IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBE R SESSION, 1997 December 18, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9611-CR-00469
)
Appellee, )
) DAVIDSON COUNTY
)
V. )
) HON. THOMAS H. SHRIVER, JUDGE
BENJAMIN F. WARNER, )
)
Appe llant. ) (VOLUNTARY MANSLAUGHTER)
FOR THE APPELLANT: FOR THE APPELLEE:
KARL DEAN JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
JEFFREY A. DeVASHER KAREN M. YACUZZO
Assistant Public Defender Assistant Attorney General
1202 Stahlman Building 2nd Floor, Cordell Hull Building
Nashville, TN 37201 425 Fifth Avenue North
Nashville, TN 37243
VICTO R S. JO HNS ON, III
District Attorney General
NICHOLAS BAILEY
Assistant District Attorney General
Washington Square, Suite 500
222 Se cond A venue S outh
Nashville, TN 37201
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Benjamin F. Wa rner, a ppea ls as of right from his sentence
of eight (8) years in the Tennessee Department of Correctio n. Defendant pled
guilty to the charge of voluntary manslaughter with an ag reed ma ndatory
sentence of eight (8) years to be imposed, with the manner of service of the
sentence to be dete rmined by the trial court. After a hearing, the trial cou rt
sentenced Defen dant to eig ht (8) years of incarce ration as a Rang e II Multiple
Offender to be serv ed at a ra te of thirty-five percent (35%), but denied probation
and alternative sentencing. Defendant argues that the trial c ourt er red in
impos ing a sen tence o f continuo us con fineme nt.
When an accused challenges the length, range or the manner of service
of a sentence, this court has a duty to conduct a de novo review of the sentence
with a pres ump tion that the dete rminatio ns ma de 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 rele vant facts a nd circum stance s.” State v. Ashby, 823 S.W.2d
166, 169 (T enn. 1991 ).
In conducting a de novo review of a sentence, this court m ust consider:
(a) the evidence, if any, received at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and arguments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
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that the defendant made on his own behalf; and (g) the potential or lack of
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principles set out under the sentencing law, and
made findings of fact adequately supported by the record, then we may not
modify the senten ce even if we wou ld have p referred a different res ult. State v.
Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
At the sentencin g hearing, the victim ’s sister, Geo rgia Hightower, testified
as to how th e loss of h er sister had affected her life. She stated that her sister
was thirty-one (3 1) years o f age and was in good health when she was killed.
Cathy Edmondson testified for the Defendant. Edmondson stated that she had
known the Defendant for thirty-five (35) or forty (40) years, and that over the
years he ha d help ed he r to do th ings sh e cou ld not d o by he rself. H is health is
progr essive ly getting worse, and she knew he had problems walking. She
described an inc ident b etwee n the vic tim and the Defe ndan t in whic h the vic tim
beca me h ostile with the Defe ndan t and E dmo ndso n talke d with h er to ca lm her
down. She de scribed th e Defe ndant a s a goo d perso n with no previous episodes
of violence .
The Defendan t testified on his own b ehalf. H e des cribed his he alth
problems as including throat cancer, high blood pressure and recurrent leg
problems from an old injury. He is receiving medical attention for both his throat
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cancer and th e high blood press ure, bu t did not go into de tail as to any treatment
he was receiving other than taking pills. The Defendant stated that he was
seventy-two (72) years old and the victim was forty (40) years old at the time of
the shooting.
When asked to describe the events preceding the shooting, Defendant
stated he was sitting in the corner of his bedroom in a chair and the victim asked
him for some money. Defendant handed her a twenty (20) dollar bill and she
started to fuss with him. As the victim went into the kitchen, the Defendant stated
that he believed she was getting a butcher knife out of her purse. His pistol was
lying nearby, so he grabbed the gun and shot her when she walked back into the
room. Wh ile he doe s adm it to shooting her, the D efenda nt testified that his
intention when he picked up the gun was “just keep her off of me was what I was
trying to do, to ke ep her fro m getting to me. It wa sn’t my inte ntion of killing h er.”
