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State v. Bankston2/4/1999
testified that the defendant made regular financial contributions to the church.
Carolyn Hogan, the defendant's sister, testified that the deaths of two of their brothers thirty years ago affected the defendant. She said the defendant has a daughter and a granddaughter whom he had supported. She said the defendant had been depressed since the incident, and he told her he thought he was protecting himself on the night of the incident. She said the defendant was attending Alcoholics Anonymous meetings. She also said the defendant has an eighty-two-year- old mother. She said the defendant was quiet and never said anything to anybody. She introduced a letter, signed by the defendant's friends and family, asking the court for leniency.
Dr. John Hendrick, a psychiatrist, testified that he treated the defendant on September 2, 1994, at Valley Hospital. He said the defendant suffered from major depression, suicidal thoughts, and alcohol dependence. He said that he was continuing to treat the defendant. He said the defendant expressed remorse and guilt over the incident. He testified that the defendant told him he generally cannot hear. He said the defendant's speech was fluent and coherent, but the defendant stuttered, had difficulty completing words, and had difficulty hearing, particularly in the left ear. He said he often had to repeat things to the defendant. He said the defendant's hearing problems contributed to his depression and caused paranoia.
A presentence report was introduced into evidence. The report reflects that the then forty-eight-year-old defendant completed high school and attended welding and maintenance trade school. It reflects that the defendant worked for W.R. Grace since 1973, although he was discharged then reinstated in 1977 for using abusive language to a security guard at the company. The report shows that the defendant has ten convictions from 1971 to 1989, four for drug offenses, two for driving on a revoked license, and four for driving under the influence of an intoxicant (D.U.I.).
With respect to the second degree murder conviction, the trial court applied the following enhancement factors, as listed in T.C.A. § 40-35-114:
"(1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; and"
"(9) The defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense;"
With respect to the reckless endangerment conviction, the trial court also applied factor (1), along with the following additional factors:
"(10) The defendant had no hesitation about committing a crime when the risk to human life was high; and"
"(16) The crime was committed under circumstances under which the potential for bodily injury to a victim was great."
The trial court found no applicable mitigating factors.
At the Conclusion of the sentencing hearing, the trial court sentenced the defendant as a Range I, standard offender to twenty-five years confinement for the second degree murder conviction, and two years confinement for the reckless endangerment conviction, to be served concurrently. The trial court gave the defendant credit for the time he spent in house arrest as part of his bond before trial.
The defendant argues that the trial court erroneously applied all enhancement factors. The defendant does not cite any case law in support of his argument. Generally, the failure to cite any authority acts as a waiver of the issue. Tenn. Crim. App. R. 10(b). Nevertheless, in conducting our de novo review we must address
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Tennessee DUI Attorneys
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