# FIL ED

Oct ob er 1 0, 19 96 Cecil W. Crow son A pp ellat e C ou rt C lerk I N THE COURT OF CRI MI NAL APPEAL S OF TENN ESSEE A T N A S H V ILLE OCTOB ER 1995 SES SI ON

STATE OF TENNESSEE ) NO. 01C01-9411-CC-00390 ) Appellee , ) DI CKSON COUNTY ) vs . ) HO NO RA B L E A L L EN W. WA L L AC E ) CI RCUI T COURT J UDGE CAL VI N WAYNE SUGGS, ) ) (SECOND-DE GREE MURDER AND) Appellant. ) RECKL ESS ENDANGERMENT)

FOR THE APPEL L ANT: FOR THE APPEL L EE: Shipp R . Weems Charles W. Bur son District Public Defe nder Attorney Gene ral a

nd Reporter 450 J ames Rober

tson Parkway Steve Stack Nashville, Tenne ssee 37243- 0493 Assistant Publ ic Def

ender 23rd Judi cial District Dar ian B . Taylor P.O. Box 160 Assistant Attorney Gene ral Charlotte, TN 37036 Criminal J ustice Division ( o na p p e a l ) 4 5 0 J a m e s R o b e rt s o nP ar kw a y Nashville, TN 37243- 0493 J err y V. Smith L ittleton, S mith & Roberts Robert S. Wi lson 300 N. Main Street and Di ck s o n , T N 3 7 0 5 5 C h ri s t o p h er L

. Yo u n g (at tr ia l) As st. Di str ic t A tto rn e y s G e ne ra l P.O. Box 160 Charlotte, TN 37036

OPI NI ON F I L ED : AFF I RMED AS MODI FI ED

ROBERT E. CORL EW, I I I , SPEC I AL J UDGE CO NC UR : GARY R. WADE, J UDGE DAVI D H. WEL L ES, J UDGE23 O P I N I O N

Fr o m t h e d e c is io no f

th e T r ia l C o u rt f

in d in g th e D e f

e n d an t gu il ty

o f s e c o n d-deg ree

m u rd er an d re ck l es s en d an ger m en t , an d s en t en ci n g h i m t o s e r v e t we n t y (2 0 ) y ea rs as a R an ge IStand ard

Of fe nd e r f or the c on vic tio n for

mur de r, and

tw o ( 2) y e ars , c on c ur

re ntl y , f or re c kle ss endang erme nt, the Def

endant a ppeals. Th e Ap pe lla

nt p re se nts thr e e iss ue s f

or re vie w. F ir st h e a sse rt s that he wa s d e nie d a fa ir tr ia l be c a us e the State fa ile d to pr ov ide inf or ma tio n to t

he de fe ns e c on c e rn inga

po te nti a l w itn e ss until im mediately

befor e trial, a

nd the Court denied the A ppellant' s motion for continuance

. Second, the Appe llant asserts that the e vidence prese nted was insufficient to suppor t a finding that the Appellant wa s g uilty of the char g es. Third, the Appellant a sserts that the Court fa iled proper ly to follow the sentenc ing guidelines, failing proper ly to state enhancing fac tors on which the Court relied, a

nd in failing to consider mitigating f actor s advanc ed by

the Appellant. The fa cts show that the decease d, Timothy Har tley was a labore r who had worked for the Appellant' s fathe r, Ver

nie Sugg s on the far

m ope rate d by

the Appellant' s father . On September 4, 1993, the Appellant f

elt as though H artley

should have c ome to work for the Appellant a

nd the Appellant' s father , but instead Har tley went with his brother- in-law, Bry ce Swift a nd a third individual, Shawn L enn, to cut tobac co on the f arm of a Mr. Smith. The App el l an t called the H art l e y r e s i d e n c e , b y t e l e p h o n e , d u r i n g t h e d ay o nS e p t e mb e r 4 , l e a v i n g a

m e s s a g e f

o r H a rt l e y. On the eve ning of

September 4, when Har

tley , Swift a

nd L enn returne d to the Har tley residenc e, Har tley ' s wife told Har

tley about the telephone call she had rec eived f rom the Appe llant, which upset the Appellant. When H artley and Swift w ere unable to r eac h the Appellant or his fathe r by telephone, Swift a

nd Har tley went to the Appellant's f ather ' s residenc e to talk with the Appellant and his father to resolve the misunderstanding . L enn lef t the Har tley residenc e, but did not go with Swift and Ha rtley to the Appellant' s father ' s residenc e. A number of persons, including family members wer e g ather ed at the Sug g s' residenc e,

e njo y inga

ba rb e c ue . T he Ap pe lla

nt a sse rt e d th a t H art le y a

pp e are d to be ve ry

ang ry up on his

arr iva l a t th e Sug g s' re sid e nc e , and e xpre sse d a

ng e r t o th e Ap pe lla

nt r e g ard ingthe te le ph on e c a ll4 which Appe llant had made e arlier to Hartley ' s wife. F urther w ords wer e ex ch an ged , and the Appellant went into his father ' s residenc e, picke d up a shotg un, and took the g un outside, where the Appellant' s father , Swift, and Har tley wer e talking . The Appe llant asserte d that he took the gu n t o t h e d i s cu s s i o n fo r h i s p ro t ec t i o n , b u tu p o nh i s arri v al o u t s i d e t h e r es i d en ce , t h e A p p el l an t 's fathe r told the Appellant to put the g un down. The A ppellant t estified that he put the gun down, but the evidenc e shows that he r etrieve d the wea pon, and shot Har

