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State v. Bussell8/23/2005
. Defendant said the victim grabbed him and held Defendant in front of himself like a shield. The two men fell off the porch, and Defendant broke his kneecap. Defendant lay on the ground, holding his knee to his chest. The victim ran toward his neighbor's truck yelling for help, and Mr. Williamson fired the first shot. The victim fell to the ground. Mr. Williamson knelt beside the victim and shot him in the head. Defendant and Mr. Williamson got back into Mr. Thompson's car, and the men drove to Mr. Williamson's house. Mr. Williamson called Byron Meek to tell him to return Mr. Thompson's car, and Mr. Meek also took Defendant home so that he could go to the hospital.
Kenneth Bussell, Defendant's father, said that Defendant came home with an injured knee on July 10, 1998. Defendant told Mr. Bussell that he had injured his knee during a basketball game. Mr. Bussell took Defendant to the hospital. He said that Defendant did not have any blood on him.
II. Sentencing Issues
At the sentencing hearing, the State presented Defendant's pre-sentence report and the testimony of various members of the victim's family concerning the impact of the victim's death on their lives. According to the pre-sentence report, Defendant graduated from high school and attended Hiwassee College on a basketball scholarship for one year. Before his arrest, Defendant was employed as a caregiver by Independent Opportunities and Sunrise Community. Since the trial, Defendant had been employed in his grandfather's wrecking company. Defendant's prior criminal history consists of two 1998 misdemeanor convictions for disorderly conduct and underage drinking.
The trial court found that there was some evidence based on Defendant's prior misdemeanor convictions that he had a previous history of criminal behavior, but accorded this enhancement factor very little weight. See Tenn. Code Ann. * 40-34-114(2). The trial court found that enhancement factor (7), the personal injuries inflicted upon the victim were particularly great, was applicable to Defendant's sentence for his attempted robbery conviction but not his sentence for the criminally negligent homicide conviction. See id. * 40-35-114(7). Significant weight was placed on the use of a firearm to commit both offenses. See id. * 40-35-114(10). The trial court also considered the fact that the attempted robbery offense was committed without hesitation when the risk to human life was high. See id. * 40-35-114(11). Based on the presence of these enhancement factors, the trial court sentenced Defendant to two years for his criminally negligent homicide sentence and four years for his attempted robbery sentence.
The trial court also denied Defendant's request for alternative sentencing, stating,
ven though this is a very short period of time, four years at [thirty] percent, in my judgment, even though there's a presumption of probation, I do not believe that probation sends the correct message in this matter. I think that it depreciates the seriousness of the offense, and I think that's the wrong message to you and to everybody else if I were to do that.
The trial court stated to Defendant:
The jury has spoken, [Defendant]. There's nothing I can do about that. So my opinion doesn't matter with regard to your guilt, but my opinion does matter with regard to your sentencing. I think this jury has done you . . . a favor. I mean, I don't know any other way to say it.
When a defendant challenges the length, range, or manner of service of a sentence, this Court conducts a de novo review with a presumption that the determinations made by the trial court are correct. Id. ยง 40-35-401(d). This presump
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