### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE October 17, 2000 Session

STATE OF TENNESSEE v. JOSEPH MILES

Direct Appeal from the Circuit Court for Robertson County No. 96-0237 Robert W. Wedemeyer, Judge

No. M1998-00682-CCA-R3-PC - Filed February 16, 2001

Defendant

Joseph Miles was convicted by a Robertson County jury of second degree murder. After

a sentencing h earing, the trial court se ntenced Defend

ant as a Range I

I violent offe

nder toforty y

ears. On appeal, Defendant raises the following issues: (1)whether the evidence is sufficient to support his conviction forsecond degree murder, (2) whe

ther the sentenc

e imposed by t

he trial court is excessive, and (3) whether a finding of plain error pursuant to Tenn. R. Crim. P. 52 (b) justifi es a dismissal of charges on the ground that the State participated in a conspiracy to kill Defendant. After a review of the r

ecord, we affi

rm the judgment of

the trial court.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed.

T HOMAS T. W OODALL , J., delivered the opinion of the court, in which Jerry L. Smith, J., and N ORMA M C G EE O GLE , J., joined.

Gregory D. Smith, Clarksville, T ennessee (on appeal) and Edward Earl DeWerff, Clarksville, Tennessee (at trial) for the appellant, Joseph Miles.

Paul G. Summers, Attorney General and Reporter; Todd R. Kel ley, Assi stant Attorney

General; Thomas A. Thomas, Obion Cou nty District A

ttorney Ge

neral, for the a

ppellee, th

e State of Tennessee.

OPINION

I. Facts

On December 22, 1995, Antwaun Elliott was shot to

death by Defendant in the lobby of a n Arby’srestaurant in Springfield, Tennessee. Defendan t’s action was the last in a series of antagonistic encounters between Defendant and Elliott because of an affair that occurred between Elliott and Defendant’s wife while Defendant was incarcerated. Defe ndant’s wife ga ve birth to Elliott’s child while Defendant was still in prison. During an encounter between the two men after-2-

Defendant’s release, Elliott shot Defendant in thearm. After an investigation, the State negotiated

an agreement with Elliott, reduc i ng his charge from aggravated assault to simple assault and rel easing him on probation subj ect to judicial dive rsion. Defendan

t contends on appe

al th at th e State’s leniency regarding Elliott’s punishment inadequately protected Defendant and, further, that the State’s treatment of Elliott points to a conspiracy between re presentatives of the State and his wife to kill Defendant. Defendant also claims on appeal that after he was denied

justice by the State, his only recourse was to shoot Elliott in self-defense.

Defendant

did not testify

at his trial. At the sentencing hearing, Defendant gave an opening
statement to the court which claim ed, among ot her things , tha t in December 1995 the District Attorney’soffice and the Sp ringfield Police Departmen

t were involved in

a conspiracy

against him. Spe cif ica lly, Defendant alle ged that Assistan

t District Attorney

Dent Mor riss, Assistant District Attorney Lanc e Baker , Detective William Watkins and his ex-wif

e, Lisa Grove

s, collaborated t

o have him killed. Defendant claimed that Groves conveyed false stories to Elliott which caused Elliott to fear De

fendant and to

believe that Defendant wanted to harm Groves. At the same time, Groves told Defe

ndant that Elliott wa

nted to shoot him. As a result, Defe ndant became af

raid for his life. To protect himse lf, Defendant tu

rned himself in to th

e authorities, Mor

riss and Watkins, ho ping to be plac ed in custody for his parole vio

lations. However

, they did not p

ut him in jail. Defendant

claimed that instead, they left him free so that Elliott could shoot him. A t this poin t Elliott had alread

y shot Defe

ndant once. Acc

ording to Defen

dant, the State

intended for Ellio

tt to finish the job.

Eric Miles, Defendan

t’s cousin, test

ifie d at trial that on December 22, 1995, Defendant called him because he wanted Miles to give him a ride. When Miles and his wife picked up

Defendant,

he hadtwo guns with him. Mi les d id not ask Def

endant what he pla

nned to do with them.

