          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE           FILED
                                JUNE, 1998 SESSION
                                                          November 4, 1998

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk

STATE OF TENNESSEE,                )    No. 01C01-9711-CC-00540
                                   )
      Appellee                     )
                                   )    Robertson County
vs.                                )
                                   )    Honorable John H. Gasaway, III, Judge
TERRENCE LEE HANNAH,               )
                                   )    (Second Degree Murder)
      Appellant.                   )



FOR THE APPELLANT:                      FOR THE APPELLEE:

MICHAEL R. JONES                        JOHN KNOX WALKUP
14th District Public Defender           Attorney General & Reporter
110 Sixth Ave. West
Springfield, TN 37172                   ELIZABETH B. MARNEY
                                        Assistant Attorney General
                                        Criminal Justice Division
                                        425 Fifth Ave. North
                                        2d Floor, Cordell Hull Bldg.
                                        Nashville, TN 37243-0493

                                        JOHN WESLEY CARNEY, JR.
                                        District Attorney General
                                        204 Franklin St. Suite 200
                                        Clarksville, TN 37040-3420

                                        DENT MORRISS
                                        Assistant District Attorney General
                                        500 So. Main St.
                                        Springfield, TN 37172



OPINION FILED: ____________________


AFFIRMED

CURWOOD WITT
JUDGE
                                      OPINION



              The defendant, Terrence Lee Hannah, was convicted in a jury trial in

the Robertson County Circuit Court of second degree murder, a Class A felony.

The jury acquitted him of first degree premeditated murder. As a Range I, standard

offender, he received a twenty-year sentence. The defendant must serve no less

than 85% of his sentence.1 In this direct appeal, the defendant challenges the

sufficiency of the evidence, the admissibility of his confession, and the trial court’s

sentencing determination. Having reviewed the record, the briefs of the parties, and

the applicable law, we affirm the judgment of the trial court.



                                       I. Facts

              On the evening of February 5, 1996, Robertson County Deputy Steve

Colbert answered a call at a large trailer park in Cook’s Hollow where he found

Roger Ryan, the victim, lying on the floor in his small trailer. Another man, J. P.

Nolan, was administering CPR. The victim, who had been shot in the abdomen

from close range with a shotgun, was pronounced dead upon arrival at the hospital.

Cindy Nolan named the defendant as the shooter and pointed the officer to where

he was leaning against a tree. The defendant was quite intoxicated and had a

strong odor of alcohol about him. The deputy had to steady him as they walked to

the patrol car. The deputy noticed that the defendant had a cut over one eye. After

other officers arrived, Deputy Colbert transported the defendant to the emergency

room where a sample of the defendant’s blood was drawn. Testing of the sample

revealed that his blood alcohol level was .28 grams percent at 11:15 p.m.

Emergency room personnel treated and closed the cut with a butterfly bandage.




       1
              The statute provides that for a person convicted of certain
designated offenses, including second degree murder, committed after July 1,
1995, “[s]uch person shall serve one hundred percent (100%) of the sentence
imposed by the court less sentence credits earned and retained. However, no
sentence reduction credits authorized by § 41-21-236, or any other provision of
law, shall operate to reduce the sentence imposed by the court by more than
fifteen percent (15%).” Tenn. Code Ann. § 40-35-501 (I)(1), (2) (1997).

                                          2
After arriving at the sheriff’s department at approximately 12:10 a.m., the defendant

gave a statement to the police in which he confessed that he shot Roger Ryan.



              At trial, Cindy Nolan, her husband, J. P. Nolan, and John Buckliew, a

neighbor, described the events that led up to Roger Ryan’s death. Ryan, Nolan,

Buckliew, and the owner of the trailer park spent the day thawing and repairing a

broken water line at Buckliew’s trailer. The defendant stopped by briefly but then

left to cut firewood with some friends. Ryan, Nolan and Buckliew gathered at

Nolan’s place after completing the repairs. Cindy Nolan and Buckliew’s wife were

also present. The men drank beer.2 When the defendant arrived sometime around

seven o’clock, he was already intoxicated. Ryan, who had known the defendant

since childhood, tried to talk to him about his excessive drinking and use of drugs.

