State of Tennessee v. Willie D. Graham - Concurring

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
JANUARY 1998 SESSION
May 7, 1998

Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. No. 03C01-9707-CC-00314
*
Appellee, * ANDERSON COUNTY
*
VS. * Hon. James B. Scott, Jr., Judge
*
WILLIE D. GRAHAM, * (Voluntary manslaughter)
*
Appellant. *

For Appellant: For Appellee:

J. Thomas Marshall, Jr. John Knox Walkup
Public Defender Attorney General and Reporter
101 South Main Street
Clinton, TN 37716 Elizabeth B. Marney
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243-0493

Jan Hicks
Assistant District Attorney General
127 Anderson County Courthouse
Clinton, TN 37716

OPINION FILED:__________________

REVERSED AND REMANDED

GARY R. WADE, JUDGE
 OPINION

Indicted for first degree murder, the defendant, Willie D. Graham, was

convicted of voluntary manslaughter in the death of his brother-in-law, Ray Anthony

Shervington. The trial court imposed a Range I sentence of six years.

In this appeal of right, the defendant presents the following issues for

our review:

(I) whether the evidence is sufficient to sustain the
conviction;

(II) whether the trial court erred by allowing the state to
use peremptory challenges based on gender;

(III) whether the trial court erred by refusing to instruct
the jury on the lesser included offenses of reckless
homicide and criminally negligent homicide;

(IV) whether the trial court erred by allowing the state to
impeach the defendant with prior convictions for selling
marijuana; and

(V) whether the trial court erred in sentencing and in
denying probation.

Because the trial court failed to charge each of the lesser offenses, we

must reverse the judgment of the trial court and remand the cause for a new trial.

Ann Shervington, the defendant's sister, is the widow of the victim.

The Shervingtons, who were married in 1983, have two daughters. Tamisha was

twelve years old at the time of trial and Keisha was eight. Elizabeth Graham, the

mother of the defendant and Ann Shervington, is affected with Alzheimer's disease

and resides only a few houses away from the Shervingtons. At approximately 10:00

A.M. on Sunday, July 30, 1995, Ann Shervington, Paul "Bud" Byrum, Tommy

Littlejohn, the victim and the defendant had gathered in the Graham backyard. They

2
socialized and drank beer for much of the morning and afternoon. Ms. Graham

spent the day inside the house.

The Shervingtons, who had each consumed about three quarts of beer

over the course of the day, left about 5:30 P.M. to purchase more beer. While

unaware of the amount of alcohol ingested by the defendant, Ms. Shervington

described the victim as "pretty high" because he had consumed a lot of alcohol the

previous night. She did not recall unpleasantness between the victim and the

defendant or Ms. Graham. While conceding that she had argued with the victim,

she revealed that that was not unusual.

When Jerry Weaver arrived, at about 9:00 P.M., Ms. Shervington

recalled that the defendant and the victim began to argue. Both of the men entered

the back door of the house. Ms. Shervington followed, saw the victim on the front

porch with his hands outstretched toward the defendant, and then heard the

defendant say, "Go on, man. Go on, man." She testified that the two men stood

chest to chest. From fifteen to twenty feet away, Ms. Shervington saw the

defendant draw a knife from the pocket of his shorts, open the blade beside his leg,

raise the knife, and strike the victim. She ran toward the victim, who was not

wearing a shirt, and saw a bloody wound on his left side and also a wound on the

right side of his chest. Ms. Shervington ran to the house of her sister, Mary

Graham, who lived next door and then to Joyce Dye's house to call for help. Her

sister attempted to stop the bleeding. The ambulance arrived at about 10:00 P.M.

When Ms. Shervington returned from the hospital at approximately 1:30 A.M., she

went to the store with Littlejohn. Upon their return to her residence, police were

searching for the weapon used by the defendant. Byrum helped them locate the

knife.

3
 Ms. Shervington testified that the knife was found in her front

flowerbed at about 2:00 A.M. Littlejohn, Byrum, Weaver, and Willis were present at

the time. Ms. Shervington acknowledged that the victim and Littlejohn had a history

of conflict.

Keisha testified that she saw the victim and the defendant go in the

back door of the Graham house and saw Littlejohn enter from the front porch.

Within minutes she saw the defendant and the victim on the front porch. She

recalled the defendant saying, "Go on, man; go on, man," while the victim held his

arms extended in the direction of the defendant. Keisha testified that the defendant

stabbed the victim and that she saw blood on the victim's chest, as he fell to the

sidewalk. Keisha did not remember anyone else being nearby. Afterward, she ran

to find her sister and informed her that "something was wrong." She denied telling

Tamisha that Weaver stabbed the victim and claimed a good relationship with the

defendant.

Tommy Littlejohn testified that he arrived at the Graham house at 8:00

A.M. on the day in question. He recalled that they all drank beer and got along fine

throughout the day. Littlejohn recalled that he awoke from a nap when he heard Ms.

Shervington crying. He then overheard the defendant say, "I'm going to jail," as the

defendant handed him an open knife with blood on it. Littlejohn, who had seen the

knife before, placed it inside an old television set in the back yard.

When he returned to the front yard, the victim was lying in a pool of

blood. When police left the scene sometime later, he informed Ms. Shervington as

to the location of the knife. He retrieved the knife, took it to the Shervington house,

and placed it on a chair on her front porch near where Byrum sat. Littlejohn recalled

4
being asked to get some more beer. When he and Ms. Shervington returned, the

police asked about the knife. Littlejohn showed them where he had placed it but the

knife was no longer there. He subsequently learned that Byrum had thrown the

knife in the side yard by a walnut tree.

