Summary
In Ladella Renee Hill, we held that "to the extent that the trial court relied on the [d]efendant's juvenile convictions [for assault] to find that this enhancement factor applied, it erred.
Summary of this case from State v. DuncanOpinion
No. M2003-00127-CCA-R3-CD.
Assigned on Briefs November 18, 2003.
Filed January 14, 2004.
Direct Appeal from the Criminal Court for Davidson County, No. 2000-D-1921, Steve Dozier, Judge.
Judgment of the Criminal Court Affirmed.
Jeffrey A. DeVasher, Nashville, Tennessee (on appeal), David Baker and Jonathan Farmer, Nashville, Tennessee (at guilty plea and sentencing hearings) for the appellant, Ladella Renee Hill.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Renee Erb, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which Joseph M. Tipton and Jerry L. Smith, JJ., joined.
OPINION
The Defendant, Ladella Renee Hill (aka Ladella Bracey), was indicted for first degree murder and subsequently pled guilty to second degree murder, agreeing to allow the trial court to determine her sentence. After a hearing on the matter, the trial court sentenced the Defendant to twenty-four years in prison, one year less than the maximum sentence. The Defendant appeals, contending that the trial court imposed an excessive sentence based upon its improper application of four statutory enhancement factors and its improper failure to apply four mitigating factors. After reviewing the record, we find no reversible error, and we affirm the trial court's judgment.
I. Facts
At the guilty plea hearing, the State summarized the facts of this case as follows:
[T]his [murder] occurred on July the 28th, 2000, at the Heritage Medical Center around 12:30 in the middle of the day. [The Defendant] is the cousin of Tawana Kennedy, who is the wife of the [victim]. . . . [The Defendant] had been staying with the couple for a few days before the murder took place. The night before, at least according to the State's witnesses, everyone was getting along, there were no issues. People had been having what would generally be described as a pleasant visit together.
When they left to go to the hospital for . . . a medical appointment for [the victim], they arrived there a little bit late. They went inside, were told that the doctor wouldn't be able to see [the victim], that they would have to reschedule the appointment. The receptionist there reported that they saw no issue or difficulty — perhaps a little disappointment about having missed the appointment, but they were unaware of any issues. . . . [T]here were four people [at the medical center during these events] . . . [including] a gentleman named Walter Cunningham . . . the [D]efendant, the victim, and the wife of the victim. . . .
As they turned to leave the Heritage Medical Center, [and] were on the walkway walking out to go back towards the car, the [D]efendant began to demand from [the victim] that he take her here, he take her there, there was someplace that she wanted to go. And she became very aggressive and belligerent about it. . . . [U]gly words were exchanged, the conclusion of which, [the Defendant] announced that either he was going to take her there or she was going to kill him. She was going to shoot him. [The victim] replied, "well, you just do whatever you have to do."
She went inside of her purse, took out a loaded gun, and shot him one time in the chest. He did die as a result of these injuries.
[The Defendant] fled the scene, got a ride from a witness, a lady that just let her into her car. She was driven over to the projects. The weapon was never recovered. She did give a statement to the police admitting that she had shot [the victim].
After the recitation of these facts, the trial court asked the Defendant, "Did you take your gun and shoot [the victim] in the chest?" and the Defendant responded, "Yeah." The Defendant then pled guilty to second degree murder.
The pre-sentence report, which was entered into evidence, included a statement by the Defendant to police. The report indicates that the Defendant stated that the victim "pushed and struck [her]" and that "she [told the victim] that she wasn't going to put up with that." The report states that the Defendant told police that, thereafter, the argument escalated and the victim pushed her again "so she went to the car and got a .22 caliber pistol out and shot [the victim] in the chest." In the statement, the Defendant said that she shot the victim one time and then got scared and ran and asked "some lady to give her a ride to the . . . projects and the lady did." The report states that the Defendant told police that she threw the pistol in the river, but would not say where or in which river. The report also states that the Defendant said that she began using marijuana at age eleven and that "she would use [marijuana] everyday, and the amount of usage depended on what amount she could get."
