State v. Jerry Taylor

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
DECEMBER 1997 SESSION
July 29, 1998

Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
APPELLEE, ) No. 01-C-01-9612-CC-00499
)
) Williamson County
v. )
) Donald P. Harris, Judge
)
JERRY TAYLOR, ) (Second Degree Murder)
)
APPELLANT. )

FOR THE APPELLANT: FOR THE APPELLEE:

John H. Henderson John Knox Walkup
District Public Defender Attorney General & Reporter
P.O. Box 68 425 Fifth Avenue, North
Franklin, TN 37065-0068 Nashville, TN 37243-0497

Vanessa P. Bryan Karen M. Yacuzzo
Assistant Public Defender Assistant Attorney General
P.O. Box 68 425 Fifth Avenue, North
Franklin, TN 37065-0068 Nashville, TN 37243-0497

Larry D. Drolsum Joseph D. Baugh
Assistant Public Defender District Attorney General
P.O. Box 68 P.O. Box 937
Franklin, TN 37065-0068 Franklin, TN 37065-0937

John W. Barringer
Assistant District Attorney General
P.O. Box 937
Franklin, TN 37065-0937

Jeff P. Burks
Assistant District Attorney General
P.O. Box 937
Franklin, TN 37065-0937

OPINION FILED:_________________________________

AFFIRMED

Gary R. Wade, Judge
 OPINION

The defendant, Jerry Taylor, was convicted of second degree murder,

a Class A felony. The trial court imposed a sentence of twenty-one years and fined

the defendant $5,000.

In this appeal of right, the defendant presents four issues for review.

He contends that (1) the evidence is insufficient as a matter of law to support the

conviction; (2) the trial court erred by failing to grant a defense motion to suppress;

(3) the jury instruction for second degree murder was incorrect and the statute is

unconstitutional; and (4) the sentence is excessive.

It is the opinion of this court that the conviction and sentence should

be affirmed.

The victim, Christopher Harvey, and the defendant lived together in a

small trailer in the Nolensville Trailer Park in Williamson County. The victim was

employed. The defendant was not. Those who knew both men testified that the two

often argued over the payment of rent and food. A young neighbor in the trailer

park, Cory Ford, testified that one week before the shooting, the defendant

remarked that he was too old to be a match for the victim in a fight. The defendant

explained that if the victim threatened him, he would "just shoot" him.

On the afternoon of November 7, 1995, the two men had been

drinking. The victim became angry when Ford and a friend refused to take the

defendant to buy more beer. After supper, the victim, according to the defendant,

threatened the defendant with a knife and ordered him to leave the trailer. The

defendant left for a time and when he came back, the victim was not there. When

2
the victim returned, the two men argued and the defendant claimed that the victim

struck him on the arm with a .22 caliber rifle. He said the victim then slammed the

rifle over a chair, breaking off the stock.

The defendant left again, walked to a nearby market to telephone a

friend, and sought permission to stay overnight. When his friend failed to come by

and when he saw the victim leave, the defendant returned to the trailer and lay down

on the couch where he usually slept.

The victim returned and the two men argued again. The defendant

claimed that the victim put a knife to the defendant’s throat and told him that he had

been in the Navy and that killing him would be easy. The defendant testified that he

kicked the victim away into an adjoining bedroom, picked up the remains of the

broken rifle, entered the bedroom, and fired the fatal shot.

The defendant explained to the investigating officer that he was "just

going to try to scare" the victim or "hit him" with the rifle. He also claimed that he

wanted to make sure the victim did not fall onto the knife.

In his recorded statement to police, the defendant contended that he

fired the shot only after the victim, knife in hand, arose from the floor, saying: "You

f----- up."

When I shot him the first time, he said, "Jerry, No" and
that was, I mean and then he got up with the knife. I
mean, you know, he was on, he was done laying down. I
don’t know where I shot. I couldn’t tell you where I shot
him. How many times I shot him and he hollered, "Jerry"
and that is the last thing I think he said was, "Jerry, No"
and then he rolled over and was getting back up, which I
knew I had shot him with a little low powered rifle. I knew
I shot him low, I did aim low and when he rolled over, I
knew with his temper, with the knife. I shot him again and

3
 again.

The defendant contended that the rifle was old and that he did not think it would

shoot.