Littlejohn denied ever carrying the defendant's knife into Ms. Graham's

front yard. He recalled that the defendant was uncharacteristically quiet that day.

Littlejohn did not, however, hear anyone threaten anyone else. He acknowledged

that he and the victim had experienced trouble in the past and that, in fact, he had

shot the victim in 1990, yet he denied that there was any recent ill-feeling. Littlejohn

also admitted that in August of 1995, Ms. Shervington had called the sheriff to

remove him from her home.

Paul "Bud" Byrum testified he was in the house with Littlejohn and Ms.

Shervington on the day of the stabbing. The defendant was in the kitchen when the

victim entered the back door. An argument ensued and the two men went toward

the front porch, followed by Ms. Shervington. Byrum testified that he did not see a

knife. He did notice Littlejohn follow Ms. Shervington outside. Byrum recalled that

he left by way of the backdoor, went to the Shervington house, and sat on the porch.

He learned the victim had been killed when Ms. Shervington returned from the

hospital. He saw Littlejohn place a knife on a chair next to him. He described the

knife blade as closed; it was too dark to see whether there was blood on it. Byrum

testified that he kicked the knife off of the porch but pointed out its location when

police arrived.

Lieutenant Penny Baker testified that she located a lock-blade knife on

the Shervington property. When she found the knife, the blade was closed.

5
 Hugh Kring, a paramedic with the Anderson County E.M.S., arrived at

the Graham residence at about 10:00 P.M. The victim, in critical condition, was

lying in a supine position in front of the house. Police arrived within four to seven

minutes. Kring transported the victim to Lakefront Park in Clinton and the Lifestar

helicopter flew the victim to the University of Tennessee Hospital in Knoxville.

Rick Harrington, a Lifestar flight paramedic, chemically paralyzed the

victim, inserted a tube into his windpipe, and provided blood and fluids. Conscious

but not alert, the victim was in severe shock. The victim maintained a pulse during

the twelve minute flight and no resuscitation was required. Harrington did not recall

smelling any alcohol as he treated the victim.

Dr. Richard Clark, whose specialty is emergency and internal

medicine, treated the victim in the emergency room at 11:19 P.M. Dr. Clark and his

staff employed life-saving procedures for fifteen or sixteen minutes, all of which

failed. The victim died at 11:31 P.M.

Dr. Cleland Blake, a forensic pathologist, performed the autopsy and

described the victim as a young, black male, five-feet-eleven-inches tall, and

weighing 200 pounds. Dr. Blake found that the victim had suffered three stab

wounds to his chest. A downward diagonal wound to the right side caused a

collapse of the right lung and was of a lethal nature. A second wound to the left side

of the chest, pierced the heart and punctured the lung cavity. This wound was also

lethal and would have bled profusely. A third wound along the victim's left rib cage

was angled steeply downward, entering the chest wall but not the lung cavity. Death

resulted from the two wounds to the front of the chest. Dr. Blake testified that all

three wounds were consistent with having been made by the same knife and that

6
the lock-blade knife with the chip in the blade could have made these wounds. It

was his opinion that the kitchen knife, which was more slender and had a serrated

edge, would have produced as smaller, serrated type wound not present here.

Dr. Blake could not determined the order of the wounds. He

recognized the possibility that the two lethal wounds could have been inflicted when

the victim was lying flat. He found no defensive wounds other than some minor

scratches on the back of the victim's fingers. The victim had grass on his hands

consistent with a fall. While acknowledging it was possible that a knife other than

the two he had examined could have inflicted wounds, Dr. Blake testified that the

two lethal wounds involved tearing during the penetration which was consistent with

the notch in the blade of the lock-blade knife.

Deputy Richard Carr observed a large amount of blood on the

sidewalk as paramedics placed the victim onto a gurney. There was blood

splattered on the front porch and the steps. When Deputy Carr saw the defendant

walk onto the front porch carrying a dishpan of water, he instructed him not to

disturb the crime scene.

As Deputy Carl Bailey arrived on the scene, he overheard Ms.

Shervington scream, "Willie cut Ray." He recalled seeing Littlejohn sitting in a chair

on the front porch. Deputy Bailey took the pan of water from the defendant when it

appeared he might attempt to clean the area where the victim had fallen, escorted

the defendant to the patrol car, and later transported him to the county jail.

7
 Deputy Bailey returned to the crime scene between 2:00 and 3:00

A.M. to search for the knife. He initially searched the front porch of the Graham

residence and continued his search at the Shervington house.

No fingerprints were found on the lock-blade knife. The victim's blood

alcohol level was 0.16 percent. Michael Lyttle, a forensic scientist, testified that a

person with a blood alcohol level that high would experience diminished judgment

and reaction time, have slurred speech, and perhaps an altered gait. He explained

that some heavy drinkers might develop a behavioral tolerance. He testified that

humans metabolize alcohol at a rate of 0.01 to 0.02 percent per hour and that

metabolism ceases at death.

Mark Squibb, a TBI serologist, tested the serrated knife and found no

blood present. His tests indicated that human blood was present on the lock-blade

knife but he could not type it conclusively. He found human blood on the

defendant's shirt under the left armhole, under the neckline, in the center of the left

side, and on the chest area.

Squibb also tested blood samples taken from the defendant and the

victim. He determined that the blood found on the shoes of the defendant was

consistent with that of the victim according to one test but inconsistent with that of

the victim according to another.

