, cannot enhance the length of a sentence. State v. Thomas Anderson , No. 01C01-9504-CC-00103, slip op. at 19 (Tenn. Crim. App., at N ashville, Dec. 18, 1997). The trial court is limited to those factors set for th by the legislatur

e. State v. Dykes , 803 S.W.2d 250, 25 8 (Tenn. Crim. App. 1990).

The defendant also contends that he does not hav e a history of criminal convictions

or behavior. See Tenn. Code Ann. § 40-35-114(1). He characterized his prior felony drug convictions and traffic violations as "having little relevance on the question of sentencing for a manslaughter conviction, esp ecially where drugs were not an ingredien t of the k illing." W e disagree . The sta tute allo ws consideration of the prior offenses as an enhancement of the sentence.
The defendant also argues that Tenn. Code A nn. § 40-35-114(9), the employment of a deadly weapon during the commission of the cr ime, cannot be used to enhance his sentence because it is an elemen t of the offense of voluntary manslaughter. A similar argument was rejected,however, in State v. Butler , 900 S.W.2d 305 (Tenn. Crim. App. 1994). In Butler , this c ourt hel d that th e use of a weapon was not an essenti al element of murder. Id. at 313. Therefore, this factor was properly consi dered.26 The defendant specifically arg ued six mitigating factors at the sentencing hearing. After considering the arguments of counsel, the trial court refused to afford the defendant any mitigat ion: "I find nothing to show that [the victim] was anything other than in your mother's house, and he pushed your mother. ... The only mitigating

factors that I see ... wer e considered by the Jury in arriving at this decision."

The defendant argues that he acted under s trong provocation. Tenn. Code Ann. § 40-35-113(2). A conviction of the lesser included of fense of voluntary manslaughter was apparently based upon the jury's conclusion that he acted under "adequate pro vocation." Our la w does not prohibi t trial courts fro m giving a defendant "double credit" by recognizing this as a mitigating factor. Yet, this court has previously ruled that the factor need not be automatically applied in voluntary manslaughter cases. See State v. McKinzie Monroe Black , No. 01C01-9401-CC00006 (Tenn. Crim. App. at Nashv ille, July 14, 1995). Here, the victim w as not armed. While the provocation in this c ase may have been adequate to reduce the degree of the defendant's culpability, the nature and circums tances of this crime do not necessarily demonstr ate the kind of "strong prov ocation" required to miti gate the sentence. We, therefore, agree with the findi ng made by the trial cour t.
Next, the defe ndant submit s that his condu ct is justified a lthough failing to establish a defense, Tenn. Code An n. § 40-35-113(3), and that his weakened physical condition required that he use a weapon to keep peace in his mother's home. Tenn. Code Ann. § 40-35-11 3(8). He asserts that these factors are apparent from the proof developed at tr ial. We disagree. Some of the proof indicated that an argument erupted in the living room, and the victim pushed, but did not harm, the defendant's mother. The defendant int ervened and stabbed the27 victim, using deadly force and inflicting at least one deep stab wound to the victim's chest. The evidence does not s ufficiently demonstrate that the defendant stabbed the victim due to a phys ical disability. See, e.g. , State v. Michael Bail ey , No. 03C01- 9601-CR-00028 (Tenn. Crim. Ap p., at Knoxville, Oc t. 10, 1997). The jury concluded that the defendant struck the vi ctim out of frustration or anger

.

The defendant also asserts that he w as motivated to provide necessities for his family and that the necessity that he attempted to provide was peace. Tenn. Code Ann. § 40-35-113(7). W e find no merit in this assertion. This mitigating factor is l argely encompassed in th e defendant's claim of self-defense or defense of others. See State v. John D. Joslin , No. 03C01-9510-CR-00299 ( Tenn. Crim. App ., at Kno xville, Sep t. 22, 19 97). The jury reject ed this th eory. In ou r view, the trial court was warranted in rejecti ng the notion that the defendant was protecting his family from a "drunken assault" by the v ictim. Tenn. Code Ann. § 40- 35-113(13). While the victim was drunk and apparen tly pushed the defendant's ailing mother, he was also unarmed. In our view, there was no error b y the rejection of this clai m.
Finally, the defendant arg ues that his actions do not in dicate a sustained intent to viol ate the law. Tenn. Code Ann. § 40-35-113(11). There was some indication that the defendant armed hi mself with a lock-blade k nife, opened the weapon, and then stabbed the victim one or more times. All of this suggests a sustained criminal intent. See State v. Johnson , 909 S.W.2d 461 (Tenn. Crim. App. 1995).
The defendant was eligible for a sentence ranging from three to six years. Te nn. Code Ann. § 40 -35-112 (a)(3). Th e trial cou rt proper ly applied two28 enhancement factors and improperly applied a third, thereby enhancing the defendant's sentence to six y ears. That the defendant, who has a hi story of criminal behavior, employed the use of a deadly weapon in the commission of the crime is entitled to particularly

great weight. The tr

ial court properly refused to apply each of the six mitigating

factors proposed by the defendant. I n our view, the six year sentence would have been w arranted.

The def endant c ontends that he sh ould have been per mitted t o serve his sentence on probation. Among the factors app licable to the defendant's application for probation are the circumstances of the offense, the defenda nt's criminal record, soci al history, and present condition, and the deterrent effect upon and best interest of the defendant and the publ ic. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978); Stiller v. State , 516 S.W.2d 617, 61 9-20 (Tenn. 1974). Especially mitigated or standard offenders co nvicted of Class C, D,or E felonies are presumed to be favorable candidates "for alternative sentencing op tions in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-102(6). W ith certain statutory exceptions, none of which apply here, probation must be automatically consider ed by the trial court if the sentence imposed is eight y ears or less. Tenn. Code Ann.§ 40-35-303(a), (b). The ultimate burden of establishing s uitability for probation , however, is still upon the defendant. Tenn. Code Ann. § 40-35 -303(b).

Alternative sentencing

issues must be determined by the facts and circumstances of the indiv idual case. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). "[E]ach case must be bottomed upo n its own facts." State v. Taylor , 744 S.W.2d 919, 922 (T enn. Crim. App. 1987).29 There is no evidence in the record that the trial cour t considered probation in sentencing the defendant, de spite his request. At the time of this offense, the defendant lived with hi s mother and had held a steady j ob until 1986 when he contracted a lung disease and back injuries . The defendant had fulfilled the terms of his 1992 probation and incurred no ne w charges, other than traffic violations, until thi s offense. Those factors weigh i n favor of a grant of probation. The prior felony offenses, howev er, are unfavorable circumstances. While the death of the victim, standing alone, is not an adequate basi s for denying probation, State v. Butler , 880 S.W.2d 395, 40 0-01 (Tenn. Crim. App. 1994), the serious nature of the offense may warrant the denial of probation where "the offense, as committed, is 'especially violent, horrifyi ng, shocking, reprehens ible, offensive, or otherwise of an excessive or exaggerated degree' so as to outweigh all other factors of probation." Id. at 400 (quoting State v. Travis , 622 S.W.2d 529, 534 (Tenn. 1981)). The stab wounds to the chest are circumstances of the crime which would eliminate probation as a reasonable alternative. A lack of cando r would also support a term of incarcerati on rather than one of release in th e community. State v. Bunch , 646 S.W.2d 158 (Te nn. 1983).

The conviction is rev

ersed. Because there has been an a cquittal on the greater offenses, the defendant must be r etried on the voluntary

manslaughter charge.

_________________________________ Gary R. Wad e, Judge CONCUR:

______________________________ Joseph M. Tipto n, Judge

______________________________ William M. Barker, Judge