Next, Defendant

said he wanted

to go to his father’s house for bullets. Miles dropped him off, then picked hi mup on another stre

et. When Defenda

nt got back into the

car, he lit up a ci

garette conta

in in g crack cocaine. Miles asked him to put it out so Defendant asked permission to smoke the crack in Miles’ back yard i nst ead. Whe n Mi les ask ed D efen dan t wh y h e was smo king crack, Defendant replied “to keep himself numb.”

As the y pas sed a bo wli ng al ley, Defendant aske d Miles to stop so that he could get out and talk with a man named “Kil o.” Miles pulled up behind the car that Defendant pointed to, and Defendant

exited M iles ’ car. Miles was d istracted for a m

oment until his wife a

sked, “What is Joseph doing?” When he looked up, he observed Defendant and a boy running back and forth by a little blue car which

was parked by the gas pump when they arrived. Defendant had a gun in his hand. When the boy ran across the road toward Arby ’s, Def endant shot at him th

en returned to Miles’ car for his cigarettes and the other gun. Defendant said “I’ll see you later , Cuz,” then drove to Arby’s in the little blue car. Miles’ wife was frightened at this point so they left the scene.

William Watkins, a

detective with the Springfield City Police Department, testified that he responded

to a call regarding a shooting incident at an Arb y’s restaurant on December 22, 1995. Watkins arrived at appr

oximately 10 p.m. The victim, Antwa un Elliott, was lying on the floor and-3-

being treated by

medical personne

l. Watkins talked to tw

o eyewitne

sses, Bil ly J oe Dunivan and Lonnie Hampton, who later identified Defendant as the sho ote r. T he n ext day, Detective Watkins received a phone call from

Defendant who admitted shooting Elliott because he was “having trouble withhim.” Defendant’s call came from Arkansas. Afterward, he turned himself in to the Arkansa s authorities and returned to Tennessee for trial.

Lonnie Hampton testifiedthat he was present in Arby’s when Elliott was shot. The incident occurred at approximately 10 p.m. At the time, Hampton was in line with his cousin ordering food. No other customers were in the restaurant, and the employees we re in the bac k of the bu ilding. While Hampton and his cousin were waiting for their order, Elliott quietly entered the lobby behind them. They noticed him enter, but since nothing appeared unusual they paid no further a

ttention to him unt il a car squealed into the parking lot with its brakes locked. The driver, identified by Hampton as Defendant, jumped out of the car and ran into the restaurant brandishing a revolver. As Defendant

came barging

through one door

, Ell iott tried t o run out the other but Defendant caught him, pulled him around, a nd shot him

in the head. The gun was only one or two inches from Elliott’s headwhen Defendant fired. Afterward, Defendant ran bac k to hi s car and drove off. From what Hampton could tell, Elliott carried no weapons and made no th

reatening moves toward the shooter–he only tried to get away

.

Scarlet Leavell, the mother of the victim, Elliott, testified that Elliott was nine teen year s old when he died. He was unmarried with one child which he had with Defendant’s wife, Lisa Groves. Elliott was an honor student in high school and had no criminal record except for the charges which resultedwhen he shot Defendant. Elliott was sixteen yearsold and still in high school when he met Lisa. They both

worked at Wendy’s restaurant. Leave ll disapproved of the relationship bec ause Lisa was older than Elliott and married.

Leavell’s first contact with Defendant occurred in January 1995 when Defe ndant called from prison wanting to speak

to Elliott. Becaus

e she did not recog

nize his voice, she d

ecided to listen for

a while and heard Defendant say that he “was going to deal with [Elliott].” Defendant threatened Elliott again by telephone on

March 25, 1995, the

day that L

isa and Elliott’s ba

by was born.

Leavell reported both callsto the police. Anot her time, on Octob

er 15, 1995 after

Defendant’s re

lease from prison, Defendant left

a message for Elliott that he would be waiting for him when he got off work. Leavell contacted the po

lice and they

escorted Elliott ho

me without incident

. Additional threa

ts against Elliott a nd Lisa occurr ed on Octobe r 19, 1995. At around m idnigh t, Defendant came to Leavell’s home, banging

on the door and thr

eatening to “ta

ke them out that nig

ht” if he could find them. The above threats occurred prior to Elliott shooting Defendant.