tley throug h the heart, killing h im inst antly . The Appe llant's f ather , Ver non Sugg s was also injured by the g un blast. The Ap pe llant rel ied upo n d e fe ns e s o f a c c ide nt a nd se lf -d e fe ns e , a lle g ingthat he did no t in te nd

to shoot the g un, nor did he re member ha ving f ired it, a nd also asser

ting that the dece ased lung ed at him immediately

befor e he f

ired. Th e on ly inf or ma tio n th a t th e Ap pe lla

nt a sse rt s th a t Sh awn

L e nn wo uld have be e n a

ble to provide surrounde d L enn' s work with Swift a nd the dece ased dur ing the day of September

4. Questions arose as t o whether the decease d had bee n drinking as he w orked, a nd as to whethe r the dec ease d and his wife qua rre led prior to the t ime when Swift and the de cea sed we nt to the Sugg s' residenc e. At the time of the hear ing, L enn was serving in the Army , stationed in Korea

. The Appe llant asserts that more than six months prior to t ri al t h e S t ate had possession of an investigative m emora

ndum mentioning L enn, althoug h not by name a nd indicating that the testimony of L enn would contr adict the testimonies of Swift a nd the wife of the dece ased in two particula rs. Swift testifi ed Har

tley had little to drink during the afte rnoon bef ore g oing to the Sugg s' residenc e while t h e memorandum sug g ested L enn would testify that Har tley had consumed seve ral be ers. Mrs. H artley denied the occur

renc e of any

arguments she had with her dece ased husba

nd. The memorandum sug g ests, the Appellant a sserts, that L enn would testify that he le ft

the Ha rt le y re sid e nc e be c a

us e he did

no t w ish to b e pr e se nt w hi le Mr . a nd Mr s. Har tley continued their a

rg ument s. The Appe llant made discove ry reque sts in November of 19 93 , b ut the S tat e did

no t pr ov ide inf

or ma tio n c on c e rn ing

the wi tne ss t o th e Ap pe lla nt u nti l approximately

one week prior to trial. The Appe llant moved for a continuance shortly

befor e the trial, asse rting that L enn wa s an indi spensable witness, seeking time to secure his presenc e.5 The Court denie d the motion for continuanc e. At the time of the commission of the offe nse here in, the Appellant wa s under a suspended sentenc e from the order of the Dickson County Gene ral Sessions Court. He had a lso sustained an injury ear lier to his knee, a s a re sult of an incident in w hich the Appe llant and the dec ease d

wer e eng ag ed in horsepla

y . The Appe llant had suffe red the tear ing of ligaments in his knee, and subsequently require d two surg erie s. At the trial, the testimony of the assistan t m ed i cal examiner who per formed the autopsy showed that the de cea sed died fr om a g unshot blast fired from as c lose as two and a half fee t away , or as f

ar a s nine fee t away . She further testified that the blood alcohol leve l of the dece ased indicated that he had consumed a pproxi mately

five a nd one-ha lf bee rs shortly

befor e beingkilled. The testim ony of t he doctor contra dicts the testimony of the Appe llant's f

ather , who stated that " the g un went off " dur i n g a strug g le betwe en the Appellant and the dec ease d, and contr adicts the testimony of Swift that the dec ease d had consumed only

a small amount of alc ohol immediately prior to his death. Evidence was pre sented fr om which the jury could have found that the Appellant a cted under pr ovocation. Evidenc e wa s prese nted that the dece ased appea red ang ry when he arr ived at the Appe llant's f

ather ' s home, and interr

upted a f amily bar b ec u e. Words were exchang ed b et we en the dec ease d and the Appe llant. Evidence further was pre sented that the de cea sed fre quently

brag g ed abo u t h i s s ervic e in the military forc es, and pa

rticularly his service during De se rt Sto rm . F ur

the r, be c a us e of the de c e a se d' s size (t wo hund re d a nd tw e nty -f ive po un ds ) the Appellant' s phy sical disabiliti es due to the e arlier horseplay

incident betwe en the Appe llant and the de cea sed, and the circ umstances of th e p ri o r incident be tween the dece ased a nd the Appellant, the Appe llant asserts that he was fea rful of the dece ased on the eveningin question. Both the A

ppellant and the de cea sed had be en drinking , but the decea s ed wa s unarme d. The dece ased w as ac companied by his friend B ry ce Swift, while a number of the Appellant' s friends

and re la tiv e s w e re pr e se nt.6 The Appe llant first complains that the Trial Court shoul d have g rante d his moti on for continuance , when he discovere d only one we ek prior to tria l the identity of Shawn L enn, whom the Appellant wishe d to call as a witness. I t is undisput ed that L enn wa s not present whe n the

