### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs F eb ru ar y 6, 200 7

STA TE OF TEN NES SEE v. AD RIA N P ORT ERF IELD

Appeal f rom the Cr im inal Cou rt for Shelby Coun ty No. 02-02442 F red W. Axley, Judge

No. W2006-00169-C CA-R 3-CD - F iled October 15, 2007

The de f e n d an t, A dr ia

nPo rte r f ie ld
, w a s c o n v ic te d

b y a Sh e lb y Co u n ty ju r y o f v o lu n ta ry

mans la ug hte r, a Cla ss C fe lony , an d wa s sen te nc e d to ser ve fo ur y e ars and six month s in the c ounty

w o r kh o u s e a s a

Ra n g e I
, s ta n d ar d o f f e n d e r

. O na

p p e a l, th e d e f

e n d an t c h a ll e n g e s th e tr ia l c o u rt’s judgme nt on gr ounds that: (1) the e vidence was insufficient to support his conviction; (2) the trial court e rre d in denying his motion to sever his trial fr om that of his co-de fenda nt; (3) the trial c ourt

err ed in admitting a

hear say statement by

the victim; (4) the trial court e rre d in not allowing e vidence of drug s found on the victim’s body ; (5) the tria l court er red in not allowing testimony of a state ment the victim made to pol ice reg arding his involvement in a robbe ry of the de fenda

nt; (6) the trial c ourt

err ed in deny

ing alternative sentenc ing; and (7) the leng th of his se ntence is e x cessive. We affir m the trial cour

t but remand the c ase f

or a c orre cted judg ment beca use the sente nce imposed in the judgme nt conflicts with the sentenc e re flec ted in the sentenc ing he aringtranscr ipt.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t A ffirm e d; Ca se Re m ande d for Co r r e c ti on o f Judg m e nt

J OS EP H M. T I PTON , P.J
., delivere d the opinion of the cour t, in which J OHN E VE R E TT W I L L I AMS and D. K EL L Y T HOMAS , J R ., J J ., joined.

L eslie I . Ba llin and Gray

W. Bartlett, Memphis, Tenne ssee, f or the a ppellant, Adria

n Porterfie ld.

Rob ert E. Coo pe r, Jr., Attor ne y Ge ne ra l and

Re po rt e r; J. Ros s D y e r, As sis tant A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and Gl en C

. Ba ity , Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

This cas e ar o s e fr o m the death of Dar ryl Clay on October

26, 2001. The de fenda

nt was ind ic te d f or se c on d d e g re e mur de r, a lon g wi th E ri c John so n, wh o w a s a lso c ha rg e d w ithtw o c ounts of re c kle ss e nd ang e rm e nt. At the ir joi nt t ri a l, t he vic tim ’s fo rm e r g ir lf

ri e nd , Sh a

un a Parh am, testified t hat s he was living with the victim at a re sidence on Over ton Crossing in Shelby

County at-2-

the tim e of the vic tim ’s de a th. She sa id that on the e ve nin g of Oc tob e r 2 6, 20 01 , s he wa s at ho me with her thre e children, the victim, the victim’s ne phew Demar cus Br own, and Fe licia J ackson. She said that at ar ound 10:00 p.m., the victim and Mr. Br own left the house and that she unde rstood that they wer e g oing to the s tore. She said that was the last time she saw the vi ctim alive. At some point that evening , she wa s summoned to the Mapco store about a b l o ck away from her house by two ind ivi du a ls w ho sa id t

he vic tim wa

nte d to se e he r. She sa id sh e we nt t o M a pc o b ut t hat by the tim e she g ot there, the victim was in an ambulanc e.
Ms. Parham identified photogra phs of a g unshot hole, which she said she di scover ed in her tw e lve -y e ar o ld s on ’s be dr oo m in the mor nin g of Oc tob e r 2 7, 20 01 . She sa id that at some po int in the e ve nin g of

Oc tob e r 2 6, sh e wa s si tti ngin the de n of he r hou se , whi le he r s on wa s in his be dr oo m, when she hear d a noise that she de scribed as “like a be ll sound.” She said she did not own a we apon. Ms. Parham denie d that she, Brown, or the vi ctim was drinking on the e vening of Oc tober 26. She acknow ledg ed that the victim was arre sted on Aug ust 21, 2001, for a g g ravated robbe ry and that she helped him make bond on Septe mber 4, 2001, but she said she had no knowledg e of the underlying fac ts of that char g e. She said the vic tim was known by the nickname “B arny ard.”

Serg eant Timot hy Gre en of the M emphis Police Depa rtment testified t hat he was working in the depar

tment’s robber

y burea u in Aug ust 2001. He said he investigated a robber y during that time that involved the defendant as a victim and Darryl Clay as the suspec t. I t was alleg ed in that

c a se that th e de fe nd ant a

nd tw o o the r m e n w e re in an a pa rtme nt o n O ve rt on

Cr os sin g in t

he e a rl y morning of August 21, 2001, when the victim, wie lding a pistol, for cef ully enter ed and de manded money . Serg eant Gr een sa id he spoke w ith the defe ndant during his investigation of that case

. Se rg e ant Gr e e n s a id t

he de fe nd ant s ta te d th a t he wa s g oin g to k ill the pe rs on wh o r ob be d h im. Serg eant Gr een a lso testified that he believe d the defendant also said he was afr aid Darryl Clay was g oin g to k ill him

.

Demar cus B rown testified that he was with the vi ctim, his uncle, on the e vening of Oc tober 26, 200 1

. H e s a id

th a t t h e y w e r e to g e th e r

a t t h e v ic ti m’ s h o u s e w it

h M s

. Pa r h a m, M s

. Parham’s

c hil dr e n, and

F e lic ia Jac ks on . A t so me po int

in t he e ve nin g , M r. B ro wn

and the vic timle ft

the ho us e to visit someone named Ms. J ean a nd her son, Rufus, who lived in t h e W illows apartments on Over ton Crossing. Af

ter visiting a

nd playing c ards, Mr. Br own and the vic tim walked to the Mapc o
acr oss the street f

rom the apa

rtment s t o b u y ci garettes for Rufus. The y returne d to Ms. J ean’ s apar tment, and Ms. J ean g ave the victim a plate of food. Mr. B rown said he and the victim left the apar tment and wer e walking toward the parking lot whe n they wer e stopped by

a ca r full of wome n who wer e looking for someone called “ Pops,” who was a resident at the apar

tments. He said that while they

wer e talking to the women, Eric J ohnson, car rying a g un, “bumped” him while “talking smart under

his breath.” He sa id t hat he told the victim about J ohnson’s ca rry ing a g un and that J ohnson continued wa lking a way from them. He s ai d h e t h en looked ba ck to see the def endant exit ing f rom a g old car . He sa id the defe ndant walke d toward the vict i m , who was w alking awa y toward the corne r of the near est apar tment building

. He said that as the victim turne d the cor ner, he

saw the de fe nd ant sho oti ng a g un in the vic tim ’s dir e c tio n. He sa id he c ou ld n ot s e e the vic timwh ile-3-

the defendant was shooting because the vi ctim had turned the corne r towar d the apa rtment courty ard. M r. Br o wn s ai d

h e f i rs ts t o o d s t i l l b u tl at er

ra nt o an ad

j ac en tap ar t m en tb u i l d i n g.

