FILED

March 26, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9703-CC-00115

)

Appellee, )

) GIBSON COUNTY

V. ) 

)

) HON. DICK JERMAN, JR. JUDGE 

LATAVIS DIRAY BAILEY, ) 

)

Appellant. ) (SECOND DEGREE MURDER) 

FOR THE APPELLANT: FOR THE APPELLEE:

JOHN E. HERBISON JOHN KNOX WALKUP 

2016 Eighth Avenue South Attorney General & Reporter

Nashville, TN 37204

KENNETH W. RUCKER

TOM CRIDER Assistant Attorney General

District Public Defender 2nd Floor, Cordell Hull Building

107 South Court Square 425 Fifth Avenue North 

Trenton, TN 38382 Nashville, TN 37243

CLAYBURN PEEPLES 

District Attorney General 

TED NEUMANN 

Assistant District Attorney General

LARRY HARDISTER

Assistant District Attorney General

GARRY BROWN 

Assistant District Attorney General

110 College Street, Suite 200

Trenton, TN 38382

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Latavis Diray Bailey, appeals as of right from his conviction

and sentencing in the Criminal Court of Gibson County. Defendant was convicted

of second degree murder and was sentenced to serve twenty-five (25) years in the

Tennessee Department of Correction as a Range I Offender. On appeal, the

Defendant contends the trial court’s instruction to the jury on “flight” from the scene

of the shooting was error and argues the sentence imposed was excessive. We

affirm the judgment of the trial court.

While the sufficiency of the evidence is not in question, a brief review of the

facts is helpful for our analysis. On July 22, 1995, the Defendant and the victim , Tim

Jennings, attended a birthday party for Panicia Williams. The party was held at the

home of Kalesia Sowell. When the party got too loud, Panicia asked her guests to

leave, and it took her several attempts to actually get all of the parties outside of the

house and headed toward the street. Defendant and Panicia got into an argum ent,

cursing at each other, while walking down the driveway towards the street.

The facts are in dispute as to the following events leading up to the shooting.

Witnesses to the event testified that Panicia and Defendant began to fight, with

Defendant knocking Panicia to the ground. When Panicia’s friends intervened,

Panicia stated that she returned to the house. Defendant was knocked to the

ground by a blow from a heavy flashlight and was then kicked repeatedly.

Defendant testified that he was in fear for his life. The victim was standing in the

driveway behind his car watching the fight. According to several witnesses,

Defendant rose from the ground and walked over to the victim, put a gun to the
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victim’s chest and then shot him. The Defendant testified that he rose from the

ground in self-defense and shot into the crowd to protect himself. Defendant then

kicked the victim, dropped the gun and stood above the body. Defendant’s brother

grabbed the Defendant and picked up the gun from the ground, and the two ran

down the street. Defendant’s brother testified that he later disposed of the gun

himself.

JURY INSTRUCTION

Defendant argues that the trial court’s instruction to the jury on the evidence

of guilt from Defendant’s flight from the scene constitutes plain and prejudicial error.

The trial court instructed the jury that they could infer guilt from the flight of an

accused person. The instruction was as follows:

The flight of a person accused of a crime is a circumstance

which, when considered with all of the facts of the case, m ay justify

inference of guilt. Flight is the voluntary withdrawal of oneself for the

purpose of evading arrest or prosecution of the crime charged.

Whether the evidence presented proves beyond a reasonable doubt

that the defendant fled is a question for your determination.

The law makes no precise distinction as to the manner or method

of flight; it may be open, or it may be a concealment within the

jurisdiction. However, it takes both a leaving the scene of the difficulty

and a subsequent hiding out, evasion, or concealment in the

community, or the leaving of the community for parts unknown, to

constitute flight.

If flight is proved, the fact of flight alone does not allow you to find

that the defendant is guilty of the crimes alleged. However, since flight

by a defendant may be caused by a consciousness of guilt, you may

consider the fact of flight, if flight is so proven, together with all of the

other evidence when you decide the guilt or innocence of the

defendant. On the other hand, an entirely innocent person may take

flight and such flight may be explained by proof offered, or by the facts

and circumstances of the case. 

