             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE                  FILED
                          MAY 1996 SESSION
                                                         December 1, 1997

                                                        Cecil W. Crowson
STATE OF TENNESSEE,         )                          Appellate Court Clerk
                            )
             Appellee,      )    No. 01C01-9510-CC-00334
                            )
                            )    Montgomery County
v.                          )
                            )    Honorable John W. Gasaway, Judge
                            )
DMITRI JOHNSON,             )    (Sentencing -- Second degree murder)
                            )
             Appellant.     )


For the Appellant:               For the Appellee:

Edward DeWerff                   Charles W. Burson
103 South Third Street           Attorney General of Tennessee
Clarksville, TN 37040                   and
                                 Karen M. Yacuzzo
                                 Assistant Attorney General of Tennessee
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 John W. Carney, Jr.
                                 District Attorney General
                                         and
                                 Charles Bush
                                 Assistant District Attorney General
                                 204 Franklin Street
                                 Clarksville, TN 37040




OPINION FILED:____________________



SENTENCE VACATED; REMANDED

Joseph M. Tipton
Judge
                                        OPINION



              The defendant, Dmitri Johnson, appeals as of right from the twenty-year

sentence imposed by the Circuit Court of Montgomery County for his conviction upon a

guilty plea for second degree murder, a Class A felony. The defendant contends that

the trial court improperly relied upon facts not in evidence in its sentencing decision. He

also contends that the trial court improperly applied three enhancement factors and

refused to apply two additional mitigating factors. We believe that the case should be

remanded for a new sentencing hearing.



              This case involves the death of Blanie Watson at the hands of the

defendant and Mary Ortiz, for which both were originally charged with first degree

murder. The plea to second degree murder was a result of an agreement by which the

defendant also testified for the state in the trial of Ms. Ortiz.



              The basic facts surrounding the defendant’s involvement in the killing are

presented in the record on appeal primarily through the transcript of the defendant’s

guilty plea hearing, but also through his testimony at the Ortiz trial. The defendant was

nineteen years old at the time of the killing and had a romantic relationship with Ms.

Ortiz at the same time she was having a relationship with the victim. Ms. Ortiz

complained to the defendant that the victim was abusing her.



              In the early mornings hours of April 19, 1994, the defendant arrived at the

Ortiz residence and found the victim inside, shot but still alive. The victim asked the

defendant to take him somewhere, but the defendant refused. At some point, the victim

grabbed a nearby gun, and a struggle with the defendant ensued, the gun discharging

into the floor. The gun jammed and was no longer operable.




                                               2
                The struggle continued between the two of them. The defendant stated

that he was aware of the victim being a “big drug dealer” with a lot of violent friends and

that he feared for his life if the victim had gotten away. The fight continued as the

defendant tried to stop the victim from escaping the house. The victim waited outside

and the defendant picked up a stick and hit the victim. However, the victim made it

across the street into a neighbor’s yard, where the fight continued. The two fell to the

ground, and the defendant found a rock -- described as the size of a cantaloupe -- and

struck the victim in the head. The autopsy performed by Dr. Charles Harlan reflected

that the cause of death was “a culmination of the blows to the head as well as the shots

to the body.”



                The defendant went home and told his parents. His parents took him to

the police station and he turned himself in. The defendant cooperated with the police

from the very beginning.



                The record reflects that at the time of the offense, the defendant was a

nineteen-year-old high school senior with learning disabilities. Both the defense and

the state described the defendant as being used by Ms. Ortiz, with her taking

advantage of his mental abilities, emotions and affections. The defendant has no

previous convictions or criminal behavior. The defendant expressed his remorse. The

state requested that under the circumstances of the case and the defendant’s

cooperation, the trial court should be lenient in sentencing.



                The trial court found the following enhancement factors listed in T.C.A. §

40-35-114 to apply:

                (4) the victim of the offense was particularly vulnerable
                because of physical or mental disability,

                (5) the defendant treated or allowed the victim to be treated
                with exceptional cruelty during the commission of the offense,
                and


                                              3
              (9) the defendant possessed or employed a firearm, explosive
              device or other deadly weapon during the commission of the
              offense.

The trial court found the following mitigating factors listed in T.C.A. § 40-35-113 to

apply:

              (9) the defendant assisted the authorities in uncovering
              offenses committed by other persons or in detecting or
              apprehending other persons who had committed the offenses,

              (10) the defendant assisted the authorities in locating or
              recovering any property or person involved in the crime,

              (12) the defendant acted under duress or under the domination
              of another person, even though the duress or the domination
              of another person was not sufficient to constitute a defense to
              the crime, and

              (13) other nonstatutory mitigating factors exist.

The trial court found that the defendant turning himself in to the authorities immediately,

giving a statement to authorities, cooperating with the authorities, and testifying against

Mary Ortiz constituted mitigating factors under factor (13).



              The trial court rejected as a mitigator the defendant’s claim that because

of his youth, he lacked substantial judgment in committing the offense. See T.C.A. §

40-35-113(6). It did not believe that the fact that the defendant was nineteen was

sufficient to mitigate, given his level of intelligence shown by his testimony and actions.

The trial court also rejected as a mitigating factor the defendant’s claim that the offense

was committed under such unusual circumstances that it is unlikely that a sustained

intent to violate the law motivated his conduct. See T.C.A. § 40-35-113(11). It stated

that the defendant had time to think and reflect during the course of the events and

could have, and should have, stopped many times.



              The trial court stated that confinement was necessary to avoid

depreciating the seriousness of the offense and was particularly suited to provide an

effective deterrence to others likely to commit a similar offense. After noting its


                                             4
consideration of all of the matters relevant to sentencing, see T.C.A. § 40-35-210(b), it

determined that the sentence should be twenty years in the Department of Correction.



              The defendant contends that all three enhancement factors were

improperly applied and that mitigating factors (6) and (11) should have been applied. In

response, the state argues that the enhancement factors apply, but its brief fails to

address the mitigating factors. Also, the state asserts that it takes no position on the

defendant’s request that we impose the minimum sentence of fifteen years.



              Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. T.C.A. §§ 40-35-401(d)

and -402(d). As the Sentencing Commission Comments to these sections note, the

burden is now on the appealing party to show that the sentencing is improper. This

means that if the trial court followed the statutory sentencing procedure, made findings

of fact that are adequately supported in the record, and gave due consideration and

proper weight to the factors and principles that are relevant to sentencing under the

1989 Sentencing Act, we may not disturb the sentence even if a different result were

preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              However, "the presumption of correctness which accompanies the trial

court's action 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. T.C.A. §§ 40-35-210(f)
              (1990).



                                             5
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).



                Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the

principles of sentencing and arguments as to sentencing alternatives, (4) the nature

and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see

Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).



                The sentence to be imposed by the trial court is presumptively the

minimum in the range unless there are enhancement factors present. T.C.A. § 40-35-

210(c).1 Procedurally, the trial court is to increase the sentence within the range based

upon the existence of enhancement factors and, then, reduce the sentence as

appropriate for any mitigating factors. T.C.A. § 40-35-210(d) and (e). The weight to be

afforded an existing factor is left to the trial court's discretion so long as it complies with

the purposes and principles of the 1989 Sentencing Act and its findings are adequately

supported by the record. T.C.A. § 40-35-210, Sentencing Commission Comments;

Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.



                The defendant’s initial complaint is that the trial court improperly relied

upon evidence submitted at the Ortiz trial -- not in his guilty plea or sentencing

hearings -- to determine the existence of the enhancement factors. He points to the

trial court’s references to evidence presented in the Ortiz trial by the defendant, Dr.

Harlan, an Ortiz neighbor, and police 911 records relative to the defendant having

enough time to be aware of the victim’s wounded condition when he acted as he did

and to his acting without undue excitement or heat of passion.


                1
                    For Class A felonies committed on or after July 1, 1995, the presumptive sentence is the
midp oint of the ra nge. See 1995 Tenn. Pub . Acts, ch. 493 (amend ing T.C.A. § 40-35-210(c)).

                                                     6
              We note that at a subsequent hearing, defense counsel stated that

although he wanted the trial court to reconsider the defendant’s sentence, he did not

necessarily want a new sentencing hearing. Also, although he filed a motion asking the

trial court to supplement the record with the Ortiz trial testimony of the defendant, Dr.

Harlan, and William Harrop, counsel said at the hearing that he only wanted the

defendant’s testimony to be a supplement to the record. In other words, if the record on

appeal is deficient because it contains less than all matters considered by the trial

court, we note that the defendant was in a position to correct the deficiencies but chose

not to. Of course, the state could have supplemented the record, as well, but the

obligation lies primarily upon the appellant to insure that the record is complete for

appellate review purposes.



              Moreover, we note that a significant portion of the record on appeal that

supports the defendant’s request for lenient sentencing is the transcript of the

defendant’s testimony in the Ortiz trial. This means that while the defendant complains

about the trial court’s reliance upon the Ortiz trial evidence in sentencing, he also wants

us to consider part of that same evidence in his favor.



              Unfortunately, the important fact is that the parties and the trial court

relied upon matters that are not evidence in this case. Particularly, the trial court relied

upon its own memory of evidence presented at the Ortiz trial in which the defendant

was not a party. Although the trial court can take judicial notice of its own orders and

judgments in cases before it, see Hughes v. State, 2 Tenn. Crim. App. 71, 73, 451

S.W.2d 696, 697 (1969), reliance upon its own recall of the evidence in those cases is

not the same.




                                             7
              In State v. Preston Bernard Crowder and Cynthia Diane Southall, 01C01-

9304-CR-00143, Davidson County (Tenn. Crim. App. Mar. 14, 1995), this court stated

in the context of a sentencing hearing that “we do not think that the trial judge can take

judicial notice of the facts, as he remembers them, underlying a guilty plea which he

accepted in an unrelated case.” Slip op. at 7. Similarly, in State v. Jackie Crowe,

03C01-9606-CC-00225, McMinn County (Tenn. Crim. App. July 29, 1997), this court

stated that although a trial court could take judicial notice under Rule 201, Tenn. R.

Evid., that a witness testified to particular facts, it would move out of the realm of

judicial notice and into the realm of being a witness if the trial court relied upon the

credibility of that testimony based upon its memory of the testimony. Slip op. at 5-6.



              In Vaughn v. Shelby Williams of Tenn., Inc., 813 S.W.2d 132 (Tenn.

1991), the trial court had considered its extra judicial observations of the plaintiff before

trial in deciding the extent of the plaintiff’s vocational disability. The supreme court

vacated the judgment, concluding that the judge became a witness to the proceedings,

which is forbidden by Rule 605, Tenn. R. Evid. Id. at 133-34.



              Under the circumstances in this case, we are being asked to review

sentencing determinations based upon the trial court’s reliance upon its recollection of

evidence from another trial that was not presented as evidence in this case. From both

the trial court’s perspective and the parties’ perspectives, substantial information

relevant to the enhancing and mitigating factors at issue in this case came from the trial

court’s recollection of the Ortiz trial evidence. However, none of it is properly a part of

the record of the sentencing hearing in this case.



              Given such a circumstance, we have no means of conducting a de novo

review of the record that would lead to an educated determination of an appropriate




                                              8
sentence. Therefore, we must vacate the defendant’s sentence and remand the case

for a new sentencing hearing.



                                            ____________________________
                                            Joseph M. Tipton, Judge

CONCUR:



_________________________
Gary R. Wade, Judge



_________________________
William M. Barker, Judge




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