o f f e n s e o c c u r

r e d

. A p p ar e n t l y

t h e t e s t i m o n y

w h i c h h e c o u l d

h a v e p r o v i d e d

i s v e r y l i m i t e d

. It appea rs L enn could ha

ve testified that he cut tobacc o on the fa rm of an o t h er al l d ay

on Se pte mbe r 4 , to g e the r w ithB ryc e Swi ft and the de c e a se d. Th e me mor and um sug g e sts he c ou ld testify as to a lcohol consumption by the dece ased and Swift dur ing the day on which Ha rtley was killed, and he c ould present testimony whether the dece ased had argued with his spouse or others prior to g oing to the Appellant's father' s home. The Appellant asserts that L enn indicate d that the dec ease d had bee n drinking heavily , and fig hting with his wife pri o r t o going to the Appellant' s father ' s residenc e. We find none of these issues to be suff

iciently signific ant to show that the Trial Judge abused his discre tion in failing to g rant a continuance . The fa ct that L enn, Swift, and the dec ease d had bee n cutting toba cco f or anothe r per son is undisput ed. Whether he argued with his wife ea rl ier in the e vening is irreleva nt, and that the dec ease d had consume d more than f

ive bee rs immediately

prior to the incident was established by the t estimony of the

me dic a l e xami ne r. Th e re wa s no othe r inf or ma tio n tha t Mr. L e nn c ou ld p ro vid e to t he Court
. We rec og nize that L enn' s testimony perha ps would have c orrobor ated the doc tor' s testimony

conce rning alcohol consumption of the victim, and in some manner may have contradic ted the testimonies of Swift a

nd the victim's wife, Alicia Har tley

. At the same time, L enn wa s stationed, the r e c o r d r e f

le c ts in K o r e a , in th e mi li ta r y s e r v ic e . O b ta in in g h is li v e te s ti mo n y would have

ne c e ssi ta te d r e sc he du lin g the c a se a t a tim e wh e n L e nn wo uld vo lun tari ly re tur n, c ou ld o bta in leave , or could be broug ht back to this country for pur pose of obtaininghis testimony . A

numbe r o f w itn e sse s tes tif ie d in th is c a

us e , a nd the re c or d r e fl e c ts that L e nn ' s te sti mony wo uld be lar g ely cumulative. The issue of the g ranting of continuanc es fo r t h e p urpose of obtaining te stimony

of witnesses re st larg ely

within the sound discretion of the T ri al C o u rt
. W oo ds v . S tat e , 552 S.W .2d 782, 784 (Tenn. Crim. App. 1977) cert. de nied

. Absent a clea r showing of abuse of

that7 discretion and a

manifest showing of pre

judice to the Appe llant, we should not reve rse the T rial Court's de cision denying a continuance due to the unavailability of a witness. Lat ha m v . S tat e , 560 S.W .2d 410, 411 (Tenn. Crim. App. 1977) cert. de nied (Tenn. 1978). I n this c ause, w e find no abuse of

discretion on the pa

rt of the Tr ial J udg e. There was no showingof any evidenc e that the abse nt witness would provide other tha n cumulati v e testi mony

or testimony

which surrounde d events e arlier in the day

whi ch we re either irr eleva nt or of ver

y marg inal conseque nce. T he Court re cog nizes that the defense was hampere d in its late discovery of the exis tence of L enn, y et the re cord r efle cts that he was employ ed in the milit ary service , stationed

on the oth e r s ide of

the wo rl d, and

the re wa s n o ind ica ti on of any tim e a t w hic h h e wo uld

rea sonably

be ava ilable for testimony in the fore seea ble future. G iven these c ircumstance s, we find that the Trial Judge soundly exercised the disc retion which the law provide s to him i n such matters. Next the Court mus t consider whe ther the State c ommitt ed v i o l ations which dema nd

reve rsal of this cause f

or the re ason that the memora ndum containing information surrounding Sha wn L e nn wa s not pr ov ide d to the de fe ns e in a mor e tim e ly

mann e r. Cou

ns e l f or the de fe ns e filed a Motion for Discovery and Inspection on Nove mber 18, 1993. While the State answe red th at mo ti on on

Janu ary 27 , 1 99 4, L e nn

wa s n ot l ist e d a s a

po te nti a l w itn e ss, and

the State

answe red t h at there was no e x culpatory evidenc e in the ca se. The c ase w as set for trial on Marc h 23, 1994, and one wee k prior to trial, on Marc h 16, 1994, the District Attorney provided to counsel for

the Appellant the me morandum in questi on conce rning a ca ll which had bee n

re c e ive d b y

a law e nf or c e me nt a g e nc y , ide nti fy ing a c a lle r fr om Cla

rk sv ill e , Te nn e sse e , wh o to ld

a uth or iti e s sh e ha d r e c e ive d a c all , app are ntl y

fr om S ha wn L e nn , w hil e L e nn

wa s st a tio ne d in Kore a, althoug h she did not identify L enn ac cordingto the police me m o ra ndum. The ca ller state d to a

uth or iti e s she wa s told by

unidentified soldier that he was at Hartley s (sic) Saturda y evening . Other unide ntified people w ere prese nt. Hartley and his wi fe wer e fussing + fig hting. Ha

rtley was drinking

. This ma n tried to calm Har

tley down then left be cause he wa s tired of listening to them.8 Th e me mor and

um w a s w ri tte n o n a do c ume nt e nti tle d " Sup ple me nta ry Re po rt " and bo re the date of September

