1 The appellant was originally charged by indictment wi th premeditated first degree murder. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE June 2000 Session
STATE OF TENNESSEE v. JOHN PHILIP NOLAND
Direct Appeal from the Circuit Court for Cocke County No. 7088, Rex Henry Ogle, Trial Judge

No. E2000-00323-CCA-R3--CD - De cided August 3, 2000

This is an appeal by John Philip Noland of his Cocke County conviction f or t he second degree murderof Mar k Goins. The appellant is currently serving a twenty -three year sentence for thi s offense. He raises as err or (1) the trial c

ourt’s denial of his motion to suppr ess ; (2) the State’s violation of Brady v. Maryland ; (3) the insufficiency of the evidence; (4) the trial court’s refusa l to instruct the jury as t

o the defenses of

self-defense a

nd necessity ; (5) the trial cou rt’ s refusal to instruct the jury as to the lesser

included offense of criminally negligent homicide; and (6) the length of the sentence imposed by the trial court. After review of the record and the a pplicable law, we affirm the judg

ment of conviction . The sentence is modified to refle

ct a term of eig

hteen yea rs.

Tenn. R. App. P. 3; Judgm ent of the Circuit

Court is affirme

d; sentence modif

ied.

D AVID G. H AYES , J. delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., J. and J OHN E VERETT W ILLIAM S , J. joined.

Susanna Thomas, Asst. Publi

c Defe nder, Newport, Tennessee, for the appellant, John Philip Noland.

Paul G. Summers, Attorney Gene ral and Re porter, Michael Moore, Solicitor General, Mark A. Fulks, Assistant Attorney General, Al C. Sc

hmutzer, Jr ., District Attorne y General, and Ja

mes B. Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

The appellant, John Philip Noland, was found guilty by a Cocke County jury of the second degree murder of Mark Goins and was sentenced to twent y-th ree years in the Department of Correction. 1 In this appea l as of right, the

appellant raise

s the following iss

ues: I. The trial court erred by deny ing the appellant’s motionto suppress his statement2 Early in the inv estigati on, Agent Davenport le arned that

Mark Goins previously visited the vacant apartment with “at least one o ther man” a nd had en gaged in sex ual activity. 

### -2- made to law enfor

cement official

s;
II. The State

failed to timely provide defense counsel with all exculpatory evidence pursuant to Brady v. Maryland;
III. The evidence is i

nsufficient to sup

port a conviction for second degree murder;

IV. The trial court erred by refusing to instruct the jury as to the defenses of necessity and self-defense.

V. The trial co urt erred by refu sing to instruct the jury as to the lesser included offense of criminally negligent homicide; and

VI. The trial court improperly applied enhancement factors and failed to apply mitigating factors resulting in an excessive sentence.

After a review of the record and the applicable law, we affirm the judgment of the trial court

, but, for reasons discussed herein, the appellant's sentence is modified to reflect a term of eighteen yearsin the Department

of Correction. Th

is case is remanded to the trial court for entry of judgment consistent with this opinion.

Background

At appro ximately 5:00 p.m., on March 15, 199 7, Sue Suggs, an

employee a

t Overholt ’ s Hardware in Newport, observed Mark Goins climbing the stairs to an abandoned ap

artment across the street from the hardware store. She had observed Goins go to the apart ment on previo

us occas ions. 2 On this occasion, Goins was accompanied by a “person with long hair.” Ms. Sug g s remarked to Fred Lee and Hubert Willis “There goes Mark with a girl.” Fred Lee replied, “that’s no girl, that’s a man.” Upon arriving home a

t 10:00 p.m. that eve

ning, Lisa Re

ed, Ma rk Goins’ sister and legal guardian, became worried when she discovered that her b rother was not

at home. They began looking for Mark, and, wh en they cou

ld not locate

him, notified law enforcement officers. Mark Goins was twenty-seven

years old and

was mentally impaired. Ms. Reed testified that, although he could not maintain regular employment, he did perform odd jobs and ran erra nds for several businesses in Newport. His last chore included emptying the trash at L ong John Silver’s restaurant3 Newport Police Officers Steve Hudson and Mike Hazelwood were on patrol on March 15, 1997. On this date, both of ficers observe

d the appellant in

Newport a little after 5:00 p.m. He was 

### -3- and he would return home around 6:30 p.m.

On Sunday, March 16, Newport Police Sergeant Ronnie Dyke discovered the body of Mark Goins at the abandoned

apartment across the street from Overholt’s Hardware. TB I Agent Kel ly Smith, a member

of the Violent Crime

Response Team, was called to the crime scene to assist in the investigation. Agent Smith described, “upon entering through the door . . . behind the door . . . there
was located the body of the deceased victim.” “ . . . [T]here wa s some broken glass and a broken picture frame located on the floor.” There was blood on the wall located near the front door. The victim was on his side turn

ed face down an

d he had some cloth

betwe en his hands . In the bedroom, they discovered a bed; blood was located on the bed and on the walls in a number of places.

Dr. Cleland Blakeperformed the autopsy on the victim. He discovered three stab wounds to the left side of t

he neck. The lar

gest of the wound

s went very sligh

tly upward b

ut generally

straight into

the neck, sever

ed the left caro

tid art ery, the main artery going up the neck and went across the lower end of the voice box at the top of the tra chea or the bre

ath i ng tube. . . .In other words massive hemorrhage into the lungs. That’s the lethal wound that caused him to bleed out and drown in his own blood.

The other two wounds were not fatal. Dr. Blake opined that the victim would have survived three to seven minutes from infliction of the fatal wound until he died. The victim’s body

also evidenced
someabrasions and contusions which would have occurred prior to death and

were consistent w

ith beating with a fist. Dr. Blake testified as to the presence of sexual activity a t the time of death:

. . . Some sexual activi

ty had been going on with [the victim’s penis.] I can’t tell you whether it’s hand, mouth or whatever but there was mucus draining from the end of the peni s and it was swollen and the end of the penis was wrinkled so it had been strutted. It had been fully distended and then had relaxed and the skin was wrinkled
over the end of the penis. So some sexual activity had been, he had been involved in some sexual activity.

