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State v. Payne11/20/2002
Code Ann. § 40-35-114(9), applicable to the second degree murder conviction. The defendant does not contest these factors, and the record supports their application.
B. Excessive Sentences
As his final issue, the defendant contends that the trial court erred by imposing excessive sentences for both offenses. Specifically, he argues that the trial court erred by failing to apply his low serotonin level as a mitigating factor. The defendant asserts that evidence that his serotonin level "plainly rendered him unable to restrain impulses" should have operated to reduce his sentences from the maximum in the range. The State contends that the trial court did not err by failing to apply the defendant's low serotonin level as a mitigating factor, since the evidence at trial showed that the defendant did not act impulsively when he committed the crimes. We agree with the State.
As a standard offender convicted of attempted especially aggravated robbery, a Class B felony, the defendant was subject to a sentence ranging from eight to twelve years. See Tenn. Code Ann. § 40-35-112(a)(2) (1997). His conviction for second degree murder, a Class A felony, carried a sentence ranging from fifteen to twenty-five years. See id. § 40-35-112(a)(1). The sentence to be imposed for a Class A felony is presumptively the midpoint in the range when there are no enhancement or mitigating factors present. Id. § 40-35-210(c). For a Class B felony, the presumptive sentence is the minimum in the range when no enhancement or mitigating factors are present. Id. For both Class A and Class B felonies, the procedure is for the trial court to increase the sentence within the range based upon the existence of enhancement factors and then reduce the sentence as appropriate for any mitigating factors. Id. § 40-35-210(d), (e). The weight to be afforded an enhancement or mitigating factor is left to the trial court's discretion so long as it complies with the purposes and principles of the 1989 Sentencing Act, and its findings are adequately supported by the record. Id. § 40-35-210, Sentencing Commission Cmts.; State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986).
At the sentencing hearing, the trial court found that evidence of the defendant's background, including Dr. Rossby's testimony regarding his low serotonin level and the problems it had caused him, was a slight factor in mitigation but entitled to very little, if any, weight and, thus, did not "mitigate the enhancement factors" in the case. The trial court rejected the defendant's proposed mitigating factor that he acted under strong provocation. See Tenn. Code Ann. § 40-35-113(2). The trial court also declined to apply the defendant's serotonin level as a mitigating factor under either subsection (3) or (8) of Tennessee Code Annotated section 40-35-113, finding that it constituted neither substantial grounds tending to excuse or justify his conduct, see id. § 40-35-113(3), nor a mental or physical condition that significantly reduced his culpability for the offenses. See id. § 40-35-113(8). The trial court first explained its reasoning when it rejected the defendant's serotonin level as a "substantial ground" that excused his conduct for the attempted especially aggravated robbery:
With regard to the issue of [the defendant's] serotonin levels, my recollection of the testimony of the doctor was that even with his low serotonin levels, he may have an inability to control his impulses once they fired up or if a situation arose. But in this case, the proof that was presented in this case, was that it appears [the defendant] had the intent to commit an armed robbery and was not acting under impulse but was acting with a cool, collective intent to
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