FILED

September 15, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9708-CR-00343

)

Appellee, )

)

) HAMBLEN COUNTY

VS. )

) HON. JAMES EDWARD BECKNER

LARRY WILSON, ) JUDGE

)

Appellant. ) (Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

P. RICHARD TALLEY JOHN KNOX WALKUP

P. O. Box 950 Attorney General and Reporter

Dandridge, TN 37725

SANDY C. PATRICK

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0943

BERKELEY BELL

District Attorney General

JOHN DUGGER

Assistant District Attorney

510 Allison Street

Morristown, TN 37814

OPINION FILED ________________________

MODIFIED AND REMANDED

JERRY L. SMITH, JUDGE
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OPINION

On March 12, 1997, a Hamblen County jury found Appellant, Larry

Wilson, guilty of reckless homicide. The jury imposed a fine of $5,000. After a

sentencing hearing, the trial court sentenced Appellant to the maximum

penalty of four years incarceration to be served as a Range I standard

offender. Appellant appeals from the trial court’s sentence, raising two issues:

1) whether the trial court erred in imposing the maximum sentence and

in failing to consider applicable mitigating factors, and

2) whether the trial court erred in denying Appellant probation or spilt

confinem ent.

After a review of the record, we modify the judgment of the trial court to

reflect a sentence of three years with one year incarceration followed by two

years of supervised probation.

FACTS:

According to testimony presented at trial, Appellant and his brother,

Randy Wilson, the victim, had a strained relationship for many years. The

victim threatened Appellant’s life on many occasions. On the morning of the

homicide, around 4:30 in the morning, the victim and his girlfriend, Rocky

Ward showed up unannounced at Appellant’s door. Appellant allowed the two

to sleep in his home until sometime after midday. Appellant testified that the
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victim and Ms. Ward appeared to have been under the influence of drugs and

alcohol. The pair left the farm around two o’clock with Ms. Ward going

sometime in the evening to pick up her son for her summer visitation with him.

Randy Wilson returned to the farm late that evening, and Ms. Ward arrived

with her fourteen year old son and her five year old daughter to m eet him

around 11:30.

Randy Wilson was reclining on the porch, and when Ms. Ward arrived,

she did not immediately see him. So Ms. Ward went into the shed where

Appellant was working and asked him where Randy was. Appellant pointed

toward the house. Ms. Ward then got her children out of the car, slamming the

car door in the process. When Randy Wilson heard the car door he sat up,

and Ms. Ward joined him on the porch. 

Randy Wilson and Ms. Ward checked for the key on the porch, and, not

finding it, Ms. Ward returned to the shed to ask Appellant for the key. She got

no response from Appellant, and returned to the porch without the key. Randy

Wilson then stated that he would get the key and went to the shed. A few

seconds after Randy Wilson entered the shed, Appellant shot him. Randy

Wilson turned to leave the shed, holding his stomach, and Appellant followed

him out of the shed, shooting him in the back. Ms. Ward and her two children

fled the property, hearing a third shot as they ran. Ms. Ward flagged down a

car which took her to call the authorities.

The victim’s body was recovered at the scene with three gunshot

wounds to the body (and an additional wound to the hand which could have
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been from the same shot as one of the wounds to the body): one shot to the

chest which crossed through the chest wall and the top of the victim’s liver,

another shot to the abdomen which went through the top of the left kidney,

injured the spleen and passed through the victim’s stomach, and a third shot

which entered high under the victim’s jaw and exited just below his ear,

severing the carotid artery. According to medical testimony at trial, either of

the first two wounds would have been fatal had the victim received extensive

medical care within thirty minutes of receiving either wound. The third shot

caused death instantaneously.

Appellant initially denied killing his brother, but eventually signed a

statement admitting to shooting Randy Wilson after his brother threatened to

“blow his brains out” if he did not give the victim the key to his house.

Appellant was afraid of the victim as a result of the victim’s prior threats to kill

him and felt that, if he did not protect himself, the victim would shoot him.

Appellant further testified that when the victim turned to leave the shed, he

feared that the victim would retrieve a gun from his car and return to kill him.

Though the victim was unarmed at the time of the shooting, undisputed

testimony was presented that the victim always carried a gun, usually wore a

bullet proof-vest, and had a reputation for violence.

