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State v. Adams12/20/1999
(6) to the attempted second degree murder conviction. We disagree.
Factor (5) requires that the defendant treat the victim with exceptional cruelty. This factor is not an element of attempted second degree murder and may be used to enhance the sentence. State v. Hall, 947 S.W.2d 181, 185 (Tenn. Crim. App. 1997). In so doing, the trial court should state what actions, apart from the elements of the offense, constitute "exceptional cruelty." State v. Goodwin, 909 S.W.2d 35, 45- 46 (Tenn. Crim. App. 1995). This Court has previously found that the "exceptional cruelty" factor is satisfied in an attempted murder when numerous wounds are inflicted. State v. Cedric E. Stampley, C.C.A. No. 02C01-9409-CR-00208, 1996 WL 465557, at *8 (Tenn. Crim. App., Jackson, Aug. 16, 1996) (victim shot seven times). See also State v. Alexander, 957 S.W.2d 1, 6 (Tenn. Crim. App. 1997) (multiple stab wounds and blows from a claw hammer); State v. Michael Scott Farner, C.C.A. No. 03C01- 9705-CR-0016, 1998 WL 612891, at *3 (Tenn. Crim. App., Knoxville, Sept. 15, 1998) (multiple stab and slash wounds); State v. William R. Waters, Jr., C.C.A. No. 01-C-01-9404-CR-00145, 1994 WL 714246, at *2 (Tenn. Crim. App., Nashville, Dec. 22, 1994) (firing of "several rounds" into body of victim). The trial court here found this factor to exist because the Defendant stabbed Ms. Lewis multiple times, left the room when confronted by Shanta Lewis, and then returned to stab Ms. Lewis again, while continually saying "I'm going to kill you, bitch. I should have killed you." The trial court stated that this went beyond the cruelty necessary to establish the offense, and the evidence does not preponderate against this finding. Therefore, the trial court did not err in applying this enhancement factor.
The Defendant also complains of the application of factor (6), that the personal injuries were "particularly great." The trial court applied this factor because of the damage to Ms. Lewis' finger and because of Ms. Lewis' emotional distress after receiving the letters and pictures from the Defendant. While "personal injury " includes both physical and emotional injury, see State v. Smith, 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994), Ms. Lewis' emotional injury stemmed from the letters she received after the commission of the offense, not from the attempted murder itself. Therefore, the emotional injury from the letters cannot be used to enhance the sentence for the attempted murder. However, Ms. Lewis testified that she had to have three surgeries on her finger, that she now has a rod in her finger, and that she cannot pick things up with that hand. Our supreme court has held that "proof of serious bodily injury will always constitute proof of particularly great injury." State v. Jones, 883 S.W.2d 597, 602 (Tenn. 1994). "Serious bodily injury" includes " rotracted loss or substantial impairment of a function of a bodily member, organ or mental faculty . . . ." Tenn. Code Ann. § 39-11-106(34). We believe the damage to Ms. Lewis' finger falls within the parameters of "serious bodily injury" and "particularly great injury," so as to justify the application of this factor.
The Defendant further argues that the trial court erred in refusing to consider either mitigating factor (8), that " he defendant was suffering from a mental or physical condition that significantly reduced the defendant's culpability for the offense," or factor (13), " ny other factor consistent with the purposes of this chapter." Tenn. Code Ann. § 40-35-113(8), (13). In support of his argument, he states that " here was ample testimony at trial, both in and out of the presence of the jury, that the defendant had a mental condition that significantly reduced his culpability
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