10, 1993, some six day s following the death of the victim. Ex culpatory

evidenc e has be en d ef

i n ed to include evidenc e fa vorable to a def

endant perta ining to the issue of g uilt or innocence and/o r p u n ishment which may be imposed if the defe ndant is convicted. Brady v. M aryland , 3 73 U. S. 83 (1 96 3)

. Con sti tut ion a l du e pr oc e ss i s violated wher e fa

vorable evidenc e is not provided, despite g ood faith of the state. Id . at 87. The duty to provide information to the defenda nt ext ends not only

to admissible evidence , but any favor able infor

mation which is unknown to the def e n d ant. Sta te v . M

ar sh all , 845 S.W .2d 231-32 (Tenn. Crim. App. 1992) perm. app. de nied

. Thus we ha

ve held t h at three elements must be satisfied be fore the Court finds a due proce ss violation. First, the prosec ution must have suppr essed the e vidence , whether exercising g ood or bad f

aith. Second, the e vidence which is suppresse d must h av e b een favora ble to the de fe nd ant. An d th ir d, the e vid e nc e mus t ha ve be e n ma te ri a l to t

he qu e sti on s b e fo re the Court
. W or k ma n v . S tat e , 868 S.W .2d 705, 709 (Tenn. Crim. App. 1993) perm. app. de nied

. I n this cause, we rec og nize that it is undisputed that the State provided the memora ndum in que s ti o n to th e d e f

e n s e , b u t d id s o o n ly s e v e n d ay s p r io r to tr ia l. A d is c o v e r y mo ti on was filed more tha

n four months prior to trial, re questing that the informatio n subject to discover y be provided " as soon as pra cticable and that new ly found discover able mate rial be pr ovided not le ss t ha n te n ( 10 ) da

y s bef or e the tr ia l of this ma tte r, if dis c ov e re d pri or to that dat e ." Th e State insists that it has complied at least with the constitutional re quirements involving the discover y of e xcu lpator

y e vid e nc e . We fi nd , h ow e ve r, that th e State ha d in its po sse ssi on , o r a va ila ble to it the me mor and

um i n q ue sti on be fo re the Mo tio n f

or Di sc ov e ry

wa s f ile d. Th e State ha d a

du ty to disc lose that memorandum to the de fenda nt in a rea sonable pe riod of time. The State de lay ed the deliver

y of the memora

ndum to the defe ndant until so close to tr ial that the def endant wa s unable eff

ectively to utilize the memorandum in pre paration for trial, but only upon motion for new tria l which was he ard more than three months post-trial. S u p p re s s i on of exculpatory evidenc e for such a period of time a fter reque sts f or delivery of such information have be en made9 by a de fe nd ant t

hat th e de fe nd ant i s una

bl e effecti ve ly

to util ize the inf

or ma tio n c on sti tut e s a violation of the Bradyrule. State v. Caughron , 8 55 S.W. 2d 52 6, 54 8 ( Te nn . 1 99 3) ; Branch v. Sta te , 469 S.W .2d 533, 535 (Tenn. Crim. App. 1969) cert. de nied (Tenn. 1970)

. Thus, we f

ind that the State violated t he first of t he three requirements which must be me t to show a fa ilure on the pa rt of the State to deliver

exculpatory

information. We m us t ne xt co ns ide r w he the r t he e vid ence supp re sse d b y the State wa s f

a vo ra ble to the defendant. He re the position of the Appellant is not as strong . There is no contention upon the par t of the Appe llant that the memorandum which was suppressed w as evide nce w ithin it self, bu t th a t it wo uld in f a c t le a d to a dmi ssi ble e viden ce. U lti ma te ly , th e re vie wi ngc ourt mus t subje ct i v el y d et ermine the injury to the defe nse ca

used by the State' s misconduct. State v. Cau gh ro n, su pra , a t 54 7. Th e me mor and um w hic h w a s n ot t ime ly

pr ov ide d le d th e de fe ns e in

so me fi ve da

y s to the pa

rt ia l id e nti ty

of the wi tne ss w ho ha d b e e n w iththe vic timduri ngmos t of the da y of his death. Althoug h the presence of t he witness was never secure d, the fact that he wa s se rv ingin t

he Un ite d St a te s Ar

my in Ko re a , a

nd his ra nk wa s a sc e rt a ine d p ri or

to t ri a l. Prior to the filing of

the motion for ne w trial, the fir st name of the w itness was sec ured, but no statement wa s obtained fr om him. Thus, despite the statement s co n t ained in the suppressed memorandum a

nd the asser

tions of the counsel for

the Appellant, the r ecor d contains no testimony of this witness, and no evidenc e which w ill aid this Court in determining that the witness would have te stified in a manner favorable to the Appe llant, other than the w ritten double hearsay contained in the police memora ndum of September 10, 1994. I nformation which may be used by