Dr. Blake was unable to determine a time of death.

TBI Agent David Davenpor

t ass isted local authorities in the investigation of Mark Goins homicide. Through his investigation, the appellant was developed as a pos sible s uspect. When Agent Davenport first talked with the appellant, “he told me that he was at the Brown House all

day, all evening on Saturday. He was not in Newport, that he lived with June Montgomery and that his truck was torn up and he couldn’t come to Newport.” Agent Davenport learned later that th e appellant had been in Newport on the day of the murder and re-interviewed the app ell ant fiv e days later, on March22. On this date, Agent Davenport informed the appellant that Maelon Woods and other witnesses had provided information that theappellant had been in Newport on March 15. 3 Theobserved

with Maelon Woods in the alley between Woodlawn Avenue and McMa han Street. Thomas Webster also observed the appellant in Newport on the date of the murder; he observed the appellant walking

toward the court

house yard

with the victim.


### -4- appellant conce

ded that he was in Newport last Saturday; it was early, he went to Freddie’s Bar looking for Maelon Woods; he drank a beer. . . and that he remembered running into Mark Goins at Freddie’s and bumping into him; that he had never talked to him. . . My truck tore up and I parked it in front of the courthouse. I lied to you the last time I talked to you because I thought I was violating my probation for gettingconvicted for DWI the day befo re i n Co urt in C ock e Co unt y.
The appellant maintained that he did not know anything about

the murder of Mark Goins. Agent Davenport

then began presenting the appellant with hypot he tical scenarios, i.e. , what if the appellant’s hair, blood or fingerprints were found at the crime scene. At this point, the appellant hung his head and said “yes, he’d been in there and tha t he had stabbed the Goins boy.”

The appellant

then provided the following statement, which was reduced to writing by Agent Davenport: Last Saturday, March the 15 th , 1997, I came to Newport driving my truck. I got here kind of ea rly. My truck broke down and I had to leave it in front of the Courthouse. I walked downtown to Freddie’s Ba r looking for Mae

lon Woods. I drank some beer at Freddie’s Bar. . . . When I got ready to leave I ran into Mark Goins and we spoke. I had seen him around townbefore but didn’t really know him. I looked for Maelon
somemore. I run into Mark again. I sa

id, hey, man

, can you he

lp me push my truck off. He mumbled something and we started walking toward the Courthouse. Mark sai d he had to go up to the a partment. He was

carrying something in his ha

nds, looked like a sack or

something. I followed him upstairs to an apartment. We went into a room and I sat down on a mattress in there. It was still day light. I thought the boy was going to ch

ange clothes or

something. I

guess I laid

down and passed ou

t. When I came to the boy had my brit ches down and unzip

ped. He was sucki

ng my dick. I had a Case So

dbuster knife in

my right front pocket. . . . I just lost it when I woke up and found Mark sucking my dick. I took the knife out and started stabbing him. I don’t know how many times I stabbe d him. The boy was naked when I woke
u p and he was on top of

me sucking my

dick. When I sta

bbed him he jerked. H e tried to hold on to me and I stabbed him

again. I got my britc

hes on and got the

hell outof there. I went back downtown, found Maelon and he came up and he

lped me start my truc

k. We had to push

it off. I went back to the Brown House. I g ave the knife I used to “Whopper” that lives on Fines Creek in N orth Carolina. This was the other night. The clothe

s I had on I threw in the French Broad

River sometime Sunday at J.P.’s Campgroun

d. I threw the

work boots I ha

d on in th e dumpst er across fro m Miss Murr’s s tore. I didn’t mean to kill this boy. I just don’t like gay people. I didn’t find out he was dead until Sunday morning. I di

dn’t mean to kill4 Thom as Rathbo ne comm itted suicide p rior to the co mmence ment of the ap pellant’s trial.
5 After the State r

ested, the def

ense moved for a judgment of acquittal

as to premeditated murder. After lengthy argument by counsel

and caref

ul consi deration by the t rial cou rt, t he court g

ranted t he motion f

or judgment

of acquittal as to the charg e of preme ditated mur der. 

### -5- him. I just wanted him to get the hell away from me. . . . “Whopper” was determined to be Thomas Rathbone. 4 He was located and the knife was handed over to law enforcement officers and sent to the Crime Laboratory

. Special Agent

Forensic Scientist Emily Samera Zavaro examined the knife for the pre sence of blood. Although human bl ood was present, there was an insufficient amount of the substance from which to obtain a DNA profile type. Based upon this proof, the jury found the appellant guilty of second degree murder. 5

I. Motion to Suppress

A hearing on the appellant’ s motion to suppress s tatements made to law enforcement officers
was heard by the trial

court on December 7, 1998. TBI Special Agent David Davenport testified that he interviewed the appellant on March 17, 1998

. At this time, the app ellant was not unde

r arrest, had not been charged with any offense, and had arrived at the

station voluntarily

. During this firs

t interview, the appellant denied having been in Newport on the date of the murder. The appellant then left the station. Agent Davenport again talked with the appellant on March 22. The appellant
was in the Cocke County jail at this time on an unrelated charge. On this occasion, Agent Davenport advisedthe appellant of h is constitutional rig

hts and the appella

nt sig ned a wai ver of rights fo rm. During this

statement, the ap

pellant admitted to

being in Newpor

t on the date of the

murder and to seeing the victim on that date. He explained that he had lied about bei ng in Newport previo usly because he was concerned that his probation might be violated. Twenty minutes later, the appellant provideda third statement, confessing to the murder of Mark Goins. Agent Davenport testified that at no time on March 22 nd didthe appellant invoke his right to an attorney. The appellant never asked for an attorney, he never indicated that he could not read or wr ite, o r th at he could not read the written statement. Age

nt Davenport wen

t over the stateme

nt “verbatim with th

e appella nt, eac h word, and gave him the oppo rtunity to re

ad it as we read it. He

said he understoo

d it. He signed it on each page, initialed all corrections.”