Sergeant William Breeding testified that he took three statements from

the defendant, who did not appear to be intoxicated. In the initial conversation, he

stated that he was standing in the kitchen when Ms. Shervington and the victim

began to argue. Ms. Graham told the victim to go and then he repeated the order.

8
He claimed that he walked back toward the kitchen and then heard that Ms.

Shervington had gone to Mary Graham's house to call an ambulance. He insisted

that he next saw Ms. Shervington standing over the victim as he lay outside on the

sidewalk.

At about 2:20 A.M., Sergeant Breeding and Detective Townes

questioned the defendant a second time after he had been booked. He provided

the officers with substantially the same statement that he had given a few hours

earlier. The defendant claimed that he asked the victim why he brought fights over

to his house, then walked away, and about three minutes later, heard Ms.

Shervington call for help.

The defendant made a third statement to Sergeant Breeding at 5:10

A.M. By then the victim had died and the suspected murder weapon had been

located. The defendant stated as follows:

I was at 106 Coward Road, Clinton, Tn, where I live with
my mother. Ann Shervington, Tommy Littlejohn, my
mother Elizabeth, and Ray were all there. Ann and Ray
were arguing with each other, my mother had told Ray to
get out of the house. I came from the kitchen and Ray
was inside the house near the door. I told everyone that
they needed to go somewhere else, because Ray had
been fussing with Ann and Tommy. Ray then started
fussing and pushing my mother. I told him he had to go
and mom told Ann she was going to have to go. Ray
started pushing and grabbing me and I hit him with the
knife. I walked into the kitchen. Ray turned around and
walked toward the door. Mom told Ann again she was
going to have to go. I took the knife in the kitchen and
put it on the table and started cooking. The knife was
about 6 or 8 inches long and looked like a steak knife[. I]t
has grooves in the blade. About 5 or 6 minutes later I
heard Ann screaming and I walked out of the kitchen,
and through the house and out on the porch with my
mother and saw Ray laying on the sidewalk. I looked
down at him and my sister was over him and he was
talking, then I saw the blood and I went down to Mary's
house and told her to call the ambulance, and she said
they had already been called. I went back up to the

9
 house. Mary walked up there too. Ann had a rag holding
it on Ray, by then the ambulance came.

This statement was signed but unrecorded. The two previous statements were not

recorded or reduced to writing.

In addition to the lock-blade knife, Sergeant Breeding seized from the

Graham house three other weapons: a serrated steak knife from the kitchen, a knife

without a handle from the kitchen sink, and a long-bladed knife found on the floor of

a bedroom. Only the serrated knife and the lock-blade knife were tested by TBI.

Breeding testified that the lock-blade knife could be opened with one hand. He

conceded that the victim's clothing was not tested.

Alex Witherspoon, the six-year-old nephew of defendant, testified for

the defense. Alex remembered that the victim argued with Ms. Graham and

Weaver. He testified that he saw the defendant put down the knife he was using

and saw Weaver pick it up. Alex claimed that he left the house briefly and that when

he returned, the defendant raised a butcher knife toward the victim. Alex then

corrected himself, saying that it was Weaver, not the defendant, that he saw raise

the knife. He explained that he did not see the stabbing.

Mary Graham, sister to the defendant, had returned from work at about

10:00 P.M. on the date of the homicide. She confirmed that her son, Alex, had gone

next door to his grandmother's house to retrieve a toy. About ten minutes later, he

returned. Ms. Shervington, who followed, was screaming at the door. Ms. Graham

testified that when she did not answer the door, Ms. Shervington left. She explained

that Ms. Shervington, her sister, often fought with the victim and screamed for help;

usually her concerns were unfounded. A few minutes later, Keisha and Tamisha

returned and asked her to call an ambulance. Ms. Graham testified that she did

10
nothing because she did not believe them. She then called the police, went to her

mother's house, and observed the victim lying on his back near the front steps. She

recalled that Ms. Shervington was treating the victim's stab wounds.

The defendant testified that he worked at the plants in Oak Ridge from

1976 to 1986, when he hurt his back and contracted a lung disease. At the time of

the victim's death, he lived with and cared for his mother.

The defendant, who denied being intoxicated, testified that there had

been arguments that evening between Weaver and Littlejohn. He claimed that he

had returned to the kitchen to prepare supper when the victim entered the house

and began to argue. The defendant insisted that he walked away and the victim

and Ms. Shervington began to argue. The defendant recalled that his mother

ordered them to take their argument elsewhere. The defendant testified that when

the victim also argued with Littlejohn, he directed the victim to "[G]o on out of here

[and g]ive my mom a break." The defendant claimed that he also directed Ms.

Shervington to leave.

The defendant insisted that the Shervingtons continued to quarrel with

his mother and that the victim pushed her. He testified that the victim attacked with

both hands. The defendant, who was holding a knife he had used to cut onions,

"felt cutting, and I just pushed him off of it. Which at the time I hit him, stabbed him,

I guess. I hit him right here [in the left shoulder]." He recalled that the victim turned

and walked onto the front porch then Littlejohn took the knife, saying, "You don't

need this no more."

11
 The defendant described his knife as a brown handled butcher knife.

He testified that when Littlejohn returned, he said, "[T]he son-of-a-bitch has died and

he deserved to die." The defendant heard Ms. Shervington crying for an ambulance

and saw the victim outside on the ground. He contended that he remained at the

scene until the authorities arrived. The defendant denied having any animosity

toward the victim and insisted that he stabbed the victim only once. While denying

that he had implicated Weaver to the police, he asserted that he did not kill the

victim. The defendant admitted that he had two felony convictions for selling

marijuana in 1992.