Mr. B rown testified that the victim was not car rying a wea pon that night. He also denied that either he or the victim used m arijuana or drank alcohol that night. He said the vi ctim did not appea r to be intox icated. H e said that he could not reme mber what the victim was we aringthat night a nd that he did not know how many shots were fired. H e did not know exactly what time the shooting

occur red, but he knew it was some time be tween10:00 p.m. and mi dnight. He also testified that he did not actually

see the victim running, a lthough in a pr evious statement, he sa id the victim was running awa

y from the de fenda

nt. He said that the vic t i m was ca rry ing a plate of f ood when they

wer e wa lking outside tog ether but that he did not see the vic tim drop the plate.

Mark Ta y lor testified that in Octobe r 2001, he li ved in the Will ows apa rtments and that he

was a friend of the victim. Mr. Taylor’s apar tment w as on the g round leve l, acr oss a cour ty ard f rom Pop s’ a pa rtme nt, wh ic h wa s a lso on the g ro un d le ve l. B e tw e e n th e ir tw o a pa rtme nts wa s a

sta ir we ll that led to the hig her floors of each apartment buil ding. He said he was at home in the showe r on the nig ht of Octobe r 26, 2001, whe n he hea rd a gunshot. He s ai d h e ru s h ed out of the showe r without g etting dresse d, looked out a window, and sawthe def endant a nd the victim “scuff

ling” at the front door

of Pops’ apa

rtment. He sa id they

wre stled for a

bout two or three minutes, until the victim broke aw ay , ran i n s i d e P o p s’ apa rtment, and shut the door. Mr . Taylor said Eric Johnson appea red a nd assisted the def

endant in trying to push the door open. He said the victim ran out of the bac k door o f t h e apartment and wa s followed by the def endant a nd J ohnson. He said he then hear d three more gunshots and saw the defendant and J ohnson firing g uns. He said he g ot dressed

and we nt t o th e Ma

pc o, wh ic h w a s a c ro ss t

he str e e t f ro m th e a pa rtme nts

. Th e re , he saw the vic tim sitti ng ag ainst some drinks.

On c ro ss- e xami natio n, Mr . T ay lor wa s q ue sti on e d a

bo ut tw o wr itt e n s ta te me nts he g a ve to police about this incident, one in the e arly morning of Oc tober 27 a nd an o t h er i n the af

ternoon of October 28. He a cknowledge d that the statements mention nothing a bout the victim or the defe ndant’s ente ring Pops’ apar tment. He also acknow ledg ed that his statement of October 27 stated that he he ard

a g un sh ot w hil e the vic tim and de fe nd ant w e re sc uf

fl ing , b ut h e de nie d th a t he a c tua lly said that and maintaine d in his testim ony that he did n o t h ea r a gunshot at that time. He said that when he was looking out the window to wher e the victim and de fenda nt were scuff

ling, he was not

wea ring his gla sses. He acknow ledg ed that he said in a prior state ment to police that he c ould not

rea d or write w ithout his g lasses, but he testified that he could see well without his g lasses, as long as the a rea was we ll-lit. He said t h at h e had a direc t view of the vic tim and defe ndant when the y
wer e in front of

Pops’ apar

tment and t hat hi s view was not obstructed by the stairwe ll. He said that wh e n h e he ard

the thr e e g un sh ots , th e vic timwa s r un nin g awa

y fr om the de fe nd ant a

nd John so n w ith h i s b ac k t o wa rdt h em

. He s ai d

h e d i d n o tk n o w w h a t k i n d

o f gu nt h e d ef

en d an twa s s h o o t i n g, althoug h he opined that it was a nickel-c oated .380 or

9 mm. He a cknowledg ed that in a pr evious statement, he sa id the g un was a silver .45. He sa id he was certa in he saw the defe ndant and Johnson shooting at the victim.-4-

Memphis Poli ce D epar

tment Office r Ke nneth Fr azier t estified that on October 26, 2001, he

wa s o nh i s wa y

t o w o r k t h e m i dn i gh ts h i ft wh en h e s t o p p edat t h e M ap co n ea r O v er t o nC ro s s i n g. He sa id h e wa s g e tti ngc of fe e wh e n the vic tim c a me in an d sai d he ha d be e n sho t. He sa id t he vic tim was “ very excited and scre aming and hollering .” Of fice r F razier asked the victim what ha ppened, and the victim replied that “Porterf ield had rode up on him in a car and shot him.” Offic er F razier said that at the time, he didn’t know who Porterfie ld w as. He said that the victim was blee ding a nd that he sawwounds on the victim’s side, his arm, and his leg

. Memphis Poli ce D epar

tment O ffice r Daniel Parris testified that he was a crime scene office r
wo rk ingthe mid

nig ht s hif t on Oc tob e r 2 6, 20 01 . H e sa id h e wa s c a lle d to the sc e ne of a po ssi ble homicide at a Ma

pco store that night. In the store
, he found a white shirt and some blood on the floor. He said he wa s told to go to a house on O verton Crossing that was down the street f rom the store, whe re he took photogr aphs of what appea red to be a bullet hole in the front of a house. Off

icer Parris also rec overe d a spent bullet from the house. He did not rec all whether he went to the scene wher e the shooting of the victim t o o kplace , and he did not re member taking photog raphs of any doors at an a

partment c omplex

.

L ieutenant Anthony

Craig of the Memphis Police De partment testified that he was a ssigne d to investigate the victim ’s h o m i cide. He said that his investigation developed two suspec ts, the de fe nd ant a

nd c o- de fe nd ant Joh ns on . H e sa id h e sp ok e to Joh ns on on Oc tob e r 3 0, 20 01, w hil e J ohnson was in custody , and obtained consent to sear ch Johnson’s house. He said that off icer s found a .45 Smith & Wesson handg un and a ma g azine clip with sever al l ive rounds in J ohnson’s house and that John so n a c kn ow le dg e d th e y be lon g e d to him

. I n his state me nt to L ie ute na nt C ra ig , Joh ns on

sa id he shot at the victim in self-de fense

. J ohnson said that on the evening of October 26, 2001, he, the defe ndant, and a

friend na

med Marlo attended a pa rty and that he a

nd the def

endant we re later dropped of

f on C as s ie Avenue , from whe re the y intended to meet a

friend na med Way ne at the

a pa rt me n t s o nO v e rt o nC r o s s i n g

. H e s a i d t h e y h a d s t o p p e d t o u r i n a t e w h e nh e s aw t h e vic tim coming out of the apa

rtment complex with a gun. Johnson said t h e victim raised his g un at the de fe nd ant. John so n s a id h e tr ie d to shoo t fir st but wa s una ble to be c a

us e he did no t hav e his c lip in his g un . H e sa id t

hat th e vic timfi re d th e fi rs t sh ot an d th a t w hil e John so n w a s p utt inghis c lip in h is g un, four or

five more shots were fired. H e said that afte r he g ot the clip i n the g un, he turne d around and shot his gun onc e “out of fea r.” He said that he ran awa y and that he sawa per son car rying a g un by the vic tim ’s ho us e . Joh ns on sa id h e sh ot at the pe rs on . H e sa id h e sta y e d o n Ca ssi e Av e nu e un til about 1:00 or 1:30 a.m. bef ore g oing h o m e. I n his statement, J ohnson said that he hea rd the defe ndant fire his pistol but that he did not know whether the victim o r t h e d ef

endant fired more shots a fter the victim f

ired the first shot. L ieutenant Craig said J ohnson had alwa y s maintained that he shot at the victim in self-de fense

.

Te nn e sse e B ur e a

u o f I nv e sti g a tio n Sp e c ia l A g e nt D o n C a r m a n te sti fi e d th a t he wa s a

fo re ns ic scientist wh o examined evidence related to the victim’s homicide. He e x amined a .45 Smith & Wesson handg un and a spe nt bullet casing . He de termined that the bullet wa s .357 caliber and that it likely came from a revolve r, either a .38 specia l or a .357 mag num revolver . He wa s of the opinion-5-

that it wa s n ot f ir e d fro m th e .4 5 han dgun he e xami ne d. He sa id h e did no t r e c e ive a

bu lle t sh e ll casingthat matched the .45 handg un.