The appellant testified that, on March 21, 1997, he was in the Cocke County jail finishing
a forty-eight

hour sentence on a DUI conviction. While serving this sentence, Agent Davenport and two other officers removed the appellant from the jail and took him to a room in the police station. Agent Davenport began questioning the appellant about being in Newport and killing Mark Goins. He stated tha t Agent

Davenport threatened him with the electric chair. The appellant denied that

### -6-

Agent Davenport ever

advised him

of his rights, inc

luding his rights to cease questioning and have
a lawyer present. The appellant stated that he told the officers that “if I need one [an attorney ] I want
one but I can’t afford one.” After they questioned him, he asserts that they showed him a paper and told him to sign it. He stated that A gent Davenpor t instructed the ap

pellant that this wa

s his statement and that if

he signed it he could go home after forty-eig ht hours. The appellant testified that, although he did sign and initial it, he could not read the statement. The appellant explained that the contents of the statement transcribed by Agent Davenport we re misleading and

not an accurate reflectionof the in

tervi ew session. In maintaining that he could not read and write, the appellant explained that he was carrying a book “to look at the pictures in it.”

The appellant’s girlfriend, Jun e Mo ntgo mer y, testified that the appellant could not read. She explained that the book that th e appellant car

ried with him was “more like a security blanket.” She stated that the book conta ined pictures of N

ative Americans , a subject of inte rest to the appella

nt. Likewise, the appellant’s sister, Christine O’D ell, conf irmed that the appellant cannot read and write. She stated that the appellant was unable to attend public school and was sent to a special school.

Based upon this evidence, the trial court made the following findings of fact and conclusions of law:

. . . Mr. Nolanddoes have so me difficul ties in com municatin g. It is obvious that he is notan extremely

well educated gentleman and certainly that is no refle ction upon him.

But the Court has to look first of all at the totality of the circumstances under which these statements were given. . . .

Based upon the credibility of the witnesses in this case and comparing the testimony obviously there is divergence in testimony . B ut the Court finds that Officer Davenport

at the time the statements wer e given d id advise the defe ndant of his Constitutional rights and took these s tatemen ts from him. In order to accept the defendant’s version of the statement . . . I would have to find the statement was entirely made up by Officer Davenport. And I find that at this juncture at least to be incredible that Officer Davenport simply made all this up.

And so the Court finds that the defendant volunt

arily waived his right to counsel after being fully

advised of his rights and

that he voluntarily made this statement and that he voluntarily signed that statement after having been

read his Constitutio

nal rights.

Now obviously each person has different mental abilities. That is clear. But I don’t think tha t the officers have an obligation to conduct or to have conducted a psychiatri c examination prior to

taking someone’s statement. That’s not the purpose of the Fifth Amendme

nt. Now certainly

someone with menta

l disabilities it

m ight affect what they understood

about it, but again it’s the duty of the officers to advi

se those people, each individual defendant before they ask them questions and before

### -7-

they take a statement. And the Court is satisfied that Officer Davenport did exactly as he testified. And therefore the Motion to Suppress the statements is respectfully overruled.

The appellant contests the ruling of the trial court asserting that he

could not have know

ingly and intelligently

waived his Miranda

rights because

of his impaired mental ability. Furthermore, the appellant argues that, regardless of its admissibility, the statement procured by Agent Davenport is unreliabl e (1) due to A ge nt D avenport’s “misleading statements” of the evidence resulting in a confession obtained by deception and (2) because the statement was transc r ibed ina careless and incomplete manner.

Prior to custodial questioning, law enforcement officials must war

n a suspect of his r

ight to
r emains ilent, his right to assistance of counsel during interrogation, and the consequences of waiving those rights. See Arizona v. Mir anda , 384 U.S. 436, 467-73, 86 S.Ct. 1602, 1624-27 (1966). To establish

a valid waiver of

these Miranda

rights, the State must prove by a preponderance of the evidencethat a Miranda warning was given and that the defendant understood his rights. State
v. Bush , 942 S.W.2d 489, 500 (Tenn .), c ert. denied, 522 U.S. 953, 118 S.Ct. 376 (1997). To be
co nstitutional, a waiver must be made with a “requisite level of comprehension,” such that an individual has “a full awareness of both the n a ture of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine , 475 U.S. 412, 421, 106 S.Ct. 1135, 1141 (1986); State v. Stephenson , 878 S.W.2 d 530, 544- 45 (Tenn. 19 94) (citin g Fare v. Michae l C. , 442 U.S. 707, 99 S.Ct. 2560 (1979); North Carolina v. Butler , 441 U.S. 369, 374-75, 99 S.Ct. 1755 (1979)). In determining whether a defe ndant unde rstood his rights, a court must consider the totality of the circumstances, including the defendant’s experience, education, backgr ound, intelligenceor capacity to understand the warnings and the meaning of a waiver. See general l y Bush , 942 S.W.2d at 500. In reviewing

the denial of a mot

ion to suppress, this court looks to the facts adduced at the suppression hearing which are most favorable to the State as the prevailing party. State v. Daniel , 12 S.W.3d 420, 423 (Ten n. 2000) (q uoting State v. Odom , 928 S .W.2 d 18, 2 3 (Ten n. 199 6)). In considerin

g the evi dence presented at the hearing, this court extends great deference to the fact-finding of the suppression hearingjud ge wi th r esp ect to w eigh ing c redi bil ity, determining fa cts, and resolving conflicts in th e evidence. Daniel , 12 S.W.3d at 423. Indeed, these findings will be upheld unless the evidence prepond erates otherwise. Id. Although deference is given to the trial court's findings of fact, this court conducts its own appraisal of the constitutional questions presented by reviewing the

law and applying it to the specific facts of the particular case. Id. (citing State v. Yeargan , 958 S.W.2d 626, 629 (Tenn.1997); Beare v. Tennessee Dept. of Revenue , 858 S.W.2d 906, 907 (Tenn. 1993)).