The conversation became heated, and the defendant accused Ryan of calling his

mother a whore. No one else at the trailer heard Ryan make such a statement.

J.P. Nolan was able to calm the defendant temporarily. However, the defendant

kept returning to the subject, and the situation between the two men again became

tense although no blows were exchanged. Finally Ryan decided to leave and

Buckliew accompanied him. Within a few minutes, the defendant turned down

Nolan’s offer to sleep on the couch and departed declaring that he was going home

to bed.3



              Nolan and his wife were accustomed to checking on the defendant,

and they decided to look in on him shortly after he left. As they walked out their

door, they heard a loud bang and then saw the defendant walking toward their

house hollering “J.P., J.P.” Nolan approached the defendant who told him, “I think



       2
             Detective Jessie Richardson testified that, in his opinion, Nolan and
Buckliew were highly intoxicated when he arrived. According to the medical
examiner’s report, Ryan’s blood alcohol level was .21 when he died.
       3
              Cindy Nolan testified during direct examination that the defendant
left her home about 30 minutes after the victim had departed. When confronted
with her testimony at the preliminary hearing in which she had said that the
defendant had departed after five minutes, she conceded that the five minutes
was probably the more accurate estimate.

                                         3
I just shot Roger.” He took the shotgun out of the defendant’s hands. While his

wife and the defendant went into the Nolans’ house to call 911, Nolan put the

shotgun in a vacant trailer and went to find the victim. The Nolans both noticed that

the defendant now had a cut over one eye. When Nolan arrived at the victim’s

trailer, Ryan was alive and still able to speak. He soon became comatose, however,

and Nolan’s attempt at CPR did little to revive him. The medical examiner reported

that the victim died from a gun shot wound to the abdomen. The pellets perforated

the lower portion of the aorta, the vena cava, and other arteries and veins causing

him to bleed to death.



                John Buckliew was present when the defendant shot Ryan. He

testified that he and the victim were seated on the victim’s sofa when the defendant

knocked on the door. Ryan opened it, and the defendant asked him why he had

called his mother a whore. Ryan again denied insulting the defendant’s mother and

told the defendant to go home and get some rest. He closed the door. Within a few

moments, there was another knock. The victim cracked open the door. Buckliew

again heard the defendant accuse the victim of calling his mother a whore. An

object appeared in the slot created by the open door, a shot was fired, and Ryan fell

to the floor.



                The officers recovered a black-handled steak knife from the area near

the steps to the victim’s trailer. In the same area, they found some blood- spattered

paving stones. According to the serologist who testified at trial, the knife tested

negative for blood. The blood on the stones, however, was consistent with that of

the defendant.



                The prosecutor played the defendant’s taped statement for the jury,

and Detective Donald Bennett read aloud the brief statement he took from the

defendant prior to turning on the tape recorder. In his statements, the defendant

said that Ryan and another man got him down in the road and that Ryan kicked him



                                          4
in the face with his cowboy boots and hit him in the leg with a stick. Although at first

he said he didn’t own a shotgun, he then admitted he went home and returned with

the gun. He knocked on the door, walked in and shot Ryan. He said that Cindy

was in Ryan’s trailer at the time and that Ryan had threatened to get his .38 and

shoot him. However, a police search of the victim’s trailer turned up no weapons,

and other proof showed that when the victim died, he was wearing heavy work

boots.



              The defense called several witnesses including Dr. Charles Harlan,

a consulting pathologist, Dr. Gillian Blair, a clinical psychologist, and the defendant.

Dr. Harlan testified at length about the effects of alcohol and the different degrees

of intoxication. According to his testimony, a person whose blood alcohol level is

.21 grams percent has reached the point of “medical intoxication” and is subject to

nausea, vomiting, and passing out. At .30, death may result. Humans metabolize

alcohol at a rate of about .015 grams percent per hour. Therefore if one’s level

were .28 at 11:15 p.m., the level would have been .31 two hours earlier. At such a

level, one’s judgment and reaction time would be seriously impaired. During cross-

examination, Dr. Harlan testified that people develop a tolerance to alcohol, and that

someone might have a blood alcohol level of .45 and still appear to be functioning.