At trial, the defendant emphasized that he followed the victim into the

bedroom only to make sure the victim did not fall onto the knife. The defendant also

testified that he planned to strike the victim with the rifle and that he acted in self-

defense. The defendant contended that the victim was a heavy drinker and became

angry when he drank. He insisted that he feared for his life. Several defense

witnesses testified that the victim had a reputation for violence.

The victim was shot nine times. Two of the shots were into his back.

The fatal shot entered the back, penetrated the left lung, aorta, and part of the heart.

There were four gunshot wounds to the right arm and others to the left thigh and the

left arm. The defendant, who placed the victim onto the bed and then went to Ford’s

trailer to call 911, claimed that he did not know what became of the knife after the

victim was shot.

Other witnesses remember seeing the knife in the victim’s hand or on

the floor next to one of his hands. Cory Ford, his mother Phyllis Ford, and friend

John Irwin went to the trailer with the defendant. They said they saw a knife in the

victim’s open hand. Phyliss Ford said the knife was in the victim’s left hand. Cory

Ford remembered a knife in the victim’s open palm but did not say which hand.

John Irwin said he saw a knife in the victim’s hand but could not remember which

one. Irwin said the victim was right-handed. Corporal Mark Lee said he found the

knife near the victim’s right hand.

4
 When Deputy Jeff Carter arrived, he immediately took the defendant

into custody, advised him of his rights, and placed him in the back of the patrol car.

The defendant provided a tape-recorded statement to officers at the sheriff’s office.

A breathalyzer test indicated the defendant had a blood alcohol content of .07

percent. Other officers testified that the defendant admitted to shooting the victim

but claimed self-defense. Several rounds of ammunition were left in the rifle.

Three bullets were found on the bed and another from inside the

mattress. Four shells were located beside the bed and a fifth next to a dresser in

the bedroom. Three more shells were found in the living room. A firearms expert

from the Tennessee Bureau of Investigation, who examined the rifle, testified that a

pull of the trigger was required for each shot. The defendant attempted to explain

the presence of the shells by testifying that sometime earlier, visitors had shot the

rifle inside the trailer.

I

The defendant first contends that the evidence was insufficient to

support a verdict of second degree murder. He argues that the proof at trial

established that he acted in self-defense because he feared death or serious bodily

injury.

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

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

Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978). The verdict of guilt removes the

presumption of innocence and gives rise to a presumption of guilt. State v. Grace,

493 S.W.2d 474, 476 (Tenn. 1973). This court, in reviewing the evidence in the light

most favorable to the state, concludes that a rational trier of fact could have found

5
the essential elements of second degree murder beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307 (1979); Tenn. R. App. P. 13(e).

Second degree murder requires proof that the defendant committed an

unlawful, knowing killing of another. Tenn. Code Ann. §39-13-210(a)(1).

"Knowing" refers to a person who acts knowingly with
respect to the conduct or to 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. § 39-11-106(a)(20).

A person is justified in using force against another person when he or

she reasonably believes (1) that death or serious bodily injury is imminent and (2)

that the force used is immediately necessary to protect against the other person’s

use or attempted use of unlawful force. Tenn. Code Ann. § 39-11-611(a). The state

has the burden of negating any defense raised by the supporting evidence beyond a

reasonable doubt. Tenn. Code Ann. § 39-11-201(a)(3).

In our view, the jury could have reasonably concluded that the severity

and the degree of the defendant's act were unnecessary to save his life and

disproportionate to the threat presented by the victim. The defendant acknowledged

following the victim, who had fallen to the floor, into the bedroom carrying a loaded

rifle. He shot the victim nine times. Each shot required a separate pull of the

trigger. Not all of the bullets in the rifle were fired. The victim was shot twice from

behind. One of those shots caused his death.

The defendant claimed that he did not know what happened to the

6
knife. Other witnesses said the knife was in the victim's open palm or on the floor.

These and other inconsistencies in the evidence were not necessarily helpful to the

claim of self-defense.

We conclude that ample proof existed to allow a rational trier of fact to

conclude that the defendant unlawfully and intentionally killed the victim. The jury

acted within its prerogative in rejecting the self-defense claim or in refusing to

consider lesser offenses.