Lisa Groves, Defendant’s ex-wife, testified that she met Elliott in

1992 while she was

still married and her husband, Defendant, was in prison. Groves and Elliott began a sexual relationship. She gave birth to the

ir son, Bry

ce, in March 1995 . Defendant’s f riends and family

informed Defendant of the affair while he was still in prison and Groves was two or three months pregnant. Groves described Defendant’s reaction as “not happy,” “violent,” and “mad.” When Defendant was released in September 1995, Groves informed him that sh e wanted to

be with Elliott. Defendant had-4-

a girlfriend by

then, and Defen

dant knew that he a

nd Groves would

be no more than friends in the future.

Groves further testifie d that she recall

ed the day th

at Elliott shot Defe

ndant. Ell

iott ha d shown up at her parents’ house. Shortly ther eafter, Defe

ndant also arrive

d with three men in

his car. Groves told them all to leav e because she di

d not want any trouble. Elliott left first, then Defendant followedtwo or three minutes later. Groves did not see the actual shooting that occurred. Groves also recalled the night when Defendant shot Elliott. She and Elliott were on

their way to a Christmas part y. Elliott dropped her off at theparty, then left to go to the store for a minute. That was the last time Groves saw Elliott alive.

After Elliott was killed, G

roves’ first c ontact with Defendant occurred in January 1996. Defendant

called Grove s and “talked rea l crazy” to h

er. Defendant s

aid Elliott “deser

ved to die because he had tried to kill him. And don’t nobody do nothing to him and get away with it.” Defendant claimed that he had killed Elliott in self-defense.

Lance Baker, Assistant District Attorney for the 19 th Judicial District, testified that he was the prosec uto r assi gned t o hand le the Stat e’s ca se agai nst El liot t for s hooti ng Defe ndant . In preparation, Baker gathe red backgroun

d information on De

fendant and Elliot

t then spoke with Elliott’s defense attorney and the officers involved. As a result of his investigation, Baker reduced the charges aga

inst Elliott from aggravat ed assault, a Class

C felony to sim

ple assault, a Clas s A misdemeanor, with a disposition of judicial diversion pursuant to Tenn. Code Ann. § 40-35-313. His reasons included

the fact that this incident was the first reported problem between the two men andappeared that it

could be a case o

f self-defense . Baker had also learned that Ellio

tt had an affair withDefendant’s wife while Defendant was in prison and that Defendant began to stalk Elliott after Defendant

was released, confronting him repeatedly over a period of months. Baker received conflicting stories from Defendant and Elliott, but the policeofficers that Baker talked to believed Elliott. All things considered, Ba ker testified tha

t, in his judgment, t

here was no doubt

that Elliott would ha ve more credibil

ity with a jur

y. Since a tr

ial on the issue of s

elf-defense w

ould largel y hinge on who the jury believed, the State negotiated the plea a greement with Elliott.

Lois Miles, Defendant’s mother, testified that she had heard rumors that Elliott was planning
to shoot her son. Ms. Miles informed Defendant of the rumors before Elliott actually shot him but didnot recall Def

end ant’s reaction. Neither did Ms. Miles remember where she first heard the rumors or who told h

er about them.

Dr. Anne Durrant, a

licensed psy

cholo gist, testified that her job included talking with persons who are in carcerated. Defendant was referred to her by a mental health counselor at Defenda nt’ s correctionalfacility. Dr. Durrant met with Defendant on five occasions. Def endant was having difficulty sleeping for

personal reason

s. Specifically

, Defendant was

upset with

his wife, who had just given birth to a

baby fathered by a

nother man. Dr. Durrant opined that Defendant was plagued by a combination of an xiety, depre ssion, some ange r, and anhedonia

(sudden lack of in

terest in things previously enjoyed). Defe ndant also suffered hu

miliation and embar

rassment becaus

e of the-5-

way his wife treated him. Def endant made no thr

eats against

his wife or her pa

ramour during th

eir sessions.

