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State v. Harris5/23/2005
tice to the State and file a copy with the court clerk. Tenn. R. Crim. P. 12.2(b). A failure to comply may result in the exclusion of the expert testimony. Id. at 12.2(d). In addition, "failure by the defendant to raise a defense, make objections, or to make requests which must be made prior to trial results in waiver. Id. at 12(f). In the instant case, prior to trial, the defendant did not give notice of intent to introduce evidence of any mental condition bearing on the issue of guilt. More importantly, at trial, the defendant failed to introduce any evidence supporting a mental condition bearing on the issue of guilt. It is well-settled that a defendant is bound by the evidentiary theory set forth at trial, and may not change theories on appeal. See State v. Adler, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001).
Contrary to the defendant's assertions, we conclude that the evidence supports his convictions beyond a reasonable doubt. The evidence presented at trial clearly establishes that the defendant attempted to murder his brother by shooting him in the neck, shot and killed his girlfriend, and stole a truck valued over $10,000. Therefore, this issue is without merit.
C. Sentencing
The defendant argues that the trial court erred in imposing an excessive sentence. Specifically, the defendant asserts that the trial court erred in finding no statutory mitigating factors applied and ordering his sentences to run consecutively.
Before a trial court sentences a convicted defendant, it must consider (1) the evidence received at the trial and/or sentencing hearing; (2) the presentence report; (3) the principles of sentencing; (4) the arguments of counsel relative to sentencing alternatives; (5) the nature and characteristics of the criminal conduct involved; (6) any mitigating or enhancement factors; (7) any statements made by the defendant in his or her own behalf; and (8) the defendant's potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). The trial court is also required to place on the record its reasons for imposing the specific sentence, including the identification of the mitigating and enhancement factors found, the specific facts supporting each enhancement factor found, and the method by which the mitigating and enhancement factors have been evaluated in determining the sentence. Imfeld, 70 S.W.3d at 704-05.
This Court's review of a challenged sentence is a de novo review of the record with a presumption that the trial court's determinations are correct. Tenn. Code Ann. § 40-35-401(d). This presumption of correctness is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). The defendant has the burden of showing that the sentence imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. However, if the record shows that the trial court failed to consider the sentencing principles and all relevant facts and circumstances, then review of the challenged sentence is purely de novo without the presumption of correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
In challenging his sentence, the defendant argues only that the trial court erred when it failed to apply mitigating factor (8), that the defendant was suffering from a mental or physical condition that significantly reduced his culpability. At the sentencing hearing the defendant presented the testimony of Dr. Wyatt Lee Nichols, a clinical psychologist, whose evaluation of the defendan
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