defe nse counse l in impeachment of w itnesses must be disclosed. Sta te v . D av is , 82 3 S. W.2 d 2 17 , 2 18 (T e nn . Cr im. Ap p. 19 91 ). Ev e n w ith ou t th e pr e se nc e of the wi tness, Shawn L enn, the memorandum provided opportunities f or cross e x amination of witnesses who te sti fi e d f

or the State c on c e rn ing t he peac e fu lne ss o f t he vic tim , o r l a c k th e re of a nd his consumption o f al co h o l on the day in question. W e find that the ta rdy delivery of the memorandum to the de fense did not hamper the pr esentation by the defe nse in c ourt in conduct of cr oss examinati o n . W e further find that without information in the rec ord other tha n the10 memorandum c ontaining double hear say , the re cord doe s not establish information sufficient f or us to determine that the information which the def ense w ould rea sonably

have se cure d had the memorandum be en timely provided wo u l d h ave been f avora ble or unfa

vorable . There is no sug g estion that the absent witness e ver w ent to the Appellant' s father ' s residenc e, and no

asser tion that he had any

knowledg e except that he had worke d all day with the victim and was wi t h h i m d

u ri n g t h e e v en i n g a ts o m e p o i n tb ef o re t h e v i ct i m we n tt o t h e A p p el l an t 's fa t h er 's residenc e and w as killed. The third fa ctor whic h we will consider , despite the fa ct that we ha ve alr eady

found that the re cord does not supply information from which we can de termine that fa vorable testimony would have be en provided by the absent witness had the State timely provided the me morandum in question, is that the information must be material. The rec ord re flec ts that evidence was introduced at trial conce rning the pea cef ulness of th e v i cti m duringthe eve ning at some point prior to the victim' s travel to the r esidenc e whe re he was killed. Evidenc e wa s also prese nted as to the amount of alc ohol which the victim had consume d during the day and eve ning hour s prior to his death. While the pea cef ulness of the victim at the sce n e where he was killed

cer tainly is material, we find the question of his pea cefu l n es s earlier in the eve ning to be a collater al issue. Evidenc e conc erningthe g eneral re putation of the victim for violenc e or peac efulne ss may

be admitted, but spec ific events of vi olence or peace fulness separate and apa rt fr o m t h e sce ne in question g ener ally are not material a

nd at best ar e collate ral in nature

. See, State v. Me eks , 867 S.W .2d 361, 376 (Tenn. Crim. App. 1993) perm. app. de nied; State v

. Payton , 781 S.W .2d 490, 493 (Tenn. Crim. App. 1989) pe rm . app . de nie d; Sta te v . M c Do ug le , 681 S.W .2d 578, 583 (Tenn. Crim. App. 1984) . When questions a re asked of a witness as to a collater al issue, the par

ty questioning the witness conce rning that collater al issue is bound by the

answe r provided by

the witness, and is p re cl uded fr om presentingfurther witnesses or substantive evidenc e on that collater al issue. State v. May o , 7 35 S.W. 2d 81 1, 81 7 ( Te nn . Cr im. Ap p. 19 87 ); Sta te v . H

ill , 598 S.W .2d 815, 828 (Tenn. Crim. App. 1980) perm. app. de nied ; See, State v . W

ilson , 687 S.W .2d 720, 724 (Tenn. Crim. App. 1984) perm. app. denied (Tenn.11 1985). Thus we find that eve n had the State pr ovided the m em o ra n d u m i n a timely fashion which it was re quired to do, and w hich it failed to do, and if the sugges t ed wi t n ess had been produce d within a rea sonable time, and ha d been pr esente d to testify in response to the w itnesses prese nted by

the State upon the issue of the earlier peace fulness or lac k there of on the pa rt of the vic tim , th e Court

wo uld pr op e rl y hav e den ied the Ap pe lla nt' s r ig ht t o p re se nt t

his wi tne ss t o testify upon this iss ue, for

the re ason that the matter in question was collater al in nature

. Th e Ap pe lla

nt a lso su g g e sts that th e wi tne ss, if pr od uc e d, wo uld

te sti fy that th e vic tim ha d c onsu med a larg e a mou nt o f a lc oh ol e arl ie r i n th e da y . Wh ile thi s is su e a lso , s tr ic tly , is i rr el ev an t to the matters bef ore the Court, the Court rec og nizes obviousl y that the question whether one has c onsumed alcohol ear lier in the day has bea ring upon his sobriety

later on that same da y . Simi larly , the degr ee of intox ication of the vi ctim may also have some bea

ring upon his violence or pe ace fulness at t h e t ime and plac e of his dea th. Whi le the State pre sented wi tne s s e s w h o t e s t i f

i e d t h a t t h e v i c t i m h a d dr u n k v e r y l i t t l e e ar l i e r i n t h e d ay , t h e S t a te a lso prese nted the medica l examiner, truly a disintereste d witn es s , who pre sented e vidence

conce rning blood samples taken f rom the victim which appea r unequivoca lly to prove the blood alcohol leve l of the victim at the time of his death, and furt h er prese nted cr edible expert te sti mony a s to the a mou