Dr. Ke nneth Snell testified as an e x pert in the fie ld of fore nsic patholog y

. He said he beg an working for the Me dical Examiner’s off ice in Oc tober 2004 an d that he re viewed r eports and photogr aphs re lated to the autopsy of the victim’s body

that was pe rfor

med by ano t h er doctor on October 27, 2001. Dr. Snell descr ibed the victim’s three g unshot wounds. The fir st wound was fr om a b u l l et t h at en t er edth e b ac k o f t h e v i ct i m ’s ri gh t s h o u l d er an d ri gh t ch es t ca v i t y , ca u s i n g d am age to the rig ht lung a

nd hear t. The bullet was r ecove red from this wound. The second was from a bullet that e nte re d the ba c k of the vic tim ’s ri g ht fo re arm and e xite d to the le ft of the e ntr y wo un d, a lso in the bac k of the a

rm. The third was from a bullet that enter ed the victim’s inner thigh fr om the front

and wh ic h e xite d f

ro m th e ba c k. No bu lle ts we re re c ov e re d fr om the arm and le g wo un ds . D r. Sne ll said the ca

use of de ath wa s t he g unshot wound to the shoulder/che st area . He sa id the other two

wo un ds we re no t f

a ta l.

Reg ardingthe direc tion from which the victim was shot, Dr. Snell testified that he only knew the pathwa

y of the proje ctiles and not t he posi tion of t he victim at the time he wa s shot. He said that it w a s p os sib le the vic timwa s f a c ing awa y fr om his sh oo te r bu t that it wa s e qu a lly lik e ly the vic tim and shooter wer e fac ing eac h other. He said the tox icolog y repor t indicated the victim had a blood alcohol content of .096. The tox icolog y repor t did not indicate dr

ug s in the victim’s sy stem. The

a uto ps y re po rt a lso no te d sev e ra l pre e xistin g sc ars on the vic tim ’s bo dy

and a blu nt f or c e inj ur y to the bac k of the victim’s hea d. Dr. Snell said he wa s u n ab l e to deter mine how the hea d injury

occur red.

Dr . Sn e ll t e sti fi e d th a t g un sh ot r e sid ue te sts are so me tim e s d on e on a uto ps y subj ect s to deter mine whether

someone ha d shot a g un. He sa id bodies sometimes come in with their “ha nds tag g ed,” me aning that law enf orce ment personne l had place d paper bag s over their

hands to preve nt g unshot residue fr om being wiped or w ashed a way befor e a gunshot residue test is perf ormed. He said that a gunshot residue test wa s not perfor med on the victim and that the victim’s hands ha d not been ta g g ed.

Th e de fe nd ant t e sti fi e d that in Au g us t 20 01 , h e did

no t kn owthe vic timbu t ha d s e e n h im around the Wil lows apar

tments, where the defe ndant lived at the time. He sa id that on Aug ust 21, 2001, h e wa s i n h i s apar

tment with his cousin and his cousin’s gir lfriend whe n the victim kicked down the door and enter ed with two g uns and a bullet-proof vest. He said that the victim demanded money at g unpoint and that he g ave the victim money out of fea r for his life. He sa id the victim then backe d out the apar

tment door and down the walkwa y . The de fenda

nt said he left his apa

rtment while the victim was still standing ne arby and we nt to the M apco acr oss the s tree t. He said he hea rd two g unshots a

nd walked to his mother’s house. He said he repor ted the robber

y to the police and tol d th e po lic e he wa s a fr a id o f t he vic tim , b ut h e de nie d ev e r say ing he wa s g oin g to k ill the vic tim

.

Th e de fe nd ant t e sti fi e d th a t th e ne x t ti me he saw t he vic tima ft e r t

he ro bb e ry

wa s in e a rl y September 2001. H e said he was surpr ised the victim was release d from jail so soon. He said that-6-

he wa s worrie d beca

use he knew the victim lived in his ne ighbor hood and that he told Of

fice r Gre en on three occa sions that he was a fra id of the victim. He said he saw the victim on another occa sion

c arr y inga sh otgun . H e sa id h e re c e ive d s e ve ra l th re a ts that the vic tim wa s g oin g to kil l him

. He sa id he re ceive d the last threat on October 25, 2001. He sa id that beca use of the de ath threats and fee ling that he nee ded to protec t himself, he beg an ca rry ing a g un.

The de fenda

nt describe d what tra

nspired on the e vening of Oc tober 26, 2001. He said that h e m e tc o

- d e f

e n d an tJ o h n s o na f

t e r J o h n s o ng o to f

f w o r k i nt h e e v e n i n g an d t h a t t h e y w e n tt o a p a rt y. He sa id they

left the pa

rty to pick up a fr iend who lived in the Willows apartments

. He sa id that another friend, A .J ., was driving and that af ter they pulled into the Wi llows ’ p arking lot, the defe ndant and J ohnson left the car and walked around the cor ner of the apa rtments to urinate. He

sa id t hat he fi nis he d b e fo re John so n a nd tha t w hil e wa iti ngfo r Joh ns on to f ini sh , h e he ard

the vic tim say , “I told you I was g oing to g et [y our] a --.” He said he saw the victim walking toward him, alone
, holding a plate of f ood, which he dr opped. He said the victim lifted a pistol and fired a shot. The defe ndant said he pulled out his g un, shot, and ran in the dir ection opposite the victim. He e stimated that he fire d a total of two or thr ee shots while he ran a way . He sa id that he was not hit and that he did not know whether

the victim was hit. He said he also did not know whether J ohnson ever

fired his gun. He sa id he ra

n back to A.J.’s car

and we nt to his m other’s house . He sa id he was a rre sted on J anuar y 20, 2003. The de fenda

nt maintained that he only shot at t he victim afte r t he victim fired the first shot and bec ause he thought the vic tim was g oing to kill him.

On cross-e x amination, the defe ndant said he did not repor t the death threats to the pol ice beca use he ha d alre ady told them he wa s afr aid of the vic tim. He said he did not ca ll the police when he first saw the victim car rying a s hotgun beca

use t he victim did not attack him or even see him at that time. He said he was awa re that the victim lived in the same ne ighbor hood and fr equente d the Willo ws a

pa rtme nts . H e sa id h e wa s n ot s ur e wh a t c a lib e r gun he ha d b ut k

ne w i t w a s a

sma ll revolve r. He said he ha d never owned a g un befor e. He said he knew J ohnson had a pe rmit to carr y
a g un. The defe ndant denied De marc us Br own’s and Ma rk Tay lor’s ver sion of events a

nd said he

never wre stled with the victim. He denied that he killed the victim out of reve ng e.
Memphis Poli ce D epar

tment Office r Winston W hite testified that on Aug ust 21 , 2001, he went to an apar

tment to arr est the victim in connec tion with an alleg ed robber y

. He sa id he ar

rested the victim a

nd sear ched the apa

rtment, finding two wea

pons, a bullet-proof

vest, and $190 in ca sh. A lady and anothe r man we re a lso in the apartment.

