         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 10, 2003

              STATE OF TENNESSEE v. SALVATORE BRUNETTI

                      Appeal from the Circuit Court for Dickson County
                          No. CR6099     Allen W. Wallace, Judge



                      No. M2003-00476-CCA-R3-CD - Filed June 1, 2004


The defendant, Salvatore Brunetti, was convicted of voluntary manslaughter. The trial court
imposed a sentence of five years in the Department of Correction. In this appeal, the defendant
asserts that the trial court erred by denying an alternative sentence. The judgment of the trial court
is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and DAVID G.
HAYES, JJ., joined.

William B. (Jake) Lockert, III, District Public Defender, for the appellant, Salvatore Brunetti.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
and Suzanne Lockert, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

       On April 28, 2002, Deputy Casey Groves of the Dickson County Sheriff's Department
received a report that the defendant had shot his wife and threatened suicide. Deputy Groves and
two other officers drove to the residence, closed the road to traffic, and surrounded the residence.
As Officer Humphreys knocked on the front door and announced "Sheriff's Office," Deputy Groves
took cover in the front yard. When the defendant opened the door, he was placed on the ground and
handcuffed. Upon entering the residence, the officers discovered the victim, Tressia Wallace, lying
face down on the kitchen floor. A handgun lay on a nearby table. While searching the upstairs
bedrooms, the officers found a mentally disabled woman who boarded with the victim. She was
unaware of the situation.

     Deputy John Suddeath, who arrived on the scene just after Deputy Graves and Officer
Humphreys, stood guard over the defendant while the other two officers entered the residence.
According to Deputy Suddeath, the defendant, who was wearing only underpants, smelled of alcohol
and had slurred speech.

        Patricia Walsh, an EMS first responder, was the first of the medical personnel to arrive on
the scene. She examined the victim and did not find a pulse. After other medical personnel were
unable to detect any vital signs, the victim was declared dead. The medical examiner's report
established that the cause of death was a single gunshot wound to the chest.

         Detective Rick Smith testified that several guns, including a Rossi .38 caliber handgun found
in the kitchen, were seized from the defendant's residence. The defendant, who appeared to the
officer to be intoxicated, admitted using the five-shot revolver to shoot the victim but claimed it was
an accident. Detective Smith stated that the defendant contended that he and the victim were arguing
and that when he picked up the gun, it discharged. Detective Smith conceded that the defendant was
very cooperative during the investigation and had assisted the police by drawing diagrams of the
scene.

        The defendant testified that on the day of the shooting, he and the victim had purchased
flowers and potting soil and drank beer as they planted the flowers. He claimed that he returned to
the residence after a short time and eventually called the victim to dinner. The defendant contended
that when she came inside, she was angry because he had not helped with the flowers and an
argument ensued. The defendant explained that he picked up the gun because he feared the victim
might try to use it. They continued to argue as he held the gun. The defendant admitted that he told
the victim to "shut up" but denied any intention to fire the gun or shoot the victim. According to the
defendant, he did not realize he had shot her until she grabbed her chest and fell to the floor. The
defendant telephoned 911. He testified that he did not leave because he did not want to leave the
mentally disabled woman whom his wife had cared for "for over 20 years." The defendant claimed
that he continued to drink alcohol until the police arrived.

        The defendant testified that he did not attempt to make bail pending trial because he did not
want to return to the residence he shared with the victim. He stated that he had continued to pay the
mortgage and other bills out of his own account even while he was incarcerated. According to the
defendant, he did not gain financially from the victim's death because the house was hers, they had
no joint bank accounts, and he was not the beneficiary of her will or any life insurance policies.

        At the sentencing hearing, the victim's daughter, Yvonne Grady, testified that the defendant
pursued the victim and "told her he would pay off her house and they would travel the world and live
the good life." Shortly after moving into the victim's residence, however, the defendant quit his job
as a car salesman. Ms. Grady testified that her relationship with the victim was strained as a result
of the victim's marriage to the defendant. Ms. Grady recalled that the victim visited her in the days
before she was killed and said that she "made a grave error" and wanted the defendant to move out.
While acknowledging that the victim had "a temper," Ms. Grady claimed that the victim was not a
heavy drinker and became angry only if provoked.



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        In this appeal, the defendant asserts that the trial court erred by denying an alternative
sentence. The state disagrees. When there is a challenge to the length, range, or manner of service
of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the
determinations made by the trial court 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. 1991); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial
court applies inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the
presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).
The Sentencing Commission Comments provide that the burden is on the defendant to show the
impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

        Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

       In calculating the sentence for a class C felony conviction, the presumptive sentence is the
minimum in the range if there are no enhancement or mitigating factors. Tenn. Code Ann. §
40-35-210(c). If there are enhancement but no mitigating factors, the trial court may set the sentence
above the minimum, but still within the range. Tenn. Code Ann. § 40-35-210(d). A sentence
involving both enhancement and mitigating factors requires an assignment of relative weight for the
enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35- 210(e). The
sentence must then be reduced within the range by any weight assigned to the mitigating factors
present. Id.

        In arriving at a sentence of five years, the trial court found enhancement factor (9), that the
defendant employed a firearm during the commission of the offense, applicable. See Tenn. Code
Ann. § 40-35-114(9) (1997). In mitigation, the trial court concluded that the defendant had no prior
felony convictions and that the defendant was remorseful. See id. § 40-35-113(13). The defendant
asserts that the trial court erred by denying an alternative sentence.

