State v. Mario Gutierrez

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY SESSION, 1996

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9502-CC-00043
)
Appellee, )
)
) HARDIN COUNTY
VS. )
) HON. CREED MCGINLEY
MARIO GUTIERREZ, ) JUDGE

Appellant.
)
) (Delayed Appeal)
FILED
May 15, 1997

Cecil Crowson, Jr.
Appellate C ourt Clerk
FOR THE APPELLANT: FOR THE APPELLEE:

Mr. Donald Holt Charles W. Burson
216 Dr. Hicks Blvd. West Attorney General and Reporter
Florence, AL 35631
Michael J. Fahey, II
Mr. Lee Lackey Assistant Attorney General
507 Water Street 450 James Robertson Parkway
Savannah, TN 38372 Nashville, TN 37243

Larry Bryant Robert Radford
P. O. Box 663 District Attorney General
Camden, TN 38120
John Overton
Assistant District Attorney
Hardin County Courthouse
Savannah, TN 38372

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
 OPINION

This is a delayed appeal granted by the trial court pursuant to Tenn. Code

Ann. § 40-30 -120 (1 990). A ppella nt Ma rio Gu tierrez s eeks relief from his 1992

voluntary manslaughter conviction which resulted from the fatal shooting of Ms.

Deborah McK ee, his girlfriend with whom he lived. Mr. Gutierrez received a six

year sentence as a Range 1 standard offender. He was also fined $10,000.

There are four issues presented for review:

(1) whethe r the evide nce is leg ally sufficient to suppo rt the verdict;

(2) whether the pros ecution unconstitutiona lly used perem ptory

challenges to remove two prospective African-American jurors;

(3) whether Appe llant receive d the e ffective a ssista nce o f coun sel at h is

trial; and

(4) whether Appellant’s sentence was excessive.

After a review of the record, we find no error and affirm the judgment of the

trial court.

I. Sufficiency of Evidence

When an appeal challenges the sufficiency of the evidence, the sta ndard

of review is whethe r, after vie wing th e evide nce in the ligh t mos t favora ble to the

prosecution, any rational trier of fact cou ld have fo und the essen tial eleme nts of

the crime beyond a reasonable doubt. Jack son v. V irginia, 443 U.S. 307, 318

(1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992); Tenn. R. App. P.

13(e). In a criminal trial, great weight is given to the result reached by the jury.

State v. Johnson, 910 S.W .2d 897, 899 (Tenn. Crim . App. 1995 ).

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

evidence and all reasonable or legitimate inferences which may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The weight

and credibility of the testimony o ffered at trial are matte rs entru sted e xclusive ly

to the jury as trie r of fact. State v. Sheffie ld, 676 S.W.2d 542, 547 (Ten n. 1984).

A convic tion m ay be b ased entirely on circ ums tantial evidence where th e facts

are “so clearly interwoven and connected that the finger o f guilt po ints un erring ly

at the defendant and the defenda nt alone.” State v. Duncan, 698 S.W.2d 63, 67

(Tenn. 19 85).

Once approved by the trial court, a jury verdict accredits the witnesses

presented by the Sta te and re solves all co nflicts in favor o f the State . State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Moreover, a guilty verdict removes

the presumption of innocence and raises a p resum ption of gu ilt. State v. Tug gle,

639 S.W.2d 913, 914 (Tenn. 1982). The defendant then bears the burden of

overcoming this pre sum ption o f guilt on appe al. State v. Black, 815 S.W.2d 166,

175 (Ten n. 1991).

Viewed in the light of these well-established standards of appellate review,

the record reflects that on January 12, 1992, Deborah McKee was shot and killed

in the home she shared with Appellant. Th e medica l examiner, Dr. Jerry

Francisco, testified that the fatal gunshot wound was inflicted to the left side of

Ms. McKee’s head, just above the eyebrow. The wound indicated that the gun

had been less that two feet from Ms. McKee’s head, but not in contact with her

head. Dr. Francisco stated that the wound to the left side of the head was

inconsistent with suicide since the victim was right-handed. According to the

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medical examiner, Ms. McKee had sustained abrasions and contusions over

most of her body. The bruises on her back were consistent with her having been

beaten by an object, and Ms. McKee’s broken fingernails and injured hand

indicated she ha d tried to de fend he rself.