nt o f a lc oh ol w hic h th e de c e a se d c on su me d e arl ie r i n th e da y pr ior to his death. At best, the evidenc e prese nted by Shawn L enn, the missing w itness, would have be en cumulative as to this issue. Thus, subjectively , we f

ind t h at t h e failure of the State to disclose the exculpatory memorandum to the de fense in a timely fashion was not prejudicial to the def ense a nd does not

war rant re versa l. The Appe llant also prese nts to the Court the question whether t h e ev i dence prese nted supports the verdict rende red by the jury . We have pr eviously rec ited the fa cts which the jury hear d. Th e jur

y fo un d th e Ap pe lla

nt guil ty of mur de r i n th e se c on d d e g re e a nd re c kle ss endang erme nt. Upon appea l, the State is entitled to the strong est leg itimate view of the e vidence in its favor. S

t a t e v . P rit c he tt , 524 S. W.2 d 4 70 , 4 72 (T e nn . 1 97 5) ; Sta te v . H ill , 598 S.W .2d12 815, 818 (Tenn. Crim. App. 1980) perm. app. de nied . A ver dict rende red a g ainst a def endant

remove s the presumption of i nnocenc e, and, upon appea l, raises a presumption of g uilt, which the Appellant must overc ome. Sta te v . S mi th , 868 S.W .2d 561, 569 (Tenn. 1993) . After car eful consideration of the evidenc e pre sented, we find that there was subst antial evidenc e to support the fi nd ing of the jur

y in bo th c ounts of the ind ic tme nt. Th is a ssi g nme nt o f e rr or lik e wi se mus t be re spectfully

denied. Th e Ap pe lla

nt a lso su g g e sts to the Court that in de te rm ini ngwh e the r t

he jur y pr op e rl y de c ide d th e iss ue s, the Court mus t c on sid e r t

he a bs e nc e of Sha wn L e nn . We have pr e vio us ly discussed at leng th the eff ect of L enn' s absenc e, and find that his failure to testify is not a fac tor which the Court should consider in determining the weig ht and suffic iency of the e vidence . As we have pre viously

found, t he record does not contain direct testimony as to the knowledg e of the missing individual, Shawn L enn, and upon the hea rsay information containe d in the rec ord, we f ind that had such testimony been properly prese nted in the re cord, it would have been e ither

c umu la tiv e or

c oll a te ra l. T his iss ue is w ith ou t me ri t. Finally , the Appellant argues t hat t he Trial Court failed to proper ly follow the sentenc ing g uidelines se t f

o rth u n d e r T e n n e s s e e la

w . O n th is is s u e , w e mu s t c o n c u r , an d w e mo d if y the

se nte nc e or de re d b y

the Tr ia l Co ur

t. The Tr ial Court sentence d the def endant to ser

ve twenty y ea rs as a

Standard, Rang e I offe nder, f

or his c onviction f

or second- deg ree murder, and sentenc ed the de fenda nt to serve two y ear s for re ckless enda

ng erme nt, a lso as a Standar d, Rang e I offe nder. Te nnessee law provide s that the ra ng e of punishment for

second- deg ree murder, a C lass A felony , is fiftee n to twenty -five y ear s. Tennessee Code Annotated § 40-35-112 (A1) (1990). L ikewise, Te nnessee law provide s the ra ng e of punishment for

rec kless endang erme nt, a Class E felony , to be not less than one nor more than two y ear s. TennesseeCode Annotated §40-35-112 (a) (5) ( 1990). Upon re view of a sentence, w e must conduct a de novo revie w of the sentenc ing issues r aised on a ppeal. Sta te v. Fletc her , 8 05 S.W. 2d

78 5, 78 6 (T e nn . Cr im. Ap p. 19 91 ). Whe re the re c or d d oe s n ot r e fl e c t, howeve r, that the T ri al Court properly considere d the provisions of the Te nnessee SentencingT he 1 9 9 5 A ct s o f t he T enness ee Le gi sl at ure now req ui re a j ud ge t o co nsi d er t he p res um p t i ve sent ence f o r a 1 C la ss A felo n y to b e the m id -p o int o f t h e ra n g e w h e re the re a re no e n h a n c e m e n t o r m iti g a ting fac to rs . Te nnes s ee Code Annot at ed § 40- 35- 210 ( c) ( 1995 Su pp. ) T h e Appel l an t , h owe v er , i s e n t i t l ed t o be sent enced unde r t he t erm s o f t he p ri o r l aw which provided t hat t he p res um p t i ve sent ence wa s t he m i ni m um se n te n c e in the ra n g e fo r a ll c la sse s o f f e lo n ie s. Te nnes s ee Code Annot at ed § 4 0

- 3 5

- 2 1 0 (19 9 0 ).

