*1 40-35-210(e), as T.C.A. we of the trial court is scribed af- § mitigating noted heretofore. firmed. enhancement factors set forth T.C.A. range BYERS, J., 40-35-110-111 are involved in and JAMES C.
§ specific BEASLEY, Judge, and duration sentence for an Special offense and with the determination of they consecutively shall
whether be served concurrently. thirty-five
Daniel also insists that a
(35) year total sentence for non-violent
property offenses un constitutes cruel and punishment, Helm, citing v.
usual Salem Tennessee, Appellee, STATE 277,103 3001, S.Ct. L.Ed.2d 637 463 U.S. (1983). The Helm case dealt with life DAVIS, Appellant. possibility parole sentence without for a Russell felony seventh non-violent under the South Tennessee, Appeals Court of Criminal recidivist is readily Dakota statutеs and at Jackson. distinguishable from the at bar. case Moreover, on 24, motion of the defendants Feb. 1988. court reconsidered the order in which the Appeal Permission Denied sentences were to be served. This resulted 31, Supreme May Court 1988. twenty-five
in a net sentence for Daniel of (25)years incarceration. He also the trial court did not consider the
mitigating and enhancement factors re
quired by T.C.A. The curso 40-35-210. §
ry statements made by judge to the sentencing
reference bare com
pliance specific with the findings of fact
mandated T.C.A. 40-35-209 §
however we have reviewed this record in
detail and unquestionably
complied with all requirements
Sentencing Reform Act. things
Two stand out in this record. The of these is history
first the criminal of all juve-
the defendants. All of began them as Aubrey Ricky
niles with Baker in Byrd
Baker Melvin
George Daniel in All contin- of them
ued, remission, almost without until the this
date of conviction offense in case. factor to be commended is the
outstanding by appointed service counsel to all
rendered of these defendants. guilt the overwhelming
view of
of each of them it task to major
mount a defense on their The mas- behalf. this case
sive and meticulous record in legal
clearly demonstrates the excellent
representation afforded them. *2 9:00 p.m.
Between 8:30 and o’clock on the disappearance, neigh- of the date victim’s a coming from bor heard a female scrеam the direction of the victim’s residence. 28, 1985, body On the nude December victim, Pleasure, the Bernice was found Shelby grassy Memphis, field located a County, body Tennessee. The deter- was mined to be of Bernice Pleasure the comparison of Ms. chart Pleasure’s dental by special- with the teeth of the deceased a odontology. ist in the of forensic field autopsy performed by An was Dr. James Bell, Spencer expert an the field of ana- Chandler, ap- Memphis, for Edward pathology. Witt and Dr. Bell tomical forensic pellant. cause death was testified that neсk; “blocked the fracture trauma Gen., Cody, Atty. James W.J. Michael W. neck, organs specifically of the of the Gen., Nashville, Thompson, Atty. Asst. larynx hyoid and bone.” III, Overton, Challen, Jr., J. John James W. son, Pleasure, Memphis, appellee. testi- Attys., The victim’s David Asst. Dist. plumber fied that a had at worked shortly be- residencе he and his mother OPINION disappearance.1 fore her About one week TATUM, Special Judge. LLOYD disappearance, his before mother’s defendant, Davis, resi- unexpectedly to the plumber The Russell was came p.m. at o’clock charged approximately a two-count indiсtment with dence 11:00 first-degree plumber mur- his moth- premeditated murder and David informed sleeping permit The and to perpetration rape. der in the er was refused her. manslaugh- plumber speak plumber with The found him incar-, witness, just “I’ll told the come back years ter. He sentenced to 10 then was esрecially aggravated of- an tomorrow.” ceration as II). (Range The was or- fender sentence photograph of a a Mr. Pleasure identified consecutively to four dered be served to be pickup appearing as one black truck previous sentences. plumber.2 same as that driven photograph presents The witness also identified five issues on being police as sufficiency appellant at the station appeal. this He attacks the their house. plumber worked at validity search of his who of a as residence, at trial admissibility in He also identified the defendant and truck plumber. victim, same records of the evidence of medical Af- and the trial court’s instructions. of a & Decker The serial number Black issues, find that the considering ter we home, Drill, found at the defendant’s must be af- the trial court judgment of Black & number on a matched serial firmеd. yards within 50 Decker Drill box found de- body. In the attacking from the victim’s nude We first address issue truck, found Bernzomatic victim, police fendant’s of the evidence. sufficiency oxy- Memphis, cylinder fuel with torch Pleasure, propane a resident of Bernice previously gen officers had tank. Police disappeared November 1985. She on tank within a Bernzomatic box found last at a 7-Eleven Store between seen body the field. yards of the victim’s p.m. that date. o’clock 7:30 8:00 by An truck was owned