He the n dialed 9 11 and advised the dispa tcher of the incident.
Defendant describe d his relation ship with th e victim as one with problems,
and that he had called 911 four (4) different times when the victim was beating
him. He ad mitted that he did no t ever h ave the victim a rreste d bec ause he did
not want to see h er put in to jail. He state d that he felt really bad about what
happened to the victim.
On cross-examination, Defendant admitted that his testimony regarding
the events which preceded the victim’s death at the sentencing hearing was
different than what h e had initially told the police. The statement which
Defendant gave to the police read as follows:
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According to the suspect he was at home when the victim came
over. He sta ted tha t the victim accused him of seeing other women.
He stated that sh e cam e towa rds him while h e was sitting in a cha ir
next to the bed and stated she would kill him if he was seeing
another woman. It was at this time that he picked up from the
dresser a thirty-eight caliber revolver and shot her one time in the
chest.
The Defen dant ad mitted tha t the statem ent he g ave to the police was not rea lly
true. He also admitted that he previously stabbed another person to death, but
did not inte nd to kill that p erson e ither.
The trial court den ied the Defen dant any type o f alternative sentencing
and senten ced him to eight (8) years incarceration in the Tennessee Department
of Correction. The trial court noted that although the Defendant stated that he
acted under strong provocation, there was no proof off ered tha t tended “to
excus e and justify his cond uct. If he acted in self defense, it’s a defense. If he
didn’t, then, he pled guilty, which means he said he didn’t act in self-defense.”
On the issue of the Defendant’s age, he noted that this was the second time that
he had killed som eone.
Another pertinent factor which the trial court addressed was the
inconsistency in the Defendant’s statements to the court and the police regarding
the events which led to the victim’s death. The trial court noted that as the
Defendant agreed to plead guilty as a Range II Offender to a sentence of eight
(8) years, the various mitigating factors offered by the Defendant were not
applicable. As far as the Defendant’s health is concerned, the trial court believed
that the State ha d a “pretty g ood se cond d egree m urder ca se . . . and instead of
getting fifteen (15) years . . . he got an eight (8) year sentence. It’s not a bad
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deal for him. That took into c onside ration his h ealth and his physic al condition .”
A defendant who “is an especially mitigated or standard offender convicted
of a Cla ss C, D , or E felo ny is pre sum ed to b e a favo rable c andid ate for
alternative sentencing options in the absence of evidence to the contrary.” Tenn.
Code Ann. § 40-35-102(6). As noted above, the Defendant agreed to plead g uilty
as a Range II Multiple Offender, so he is not w ithin the parameters of Tennessee
Code Annotated section 40-35 -102(6) and is not presum ed to be a favo rable
candidate for alternative sentencing. Our sentencing law also provides that
“convicted felons committing the most severe offenses, possessing criminal
histories evincing a clear disregard for the laws and morals of society, and
evincing failure o f past e fforts at r ehab ilitation sha ll be given first p riority
regarding sentencing involving incarceration.” Te nn. Code Ann. § 40-3 5-102(5).
When imposing a sentence of total con fineme nt, our Criminal Sentencing
Reform Act mandates the trial cour t to base its decision on the considerations set
forth in Tennessee Code Annotated section 40-35-103. These considerations
which militate against alternative sentencing include: the need to protect so ciety
by restraining a defendant having a long history of criminal conduct, whether
confinement is particularly a ppropria te to effectively deter others likely to c omm it
a similar offense, the need to avoid depreciating the seriousness of the offense,
and the need to order confinement in cases in which less restrictive measures
have often or recently been unsuccessfully applied to the defendant. Tenn. Code
Ann. § 40-35 -103(1); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.
1994).
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The record revea ls that th e trial co urt failed to con sider a ll of the
sentencing principles and all relevant facts and circumstances. Therefore, the
standard of review for this c ourt is de novo without a presumption of correctness.