At the conc lusion of the evidenc e and a rg uments, the defe ndant was found g uilty of the lesse r included off

ense of voluntary manslaug hter. Co-defe ndant J ohnson was acquitted of cha rg es re lated to t he de a th o f t

he vi cti m bu t was c on vic te d o f t wo c ounts of

re c kle ss e nd ang e rm e nt r e la te d to g unshots fired at Ms. Parha m’s house.-7- I. SUFF ICIENCY OF THE E VIDENCE

The de fenda

nt cont ends that the e vidence was not suffic ient to support his conviction for voluntary manslaug hter. He argues that the evidenc e preponde rate s ag ainst g uilt and th at no evidenc e to re but the claim of self -def ense e x isted. The state c ontends th at t he evide nce w as sufficie nt.

Our standa

rd of r eview w hen the de fenda nt questions the s u ff

i ci ency of the e vidence on appea l is “whe ther, afte r viewing the evidenc e in the light most fa vorable to the p ro s ec u t i o n , any

ratio na l tr ie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble d o u b t

. ” J ac k s o nv

. Vi rgi n i a, 4 4 3 U. S

. 3 0 7
, 3 1 9
, 9 9 S

. C t

. 2 7 8 1
, 2 7 8 9 (1 9 7 9 ). W e d o n o tre we i gh the evidenc e; rathe r, we presume that the jury has resolved all conflicts in the testimony and dra wn all rea sonable infe renc es fr om the evidenc e in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984) ; State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978). Que stions reg arding witness cr ed i b ility , conflicts in testimony , and the we ight a nd value to be g iven to evidenc e we re resolved by

the jury . See State v. B land, 958 S.W.2d 651, 659 (Tenn. 1997).

The de fenda

nt was cha

rg ed with sec ond deg ree murder, w hich is th e u n lawful, knowing killing of a

nother. T.C.A. § 39-13- 201, -210. He was c onvicted of voluntar y manslaug hter, whic h

re qu ir e s “t he in tention a l or kn ow ingkil lin g of

ano the r i n a

state of pa ssi on pr od uc e d b y a de qu a te provocation sufficient to lead a rea sonable pe rson to a ct in a n irrational manner .” T.C.A. § 39-13- 21 1. Th e state pr e se nte d ev ide nc e a t tria l tha t the de fe nd ant, wh o ha d pre vio us ly sa id he wa nte d to kill the victim, approache d the unar med victim, be g an shooting at him, a nd wre stled with him before the victim ultim ately

died of a g unshot w ound. The defe ndant prese nted contra ry evidenc e that the victim had previously

threatened to kill the defe ndant, that the victim fired the first shot, and that the defe ndant only

fired ba ck in self- defe nse. Our code states that a per son who has re asonable fea r of imminen t d an ger, death, or se rious bodily injury is justi fied in using forc e in self- defe nse to the deg ree nece ssary

to protect a g ainst the other person’ s use of unlawful for ce. T .C.A. § 39-11-611.

I n convicting the def

endant of the lesser included off

ense of voluntary

manslaug hter, the jury appar ently

adopted a

version of e vents that combined the state ’s and de fenda nt’s proof

– t h at t he de fe nd ant s ho t th e vic tim un de r pr ov oc a tio n b ut t hat th e de fe nd ant w a s n ot j us tif ie d in us ingde a dly forc e. We conc lude that suffic ient evidenc e exists for this conviction. I t is true that the state ha s the burden of proving that the def

endant did not ac t i n s el f- defe nse. State v. Sims, 45 S .W.3d 1, 10 (T e nn . 2 00 1) . H ow e ve r, the iss ue of wh e the r t he de fe nd ant w a s jus tif

ie d in us ing se lf

-d e fe ns e is a qu e sti on of fa c t f or the jur y

. State v. Clif

ton , 88 0 S.W. 2d

73 7, 74 2 ( Te nn . Cr im. Ap p. 19 94 ). I n th is

c a se , th e jur

y he ard te sti mony fr om the de fe nd ant that he ac te d out of fe ar fo r his lif e and a pp a re ntl y reje cted this defe nse. I t is not the province of t his court to second-g uess fa ctual dete rminations made by the jury . We con cl u d e t h at t he evide nce w as suffic ient to convict the def endant of voluntary manslaug hter.-8- II. SE VERANCE

The defenda

nt contends that the t rial court err ed in denying his mot ion to sever his trial fr om t h at o f his co-de fenda

nt, Eric Johnson. He asserts that the jury was inca pable of distinguishing be tw e e n th e e vid e nc e pr e se nte d a g a ins t e a c h d e fe nd ant a nd that th e de fe nd ant wa s n ot a ff or de d a fa ir deter mination of his g uilt or i nnocenc e. The state counter s that the defendant was not entitled to a

sever ance and that the tria l court did not abuse its discre tion in deny ing a sever ance

.

Te nn e sse e Rul e of Cr imi na l Pr oc e dure 8( c ) a llo ws fo r t he joi nd e r o f m

ult ipl e de fe nd a nts in

a sin g le in di ctmen t if

the of fe ns e s c ha

rg e d “ we re pa

rt of a c omm on sc he me or

pla n” or “ we re so closely connec ted in time
, p l ac e, and occa sion that it would be difficult to separate proof of one char g e fr om proof of the other.” Tenn. R. Crim. P. 8(c) (3). A defe ndant is e ntitled to a se vera nce of trial if “ the cour

t finds a seve ranc e . . . appr opriate to promote a fair de termination of the guilt or inn oc e nc e of

on e or mor e de fe nd ants .” Te nn . R. Cr im. P. 1 4( c )( 2) (A ). W het her to grant a

sever ance , howeve r, is within the discretion of the trial cour t. State v. Meeks, 867 S.W.2d 361, 369 (Tenn. Crim. App. 1993) (citing State v. Coleman, 619 S.W .2d 112, 116 (Tenn. 1981) ).

The c harg es ag ainst the defe ndant and J ohnson wer e connected in time, place , and occ asion, and involved many

of the same fac ts. The defenda nt has not shown how he was prejudiced by being tried with J ohnson but only makes unsupporte d asser tions that he “suff

ere d prejudice by

being tried with E ric J ohnson” and that the “convoluted nature of the evidenc e

. . . was such that the fac t-finder

wa s i n ca p ab le of distinguishing betwee n the evidenc e pre sented a g ainst eac h defe ndant.” The defe ndant has not pointed to specific pie ces of evidenc e introduce d ag ainst J ohnson that prejudice d him. W e disag ree wi t h the def endant that the e vidence prese nted at trial wa s of a “ convoluted”

natur e so a s to pr e ve nt a

fa ir de te rm inatio n o f t

he de fe nd ant’ s g uil t or

inn oc e nc e and

re qu ir e se pa

rate trials. We conclude that the defe ndant has not demonstrated that he wa s prejudice d by the denial of his moti on for se vera

nce a nd that the trial cour

t did not abuse i t s d i scre tion in deny ing se vera nce.

III. ADMISSIBI LITY OF EVIDENCE

A. Victim’s Excited Utteranc e
During trial, while Off

icer Fr az i er was testify

ing a bout encounter ing the victim at Mapco, the fo llo wi ngc oll oq

uy oc c ur re d:

[Officer Fr azier]: I was standing in there g etting me some coff ee and a g entleman known to me as B arny ard

came in the re a

nd said he ha d been shot. And when I asked him who shot him - -

[Defense counsel]: J udg e, at this point in time, I obj ec t

. T h ere

has not bee n a prope r foundation.-9- [P rosec utor]: State’s g oing to lay it, J udg e. We’ll lay

the foundation.

[C ourt]: Okay . Objection sustained.

[P rosec utor]: When you saw Mr. Clay also kno wn as

Ba rny ard, c ome in, what wa s his emotional state?

[Officer Fr azier]: He was very excited. He was very excited and

s cr ea m i n g an d

h o l l er i n g.
[Pro se c uto r]: Di d y ou no tic e any

thi ngunus ua l a

bo ut h im?