II

Before trial, the defendant filed a motion to suppress the statement he

made to the police.1 On March 22, 1996, the trial court conducted a suppression

hearing to determine the admissibility of statements the defendant made at the

scene of the crime on the night of the shooting. The defendant contends that the

statements were elicited in violation of his rights under the United States and

Tennessee Constitutions. He claims that because he was intoxicated and in shock,

he never voluntarily waived his right to remain silent.

The defendant did not testify at the suppression hearing. Deputy Jeff

Carter testified that after receiving the report of the shooting, he went to the trailer

park. He stated that the defendant, who was leaving the trailer when Carter arrived,

was taken into custody and placed into the patrol car. "He was talking the whole

time this was going on. And I walked him back to my patrol car. At that point I sat

him down . . . I had him listen and I gave the Miranda warning to him." Carter

acknowledged that the defendant smelled of alcohol, that his speech was “thick

1
The defendant originally attempted to suppress a tape-recorded statement he gave to the
authorities at 1:15 A.M . on Nov emb er 8, 199 5, but withd rew the m otion at the M arch 22 , 1996,
suppression hearing; however, the defendant continued to object to officers' recollections of
statem ents he purporte dly mad e at the sc ene of th e shoo ting.

7
tongued," and that he talked a lot. Deputy Carter said that the defendant was

cooperative and stopped talking during the Miranda warning. "He even replied that

he understood them after I was finished." Deputy Carter testified that he did not

question the defendant at that time, choosing instead to process the crime scene.

Corporal Mark Lee arrived as the defendant was being placed into the

car. Lee also went into the trailer and later entered Deputy Carter’s patrol car to use

the phone. Lee testified that he did not question the defendant but was aware that

Deputy Carter had Mirandized the defendant. Lee recalled that the defendant

volunteered his version of the altercation. He said that the defendant claimed the

victim broke the butt of a rifle over his back and then threatened him with a knife.

"He volunteered he had shot him.... He said, 'I shot him, what else could I do? You

know he had a knife and he was waving the knife in my face.'" Lee described the

defendant as smelling of alcohol, as talking excitedly, and as trying to cooperate

with the investigation.

After sitting in the patrol car for approximately one hour, the defendant

was taken to the trailer to use the bathroom and to speak with the detectives. At

that point, Deputy Carter recalled that Detective Beard asked if Miranda warnings

had been provided. Detective Beard revealed that the defendant had no trouble

walking up the stairs to the trailer and reenacted the events leading to the shooting.

Detective Beard remembered the defendant's claim that he left the trailer after the

victim had threatened him with a knife and that when he returned, the victim struck

him with a rifle and broke the rifle over a chair. He recalled the defendant saying

that he left a second time and returned later when the victim was gone; and that

when the victim returned and threatened him with a knife, he pushed the victim

away, grabbed the remains of the rifle, followed him into the bedroom, and fired one

8
shot. He recalled the defendant's claim that he fired the weapon only after the

victim advanced toward him. Eight more shots followed.

The breathalyzer test indicated a blood alcohol level of .07 percent at

12:50 A.M. Detective Beard testified that twenty-five minutes later, the defendant

received Miranda warnings, signed a waiver, and gave a tape-recorded interview.

Detective Beard described the defendant as a fairly educated man, having been a

former bar manager and as having some common sense.

The trial court initially determined that the defendant's pre-trial

statements were knowingly and voluntarily made. State v. Pursley, 550 S.W.2d 949,

950 (Tenn. 1977). When the trial court makes findings of fact at the conclusion of a

suppression hearing, the facts are accorded the weight of the jury verdict. State v.

Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). These facts are binding upon this

court unless the evidence in the record preponderates against the findings of the

trial court. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see also Stephenson,

878 S.W.2d at 544.

Questions of credibility of witnesses, the weight and value of the

evidence and the resolution of conflicts in evidence are matters entrusted to the trial

judge as the trier of fact. The party prevailing in the trial court is entitled to the

strongest legitimate view of the evidence adduced at the suppression hearing as

well as all reasonable and legitimate inferences that may be drawn from the

evidence. So long as the greater weight of the evidence supports the trial court’s

findings, those findings shall be upheld. Odom, 928 S.W.2d at 23.