In rebuttal, the state challenged Dr. Harlan’s conclusions by recalling Dr. Jones.

Dr. Jones testified that the data was insufficient to extrapolate the defendant’s blood

alcohol level at the time of the killing from the level two hours later. Dr. Jones also

questioned the accuracy of Dr. Harlan’s stages of intoxication. He said that he had

never heard of “medical” intoxication.



              Dr. Gillian Blair, a clinical psychologist, conducted two separate

evaluations of the defendant. She reported that he was extremely cooperative

throughout the six hours that she spent with him. She described him as a generally

modest and retiring person. His full scale IQ score of 75 indicates borderline

intellectual functioning. She opined that his long history of alcohol and drug abuse



                                           5
had probably caused some deteroriation since his high school days. According to

her testing, the defendant suffers from a significant anxiety disorder and depression.

The suicide of his mother and his brother’s death from AIDS were traumatic events

in his life. His ex-wife and two children live in his father’s home. Some tension

existed between the defendant and his father, who is a recovering alcoholic. His

father had recently told the defendant that he was not welcome if he continued to

drink.   Dr. Blair stated that at the time of the killing, the defendant would not have

been capable of formulating the intent to intentionally or knowingly kill Roger Ryan

due to his low intellectual functioning and the level of alcohol in his system. On

cross-examination, she acknowledged that she was not familiar with the statutory

definitions of “intentional” or “knowing;” however, she believed that the defendant’s

response to the situation had been a “knee-jerk” reaction rather than a decisive act.



               The defendant testified on his own behalf.         He recalled cutting

firewood with his friends and remembered drinking nearly a case of beer during the

day. He knew he had gone to J.P’s house and that during an argument, the victim

had insulted his mother. He remembered that he was lying on the ground when the

victim stomped him in the face with a cowboy boot. The next thing he remembered

was waking up in jail. He could not recall shooting Roger Ryan or giving a

statement to the police.



               On these facts, the jury acquitted the defendant of first degree

premeditated murder but convicted him of murder in the second degree. The

defendant now contends that the proof at trial was insufficient to establish beyond

a reasonable doubt that he knowingly killed Roger Ryan.



                           II. Sufficiency of the Evidence



               When an accused challenges the sufficiency of the evidence, an

appellate court’s standard of review is, whether after considering the evidence in the



                                           6
light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 317, 99 S. Ct. 2781, 2789 (1979); State v. Duncan, 698 S.W.2d 63,

67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt

based upon direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App.),

perm. app. denied (Tenn. 1990).          Because a jury conviction removes the

presumption of innocence with which a defendant is initially cloaked and replaces

it with one of guilt, a convicted defendant has the burden of demonstrating on

appeal that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). In determining that sufficiency, this court does not reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

On appeal, the State is entitled to the strongest legitimate view of the evidence and

all reasonable or legitimate inferences which may be drawn therefrom. State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate court’s duty to affirm the

conviction if the evidence, viewed under these standards, was sufficient for any

rational trier of fact to have found the essential elements of the offenses beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S. Ct. 2781, 2789;

State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e).



              Keeping in mind the appropriate standard of review, we conclude that

the evidence is sufficient to sustain the defendant’s conviction for second degree

murder. The defendant argues that the proof is adequate only to convict him of

voluntary manslaughter. Although the record contains evidence from which a jury

could have concluded that the defendant shot the victim “in a state of passion

produced by adequate provocation,” Tenn. Code Ann. § 39-13-211 (1997), the jury

did not so conclude. Although the blood spatters on the gravel outside the victim’s

front door and the cut over the defendant’s eye tend to corroborate the defendant’s

claim that the victim and John Buckliew knocked the defendant down and kicked

him when he was on his way back to his trailer, Buckliew testified that the defendant



                                           7
came to the victim’s door two times, and the second time, he shot Ryan who was

unarmed and nonthreatening.         Even if the attack occurred as the defendant

contends, the jury could conclude that sufficient time had passed for the

defendant’s passion to cool. The testimony of everyone who was present that night

confirms that the defendant was convinced that the victim had maligned his mother.