The results of the guns hot residue test p erformed o n Ms. McK ee were

more consistent with her having handled the gun than with her having fired the

gun. Wh ile the test performed on Appellant was inconclusive, a gunshot residue

expert testified that, in his opinion, Appellant was in close proximity of the gun

when it was fired. Fu rthermore , a firearm s expe rt testified that the gun in

question wo uld not have fired w ithout a finger pulling the trigge r.

According to a statement made by Appellant during the course of the police

investigation, Ms. McKee returned home upset on the night of January 12, 1992.

She complained of physical pain and other problems. She then stated that she

was “going to finish this” and, after a discus sion with Appellant, retrieved a gun

from the living room cabinet. A struggle e nsued as App ellant attem pted to

prevent Ms. McKee from harming herself. During the struggle, the gun fired, and

a bullet struck Ms. M cKee in the head. Appellant stated that while Ms. McKee lay

on the floor bleeding, he took the gun to the bathroom and wrapped it in a wet

towel to hide it from her. He then phoned the police and arranged to meet an

ambulance at a nearby YMCA. He placed Ms. McKee on the floor of his van and

departed. Appellant stated that, because of previous injuries suffered by Ms.

McKee, he made no attempt to stop the bleeding or render first aid. The police

officer who met the van testified that Ms. McKee was bleeding from the left side

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of her head and that her blouse was open and “messed up.” She died later that

evening.

Other statem ents m ade by A ppellant followin g the incident were somewhat

inconsistent with the above statement. Appellant told one officer that Ms. McKee

simp ly shot herself. Appellant told another officer that he and Ms. McKee

quarreled and the n she sh ot herse lf. Later, App ellant told a neighbor that Ms.

McKee threatened to shoot him before the struggle for the weapon began.

Moreover, Appellant initially reported to the police that Ms. McKee had no fam ily,

when, in fact, he ha d met m embe rs of her fam ily in the past.

Witnesses described Ms. McKee as personable, optimistic, and cheerful

on the day she was shot. In addition to working out at the YMCA, she spent

appro ximate ly three hours with her friend Diana Thomas. Ms. Thomas testified

that Ms. McKee was not up set an d ma de no men tion of a ny phy sical pa in or other

problems. Ms. Thomas also testified that Ms. McKee became nervous just

before she departed for home.

According to witnesses, Ms. McKee intended to leave Appellant and return

to Texas . A neighbor testified that Appellant had told him that he and Ms. McKee

had argued ab out her leaving. Ad ditionally, the neighbor testified that prior to the

shooting, Appella nt had sh own him the gun which killed Ms. McKee. Ms.

McK ee’s twin sister, Marti Bronikowski, a law enforcement officer in Texas,

testified that she spoke with Ms. Mc Kee by phone on the nig ht of the inc ident.

She stated that her sister was frightened and unhappy. Consequently, Ms.

Bronikowski advised Ms. McKee to return to Texas. Ms. Bronikowski also

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testified that her sister was disturbed by guns, displaying uneasiness when she

was within sight of M s. Bronikows ki’s service revolver.

Based on the fore going e vidence , the jury foun d Appe llant guilty of

voluntary manslau ghter. Voluntary manslaughter is defined at Tenn. Code Ann.

§ 39-13 -211(a) (1 991) as :

the intentional or knowing killing of another in a state of
passion produ ced b y adeq uate p rovoc ation sufficient to
lead a reasonable person to act in an irrational manne r.

Appellant argues that the evidence is insufficient to support a jury finding that he

intentio nally shot Ms. McKee. We must disagree. The evidence revealed that

Appellant and Ms. McKee were the only people present when the shooting

occurred, that App ellant ma de incon sistent state ments regarding the shooting,

that Appe llant an d Ms. M cKee were in volved in a dispute concerning Ms.