II. Sufficiency of the Evidence

Defendant

contends that the evidence adduced at trial

is insufficient to sustain a verdict of guilt beyond a reasonable doubt for second degre e murder. Specifically, Defendant argues that the proof presented at trial proves instead that Defenda nt a cted in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner. In other words, Defendant

submits that he was only guilty of the lesser offense of voluntary manslaughter and not second degree murder. We disagree.

When an ac cus ed ch all enge s th e su ffi cie ncy o f the convicting evid ence, the standa

rd is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essenti

al elem ents of the crime beyond a reasonable doubt. State v. Shepherd
, 902 S.W.2d 895, 90 3 (Tenn. 19 95) (citin g Jackson v. Virgini a , 443 U.S. 307, 322-25 (1979)); Tenn. R. App. P. 13(e). Questions concerning the credibility of the witnesses, the weig ht andvalue to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, not this Court. State v. Pappas
, 754 S.W.2d 620, 623 (T enn. Crim. App. 1987). No r may this Court reweigh or reevaluate the evidence

. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978).

A jury verdic

t approved by

the trial judge a

ccredits the State ’s wit

nesses and re solves all conflicts in favor of the State. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferenc e s therefrom. Cabbage , 571 S.W.2d at 835. This Court may not substitute its

own inferences

for those drawn by the trier of fact from circumstan tial evid ence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, a crime may be established by circumstantial evidence alone. Statev. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987). How ever, beforean accused may be convictedof a criminal offense based only circumstantial evi dence, the facts and circumstances “must be so strong and cogent as to exclude ever oth er reasonable h

ypothesis sa

ve the guilt

of the defendant.” State v. C rawford , 470 S.W.2d 610, 612 (Tenn. 1971). Becaus e a verdict of g

uilt

removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this Court of illustrating why the evidence is insufficient to support the jury verdict returned by the trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In Tennessee, second degree murder is “[a] knowing killing of another.” Tenn. Code Ann. § 39-13-210 (1997). By contrast, voluntary manslaughter is “the intentional or knowing killing of another in a state of passion produced by adequate provocation sufficient to lead a re asonable person to act in an irrational manner.” Tenn. Code Ann. § 39-13-211 (1997). Voluntary manslaughter is

a lesser-included offense of second degree murder. State v. Dominy , 6 S.W.3d 472, 477, n. 9 (Tenn. 1999). The record shows that the trial court gave the jury proper instructions on the lesser offense.-6-

In his brief, Defendant relies on three cases decided by the Tennessee Supre me Court to support his request that this Court reduce his conviction from secon d degree murder to voluntary manslaughter: Whitsett v. State , 299 S.W.2d 2 (Tenn. 1 957); Drye v. Stat e , 184 S.W.2d 10 (Tenn. 1944); and Davis v. State , 28 S.W.2d 993 (Tenn. 19 30). Defe ndant’s relianc e on these cases

is misplaced, however, for the following reasons.

In Whitsett v. State , 299 S.W.2d 2 (Tenn. 19 57), the defe ndant, Whitsett, shot his wife’s lover after hediscovered that his wife was having an affair. Our supreme court reduced Whitsett’s punishable

offense from se

cond degree mu

rder to voluntary manslaughter. Here, Defendant see ks
to analogize the facts in Whitsett and achieve the s ame result be cause, even though the Whitsett defendant suspected his wife ’s adulterous beh avior for approxim

ately eig ht months before the killing, notice of

the possible affa

ir for that leng

th of time did not automatically negate a crime of passion scenario when the defendant’s stress and anger continued. However, the underlying facts in Defendant’s case are not sufficiently similar to those in Whitsett

to cause us to reduce his offense.