plumber working identical for "Homecrafter’s 1. The ant. Warehouse.” cigarette lighter Police also fоund a verdict lady’s establishes that the de- accepted. fendant’s was not heige appellant’s alibi defense straw belt daughter truck. victim’s identified the Mellons, State v. S.W.2d 497 as one bought belt that she had and had (Tenn.1977),the defendant was indicted on left at the victim’s residence. She related second-degree two counts of murder and she and her had occasionally mother voluntary manslaughter. found *3 clothing. worn each other’s dealing question In with an identical as to whether the evidence would the Expert testimony presence the revealed proof conviction in the absеnce that the sperm vagina in both the victim’s and “upon homicide was committed a sudden It anus. was further that the established heat,” Supreme the Court said: substances found were consistent with the “ character, ‘A generally homicide of this performer being male a non-secreter. It speaking, invоluntary is either man- was also the defendant established that slaughter [citing degree or second cases] awas non-secreter.3 murder....’ 202 Edwards arrested,4 being given after When (1957). Tenn. 304 502 warnings, gave Miranda the defendant a Rarely be such as will the facts to show police. asked statement When wherе he that the has committed defendant volun- worked, had he did not mention that he had tary case, manslaughter. the instant worked at until Homecrafters Homecraft- question there is but that no the evidence specifically by ers was po- mentioned the in to satisfy legal the record fails the knowing Hе lice. first denied the victim requirements of crime of voluntary the having than other learned about her from manslaughter. Manslaughter is defined television, newspaper the but subse- as ‘the T.C.A. 39-2409 unlawful kill- § quently knowing admitted her being after ing malice, of another without either ex- informed that the victim’s son could iden- prеss implied, may which be either plumber a tify from Homecrafters who had heat, voluntary upon a sudden or invol- work done at the victim’s home. When the untary, but the commission some police doing asked day what he was on the unlawful There is no act.’ disappeared, victim mentioning without which indicates defendant date, stated, day or a the defendant “That girls ‘upon caused the death of two a Sunday a I and was church.” sudden heat.’ However, itself, that, of does not nec- The defendant introduced several wit- essarily require that conviction of the nesses who he testified that was at home voluntary manslaughter defendant for be 24,1985, p.m. from 5:30 on November until 40-2520, T.C.A. reversed. Under § next morning. [u]pon any for an indictment offense consisting degrees, of different supported evidence would have jury may find the defendant not a conviction for could murder. degree charged in the indict- concludеd, from that the any degree ment and inferior victim was abducted defendant at thereto.... home, grassy victim’s field taken Furthermore, 40-2518, truck, T.C.A. raped under in his and there and killed § blunt instrument. with a duty judges charging all [i]t [is] is no evidence the homicide was juries prosecutions any There ... felo- 5 “upon ny (2) grades heat.” or mоre committed a sudden Even when two may so, permit reversing this does classes of be included in as the offense secreter, person Apparently type was arrested on Jan- If a is a blood can be 4. the defendant 3. fluids, saliva, semen, uary 1986. body i.e. detected from his type No detectiоn of can be made etc. blood voluntary 20% of the human This is one of the man- from non-secreter. About elements slaughter. 39-2-221. See T.C.A.§ race are non-secreters. indictment, as to CRIMINAL PROCEDURE 545 at 29- § (12th 1976).” of each included all the law offense ed. Torcia indictment, any request We therefore hold part on the of the defendant to do so. though no valid there was evidence that the manslaughter de Voluntary is a lesser homicide was committed “on a sudden degree gree of than homicide second heat.” murder, offense with which the de foregoing find from the We evidence that charged in fendant this case. Tem arguments made by 272, 240 pleton v. S.W. ant this issue are without merit. Cir- State, 1 Bartlett v. Tenn.Cr. upon cumstantial evidence was sufficient App. If 429 S.W.2d which rational could be convinced literally, they statutes cited are taken beyond doubt that the crime reasonable concerning mandate an instruction by the was committed defendant. See Rule sanction a conviction of man *4 13(e), attacking The T.R.A.P. issue slaughter in in all cases which the is sufficiency of is the evidence overruled. degree mur properly charged on second legality Issue 2 attacks the of number However, der. аs these statutes have the search of the truck and defendant’s interpreted, it is not reversible error been legality of issue number 3 attacks the give to judge for the trial fail to an premises. of The search the defendant’s degree instruction on a lesser of an of is inad- that the record dеfendant concedes fense or a lesser offense of on included equate support The these issues. issues no which there is evidence record. argument, supported by not citation to are State, 459, Tenn. 221 v. 188 S.W.2d Owen authority, references to the record. (1949); State, v. 117 Tenn. 515 Powers 10(b), They аre waived. Rule Rules (1906). contrary, 97 S.W. 815 To 27(a)(7), Appeals; of Criminal Rule Court giving offenses for of instructions on S.W.2d, T.R.A.P.; Galloway, v. 696 State no in which there is the record (Tenn.Crim.App.1985). 