McKee’s plan to retu rn to Te xas, and that phys ical eviden ce surro unding the

weapon and the wound implicate d Appe llant. Because this proof was m ore than

sufficient for a rational trier of fact to conclude beyond a reas onab le doubt that

Appe llant intention ally shot M s. McK ee, this issu e is withou t merit.

II. Use of Peremptory Challenges by the Prosecution

In Appellant’s second issue, he alleges that the prose cution impe rmiss ibly

used peremptory challenges to remove two African-Am erican prospe ctive jurors

from the petit jury. T he exerc ise of a peremp tory challenge based solely on the

race of the challenged prospective juror violates federa l and state equal

protection guaran tees. Batson v. Kentucky, 476 U.S . 79, 89 (1986); State v.

Jones, 789 S.W.2d 545, 548 (Tenn. 1990). However, the dismissal of one or

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more black jurors, without more, is not uncon stitutional. State v. Bell, 759 S.W.2d

651, 653 (Ten n. 1988). The defendant must present a prima facie case of racial

discrimination by sho wing that the totality of the relevant facts surrounding the

questioned peremptory challenge gives rise to an inference of discriminatory

purpos e. Batson, 476 U.S . at 94; State v. Ellison, 841 S.W.2d 824, 825 (Tenn.

1992). Once the defendant presents a prima facie case of discriminatory

purpos e, the bur den sh ifts to the prosecution to provide a rational, race-neutral

explanation for the exe rcise of the perem ptory cha llenge. Batson, 476 U.S. at 94.

In this case, the prosecution used peremptory challenges to dismiss two

African-American prospective jurors. In providing an explanation for the

challenge to prospective juror Siner, the prosecution stated that Siner had been

under more than one police investigation for drug- and alcohol-related activities.

In providing an explanation for the challenge to prospective juror Sparks, the

prosecution stated that Sp arks h ad on voir dire untruth fully denied being related

to an individual convicte d of second degree m urder. Nothing in the record

indicates that the prosecutor was being less than candid in these assertions.

The trial court ruled that each reason given by the prosecution constituted

a rational, non-racial basis for the exercise of a peremptory challenge. The

record amply supports the ruling of the trial court. We find no unconstitutional

use of peremptory challenges in this case.

III. Assistance of Counsel

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 Appellant also argues that he failed to receive the effective assistance of

counsel at trial, such that he was denied his cons titutional right to couns el. When

an appeal challenges the effective assistance of counsel, the standard of review

is whether the representation was within the range of competence demanded of

attorneys in criminal cases. Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 197 5).

To prevail on a claim of ineffective assistance of counsel, the defendant must

show that (1) counsel’s performance was deficient, and (2) the deficient

performance prejudiced the defense so as to d eprive the defend ant of a fair trial.

Barr v. State , 910 S.W .2d 462, 464 (Tenn. Crim . App. 1995 ).

In order to prove deficient performance, the defendant must establish that

the representation fell below a n objective standa rd of reas onable ness. Id. at 462.

On review, the re is a stron g presu mption of satisfacto ry represe ntation. Id. In

order to prove prejudice, the defendant must establish that, bu t for cou nsel’s

ineffectiveness, a reaso nable p robability exists that the result of the proceedings

would have been differe nt. Id. A reasonable probability is defined as a

probab ility sufficient to unde rmine c onfiden ce in the re sult. Id.; see also Overton

v. State, 874 S.W .2d 6, 11 (Te nn. 1994).

First, Appellant argues that trial counsel failed to file a timely motion to

suppress Appe llant’s sta teme nt to the police . Appe llant ap pears to bas e this

argument on the fact tha t, in over ruling an objection to the statement, the trial

court stated that the issu e shou ld have b een raise d earlier. However, Appellant

fails to demon strate that, b ut for coun sel’s failure to file a timely m otion to

suppress the statement, a reasonable probability exists that the result of the

proceedings would have been different. Furthermore, there is no evidence in the

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record that the police ob tained the sta teme nt in viola tion of A ppella nt’s

constitution al rights.