Whether there was flight by the defendant, the reasons for it, and

the weight to be given it, are questions for you, the jury, to determine.
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As the State correctly points out in its brief, Defendant failed to raise this as

an issue in his motion for a new trial. Therefore, this issue has been waived on the

basis of Rule 3(e) of the Tennessee Rules of Appellate Procedure. See State v.

Clinton, 754 S.W.2d 100, 103 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn.

1988). 

Defendant submits that “considering the challenged instruction in the context

of the entire charge and the proof at trial,” the trial court’s instruction constitutes plain

and prejudicial error, and thus should not be waived. Defendant admitted fleeing the

scene of the shooting with his brother. Defendant’s brother testified that directly

after the shooting, he and Defendant fled together, taking the gun with them from the

scene. Defendant’s brother stated the he went directly to his cousin’s house, then

to his aunt’s house to borrow a car in order to dispose of the murder weapon.

Officer Wyatt testified that Defendant was not at the scene after the murder and that

they did not find the Defendant that night. The jury was entitled to infer that, in

addition to fleeing the scene with his brother, the Defendant went with his brother

and concealed himself and the murder weapon that night based upon his brother’s

testimony. After considering the entire record in the case sub judice, we are

satisfied that any error in the trial court’s instruction on flight did not involve a

substantial right which affected the judgment nor resulted in prejudice to the judicial

process. Tenn. R. App. P. 36(b);Tenn. R. Crim. P. 52(a). Even if there was

insufficient evidence of Defendant’s flight and subsequent hiding out, the error was

harmless in light of the evidence. This issue is without merit.

LENGTH OF SENTENCE
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Defendant argues that the sentence imposed by the trial court is excessive.

He contends that the trial court erroneously applied enhancement factors and failed

to apply appropriate mitigating factors. Defendant urges this court to modify the

sentence, beginning with a presumptive minimum of fifteen (15) years and then

enhance and mitigate appropriately. 

When an accused challenges the length, range or the manner of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

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

There are, however, exceptions to the presumption of correctness. First, the record

must demonstrate that the trial court considered the sentencing principles and all

relevant facts and circumstances. Id. Second, the presumption does not apply to

the legal conclusions reached by the trial court in sentencing. Third, the

presumption does not apply when the determinations made by the trial court are

predicated upon uncontroverted facts. State v. Smith, 898 S.W.2d 742, 745 (Tenn.

Crim. App. 1994), perm. to appeal denied, id. (Tenn. 1995).

Our review of this sentence is de novo, without a presumption of correctness,

because the trial court failed to explicitly set forth its reasoning for the sentence

imposed and failed to state the relevant findings of fact justifying the enhancement

factors and how it determined the weight to which it applied each of the factors. The

trial court denied the application of any mitigating factors without providing any

reasoning. 
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A review by this court requires a consideration of : (a) the evidence, if any,

received at the trial and the sentencing hearing; (b) the presentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives; (d) the nature

and characteristics of the criminal conduct involved; (e) any statutory mitigating or

enhancement factors; (f) any statement that the defendant made on his behalf; and

(g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann.

§ 40-35-102, -103, -210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App.

1987).

Second degree murder is a Class A felony. Tenn. Code Ann. § 39-13-210(b).

As a Standard Offender, Defendant was subject to a sentence of not less than fifteen

(15) nor more than twenty-five (25) years. Tenn. Code Ann. § 40-35-112(a)(1). As

of July 1, 1995, the presumptive sentence for a Class A felony is the midpoint of the

applicable sentencing range. State v. Chance, 952 S.W.2d 848, 851 (Tenn. Crim.

App. 1997). As Defendant committed the offense on July 22, 1995, the trial court’s

finding that a twenty (20) year sentence was the presumptive sentence was

appropriate. If there are enhancement factors, but no mitigating factors, then the

sentence may be set above the presumptive sentence but still within the range; and

if there are enhancement and mitigating factors, then the court must start at the

presumptive sentence, then enhance as appropriate and reduce as appropriate.