The state relies upon this Court’s opinion in State v. Jack Jay North,

9
Hardin County No. 02-C-01-9512-CC-00369 (Tenn. Crim. App., Jackson, December

12, 1996), app. denied (Tenn., July 7, 1997). North was arrested for driving under

the influence following an accident. He became a suspect in a murder and was

questioned by authorities. He claimed that he did not voluntarily waive his rights

because he was intoxicated, injured, medicated, sleepy, hungry, and cold at the time

of his statements. As in this case, the trial court in North found the defendant had

knowingly and voluntarily waived his constitutional rights. On direct appeal, this

court agreed.

In our view, the defendant's constitutional rights were not violated.

The evidence supports the trial court's conclusion. Moreover, the statements at

issue are largely self-serving and were consistent with the defense offered at trial.

There was no prejudicial error by the admission of the statements.

III

As his third issue, the defendant challenges the trial court's instructions

to the jury as to second degree murder, voluntary manslaughter, and provocation.

The defendant also contends the second degree murder statute is unconstitutional.

During the course of the trial, the trial judge observed that the pattern

jury instructions for second degree murder did not address "heat of passion brought

on by adequate provocation." In consequence, the trial judge advised the jury that a

killing committed in a heat of passion did not rise to second degree murder. The

trial court instructed the jury as follows:

Any person who commits second degree murder is guilty
of a crime. For you to find the defendant guilty of this
offense, the state must have proven beyond a
reasonable doubt the existence of the following essential
elements:
(1) that the defendant unlawfully killed the

10
 alleged victim;
(2) that the defendant acted intentionally or
knowingly; and
(3) that the killing did not result from a state
of passion produced by adequate
provocation sufficient to lead a reasonable
person to act in an irrational manner.
The distinction between voluntary manslaughter
and second degree murder is that voluntary
manslaughter requires that the killing result from a state
of passion produced by adequate provocation sufficient
to lead a reasonable person to act in an irrational
manner. Bear in mind that if you find a knowing killing
with adequate provocation, that is voluntary
manslaughter.
If you find beyond a reasonable doubt the
defendant is guilty of this offense, you will convict him
and your verdict will be, “We the Jury find beyond a
reasonable doubt the defendant is guilty of murder in the
second degree.” If this is your verdict, you may also
assess a fine in some amount not to exceed $50,000.00
Such fine would be in addition to any other punishment
provided by law and must be reported with your verdict if
you find it warranted.
If you find the defendant not guilty of this offense
or if you have a reasonable doubt as to his guilt, you will
acquit him and you must then proceed to consider the
defendant’s guilt or innocence of the offense of voluntary
manslaughter which is a lesser included offense.

(Emphasis added). The trial judge then instructed fully on voluntary manslaughter,

criminally negligent homicide, and self-defense.

Initially, defense counsel expressed satisfaction with the trial judge's

instructions. There was no objection either before or after the charge to the jury.

The defendant did not contest the jury charge in his motion for new trial although he

did attack the constitutionality of the second degree murder statute.

The defendant also characterizes the third issue as "whether the trial

court erred in failing to declare the second degree murder statute unconstitutional."

He cites several reasons for his claim. The defendant argues that the statute is

vague and over broad. See U. S. Const. amend. V, XIV. He contends a violation of

11
the Sixth Amendment to the U.S. Constitution, requiring that the defendant be

"informed of the nature and cause of the accusations," and Article 9 of the

Tennessee Constitution, "to demand the nature and cause of the accusation." He

also asserts that the "patchwork" instructions on second degree murder, which were

not objected to at trial, qualify as plain error. The defendant attacks Tenn. Code

Ann. § 39-13-210, the second degree murder statute, for failing to properly

differentiate the varying degrees of homicide. He contends that the murder statutes

are "so conflicted" that the trial judge had to give supplemental instructions in order

for the jury to properly consider the charges. He argues that this raises a question

as to "whether the jury verdict was unanimous considering the 'combined charge.'"

Furthermore, the defendant challenges the statute on equal protection

grounds, arguing the legislature has failed to differentiate between second degree

murder and other homicide statutes. The defendant reasons that "since the second

degree murder statute did not address the elements of voluntary manslaughter, the

state was remiss in not electing one statute or the other. By failing to elect, the

conviction in this cause violates the Fourteenth Amendment."