Second, Appellant argues that trial counsel failed to object to the testimony

of Marti Bronikowski, twin sister of the victim. Appellant maintains that the

testimony was objectionable because Ms. Bronikowski was improperly allowed

to hear the testimon y of other w itnesses . In an effort to show prejudice, Appellant

asserts that Ms. Broniko wski’s testim ony rega rding a p hone c onversa tion with

Ms. McKee on the night of the incident was vital to the pros ecution in its effort to

show that the sh ooting w as intentio nal. How ever, acc ording to the record , all

testifying witnesses were properly removed from the courtroom at the beginning

of the trial. T he on ly mem bers o f the victim ’s fam ily that remained in the

courtroom were those that were not going to testify. No evidence exists in the

record indicating that Ms. Bronikowski remained in the courtroom during the

testimon y of the othe r witnesse s.

Third, Appellant argues that trial counsel failed to investigate Ms.

Bronikowski for impeachment purposes. Appellant mainta ins that an adequ ate

investigation would have revealed the following impeachment evidence: the fact

that the phone call between Ms. Bronikowski and Ms. McKee did not appear on

Appe llant’s phone card; the fact that Ms. Bronikowski had been forced to resign

her employment; and the fact that Ms. Bronikowski had been physically removed

from Ms. McKee’s property on one o ccas ion. Du ring the hearin g on A ppella nt’s

petition for post-conviction relief, trial counsel testified that he did conduct an

investigation of Ms. Bronikowski. He stated that his investigator had made phone

calls to Texas in an effort to lo cate im peac hme nt evide nce o n Ms. B roniko wski.

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Trial counsel also testified that he reviewed the resu lts of the inves tigation with

Appe llant. No evidence exists in the record that the investigation performed by

trial counsel was deficient. Even assuming that this investigation fell below an

objective standard of reasonableness, Appellant has failed to show prejud ice--

that, but for cou nsel’s failure to satisfacto rily impeac h Ms. B ronikow ski, a

reaso nable proba bility exists that the result o f the pro ceed ings w ould have been

different. Becau se mo st of Ms. B ronikow ski’s testim ony was cumu lative,

impeaching Ms. Bronikowski with the above evidence wo uld, in all probability,

have n o ma de a d ifferenc e in the outco me o f the trial.

Thus, in light of Appellant’s failure in each case to make a showing

sufficient to overcome the strong presumption of satisfactory representation, we

find that Ap pellant wa s afforde d effective a ssistanc e of coun sel at trial.

IV. Sentencing

In his final issue Appellant allege s that his six year sente nce is excess ive

and that he should have received some form of a lternative se ntence to

incarceration. We will in turn discuss both the length of Appellant’s sentence and

his suitability for an alternative sentence.

W hen an appeal challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the

determination of the tria l court was correct. Tenn. Code Ann. § 40-35-401(d)

(1990). However, this pre sumption o f correctness is “conditioned upon the

affirmative showing that the trial court in the record considered the sentencing

principles and all relevant facts and circu mstance s.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). In the event that the record fails to demonstrate such

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consideration, review of the sente nce is purely de novo . Id. In conducting a

review, this Court must consider the evidence, the presentence report, the

sentencing principles, the arguments of counsel, the nature and character of the

offense, mitigating and enhancement factors, any statements made by the

defend ant, and the potential for rehabilitation or treatme nt. State v. Holland, 860

S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears the burden of

showing the impropriety of the sentence impos ed. State v. Grego ry, 862 S.W.2d

574, 578 (T enn. Crim. A pp. 1993).

W e note initially that the trial judge did consider on the record the statutory

sentencing princip les an d the fa cts an d circu msta nces of the c ase. F or this

reason, our review of Appellant’s sentence will be de novo with a presumption

that the se ntence is correct.

A. Length of Sentence

In this case the jury convicted Appellant of voluntary manslaughter, a Class

C felony. As a Range 1 standard offender for this offense Appellant’s sentence

must be between three and six years. Tenn. Code Ann. Sec. 40-35-112 (a)(3).