Defe ndant ignores the fact that the defendant in Whitsett onl y suspected

his wife was unfaithful until the morning of the day he shot the victim. After receiving confirmation of his wife’ s illicit affair, Whitsett appeared relatively

calm. In reality, this was not the case. L ater, when Whitsett observed the victim drivi ng down the road looking happy while his own life had fallen apart, he lost control of himself. Whitsett chased the vi ctim “with an abandon indifferent of consequences and so reckless as to almost run his truck off the road on more than one occasion....” Id. at 5. While careening down the road, Whitsett loaded the gun he had with him and began to fire wildly, oblivi

ous to the fact that there were innocent people in the vicinity. After Whitsett caught andshot the victim, he proceeded to beat him in the head with the steel barrel of the shotgun, using

so much force that he ultimately bent the barrel. The Whitsett court determined

that the adequately provokedpassion under

which the defendant was laboring at the moment he committed the killing

was pr oduced by the

additional information just furnished him that day. Id. at 6. In other words, when the defendant unexpectedly saw the victim shortly af ter rec eivin g information co rrectly apprizing him of her infidelity, he lost his mind. The passion was sufficiently great as to obscure his

reason. Id. Under circumstances such as these, “the killing will be redu ced to manslaughter,” providedthe passion has not had time to cool. Id. (quoting Davis v. State , 28 S.W. 2d 9 93, 996 (T enn. 1930 )). Further, the court in Whitsett specifically found that the verdict of murder in the second degree as defined at the time was not sustained by the e vidence. Id. at 7.

Comparing the facts

in Whitsett

to Defendant’s case, the instant record contains no evidence that Defendant was not

thinking rationally or that he received any new inf

ormation that migh

t incite passion “sufficient to lead a reasonable person to act in an irrational manner” on the day that he killed Elliott. In cont

rast to Whitsett , Defendant had received confirmation of h

is wife’s infideli

ty months beforehand. Moreover, the proof indicates that Defendant did not unexpectedly encounter Elliott as did t he defendan t in Whitsett , but, instead, that Defendant went

searching for

Elliott, methodically

acquiring guns and ammunition along the way. Un like Defendant’ s situation, Whitsett possessed the gun used as the murder weapon for a reason other than

to shoot someone. Whit sett

was returning the gun to its owner after borrowing it. There was no evidence that Whitsett intended-7-

to shoot anyone prior to the incident. For the above reasons, we find that the cases are significa ntly dissimilar and, therefore, the court’s holding in Whitsett does not help Defe

ndant.

Defendant

also cannot rely on the decisions in Drye and Davis because, again, the facts and circumstances deviat e substantia lly from those in Defendant’s case. First, in Drye v. Stat e , 184 S.W.2d 10 (Tenn. 1944), the defendant was certifiably insane . Th e expert in Drye testified that insanity of the defen dant’s type was “circular,” going through alternating periods of depression and remission. Just prior to killing his wife, the defendant was reported to have gone “to pieces.” Witnesses testified that he w as “nervous”

and “shaking all over.” His employer likewise testified that he looked like “a wild man.” While the supreme court conceded that the defendant’s reason may have not been so far dethroned as to render the killing excusable, it was clear he did not act with that coolly formed premeditated deliberation which was an essential char acteristic of first degree murder. Id. at 12.

Sec ond ly, the Drye court

did not reduce the defendant’s charge to manslaughter. The court in Drye only found th

at, while there may not be suf ficient provoca

tion to reduce the

killing to manslaughter, “still there may be such provocat

ion as to excite pass

ion in fact,and if the purpose to k ill is formed in passion thus excited, and executed without time for the passion to cool, it is not murder in the first degree, but murder in the second degree.” Id. at 1 3. P ut a not her w ay, the Drye
court went no further

than to hold that conviction of the defendant for murder in the first degree was not sustained and,

consequently

, reversed the tr

ial court’s judg

ment.

Here, Defendant was not declared leg ally ins ane d uri ng hi s tr ial or at any t ime in h is h ist ory. We note also

that the passion which provoked the Drye defendant was significantly more than that passion evinced

in Defendant’s circumstances, and still the Drye court did n ot reduce th e charge to voluntary manslaughter. Defendant’s reliance on Drye is thus unfounded.

