# FILED
December 1, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MAY 1996 SE SSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9510-CC-00334

) ) Montgomery County v. ) ) Honorable John W. Gasaway, Judge ) DMITRI JOHNSON, ) (Sentencing -- Second degree murder) ) Appellant. ) For the Appellant : For the Appellee : Edward DeWerff Charles W. Burson 103 South Third Street Attorney General of Tennessee Clarksville, TN 37

040 and Karen M. Ya cuzzo Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 John W. Carney, Jr. District Attorney General and Charles Bush Assistant District A

ttorney General 204 Franklin Street Clarksville, TN 37

040

OPINION FILED:____________________

SENTENCE VACATED; REMAND ED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Dmitri Johnson, appeals as of right from the twenty -year sentence imposed by the Cir cuit Court of Montgomery County for his convi ction upon a guilty plea for second degree murder, a Class A felony. The defendant contends that the trial court improperly relied upon facts not in evidence in its sentencing decision. He also contends that the trial court improperly appli ed three enhancement factors and refused to apply two addit ional mitigating factors . We believe that the case should be remanded fo r a new sentencing he aring.

This case involves the death of Blanie Watson at the hands of the defendant and Mary Ortiz,for which both were or iginally charg ed with first degree murder. The plea to second degr ee murder was a result o f an agreement by which the defendant also testified for the state in the trial of Ms. Ortiz

.
The basic facts surrounding the defendan t’s involvement in the killing are presented in the record on appeal primarily through the transcript of the de fendant’s guilty plea hearing , but also through his tes timony at the Ortiz t rial. The defendant was nineteen years old at the time of the killing and had a romantic relation ship with Ms. Ortiz at the same time she was having a relationship with the victim. Ms. Ortiz complained to the defendant that the vi ctim was abusing her.

In the early mornings hours of April 19, 1994, the defendant ar rived at the Ortiz residence and found the victim inside, shot but still alive. The v

ictim asked the defendant to take him somewhere, but the d efendant refused. At some point, the victim grabbed a nearby gun, and a struggle with the defendant ensued, the gun discharg ing into the floor. The gun jammed and w as no longer operable.3 The struggle continued betw een the two of them. The defendant stated that he was aware of the v ictim being a “big dr

ug dealer” with a l ot of violent friends and that he feared for his life if the vi ctim had gotten away. The fight continued as the defendant tried to stop the vic tim from escaping the house. The v ictim waited outside and the defendant picked up a stick and hit the victim. However, the victim made it across the street into a nei ghbor’s yard, w here the fight continued. The tw o fell to the ground, and the defendant found a rock -- described as the size of a cantaloupe -- and struck the victim in

the head. The autopsy performed by Dr. Charles Harlan reflected that the cause of death was “a culmination of the blows to the head as well as the shots to the body.”
The defendant went home and told his pare nts. His parents took hi m to the police station and he turned himself in. The defendant cooperated with the police from the very beginning

.

The record reflects that at the time of the of fense, the defendant was a nineteen-year-old hig h school senior with learning disabiliti es. Both the defense and the state described the defendant as bei ng used by Ms. Orti z, with her taking advantage of his mental abili ties, emotions and affections. The defendant has no previous convicti ons or criminal behavi or. The defendant expressed his r emorse. The state requested that under the circumstances of the case and the defendant’s cooperation, the trial cour t should be lenient in sentenci ng.

The trial court found the following enhancement factors listed in T.C.A. § 40-35-1 14 to app ly:

(4) the victim of the offense was particularly vulnerable because of physic al or ment al disabi lity, (5 ) the defendant treated or allowe d the victim to be trea

te d with exceptional cruelty during the commission of the offense, and4 (9) the defendant possessed or employed a firearm , explosive de vice or other

deadly weapon during the commi ssion of th e offense. The trial court found the following mitigating factor s listed in T.C.A. § 40-35- 113 to apply: (9) the defendan t a ssisted the authorities i n uncovering

offenses committed by oth er p ersons or in detecting o r apprehending other persons who had committed the offenses, (10) the defendant assis te d the authorities in locati ng or recovering any pr

operty or person inv

olved in the crime, (12) the defendant acted under duress or un der the domination of another person, even though the duress or

the domination of another person was

not sufficient to constitute a defense to the crime, and (13) other nonstatutory mitigating factors ex ist. The tria l court fo und that the def endant t urning him self in to the auth orities im mediate ly, giving a statement to authorities, cooperating with the authorities, and testifying against Mary Ortiz cons

tituted mitigating factor s under factor (13).
The trial court rejected as a mitigator the defendant’s claim tha t because of his youth, he lacked substa ntial judgment in committing the offense. SeeT.C.A. § 40-35-113(6). It did not bel ieve that the fact that the defendant w as nineteen was sufficient to mitigate, giv en his level of intelli gence shown by his testimony and actions. The trial court also rejected as a mitigating factor the defenda nt’s claim that the offense was committed under such unus ual circumstances that it is unlikely that a sus tained intent to violate the law motivated his conduct. See T.C.A. § 40-35-113(11). It s tated that the defendant had time to think and r eflect during the course of the ev ents and could have, and should hav e, stopped many times.
The trial court stated that confinement was necessary to avoid depreciating the serious ness of the offense and was particula rly suited to prov ide an effective deterrence to others likely to commit a simi lar offense. After noting its5

consideration of all of the matters relevant to sentencing , see T.C.A. § 40-35-210(b), it determined that the sentence should be twenty years i n the Department of Correction.

The defendant contends that all three enhancement factors were improperly applied and that mitigating factors (6)

and (11) should have been appl ied. In response, the state argues that the enhancement factors apply, b ut its brief fails to address the mitigating factors. Also, the state asser ts that it takes no position on the defendant’s request that we i mpose the minimum sentence of fifteen years.

Appellate review of sentencing is de novo on the record with a presumption that the trial co urt's determinations are c orrect. T.C.A. §§ 40-35-401( d) and -402(d). As the Sentencing Commission Comments to these sec tions note, the burden is now on the appealing party to show that the sentencing is improper. This means that if the trial court f ollowed the statu tory sentencing pro cedure, made findings of fact that are adequately suppor ted in the record, and gav e due consideration and proper weight to the facto rs and principles that ar e relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a diff erent result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, "the presumpti on of correctness which ac companies the trial court's action is conditioned upon the affirmative showi ng in the record that the tr ial court considered the sentenci ng principles and all relevant facts and circums tances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaning ful appe llate revie w,

the trial court must place on the record its reasons forarriving at the final se nten cing decision, identify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate h ow the mitigating and enhancementfactors have been evaluated and balanced in determining the sentence. T.C.A. §§40-35-2 10(f) (1990).1 For Class A fel onies committed on or af ter July 1, 1995, t he presumptive sentence is the midp oint of the ra nge. See 1995 Tenn. Pub . Acts, ch. 493 (amend ing T.C.A. § 40-35-210(c)). 6 State v. Jones , 883 S.W.2d 597, 59 9 (Tenn. 1994).

Also, in conducting a de novo review, we must consider (1) the evi dence, if any, received at the t rial and sentencing heari ng, (2) the presentence r eport, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the natu re and characteristics of the c riminal conduct, (5) any mitigating or statuto ry enhancement factors, (6) any statement that the defendant made on his own behalf and ( 7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-10 2, -103 and -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

The sentence to be imposed by the tr ial court is presumptiv

ely the minimum in the range unless th ere are enhancement factors present.T.C.A. § 40-35- 210(c). 1 Procedurally, the tr ial court is to increa

se the sentence within the range based upon the existence of enhancement factors and, then, reduce the sentence as appropriate for any mitig ating factors. T.C.A. § 40-35 -210(d) and (e). The wei ght to be afforded an existing factor is left to the trial court's discretion so long as i t complies with the purposes and principles of the 1989 Sente ncing Act and its findings are adequately supported by the record. T.C.A. § 40-35-210, Sentencing Comm ission Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.

