        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                        DECEMBER 1999 SESSION
                                                   FILED
                                                     March 6, 2000

                                                 Cecil Crowson, Jr.
STATE OF TENNESSEE,          *                 Appellate Court Clerk
                                  C.C.A. # W1999-00030-CCA-R3-CD

           Appellee,         *    FAYETTE COUNTY

VS.                          *    Honorable Jon Kerry Blackwood, Judge
PATRICIA SPENCER,            *    (Second Degree Murder; Attempted
                                  Especially Aggravated Robbery)
           Appellant.        *



FOR THE APPELLANT:                FOR THE APPELLEE:

STEVEN L. HALE                    PAUL G. SUMMERS
P. O. Box 638                     Attorney General & Reporter
Somerville, TN 38068
                                  PATRICIA C. KUSSMANN
                                  Assistant Attorney General
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  ELIZABETH T. RICE
                                  District Attorney General
                                  302 E. Market Street
                                  Somerville, TN 38068




OPINION FILED: _______________

AFFIRMED


JOHN EVERETT WILLIAMS,
Judge




                                 OPINION
       On December 11, 1998, the defendant, Patricia Spencer, pled guilty to

one count of second degree murder and one count of attempted especially

aggravated robbery. The trial court sentenced her as a Range I Violent Offender
to 25 years for the second degree murder and as a Range I Standard Offender

to 8 years for the attempted especially aggravated robbery, the sentences to be

served concurrently. From this sentencing, the defendant now appeals asserting
that the trial court erred in its 25-year sentence for the second degree murder;

accordingly, she requests that her sentence be reduced. After careful review, we

AFFIRM the sentence as imposed by the trial court.


                                INTRODUCTION


       On July 28, 1997, Patricia Spencer and Cory Anderson were indicted by

the Fayette County Grand Jury on first degree murder, both felony-murder and
premeditated murder, attempted especially aggravated robbery, and felony

possession of a handgun. Both ultimately entered guilty pleas; on December 11,

1998, the defendant pled guilty to murder in the second degree and attempted

aggravated robbery.



       The defendant’s sentence was imposed after a sentencing hearing at

which the defendant testified to details and circumstances of the attempted

robbery and murder of the victim, Bill Myers.     The defendant in substance
admitted to her involvement in the planning and execution of the attempted

robbery; however, she denied actually committing the murder.          The state

introduced the testimony of a police officer and a doctor, cross-examined the
defendant,   and    presented   argument. Cory     Anderson,   the   defendant’s

accomplice, did not testify.



       Accordingly, we set out the facts consistent with the testimony of the
defendant. On the night of July 9, 1997, the defendant and her boyfriend, Cory

Anderson, set about a plan of robbery. The defendant was to enter the house of

her friend, Bill Myers, with a bag containing among other things a long knife and
a baseball bat. Once inside, the defendant was to strike Myers in the head,




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render him unconscious, and then unlock the backdoor through which Anderson

would enter with a gun. The two would then rob Myers.



      In execution, however, the plan ended in murder rather than robbery. The

defendant entered with the bag as planned and unlocked the door. Anderson

entered and pulled a gun on Myers as he lay, conscious, on the bed. He ordered
Myers to lay face down and told the defendant to strike Myers in the back of the

head with a nearby whiskey bottle. The defendant struck Myers twice shattering

the bottle on the back of his head. The two then attempted to tie-up Myers;
however, they were unsuccessful. The defendant then left the bedroom and

entered the kitchen; once there she heard arguing in the bedroom and heard

several gun shots.    Anderson staggered from the bedroom and, with the
defendant, ran from the house where Anderson fell.



      Anderson had been shot and was bleeding; the defendant therefore went

to a nearby house for help. Once there, she attempted to call her friend. Exiting

the house and returning to Anderson in the bushes, she found him in worse

condition. After some time, knowing the police were in the area, she left to get

help for Anderson. She told the police Anderson’s location, his condition, and,

when asked, alerted them to the presence of a gun. She was then arrested.


      In custody, the defendant gave a statement to police significantly different

from her testimony at trial.   Myers died of wounds sustained including blunt
trauma to his neck and head, a knife-injury to his neck, and a gunshot wound to

his abdomen.


      After hearing this testimony and argument from both sides, the trial court

sentenced the defendant to 25 years for the second degree murder and 8 years

for the attempted aggravated robbery, to be served concurrently. In support of

imposing the maximum possible sentence for the second degree murder, the
trial court found three enhancement factors:

             (1) She had no hesitation about committing an offense to
                 which the risk of human life was high (10);
             (2) she possessed a deadly weapon in the commission of
                 the offense (9); and


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              (3) she abused a position of private trust to facilitate the
                  commission of the offense (15).

              Further, the trial court found two mitigating factors:
              (1) She had no previous felony record (13); and
       (2) she admitted her guilt by the entry of a plea of guilty (13).
       Weighing these factors, the trial court sentenced her as stated above.



                                    ANALYSIS

       The defendant contends that the trial court erred in imposing a 25-year
sentence for her conviction of second degree murder. Specifically, she alleges

that the trial court failed to find and properly apply the following mitigating

factors:
       (1) The defendant played a minor role in the commission of the
           offense (4);
       (2) the defendant was suffering from a mental condition which
           significantly reduced her culpability for the offense (8);
       (3) the defendant assisted the authorities in uncovering offenses
           committed by other persons or in detecting or apprehending
           persons who had committed the offenses (9);
       (4) the defendant acted under duress (12); and
       (5) the defendant expressed great remorse (13).




                             STANDARD OF REVIEW


       This Court’s review of the sentence imposed by the trial court is de novo

with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d). This

presumption is conditioned upon an affirmative showing in the record that the
trial judge considered the sentencing principles and all relevant facts and

circumstances. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the

trial court fails to comply with the statutory directives, there is no presumption of

correctness and our review is de novo. See State v. Poole, 945 S.W.2d 93, 96
(Tenn. 1997).



       If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after giving due consideration and proper

weight to the factors and principles set out under sentencing law, and the trial


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court’s findings of fact are adequately supported by the record, then we may not

modify the sentence even if we would have preferred a different result. Fletcher,

805 S.W.2d at 789.


      In the instant case, the trial court’s sentencing determination is not entitled

to the presumption of correctness because the trial court erred in applying Tenn.
Code Ann. § 40-35-114(10) as an enhancing factor. This factor is inapplicable

because it is inherent in the offense of second degree murder. See State v.

Jones, 883 S.W.2d 597, 603 (Tenn. 1994).          Accordingly, we will review the
sentence under a purely de novo standard.



                               DE NOVO REVIEW

      We first determine that the appropriate range of sentence for second
degree murder, a Class A felony, Range I Violent Offender is 15 - 25 years.

Tenn. Code Ann. § 40-35-210(c) provides that the presumptive sentence for a

Class A felony shall be 20 years, the midpoint of the range absent either

enhancement or mitigating factors.



      Now we review for enhancement factors. The defendant does not contest

and we agree with the trial court’s application of enhancing factors (9) and (15).

See Tenn. Code Ann. §§ 40-35-114(9), (15).



      We further find that the evidence adduced at the sentencing hearing

supports a finding that the defendant, in fact, had a lengthy history of criminal
behavior, including cocaine use, prostitution, attempted blackmail, and

participation in another robbery. Accordingly, we find Tenn. Code Ann. § 40-35-

114(1) as an additional appropriate enhancing factor.



      Next, we consider the defendant’s requested application of mitigating

factors. The defendant first claims that she played a “minor role in the

commission of the offense.”      See Tenn. Code Ann. § 40-35-113(4).            The
defendant argues that as her role in the death of Bill Myers was “extremely




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minor” and as Cory Anderson was the real “leader of this offense,” she is entitled

to mitigation. This Court disagrees.



      The defendant conspired with Anderson to rob Myers. The defendant

then used her friendship with Myers to enter his house. She brought with her

into this house deadly weapons. She then let Cory Anderson into the house.
Upon his entrance, she struck Myers with a whiskey bottle, and she helped in the

robbery attempt. These actions are not in any way “minor”; instead, they form

major parts of the offense, both in its planning and execution. Therefore, this
argument is not well-taken.



      Next, the defendant argues that the trial court failed to find a “mental
condition that significantly reduced her culpability for the offense.” See Tenn.

Code Ann. §40-35-113(8). This argument is apparently based upon the fact that

the defendant admitted to having smoked crack cocaine on the day of the

offense and to having a long and beleaguered drug history. These admissions,

standing alone, provide no basis for finding mitigation based upon a “mental

condition that significantly reduced her culpability.” Therefore, this argument is

not well-taken.



      Next, the defendant claims that the trial court should have found that she

assisted the authorities in uncovering the offenses committed. See Tenn. Code

Ann. § 40-35-113(9). Whether the defendant claims that her assistance was that
offered the night of the offenses when she told the officers Anderson’s

whereabouts or whether that assistance is comprised of her plea of guilty and

“willingness to testify” against Anderson, the argument has no merit. Her help
that night occurred far too late and in a situation other than that contemplated by

the statute. She was surrounded by police, and Anderson, her accomplice, was

bleeding in the bushes. As for her plea of guilty and her “willingness to testify,”

these are matters of trial strategy motivated for any number of reasons and,
above all, occurred far too late to help the victim, Myers.        Therefore, this

argument is not well-taken.




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       Next, the defendant claims that the trial court erred in failing to find that

she acted under duress or under the domination of another person. See Tenn.

Code Ann. § 40-35-113(12). While the defendant claims that life with Anderson
was filled with fear, intimidation, and undue influence, there is nothing in the

record to indicate that she acted in fear of Anderson that evening. Nor is there

any evidence that she was forced into this plan of robbery and murder by
Anderson; rather, she actively participated in selecting the victim and executing

the plan. Therefore, this argument is not well-taken.



       Finally, the defendant claims that the trial court failed to find that she

“expressed great remorse relative to the death of        Myers.”    Specifically, the

defendant argues that her expression of grief to Myers’ family should serve as
the basis for mitigation consistent with this Court’s holding in State v. Williamson,

919 S.W.2d 69, 83 (Tenn. Crim. App. 1995): “Genuine, sincere remorse is a

proper mitigating factor.”     While remorse is a relevant concern, “the mere

speaking of remorseful words or a genuflection in the direction of remorse will

not earn the accused a sentence reduction.” Williamson, 919 S.W.2d at 83.

The trial judge saw the defendant, listened to her testimony, and observed her

demeanor and concluded that this mitigating factor did not apply. In light of the

facts of this case and after having reviewed the statements made, this Court will
not disturb that conclusion.



       We weigh the factors in accordance with the appropriate sentencing
principles and find that the defendant’s sentence remains the same, 25 years.

The weight of the three remaining enhancing factors preponderates against the

two mitigating factors. We place great weight on enhancing factors (9) and (15)
and some weight on factor (1). We place little weight on the two mitigating

factors. Therefore, we conclude that the defendant’s 25-year sentence shall not

be reduced.



                                  CONCLUSION


       We AFFIRM the sentence as imposed by the trial court.




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                                   __________________________________________
                                   JOHN EVERETT W ILLIAMS, Judge


CONCUR:




_______________________________
GARY R. WADE, Presiding Judge




________________________________
NORMA McGEE OGLE, Judge




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