For similar reasons, Davi s v. St ate , 28 S.W.2d 993 (Tenn. 1930), does not support Defendant’s argument. The d efendant, Dr. D

avis, was found to be operating under an “insane delusion” when he killed the man who he falsel y believed t

o be having an affair with his wife. At the conclusion of his trial, the jury found Dr. Davis insane on the subject of the vict im’s relations withhis wife, but neve

rtheless found him

guilty of second degree murder. At the time, Tennessee law required that Dr. Davis be found guilty if he was able to distinguish right from wrong at the time of the crime. The supreme court subsequently reversed Dr. Davis’ convict ion, recogni zing the doctrine of insane delusio n: “ a homicide committed under an insane delusion is excusable, if the notion embodiedin the delusion and believed to be a fact, if a fact indeed would have excused the defendant.” Id. at 996. Because Dr. D avis was so deran

ged on the subjec

t of his wife’s supposed relations that he remained deaf to the voices of reason and conscience, the supreme court

found that he was therefore possessed by an insane delusion. And, a defenda nt acting und er s uch temporary mental stress is presumed to be incapable of malice, a then essential element of murder. Id. at 996.-8-

Unlike Davis , the record in Defendant’s case presents no proof that he was acting under any type of “insane delusion” at the time h e c ommitted the killing. Defendant’s reliance on Davis is therefore misplaced.

The evidence in this case, when viewed in the light most favorable to the State as it must be, supports Defendant’s conviction for second degree murder. Second degree murder is “[a] knowing killing of another.” Tenn. Code Ann. § 39-13-210 (1997). A person acts “knowingly” with respect
to a result of the person’s conduct when the person is aware that the conduct is rea

sonably ce

rtain
to cause the result. Id. § 39 -11-302(b). T he proof adduced at trial established that Defendant prepared to kill Elliott. The evening that Defendant committed the crime, he was armed with two guns

. Defenda nt had his cousin then drive him to a place where he could pick up bullets. When Defendant

encountered Elliott, he chased him, fired at him, then returned to Miles’ car for his other gunand cigarettes. Immediately a fterward, Defendant

pursued Elliott to

Arby’s restaurant where he grabbed him and shot him in the head at close range. Clearly, Defen dant committed a knowing killing. Furthermore, we find noevidence of a state of passion, insane delusion, or any other mental state which would reduce the offense to voluntary manslaughter

.

When reviewing a tr

ial court’s judg

ment, this Court will

not disturb a verdi

ct of guilt unless the facts of the r ec ord are insufficient as a matter of law for a rational trier of fact to find the defendant guilty beyond a reasona

ble doubt. Jackson v. Virgini a , 443 U,S. 307, 318, 99 S.Ct. 2781, 2789 61 L.Ed.2d 560,

573 (1979). Acco

rdingly, w

e conclude that th

e evidence in th

e record was clearly su fficie nt for a rational jury to find Defendant guilty of second degree murder. Defendant is not entitled to relief on this issue.

Defendant

also argues tha

t because the original indictment for first degree murder was never formally amended to reflect the lesser charge of second degre e murder, the case agai

nst him should be dismissed or remanded for new trial. The indictment charges Defendant with the o ffense o f premeditated

first degree murder. The judgment shows that the indict ment was ame nded to char ge the lesser-included offense of second degree murder, but the record does not reflect exactly when, why, or under

what circumstances the amendment of the indictment occurred. The jury verdict form indicates t he “charged offense” was second degree murder. Since the record does not show t h e circumstanceof the amendment to the in dictment, it does not reflec t any object

ion by Defe

ndant to the amendment. Neither was the amendment of the indictment included in the motion for new trial. This issue is therefore waived. See Tenn. R. App. P. 3(e ); State v. Caughron , 855 S.W.2d 526, 538 (Tenn. 1993).

Even if not waived, Defend ant has suffere

d no prejudice. Se

cond degree mu

rder is a n includedcharge within an indictment charging first degree murder. See Statev. Dominy , 6 S.W.3d 472, 477 (Tenn. 1999) (le sser-included of

fenses are incl

uded in the offen

se charged and may form the basi s of a co nviction); State v. Bolden , 979 S.W.2d 587, 593 (Tenn. 1998) (second degree murder is a lesser-included offense of first degree murder). The proof adduc ed at trial, in fact, would have supported a conviction for first degree murder. However, for whatever rea son, the trial court-9-

amended the charge, presumably at the request of the State. Defendant’s assertion that the conviction should thereforebe reversed and dismissed or remanded for a n

ew trial is without me

rit.