From our review of the record, we cannot conclude that the evidence pr

eponderates ag

ainst the trial court’s determination that the appellant’s waiver was voluntary. Agent Davenport testified

### -8-

that the appellant app

eared to unders

tand his Miranda

rights and the waiver; the appellant testified to the con tra ry. The trial court r esolved the cred

ibility issue a

gainst the appellant. Mor

eover, despite testimonyof

the appellant’s illiteracy, mental disability, and educa tional background; these factors do not , in and of t hem sel ves , ren der t he ap pel lan t’s sta tem ent inv olu nta ry. See State v. Perry , 13 S.W.3d 724, 738 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 199 9) (citing State v. Bell , 690 S.W.2d 879, 882 (Tenn. Cri m. App. 1985); Statev. Greer , 749 S.W.2d 484, 485 (Tenn. Crim. App. 1988); State v. Kelley , 683 S.W.2d 1, 6 (Tenn. Crim. App. 1984). Rather, they constitute factors for the trial court to con sider in eva luati ng the total ity of t he cir cumst ances . In th e present case, the appellant never indicated that

he could not read or write, Agent Davenport reviewed the transcribed statement with the appellant, the appellant was given the opportunity to review the statement and make any corrections, and he signed the statement. Moreover, the appellant explained the fallacy of hi s initial statement by stating his concern with violating conditions of his probation. The appellant’s actions indicate that he understood that he was invo lved in an adversarial process and that if he had something to hide, he could protect himself by not speaking. Although the re corddoes notshow the full extent of the appellant’s cognitive abilities, it does show that the appellant had the kind of concrete understanding of his rights necessary for an intelligent and voluntary waiver. The trial court made a c omm on sense ruling based on a preponderance of credible evidence that the ap pellant knowingly and intelligently waive d his rights to remain silent and to the assistance of counsel. The law does not require more.

The appellan t also asserts that his statements should not have been admitted because they
were obtained by deceptive interrogation tactics. Specifically , he contends that Agent D avenport inducedhim into making inculpato ry statemen

ts by misleadi

ng him regarding th

e evidence ag

ainst him. Agent Davenpo

rt testified that, d

uring the interr

ogati on, h e informed the appellant that “Maelon Woods had positively identified him

as being in town on Saturday.” He then continued to “l a[y] out some scenarios of what ifs, what if you had been seen going upstairs, . . . what if your fingerprints a

ppear in that room . . .,” “[w

]hat if we find y

our semen in that a

partment, what if we find your hair in that apartment.” Agent Davenport finally informed the appellant that he did not believe him. At this point, the appellant hung his head down and confessed.

In addition

to being knowing, the “relinquishm ent of the right m

ust be voluntary

in the sense that it is the product of

a free and deliberate choice rather than the product of intimidation, coercion,
or deception.” Stephenson , 878 S.W.2d at 544-45 ; Perry , 13 S .W.3d at 738. Agent Davenport’s h ypothetical

statements did not amount to deceptive, coercive, or intimidating tactics and d id no t induce the appellant to r

elinquish his Miranda

rights. Fir

st, the appellant volu

ntarily wai

ved his Miranda rights prior to being presented with the factual sce narios presente d by Agent

Davenport. Thus, the statements had no effe ct on th e appellant’s waiver. Moreover, the hypotheticals were basedupon physical evidence found at the crime scene and were not merely

“in the imagination of the interrogator.” See State v. Howard , 617 S.W.2d 656, 659 (Tenn. Crim. App. 1981). This issue is without merit.

Fin all y, the appellant ass erts that the state

ment is incomplete i

n that it was “

not fully memorialized at the time it was ta ken” and “beca

use its unreliability

is obvious on its face.” Again,6 Prior to the commencement of trial, defense counsel

requesteda continuance i n order to competentl

y review and inves

tigat e this materia l. This motion was

denied. 

### -9- the appellant orally

provided a statem

ent to Agent Davenpo

rt. Davenport re

duced the stateme

nt to writing, read “verbatim” the statement to the appellant and provided the appellant the opportunity to review and make corrections to the statement. The appellant signed the first and second pages of the statement, initialed the beginning and ending of the writing on each page, initialed

the corrections within the statement , and signed the end of the statement. Thus, the appellant acquiesced in the accuracy of the statement and adopted it as his own statement by signing each page. See generally People v. Ventura , 673 N.Y.S.2d 106, 1 07 (N.Y. App. Div. 1998). This issue is w

ithout merit.

II. BradyViolation

The appellant’s trial commenced on December 8, 1998, twenty-one months after his ar

rest. On December 3, 1998, defense counsel was “provided wi

th a quantity

of information out of Agent Davenpor t’s investigation fil e. . . .” Inclu

ded in this informat

ion was the stateme

nt of Jack Hill. 6 Mr. Hill indicated that he had seen the victim in his business after the time the State alleged he was killed by the appellant. The State responded that all reports resulting from the investigation from the crime scene were reported to defense counsel as soon as they received the reports. Indeed, def ense counsel was provided the informationfive days prior to trial at the same time the prosecutor’s office became aware of the material. The issue was br ought to the court’s attention and an instanter subpoena issued for Jack Hill. Jack Hill testified that he saw the victim in the Woodlawn Café at 6:00 p.m. on Saturday, March 15. The appellant concedes that this testimony “negat[ed] prejudice to the appellant’s case.”

In Brady v. Maryland

, 373 U.S. 83, 83 S.Ct. 1194 (1963), the Supreme Court held that the prosecution has a duty to furnish the defendant with exculpatory e vidence relating either to t h e defendant’s guilt or innocence or to the potential punishment that may be imposed. To establish a Brady violation, the appellant must show by a preponderance of the eviden ce three essent ial elements which include (1) the suppression of the information by the State; (2) the evid

ence was favor

able to the defendant; and (

3) the evidence

was m aterial. See State v. Edgin , 902 S.W.2d 387, 389-390 (Tenn.), as amended on reh’g , (1995). In the present case, the alleged Brady

material was disclosed to defense counsel prior to trial. Thus, the first pre requisite is not sat

isfied. Additional

ly, we would be co nstrained to

conclude that the

information was e

ither exculpatory

or material. The

witness’ statement placed the victim

at a business afte

r the alleged ti

me of his murder. T

he time of death was nota critical issue in the State’s prosecution as the appellant did not rely upon an al ibi de fense. Moreover, the statement does not absolve the appellant’s liability for the murder. Thus, we

fail to find a violation of Brady

.
Althoug h the appellant, in essence, admits that no constitutional violation oc curred, he “urge s this Court toreaffirm the State’s obligation to provide exculpatory information in a timely fashion.”