Finally, the defendant objects to the jury instructions requiring

consideration of the second degree charge first and, thereafter, in order, the lesser

offenses. He makes the following argument:

If the jury rejects that the killing of another in a state of
passion produced by adequate provocation, the verdict
automatically becomes "Second Degree Murder," there is
no consideration for criminally negligent homicide and
little emphasis is placed on self-defense. W hen the jury
was given a pieced together charge . . . there becomes a
question whether their verdict was unanimous.

The defendant contends the jury was not allowed to consider state of passion or

adequate provocation.

12
 It is rare for this court to have the opportunity to review so many

issues, constitutional and otherwise, in a single allegation of error. Nevertheless, we

will attempt to address the questions presented.

(A)

Generally, the failure to raise an issue in motion for new trial results in

waiver. Tennessee Rule of Appellate Procedure 3(e) provides that for appeals "in

all cases tried by a jury, no issue presented for review shall be predicated upon error

in the admission or exclusion of evidence, jury instructions, granted or refused ... or

other grounds upon which a new trial is sought, unless the same was specifically

stated in a motion for new trial; otherwise such issues will be treated as waived."

This rule embodies the common law practice of Tennessee, under

which an objection to a particular jury instruction is deemed waived in the absence

of contemporaneous objection unless the instruction contains plain error. See e.g.,

Davis v. State, 793 S.W.2d 650, 651 (Tenn. Crim. App. 1990); State v. Cravens, 764

S.W.2d 754, 756-57 (Tenn. 1989). The defendant in this case did not make a

contemporaneous objection to the court's charge. Further, he did not raise the issue

of an improper jury instruction in his motion for a new trial. Clearly waiver would

preclude a portion of the claims raised. Because, however, the defendant alleges

plain error, we must at least address whether we can consider the merits of the

issue.

(B)

Before an error may be recognized pursuant to Tenn. R. Crim. P.

52(b), the error must be "plain" and it must affect a "substantial right" of the

accused. The word "plain" is synonymous with "clear" or equivalently "obvious."

13
United States v. Olano, 507 U.S. 725, 732 (1993). A "substantial right" is a right of

"fundamental proportions in the indictment process, a right to the proof of every

element of the offense and is constitutional in nature." State v. Adkisson, 899

S.W.2d 626, 639 (Tenn. Crim. App. 1994). A plain error is not merely error that is

conspicuous. Plain error is especially egregious error that strikes at the "fairness,

integrity or public reputation of judicial proceedings." See State v. Wooden, 658

S.W.2d 553, 559 (Tenn. Crim. App.), app. denied (Tenn. 1983).

The jury instruction in this case informed the jury that second degree

murder is a knowing killing. The trial judge added that if the jury found the killing

was brought about by provocation, the offense would be voluntary manslaughter.

The jury was made aware of the differences between second degree murder and

voluntary manslaughter. The addition to the instruction made by the trial judge was

to the defendant’s favor. Because the defendant could not have been harmed by

the trial judge's amendments to the pattern instruction, there was no reversible error,

plain or otherwise.

The challenges to the instructions are without merit.

(C)

The gravamen of the defendant's constitutional claim is that the

second degree murder statute violates due process and equal protection. It is a

basic principle of due process that an enactment is void for vagueness if its

prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108

(1972). The fair warning requirement embodied in the due process clause prohibits

the states from holding an individual criminally responsible for conduct which he

could not have reasonably understood to be proscribed. United States v. Harriss,

14
347 U.S. 612, 617 (1954). Due process requires that the law give sufficient warning

so that people may avoid conduct which is forbidden. Rose v. Locke, 423 U.S. 48,

49-50 (1975). The words of a statute are to be taken in their natural and ordinary

sense without a forced construction to limit or extend their meaning. Ellenburg v.

State, 384 S.W.2d 29, 30 (Tenn. 1964). Initially, trial courts are charged with

upholding the constitutionality of statutes where possible. Dykes v. Hamilton

County, 191 S.W.2d 155, 159 (Tenn. 1945); State v. Joyner, 759 S.W.2d 422, 425

(Tenn. Crim. App. 1987). The constitutional test for vagueness is whether a

statute's prohibitions are not clearly defined and are thus susceptible to different

interpretations as to what conduct the statute actually proscribes. State v. Forbes,