III. L ength of Sentence

Defendant

cont ends that the trial court erroneously imposed a longer sentence than he deserves. Defendant does not dispute the fact that

he was sentenced as a Range II offender. Instead, Defendant

argues that the sentence should be twenty-fiv

e years, th e minimum in

the range, bec

ause Defendant’s compromised state of mind and the victim’s actions somehow partially justify or excuse his actions. We disagree.

“When reviewing sentencing issues ... including the granting or denial of probation and the length of sentence, the appellate court shall conduct

a de novo review

on the record of

such issues. Such review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are correct.” Tenn.Code Ann. § 40-35 -401(d) (1997). “However, the presumption of correctness which accompanies the trial court’s action is conditioned upo n the affirmative sh owi ng in the recor d that the trial cou

rt considered the

sentencing prin

ciples and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn.1991). In conducting

our review, wemust consider all the evidence, the presentence report, the sentencing principles, the enhancing and mitigating factors, arguments of counsel, the defendant’s statements, the nature a nd character of the offense, and the defendant’s potential for rehabilitation. Tenn.Code Ann. §§ 40-35- 103(5), 210(b) (1997 & Sup p.1999); Ashby , 823 S.W.2d at 169. “The defendant has th e burden of demonstrating that the sentence is improper.” Id. Because the record in this case indicates that the trial court properly considered the sentencing principles and a ll relevant facts and circumstances,

our review is de n

ovo with a presumpt

ion of correctne

ss.

Defendant

was convicted of second degree murder, a Class A felony

. See Tenn. Code Ann. § 39-13-210(b) (1997). The sentence range for a Range II offender convicted of a Class A fe lony is between twenty-five and forty years. Tenn. Code Ann. § 40-35-112(b)(1) (1997). The presumptive sentence for

a Class A felony

is the midpoint of the range if there are no enhancement

or mitigating fac

tors. Tenn. Code Ann. § 40-35-210(c) (1997). If the court finds that enhancement andmitigating fac

tors are applicable, the court must begin with the midpoint and enhance the
sentence to appropriately

reflect theweight of any statutory enha ncement factors and then the court
must reduce the sentence

to appropriately

reflect the weight of any mitigating fa ctors. See State v. Chance , 952 S.W.2d 848, 850-51 (Tenn. Crim. App.1997).

During the sentencing hearing, the tri a l court found the following enhancement factors applicable: (1) the defendant has a previous history of criminal convictions or criminal behavio

r in addition to those neces sary to establish the appropriate range; (8) the def endant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the

com mun ity; (9) the defendant possessed or employed a firearm, explosive device or other dead l y weaponduring the commission of the offense; (10) the defendant ha d no hesitation about committing

a crime when therisk

to human life was hi

gh; and (13) the

felony was

committed while on r

elease-10-

status (parole) from

a prior felony conviction. See Tenn. Code Ann. 40-35-114 (1), (8), (9), (10) and (13)(B) (1997). Beca use the maj ority of Defend ant’s crimi nal histor y was utilize d to achieve Range II offender status , the trial court g ave enhanceme

nt factor (1) some

weight but,in the court’s wor ds, “not a tremendous amount.” The remainder of the factors were given substantial weig ht, however. Spe cif ica lly, Defendant’s sentence was enhanced because D efendant was fo und unwilling to co

mply with conditions of his previous sent ences involving release into the community; Defendant possessed

a firearm to kill the victim (and this was not an element of t he offense); De fendant’s “execution style” murder in cold blood was performed without hesitation and other individuals in the restaurant were at risk; and Defendant committed the murder while on parole.

The trial court also considered two mitigating factors: (2) the defendant acted under strong provocation; and (3) substantia l grounds exist

tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense. SeeTenn. Code Ann. 40-35-114(2) and (3) (1997). The trial court

then determined that defendant was entitled to “some mitigation” under factor (2) b ecause w hen “you are shot by another indi vidual, you are going to have less than k ind feelin gs towardthat individual thereafter.” The court further found no reason to “excuse or jus t ify the defendant’s conduct” in

accordance w

ith mitigating factor (3). In sum, the trial court concluded that mitigation, what l

ittle there was, w

as far outweig

hed by the e

nhancing fact

ors.