However, the jury may well have found that even though the defendant sincerely

believed that the victim had insulted his mother, the insult was not sufficient

provocation to justify a killing.



               Second degree murder is the knowing killing of another. Tenn. Code

Ann. § 39-13-210 (1997). In the light most favorable to the state, the proof shows

that the defendant became angry with the victim over an alleged insult. The victim

and another man left the gathering at the Nolan residence and went to the victim’s

trailer. Within a few moments, the defendant knocked on the door and asked the

victim why he had insulted his mother. The victim told him he considered the

defendant’s mother to be his own and that the defendant should go home and get

some sleep. In his statement to the police, the defendant admitted that he went to

his trailer to retrieve his shotgun. When the victim cracked open the door in

response to the defendant’s second knock, the defendant fired the weapon. The

evidence is sufficient for a rational jury to conclude beyond a reasonable doubt that

the defendant knowingly killed Roger Ryan.4


       4
               The defendant does not argue that due to his high degree of
intoxication, he was unable to formulate the intent to kill another “knowingly.”
We note that although the defendant’s blood alcohol level two hours after the
shooting was .28 grams per cent, both state and defense expert witnesses
agreed that experienced drinkers are able to function even when their blood
alcohol level is extremely high. The jury had these facts before them on which to
base their conclusions, and they concluded that the defendant was capable of
committing a knowing killing. Whether a defendant is too intoxicated to form the
requisite mental state is a question for the jury to determine as the sole trier of
fact. State v. Howard, 926 S.W.2d 579, 584 (Tenn. Crim. App. 1996); State v.
Brooks, 909 S.W.2d 854, 859 (Tenn. Crim. App. 1995). This court does not
evaluate or reweigh the evidence. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). We must affirm a conviction if there is evidence in the record
from which a rational juror could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S. Ct.
2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R.
App. P. 13(e).

                                          8
                  III. Suppression of Defendant’s Statements

              The defendant argues that the trial court should have suppressed his

two statements to the police because they were given involuntarily while he was in

a high state of intoxication and without an intelligent waiver of his rights. The state

contends that intoxication does not invalidate a confession if the accused is capable

of understanding and waiving his rights. We find that the evidence in the record

does not preponderate against the trial court’s finding that despite the defendant’s

high blood alcohol content, the defendant was coherent and responsive during

questioning and that he gave a voluntary, knowing and intelligent statement to the

police.



              A waiver of constitutional rights must be made “voluntarily, knowingly,

and intelligently” to be valid. Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602,

1628 (1966).      The state has the burden of showing voluntariness by a

preponderance of the evidence. State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980).

The totality of the circumstances surrounding the interrogation must reveal both an

uncoerced choice and the required level of comprehension. State v. Stephenson,

878 S.W.2d 530. 544-545 (Tenn. 1994).



              Before an accused is entitled to have his statement suppressed

because he was under the influence of alcohol or other drugs, the accused must

establish that the statement cannot be considered the product of a free mind and

rational intellect. State v. Leonard Lebron Ross, No. 03C01-9404-CR-00153, slip

op. at 7 (Tenn. Crim. App., Knoxville, Apr. 10, 1996); State v. Teeters, No. 02C01-

9304-CC-00051, slip op. at 4-5 (Tenn. Crim. App., Jackson, Feb. 2, 1994); State v.

Michael Abernathy, No. 03C01-9111-CR-00372, slip op. at 13 (Tenn. Crim. App.,

Knoxville, Oct. 2, 1992), perm. app. denied (Tenn. 1992) ; see State v. Robinson,

622 S.W.2d 62, 67 (Tenn. Crim. App. 1980); Bram v. United States, 168 U.S. 532,

18 S. Ct. 183, (1897). Generally, if the accused is capable of giving a narrative of




                                          9
past events and relating his role in the commission of the crime, the statement is

admissible even though the accused was under the influence of alcohol when he

made the statement. Leonard Lebron Ross, slip op. at 7; Larry Thomas Teeters,

slip op. at 5; Michael Abernathy, slip op. at 13.