At the sentencing hearing, held on December 12, 2002, Wanda Brooks, the victim's mother, testified that her son was twenty-two years old when he died and that he had two children. She also testified that her son was employed and a member of a church at the time of his death. Brooks testified that she "misses [her] son" and that he was "an innocent victim that was killed" and that his death was "senseless." She also stated that she believed that the Defendant was a risk to society. On cross-examination, Brooks denied any knowledge that her son was abusive towards women. Steven L. Brooks, the victim's step-father and Wanda Brooks's husband, similarly testified.
Twana Delores Kennedy, the victim's widow, testified that she was twenty at the time of the murder and that she is the Defendant's cousin. She testified about her emotional pain as well as about the events surrounding the murder. Kennedy testified that the night before the murder she, the victim, the Defendant and another friend, Walter Cunningham, played cards, went swimming and cooked. She said that there was no tension among any of them. Kennedy stated that, prior to the victim being shot, he did not touch or push the Defendant in any way. She stated that the victim told the Defendant "if you can't wait [for a ride], then walk," and that the Defendant then "pulled out a gun and shot him." Kennedy testified that the Defendant never expressed any remorse and "acts like she doesn't care. It doesn't bother her." On cross-examination, Kennedy denied that the victim was abusive to her, but confirmed that, in October of 1999, she visited a domestic violence shelter. She stated that, after an argument between the couple "got bigger," the victim "smacked [her] once," and she went to the shelter because the couple "just needed some space." She stated that the Defendant did not know about this incident.
The trial court asked Kennedy whether the victim pushed the Defendant prior to the Defendant shooting the victim, and Kennedy responded that the victim had not done so prior to the shooting. The court also asked whether the Defendant went to the car prior to producing a gun, and Kennedy testified, "No. She was standing right there. She did not leave our sight. It was as if it was as close as me and you." Kennedy also testified that she, the victim, the Defendant and Cunningham all rode to the doctor's office together in a car owned by Kennedy and the victim. Kennedy testified that the victim told the Defendant that he had to take Kennedy to work prior to giving the Defendant a ride and that she had no idea why the Defendant got so upset by this.
Keith Allen Caruso, M.D., was called by the Defendant to testify as a medical expert. He testified that the Defendant suffers from post-traumatic stress disorder of a chronic nature, recurrent major depression, mild mental retardation and borderline personality disorder. Dr. Caruso testified that the Defendant was severely traumatized by finding her mother dead when she was nine and by incidents of physical and sexual abuse, including a rape at age fifteen. The doctor testified that the Defendant was shuffled from place to place during her childhood "including group homes." Dr. Caruso testified that the Defendant's father was, and is again, in prison. The doctor testified that he diagnosed the post-traumatic stress disorder based upon the Defendant's statement that she felt "intense fear, helplessness and horror" and that she suffered from "distressing nightmares" in addition to "symptoms of physical distress." Dr. Caruso testified that people with post-traumatic stress disorder may sometimes commit violent acts because the condition "tends to distort people's perception of reality, not to the degree of . . . psychotic, but they may over-interpret things." The doctor stated, "For example, where others may be somewhat fearful, someone with post-traumatic stress disorder . . . may interpret . . . a mild altercation to mean that a full blown . . . abuse as bad as they've ever experienced is coming again."
About the depression, the doctor testified that, at age thirteen, the Defendant was treated for depression and had attempted suicide. He stated that the hospital records indicated that a month or so before the murder the Defendant again attempted to commit suicide by taking an overdose of medication. Dr. Caruso also testified that the Defendant suffered from mild retardation as evidenced by a report of Psycho Educational Services dated November 18, 1996, that reported that the Defendant's IQ was seventy. The doctor testified that the Defendant's IQ placed her in the bottom two and a half percentile of the population. Dr. Caruso testified that he believed that the Defendant's mental disorders affected her actions in this case by causing her to overreact and over-perceive the threat posed by the victim.
On cross-examination the doctor stated that the Defendant told him that she lied to police when she said that she went to the car to get the gun. The doctor conceded that her medical history contained multiple incidences of the Defendant lying and manipulating. The doctor stated that the Defendant told him that she did badly in school and wanted to "run the streets smoking marijuana." Dr. Caruso testified that the Defendant told him that she had gotten into fist fights with other girls, and that once, when she was called stupid by another girl, she cut the girl with a box cutter. The doctor stated that the Defendant told him that, on another occasion, she "cut a girl who jumped on her sister." The doctor stated that, as a juvenile, the Defendant was convicted for felonious assault and was placed in a group home, from which she ran away with her cousin. Dr. Caruso stated that the Defendant had exhibited violent behavior on numerous occasions. The doctor testified that the Defendant told him that, while she was in jail, she got in trouble for threatening and intimidating the person in the unit next to hers. The doctor testified that his opinion about the Defendant's misperception of the threat against her was not changed by the testimony of an eyewitness, who stated that he saw the two arguing but did not see the victim hit the Defendant. The doctor testified that he confirmed as many of the Defendant's statements as possible through other means by reviewing her medical records, school records, evidence provided by police and by interviewing the Defendant and members of her family.
The Defendant's second cousin, Lola Dunlap, testified that the Defendant's father was imprisoned most of the Defendant's life. Lola Dunlap testified that the Defendant lived with her from the time that the Defendant was thirteen until the Defendant ran away at sixteen. Lola Dunlap also testified that the victim carried a gun "constantly." She also recounted one occasion when the victim "jumped on" another female relative, Sugar, in her home. Lola Dunlap's husband, Allen Dunlap, testified and confirmed that the victim fought with Sugar in the Dunlaps' home.
Tameka Lasha Fox, the Defendant's third cousin and the daughter of Lola Dunlap, confirmed the testimony of her mother. She also testified that, on one occasion, her husband and the victim got into a verbal confrontation. Tameka Fox testified that the Defendant told her that she did not mean to kill the victim. Perry Fox, Tameka Fox's husband, confirmed her testimony about the altercation and stated that, during the altercation between him and the victim, the victim told him that he had a gun. Perry Fox stated that, on another occasion, he saw the victim with a gun on the side of his hip.
The Defendant testified that she was eighteen when she shot and killed the victim. She testified that she found her mother dead when she was nine and that she is still hurting from that incident. She testified that she was raped by two men when she was fifteen and that, at the time, the only person she told about it was her second cousin, Sugar, because she was afraid she would get into trouble. The Defendant testified that, one day before the murder, the victim put his hands on her "[w]hen we [were] at the club. . . ." The Defendant stated that, on the day of the murder, "[the victim's] elbow brushed up against my chest and I felt disrespected . . . uncomfortable." The Defendant testified that the victim and his wife were arguing the day of the murder while at the doctor's office. She testified that, when the four of them were on the elevator leaving the doctor's office, she told the victim to take her home "because [he and his wife] were still arguing." The Defendant testified, "He jumped in my face, talking about if I want to walk — or if I want to go home, walk." The Defendant stated that she told the victim that he should take her home and he "shoved" her and then he "smacked" her. She testified that she told the Defendant, "[D]on't put your hands on me" and he said, "[W]hat, you're going to shoot me," and that she then took the gun out of her purse. The Defendant testified that the victim "leaped" and she shot him.
The Defendant testified that she had seen the victim beat his wife, and that she was scared he was going to hurt her. She expressed remorse that the victim was dead. The Defendant testified that the gun belonged to her cousin, Sugar, and that Sugar left the gun in her purse. The Defendant stated that, when she was on her way to the doctor's office, Sugar told her that the gun was in the Defendant's purse and that she was on her way to retrieve it. On cross-examination, the Defendant stated that this was the first time that she ever carried a gun.
It is unclear from the record, but we assume that the Defendant and Sugar spoke via telephone while the Defendant was riding in the vehicle with the victim, Kennedy and Cunningham.
In rebuttal, the State called Howard Robeck, M.D., to testify as an expert witness. Dr. Robeck testified that he examined the Defendant and disagreed with Dr. Caruso's diagnosis of post-traumatic stress disorder. He testified that the Defendant did not evince symptoms suggesting that, at the time of the shooting, she was re-experiencing any major trauma, which would be indicative of this disorder. Further, the doctor testified that, even if the Defendant suffered from post-traumatic stress disorder, he did not see a link between the disorder and the shooting. The doctor testified that the Defendant displayed anti-social traits, a problem for which there is no successful treatment.
At the close of the sentencing hearing, the trial court sentenced the Defendant as a violent offender and ordered her to serve twenty-four years in prison, one year less than the maximum sentence. The Defendant appeals her sentence, contending that the trial court imposed an excessive sentence based upon its improper application of four statutory enhancement factors and its improper failure to apply four mitigating factors.
II. Analysis
When a defendant challenges the length and manner of service of a sentence, it is the duty of this court to conduct a de novo review on the record with a presumption that "the determinations made by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d) (2003). This presumption 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. Ross, 49 S.W.3d 833, 847 (Tenn. 2001) (quoting State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999)); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached by the trial court in sentencing a defendant or to the determinations made by the trial court which are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994). In conducting a de novo review of a sentence, we must consider: (a) any evidence received at the trial and/or sentencing hearing; (b) the pre-sentence report; (c) the principles of sentencing; (d) the arguments of counsel relative to sentencing alternatives; (e) the nature and characteristics of the offense; (f) any mitigating or enhancement factors; (g) any statements made by the defendant on his or her own behalf; and (h) the defendant's potential or lack of potential for rehabilitation or treatment. See Tenn. Code Ann. § 40-35-210 (1997 Supp. 2002); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The party challenging a sentence imposed by the trial court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (1997), Sentencing Commission Cmts.
Second degree murder, the crime to which the Defendant pled guilty, is a Class A felony, Tennessee Code Annotated section 39-13-210 (1997), and the presumptive sentence for a Class A felony is the midpoint of the sentencing range unless there are enhancement or mitigating factors present. Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and then reduce the sentence in the range as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e) (1997).
As stated above, in order to determine the appropriate range of the sentence the trial court shall consider, among other things, enhancing and mitigating factors. Tenn. Code Ann. § 40-35-210(b)(5). Whenever the court imposes a sentence, it shall place on the record either orally or in writing what enhancement or mitigating factors it found, if any, as well as findings of fact as required by other sections of the Tennessee Code. Tenn. Code Ann. § 40-35-210(f). The weight given to each factor is within the trial court's discretion provided that the record supports its findings and it complies with the Sentencing Act. State v. Carter, 908 S.W.2d 410, 412 (Tenn. Crim. App. 1995); State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The trial record must contain specific findings of fact to support the sentence, as well as any enhancement or mitigating factors used to arrive at that sentence. Tenn. Code Ann. §§ 40-35-209(c), — 210(f). Thus, if the trial court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of recording the court's reasoning is to guarantee the preparation of a proper record for appellate review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). The wrongful application of one or more enhancement factors by the trial court does not necessarily lead to a reduction in the length of the sentence. See State v. Winfield, 23 S.W.3d 279, 284 (Tenn. 2000). A determination that one or more enhancement factors were improperly considered requires that we review the evidence supporting any remaining enhancement factors, as well as the evidence supporting any mitigating factors. State v. Imfeld, 70 S.W.3d 698, 707 (Tenn. 2002).
A. Enhancement Factors
The trial court applied five enhancement factors, and the Defendant contends that the trial court erred when it applied four of those five factors. Tennessee Code Annotated section 40-35-114 (Supp. 2002) enumerates the relevant enhancement factors as:
We note that, beginning July 4, 2002, "the 2002 amendment [to Tennessee Code Annotated section 40-35-114] added present [enhancement factor] (1) and redesignated former (1) through (22) as present (2) through (23), respectively." Tenn. Code Ann. § 40-35-114, Amendments (Supp. 2002). Thus, enhancement factor (1) becomes enhancement factor (2), enhancement factor (7) becomes enhancement factor (8), etc. For the purposes of this opinion, we will use the old numbering, since it was effective at the time of the Defendant's sentencing.
(1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; . . . (8) The defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community; (9) The defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense; (10) The defendant had no hesitation about committing a crime when the risk to human life was high; . . . (20) The defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult.
When the trial court decided to apply these enhancing factors it found:
In terms of enhancing factors, I think there are several that would apply and do apply in this particular case.
Obviously, the defendant possessed and employed a firearm during the commission of the offense. And the Court places great significance on that and will say more about that in a moment.
Also, I think, based on the proof that I've heard, there is the enhancement factor that risk to human life was high, obviously, to the victim, which can't be factored in, in terms of this enhancing factor. But that can be applied when there are others present in and around the zone of danger [when the Defendant] produc[ed] a handgun and just starting to fire at random when other people are there, those people being Mr. Cunningham and Ms. Kennedy.
I do think, based on the pre-sentence report and the defendant's statements to her doctors, that she has been adjudicated previously as a delinquent on an offense that would be a felony, if committed as an adult. So that factor is present, as well as prior or previous criminal behavior. [She] [d]oes not have convictions, because she was eighteen and a half years old at the time of this offense. But [she] has extensive drug usage and other activities that have been testified here, assaults [with] box cutters and cutting people and things of that nature.
Also [she] has the factor of unwillingness to comply with conditions of release.
We find that the trial court in this case considered all relevant evidence and so stated on the record; its decision, therefore, is entitled to a presumption of correctness. See Ross, 49 S.W.3d at 847.
The Defendant contends that the trial court improperly found that the Defendant has "a previous history of criminal convictions or criminal behavior" pursuant to Tennessee Code Annotated section 40-35-114(1). The trial court applied this factor based upon the Defendant's "extensive drug usage" and "other activities . . . [including] assaults . . . cutting people." First, we note that all of these "other activities" occurred when the Defendant was a juvenile and juvenile adjudications cannot be used as a basis for applying enhancement factor (1). See State v. Jackson 60 S.W.3d 738, 742 (Tenn. 2001). Juvenile adjudications can only be used under enhancement factor (20). Therefore, to the extent that the trial court relied on the Defendant's juvenile convictions to find that this enhancement factor applied, it erred. See State v. Adams, 45 S.W.3d 46, 58 (Tenn. Crim. App. 2000). However, we have previously held that a defendant's admitted history of drug use may be relied upon when finding that a defendant has a history of criminal behavior. See State v. Vanderford, 980 S.W.2d 390, 407 (Tenn. Crim. App. 1997) (holding that this enhancement factor applied when the defendant "told the pre-sentence officer he had a history of drug use"); State v. Scott, No. M2001-02911-CCA-R3-CD, 2003 WL 22438523, at* 7 (Tenn. Crim. App., at Nashville, Oct. 28, 2003), no perm. app. filed (holding that, in a prior appeal, "we found that the defendant's admitted weekly use of illegal drugs for the past twenty years constituted criminal behavior triggering the application of this factor"); State v. Ingram, No. W2002-00936-CCA-R3-CD, 2003 WL 721704, at *2 (Tenn. Crim. App., at Jackson, Feb. 26, 2003), perm. app. denied (Tenn. Sept. 2, 2003) (holding that "during his testimony at sentencing, the defendant admitted to cocaine use as an adult [and] this evidence was sufficient to support the trial court's finding that the defendant's sentences should be enhanced based on his history of criminal behavior"); State v. Upchurch, No. M2001-03170-CCA-R3-CD, 2002 WL 31014840, at *2 (Tenn. Crim. App., at Nashville, Sept. 9, 2002), no perm. app. filed (holding that "the defendant admitted to using marijuana two months prior to sentencing . . . this criminal behavior, though not resulting in convictions, may also be considered under enhancement factor (1)").
In the case under submission, the Defendant told the pre-sentence officer that she used marijuana every day. The Defendant stated that "her first drug use was at age eleven, and her drug of choice has always been marijuana." Further, the Defendant's medical expert, Dr. Caruso, testified that the Defendant told him that she quit school at thirteen because she wanted to "run the streets smoking marijuana." The Defendant's medical records also indicate that she is a "habitual" marijuana user, smoking everyday. This evidence was sufficient to support the trial court's finding that the Defendant's sentence should be enhanced based upon her admitted daily use of illegal drugs.
The Defendant next contends that the trial court should not have applied enhancement factor (8) based upon its finding that the Defendant "has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community." The Defendant's argument is based upon the fact that the "State presented no documentation at the sentencing hearing" to prove that the Defendant previously violated parole. We have found no requirement that the State provide independent proof, other than the pre-sentence report, to confirm statements made by a defendant to the pre-sentence officer. Therefore, we agree with the trial court that the Defendant's juvenile record supports application of enhancement factor (8). Our review of the pre-sentence report reveals that the Defendant reported that, at age seventeen, she was charged with felony assault. She stated that, after serving eleven months in a juvenile facility in Delaware, Ohio, she was released, but immediately violated her parole and was, therefore, placed in jail for twelve days. We conclude that parole is a type of release into the community as contemplated in enhancement factor (8), and, thus, the evidence does not preponderate against the trial court's application of enhancement factor (8).
Next, the Defendant asserts that the trial court erred in applying enhancement factor (10), i.e., that the Defendant "had no hesitation about committing a crime when the risk to human life was high." Tenn. Code Ann. § 40-35-114(10). Enhancement factor (10) may be applied where the Defendant creates a high risk to the life of a person other than the named victim. State v. Bingham, 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995). While a risk to human life is inherent in murder and, therefore, cannot be used as an enhancing factor if only the victim's life was placed at risk, this Court has held that the trial court may consider this factor when the defendant endangers the lives of people other than the victim. State v. Kelley, 34 S.W.3d 471, 480 (Tenn. Crim. App. 2000) (citing State v. Ruane, 912 S.W.2d 766, 784 (Tenn. Crim. App. 1995); State v. Johnson, 909 S.W.2d 461, 464 n. 1 (Tenn. Crim. App. 1995); State v. Butler, 900 S.W.2d 305, 314 (Tenn. Crim. App. 1994) (holding that factor (10) should not be applied when the victim is the only one at risk)). In this case, Kennedy testified that the Defendant was in close proximity to herself and Cunningham when the Defendant fired the gun at the victim. We find that the evidence does not preponderate against the trial court's finding that when the Defendant fired a gun at the victim, in close proximity of Kennedy and Cunningham, she created a high risk to the lives of Kennedy and Cunningham. Accordingly, the trial court did not err in applying factor (10).
Finally, the Defendant contends that the trial court erred in applying enhancement factor (20), which provides that the appellant "was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult." Tenn. Code Ann. § 40-35-114 (20). The Defendant told the pre-sentencing officer that, as a juvenile, she committed felony assault against another women. Dr. Caruso testified that the Defendant told him that she committed, and was adjudicated as a juvenile for, felonious assault. This evidence is sufficient to support the trial court's finding that the Defendant committed a delinquent act as a juvenile that would constitute an assault.
B. Mitigating Factors
The Defendant next contends that the trial court erred when it did not apply four statutory mitigating factors. Tennessee Code Annotated section 40-35-113 (1997) enumerates the mitigating factors that the Defendant alleges are relevant as:
We again use the mitigating factors articulated in the provision of the code that governed at the time of the Defendant's sentencing.
(2) The defendant acted under strong provocation; . . . (6) The defendant, because of youth or old age, lacked substantial judgment in committing the offense; . . . (8) The defendant was suffering from a mental or physical condition that significantly reduced the defendant's culpability for the offense; . . . (13) Any other factor consistent with this chapter.
The trial court addressed the mitigating factors, stating:
In terms of mitigating factors, I understand about the — not physical condition, but mental condition that we've heard extensive testimony about, the post-traumatic stress, major depression. Whether she just has traits of post-traumatic or actually can be diagnosed as such, I don't know that — that matters a lot here in this Court, as far as the sentencing considerations.
Obviously, she has major issues that have occurred with her in her life, as do many people. Some people react differently. And I'm sure that mild borderline retardation issues that the doctors sort of agree on comes into play, as well. But I observed her demeanor here today and listened to these family members and understand that she's had troubles in her life, from the death of her mother to the rape. And there have been attempts to deal with that, through Juvenile Court and these various places she's left and run away from. So there's been an attempt to deal with those issues. And for whatever reasons, it hasn't taken with her.
But does it rise to the point of significantly reducing the culpability in this case? And I don't think it does. So even if I gave that minimal weight, I do think that she knowingly produced this gun and knowing what would happen, as a result of that, killed [the victim].
. . . .
In terms of the age, yes, she was young. The statute says that that mitigating factor would be present if she lacked substantial judgment because of that age. And I have to mention, again, because it comes into play here, these efforts that the doctors have testified to about placements after delinquent activity as a juvenile, placement in these homes and the continued acting out. . . . [I]t appears . . . that she's just mean. . . .
So even though she was eighteen, I still think with her history, she, for whatever reason, agrees to let this other cousin, that apparently has problems of her own, place a gun in her purse, carry that gun around in her purse, for some unknown reason. . . .
So I factor all of that, the abuse, in terms — factor it into her mental condition, but still am of the opinion that she knew what was happening. Just got mad and was going to see to it that she won out.
The Defendant asserts that the trial court erred by not finding that she acted under strong provocation pursuant to Tennessee Code Annotated section 40-35-113(2). There was conflicting testimony as to whether or not the victim provoked the Defendant. Kennedy testified that the victim never touched the Defendant and that, after a verbal confrontation with the victim, the Defendant pulled a gun and shot the victim. The Defendant testified that the victim "smacked" her prior to her shooting the victim. The trial court found that the Defendant "just got mad" and shot the victim. The trial court heard the witnesses and found that the Defendant was not strongly provoked. The evidence does not preponderate against the trial court's finding that this mitigating factor did not apply.
The Defendant contends that the trial court should have applied mitigating factor (6), lack of substantial judgment due to his or her youth. Tenn. Code Ann. § 40-35-113(6). Factor (6) refers to a defendant's youth in the context of his or her "age, education, maturity, experience, mental capacity or development, and any other pertinent circumstance tending to demonstrate the defendant's ability or inability to appreciate the nature of his [or her] conduct." State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993). The Defendant testified that she was eighteen when she murdered the victim, and the trial court found that the Defendant "knowingly produced this gun and knowing what would happen, as a result of that, killed [the victim]." The record does not preponderate against the trial court's findings. The Defendant testified that she was angry because the victim would not give her a ride. While she said that the victim "smacked" her and that she was "scared," there was an eyewitness who testified that the victim did not touch the Defendant. The Defendant knew that she was carrying a gun in her purse, reached inside her purse, pulled out the gun, and fired it at the victim. Further, after the shooting the Defendant fled the scene of the crime and threw the gun in a river, indicating that she knew that she had done something wrong. Accordingly, the trial court properly declined to apply factor (6).
The Defendant next contends that the trial court should have found that she was suffering from a mental condition that significantly reduced her culpability for the offense pursuant to Tennessee Code Annotated section 40-35-113(8). The trial court gave little weight to this factor and stated that whether the Defendant has traits of post-traumatic stress disorder, or actually can be diagnosed as such, such diagnosis did not carry great weight as far as the sentencing considerations. The trial court found that neither the post-traumatic stress disorder nor the mild retardation reduced the Defendant's culpability because "she knowingly produced [a] gun and knowing what would happen, as a result of that [and] killed [the victim]." We hold that the evidence does not preponderate against the trial court's findings. While there was some evidence that the Defendant's mental condition may cause her to overreact in confrontational situations, there was no evidence that the Defendant fired the gun at the victim not knowing that her actions could kill him. Such evidence would be required to reduce the Defendant's culpability. Therefore, the evidence does not preponderate against the trial court's finding that mitigating factor (8) did not apply.
Lastly, the Defendant contends that the trial court erred when it refused to consider "any other factor consistent with the purposes of this chapter" pursuant to Tennessee Code Annotated section 40-35-113(13) because the Defendant had a tumultuous childhood, including discovering her mother dead when she was nine years old. The trial court noted that the Defendant "has major issues that have occurred with her in her life, as do many people," but noted that it "observed her demeanor" and that while "she's had troubles in her life, from the death of her mother to the rape. . . . there have been attempts to deal with that, through Juvenile Court," which were unsuccessful. The trial court, therefore, found that this mitigating factor did not apply. We cannot say that the evidence preponderates against the trial court's finding. The record reflects that the Defendant's second cousin, whom she called "aunt," took her into her home and showed "her love." The Defendant's aunt testified that she tried to rehabilitate the Defendant and to teach the Defendant about God, but the Defendant repeatedly ran away from the aunt's home. The Defendant's uncle testified that he was like a father to her and tried to express his love to her. Another of the Defendant's cousins testified that the Defendant was welcome in their home and that they tried to love the Defendant. In light of this testimony, that the Defendant had some family support that she rebuked, we conclude that the trial court did not err when it determined that "other circumstances" in the Defendant's life did not constitute a mitigating factor.
III. Conclusion
In accordance with the foregoing, we conclude that the trial court committed no reversible error. Therefore, the judgment of the trial court is AFFIRMED.