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State v. Payne11/20/2002
FACTS
On July 1, 1997, the Shelby County Grand Jury returned indictments against the defendant, charging him in a one-count indictment with criminal attempt to commit especially aggravated robbery, and in a two-count indictment with first degree premeditated murder and first degree felony murder, for the November 24, 1996, killing and attempted robbery of the twenty-three-year-old victim, Brian Pritchard. The defendant was subsequently convicted by a jury of second degree murder and attempted especially aggravated robbery. He was sentenced by the trial court to the maximum terms of twelve years as a Range I, standard offender for the attempted especially aggravated robbery conviction and twenty-five years as a violent offender for the second degree murder conviction, with the sentences to be served consecutively, for an effective sentence of thirty-seven years. Following the denial of his motion for a new trial, he filed a timely appeal, presenting the following issues for our review:
I. Did the trial court err by overruling the defense motion in limine and permitting Eric Rogers to testify that he was being robbed at gunpoint by Keith Brown just before the shooting of [the victim] by the defendant?
II. Did the trial court err by overruling the defense motion in limine and permitting Eric Rogers to testify that Keith Brown said "Don't shoot him, Derek, don't shoot him" in violation of the hearsay rule and in violation of the defendant's right of confrontation?
III.Is the evidence sufficient to negate the existence of self-defense beyond a reasonable doubt?
IV. Is the evidence sufficient to negate beyond reasonable doubt that the killing was accomplished in a state of passion produced by adequate provocation?
I. Is the evidence sufficient to sustain the verdict of guilt of attempted especially aggravated robbery?
II. Did the trial court err by applying the enhancement factor for committing a crime under circumstances under which the potential for bodily injury to a victim was great to the attempted especially aggravated robbery conviction?
III. Did the trial court err in sentencing the defendant to the maximum term of 25 years for second degree murder and to the maximum term of 12 years for attempted especially aggravated robbery?
State's Proof
At the defendant's trial, Dr. Wendy Gunther, the forensic pathologist who performed the autopsy of the victim's body, testified that the victim died from a gunshot wound to the head in which the bullet entered in front of his left ear, traveled through his head, and lodged in the skull bone behind and below his right ear. In addition to the gunshot wound to the head, which would have been immediately fatal, the victim also suffered what Dr. Gunther characterized as "flesh wound " to both legs, caused by bullets that traveled through the "deep meat" of his thighs but did not hit any blood vessels, bones, or major nerves. She testified that she found three gunshot wounds in the victim's right leg, consisting of one entrance wound and two exit wounds in the thigh that were caused by either a single bullet that broke into two pieces or two bullets that entered at the same place, and two gunshot wounds in his left leg, consisting of an entrance wound and an exit wound in the thigh. The gunshot wounds in both legs occurred, roughly, from the back to the front of the victim's thighs. The wounds to the victim's legs would not have prevented him from standing or running. Dr. Gunther could not determine at what distance the fatal gunshot was fired, what position the victim was in when shot, or whether the gunshot wounds were inflicted by one
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