918 S.W.2d 431, 447-48 (Tenn. Crim. App. 1995); see Grayned v. City of Rockford,

408 U.S. at 108; Baggett v. Bullitt, 377 U.S. 360, 367 (1964).

In contrast, the constitutional test for overbreadth is whether the

statute's language overreaches unlawful conduct and encompasses activity that is

constitutionally protected. Forbes, 918 S.W.2d at 448; Grayned, 408 U.S. at

114-15. Under our principles of due process, an over broad or vague statute is

vulnerable to a constitutional challenge because it (1) fails to provide fair notice that

certain activities are unlawful; and (2) fails to establish reasonably clear guidelines

for law enforcement officials and courts, which in turn invites arbitrary and

discriminatory enforcement. Forbes, 918 S.W.2d 448; see Rose v. Locke, 423 U.S.

at 49-50; Smith v. Goguen, 415 U.S. 566, 572-73 (1974). In our view, the words of

Tenn. Code Ann. § 39-13-210 are sufficiently precise to put an individual on notice

of prohibited activities. The language sets out boundaries sufficiently distinct for the

courts to fairly administer the law. See State v. Thomas, 635 S.W.2d 114, 116

(Tenn. 1982).

15
 The defendant also challenges the second degree murder statute on

equal protection grounds. He asserts that the legislature has failed to differentiate

between second degree murder and other homicide statutes.

Second degree murder is the only homicide offense defined in Tenn.

Code Ann. § 39-13-210. Killing in the heat of passion after provocation is

addressed in the voluntary manslaughter charge codified at Tenn. Code Ann. § 39-

13-211. Criminally negligent homicide is defined in Tenn. Code Ann. § 39-13-212.

Here, the evidence supports a finding that the defendant committed "a knowing

killing" after following the victim into his bedroom and shooting the victim nine times.

The fatal shot hit the victim from behind. This conduct falls within the conduct

proscribed by the second degree murder statute. The jury was aware of the varying

degrees of offenses based upon the trial court's instructions and the arguments

made by counsel. The jury simply found the evidence supported the greater charge.

Even if these statutes were overlapping, there is no constitutional

violation. In United States v. Batchelder, 442 U.S. 114, 123-24 (1979), when faced

with a similar challenge to two federal statutes, the court ruled that when an act

violates more than one criminal statute, the government may prosecute under either,

so long as it does not discriminate against any class of defendants. The decision to

prosecute and what charge to bring before a grand jury are decisions that generally

rest in the prosecutor's discretion. Id., 442 U.S. at 123-24. Because the conduct of

the defendant clearly caused the death of the victim, there is no equal protection

violation.

(D)

The defendant objects to the sequence of the jury charge which first

16
defined second degree murder and then proceeded to define voluntary

manslaughter and criminally negligent homicide. Sequential jury instructions such

as these have been upheld by this court on a number of occasions. See State v.

Raines, 882 S.W.2d 376, 381-82 (Tenn. Crim. App.), app. denied (Tenn. 1994);

State v. McPherson, 882 S.W.2d 365, 375-76 (Tenn. Crim. App.), app. denied

(Tenn. 1994); State v. Rutherford, 876 S.W.2d 118, 119-20 (Tenn. Crim. App.

1993), app. denied (Tenn. 1994).

The jury was given instructions on second degree murder as well as

the lesser crimes of voluntary manslaughter and criminally negligent homicide. The

jury knew there were several options available. Under our law, it is presumed that

juries follow the instructions of the trial judge. State v. Laney, 654 S.W.2d 383, 389

(Tenn.), cert. denied, 464 U.S. 1003 (1983).

(E)

The defendant claims that the jury was not allowed to consider state of

passion or adequate provocation. There is simply nothing in the record to support

this allegation. The record clearly demonstrates that the judge instructed the jury on

lack of passion and provocation as part of second degree murder. The jury is

presumed to follow the instructions given. Laney, 654 S.W.2d at 389. This issue is

without merit.

(F)

The defendant argues that the state failed to make an election of

offenses. Election was not required in this case. See State v. Shelton, 851 S.W.2d

134 (Tenn. 1993). The defendant did not deny shooting the victim on Nov. 7, 1995.

The only question for the jury was whether the shooting was a knowing killing

17
(second degree murder), a killing in a state of passion (voluntary manslaughter) or a

killing which was the result of criminally negligent conduct (criminally negligent

homicide). There was only one incident. It was for the jury to determine the gravity

of the offense. There was no risk of a non-unanimous verdict since jurors were

deciding only one of three possible crimes. The jury found the defendant guilty of

second degree murder, concluding there was either no provocation or inadequate

provocation to warrant voluntary manslaughter. In our view, there was no risk of a

"patchwork verdict."