I

The defendant first challenges the sufficiency of the evidence. On

appeal, of course, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof are

matters entrusted to the jury as triers of fact. Byrge v. State, 575 S.W.2d 292, 295

(Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the

relevant question is whether, after reviewing the evidence in the light most favorable

to the state, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d 405, 410 (Tenn.

1983); Tenn. R. App. P. 13(e).

Voluntary manslaughter is the "intentional or knowing killing of another

in a state of passion produced by adequate provocation sufficient to lead a

reasonable person to act in an irrational manner." Tenn. Code Ann. § 39-13-211.

"'Intentional' refers to a person who acts intentionally with respect to the nature of

12
the conduct or to a result of the conduct when it is the person's conscious objective

or desire to engage in the conduct or cause the result." Tenn. Code Ann. § 39-11-

302(a). "'Knowing' refers to a person who acts knowingly with respect to the

conduct or circumstances surrounding the conduct when the person is aware of the

nature of the conduct or that the circumstances exist. 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 result." Tenn. Code Ann. § 39-11-302(b).

Here, there was proof that the defendant removed a knife from his

pocket, opened the blade, and stabbed the victim in the chest. A deep stab wound

to the chest is reasonably certain to cause death. A pathologist testified that of the

three chest wounds, the right and left chest wounds were lethal. Ms. Shervington

claimed to have seen the defendant stab the victim. She saw wounds in both the

left and right sides of his chest. From this, the jury could have concluded that the

defendant inflicted either or both of the more serious wounds. There was also proof

that the defendant and the victim had argued and that the victim had pushed the

defendant's ailing and elderly mother. A jury could have determined that the

defendant acted under provocation. In our view, the evidence was clearly sufficient

to support a conviction for voluntary manslaughter.

II

Next, the defendant asserts that he had established a prima facie case

of purposeful gender discrimination in the state's use of its peremptory challenges.

The state insists that no constitutional violation occurred because the prosecutor

provided neutral reasons for its challenges to male jurors.

13
 In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme

Court held that the prosecutor's use of peremptory challenges to intentionally

exclude jurors of the defendant's race violated his right to equal protection under the

fourteenth amendment to the U.S. Constitution. See also Tenn. Const., art. I, § 9.

In Powers v. Ohio, 499 U.S. 400 (1991), the Supreme Court upheld the principles of

Batson but eliminated the requirement that the defendant and the wrongfully

excluded juror be of the same race in order for there to be an equal protection claim.

See State v. Ellison, 841 S.W.2d 824, 826 (Tenn. 1992). The Court extended the

Batson rule and rationale to the use of peremptory challenges based on gender in

J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127 (1994). Our supreme court adopted

that ruling in State v. Turner, 879 S.W.2d 819 (Tenn. 1994). Thus, we apply the

standards for determining racial discrimination, as set forth in Batson and its

progeny, to peremptory challenges where gender discrimination is alleged.

When the defendant is able to establish a prima facie case of

purposeful discrimination against a prospective juror based on gender, the

prosecution must then come forward with a gender-neutral explanation for the

challenge of the juror. J.E.B, 511 U.S. at 144-45. The explanation does not have to

rise to the level of justifying a challenge for cause, so long as the explanation is

based on a characteristic of the juror other than gender and is not pretextual. Id. at

145. That is, the state must "'articulate a neutral explanation related to the particular

case ....'" Ellison, 841 S.W.2d at 827 (quoting Batson, 476 U.S. at 97). It is the

court's responsibility to determine whether there has been a purposeful

discrimination on the part of the state. Batson, 476 U.S. at 98; State v. Bell, 745

S.W.2d 858, 867, after remand 759 S.W.2d 651, 654 (Tenn. 1988). "[T]he exercise

of even one peremptory challenge in a purposefully discriminatory manner would

violate equal protection." Ellison, 841 S.W.2d at 827. If the court were to determine

14
a neutral reason does not exist, the conviction must be reversed. Id. at 826; see

also Batson, 476 U.S. at 100.

The defendant must show that "these facts and any other relevant

circumstances raise an inference that the prosecutor used that practice to exclude

[certain of] the venirem[e]n from the petit jury on account of their [gender]." Batson

at 96 (alteration added). A trial court must look to the "totality of the relevant facts"

to determine whether the state's use of peremptory challenges gives rise to an

inference of discriminatory purpose. Bell, 759 S.W.2d at 653. In Turner, our

supreme court clarified that peremptory challenges could be utilized by both the

state and defendant in an effort to eliminate jurors perceived to be biased or

unsympathetic: "Peremptory strikes, by definition, may be exercised for any reason

unless that reason is specifically prohibited by legislation or by judicial decision."

879 S.W.2d at 821.

Here, the record reflects that the jury was composed of five men and

seven women. Defense counsel used peremptory challenges to remove two male

prospective jurors. The state used only three of its four peremptory challenges.

The prosecutor challenged one juror because the juror did not believe that he had

been treated fairly by the state in proceedings following his arrest some fourteen

years earlier. The prosecutor, who had questioned another prospective juror about

an arrest some ten or fifteen years before, believed she had caused the juror some

embarrassment and thus, issued the second peremptory challenge. A third

prospective juror was challenged due to his opposition to the death penalty. W hile

this was not a capital case, the state argued that those opposed to capital

punishment tend to be more "defense oriented." At the conclusion of an in camera

15
hearing, the trial judge ruled that the state had not engaged in any systematic

exclusion.