[ Of fi ce r F ra z i er ] : He wa s b l ee d i n g.

.... [P rosec utor]: Did he - - did he make a ny statements to y ou -

-
[Officer Fr azier]: Iasked him - -

[ P ro s ec u t o r] : - - ab o u tt h e s h o o t i n g?

[Officer Fr azier]: Yes. I asked him what had happene d and he

sa id t hat B arny ard

- - co rr e c tio n, Por

te rf ie ld ha d r od e up on

him in a c ar a nd sh ot h im.

The de fenda

nt co n t ends t hat the trial c ourt err oneously allowed the vic tim’s hearsa y statement about be ing shot by the de fe n d an t under the excited utteranc e exception to the hea rsay rul e. See Te nn. R. Evid. 803(2). He a rg ues that bec ause the state neve r established the time that elapse d betwee n when the vic tim was shot and when he made the statement to Offic er F razier, the statement could not qualify as an e x cited uttera

nce. We disag ree

.
Three require ments must be met for a he arsa y statement to be a dmissibl e as an excited utteranc e: (1) t h er e m u s t b e a sta rtling e vent or c ondition; (2) the statement must relate to the startling e vent or c ondition; and ( 3 ) t h e s tatement must be made while the dec lara nt is under the stress or e x citement fr om the event or condit i o n

. T enn. R . Evid. 803(2); State v. Gordon, 952 S.W .2d 817, 820 (Tenn. 1997). The “ ultimate test” for de termining the admissibilit y of an e x cited utteranc e is “spontane ity

and log ical re lation to the main event an d wh er e an act or de clar ation spring s out of the transa ction while the parties are still laboring under the excitement a nd strain of the circ umstances a

nd at a time so nea

r it as to pre clude the idea of de liberation and f abric ation.”-10-

State v. Smith, 85 7 S. W.2 d 1 , 9 (T e nn . 1 99 3) . O the r r e le va nt c on sid e ratio ns inc lud e : ( 1) the tim e interval be tween the startling e vent and the statement; (2) t he natur e and se riousness of the c ondition; (3) the a

ppear ance , behavior , outlook, and the circ umstances of the dec lara

nt, including char acte ristics such as a g e, phy sical condition, and menta l condition; and (4) the co n t ents of the statement, which ma

y indicate the pr esenc e or a bsence of st ress. Gordon, 952 S.W .2d at 820. The

ratio na le be hin d th e e xcit e d u tte ra nc e e xce pti on

is that th e he ars ay state me nt is re lia ble be c a us e it is m a de wh e n ti me fo r r e fl e c tio n a nd po ssi ble fa

br ic a tio n ar e la c kin g and me mor y of the e ve nt i s st ill fre sh in the decla

rant’s mind. I d. at 819-20 (citing Neil P

. Cohen et al., Tennessee L aw of Evidence
, § 803(2).1, at 532 (3d ed. 1995))

.
The he arsa

y statement by

the victim and re peate d by Offic er F razier wa s re l ated to the sta rt lin g e ve nt o f t he vic tim ’s be ingsh ot. Th e on ly iss ue that th e de fe nd ant r a ise s r e g ard ingits admissibili ty

is that the state did not establish the t ime interval be tween w hen the victim was shot and whe n h e made the statement. While it is t rue that the state neve r pre sented e vidence that quantified this time interval, the rec ord establishes that the victim’s statement was ver y near to the tim e that he wa s sh ot and , mo re imp or tantl y , th a t th e vic timsp ok e wh ile un de r t he e xcit e me nt o f h is being shot. Evidence show ed that the victim was shot at some time in the late e vening of Oc tober 26 while running awa

y from the Wil lows apar

tments a nd toward the Mapco a cross the stre et from the apa rtments. Offic er Fr azier encounte red the victim shortly befor e midnight while at the Mapc o and while the victim’s gunshot w ounds wer e fre sh. Offic er F razier testified that the victim “was ve ry excited and scre amingand hollering .” The victim’s statement meets all the r equirem en ts of an excited utteranc e. The defe ndant’s contention that this e vidence was improperly admitted is without merit.

B . D ru g s F ound on Vi c tim

Prior to trial, the trial cour t gr anted the state’s motion in li mine to suppress evidenc e of marijuana and coc aine f

ound on the victim’s body at the hospital wh er e h e d i ed . The trial c ourt ag ree d with the s tate that this evidenc e wa s not releva nt. The def

endant c ontests this ruling, ar g uing on appea l that “the pre sence of drug s on the dec ease d’s body wa s re l ev an t to portray

a fa ir and

acc urate acc ount for the trie r of f act.”

Relevant e vidence is de fined as “evide nce ha ving a ny tendenc y to make the e x istence of

any fa c t th a t is of

c on se qu e nc e to t

he de te rm inatio n o f t

he a c tio n mo re pr ob a

ble or le ss p ro ba

ble tha n it would be without the evidenc e.” T enn. R. Evid. 401. Under Tenne ssee Rule of E vidence 402, irrele v an t e v id e n c e is n o t a d mi s s ib le

. Re le v an t e v id e n c e is g e n e r a ll y a d mi s s ib le b u t ma y be excluded if its probative value is substantially outweig hed by the dang er of

unfair pr ejudice. See id. 40 2, 40 3. A tri a l c ourt ’s e vid e nti ary ru lin g ba se d on re le va nc e is re vie we d on ap pe a l for an a bu se of discre tion. See State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997).

We c on c lud e that th e tr ia l c ourt did no t abu se its dis c re tio n in gr anti ng the state ’s mot ion to exclude evidenc e of dr

ug s found on the victim. The victim’s possession of drug s had no bea ring on any fac t th at was c onsequential to the de termination of the de fenda nt’s g uilt or innocence . The-11-

defe ndant has not explained how the evidenc e he soug ht to admit w ould ha ve benef itted his de fense

. A tox icolog y

repor t was ente red into evide nce w hich showed that the victim had alcoh o l
, but not drug s, in his sy stem at the time of his death. There fore , evidenc e that the victim was in possession of marijuana

and cocaine would not have proved that his actions t he night of hi s death were impaired by drug use. The defe ndant did not asser t in his de fense that the conf rontation betwe en him and the victim on the night of the victim’s death wa s relate d to drug s or that drugs we re othe rwise involved in the events that led to the vic tim’s de ath. Thus, there is no merit to the defe ndant’s ar g ument that

e vid e nc e of

the vic tim ’s po sse ssi on of dr ug s “ wa s r e le va

nt t o p or tr ay a fa ir and a c c ur a te a c c ount” for the jur y

.
C. Victim’s St atement Reg ardingRobbery

Th e state fi le d a

pr e -t ri a l mo tio n in

lim ine to e xclu de e vid e nc e of the state me nt t

he vic tim g a ve to p oli c e fo llo wi nghis a lle g e d a g g ra vate d r ob be ry

of the de fe nd ant a

nd tw o oth e rs

. Th e vic tim g a ve the fo llo wi ngstate me nt t o Se rg e ant G re e n r e g ard ingthe inc ide nt:

On th is n ig ht C or

y , A dr ian a

nd Kumba wa s in the ho us e g a mb li n g , Ia s k e d

th e m i f th e y h a d s o me w o r

k

. T h e y s a id [y e s ]! Then Cory didn’t want to g o outside so he sent Kumba . And at that tim e [K]um

ba wa s wa lki ng [fr om] the ho us e to the c ar w iththe pis tol

. He ope ned the door

rea ched ove r th e s u n v isor and hande d me the dope and I

paid him $50.00 for the dope. Ileft g ot it tested by one of tho se junkie s and I c ou ld se e the bakin g so da on it. Th e junkie c a me back to me a

bout five minutes [l ater ] and said that t h e d o p e was no g oo d. Ig a ve he r b a c k h e r t e n d ollars and I ta ste d it and y ou c ou ld taste the baking soda . Then I went bac k to Cory ’s apa rtment and I told them that I wanted my money back and C ory

and Adr ian said No, It w a s n o t h i n g w r o n g w i t h t h e d o p e w e ’ v e b e e ns e l l i n g i ta l l d ay. Then, Kumba

came outside with the pisto l t o g ive me my money back, but at t he same time he was doinga lot of jac king. H e said the [si c] tim e y our not g oing to g et y our money back. I said y ’all ca

n’t be around he re se lling wha

p dope then Kumba said, “Man it is g ood dope y ou can’ t make me say its not g ood dope. Then he started [to] bring the g un up and I

caug ht it and he fired it twice

. Itook the g un fr om h im a

nd he ra n to the a pa rtme nt w he re Cor

y and Adr ian w a s. Ifollowed him, bec ause I was trying to g et my money back. Iwalked up to the door it was still open I went in and aske d Kumba, Cory and Adrian w here is my

money , this man (Kumba) don’ t sell dope wher e is m y mon e y . T he n A dr ian a

nd Cor y sta rt e d y e lli ngand

thr ow ingme money

. I took the money left then I told them that [ they ] need to stop selling that fake dope. Then I went over my friend’ s house and that’ s wher e the police came and ar rested me. The police went in the-12- apar tment where Cory and Adrian was and they didn’t find any

other dr ug s o r t he oth e r gun s th e y

ha d in the a pa rtme nt.

B e fo re the tr ia l be g an, de fe ns e c ouns e l to ld t he cou rt that it

did no t in te nd

to u se thi s st a te me nt. Howeve r, duringSerg eant Gre en’s testimony
, defe nse counse l tried to elicit the statement, wa nting

e vid e nc e tha

t th e vic tima dmi tte d to ro bb ing the de fe nd ant, and argue d tha t it w a s a dmi ssi ble a s a “stateme nt ag ainst interest.” See Tenn. R. Evid. 804(b)( 3). The tr ial court disag ree d and rule d the evidenc e inadmissible. The de fenda nt argues on appe al that this decision was in er ror.

Tenne ssee Rule of E vidence 804 allows for c erta in ty pes o f hear say statements to be admitted into ev i d en ce when the declar ant is unavailable to testify in court. See Te nn. R. Evid. 804(a) (def ining “ unavailability ”). O ne such e x ception is a “stateme nt ag ainst interest,” w hich is defined as a “ statement which was at the time of its makingso far contra ry to the decla

rant’s pe cuniar

y or proprieta ry interest, or so f

ar te nded to subject the decla rant to c ivil or criminal liability or to rende r invalid a claim by the declara nt ag ainst another, that a re asonable person in the de clar ant’s position would not have made the statement unless believing it to be true.” I d. 804(b)( 3). The “ corne rstone” to t his e xce pti on

is that

a re asonable person similarly situated to the dec lara

nt would not have made the statement unl ess t he reasonable person be lieved it was true

. I n turn, this statement means that a rea sonable de clar ant would have

rea liz ed it was a g ainst his or her interest. The important time is when the statement wa s made.

Rule 804(b)(3) does not specif ic ally provide that the de clar ant must have personally known t hat the stateme nt was ag ainst his or her interests whe n it was made. Howe ver, this knowledg e is the re ason

a hear say statement is vie wed a s sufficiently reliable to be admitted, and the e vidence should n o t be admitted if it is established that the decla rant did not know that the statement was harmful. F or example, if the decla

rant actua lly believed that he or she wa s saying some thing that would be helpf

ul, reliability

is questio n able and the statement should not be admitted under this hea rsay exception.

Ne il P. Co h e n e t a l.
, T e n n e s s e e L aw o f E v id e n c e , § 8

. 3 6 [5 ], a t 8

- 1 6 1 ( 5 th e d

. 2 0 0 5). Thus, our courts have held that a hearsay statement can only be admitted if the c ircumstance s surrounding the state me nt a

re su c h th a t th e state me nt i s su ff ic ie ntl y re lia

ble

. Se e State v. L ou is B e rn ard Willi a ms, No. W2005-01405-CCA-R3-CD, Madison County , slip op. at 6 (Tenn. Crim. App. J une 30, 2006); State v. Christopher Keva n Hein, No. E2003- 01793-CCA-R3-CD, Kn o x C o u nty , slip op. at 7-8 (Tenn. Crim. App. June 9, 2004).

The victim’s statement c ould have subjec ted t h e v ictim to criminal liabili ty in that he admitted he aske d for money while holding a pistol and attempted to buy drug s. At the same time,-13-

the vi c ti m g a v e th e s tate me n t i nr e s p o n s e to qu e s ti o n s a b o u t h is inv o lv e me n t i nana g g rava ted robber y , and he stated that he only took control of the pi stol afte r it was first dire cted at him by one of the alleg ed robber

y victims a

nd that he only intended to r etrieve money that he believe d was owe d to him. Thus, his statement could be rea d as both an ad mission of criminal behavior a nd as an attempt to limi t his li ability for the c rime for

which he w as ar

rested.

Under either position, though, w e conc lude that exclusion of the evi d en ce was har mless. The de fenda

nt has not expl ained how he was pre judiced by

the exclusion of the evidenc e or that

e xclu sio n mo re pr ob a

bly tha n n ot a ff e c te d th e re su lt o f t

he tr ia l. See T. R.A .P. 36 (b ); Te nn . R. Cr im. P. 5 2( a). Th e jury

he ard e vid e nc e that th e vic timwa s arr e ste d f or an a rm e d r ob be ry

a lle g e dly perpe trated a g ainst the defe ndant and other s and that the victim had thre atened the def endant on

occa sion. The jury convicted the defe ndant of the lesser included off ense of voluntary manslaug hter. We do not see how the a dmission of the victim’s statements reg ardingthe ro b b er y would have aff ecte d this result. There fore , the def endant is not entitled to relief on this iss ue.

III. SE NTENCING

At his sentencing hear ing, the defe ndant testified that he was twenty -nine y ear s old with five children a nd that he lived with hi s wife. He said he dropped out of hi g h school in 1995 to work but that he re ceive d his GED s hortly there afte r. He sa id he was a member of

the ca rpente r’s union and that he was working f

or a c leaningservice . He sa id he had wor ked in ca rpentry on and off

since 1997, when he beg an takingclasses at a work f orce development pr og ram at Tenn es s ee Tech University . He sa id he was not ra ised in an environme nt w here crime was a way of life and that he did not plan on raising his children in such a n environment. He said he could live the l ife of a g ood citizen and rema in drug -fr ee. H e said he reg retted that the victim lost his life but m ai n t ai ned that he a c te d in

se lf -d e fe ns e . On cr os s- e xami natio n, the de fe nd ant a c kn ow le dg e d th a t a lth ou g h h e sa id he had se vera l jobs in t he past fe w y ear s, his prese n t en ce r eport only ref lected two of

them. The prese ntence repor t al s o ref lects that althoug h the def endant wa s arr ested twice on drug -re lated char g es, both ca ses wer e dismissed and that he ha d no prior cr iminal convictions.