See State v. Conn ors, 924 S.W.2d 362 (Tenn. Crim. App. 1996). Our de novo
review of the entire record on appeal convinces us that the trial court was correct
in denyin g the Defendant alternative sentencing in lieu of incarceration. The
burden is on the D efenda nt to show that the sentence he received is impro per,
and the Defendant has failed to prove that he is entitled to p robation . See Ashby,
823 S.W .2d at 169 .
W hile the Defendant would have us to believe that his age and health
constitute circumstances such that he is entitled to probation, there was no
testimony other than the Defendant’s that his age and health required constant
medical attention. In the presentence report, the probation officer reported that
Defendant suffere d from throat c ance r, high b lood p ressu re, arth ritis and a slight
limp. While the probation officer noted that documentation was received
regarding the Defendant’s medical condition from the attending physicians at
Nash ville General Hospital, this information was not provided for our review. The
only evidence of medical attention the Defendant receives for his various medical
conditions is his own statement that he takes pills daily for his high blood
pressu re.
Another factor which supports the trial court’s decision includes the
Defe ndan t’s lack of candor. Defendant admitted during the sentencing hearing
that he had not been truthful describing the events preceding the victim’s death.
A defen dant’s truthfulness is a factor that may be considered and probation may
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be denie d on th is ground . State v. Dykes, 803 S.W.2d 250, 259-60 (Tenn. Crim.
App. 1990) (citations omitted). Lack of truthfulness is probative on the issue of
amen ability to reha bilitation. United States v. Grayson, 438 U.S. 41 (1978).
Other factors favoring Defe ndan t’s incar ceratio n inclu de the Defe ndan t’s
past criminal record and the deterrent effect upon both Defendant and s ociety in
gene ral. While Defendant’s criminal record is remote in time and many of the
offenses comm itted were not violent o nes, their nume rosity is significa nt. In
addition, the Defendant has a prior homicide conviction in his criminal record.
Although the prior homicide conviction was in 1948, the punishment of two (2) to
three (3) years confinement at that time did not deter Defendant from committing
the offense in this case, and, therefore, we conclude that incarc eration is
necessa ry to protect socie ty by restrain ing the D efenda nt. Tenn . Code Ann. §
40-35-103 (1)(A).
Defendant argue s that th is court has previously held that the “fact that the
death of another results from the defendant’s conduct does not, alone, make the
offense sufficiently violent to justify a denia l of probation.” See State v. Butler,
880 S.W.2d 395, 400-01 (Tenn. Crim. App. 1994). He cites several unpublished
case s in supp ort of his argum ent. See Montg omery v. State, No. 03C01-9401-
CR-00380, Sevier C ounty (T enn. C rim. App ., at Knoxville, Augu st 18, 1995);
State v. Black, No. 01C01-9401-CC-00006, Robertson Coun ty (Tenn. Crim. A pp.,
at Nashv ille, July 14, 19 95); State v. Harris , No. 03C01-9505-CR-0 0131,
Ham ilton County (Tenn . Crim. A pp., at Kn oxville, April 4, 1 996); State v. Pann,
No. 02C01-9510-CR-00295, Shelby County (Tenn. Crim. App., at Jackson, June
10, 1996). As the State correctly points out, in each of these cases, there was
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a presu mptio n that th e defe ndan t was a favora ble ca ndidate for alternative
sentencing unde r Ten ness ee Co de An notate d sec tion 40 -35-1 02(6) , and th is
court held th at the tria l court could not de ny alter native s enten cing o n the s ole
basis that defendant’s criminal conduct caused death. The Defendant’s case can
be distinguished as he was not a presum ably favorable can didate for alternative
sentencing, and his conduct causing the death of the vic tim wa s not th e sole
factor in denying probation.
As the evide nce in the record s upports both the factual and s tatutor y basis
for the trial c ourt’s s enten cing d ecisio n, this c ourt will n ot interpose a different
senten ce. W e affirm the judgm ent of the tria l court.
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THOMAS T. W OODALL, Judge
CONCUR:
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GARY R. WA DE, Judge
___________________________________
J. CURWO OD W ITT, JR., Judge
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