In our view, the record does not support the defendant's claim of

purposeful discrimination in the use of peremptory challenges. On appeal, the "trial

court's finding of intentional discrimination is entitled to 'appropriate deference by a

reviewing court.'" State v. Smith, 893 S.W.2d 908, 914 (Tenn. 1994) (quoting

Batson, 476 U.S. at 98, n.21). In this instance, the trial judge observed voir dire, the

demeanor of counsel, and considered the gender composition of the jury. The trial

court specifically ruled that the state was not intentionally discriminating against

men. The defendant has not alleged facts or circumstances that would convince us

otherwise. Thus, we defer to the ruling of the trial court.

III

The defendant contends that the trial court erred by refusing to charge

reckless homicide and criminally negligent homicide as lesser included offenses.

The defendant was indicted for first degree murder; the jury was so charged.1 The

trial court also instructed the jury on second degree murder2 and voluntary

manslaughter.3 The defendant's specific complaint is that the evidence also

1
First degree murder is "[a] premeditated and intentional killing of another." Tenn. Code Ann.
§ 39-13-202(a)(1) (Supp. 199 6).

2
Second degree murder is "[a] knowing killing of another." Tenn. Code Ann. § 39-13-
210(a)( 1) (Sup p. 1996) .

3
Voluntary manslaughter is "the intentional or knowing killing of another in a state of passion
produced by adequate provocation sufficient to lead a reasonable person to act in an irrational
man ner." Te nn. Cod e Ann. § 39-13-2 11(a).

16
warranted an instruction on reckless homicide4 and criminally negligent homicide.5

The state argues that based upon the proof presented at trial neither instruction was

warranted.

In State v. Trusty, our supreme court observed that "Tennessee law

recognizes two types of lesser offenses ... : a lesser grade or class of the charged

offense and a lesser included offense." 919 S.W.2d 305, 310 (Tenn. 1996). The

trial judge has a statutory duty to charge the jury "on lesser grades or classes of the

charged offense supported by the evidence." Id.; Tenn. Code Ann. § 40-18-110.

The trial judge also has a duty grounded in case law to instruct the jury on lesser

included offenses. Trusty, 919 S.W.2d at 311.

A lesser grade or class of the charged offense is determined by

reference to the statutory scheme. State v. Wright, 618 S.W.2d 310, 315 (Tenn.

Crim. App. 1981). For example, varying grades and classes of homicide are defined

at Tenn. Code Ann. § 39-13-201 and codified at Tenn. Code Ann. §§ 39-13-202 et.

seq.

The other type of lesser offense is one "necessarily included in the

indictment." Trusty, 919 S.W.2d at 311. In Wright v. State, 549 S.W.2d 682 (Tenn.

1977), our supreme court outlined the test to determine whether an offense is lesser

4
Reck less hom icide is "a rec kless k illing of anothe r." Tenn . Code A nn. § 39- 13-215 (a).
"'Reckless' refers to a person who acts recklessly with respect to circumstances surrounding the
conduct or the result of the conduct when the person is aware of but consciously disregards a
substantial and unjustifiable risk that the circumstances exist or the result will occur...." Tenn. Code
Ann. § 39-11-302(c).

5
Crim inally negligent h omic ide is "[c]rim inally negligent c onduc t which res ults in death ...."
Tenn. Code Ann. § 39-13-212(a). "'Criminal negligence' refers to a person who acts with criminal
negligence with respect to the circumstances surrounding that person's conduct or the result of that
conduct when the person ought to be aware of a substantial and unjustifiable risk that the
circumstances exist or the result will occur...." Tenn. Code Ann. § 39-11-3 02(d).

17
and included in the greater offense. Quoting the late Justice Weldon W hite in

Johnson v. State, 397 S.W.2d 170, 174 (Tenn. 1965), the court ruled as follows:

The true test of which is a lesser and which is a greater
crime is whether the elements of the former are
completely contained within the latter, so that to prove
the greater the State must first prove the elements of the
lesser.

Wright, 549 S.W.2d at 685-86.

Two years later, our supreme court again addressed the subject:

We believe that the better rule, and the one to be
followed henceforth in this State, is the rule adopted
implicitly by this court in Wright v. State, supra, that, in
this context, an offense is necessarily included in another
if the elements of the greater offense, as those elements
are set forth in the indictment, include, but are not
congruent with, all elements of the lesser. If there is
evidence to support a conviction for such a lesser
offense, it must be charged by the trial judge. T.C.A. §
40-2519 [now Tenn. Code Ann. § 40-18-118(a)]; Whitwell
v. State, 520 S.W.2d 338 (Tenn. 1975).

Howard v. State, 578 S.W.2d 83, 85 (Tenn. 1979).

Second degree murder, reckless homicide, and criminally negligent

homicide are all lesser included and lesser grade offenses of first degree murder.

See State v. Belser, 945 S.W.2d 776, 790 (Tenn. Crim. App. 1996). Voluntary

manslaughter is a lesser grade offense of first degree murder. Id.; Trusty, 919

S.W.2d at 311; see Tenn. Code Ann. §§ 39-13-201 through -213.

The trial court has a duty to give a complete charge of the law

applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn.

1986). It is settled law that "where there are any facts that are susceptible [to an

inference] of guilt of any lesser included offense or offenses, then there is a

mandatory duty upon the trial judge to charge on such offense or offenses. Failure

18
to do so denies a defendant his constitutional right of trial by a jury." Wright, 618

S.W.2d at 315 (citations omitted). When there is a trial on a single charge of a

felony, there is also a trial on all lesser included offenses, "as the facts may be."