Next, the trial court began at the midpoint of the range for Defendant’s sentence, thirty-two yearsand six months. The record reveals that the court considered the evidence presented at trial andat the sentencing hearing; the presentence report; the principles of sentencing and arguments as to sentencing alternatives; the nature and characteristics of the criminal conduct involved; and the information offered by

the State and Def

endant regar

ding enhanceme

nt and mitigating

factors. Furthermore, in accordance with the purposes outlined in Tenn. Code Ann. § 40-35-102, the record shows that the trial court deliberated on the need to provide an effective g

eneral deterr

ent, restrain defendants

with lengthy

histories of crimin

al conduct,encourage re

habilitation wher

e feasible and impose confinement whe

re it is necessary to protect society and where measures less restrictive than confinement

have frequ en tly or recently been applied unsuc cessfully. The aforementioned considerations,

examined in light of Defendant’s attitude an d philosophy (i.e., Groves’ testimony
at the sentencing hearing that Defendant had said, “Don’t nobody f— with Joseph Miles”), caused the trial court to determine that a fair and just sentence in De

fendant’s case

would be the maximum, forty y ears.

Defen dant does not challenge th e application of the enhancement factors per se, but maintains that because Defen

dant’s victim had a

n affair with his w

ife, shot him in the arm on a previous occasion, and then flaunted the fact that the State “approved” of his victim’s actions by not incarceratinghim, this Court should reduce his sentence to the minimum in the range. We do not agree. Defendant

cites no precedent in Tennessee case law to support such expectations. The proper statutory starting point

for Defendant’s sentence is thirty-two and one-half years. See

Tenn. Code Ann. § 40-35-210(c) (1997). We conclude that four heavily-weighed enhancement factors ta ken in conjunction with one comparatively insignificant mitigating factor is quite sufficient to ra i se th e-11-

sentence seven and one-half years from its statutory midpoint to forty years. The trial court imposed an appropriate sentence in this case. Defendant is not entitled to relief on this issue.

IV. The Conspiracy Theory

Last ly, Defendant conten ds that the doctrin e of plain error

pursuant to Tenn. R

. Crim. P. 52(b) justifies dismis sal of the char ges against him on the ground that the State participated in a conspiracy

to killDefe nda nt. Spe cif ica lly, Defendant argues that the State “set up” Defendant to be killed by Elliott when it refu se d to incarcerate him for shooting Defendant in October 1995. Defendant

claims that because heis an “ex-con,” the State declined to a dequately p

rotect him. This refusal subsequently forced Defendant into a “kill-or-be-killed” situation, a “show-down” of sorts, which resulted in Elliott’ s untimely death. Defendant contends that if the State had done its job, Elliott would be alive today. We disagree.

Rule 52(b), Tenn. R. Crim. P., is known as the “plain error” rule. It provides that “[a]n error which has affected the substantial rights of an accused may be noticed at any time, even though not raisedin the motion for a new trial or assigned as error on appe

al, in the discreti

on of the appellat

e court where necessary to do substantial justice.” A plain error is not j ust an error that is conspicuous, but“is an especiall

y egreg ious error that str

ikes a t the fairness, integrity, or public reputation of judicial proceedings.” State v. Adkisson , 899 S.W.2d 626 (Tenn. Crim. App. 1994).

We find no error in th

e record befor

e us which rises to t

he level of “plai

n error” contemplated by Rule 52(b), and no support or e vidence for Def

endant’s conspir

acy theory

in the trial record or Defendant’s brief. Defenda nt cites United States v. Grostefon
, 12 M.J. 431 (Ct. M. App. 1982), but this opinion has no practical application to the matter before us. Issues which are not supported by argument, citation to

[relevant] authorities, or appropriate references to the record will be treated as waivedby this Court. See Tenn. Ct. Crim App. R. 10. Defendant is n

ot entitled to relie

f on this issue.

V. Conclusion

Based on all the foregoing, the judgment of the trial court is AFFI RMED.

____________________________________ THOMAS T. WOODALL, JUDGE