13 Act, the pr esumptions of corr ectne ss which otherwise apply to the sentenc e dete rmined by the Trial Court fa il. State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991). The burde n of showing that the sentenc e is improper is upon the Appe llant. Id. I n sentenc ing a def

endant, the Court must first consider the pre sumptive mini mum

se nte nc e pr ov ide d b y

law, and the n d e te rm ine wh e the r t hat sen te nc e sh ou ld be inc re a se d d ue to statutorily provided e nhance ment fac tors, or re duced due to statuto ri ly provided mitigating fac tors. TennesseeCode Annotated §40-35-210 ( c) ( d) (e ) (1990)

. 1 The Tr ial Court found that the cr ime was " an espe cially viole n t an d horrify

ing a nd

re pr e he ns ibl e of

fe ns e ," and

that " the re se e me d to be no he sit a tio n ab ou t com mit tin g the c ri me in which the risk to human life w as hig h." T he Court furthe r found that the A ppellant was on probation for

assault, a c rime of violenc e, and f or those re asons sentenc ed the Appe llant to serve twenty y ear s fo r m u rder in the second- deg ree . Appar ently using the same c riteria, the Trial Court se nte nc e d th e Ap pe lla

nt to th e max imum o f t wo y e ars fo r t

he c ri me of

re c kle ss endang erme nt. TennesseeCode Annotated §40-35-114 pr ovides fac tors the sentenc ing Court

may c on sid e r fo r pur

po se s of enha

nc ing or inc re a sin g the punis hme nt o rd e re d f or a de fe nd a nt. TennesseeCode Annotated §40 -3 5- 11 4 ( 19 95 Sup p. ). We f ind that the Tr ia l Court

imp ro pe rl y applied T en n es s ee C

o d e A n n o t a t ed

§ 4 0 -3 5 -1 1 4 (10

), that the " defe ndant had no he sitation about committing a c rime whe n the risk to hu m an l i fe was hig h." G iven that the re cord doe s not clea rly demonstrate that there w ere individuals other than Har tley and Ve rnon Sug g s in dang er of be i ng wounded, we conclude that the hig h risk to human life wa s inherent in the of fense s committed. See Tennessee Code Annotated § 4 0- 35 -1 14 Se nte nc ingCom mis sio n Co mme nts ; State v. Butler , 900 S.W .2d 305, 314 (Tenn. Crim. App. 1994) . That the off ense w as " an espec ially violent and horrif

y ing a nd repr ehensible of

fense " i s n o t a fa ctor whic h may be statutorily considere d to enhanc e the punishment provided f or a de fenda

nt, and we must consider14 that the leg islature intended those fac tors to have be en made a part of the minimum sentenc e for

a c ri me of mur de r i n the se c on d- de g re e , a Cla ss A fe lony . Simi larl y , a s the State a c kn ow le dg e s, the Court may

not consider whe ther the D efe ndant was, at the t ime, on probation for a cr ime of viole n c e . T h e Co u rt c o u ld h a v e c o n s id e r e d

th is f a c to r in d e te r mi n in g w h e th e r

th e sentenc e place d upon the Appellant wa s to be serve d concurre n tly or conse cutively , but it is not an ap p ro p ri at e e n hance ment fac tor. Co m p a r e , Te n n e ssee Code Annotated §

40-35-114 ( 1995 Supp.) with TennesseeCode Annotated §40-35-115 ( 1990). The State sug g ests that the Trial Court fur ther a pplied the following enhanc ement fa ctor: "T he def endant possesse d or employ ed a f irea rm, explosi ve d ev i ce or other de adly wea pon du ri ng th e com mi ss io n o f t he off ens e." TennesseeCode Annotated §40-35-114 ( 1995 Supp.). The re cord r efle cts that the Tria l Court did not apply this enhanc ement factor. Upon our de novo revie w, howeve r, we find that it is applicable to the def endant’ s s en t en ce fo r sec ond deg ree murder since t he use of a firea rm is not an eleme nt of that offe nse. State v. Raines , 882 S.W .2d 37 6, 38 5 ( Te nn . Cr im. Ap p. 19 94 ); B u t l e r , s up ra at 312-313. This enha nceme nt fac tor is not

a pp lic a ble to t he d e fe nd ant’ s se nte nc e fo r r e c kle ss e nd ang e rm e nt b e c a us e fe lony

re c kle ss endang erme nt require s the use of a deadly wea pon. Tennessee Code Annotated § 39-13-103( b) (1991). In addition, du e t o t h e def endant’ s prior convic tion for assault, we find that the

“ pr e vio us his tor

y of c ri min a l c on vic tio ns or

c ri min a l be havio r” e nh anc e me nt fa c tor is a pp lic a ble to t he de fe nd a

nt’ s se nte nc e s f

or bo th s e c on d d e gree mu rder a nd re c kle ss e nd a ng e rm e nt. TennesseeCode Annotated § 40-35-114( 1) (1990) . Fur thermore , with reg ard to the de fenda nt’s sentenc e for rec kless endang erme nt, we find TennesseeCode Annotated § 40-35-114( 12), that “[d] uring the commission of the fe l ony , the def endant willfully

inflicted bodily

injury upon another person,” to be applicable

. As a re sult, we conc lude that there are two enhanc ing f actor s pr op e rl y a pp lic a ble to e a c h o f t

he de fe nd ant’ s se nte nc e s. The Appe lla nt sugg ests that four mitigating f actor s should be applied: (1) that the de fe nd ant a c te d und e r s tr on g pr ov oc a tio n; (2 ) that subs tanti a l gr ound s existe d ten din g to e xcu se or justify the ac t i ons of the def

endant thoug h failing to establish a def ense; (3) that the15 defe ndant suffe red a

phy sical or menta l condition significa ntly reduc ing his c ulpability

for the commission of the offe nse; and (4 ) t h at t h e defe ndant committed the offe nse under unusual circ umstances suc h that it was unlikely that the def

endant sust ai ned intent to violate the law. TennesseeCode Annotated §40 -3 5- 11 3 (2 ), (3 ), (8 ), (1 1) (1 99 0)