I. Length of Sentence

 Appellant argues that the trial court erred in imposing the maximum

sentence for this crime. When a defendant complains of his or her sentence,

we must conduct a de novo review with a presumption of correctness. Tenn.
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Code Ann. § 40-35-401(d). The burden of showing that the sentence is

improper is upon the appealing party. Tenn. Code Ann. § 40-35-401(d)

Sentencing Commission Comments. This presumption, however, is

conditioned upon an affirmative showing in the record that the trial court

considered the sentencing principles and all the relevant facts and

circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

The Sentencing Reform Act of 1989 established specific procedures

which must be followed in sentencing. These procedures, codified at Tenn.

Code Ann. § 40-35-210, mandated the court’s consideration of the following:

(1) The evidence, if any, received at the trial and the

sentencing hearing; (2) [t]he presentence report; (3)

[t]he principles of sentencing and arguments as to

sentencing alternatives; (4) [t]he nature and

characteristics of the criminal conduct involved; (5)

[e]vidence and information offered by the parties on the

enhancement and mitigating factors in §§ 40-35-113

and 40-35-114; and (6) [a]ny statement the defendant

wishes to make in his own behalf about sentencing.

T.C.A. § 40-35-210.

This section further provides that the minimum sentence within the

range is the presumptive sentence. The court must begin with the minimum

sentence and enhance that sentence to appropriately reflect any statutory

enhancement factors that the court finds to be present. After enhancing the

sentence, the court must reduce the sentence giving consideration to the

weight of any mitigating factors that the court finds. The weight to be given

each factor is left to the discretion of the trial judge. State v. Shelton, 854
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S.W.2d 116, 123 (Tenn. Crim. App. 1992). Because we find the trial court

erred in rejecting a number of applicable mitigating factors out of hand, our

review of the sentence in this case is purely de novo.

Having been convicted of a Class D felony as a Range I standard

offender Appellant is subject to a minimum sentence of two years and a

maximum sentence of four years. The trial court found that two enhancement

factors were applicable, i.e., Appellant treated Randy Wilson with exceptional

cruelty, Tenn. Code Ann. Sec. 40-35-114(5), and Appellant used a firearm in

the commission of the offense, Tenn. Code Ann. Sec. 40-35-114(9). The trial

court declined to find that any of the mitigating factors offered by Appellant

were applicable to the case. It is from the refusal on the part of the trial court

to apply any of these mitigating factors that Appellant appeals.

Appellant urged the trial court to apply the following mitigating factors to

his sentence:

(2) the defendant acted under strong provocation;

(3) substantial grounds exist tending to excuse or

justify the defendant’s criminal conduct, though

failing to establish a defense.

(8) the defendant was suffering from a mental or

physical condition that significantly reduced

culpability for the offense; and

(11) the defendant, although guilty of the crime,

committed the offense under such unusual

circumstances that is unlikely that a sustained

intent to violate the law motivated the conduct.

Tenn. Code Ann. § 40-35-113.
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We will address the applicability of each factor in turn.

Strong Provocation.

The evidence in this record is undisputed that Appellant was a peaceful

man who had never been in trouble before in his life. Likewise it is

uncontradicted that Randy Wilson was a violent man who wore a bullet proof

vest and went armed virtually all the time. Randy Wilson had intimidated his

brother, the Appellant, for years through threats and belligerent behavior. 

Indeed the mother of both Appellant and Randy Wilson testified that the latter

was so violent she was scared of him and actually slept with a baseball bat to

protect herself from her own son. Appellant testified that at the time of the

shooting his brother threatened to kill him as he had many times previously.

It is obvious the jury believed that Appellant acted under some degree

of provocation that reduced his culpability for the homicide. Although originally

indicted for second degree murder, i.e. a “knowing” killing the jury found

Appellant guilty of only the “reckless” killing of Randy Wilson. We believe that

under the circumstances the trial court should have found that Appellant when

he shot Randy Wilson was acting under strong provocation.

Substantial Grounds Exist Which Tend to Excuse Appellant’s Conduct.

From its verdict it is clear that the jury rejected the notion that Appellant

acted in a manner which would constitute the complete defense of self

defense thereby excusing Appellant from criminal responsibility altogether. 
1

The trial judge in rejecting this mitigating factor indicated that the jury’s having apparently taken

this factor into account in reaching its verdict precluded him from considering it. We know of no case or

statute which mandates such a conclusion.

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However, for the reasons stated in the preceding section it is also clear that

the jury did not believe Appellant to be guilty of a murder or any intentional

homicide. Since Appellant admitted shooting his brother repeatedly we are

left to conclude that the jury must have believed that Randy Wilson’s previous

threats and his reputation for violence and going armed tended to excuse the

Appellant’s conduct.1 From the record we agree and find the trial court should

have applied this mitigating factor to Appellant’s sentence.