The victim ’s s ister, Kim netta S mith, testified about how t he victim ’s death had af fec ted her family . She said the victim’s son was e leven y ear s old when the v i ct i m wa s k i lled and did not understand w hy

his father

died. She said the victim’s death and the re sulting h o m icide ca se had

cause d the victim’s family much hurt, ang er, a

nd pain. She n o t ed t hat the def endant ne ver apolog ized for his actions. On beha lf of th e v i ct i m ’s family , she aske d the cour t to give the defe ndant the maximum sentenc e without ear ly rele ase or

probation.

At the conc lusion of the s entenc ing he aring , the cour t stated that it would deny

probation and would sentenc e the de fenda nt to four y ear s and six months in t he county workhouse. T he judg ment form re flec ts that the defe ndant was se ntence d to four y ear s. On appea l, the defe ndant contends that the trial cour

t erre d in determining both the manner and leng th of the sentenc e.W e n ot e t h at on J u n e 7, 2005, t h e G en er al As s embl y a men ded T en n es see Code An n ot at ed s ec t i on s 40- 35- 1

1 0 2 (6), - 1 1 4
, - 2 1 0
, - 4 0 1

. See 2 0 0 5 T enn. P ub

. A ct s ch. 3 5 3 , § § 1 , 5, 6
, 8. H o wever, t he am end ed co d e sect i o ns are ina p p lica b le to the d e fen d a n t’s ap p e a l.

-14- Appellate r eview of

sentenc ing is de novo on the r ec o rd with a pre sumption t hat the trial court’s de terminations are corr ect. T.C.A. § 40- 35-401(d) (2003). As the Sentenc ing Commission 1 Comments to this sec tion note, the burden is on the de fenda nt to show that the sentence is improper. This means that if the tria l court followed the statutory sentenc ing proce dure, made findings of fa ct that are adequately

supported in the reco rd, and ga ve due c onsideration and pr oper w eig ht to the fac tors and princ iples that are rele vant to sentenc ing unde r t he 1989 Sentenc ing A ct, we ma y not disturb the sentenc e even i f we would pref er a differ ent result. State v. Fletc her, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991)

.

Ho we ve r, “ the pr e su mpt ion of c or re ctn ess whicha c c omp anie s th e tr ia l c ourt ’s a c tio n is conditioned upon the af

firmative showingin the rec ord that the trial court consider ed the se ntencing principles and all rele vant fac ts a nd circ umstances.” State v. Ashby
, 823 S.W .2d 166, 169 (Tenn. 1991). In this reg ard, f

or the purpose of mea

ningf ul appellate r eview,

[T] he tr i al co u rt must place on the r ecor d its reasons for arr iving at the final sente ncing deci s io n , id e nti f y th e mi tigating a

nd enhanc ement fac tors found, state the spe cific facts supporting eac h enhanc ement fac tor found, and a

rticulate howthe mitigating and enha ncement fac tors have be en

e v a lu a te d a n d balanc ed in deter

mining the se ntence

. T.C.A. § 40-35-210( f) ( 1990).

State v. J ones, 883 S.W.2d 597, 599 (Tenn. 1994).

I n conductingour de novo r eview, w e must consider (1) the evidenc e, if any , rec eived at the trial and sente ncing hear ing, ( 2) the pre sentenc e re port, (3) the principles of se nten ci n g and

argume nts a s to se nte nc ing a lte rn a tiv e s, (4 ) the natur e and c ha ra c te ri sti c s o f t

he c ri min a l c on du c t, (5) a ny mitigating or statutory enhanc ement fac tors, (6) any statement that the de fenda nt made on his ow n behalf

, and (7) the potential for reha bilitation or treatment. T.C.A. §§ 40-35-102, - 103, -210 (2003); see Ashby , 823 S.W .2d at 168; State v. Moss, 727 S.W .2d 229, 236-37 (Te nn. 1986).

A. Denia l of Alternative Sentencing

The defenda

nt contends that the c ourt err ed in deny ing him alter

native sente ncing . Our Code instructs that when deter

mining if c onfinement is appr opriate, a trial court should consider whether (1) c onfinement is nec essar y to protect socie ty

by restra ining a defe ndant who has a long history

of criminal conduc t; (2) conf inement is ne cessa

ry to a void de prec iating the seriousness of the off ense,
or c on fi ne me nt i s p art ic ula

rl y su ite d to pr ov ide an e ff

e c tiv e de te rr e nc e to p e op le lik e ly to c omm it simil ar of fense s; or (3) measures less restrictive than c onfinement have fr equently or re cently

been

a pp lie d uns uc c e ssf

ull y to t he de fe nd ant. T. C.A . § 40 -3 5- 10 3( 1) (A )- (C ). Th e tr ia l c ourt sh ou ld a lso-15-

consider a

defe ndant’s potential or la ck of pote ntial for reh ab i l itation and the mitigatingand enhanc ement fa ctors set for th in Tennessee Code Annotated sections 40-35-113 a nd -114. T.C.A. §§ 40-35-103( 5), -210( b)(5) (2003); S tate v. B oston, 938 S.W .2d 435, 438 (Tenn. Crim. App. 1996)

. The sente nce imposed should be the least seve re me asure nece ssary to achie ve it s purpose. T.C.A. § 4 0- 35 -1 03 (4 ). As a sta

nd ard of fe nd e r of a Cla ss C fe lony , the de fe nd ant is pre su me d a fa vo ra ble candidate for a lternative se ntencing . T.C.A. § 40-35-102.

I nd en y i n g t h e d ef

en d an tp ro b at i o n , t h e t ri al co u rt s t at edt h e f o l l o wi n g:

Ido not believe that y ou would serve well on probation. I ’m

conce rned a

bout it. I noted some attitude in y our testifying. I ’ve consider ed the pre sentenc e re port, y our phy sical and me ntal condition, s o cial his tory , fac ts and circ umstances surr ounding the offe nse, the nature an d circ umstances of y our cr iminal conduct inv olv e d, pr ior

c ri min a l hi sto ry . Y ou

do n’ t have muc h. So the re ’s a lack ther eof. Pre vious actions and char acte r of the de fenda nt. Ithink
y ou kind of rese nted some of the - - what the prosec utor was a sking
y ou. And I

don’t see that a s a g ood char acte r. I think y ou’ve g ot an

a tti tud e . Wh e the r o r n ot you mig ht r e a so na

bly be e xpect ed to reha bilitate, y eah, you probably will be. But not t hroug h probation. And whethe r or not it would rea sonably appea r t hat y ou would abide by the terms of pro b at i o n , y ou might or you might not. B ut Idon’t

see that y ou would. Whether or not mea sures less re strictive than confine ment have e ver be en used, none , beca use y ou don’t have a
re c or d. An d w he the r o r n ot t he se nte nc e of

fu ll p ro bation w ou ld

un du ly de pr e c iate the se ri ou sn e ss o f t he of fe ns e

. . . and

Ifi nd tha t it

wo uld . Si mply th at y ou kil le d s ome bo dy - - it’ s n ot t

hat y ou kil l somebody

so y ou g ot to go to jail. B ut y o u k i l l s o m ebody afte r get t i n g ro b b ed an d y o u wa i t t h re e m o n t h s

. No twa i t i n g b u tl o o k i n g,
s e e t h i n g , w h a t e v e r

c a u s e d i t

. I’ m a p p r o v i n g t h e v e r d i c to f

t h e j u r y. And sentenc ing yo u to the Shelby County Correc tional Center for four y ear s and six months as a Rang e I standard of

fende r.

I n sum, the trial court de nied probation, finding that althoug h the defendant had no criminal re cord, confine ment was ne cessa ry to av o i d depre ciating the seriousne ss of the off ense a nd that the defe ndant was likely

to reha bilitate, but not if given pr obation.