              A trial court’s findings of fact at the conclusion of a hearing on the

merits of a motion to suppress have the weight of a jury verdict. State v. Aucoin,

756 S.W.2d 705, 710 (Tenn. Crim. App. 1988). Those findings are presumptively

correct on appeal and are binding on this court unless the evidence in the record

preponderates against them. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn.

1994); State v. Woods, 806 S.W.2d 205, 208 (Tenn. 1990).



              In this case, the trial court found that when the police arrived at the

scene at approximately 9:00 p.m, the defendant was highly intoxicated. He could

not stand or walk unaided and was very emotional. Although the deputies asked

him no questions, he made a number of incriminating statements. The trial court

suppressed these statements finding that the defendant was incapable of giving a

voluntary, knowing and intelligent waiver of his rights at that time.5 The defendant’s

blood sample taken at approximately 11:15 p.m. indicated a blood alcohol level of

.28 grams percent. An hour later, the police advised the defendant of his miranda

rights and conducted a formal interview. At first the detectives spoke with the

defendant and obtained a brief narrative of the events. Detective Donald Bennett

reduced this conversation to writing. Then, after advising the defendant of his rights

line by line, the detectives again took the defendant through the events of the

evening and recorded the interview on tape. The detectives testified that at this

time the defendant was able to walk normally and that although he cried during the

interview, his demeanor was much less emotional than it had been earlier. The trial

court specifically accredited this testimony. The defendant testified that he did not


       5
              The defendant does not contend that his later confession was
tainted by his earlier involuntary statements. We, therefore, have not addressed
this issue.

                                         10
recall being interrogated or making any statements. The trial judge, after listening

to the tape recorded session and reading Detective Bennett’s account of the earlier

portion of the interview, found that the defendant was coherent and responsive

during the interview. He noted that the two statements were very similar and that

the defendant was capable of creating a logical narrative of past events. In

particular, the trial court found that the defendant had sufficient presence of mind

and coherence of thought to attempt to exculpate himself. The trial court concluded

that the defendant, although intoxicated, was sufficiently aware of what he was

doing to make a voluntary waiver and statement.



              The evidence in the record does not preponderate against the findings

of the trial court. The appellant was properly advised of his rights and was not

coerced. At the hearing, he identified his signature on the waiver as being his

“regular” signature and testified that he was able to read. The statements reveal

that although he at first denied owning a shotgun, he quickly admitted that he shot

the victim. He told the officers that the victim had insulted his mother and that they

fought in the road. After the victim “stomped him hard” and threatened to get his .38

and shoot him, he went home and got his gun. He returned, and when the victim

opened the door, he fired the fatal shot. He insisted that Cindy Nolan was present

in the trailer when he killed the victim who, he said, was acting “crazy.”



              Clearly, many of the defendant’s statements to the police were self-

serving and intended to justify the shooting. At first, he denied owning the shotgun

until he was confronted with the news that his father and brother had identified the

weapon as his. Then he tried to convince the police that he shot the victim in self

defense. He recalled a previous time when he and the victim fought. See State v.

Michael Abernathy, No. 03C01-9111-CR-00372, slip op. at 14 (Tenn. Crim. App.,

Knoxville, Oct. 2, 1992), perm. app. denied, (Tenn. 1992).




                                         11
              Although the defendant sobbed at times during the interview, he was

able to create a narrative of past events and to relate his role in the offense. The

officers testified that despite the smell of alcohol on the defendant’s breath, he was

no longer so incapacitated that he could not understand his rights and waive them

voluntarily. The trial court found the officers’ testimony to be credible. We do not

believe that the evidence preponderates against the trial court’s determination that

he made a knowing, voluntary, and intelligent waiver of his rights.



              We must also conclude that the defendant’s statement was voluntary.