364 State, is to be avoided. Whitwell v. 520 (Tenn.1975). giving S.W.2d 338 But the issue, next the defendant instruction, though such an even it his that the trial court overruled results in convictiоn a lesser included Tennes objection to medical records of the supported by offense not Hospital. only basis see Chest Disease error, though necessarily is not reversi appeal objection argued is on for the that appeal, error. a conviction ble On that the evidence irrelevant. was charged, or of degree lesser of the crime from the argues that record offense, upheld, a lesser included will be person year 1969 who was identified if in even there is no evidence the record subject only as “Bernice of the record elements of to establish the technical Pleasure,” further identification. crime, that if the evidence demands a is no evidence to He states that there higher degree conviction of a of homicide Pleasure”, that referred to show “Bernice verdict, by that and there than found recоrd, “Bern in the medical was the same acquit support is either no evidence Pleasure”, was victim this ice who crime, is, greater tal of the or if there We that the identical names case. think jury clearly of the indicates that verdict of the render the evidence are sufficient to supрort acquittal the evidence The fact that medical records admissible. disbelieved, de theory the medical there was no identification on prejudiced by fendant was “Bernice than the name records other resulting Reagan v. and the verdict. See Pleasure”, weight of the evi goеs to the (1927); State, 293 755 155 Tenn. S.W. admissibility. dence and not to its (Tenn.Cr. State, 524 504 Craig v. S.W.2d argues that evi State, The defendant also App.1975); v. 506 S.W.2d Howard B type had blood (Tenn.Cr.App.1973). also 102 dence the victim 951 See 1019, 1026; absent affirmative 1969 inadmissible A.L.R. 4 WHARTON’S
171 type evidence that one’s blood does not the trial should have said change. say. Evidence the victim’s blood instructions that he did not thinkWe type in 1969 was circumstantial evidence adequate. that the above instruction was type that her blood was the same at the presented All of the issues are overruled. time her death. of the trial court is affirmed. argues The defеndant also in his brief SCOTT, JJ., DWYER and report that the conclusions in the medical type that the victim had B blood was hear- OPINION ON PETITION TO REHEAR say and violated his Sixth Amendment con- TATUM, SpecialJudge. LLOYD right stitutional to confront witnesses. ground objection
This
for
was not raised in
petition
The defendant has filed a
to re-
court; hencе,
the trial
it
is waived.
hear in which he takes us to task for over-
v.
Hughes
238 S.W.
looking
argument
regard
with
Patterson
Tenn.
proof
failure of
as to the “element of cau-
When asked
argu-
sation.” We did not overlook this
grounds
objection
court
although
ment
didwe
not consider it wor-
records,
the medical
defense counsel re-
thy of elaborate discussion. After review-
sponded “Rule 16 of Discovery, and Rele-
ing
opinion,
the evidence in the
we stated
vancy.” These were the only
grounds
two
the evidence would
a convic-
argued
brought
to the attention of the
tion for
finding
murder and the
judge.
The defendant cannot now as-
that the victim was “killed
*5
sign
grounds
appeal.
different
See
ant
awith
blunt instrument.”
36(a),
Rule
T.R.A.P.
of his contention that the evi-
issue,
In his last
defendant
dence did not establish the “element of
that
causation,”
trial
failed to
the defendant cites Keller v.
State,
jury as to the
“element of cаusation.”
(1927);
It is
155 Tenn.
“Any person who intentionally original kills an- opinion We stated in our that the person, malice, upon but sufficient evidence was to establish the passion sudden produced by prov- heat of homicide a blow to the neck with a blunt adequate ocation to obscure the reason is instrument. There no evidence that this ordinary person, of an of volun- did not cause the death of the victim or manslaughter. tary any other cause intervened. you conjecture For cause of death was not left to find the defendant speculation. voluntary manslaughter, the state must рroven, beyond a reasonable doubt: arguments are advanced in the Other (1) unlawfully the Petition to Rehear. We have considered alleged victim; killed the original opinion. them and to our adhere (2) willful; is, killing that the to Rehear is overruled. Petition the defendant intended to take the life SCOTT,JJ., DWYER and victim; alleged ...” special request
The defendant made no point instructions on this judge. He has not us what related to