        An alternative sentence is any sentence that does not involve total confinement. See State
v. Fields, 40 S.W.3d 435 (Tenn. 2001). As a standard offender convicted of a Class C felony, the
defendant is presumed to be a favorable candidate for alternative sentencing. See Tenn. Code Ann.
§ 40-35-102(6). In addition, because the sentence imposed is eight years or less, the trial court was
required to consider probation as a sentencing option. See Tenn. Code Ann. § 40-35-303(b).

        The trial court’s determination of whether the defendant is entitled to an alternative sentence
and whether the defendant is a suitable candidate for full probation are different inquiries with
different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). When,


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as here, the defendant is entitled to the statutory presumption favoring alternative sentencing, the
state must overcome the presumption by the showing of “evidence to the contrary.” Ashby, 823
S.W.2d at 169; State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled in part
on other grounds by State v. Hooper, 29 S.W.2d 1 (Tenn. 2000); see Tenn. Code Ann.
§§ 40-35-102(6), -103 (1997). Conversely, it is the defendant who has the burden of demonstrating
his suitability for total probation. Bingham, 910 S.W.2d at 455; see Tenn. Code Ann.
§ 40-35-303(b) (1997).

        As indicated, this defendant is entitled to a presumption in favor of an alternative sentence
“absent evidence to the contrary.” See Tenn. Code Ann. § 40-35-102(6). What constitutes such
evidence can be found in Tennessee Code Annotated section 40-35-103, which provides, in pertinent
part, as follows:

       Sentences involving confinement should be based on the following considerations:
               (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;
               (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence to
       others likely to commit similar crimes;
               (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1).

       Initially, neither subsection (A) nor subsection (C) is applicable. The defendant has only one
prior conviction, a misdemeanor that occurred nearly twenty years before the offense at issue.
Further, measures less restrictive than confinement have not frequently or recently been applied
unsuccessfully to the defendant. The trial court based its denial on subsection (B). The trial court
made the following observations regarding the seriousness of the offense:
       I tried this case. I listened to the proof in this case. I've drawn a conclusion in this
       case that neither side has mentioned. I've listened to the proof of how this death
       occurred up there. I watched [the defendant]. [The defendant] is a volatile person.
       He needs a gun about like a hog needs a side saddle. The fortunate thing about this
       case, he could never have a gun anymore. He can't even sleep in a house where there
       is a gun. He's volatile. He showed that here in the courtroom. A witness testified
       to something that I didn't think had anything much to do with the case, nothing to get
       upset about and he just exploded in the courtroom.
                So you take his action in the courtroom and the action that's described the day
       of that killing and the way he described that, there is so much similarity between the
       two and not only that the pre-sentence report shows that sometime in the past for
       some reason he had to go to family therapy or went on his own. Anyway he went to
       family therapy. I can't assume it was because of his volatility. But when I see the



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       way he acted in the courtroom and I see the description of that incident up there it
       does make him a volatile person.
               Keeping that in mind in sentencing, I realize that is not an enhancement
       factor. In mitigating factors I can look at anything, but that's not an enhancement
       factor so I don't want the appeals court to think that I'm using that as an enhancement
       factor. I'm just showing that when I consider depreciating the seriousness of the
       offense I'm dealing with a man here that is a volatile person.

       Finally, the trial court observed that the defendant lacked candor:
               Now, he says he was in the Air Force from '54 to '59. He testified at trial he
       was in the Air Force. There is no other proof in this record where he was stationed,
       what he did, and as a side line I've never heard of a security clearance called a rating.
       I would like to look at a DD Form 214, but I haven't seen it. I've never heard of a
       clearance called a rating before and I've dealt with thousands.


        Before a trial court may deny an alternative sentence based upon the circumstances of the
offense, those circumstances "must be 'especially violent, horrifying, shocking, reprehensible,
offensive, or otherwise of an excessive or exaggerated degree,' and the nature of the offense must
outweigh all factors favoring [an alternative sentence]." State v. Cleavor, 691 S.W.2d 541, 543
(Tenn. 1985); State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991). The proof
established that the defendant shot the unarmed victim in their home while they argued. The
defendant, originally charged with first degree murder, was granted leniency by the jury in the form
of a conviction for the lesser offense of voluntary manslaughter. He will be eligible for release after
service of thirty percent of a five-year sentence. In our view, to further lessen his sentence would
depreciate the seriousness of the offense.

        Further, lack of candor is an appropriate consideration. "A defendant’s truthfulness or
mendacity while testifying on his own behalf, almost without exception, has been deemed probative
of his attitudes toward society and prospects for rehabilitation and hence relevant to sentencing."
United States v. Grayson, 438 U.S. 41, 51 (1978). "'[A] fact like the defendant’s readiness to lie
under oath before the judge who will sentence him would seem to be among the more precise and
concrete of the available indicia.'" Id. (quoting United States v. Hendrix, 505 F.2d 1233, 1236 (2nd
Cir. 1974)). It is our view that the lack of candor, when combined with the need to avoid
depreciating the seriousness of the offense, is sufficient in this instance to support the trial court's
denial of an alternative sentence.

       Accordingly, the judgment of the trial court is affirmed.

                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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