Appellant’s Mental Condition.

Expert testimony established that Appellant had a low I.Q. although he

was not retarded. He also suffered from a form of post-traumatic stress

syndrome. However, Appellant was a fully functioning individual who ran a

farm, dated, and took care of his elderly aunt. He had never been treated for

mental or em otional problems. Under these circumstances the trial court did

not err in rejecting this mitigating factor.

Sustained Intent to Violate the Law.

The uncontradicted proof in the record revealed that Appellant is a

peaceful man who has never crossed paths with the law prior to this incident. 

By all accounts he led a quiet life on his family farm where he cared for an

elderly aunt. Again, it is apparent from its verdict that the jury found the killing

of Randy Wilson to be at most an isolated act motivated by fear and
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intimidation. We find that Appellant’s actions were not motivated by a

sustained intent to violate the law. This factor should have been applied to

Appellant’s sentence.

In summary is it the opinion of this Court that mitigating factors (2), (3)

and (11) apply to the sentence in this case. In balancing these factors against

the substantial weight accorded by the trial court to the applicable

enhancement factors we modify the sentence of four years to one of three

years in length.

II. Alternative Sentencing

Appellant further challenges the trial court’s order that he serve the

entirety of his sentence in confinement. The Sentencing Reform Act requires

the trial court to begin its consideration with the presumption that the appellant

is subject to alternative sentencing if he meets the requirements of Tennessee

Code Annotated § 40-35-102(6), which requires that the appellant not fall

under Tennessee Code Annotated § 40-35-102(5) and that he receives a

sentence of less than eight years. This means that the defendant must be a

standard or mitigated offender, convicted of a Class C, D, or E felony who

cannot have a criminal history evincing either “clear disregard for the laws and

morals of society” or “failure of past efforts at rehabilitation.” Tenn. Code Ann.

§ 40-35-102(5). Appellant clearly falls within the parameters of the
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presumption that he is entitled to a sentence other than continuous

confinem ent.

The presumption that Appellant is a candidate for alternative sentencing

does not settle the matter. This presumption may be rebutted by “evidence to the

contrary.” Tenn. Code Ann. § 40-35-102(6). Tennessee Code Annotated § 40-35-

103 gives guidance as to what may be considered in making this determination:

(1) Sentences involving confinement should be

based on the following considerations:

(A) Confinement is necessary to protect

society by restraining a defendant who has a long history

of criminal conduct;

(B) Confinement is necessary to avoid

depreciating the seriousness of the offense or confinement

is particularly suited to provide an effective deterrence to

others likely to commit similar offenses; or

(C) Measures less restrictive than

confinement have frequently or recently been applied

unsuccessfully to the defendant.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this case, the trial court

found that confinement was necessary to avoid depreciating the seriousness

of the offense. The trial court specifically based the sentence of continuous

incarceration upon the lawlessness of society saying, “so what should the

message be?”. In my opinion, probation would say that it’s okay to go back to

lawlessness in a time when violence causes all of us to live in fear. What we

need more of, folks, is just plain old law and order, and then if you kill

someone and it’s not in self-defense, and you know what you’re doing, and

you do it cruelly, you go to jail. Those are hard words, but they’re true. So

that’s the message.” 
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We agree with the trial court that this case is serious and that some

incarceration is necessary to avoid depreciating this fact. However, Tenn.

Code Ann. Sec. 40-35-103(4) cautions us that:

The sentence imposed should be the least severe

measure necessary to achieve the purposes for

which the sentence is imposed.

The homicide in this case is not only serious, as is any hom icide, but it

is also tragic. Here one otherwise law abiding brother is apparently driven to

kill his violent sibling through threats and intimidation meted out by the latter

for the better part of a lifetime. As stated previously, although Appellant

cannot and should not be completely relieved of criminal responsibility for his

actions, a sentence of continuous confinement in the penitentiary does not

appear to be the least severe measure necessary to avoid depreciating the

seriousness of the offense. It is our opinion that pursuant to Tenn. Code Ann.

Sec. 40-35-306, Appellant should serve a sentence of one year in the county

jail or workhouse followed by a period of two years supervised probation upon

such terms and conditions as the trial court may deem appropriate.

The judgment of the trial court is modified to reflect a sentence of three

years to be served as set forth hereinabove. This case is remanded to the

trial court for further proceedings consistent with this opinion.

____________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

THOMAS T. WOODALL, JUDGE

___________________________________

WILLIAM B. ACREE, SPECIAL JUDGE