The 40-year-old defendant had completed the ninth grade. The interrogation was

not lengthy. The minor cut to the defendant’s head had been treated at the

hospital, and nothing indicates that the police deprived the defendant of food, sleep,

or medical attention. The police did not coerce or threaten him. Under the totality

of the circumstances, we cannot conclude that the trial court erred in denying the

defendant’s motion to suppress. See State v. Huddleston, 924 S.W.2d 666, 671

(Tenn. 1996).




                              IV. Mitigating Factors



              In his final issue, the defendant argues that the trial court erred in

finding that no mitigating factors existed and in sentencing him to twenty years for

second degree murder. Finding no error, we affirm the trial court’s judgment.



              When an accused challenges 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



                                         12
Ann. § 40-35-401(d)(1997). 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).     In conducting our review, we must consider all the evidence, the

presentence report, the sentencing principles, the enhancing and mitigating factors,

the arguments of counsel, the appellant’s statements, the nature and character of

the offense, and the appellant’s potential for rehabilitation. Tenn. Code Ann. §§ 40-

35-103(5), -210(b) (1997); State v. Ashby, 823 S.W.2d at 169. The defendant has

the burden of demonstrating that the sentence is improper. Id. In the event the

record fails to demonstrate the appropriate consideration by the trial court, appellate

review of the sentence is purely de novo. Id. If our review reflects that the trial

court properly considered all relevant factors and the record adequately supports

its findings of fact, this court must affirm the sentence even if we would have

preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991).



              In making its sentencing determination, the trial court, at the

conclusion of the sentencing hearing, determines the sentencing range, the specific

sentence, and the propriety of imposing a sentence involving an alternative to total

confinement. In this instance, the trial court considered the evidence presented at

trial and the sentencing hearing, the presentence report,          the victim impact

statement, the sentencing principles, and other sentencing considerations. See

Tenn. Code Ann. §§ 40-35-103(5) and 40-35-210(a), (b) (1997); State v. Holland,

860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). Therefore, we review the defendant’s

sentence with a presumption that the trial court’s determination is correct.



              At the conclusion of the sentencing hearing, the trial court found that

the defendant was subject to a Range I sentence of 15 to 25 years. Tenn. Code

Ann. § 40-35-112(a)(1)(1997). As a Class A felon, Tennessee Code Annotated

section 40-35-501(I)(1) requires him to serve 100% of his sentence. Jail credits for



                                          13
good behavior may not reduce his sentence by more than 15%. Tenn. Code Ann.

§ 40-35-501(I)(1), (2) (1997). The presumptive sentence for a Class A felony is the

midpoint of the range. Tenn. Code Ann. § 40-35-210(c) (1997). The sentence may

then be increased by any applicable enhancement factors and reduced in the light

of any applicable mitigating factors. Tenn. Code Ann. § 40-35-210(d),(e) (1997).

The trial court, however, found no enhancement factors and no mitigating factors

and, therefore, sentenced the defendant to serve twenty years in the Department

of Correction.



                The defendant contends that the evidence supports the application of

several mitigating factors. He argues that he acted under strong provocation, that

substantial grounds exist that tend to excuse or justify his criminal conduct, that he

was suffering from a mental or physical condition other than the voluntary use of

intoxicants that significantly reduced his culpability, and that the offense was

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

intent to violate the law motivated his criminal conduct. Tenn. Code Ann. § 40-35-

113(2),(3),(8), and (11) (1997).   The trial court found that there was no evidence

of strong provocation, that voluntary intoxication does not fall within the purview of

the statute, and that chronic intoxication had caused the defendant’s mental

deficiencies.


                The defendant has failed to show that the trial court’s sentence is

improper. The trial court found that no strong provocation or justification for his

conduct existed and that the chronic use of alcohol and its related effect are not

within the purview of the statute. The evidence in the record does not preponderate

against the findings of the trial court. Therefore, we affirm the defendant’s sentence

of twenty years.



                                     Conclusion




                                         14
             We affirm the defendant’s conviction for second degree murder and

his twenty-year sentence as imposed by the trial court.

                                               __________________________
                                               CURWOOD W ITT, Judge

CONCUR:


______________________________,
JOE G. RILEY, Judge


______________________________,
LEE MOORE, Special Judge




                                       15
