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State v. Williams4/17/2002
he offense;
(10) The defendant had no hesitation about committing a crime when the risk to human life was high . . . . Id. § 40-35-114(5), (9), (10).
The Defendant concedes, and we agree, that enhancement factor (9) was properly applied in his case. See id. § 40-35-114(9). However, the Defendant contends that the trial court misapplied enhancement factors (5) and (10). See id. § 40-35-114(5), (10).
With regard to enhancement factor (5), the Defendant argues that no evidence was presented indicating that he treated the victim with exceptional cruelty during the commission of the offense. Id. § 40-35-114(5). Application of enhancement factor (5) requires "a finding of cruelty under the statute `over and above' what is required to sustain a conviction for an offense." State v. Arnett, 49 S.W.3d 250, 258 (Tenn. 2001) (quoting State v. Embry, 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995)). " uch evidence must `denote the infliction of pain or suffering inflicted for its own sake or from the gratification derived therefrom, and not merely pain or suffering inflicted as the means of accomplishing the crime charged.'" Id. (quoting State v. Kelly Haynes, No. W1999-01485-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 241, at *9 (Tenn. Crim. App., Jackson, Mar. 14, 2000)). Application of this factor has been upheld based on extensive physical or psychological abuse or torture. Id. No such circumstances were present in this case. The evidence at trial indicates that the Defendant shot the victim multiple times in rapid succession. We note that one witness to the crime testified that the Defendant said, "I told you I was going to get you" to the victim during the shooting and that the Defendant walked around the victim during the shooting, as if to pick spots from which to shoot. However, we conclude that even if the jury accepted this evidence as true, this evidence does not constitute "exceptional cruelty" so as to warrant application of enhancement factor (5). Tenn. Code Ann. § 40-35-114(5).
The Defendant also contends that the trial court misapplied enhancement factor (10). See id. § 40-35-114(10). This Court has concluded that" lthough factor (10) is inherent in every homicide case relative to the victim, the trial court may consider this factor when the defendant endangers the lives of people other than the victim." State v. Kelly, 34 S.W.3d 471, 480 (Tenn. Crim. App. 2000); see also State v. Hicks, 868 S.W.2d 729, 732 (Tenn. Crim. App. 1993). Testimony from trial indicates that several people were outside of J.T.'s Lounge at the time of the crime. Because of the proximity of other individuals to the place where the shooting occurred, we conclude that enhancement factor (10) was properly applied in this case. See Tenn. Code Ann. § 40-35-114(10).
C. MITIGATING FACTORS
The trial court applied one mitigating factor in sentencing the Defendant: "The defendant, because of youth or old age, lacked substantial judgment in committing the offense . . . ." Id. § 40-35-113(6). The record supports application of this factor. However, the Defendant contends that the trial court should have applied two other mitigating factors as well, that he "acted under strong provocation," id. § 40-35-113(2), and that " ubstantial grounds exist tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense . . . ." Id. § 40-35-113(3). His argument supporting each of these proposed mitigating factors is the same: that the victim confronted and threatened him prior to the shooting.
We conclude that the trial court properly declined to apply mitigating factors (2) and (3). See id. § 40-35-113(2), (3). The fact that the victim may ha
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