In summary, we find no merit to any of the claims embodied in the third

issue.

IV

As his final issue, the defendant complains that his twenty-one-year

sentence was excessive. He argues that the trial court erred (a) by failing to

consider two mitigating factors and (b) by improperly weighing the mitigating and

enhancing factors present.

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). The

Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence.

18
 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 the offense, the presumptive sentence for a Class A

felony was the midpoint of 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 middle of the range, 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 discretionary with the trial court so long as the

record supports its findings and it complies with the 1989 Sentencing Act. See

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

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

Ann. §§ 40-35-209, -210.

The presentence report established that the defendant, age forty-four

at the time of the sentencing hearing, completed the ninth grade. He had worked as

a truck driver and manager of a business but was unemployed at the time of the

shooting. He has three children. His prior criminal history includes convictions for

breach of the peace, assault, receiving stolen property and two convictions for

driving under the influence. He was on judicial diversion for a charge of theft over

$10,000 when the shooting occurred. He was also on probation for DUI when the

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shooting occurred.

The trial court found the following enhancement factors applicable:

(1) The defendant has a previous history of criminal
convictions or criminal behavior in addition to those
necessary to establish the appropriate range. Tenn.
Code Ann. § 40-35-114(1).

(8) The defendant has a previous history of unwillingness
to comply with the conditions of a sentence involving
release into the community. Tenn. Code Ann. § 40-35-
114 (8).

The trial court found the following mitigating factors applicable:

(2) The defendant acted under strong provocation. Tenn.
Code Ann. § 40-35-113(2).

(3) Substantial grounds exist tending to excuse or justify
the defendant’s criminal conduct, though failing to
establish a defense. Tenn. Code Ann. § 40-35-113(3).

The defendant concedes the presence of enhancement factors (1) and

(8) and yet contends that he lacked a sustained intent to violate the law, Tenn. Code

Ann. § 40-35-113(11), and that he acted under duress or domination of another

person, Tenn. Code Ann. § 40-35-113(12).

The defendant told a neighbor a week before the shooting that he was

too old to fight the victim and that he would shoot the victim if threatened. After

successfully pushing the victim away on the night of the shooting, the defendant

followed the victim into the bedroom, taking a loaded rifle with him. He testified that

he planned to hit the victim with the rifle. Instead, the defendant shot the victim nine

times. The defendant testified that he continued to shoot the victim even after the

victim pleaded, "Jerry, No." All of this supports the trial court's rejection of Tenn.

Code Ann. § 40-35-113(11). State v. Johnson, 909 S.W.2d 461, 465 (Tenn. Crim.

App.), app. denied (Tenn. 1995).

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 Section 40-35-113(12) of Tenn. Code Ann. provides as follows: "The

defendant acted under duress or under the domination of another person, even

though the duress or the domination of another person is not sufficient to constitute

a defense to the crime." Duress is defined as a threat of "such a character as to

overcome the mind and will and destroy the free agency of a person of ordinary

firmness." Johnson v. Roland, 61 Tenn. (2 Baxt.) 203, 206 (1872). The defendant

testified that he twice left the trailer after threats made by the victim. During the third

confrontation, the defendant had the opportunity to leave again, but he did not. In

our view, there was evidence to support the trial court's rejection of the defendant's

claim that he acted under "duress or domination." State v. John D. Joslin, Knox

County No. 03-C-01-9510-CR-00299 (Tenn. Crim. App. Knoxville, September 18,

1997). No one forced the defendant to fire the first shot or any of the several shots

thereafter.

The defendant was eligible for a sentence ranging from fifteen to

twenty-five years. Tenn. Code Ann. § 40-35-112(a)(1). The judge started at the mid-

range of twenty years, determined that the enhancing factors slightly outweighed the

mitigating factors, and added one year. That the defendant had previous

convictions and was serving probation and judicial diversion when he shot the victim

warranted significant weight.

Accordingly, the judgment is affirmed.

_________________________________
Gary R. Wade, Judge

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CONCUR:

______________________________________
Joseph M. Tipton, Judge

______________________________________
Curwood Witt, Judge

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