### -10-

“Tardy disclosure of Brady

material is gene

rally not reversible e

rror unless

the defendant can show that he was denied a fair trial.” United State v. Gordon , 844 F.2d 1397 (9 th Cir. 1988); United States
v. Shelton , 588 F.2d 1242 (9 th Cir. 1978), cert. denied , 442 U.S. 909, 99 S.Ct. 2822 (1979). A delay in disclosi ng Brady

material requir

es reversal only

if “the lateness o

f the disclosure s

o prejudiced

the defendant’s preparation or presentation of his defense t hat he was prevente

d from receiving

his constitutionally

guara nt eed fair trial.” Shelton , 588 F.2d at 1247. I n the present cas

e, defense counsel received the information five days prior to trial. The trial court was made aware

of defense counsel’s concerns and

issued an instanter

subpoena for the witness. The witness testified at trial consistent with his prior

sta tem ent . Ac cord ingl y, even if we were to find the statement exculpatory and material, we conclude that the lateness of the disclosure did not prejud ice the app ellant’s preparation of h

is defense. This is sue is without merit.

III. Sufficiency of the Evidence

The appellant next complains that the evidence introduced at trial is insufficient to

support his conviction for the second degree murder of Mark Goins. Specifically , he contends that

(1) the Statefailed to

prove the essential elements of second degree murder and (2) the State failed to prove the identity o

f the perpetrat

or beyond a

reasonable doub

t.

Tennessee Rule of Appellate Procedure 13(e) provides that findings of guilt "shall be set aside if the evidence is insufficient to support the finding by the trier of fact of g uilt beyond a reasonable

doubt." See also Jackson v. Virgini a , 443 U.S. 307, 317, 99

S.Ct. 2781, 2789 (1979). The jury conviction removes the presumption of innocencefrom the defenda nt and replaces i

t with
one of guilt; thus, on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn.1982). Moreover, the State is entitled to the strongest legitimate view of the evidence a nd al l reasonable or legitimate inferences which may be drawn th

erefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn.1992), cert. denied , 507 U.S. 954, 113 S.Ct. 1368 (1993) . This court m ay not reweigh or reevaluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (T enn.1978). These

principles a

re a pplicable to findin

gs of guilt predic atedupon direct evide nce, circumstan

tial evidence, or

a combination of bo

th direct a

n d circumstantial evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App.1990).

The appel lant asserts that none of the physical evidence collected at the crime sc ene identified him as the perpetrator. Additionally, he contends that the State failed to produce an eyewitness who could con clusively id entify the a

ppellant as the lon

g-haired in

dividual accompany

in g the victim tothe a bandoned apartment on the date of the murder. Essentially, he arg ues that the evidence adduced during trial is contrary to the appellant’s confession dated March 22, 1997. The identity of the defendant as the perpetrator is certainly an indispensable ele ment of any crime. The evidence offered to prove identity, however, can be either dire ct or circum stantial. State v. Thompson , 519 S.W.2d 789, 793 (T enn.1975); State v. Shelley , 628 S.W.2d 436, 438 (Tenn. Crim. App.1981). Indeed, in the case sub judice , identity wa s proved not only

circumstantially

, but also most directly by the appellant’s confe ssion, which left very little to speculation. See Monts v. State ,7 Our current crimin al code trea ts "self-defense" as justification for c onduct tha t otherwise wo uld constitute an

offense. Th us, the actor's con duct is "justified " or thoug ht to be right. See MODEL PENA L CODE § 3.01.



### -11- 379 S. W.2d 34, 4 0 (Tenn. 1964) (confession is direct evidence of guilt). Thus, the evidence establishing the

appellant as the p

erpetrator of th

e murder is more th

an sufficient.

Fin all y, i n order t o obtain a convicti on for second deg

ree murder, the

State is required

to prove that the appellan

t c aused the knowing killing of another. SeeTenn. Code Ann. § 39-13-210(a)(1). "A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the r esult." Ten n. Code Ann. § 39-11-302(b) (1997). In his confession, the appellant related, “I took the knife out and started stabbing him. I don’t know how many times I stabbed him. . . . When I stabbed him he jerked. He tried to hold on to

me and I stabbed him again.” This proof is sufficient for a rational trier of fact to conclude that the appellant was consciously aware of the nature of his conduct and that the conduct was reasonably certain to cause deat h. Acc ordingly, we find the evidence more than sufficient to supp

ort his conviction f

or second degr

ee murder. This is sue is without merit.

IV. Failure to Instruct Jury as to Defenses of Justification and Necessity

The appellant conten

ds that the trial co

urt erred by

refusing to instr

uct the ju ry as to the defenses of

self-defense a

nd the defense

of necessity. At trial, the appellant requested that the court charge the jury on these defenses. The court denied the appellant's requests, finding that there was no proof offered to raise self-defense or necessity as legitimate defenses in this case. Every defendant has the right to have every issue of fact raised by the evidence and material to his or her defense submitted to the jury on proper instructions. Tenn. Code Ann. § 39-11-203(c) (1997);Tenn. Code Ann. § 39-11- 204(d) (1997); see also State v. Jones , 889 S .W.2d 225 , 229 (Tenn. Crim. App.), perm. to appeal denied , (Tenn.1994). " [T]o determi ne whether a statutory defense is fairly raised by th

e proof so as to re

quire its submission t

o the jury, a

court must, in effect, consider the evidence in the light most favorable to the defendant, inclu

ding drawing a

ll reasonable inferences flowing from that eviden ce." State v. Bult, 989 S.W.2d 730, 733 (Tenn. Crim. App. 1998), perm. to appeal denied , (Tenn. 199 9) (citing State v. Shropshire , 874 S.W.2d 634, 639 (Tenn. Crim. App.1993)).