The defendant’s initial complaint i s that the trial court i mproperly relied upon evidence submitted at the Or tiz trial -- not in his guilty plea or sentencing hearings -- to determin e the existence of the enhancement factor s. He points to the trial court’s references to evidence presented in the Ortiz trial by the defendant, Dr. Harlan, an Ortiz nei ghbor, and police 911 recor ds relative to the defendant hav ing enough time to be aware of the victim’s wounded condition when he acted as he did and to his acting without undue excitement or heat of pass ion.7 We note that at a subsequent hearing, defense counsel stated that although he wanted the tri al court to reconsider th e defendant’s sentence, he did not necessarily want a new sentencing hearin g. Also, although he filed a motion asking the trial court to supplement the record with the Ortiz trial testimony of the defendan t, Dr. Harlan, and William Harrop, counsel s aid at the hearing that he onl y wanted the defendant’s testimony to be a suppl ement to the record. In other w ords, if the record on appeal is deficient because it c ontains less than all matter s considered by the tri al court, we note that the defendant was in a position to correct the def iciencies but chose not to. Of course, the state coul d have supplemented the record, as well, but the obligation lies primar

ily upon the appellant to i nsure that the record is c omplete for appellate review purposes.

Moreover, we note tha

t a significant portion of the record on appeal that supports the defendant’s request for lenient sentencing is the transcript of the defendant’s testimony in the Or tiz trial. This means that while the defendant complains about the trial court’s r

eliance upon the Ortiz tr ial evidence in sentenci ng, he also wants us to consider part of that same evidence in his favor.

Unfortunately, the important fact is that the parties and the tr ial court relied upon matters that are not evidence in this case. Particularly, the t rial court relied upon its own memory of ev idence presented at the Ortiz trial in which the defendant was not a party. Although the trial court c an take judicial notice of it s own orders and judgments in cases before it, see Hughes v. State , 2 Tenn. Crim. App. 71, 73, 451 S.W.2d 696, 697 (196 9), reliance upon its own recall of the evidence in those cases is not the same.8 In State v. Preston Bernard Crowder and Cynthia Diane Southall , 01C01- 9304-CR-00143, Davidson County (Tenn. Crim. App. M ar. 14, 1995), this court s tated in the context of a sentencing hearing that “we do not think that the trial judge can take judicial notice of the facts, as he remembers them, underlying a guilty plea w

hich he accepted in an unrelated case.” Slip op. at 7. Similarl y, in State v. Ja ckie Crowe , 03C01-9606-CC-00225, McMinn County (Tenn. Crim. App. July 29, 1997), this court stated that although a trial court could take judicial notice under Rule 201, T enn. R. Evid., that a witness

testified to particular facts , it would move out of the r ealm of judicial notice and into the realm of being a witness if the trial court reli ed upon the credibility of that test imony based upon its memory of the testimony. Slip op. at 5-6.

In Vaughn v. Shelby Williams of Tenn., In c. , 813 S.W.2d 132 (Tenn. 1991), the trial court had considered its extra judicial observations of the plaintif f before trial in deciding the extent of the plaintiff’s vocational disability. The supreme court vacated the judgment, concluding that the judge became a witness to the proce edings, which is forbidden by Rule 605, Tenn. R. Evid. Id . at 133-34.

Under the circumstances i n this case, we are bei ng asked to review sentencing determinations bas ed upon the trial court’s r eliance upon its recollec tion of evidence from another trial that was not presented as ev idence in this case. Fr om both the trial court’s pers pective and the parties’ perspectives, substanti al information relevant to the enhancing and mitigating factors at issue in this case came from t he trial court’s recollection o

f the Ortiz trial ev

idence. However, non e of it is properly a par t of the record of the sentencing hear ing in this case.

Given such a circumstanc e, we have no means of conducti ng a de novo review of the record that would lead to an educated d etermination of an appropriate9

sentence. Therefore, we must vacate the defen dant’s sentence and remand the case for a new senten cing hearing.

____________________________ Joseph M. Tipton, Judge CONCUR:

_________________________ Gary R. Wad e, Judge

_________________________ William M. Barker, Judge