In the absence of enhancement and mitigating factors, the presumptive sentence

for a person in Appellant’s situation is the minimum senten ce in the ra nge. Tenn.

Code Ann. Sec. 40-35-210(c). Where one or more en hancem ent factors app ly,

but no m itigating factors exist, the trial court may properly sentence above the

minimum but still within the range. Id. § 40-35 -210(d). Where there are both

enhancement and m itigating facto rs prese nt the trial court must start at the

minimum senten ce, enh ance w ithin the ran ge as a ppropria te for the

enhancement factors, and then reduce the sentence with in the range as

approp riate for the m itigating facto rs. Id. § 40-35 -210(e). The weight give n to

any existing enha ncing or mitig ating fa ctor is left to the trial cou rt’s discretion so

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long as the court complies with the purposes and principles of the sentencing act

and the judge’s findings a re adeq uately sup ported b y the reco rd. State v.

Shropsh ire, 874 S.W .2d 634 (Te nn. Crim. Ap p. 1993).

In the instant case the trial court found the two following enhancement

factors applic able to Appe llant’s case: Appellant employed a firearm during the

commission of the offense, Tenn. Code Ann. Sec. 40-35-114(9); and Appellant

abused a position of private trust, id. § 40-35-114(15). No mitigating factors we re

found a pplicable .

Appellant first argues that the enhancement factor dealing with the violation

of a private trust is in applic able to his case. The Tennessee Supreme Court has

affirmed the application of this enhancement factor to an adult defendant who,

while not the paren t of his ch ild victims, lived with the victims and the ir mother.

State v. Adams, 864 S.W.2d 31,34 (Tenn. 1993). Apparently, no Tennessee

case has dealt with the Application of section 40-35-114(15) to a defendant and

victim who are both adults and members of the same household, as is the

situation in the in stant c ase. H owev er, it is cle ar that m emb ers of a hous ehold

are in a special positio n of trus t with res pect to one a nothe r. Pres uma bly, this

special trust is at least one of the factors leading to the decision to cohabit. Thus,

we find the application of the enhancement factor found in 40-35-114(15) to be

appropriate in this case.

Second ly, Appe llant argues that his lack of any crim inal history should ha ve

been cons idered in mitig ation o f his sentence pursuant to Tenn. Code Ann. Sec.

40-35-113(13) which allows consideration of any factor consistent with the

purposes of the sentencin g act as a m itigating factor. It is true that this Court has

stated that a la ck of criminal history may be considered as a mitigating factor

under Sec. 40-35-1 13(13). State v. Bingham, 910 S.W.2d 448 (Tenn. Crim. App.

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1995), N.2. Unlike Bingham in which the lack of a criminal record was

considered in sentencing mitigation for a reckless vehicular homicide, the case

sub judice involve s the in tention al or kn owing killing of another human being.

See, Tenn. Code Ann. Sec. 39-13-211. Under the circumstances and in view of

the seriousness of the two applicable enhancement factors, any weight give n to

this mitigating factor is ne gligible. See e.g . State v. Raines, 882 S.W.2d 376, 386

(Tenn. C rim. App. 199 4).

We therefore affirm the imposition of a six year sentence in this case.

B. Manner of Sentence Service

Although Appe llant do es no t spec ifically argue he should have received an

alternative sentence to incarceration in the penitentiary, he obliquely makes

reference to his suitability for such a sentence. We will therefore address the

propriety of Appe llant serving his senten ce in the peniten tiary.

The Tennessee Criminal Sentencing Reform Act of 1989 recognizes the

limited capac ity of state prisons and mandates that “convicted felons committing

the most severe offenses, possessing criminal histories evincing a clear

disregard for the laws and morals of so ciety, and evincing failure o f past effors

of rehab ilitation s hall be given firs t priority regarding sentencing involving

incarcer ation.” Tenn. Co de Ann. § 4 0-35-102(5). A defendant who does not

qualify as such and who is an especially mitigated or standard offender of a Class