In order to establish a claim of self-defense, a defendant must show that the danger of death
or serious bodily harm wasimminent and impendi ng, manifested b

y some words or overt acts at the time cle arl y ind ica tiv e of a pres ent pur pos e to do i nju ry. 7 Tenn. Code Ann. § 39-11-611 (1997). See also State v. Ivy , 868 S.W.2d 724, 727 (Tenn. Crim. App.1993). Similarly, to establish a claim of
nece ssi ty, a defendant must show that he reasonably believed his conduct necessa ry to avoi d

### -12-

imminent harm and where the harm sought to be avoided is clearly greater than the harm caused by the criminal act. See Tenn. Code Ann. § 39-11-609 (1997); Sentencing Commission Comments, Tenn. Code Ann. § 39-11-609.

The ev idence in the present case does not raise an inference requiring an instruction on self-defense. There is no proof that the appellant believed there was the danger of immine

nt death
or serious bodily injury bas e d upon the victim’s a ctions of sexual ass

ault upon the appe

llant. Moreover, we conclude that th e defense of necessity was not fairly raised. The appellant’s confession dispels any finding that the appellant believed that he was threatened by imminent harm. Moreov er, we would only find rare occasions, of which this is not, where the harm sought to be avoided, i.e. , a sexual assault, is greater than the harm caused by the criminal act, i.e. , death. Thus, there was no error in the trial court's refusal to give such a charg e.

V. Lesser Included Offe nse
The appellant

additionally

complains that the trial court’s refusal to instruct the jury as to the lesser included o ffense of cri minally negli ge nt homici de constituted reversible error. Under Tennessee law, the tri al court has the statut ory duty to charge the jury as to the law of each offense “included” in an indictment. See State v. Burns , 6 S.W.3d 453, 464 (Tenn. 199 9) (citing Te nn. Code Ann. § 40-18-110 (1997)). Thus, the focus becomes what offenses are lesser included offense s of the offense

charged in the indictment. Our supreme court has provided the following definition of a lesser included offense: An offense is a lesser included offense: (a) if all of its statutor

y elements a

re included within

the statu tor y elements of the offense charged; or (b) it fails to

meet the definitio

n in part (a) only

in the respect tha

t it contains a statutory element or elements establishing
(1) a differ ent men tal sta te i ndi cat ing a les ser kin d of cul pab ili ty; and/or (2) a le ss s eri ous harm or r isk of h arm to t he s ame pers on, pro pert y, or public interest; or
(c) it consists of . . . fac ilitation of the offense charged . . . ; an attempt to commit the offen

se charged . . .solicitation to commit the offense charged.

Burns , 6 S.W.3d at 466-467.

### -13-

Criminally

negligent homic

ide is defined as “criminally negligent conduct which re

sults in death.” Tenn. Co de Ann. § 39 -13-212(a) (1997). Second degree murder is a knowing killing of anoth er. Tenn. Code Ann. § 39-13-210. Our criminal code defines the mens rea of criminal negligence

as o ccur rin g if a pers on a cts int ent ion all y, kno win gly, o r rec kle ssl y. Tenn. Code Ann. § 39-11-301(a)(2) (1997). Therefore, “an offense that requires tha t the a ccu sed act knowing ly necessarily

includes offense

s in which the accused’s mental state was one of criminal negligence.” See State v. Lynn , 924 S.W.2d 892, 899 (Tenn. 1996). Accordingly, criminally negligent homicide is a lesser included offense of second degree murder under part (a) of the Burns test. See generally St ate v. Ju mbo Kuri , No. M1999-00638-CCA-R3-CD (Tenn. Crim. App. at Nashville, May 25, 2000)( criminally

negligent homic

ide lesser includ

ed offense of se

cond degree mu

rder); State v. Vincent C. Sims , No. W1998-00634-CCA-R 3-DD (Ten n. Crim. App. at Jackson, Mar. 14, 2000) (criminally n egligent homic ide lesser includ

ed offense of se

cond degree mu

rder). This determination, however, is not conclusive that the evidence justifies a jury instruction on such lesser offense.
First, the trial court mus t determine wheth

er any evid

ence exists t

hat reasonable minds could accept

as to the lesser-included offense. In making this determination, the trial court must view the e v idence liberally in the light most favorable to the existence of the lesser-inc luded offense wi

thout making any

judgments on the credibility

of such evidence. Second, the trial court must determine if the evidence, viewedin this ligh t, is legally sufficient to support a conviction for the lesser included offense.

Burns , 6 S.W.3d at 469. Under Tennessee law, “criminal negligence’

refers to a pers on who acts with criminal negligence with respect to the circumstances surrounding theperson’s conduct or the result of that conduct when the person oughtto be aware of a substantial and unjustifiable risk that the circumstan ces exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care th at an o rdinary person would exercise under all circumstances as viewed from the accuse

d person’s standp

oint.