As the trial cour

t p o i n t ed o ut, the defe ndant has no prior history of cr iminal conduct, and

c on fi ne me nt i s th e re fo re no t ne c e ssa ry to p ro te c t so c ie ty

fr om t he de fe nd ant or becau se le ss restric tive measure s have pr eviously been a pplied. Howeve r, there is sufficient evide nce in the

rec ord to support a de nial of alter native sente ncing based on th e s eriousness of the crime. T he de fe nd ant ad

mit te d to carr

y ing a we a

po n in lieu of re po rt ing his c on c e rn s abo ut t he vic tim ’s thr e a ts to the police. He showed little hesitation in using that we apon and, by repe atedly firing shots toward-16-

the victim in the surrounding s of an a partment c omplex , endan ger ed others’ lives. Fur thermore
, while the defe ndant stated that he was sorry that the victim lost hi s life, he ne ver a cknowledg ed any culpability . We conclude that the denial of a lternative se ntencingwas wa rra nted.

B. L eng th of Sentence

The de fenda

nt argues that the leng th of hi s sentence is ex cessive be cause the trial cour t erre d i n n o t c o n s i d e r i n g

a p p l i c a ble mit ig a tin g fa c tor s and

in c on sid e ri ngina

pp lic a ble e nh anc e me nt f

a c tor s. Be fore we a ddress the de fenda nt’s argument that his sentence is ex cessive, we mus t first determine the lengt h o f t h e s entence imposed by the trial cour

t. As noted above , the sentenc ing he aring transcr ipt reflec ts that the trial court orde red that the defe ndant’s sente nce w ould be four y ear s and six months. However , the judg ment form states a sentenc e of f

our y ear s only . Thi s court ha s previously

noted that when the re is a discrepa ncy betwee n what is ref

lected in the se ntencinghear ing transcr ipt and what is on the judg ment form, the transcr ipt controls. State v. Miranda Sexton, No. E2006-01471-CCA-R3-CD, Ha mblen County , slip op. at 8 (Tenn. Crim. App. Feb. 27, 2007) ; see

a lso State v. Mo or e , 8 14 S.W. 2d 38 1, 38 3 ( Te nn . Cr im. Ap p. 19 91 ) ( statin g that w he n th e re is a conflict be tween t h e co urt minutes and the tra nscript of the pr ocee dings, the transcr ipt controls). Th e re fo re , w e de te rm ine that th e tr ia l c ourt se nte nc e d th e de fe nd ant t o f our y e ars and

six mo nth s.

The sentenc ing rang e for a Rang e I
, standard offe nder convicted of a Class C felony is three to six y ear s. See T.C.A. § 40-35-112(a) (3). Unde r the lawapplicable at the re levant time, three
y ear s was the presumptive sentenc e the trial court should ha ve imposed unless enhanc ement fa ctors

wer e found. T.C.A. § 40-35-210( c) ( 2003). In sentenc ing the defe ndant to a ter m of four y ear s and six m o n t h s , t h e trial court f ound that no mitigating fac tors applied and that the following enhanc ement fa ctors listed in Code section 40-35- 114 did apply : (3) that the de fenda nt was a le ader in the commission of an offe nse involving two or more c riminal actors a nd (11) that the de fenda

nt ha d n o h e sit a tio n a

bo ut c omm itt ingthe c ri me wh e n the ri sk to human li fe wa s h ig h. Th e c ourt tol d the defe ndant that it found the latter f actor was a pplicable “ based on your prior state ments after the robber y : ‘When Ifind him, I ’m g oing to kill him.’ And y ou car ried that out.”

The de fenda

nt argues t h at t he trial c ourt err ed in enha ncing his sentence based on the deter mination that he was a l ea d er in the commission of the offe nse. We ag ree . There was no evide n c e p r e s e n te d a t tr ia l in d ic a ti n g th a t th e d e f e n d an t p la

n n e d th e a tt a c k o n th e v ic tim and

encour ag ed Johnson t o participate. See State v. F ree man, 943 S.W.2d 25, 3 0 (T en n

. Crim. App. 1996) (holding that trial court e rre d in apply ing e nhance ment fac tor that defe ndant was le ader in the

c omm iss ion

of the of fe ns e be c a

us e the re wa s n o e vid e nc e that de fe nd ant p lann e d th e e nc ounte r w ith the victim or that he re quested or prompted others to pa rticipate) . Although the evidenc e showe d that the defe ndant had a

motive to kill the victim and that the def endant wa s the first to fire shots at the vi ctim, these facts alone are not sufficie nt to establish that he led J ohnson in the commission of the offe nse. See State v. B uckmeir, 902 S.W.2d 418, 423 (Tenn. Crim. App. 1995) (holding that trial court e rre d in applying the enhanc ement factor that defe ndant was the l eade r i n the commi ssion of the assault of the victim, where fac ts showing that de fenda nt had sex with victim befor e informing codef endant that he could have sex with victim were not suff icient to enhanc e def

endant’ s sentence-17-

on this basis). The trial cour t erre d in apply ing e nhance ment fac tor (3). Howeve r, we ag ree with the trial court’ s application of en h ancement fa ctor (11) , as the de fenda nt’s actions in firing repe ated shots at t he victim while running t hroug h an apartment complex ref lect that the defendant did not hesitate a bout committi ng the cr ime when the r isk to human life was hig h.

The de fenda

nt also aver s that the trial cour t erred in not applying the following mitigating fac tors, pursuant to Code sec tion 40-35-113: (2) that the de fenda nt acted unde r strong provocation; (3) that substantial g rounds exist tending to e x cuse or justify the defe ndant’s criminal conduc t; and (1 1) that th e de fe nd ant c omm itt e d th e of fe ns e un de r suc h unu su a l cir c ums tanc e s tha t it is unli ke ly that a sustained intent to violate the law motivated the cr iminal conduct. Howe ver, the defe ndant has not explained why

these fa ctors should apply

. Reg ardingfac tor (2), w e note that this fac tor does

no t a u to mati c a ll y a

p p ly in v o lu

n ta r y ma n s la u g h te r c a s e s

. Se e , e

. g

. , St a te v

. M c K inzi e Monroe Bla ck, No. 0 1 C 01-9401-CC-00006, Robertson County , slip op. at 8 (Tenn. Crim. App. Jul y 14, 19 95 ). Furt hermore , w e se e no thi ngin t he re c or d to su g g e st t

hat th e tr ia l c ourt

e rr e d in fa ili ngto apply mitigating fac tors.

Al tho ug h w e c on c lud e that the tr ia l c ourt e rr on e ou sly

a pp lie d e nh anc e me nt f

a c tor (3 ), thi s
err or does not ne cessitate a sentenc e modification. See State v. Hay es, 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995) (“T he mer e number of existi ng enhanc ement f a c to r s is n o t r e le vant—the important consideration being the weig ht to be g iven ea ch fa ctor in lig ht of its r el ev an ce to the defe ndant’s persona l circumstanc es and ba ckg round and the circ umstances surrounding his criminal conduct.” ). We conclude that the trial court did not er r in imposing a se ntence of four y ear s and six months.

CO NC LU SION

Ba sed on the for eg oing a nd the re cord a s a whole, w e af firm the def

endant’ s conviction. Ho we ve r, be c a

us e the se nte nc e re fl e c te d in the jud g me nt i s inc on sis te nt wi th t he se nte nc e state d in the se nte nc ing he ari ng tr ans c ri pt, we re mand the c a se fo r e ntr y of a c or re c te d ju dg me nt t o r e fl e c t a

se nte nc e of

fo ur y e ars and

six mo nth s.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE