             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT KNOXVILLE               FILED
                                MAY 1997 SESSION
                                                                October 10, 1997

                                                               Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                )      No. 03-C-01-9601-CR-00028
            APPELLEE,           )
                                )      Sullivan County
v.                              )
                                )      R. Jerry Beck, Judge
MICHAEL BAILEY,                 )
                                )      (Second Degree Murder)
            APPELLANT.          )




FOR THE APPELLANT:                     FOR THE APPELLEE:

Stacy L. Street                        John Knox Walkup
Attorney at Law                        Attorney General & Reporter
630 Elk Avenue                         500 Charlotte Avenue
Elizabethton, TN 37643                 Nashville, TN 37243-0497
(On Appeal)
                                       Sandy R. Copous
J. D. Hickman                          Assistant Attorney General
Attorney at Law                        450 James Robertson Parkway
803 Liberty Drive                      Nashville, TN 37243-0493
Kingsport, TN 37663
(At Trial)                             H. Greeley Wells, Jr.
                                       District Attorney General
                                       P. O. Box 526
                                       Blountville, TN 37617-0526

                                       Nancy S. Harr
                                       Assistant District Attorney General
                                       P. O. Box 526
                                       Blountville, TN 37617-0526

                                       David G. Overbay
                                       Assistant District Attorney General
                                       P. O. Box 526
                                       Blountville, TN 37617-0526




OPINION FILED: ____________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                OPINION
       The appellant, Michael Bailey (defendant), was convicted of second degree murder,

a Class A felony, by a jury of his peers. The trial court found that the defendant was a

standard offender and imposed a Range I sentence consisting of confinement for twenty

(20) years in the Department of Correction. In this Court, the defendant contends (a) his

Due Process rights were violated because he was unable to assist his counsel as a result

of being denied medication, and (b) the sentence imposed by the trial court is excessive.

After a thorough review of the record, the briefs submitted by the parties, and the law

governing the issues presented for review, it is the opinion of this Court that the judgment

of the trial court should be affirmed.

       The defendant does not challenge the sufficiency of the evidence. However, a

recitation of the salient facts is necessary for an understanding of the issues presented for

review.

       The defendant, a truck driver, fell from a flatbed trailer and injured his spine. The

defendant subsequently underwent disc replacement surgery in 1992. He was prescribed

a variety of drugs following surgery including Prozac, an anti-depressant, Orudus, a muscle

relaxer and pain reliever, Zantac, a digestive aid, Darvocet, a pain reliever, and Valium, an

anti-anxiety drug.

       On June 8, 1994, the defendant visited his doctor and refilled his prescriptions. He

subsequently went to visit his mother who was ill. While visiting his mother, the defendant

took each of the aforementioned drugs. When the defendant arrived home later that

afternoon, he took an additional dose of Darvocet, Valium, and Zantac tablets. He also

began drinking bourbon whiskey.

       Prior to the evening of June 8th, it was evident the defendant and his youngest son,

Justin, the victim in this case, did not get along. The victim’s step-sister testified the

defendant did not like Justin, and the defendant had threatened to “blow his [Justin’s]

brains out” a few days before Justin was murdered. On other occasions, the defendant

had threatened Justin, physically assaulted him, and destroyed Justin’s stereo. Jason, the

defendant’s oldest son, told the jury his father had threatened Justin in the past. The

defendant told Justin, “I brought you into this world, I can take you out of this world.”


                                             2
       On the evening in question, the defendant recounted to his sons, Jason and Justin,

an incident which upset the defendant. The defendant and Justin encountered the

defendant’s father-in-law in a grocery store. The defendant and his father-in-law argued

over fifty dollars the defendant and his wife owed to the father-in-law. Justin walked away

from the argument. This angered the defendant because he wanted Justin to stand by his

side and protect him because his physical condition would not permit him to defend

himself. The defendant expressed anger as he recounted the incident. He asked Jason,

his oldest son, if he would have stood by him during the argument.

       The defendant subsequently went to Jason’s room to listen to music. He eventually

displayed a pistol, cocked it, and pointed it at Jason. When Jason told the defendant to

remove the pistol from his room, the defendant placed the pistol in his pocket. He told

Jason “it’s not for you.” The defendant then sat in a bean bag chair.

       When Justin entered Jason’s room, Jason and the defendant were listening to

music. The defendant subsequently arose and pulled the pistol from his pocket. He

pointed the pistol toward the floor. He then raised the pistol and pointed it at Justin’s groin.

A few seconds later the defendant pointed the pistol at Justin’s head. Justin asked the

defendant, “[A]re you going to shoot me, Dad?” Seconds later the defendant shot the

victim in the eye. This gunshot wound resulted in the victim’s death. The defendant went

down a flight of stairs and exited the residence. He walked to a road behind his residence

and threw the pistol on the ground.

       The defendant testified he and his sons had been playing with the gun. They were

“cutting up” and “acting stupid.” He did not remember a shot being fired. He only

remembered standing in a road behind his residence and hearing his wife scream. His

defense at trial was he did not commit a knowing killing because he was under the

influences of medication and alcohol.



                                               I.



       The defendant contends his federal constitutional Due Process rights were violated

during the trial because the sheriff’s department exhibited “deliberate indifference by



                                               3
refusing to administer the defendant’s prescription pain medication to him” during the

course of the trial. He argues this “deliberate indifference” forced him “to remain in

constant pain and to ‘squirm’ on the stand during his [direct] testimony and cross-

examination.” In addition, his condition “severely hampered . . . his ability to assist counsel

in his own defense.”

       The trial in this case lasted nine days. During the trial, the defendant’s back pain

and his medication were discussed several times by defense counsel and the trial court at

sidebar and jury-out hearings. They discussed the pain being suffered by the defendant,

the need for medication to alleviate the pain, and a need for recesses to permit the

defendant to stand and move about the courtroom.

       Defense counsel did not bring the special needs of the defendant to the attention

of the trial court prior to trial. The defendant’s physical condition was raised for the first

time late in the afternoon of the first day of trial. Counsel apologized for failing to bring the

matter to the attention of the trial court earlier. He advised the court about the defendant’s

condition and related the defendant’s need to stand and move about the courtroom.

Thereafter, the trial court attempted to accommodate the defendant during the balance of

the trial. The court granted the defendant permission to arise and walk around the

courtroom and advised counsel he would instruct the jury as to why the defendant was

standing and moving while the trial was in progress. The court granted recesses on

several occasions when defense counsel advised the court the defendant was in pain and

needed to move about the courtroom. In addition, the court told defense counsel he would

entertain a motion to permit the defendant to return to the jail while the trial was in progress

if it would help to alleviate defendant’s pain. Defense counsel advised the court he wanted

the defendant in the courtroom, and the defendant wanted to remain in the courtroom.

       When defense counsel requested the defendant be given the pain medication

prescribed for him late in the afternoon of the second day of trial, the trial court was

apprehensive of the effect the medication might have on the defendant’s mental faculties.

After a lengthy dialogue, the trial court asked the bailiff to call the jail and have someone

bring the medication to the defendant. The court did this on several occasions during the

course of the trial.



                                               4
       It appears the trial court had reservations regarding the defendant’s statements to

counsel that he was suffering severe pain. The court made several comments in this

regard. The court noted:


              I’ve watched the defendant throughout the trial. I haven’t seen
              him grimace, or show any indication of pain, or any suffering.
              He may have a high tolerance of pain, but I haven’t observed
              anything indicating that he is in any type of extreme [pain] ---
              or anything of that nature.


The court also noted, “[H]e hasn’t shown me any indication of pain, I have watched him

throughout the trial.” At another point the court noted, “I have observed no indication of

pain in him. I’ve been watching him. . . . [W]e’re looking each other in the eye about all

day.” Finally, the court said:


              [T]he Court noticed that at the beginning of this hearing, Mr.
              Hickman [defense counsel] couldn’t find his glasses, and the
              defendant bent his -- appears to have good mobility in bending
              because he bent from his seat at counsel table to his left to
              hand Mr. Hickman’s glasses over.


       Defense counsel was the only person who described the nature of the pain the

defendant was suffering. Counsel advised the court he was simply relaying what the

defendant told him. The defendant alluded to “pain” during his cross-examination. The

assistant district attorney general asked the defendant if he was suffering from pain on the

night he killed the victim. The defendant stated he “was having pain constantly.” The

assistant district attorney general then asked the defendant if he was still having pain. The

defendant responded by saying, “Just like I do now.” Otherwise, no witness testified

regarding the nature or severity of the pain.

       The defendant could have shed light on the severity of his pain by testifying either

at a jury-out hearing or during his testimony. He presented several witnesses who could

have given testimony concerning what had allegedly occurred regarding the medication.

The defendant called the person who was responsible for administering the medication to

the prisoners at the county jail. He did not question the witness as to why the sheriff’s

department had refused to give him the drugs prescribed by his doctors. The defendant

also called the orthopedic surgeon who performed the surgery, a psychologist who



                                             5
discussed the management of pain with the defendant, and a psychiatrist who managed

the nature and amount of the medication given to the defendant. No questions were

propounded to these witnesses regarding what effect, if any, the denial of medication

would have upon the defendant. Finally, defense counsel gave the trial court medical

records to establish the defendant’s need to move his body to alleviate pain. Counsel

advised the trial court he was not going to introduce the records into evidence. In short,

the record in this case is void of any evidence or indication that the defendant was

“severely hampered . . . [in] his ability to assist counsel in his own defense.”

       It has long been established in this jurisdiction that allegations contained in

pleadings and the statements made by counsel do not constitute evidence. Hillhaven

Corp. v. State ex rel. Manor Care, Inc., 565 S.W.2d 210, 212 (Tenn. 1978); State v.

Aucoin, 756 S.W.2d 705, 716 (Tenn. Crim. App. 1988), cert. denied, 489 U.S. 1084, 109

S.Ct. 1541, 103 L.Ed.2d 845 (1989); Trotter v. State, 508 S.W.2d 808, 809 (Tenn. Crim.

App.), cert. denied (Tenn. 1974).     As this Court said in Trotter: “While it is true that a

lawyer is an officer of the court, his statements of the extra-judicial facts made in the

course of argument, when not under oath as a witness and not subject to cross-

examination proves nothing.” 508 S.W.2d at 809.

       Given the state of the record, this Court cannot find the trial court abused its

discretion or the defendant was denied a constitutional right as he claims. He had every

opportunity to present evidence or ask questions of the defense witnesses heretofore

mentioned to develop his theory. He failed to do this. Moreover, the trial court specifically

found during the hearing on the motion for a new trial the defendant was fully capable of

assisting counsel with his defense. As the record reflects, the trial court observed the

defendant during the course of the trial. The court stated its determinations were based

upon its observation of the interaction between counsel and the defendant and the

representations made by defense counsel. The record also reflects the trial court took

steps to make the pain medication available to the defendant when the matter was brought

to the court’s attention.

       This issue is without merit.




                                             6
                                              II.



       The defendant contends that his sentence was excessive. He argues the trial court

erred first, in using two enhancing factors and second, in weighing the enhancing factors

against the mitigating factors to arrive at the mid-range sentence of twenty years. The

defendant claims he should have received the minimum fifteen-year sentence.



                                              A.



       When an accused 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). 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1994). The presumption

does not apply to the legal conclusions reached by the trial court in sentencing the accused

or to the determinations made by the trial court which are predicated upon uncontroverted

facts. 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.), per. app. denied (Tenn. 1994); State v. Bonestel,

871 S.W.2d 163, 166 (Tenn. Crim. App. 1993). However, this Court is required to give

great weight to the trial court's determination of controverted facts as the trial court's

determination of these facts is predicated upon the witnesses' demeanor and appearance

when testifying.

       In conducting a de novo review of a sentence, this Court must consider (a) any

evidence received at the trial and/or sentencing hearing, (b) the presentence 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 enhancing factors, (g)

any statements made by the accused in his own behalf, and (h) the accused's potential or

lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103 and -210;

State v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim. App.), per. app. denied (Tenn. 1987).



                                              7
       The party challenging the sentences imposed by the trial court has the burden of

establishing that the sentences are erroneous. Sentencing Commission Comments to

Tenn. Code Ann. § 40-35-401; Ashby, 823 S.W.2d at 169; Butler, 900 S.W.2d at 311.

In this case, the defendant has the burden of illustrating the sentences imposed by the trial

court are erroneous.

                                             B.



       The trial court found evidence supporting three enhancing factors: the defendant

had a previous history of criminal behavior, Tenn. Code Ann. § 40-35-114(1); the

defendant possessed a firearm during the commission of the offense, Tenn. Code Ann. §

40-35-114(9); and the defendant abused a position of private trust, Tenn. Code Ann. § 40-

35-114(15).

       The defendant challenges two of the enhancement factors applied by the trial court.

The defendant concedes that the use of a firearm during the commission of the act was

a proper factor.

                                             (1)



       The defendant contends enhancement factor Tenn. Code Ann. § 40-35-114(1) was

improperly used. He argues the trial court gave this factor too much weight because his

prior felony conviction for third degree burglary was twenty years old.

       The trial court also noted a 1988 speeding offense which did not merit much weight;

a 1981 charge of public intoxication described as a “rather old” offense which was “not

shocking,” and did not carry much weight; and a 1981 charge of disorderly conduct which

again did not carry much weight with the court. The third degree burglary conviction was

more significant, the trial court said. The court noted that the 46-year-old defendant also

had a juvenile record which included breaking into parking meters, breaking and entering,

and auto theft.

       The court also cited the defendant’s admitted alcohol and marijuana abuse which

increased after his accident in 1991.       The defendant admitted to the presentence

investigation officer he smoked two or three marijuana cigarettes every other day after he


                                             8
was unable to work. He also admitted to the officer that in the 1970s he abused Valium,

Librium, alcohol, speed, acid, marijuana, and Dilaudid.

       The enhancing factor refers to “criminal behavior” in addition to criminal history.

There is no per se rule in Tennessee barring consideration of unadjudicated conduct.

State v. Michael Robinson, Cocke County No. 03-C-01-9510-CC-00303 (Tenn. Crim. App.,

Knoxville, June 24, 1997), application to app. pending; see also State v. Keel, 882 S.W.2d

410, 419 (Tenn. Crim. App.), per. app. denied (Tenn. 1994). There were other acts

committed by the defendant which support this factor that were not considered by the trial

court. The defendant admitted during his trial testimony he gave his sons Valium, a

controlled substance. The evidence adduced during the trial indicated the defendant stole

the gun used in the shooting of his son and a videocassette recorder from a friend’s house

in a neighboring county. This occurred several years prior to the shooting.

       Given the defendant’s prior encounters with the law and continued involvement in

illegal drugs, the trial court properly applied this factor to enhance the sentence within the

appropriate range.

       The issue is without merit.

                                              (2)



       The defendant takes issue with the trial court’s use of the abuse of trust factor.

Tenn. Code Ann. § 40-35-114(15). During the sentencing hearing, the trial court noted

the 17-year-old victim was a juvenile, under the custody of his parents, and lived at home.

While acknowledging this factor is most often applied to crimes involving younger victims,

the trial court said it was applicable in this case.

       The defendant argues the factor was inappropriate because the facts demonstrated

the defendant had lost control over his son who had stopped attending school, was using

illegal drugs, and was driving without a driver’s license. Moreover, there were no facts

which established the defendant held a position of trust or control over the victim other than

a biological connection.

       In State v. Kissinger, the Tennessee Supreme Court said the abuse of trust factor:

              requires a finding, first, that defendant occupied a position of
              trust, either public or private. The position of parent,

                                               9
               step-parent, babysitter, teacher, coach are but a few obvious
               examples. The determination of the existence of a position of
               trust does not depend on the length or formality of the
               relationship, but upon the nature of the relationship. Thus, the
               court should look to see whether the offender formally or
               informally stood in a relationship to the victim that promoted
               confidence, reliability, or faith. If the evidence supports that
               finding, then the court must determine whether the position
               occupied was abused by the commission of the offense.
               Ordinarily, only the first question will pose a difficulty for the
               court.


State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996). See also State v. Mario Gutierrez,

Hardin County No. 02-C-01-9502-CC-00043 (Tenn. Crim. App., Jackson, May 17, 1997),

application to app. pending (This Court said this factor could be used between two adults.

“Members of a household are in a special position of trust with respect to one another.”).

       The defendant testified he supported the family when he was able to work. After

he suffered the disabling injury, his worker’s compensation benefits supported the family.

He told the jury he had normal teenage conflicts with his son. He stated he played

baseball with his son, and he was listening to music with both sons just before the

shooting.

       The most telling evidence in support of this factor occurred when the defendant

initially produced his gun, pointed it at the floor in front of his son, then raised it to his son’s

groin and then to his son’s eye. Justin remained in place throughout and asked his father,

“[A]re you going to shoot me, Dad?” His inaction and his question indicate that he did not

believe his own father would actually harm him.

       As the victim’s father, the defendant occupied a position of trust. Children, even

teenagers, trust their custodial parents to care for and protect them. The trial court

properly applied this factor to enhance the sentence within the appropriate range.

       This issue is without merit.



                                                C.



       The trial court found eight mitigating factors: the defendant located and led

authorities to the gun thus providing some assistance, Tenn. Code Ann. § 40-35-113(10);

the defendant gave a statement that could be considered a declaration against interest,

                                                10
Tenn. Code Ann. § 40-35-113(10); and because of unusual circumstances the defendant

did not have a sustained intent to violate the law, Tenn. Code Ann. § 40-35-113(11).

       Under Tenn. Code Ann. § 40-35-113(13) “catch all” provision, the court found the

following: (a) the defendant expressed some remorse, (b) the defendant had a back injury,

(c) alcohol and drugs were being ingested by the defendant, (d) the defendant had

psychiatric and physical problems, and (e) the defendant has some family in the area that

will support his efforts at rehabilitation.1



                                               (1)



       The trial court said he did not give the mitigating factors much weight. As for the

lack of sustained intent, the trial court noted that the surviving son said he was told the gun

was not for him, implying that it was for his brother. Thus, there was some evidence of

sustained intent.

       Regarding the effect of the ingestion of alcohol and drugs, the court stopped short

of saying that the shooting resulted from this but found it a mitigating factor. The court said

the substances may have given the defendant “courage” to shoot. This Court notes the

voluntary consumption of alcohol is not a mitigating factor. Tenn. Code Ann. § 40-35-

113(8). See State v. Johnny Lockhart, Roane County No. 03-C-01-9512-CC-00392 (Tenn.

Crim. App. Knoxville, February 27, 1997), application to app. pending; State v. Johnny

Robinson, Madison County No. 02-C-01-9505-CC-00126 (Tenn. Crim. App., Jackson,

February 26, 1996). The defendant’s psychiatrist who prescribed the medication said he

told his patient not to consume alcohol with his medication.



       1
        In the written order filed November 8, 1995 denying the motion for new trial, the
court found that the defendant’s work as a truck driver and his employment history fell
under Tenn. Code Ann. § 40-35-113(13). This was not clearly identified as a mitigating
factor during the sentencing hearing on July 29, 1995 although the trial judge mentioned
the defendant’s work as a truck driver during the hearing. It is settled law in Tennessee
that when there is a conflict between the transcript and court records, the transcript
controls. State v. Zyla, 628 S.W.2d 39 (Tenn. Crim. App. 1981); Helton v. State, 195 Tenn.
36, 255 S.W.2d 694 (1953), cert. denied, 346 U.S. 816, 74 S.Ct. 28, 98 L.Ed. 343 (1953);
Percer v. State, 118 Tenn. 765, 103 S.W. 780 (1907).
       Furthermore, the fact that he had been employed would not entitle him to a
reduction in his sentence. State v. Keel, 882 S.W.2d 410, 423 (Tenn. Crim. App.), per. app.
denied (Tenn. 1994).

                                               11
       With regard to the defendant’s psychiatric and physical problems, the court refused

to find that these problems were the actual cause of the shooting. The court said he

rejected any argument that there was an effect on culpability because the jury by its verdict

had rejected this theory at trial.

       Finally, the court said he only gave “some weight” to the factor the defendant’s

mother would support rehabilitation.



                                             (2)



       With the presence of both enhancing and mitigating factors, the trial court is

instructed to begin at the minimum sentence, enhance the sentence within the range as

appropriate and then reduce the sentence within range as appropriate for mitigating

factors. Tenn. Code Ann. § 40-35-210(6)(e). In this case, the range for a Class A felony

is fifteen to twenty-five years. The trial judge acknowledged the purposes and principles

of sentencing. He explained the requirement to begin with the minimum sentence and then

increase for enhancement and lower for mitigation. After a thorough sentencing hearing

in which the court discussed all these aspects, the trial court sentenced the defendant to

a mid-range sentence of twenty (20) years. This Court is of the opinion the length of the

sentence imposed by the trial court is reasonable.

       The weight to be given to enhancement and mitigating factors rests within the sound

discretion of the trial court. State v. Reiko Nolen, Dyer County No. 02-C-01-9601-CC-

00008 (Tenn. Crim. App., Jackson, August 2, 1996), per. app. denied (Tenn. 1997). The

trial court stated the weight given the factors in this case. This Court is of the opinion the

trial court did not abuse its discretion when assessing the weight to be given the factors.




                                             12
     The issue is without merit.




                                   ________________________________________
                                       JOE B. JONES, PRESIDING JUDGE




CONCUR:




_____________________________________
     JOSEPH M. TIPTON, JUDGE




_____________________________________
     CURWOOD WITT, JUDGE




                                    13