Strader v. State, 362 S.W.2d 224, 227 (Tenn. 1962). Trial courts may omit an

instruction on a lesser included offense only when the record is devoid of evidence

to support an inference of guilt of the lesser offense. State v. Stephenson, 878

S.W.2d 530, 550 (Tenn. 1994); State v. Boyd, 797 S.W.2d 589, 593 (Tenn. 1990).

There is an affirmative duty on the part of the trial judge to charge the jury on lesser

included offenses charged in the indictment whether requested to do so or not. See

Howard, 578 S.W.2d at 85.

Here, the defendant was charged with first degree murder, defined as

"[a] premeditated and intentional killing of another." Tenn. Code Ann. § 39-13-

202(a)(1) (Supp. 1996). To omit the instructions on reckless homicide and criminally

negligent homicide effectively deprived the defendant of his right to jury on the

issue. Our guiding principle is that if there is any evidence in the record from which

the jury could have concluded that the lesser included offense was committed, there

must be an instruction for the lesser offense. See Johnson v. State, 531 S.W.2d

558, 559 (Tenn. 1975).

In State v. Boyce, 920 S.W.2d 224 (Tenn. Crim. App. 1995), this court

ruled that an omission of a lesser included offense from the charge to the jury

always requires a new trial. The opinion was largely based upon the ruling of our

supreme court in Poole v. State, 61 Tenn. 288, 294 (1872):

However plain it may be to the mind of the Court that one
certain offense has been committed and none other, he
must not confine himself in his charge to that offense.
When he does so he invades the province of the jury,
whose peculiar duty it is to ascertain the grade of the
offense. However clear it may be, the Court should

19
 never decide the facts, but must leave them
unembarrassed to the jury.

There was some proof that the defendant struck the victim in a

reckless or criminally negligent manner. The defendant testified that he intervened

on behalf of his mother when the victim initiated an argument. He claimed that the

victim grabbed him with both hands and was stabbed only because the defendant,

who held a kitchen knife being used to cut onions, attempted to push away. The

underlying theory was that the defendant either disregarded or was unaware of a

substantial risk that he would stab the victim. The defendant testified, "[The victim]

grabbed me and I felt cutting, and I just pushed him off of it. Which at the time I hit

him, stabbed him, I guess. I hit him right here [in the left shoulder]." After the

incident, the defendant remained at the scene and surrendered to police on their

arrival.

During the deliberations, the jury submitted the following question to

the trial court: "Do we have any other options of verdicts, for example, involuntary

manslaughter?" Under these circumstances, it would be difficult to conclude that

the record is devoid of any evidence upon which the jury could infer guilt of the

accused of a lesser offense. The jury may have convicted the defendant of the

lesser offense had it been charged; certainly, they would have considered it. An

instruction on both of the lesser offenses was warranted even if the trial court

viewed the testimony of the defendant as unworthy of accreditation. The right to a

jury trial includes the consideration of all possible lesser grade and lesser included

offenses. We are constrained to hold that the trial court's failure to instruct on

reckless homicide and criminally negligent homicide requires a reversal of the

conviction and the grant of a new trial as to the charge of voluntary manslaughter. A

conviction for voluntary manslaughter, after the jury has been given a full opportunity

20
to consider a verdict on both first and second degree murder, serves as an acquittal

as to first and second degree murder. Price v. Georgia, 398 U.S. 323, 329 (1970).

IV

The defendant claims that the trial court erred by allowing the state to

use evidence of a prior conviction for selling marijuana for purposes of

impeachment. See Tenn. R. Evid. 609. Particularly, the defendant asks this court

to revisit our decision in State v. Tune where we held that a felony drug possession

conviction could be used for impeachment purposes. 872 S.W.2d 922, 927 (Tenn.

Crim. App. 1993). The state contends that the defendant has not demonstrated that

he was prejudiced by the inquiry, particularly in light of the trial court's instruction to

the jury.

The Tennessee Rules of Evidence provide that a judgement of

conviction may be used by the state to generally impeach the testimony of the

defendant:

(a) General Rule. For the purpose of attacking the
credibility of a witness, evidence that the witness has
been convicted of a crime may be admitted if the
following procedures and conditions are satisfied:

(1) The witness must be asked about the conviction on
cross-examination. If the witness denies having been
convicted, the conviction may be established by public
record. If the witness denies being the person named in
the public record, identity may be established by other
evidence.

(2) The crime must be punishable by death or
imprisonment in excess of one year under the law under
which the witness was convicted or, if not so punishable,
the crime must have involved dishonesty or false
statement.

(3) If the witness to be impeached is the accused in a
criminal prosecution, the State must give the accused
reasonable written notice of the impeaching conviction
before trial, and the court upon request must determine

21
 that the conviction's probative value on credibility
outweighs its unfair prejudicial effect on the substantive
issues. The court may rule on the admissibility of such
proof prior to the trial but in any event shall rule prior to
the testimony of the accused. If the court makes a final
determination that such proof is admissible for
impeachment purposes, the accused need not actually
testify at the trial to later challenge the propriety of the
determination.

Tenn. R. Evid. 609; State v. Morgan, 541 S.W.2d 385 (Tenn. 1976). A trial court's

ruling under Rule 609 will not be reversed absent an abuse of discretion. See

Johnson v. State, 596 S.W.2d 97, 104 (Tenn. Crim. App. 1979).

