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State v. Cutshaw11/23/1999
The defendant, Allen Dale Cutshaw, was indicted by the Greene County grand jury for first degree murder in the death of J. R. Metcalf. The defendant admitted to killing the victim, but argued the killing was in self-defense. A jury convicted the defendant on the lesser included offense of second degree murder. The jury fixed a fine of $25,000. After a sentencing hearing, the trial court sentenced the defendant to the maximum sentence of twenty-five years. The defendant raises three issues on appeal:
I. The trial court committed reversible error in denying defendant's motion for acquittal and/or a new trial because the evidence was insufficient to establish beyond a reasonable doubt that defendant did not act in self-defense.
II. The trial court committed reversible error by not, at a minimum, admonishing the misconduct of the prosecution in instructing a defense witness to write "retreat" on a chalkboard behind the witness stand in the view of the jury, in violation of Tenn. Code Ann. § 39-11-611 (1997).
III. The sentence was excessive because the trial court failed to properly weigh the enhancement and mitigating factors.
Based upon our review of this matter, we affirm the decision of trial court.
I. FACTS
The charges against the defendant resulted from a shooting incident which occurred during the early morning hours of December 14, 1996, on Arlie Waddell Road, near its intersection with Asheville Highway, in Greene County. Although the defendant did not testify during the trial, conflicting accounts from the eyewitnesses make the true facts difficult to divine. Because the prior, hard feelings between the defendant and the victim presaged the shooting, we will review both the background as well as the shooting itself.
A. Background
A hostile relationship existed between the defendant and the victim for several years before the shooting. The defendant introduced testimony to show the victim had made threats of violence against the defendant in the past. Janice Partin, the defendant's stepsister, described an incident that occurred approximately five years before the shooting. According to Partin, the victim tried to "run down" the defendant with his car while the defendant was standing next to Partin's car in a local parking lot. The defendant's uncle, Jake Albert Reed, Jr., described a 1990 incident in which the victim tried to pick a fight with the defendant while the defendant was unable to defend himself due to injuries suffered in a car accident. The defendant's mother, Shirley Cutshaw Thomas, related the details of a fight in 1992 between the victim and the defendant on the road outside the defendant's home. The defendant's father broke up the fight and the victim ran away. The defendant's mother recovered a handgun from the scene after the victim left. Becky Griggs, a former girlfriend of the victim, stated the victim told her there would be a day that he would "kill the s-o-b [speaking of the defendant]." In addition to the testimony of the above witnesses, the defendant introduced court documents showing a history of alcohol abuse and domestic violence by the victim against the victim's former wife.
B. The Shooting
Many of the facts surrounding the shooting are undisputed. Several hours before the shooting, the victim and the defendant engaged in a brief fight at the Starlite Club. After bouncers broke up the fight, Tim Drinnon, owner of the club, escorted the defendant outside. Drinnon heard someone say the victim wanted to meet the defendant somewhere, presumably to finish the fight. The defendant said "that's fine." In an attempt to prevent any further viole
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