C, D, or E felony is “presumed to be a favorable candidate for sentencing options

in the absen ce of evidence to the contrary.” Id. § 40-35-102(6). A sentencing

court m ay then only deny alte rnative se ntencing when p resente d with sufficient

evidence to overcome the presump tion. State v. Ashby, 823 S.W.2d 166, 169

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(Tenn. 1991). A denial of alternative sentenc ing in the face of the s tatutory

presumption should be based on the following considerations:

(A) Confinem ent is necess ary to protect society by restraining

a defen dant wh o has a long histo ry of crimina l conduc t;

(B) Confinement is necessary to avoid depreciating the

seriousness of the offense or co nfinemen t is particularly suited to

provide an effective deterrence to others likely to commit similar

offenses; or

(C) Measure s less restrictive than confine ment have

freque ntly or rece ntly bee n app lied un succ essfu lly to the defe ndant.

Tenn. C ode Ann . § 40-35-103 (1).

As a Range I standard offender Appellant is entitled to the presumption

that he is entitled to an alternative sentence. Thus, the question becomes

whether this pre sum ption has been sufficiently rebutted. At the original

sentencing hearing in this matter th e trial judge cited the n eed to d eter othe r acts

of dome stic violence in Hardin Coun ty as a reason for incarcera tion of Ap pellant.

The trial judge indicated domestic violence was growing in the area however no

spec ific evidence of the need for deterrence was ever presented in this case.

Ordin arily the need for deterrence must be proven in a given case and a m ere

recitation of the n eed fo r deter rence is insufficient to sustain a denial of an

alternative s entenc e. State v. Ashby, supra. at 170.

Howeve r, we need not address the issue of whether in this case deterrence

may form the basis for the denial of an alternative sentenc e becaus e the nature

and circums tances of this offe nse re quire in carce ration in order to avoid

depreciating the seriousness of it. See, Tenn. Code Ann. Sec . 40-35-301(1 )(B).

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 This particular crime arose out of an incident of domestic violence. This

particular form of violence is one that is approaching epidemic proportions in our

society. The statistics contained in the scholarly literature are quite startling.

According to some estimates, there are as many as
four million incidents of domestic violence against
women every year. Federal Bureau of Investigation
statistics indicate that a woman is beaten every
eighteen seconds, and according to the Surgeon
Gen eral, abuse inflicted by intimates constitutes one of
the leading causes of injury to women in the United
States. Thirty percent of women murdered in the
United States are killed by their male partners. No
segment of society is immu ne from this violenc e--
battering is preva lent am ong e very ec onom ic, racia l,
and ethnic group.

Developments in the Law -- Legal Responses to Domestic Violence, 106 Harv.

L. Rev. 1498 , 1501(199 3) (statistical citations omitted).

Another article states:

[D]om estic violence remains the greatest cause of
serious injury to American women, accounting for more
injurious episodes than rape, auto accidents, and
mugging combined. Other statistics are just as chilling.
A woman is beaten every twelve seconds. Fifteen
hundred women a year (approxim ately four per day)
die at the h ands of an a busive male partne r. Rou ghly
twenty-one thousand domestic crimes against women
are reported every week -- more than a million
assaults, murde rs, and ra pes in a ye ar. These a re the
reported crimes. P olice estim ate that for each of these
crimes, three more go unreported. In all there are an
estimated 1.8 to 4 million incidents of domestic
violence each year.
(statistical citations omitted)

David M. Zlotnick, Empowering the Battered Woman: The Use of Criminal

Contempt Sanc tions to Enfor ce Civ il Protec tion Orders, 56 Ohio St. L. J. 1153,

1156-57 (1 995).

Given that Ms. McKee’s death resulted from an episode of the serious and

pervasive problem of domestic violence, it is the opinion of this Court that the

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presumption of entitlement to an alternative se ntence has be en rebu tted. A

sentence of incarceration is warranted in order to avoid depreciating the

seriousness of this offense.

The judgment of the trial court is affirmed.

____________________________________
JERRY L. SMITH, JUDGE

CONCUR:

___________________________________
DAVID G. HAYES, JUDGE

___________________________________
LYNN BROWN, SPECIAL JUDGE

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