"In determining whether the probative value of a prior conviction on the

issue of credibility is outweighed by its prejudicial effect on the substantive issues, a

trial court should (a) 'assess the similarity between the crime on trial and the crime

underlying the impeaching conviction,' and (b) 'analyze the relevance the

impeaching conviction has to the issue of credibility.'" State v. Farmer, 841 S.W.2d

837, 839 (Tenn. Crim. App. 1992) (quoting N. Cohen, D. Paine, and S. Sheppeard,

Tennessee Law on Evidence, § 609.9 at 288 (2d ed. 1990)); see also State v. Jerry

Lee Finch, No. 02C021-9309-CC-00224 (Tenn. Crim. App., at Jackson, June 7,

1995). The defendant argues that marijuana sales have little, if any, relevance to

the issue of his credibility. He contends that the rule is arbitrary because if he had

sold a lesser amount of marijuana, the conviction would have been a misdemeanor,

and thus, inadmissible.

Here, following a jury out hearing under Rule 609, the trial judge held

as follows:

I think it is a question for the Jury to determine whether
or not a person who would be guilty of selling two counts
of marijuana, would be guilty of coming here and maybe
falsifying a statement. ... But basically speaking, I believe
that a person who commits crime as closely related as
this one is-- it's not stale ... when that crime is so

22
 unrelated to the crime for which we are investigating
here, [the state] should be able to at least have that for
the purpose of testing credibility, and credibility only.

Immediately following impeachment of the defendant by the state, the trial judge

provided the jury with an appropriate instruction limiting the consideration of these

prior convictions to the issue of credibility. These convictions may have served the

state only marginally to illuminate the defendant's credibility. Yet, the prejudicial

effect was also slight in that the convictions did not involve crimes of violence or the

use of a weapon. Drugs were not involved in this matter. Under these

circumstances, we cannot say that the trial court abused its discretion in admitting

this evidence.

V

The defendant also insists that the trial court erred by imposing the

maximum possible sentence of six years and argues that it should have suspended

the entire sentence. He submits that the enhancing factors identified by the trial

court are not proper under the Criminal Sentencing Reform Act of 1989 and that the

trial court ignored valid mitigating factors. The state contends that the sentence is

presumptively correct because the trial court followed the mandates of the 1989 Act.

Although we have held that the defendant is entitled to a new trial, we will

nonetheless address the question of sentencing.

When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review 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); see

23
State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.

Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

At the time of this offense, the presumptive sentence was the

minimum in the range if there were no enhancement and mitigating factors. Tenn.

Code Ann. § 40-35-210(c). Should the trial court find mitigating and enhancement

factors, it must start at the minimum sentence in the range and enhance the

sentence based upon any applicable enhancement factors, and then reduce the

sentence based upon any appropriate mitigating factors. Tenn. Code Ann. § 40-35-

210(e). The weight given to each factor is within the trial court's discretion provided

that the record supports its findings and it complies with the 1989 Act. See Ashby,

823 S.W.2d at 169. The trial court should, however, make specific findings on the

record which indicate its application of the sentencing principles. Tenn. Code Ann.

§§ 40-35-209 and -210.

At the sentencing hearing, a former probation officer testified that the

defendant had fulfilled the requirements of his probation satisfactorily for the two

felony convictions of 1992. The defendant expressed remorse over the death of the

24
victim but denied stabbing the victim three times, insisting he had only "hit" the

victim once. The trial judge found three enhancing factors including lack of candor,

a history of criminal behavior, and the use of a deadly weapon. He found no

mitigating factors and imposed the maximum sentence of six years.

Lack of candor with the court is not recognized by statute as an

enhancement factor. Tenn. Code Ann. § 40-35-114. A lack of truthfulness or

candor, cannot enhance the length of a sentence. State v. Thomas Anderson, No.

01C01-9504-CC-00103, slip op. at 19 (Tenn. Crim. App., at Nashville, Dec. 18,

1997). The trial court is limited to those factors set forth by the legislature. State v.

Dykes, 803 S.W.2d 250, 258 (Tenn. Crim. App. 1990).

The defendant also contends that he does not have a history of

criminal convictions or behavior. See Tenn. Code Ann. § 40-35-114(1). He

characterized his prior felony drug convictions and traffic violations as "having little

relevance on the question of sentencing for a manslaughter conviction, especially

where drugs were not an ingredient of the killing." W e disagree. The statute allows

consideration of the prior offenses as an enhancement of the sentence.

The defendant also argues that Tenn. Code Ann. § 40-35-114(9), the

employment of a deadly weapon during the commission of the crime, cannot be

used to enhance his sentence because it is an element of the offense of voluntary

manslaughter. A similar argument was rejected, however, in State v. Butler, 900

S.W.2d 305 (Tenn. Crim. App. 1994). In Butler, this court held that the use of a

weapon was not an essential element of murder. Id. at 313. Therefore, this factor

was properly considered.

25
 The defendant specifically argued six mitigating factors at the

sentencing hearing. After considering the arguments of counsel, the trial court

refused to afford the defendant any mitigation: "I find nothing to show that [the

victim] was anything other than in your mother's house, and he pushed your mother.

... The only mitigating factors that I see ... were considered by the Jury in arriving at

this decision."

The defendant argues that he acted under strong provocation. Tenn.