. Th e se nte nc ing c ourt fa ile d to addre ss any of t hese mit igating factors, and we find from the silent rec ord that the Court found them all to be inapplicable . We concur

. The evidence fails t o establish provocation sufficient to ap ply thi s enh anc e me nt fa c tor
. Th e pr oo f sho ws that the Ap pe lla nt h a d b e e n in

jur e d s ome months before in a horsepla y ing inc ident, t h e injury

having been oc casione d by the dec ease d. The e vidence further showed that the victim may have been ang ry at the time he arr ived at the Appellant' s fathe r' s residenc e, although thi s fac tor was c ontroverte d. These f actor s, though, a

re insufficient to establish any provocation for the killi n g of the victim. We fail to find any

e vid e nc e wh ic h w ou ld te nd to exc us e or jus tif y the a c tio ns of the Ap pe lla nt i n k ill ingthe vic tim , nor do we find the phy sical disability from which the Appellant suff ere d, being his prior injury

occa sioned by

the ca rele ssness of t he victim to establish mitigating fac tors. Finally , we f ind no unusual circ umstances sufficient t o find that it is unl ikely that the Appellant sustained the intent to v iol a te the law i n th e ki ll in g o f the v ic tim . We a lso fi nd no e vid e nc e that any

of the se mitigating fac tors is applicable to the c onviction for re ckless enda ng erme nt. After consideration of the issue of sente ncing , upon our de novo re vie w, we fi nd that it is appropriate to modify the s entenc e which the Trial Court imposed upon the Appe llant for the of fe ns e of mur de r in the se c on d- de g re e , an d fin d tha t a sen te nc e of se ve nte e n y e a rs in t he state penitentiary

as a Standa

rd, Rang e I , thirty

perc ent offe nder is appr opriate. W e find further that

a se nte nc e of

on e y e ar i n th e state pen ite nti ary , to be se rv e d c on c ur re nt w iththe oth e r, is

a pp ro pr ia te fo r t

he de fe nd ant’ s c on vic tio n f or re c kle ss e nd ang e rm e nt. We theref ore a ffirm the de cision o f t h e Trial Court, and modify the sentenc e orde red. AFF I RMED AS MODI FI ED.

R O B E R T E

. C O R LE W , III16 SPEC I AL J UDGE

CO NC UR :

GARY R. WADE, J UDGE

DAVI D H. WEL L ES, J UDGE17 I N THE COURT OF CRI MI NAL APPEAL S OF TENN ESSEE A T N A S H V ILLE

STATE OF TENNESSEE ) NO. 01C01-9411-CC-00390 ) Appellee , ) DI CKSON COUNTY ) vs . ) HO NO RA B L E A L L EN W. WA L L AC E ) CI RCUI T COURT J UDGE CAL VI N WAYNE SUGGS, ) ) (SECOND-DE GREE MURDER AND) Appellant. ) RECKL ESS ENDANGERMENT)

JUDG MENT Came the Appe llant, Calvin W ay ne Sug g s, by and through counsel, and also the Attorney Gene ral on behalf of t he S tate, who submitt ed thi s cause to the Court upon briefs, a nd the entire

rec ord on appe al from the Circuit Court for Dickson County , Tenne ssee, a nd upon consideration there of, we find that the judgme nt of the Trial Court should be af firmed, in that the De fenda nt is guilty of murder

in the second- deg ree , and rec kless endang erme nt. A fter c onsideration of the sentenc e imposed by

the Trial Court, we find that the sentenc e should be modified, in that the Appellant shall ser

ve seve nteen y ear s in the Tenne s s ee State Penitentiary for the of

fense of

mur de r i n th e se c on d- de g re e and on e y e ar i n th e State Pe nitent iar y for the of fe ns e of re c kle ss endang erme nt, those sentence s to run concur rently

. I n acc ordanc e with the Opinion f iled here in, it is order ed and a djudge d by this Court t hat the jud g me nt o f t

he Tr ia l Co ur

t is a ff ir me d a s mod if

ie d. Th is c a

us e is r e mand e d to the Cir c uit Court of Dickson County for the c ollection of costs ac crue d below. B e c a us e the Ap pe lla

nt, Ca lvi n Way

ne Sug g s, is ind ig e nt, c os ts wi ll b e pa id b y the State of Tenne ssee. GARY R. WADE, J UDGE DAVI D H. WEL L ES, J UDGE ROBERT E. CORL EW, I I I , SPEC I AL J UDGE