Tenn. Code Ann. § 39-11-106( a)(4) (1997). T

he focus in

a criminal negligence prosecution is the failure to perceive the r

isk created by

the defendant’s conduct. See generally Lewis v. State , 529 S.W.2d 550, 553 (Tex. Crim. A pp. 1975). Ind

eed, the offens

e of criminally

negli gent homicid

e involves three elements: (1) the defendant’s creation of a substantial and unjustifiable risk

that the death of another person would occur; (2) the defendant failed to per ceive such substantial and unjustifiable

risk; and (3) the defendant’s failure to perceive the risk was so negligent as to constitute in law a gross deviatio

n from the standar

d of care that a r

easonable person would obse

rve in the same situation. The distinction between criminal negligence and the mental states of intent, knowledge,

### -14-

and reckless, is that the latter involve an aw areness of the harm which will (or in some degree probably will) result

from the person’s acts, whereas negligence involves the failure to be aware of probable results in a situation in which the person has a legal duty of awareness. I n the present case, the proof, in the ligh

t most favorable

to the existence of the lesser-included offense, reveals that the appellant woke up to find the disrobed victim on top of h im performing fellatio. The appellant admitted that he “lost

it,” took his “knife out and started stabbing him.” It is clear from the facts of this case tha t th e app ell ant crea ted the ris k of deat h, t here by satisfying elem ent (1); however

, it is equally clear that, in re

ference to the second eleme

nt, the action of the a

ppellant stabbing

the victim in the throat demonst

rates that the ap

pellant perceiv

ed the risk but also

shows that he was aware

that his conduct was reasonably certain to cause the death of the victim. Thus, contrary to the appellant’s contention, we concludethat the trial court did not err in not submitting aninstruction to the jury up

on the offense of

criminally n

egligent homic

ide. This issue is wit

hout merit.

VI. Sentencing

In his final challenge, the appe llant avers that the trial court improperly considered and applied statutory enhancing factors and failed to apply statutory mitigating

factors in sentencing him to serve a sentence of twenty-three y ears in the Department of Correction. He contends that the trial court’s application of enhancement factor (4 ), the v ictim was particularly vulnerable, Tenn. Code Ann. § 40-35-114(4) (1997), is unsupported by the record and that application of enhancement factor (9), use of d eadly wea

pon during commiss

ion of the offense

, Tenn. Code Ann. § 4

0-35-114(9), is
erron eous. Moreover, he contends that the trial court failed to properly consider a nd wei gh i n mitigation factors which should have resulted in a lesser sentence. Spe cific ally, the appellant submits that the co urt failed t o consider t he followi ng mitigati ng f actors: (2) the appellant acted under strong provoca

tion and (3) substa

ntial grounds exist

ten ding to excuse or justify the defendant’s criminal conduct though fa iling to establish a defense. See Tenn. Code Ann. § 40-35-113 (2); -113(3) (1997).
Review, by this court

, of the length, r

ange, or manne

r of service of a

sentence is de novo with
a presumption that the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d) (1997). See also State v. Ashby , 823 S.W.2d 166, 169 (Tenn.1991). Thus, this court may only modify a sentence if the sentenc e is excessive or the manner of service is inappropriate. Statev. Russell , 773 S.W.2d 913, 915 (Tenn.1989). Moreover, on appeal, the appellant bears the burden of showing that the sentence imposed was improper. Sentencing Commis sion Comments, Tenn. Code Ann. § 40-35-401(d).

At the sentencing hearing, L isa Reed, the victim’s sister, testified that her brother was more like a son to her. After their mother died, Ms. Reed w as given the responsibility of raising her brother who had been mentally handicapped from birth. She testifie

d that the twenty

-seven ye ar old victim “was like a little k

id . He never hurt nobody. He thought everybody loved him . . . He thought nobody would ever hurt him. And he done any thing for anybody that he c ould.”

### -15-

Christine O’Dell testified that she is the appellant’s older sister. She stated that there were
seven children in the family. She explained that the appellant “wasn’t like the rest of the kids. He couldn’t . . . cope.” He wa

s unable to attend public school and eventually was sent to Daniel Arthur Rehabilitation School for mentally retarded and handicapped kids. She added that he neve r learned to read and write very well. Unable to secure employment,

the appellant per

forms mostly o

dd jobs; Ms. O’Dell described the appellant as “a jac k of all trades and the master of none.” She further admitted that the appellant liked to drink alcohol and had been convicted of DUI. In arriving

at its sentencing

determination, the

trial court made t

he following fin

dings:

. . .

. . . [T ]he Court does find th at because of his

peculiar situatio

n, because of his handicap that he was an especially vulnerable victim. Now obviously you do not have to be vulnerable to be killed. . . . if a victim is particularly vulnerable. They don’t want these people, these types of people hurt and so they very reasonably make

that an Enhancement f

actor and the Cour

t so finds.

And certainly the Court does find that the defendant by the stat ement tha t was attributed to him did use a deadly weapon, to-wit a knife.

The Cou rt in looking at the suggested mitigating factors . . . And the Court does reject that any alleged acts of the victim constituted strong provocation. The Court finds that there is no strong provocation in this case, especially looking at the number of wound s and the manner of the crime itself certainly does not indicate strong provocation caused by a

ny act of the

victim. There is no

justification for

this type of criminal conduct. . . .
Now, certainly he like the victim has had some mental pr

oblems and the Court does take that into consideration. He is obviously, he isn’tat a hundred percent. He has
someproblems communicating and the Court takes that into consideration in talking about that he does suffer so mewhat from a mental problem. And I’ve recognized that. . . . Starting in the mid-range as required by the statute and h avi ng weighed all of the enh ancement

factors and I certainly I

do think, especially the vulnerability of th e victim is an overriding factor in this case. This young man was as I sa

y a street c

hild in so many word

s and I think it

wa s especially

easy to take

advantage of t

his situation. I don’t know wh at happened up the

re, I don’t kn

ow that we will

ever know other than someone got tragically killed. . . .

And taking into consideration that the defendant does have some limitations the court thi nks tha t th e app rop ria te s ent ence is t wen ty-t hree years in t he S tat e pen ite nti ary.

### -16-

A. Enhancement Factors

The trial court f

ound tw o enhancement f actors applicab

le: (4) the victim w

as particularly vulnerable

and (9) the defendant possessed a deadl y weap on during the commission of the crime. Tenn. Code Ann. § 40-35-114( 4), -114(9). The

use of a deadly

weapon is not an el

ement of th

e offe nse of second degree murder. See Tenn. Code Ann. § 39-13-210. This court has ruled that enhancing a murder sentence for the use of a deadly we apon is permissible. State v. Butler , 900 S.W.2d 305, 313 (Tenn. Crim. App.1994). The court properly applied factor (9).