Code Ann. § 40-35-113(2). A conviction of the lesser included offense of voluntary

manslaughter was apparently based upon the jury's conclusion that he acted under

"adequate provocation." Our law does not prohibit trial courts from giving a

defendant "double credit" by recognizing this as a mitigating factor. Yet, this court

has previously ruled that the factor need not be automatically applied in voluntary

manslaughter cases. See State v. McKinzie Monroe Black, No. 01C01-9401-CC-

00006 (Tenn. Crim. App. at Nashville, July 14, 1995). Here, the victim was not

armed. While the provocation in this case may have been adequate to reduce the

degree of the defendant's culpability, the nature and circumstances of this crime do

not necessarily demonstrate the kind of "strong provocation" required to mitigate the

sentence. We, therefore, agree with the finding made by the trial court.

Next, the defendant submits that his conduct is justified although

failing to establish a defense, Tenn. Code Ann. § 40-35-113(3), and that his

weakened physical condition required that he use a weapon to keep peace in his

mother's home. Tenn. Code Ann. § 40-35-113(8). He asserts that these factors are

apparent from the proof developed at trial. We disagree. Some of the proof

indicated that an argument erupted in the living room, and the victim pushed, but did

not harm, the defendant's mother. The defendant intervened and stabbed the

26
victim, using deadly force and inflicting at least one deep stab wound to the victim's

chest. The evidence does not sufficiently demonstrate that the defendant stabbed

the victim due to a physical disability. See, e.g., State v. Michael Bailey, No. 03C01-

9601-CR-00028 (Tenn. Crim. App., at Knoxville, Oct. 10, 1997). The jury concluded

that the defendant struck the victim out of frustration or anger.

The defendant also asserts that he was motivated to provide

necessities for his family and that the necessity that he attempted to provide was

peace. Tenn. Code Ann. § 40-35-113(7). W e find no merit in this assertion. This

mitigating factor is largely encompassed in the defendant's claim of self-defense or

defense of others. See State v. John D. Joslin, No. 03C01-9510-CR-00299 (Tenn.

Crim. App., at Knoxville, Sept. 22, 1997). The jury rejected this theory. In our view,

the trial court was warranted in rejecting the notion that the defendant was

protecting his family from a "drunken assault" by the victim. Tenn. Code Ann. § 40-

35-113(13). While the victim was drunk and apparently pushed the defendant's

ailing mother, he was also unarmed. In our view, there was no error by the rejection

of this claim.

Finally, the defendant argues that his actions do not indicate a

sustained intent to violate the law. Tenn. Code Ann. § 40-35-113(11). There was

some indication that the defendant armed himself with a lock-blade knife, opened

the weapon, and then stabbed the victim one or more times. All of this suggests a

sustained criminal intent. See State v. Johnson, 909 S.W.2d 461 (Tenn. Crim. App.

1995).

The defendant was eligible for a sentence ranging from three to six

years. Tenn. Code Ann. § 40-35-112(a)(3). The trial court properly applied two

27
enhancement factors and improperly applied a third, thereby enhancing the

defendant's sentence to six years. That the defendant, who has a history of criminal

behavior, employed the use of a deadly weapon in the commission of the crime is

entitled to particularly great weight. The trial court properly refused to apply each of

the six mitigating factors proposed by the defendant. In our view, the six year

sentence would have been warranted.

The defendant contends that he should have been permitted to serve

his sentence on probation. Among the factors applicable to the defendant's

application for probation are the circumstances of the offense, the defendant's

criminal record, social history, and present condition, and the deterrent effect upon

and best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285,

286 (Tenn. 1978); Stiller v. State, 516 S.W.2d 617, 619-20 (Tenn. 1974). Especially

mitigated or standard offenders convicted of Class C, D, or E felonies are presumed

to be favorable candidates "for alternative sentencing options in the absence of

evidence to the contrary." Tenn. Code Ann. § 40-35-102(6). W ith certain statutory

exceptions, none of which apply here, probation must be automatically considered

by the trial court if the sentence imposed is eight years or less. Tenn. Code Ann. §

40-35-303(a), (b). The ultimate burden of establishing suitability for probation,

however, is still upon the defendant. Tenn. Code Ann. § 40-35-303(b).

Alternative sentencing issues must be determined by the facts and

circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.

1986). "[E]ach case must be bottomed upon its own facts." State v. Taylor, 744

S.W.2d 919, 922 (Tenn. Crim. App. 1987).

28
 There is no evidence in the record that the trial court considered

probation in sentencing the defendant, despite his request. At the time of this

offense, the defendant lived with his mother and had held a steady job until 1986

when he contracted a lung disease and back injuries. The defendant had fulfilled

the terms of his 1992 probation and incurred no new charges, other than traffic

violations, until this offense. Those factors weigh in favor of a grant of probation.

The prior felony offenses, however, are unfavorable circumstances. While the

death of the victim, standing alone, is not an adequate basis for denying probation,

State v. Butler, 880 S.W.2d 395, 400-01 (Tenn. Crim. App. 1994), the serious nature

of the offense may warrant the denial of probation where "the offense, as

committed, is 'especially violent, horrifying, shocking, reprehensible, offensive, or

otherwise of an excessive or exaggerated degree' so as to outweigh all other factors

of probation." Id. at 400 (quoting State v. Travis, 622 S.W.2d 529, 534 (Tenn.

1981)). The stab wounds to the chest are circumstances of the crime which would

eliminate probation as a reasonable alternative. A lack of candor would also

support a term of incarceration rather than one of release in the community. State

v. Bunch, 646 S.W.2d 158 (Tenn. 1983).

The conviction is reversed. Because there has been an acquittal on

the greater offenses, the defendant must be retried on the voluntary manslaughter

charge.

_________________________________
Gary R. Wade, Judge

CONCUR:

______________________________
Joseph M. Tipton, Judge

______________________________
William M. Barker, Judge

29