Tenn. Code Ann. § 40-35-210(d) and (e). 

The trial court applied the following enhancement factors: the Defendant has

a previous history of criminal convictions or criminal behavior in addition to those

necessary to establish the appropriate range; the Defendant possessed or employed

a firearm, explosive device, or other deadly weapon during the commission of the
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offense; the Defendant had no hesitation about committing a crime when the risk to

human life was high; and the felony was committed while the Defendant was on

parole from a prior felony conviction. Tenn. Code Ann. § 40-35-114(1), (9), (10) and

(13). Defendant does not contest the use of enhancem ent factors (1) and (13).

During his testimony at the sentencing hearing, Defendant admitted to his being on

parole at the time of the offense and admitted to prior felony convictions. Defendant

argues that application of enhancement factor (10) is error because the risk to

human life is an inherent factor in the crime of murder. The factor pertaining to risk

to life may be applied in situations where persons other than the victim are in the

area and are subject to injury. State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App.

1995). Because testimony in the record indicates that Defendant used a weapon in

a crowded area where many others in the area in addition to the victim might have

been injured, the use of this enhancement factor is justified. Defendant also

suggests that the use of enhancement factor (9), that he used a deadly weapon in

the commission of the offense, should be given little weight because few murders

are committed without the use of a deadly weapon. Because Defendant fails to cite

any authority for this argument, this issue is waived. Tenn. Ct. Crim. App. R. 10(b);

State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App.), perm. to appeal denied,

id. (Tenn. 1988). The trial court’s application of enhancement factor (9) was justified.

The Defendant cites several mitigating factors as applicable to his sentencing.

First, Defendant argues that he acted under strong provocation due to the

circumstances surrounding the shooting. Tenn. Code Ann. § 40-35-113(2). For the

same reasoning, Defendant asserts that substantial grounds exist which tend to

excuse or justify his criminal conduct, even though they fail to establish a defense

and it is unlikely that the motivation for his conduct was a sustained intent to violate
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the law. Tenn. Code Ann. § 40-35-113(3) and (11). While Defendant testified that

he had fallen to the ground in the fight, stood up and fired the gun into the crowd in

self defense, other testimony conflicts with that evidence. Several other witnesses

testified that Defendant walked directly towards the victim , who was not involved in

the fight at any time, and shot him point blank in the chest. Medical testimony

indicated that the “muzzle of the weapon was up against the skin surface at the time

the weapon was fired.” There was more than sufficient evidence for the trial court

to have determ ined that the above mitigating factors did not apply.

Defendant also suggests that because of his youth, he lacked substantial

judgment in comm itting the offense. Tenn. Code Ann. § 40-35-113(6). While

Defendant was nineteen (19) years of age at the time of this offense, there is no

further evidence in the record to indicate that his age alone constitutes a lack of

judgment. There is nothing in the record to indicate the Defendant’s age in context

of his maturity, experience, mental capacity or development, nor any other pertinent

circumstance tending to demonstrate his inability to appreciate the nature of his

conduct. See State v. Carter, 908 S.W.2d 410 (Tenn. Crim. App. 1995) (citations

omitted). Finally, Defendant argues that he expressed remorse for the shooting

during both the trial and the sentencing hearing. While remorse is a proper

mitigating factor under Tennessee Code Annotated section 40-35-113(13), the trial

court heard the evidence at the sentencing hearing and determined not to apply this

mitigating factor. Upon our de novo review, we agree with the findings of the trial

court. 

As the presumptive sentence for Defendant was twenty (20) years and four

(4) enhancement factors apply, we find the Defendant’s sentence of twenty-five (25)
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years to be appropriate and not excessive in light of the facts and circumstances of

the offense. We affirm the judgment of the trial court.

____________________________________

THOMAS T. W OODALL, Judge 

CONCUR:

___________________________________

JOSEPH B. JONES, Presiding Judge

___________________________________

JOHN H. PEAY, Judge