Our supreme court has provided

guidance in assessing whether the State had met its burden in establ ishing the vulnerability of the victim. Specifically, the re viewing court should conside r whether evidence in the rec ord with r egard to the victim’s age or physical or mental attributes demonstratedan inability to resist the crime, summon help, or testify at a later date. Statev. Poole , 945 S.W.2d 93 , 96 (Tenn. 1 997) (quot ing State v. Adams , 864 S.W.2d 31, 35 (T enn. 1993) (emphasis

added; ci tations omitted)); see also State v. Kissinger , 922 S.W.2d 482, 487 (Tenn. 1996). The evidence need n

ot be extensive; none

theless, the State

must prove the factor is applicable. Id. Moreover, the court must conside r the nature of the offense and the manner in which it was commi tted. Id. In other words, an offense may be committed in such a manner as to make th e victim’s vulnerability

irrelevant. Id. See, e.g. , Butler , 900 S.W.2d at 305 (defendant shot and killed elderly woman; held, although victim had phy sical disability and walked with a cane, State failed to show victim’s vulne

rability bec

ause no victim could have resisted the offense committed in that manner). In short, the cour t mu st consider all of t

he facts and cir

cumstances of the

offense in determining whether the par ti cular vul nerability factor is appropriate for the offense. Poole , 945 S.W.2d at 97.

In the present case, the State presented testimony that

the victim was mentally handicapped. His sister/guardia

n testified that the

victim thought everyone loved him and that nobody would hurt him. Although the victim was twenty -seven y ears old, his sister regard ed him as a

child. We acknowledge the vic tim ’s m ent al i mpa irm ent and his nai vet y. However, under the guidance providedby our supreme court, we ca n not conclude that M

ark Goins’ mental

impairment was a factor in his victimization in this case. Rathe r, the proof shows

that it was the victim who led the appellant,also mentally

impaired, to the apartment and it was the victim who disrobed and initiated sexual contact with the appellant. Based upon the victim’s active participation in the events prior to his death, we are

unable to conclud

e that the victim’s

mental disability

made him partic

ular ly vulnerable to the offense committed. Accordingly, we find application of enhanc ement factor

(4) is error. B. Mitigating factors

The appellant argu

es that (2) he ac

ted under str

ong p rovocation and (

3) his conduct is justified although failing to establish a defense. Tenn. Code Ann. § 4 0-35-113(2); -113(3). He asserts that these factors are apparent from the proof developed at trial. We agre e with the tr ial court’s finding that the appellant’s conduct was not justified as provided by mitigating factor (3).8 The trial court sentenced the appellant as a range I standard offender. We note that thecou rt se t the app ella nt's release eligibili

ty date at 100% pursuant to Tenn. Code Ann. § 40-35-501 (i)(1) and (2) (1997).

9 It is unclear from the tri al court’s

findings as to which

mitigati ng factor is

supported by his statement t hat the appellant suffe

rs from “a mental problem.” Notwithstanding, we believe that this finding i s supported by the record and requires mitigation considerati on under Tenn. Code Ann. § 40 -35-113(8).



### -17- With reference to

the assertion of factor

(2), provocation, the facts reveal that the appellant accompanied

the victim to an abandoned apartment. The appellant, who had been

drinking earlier that day, “passed out” on a bed. When he awoke, the victim had “my britches down and unzipped” and was naked on top of

him performing fellatio. At

this point, the appe

llant punched the v

ictim in the face, reached

for his knife and stabbed the unarmed victim three times in the neck. The appellant stated that he “just wanted him to get the hell away from me. . . .” The medical examiner’s repor t confirms that the victim was involved in “some sexual activity” at or near the time of the victim’s death.” Upon de novo review, we find th at the evidence preponderates against the trial court’s finding that provocation, for sentencing purposes, wasnot established. B LACK ’ S L AW D ICTIONARY defines provocation as “conduct or actions on the part of one person towards another as tend to arouse rage,

resentment, or f

ury in the la

tter against the

former, and ther

eby cause him to do some illegal act against or in relation to the person offering the provocation . . . There must

be a state of passion without time t o cool placi ng defendant beyond control of his reason. . . .” B LACK ’ S L AW D ICTIONARY 1103 (1990 6 th ed.). We find that t he facts of this c

ase fit this definition of provocation and, although not excusing culpability for the senseless homicide, nonetheless, provides the motivation for the app ell ant ’s c ond uct . Ac cord ingl y, the court erred by failing to apply mitigating factor (2). C. Weighing of Enhancement and Mitigating Factors

When there are enhancemen t factors and mitig

ating factors,

the trial court, f

or a class A fel ony, must start atthe midpoint in the ra nge, enhance

the sentence with

in the range as a

ppropriate for the en h ancement factors, and then reduce the sentence within the range as a ppropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(c), (e) (1997). For a range I standar d of fender convictedof

second degree murder, th e sentencin g range is fifteen to twen ty-five y ears. 8 See Tenn. Code Ann. § 39-13-210; Tenn. Code Ann. § 40-35-112(a)(1) ( 1997). Bec ause the appellant was convictedof a Class A felony , the starting poi

nt for sentencing

purposes is twenty

years, whi

ch is the midpoint in the range. Tenn. Code Ann. § 40-35-210(c). The trial court imposed a twenty-three year sentence. However, we have concluded that application of enhancement fac tor (4) was error. One enhancement factor , use of a deadly weapon, and two mitigating factor s, appellant’s mental condition and provocation, 9 remain. In view of our finding that the trial court misapplied enhancing factor (4) and failed to apply mitigating factor (2) , modific ation of the twenty-three yea r sentence is necessary. Upon de novo review, aft er weighing th e remaining enhancement factor and the statutory mitigators, we conclude that a sentence of eig hteen years is justified.

### -18-

After review of the record, we affirm the appellant’s conviction for second degree murder. However, upon de novo review of the appellant's sentence, we modify the se ntence imposed by the trial court from twenty-three years to eighteen y

ears to be served in the Department of Correction. This case is remanded to the trial court for entry of an order modifying the sentence in the manner consistent with this opinion.

__________________________________________ DAVID G. HAYES, JUDGE