        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE

                       JANUARY 1995 SESSION



STATE OF TENNESSEE,        *   C.C.A.# 01C01-9406-CC-00204

          APPELLEE,        *   DICKSON COUNTY


                                                 FILED
VS.                        *   Hon. Leonard Martin, Judge

PAUL GALBREATH,            *   (Voluntary Manslaughter)

          APPELLANT.       *                     September 1, 1995

                                                 Cecil Crowson, Jr.
                                                Appellate Court Clerk
For the Appellant:               For the Appellee:

Shipp R. Weems                   Charles W. Burson
District Public Defender         Attorney General and Reporter

Carey J. Thompson                Clinton J. Morgan
Ass't Dist. Public Defender      Counsel for the State
P.O. Box 160                     450 James Robertson Parkway
Charlotte, TN 37036              Nashville, TN 37243-0493

                                 Robert Wilson
                                 Ass't District Attorney
                                 P.O. Box 580
                                 Charlotte, TN 37036




OPINION FILED:




AFFIRMED, SENTENCE MODIFIED




Gary R. Wade, Judge
                              OPINION

          The defendant, Paul Galbreath, indicted for second

degree murder, was convicted of voluntary manslaughter.     The

trial court imposed a Range I sentence of six years.



          In this appeal, the defendant challenges the

sufficiency of the evidence and presents the following issues

for our review:

          (1) whether the trial court erred by
          allowing the admission of certain
          photographs into evidence; and

          (2) whether the sentence was excessive.


          We affirm the judgment; the sentence is modified to

five years.



          On March 13, 1993, the defendant shot and killed the

victim, Randall Dailey, Jr.    The two had been friends for

sometime and on the day of the shooting had spent most of the

day together looking for automotive parts.     Afterwards, the

two men returned to the victim's residence, which he shared

with Pam Lemoine, a cousin to the defendant.     Later in the

evening, the victim became angry when he thought the defendant

had "messed with" his .357 Magnum and pointed a rifle at the

defendant's head.   Thereafter, the disagreement escalated and

the defendant threatened to kill the victim.     Sometime even

later, the two men walked outside.      A shot was fired and the

victim fell. Ms. Lemoine called 911, but rescue personnel were

unable to save the victim.



          At trial, Ms. Lemoine testified that she and her two

                                 2
children from a prior marriage had just moved into the house

they intended to share with the victim.    The defendant and his

friend, Butch Winters, had helped with the move.    On the day

of the murder, Ms. Lemoine had picked up the victim's two

daughters, who planned to spend the night.    Winters was also

present.   Although the evening was very cold, the group

grilled pork chops outdoors because the gas line for their

stove had not been connected.    The men were drinking, but Ms.

Lemoine testified that she did not believe any of them were

drunk.   Late in the evening, the victim noticed that his .357

was not in its holster, which had been hung on the wall.        He

retrieved his .22 caliber rifle, pointed it at the defendant,

and warned that "nobody messed with his guns."    Although the

defendant did not have the .357 in his hands, it lay on a

shelf in front of his chair.    As the victim walked to his

bedroom, the defendant promptly returned the gun to its

holster.



           Ms. Lemoine testified that she was not alarmed

because the victim and the defendant had playfully pointed

guns at each other on prior occasions.    She became concerned,

however, when the victim admitted that he had been angry with

the defendant and felt badly about pointing the gun.      Ms.

Lemoine described the victim, who had a severe headache, as

crying and "very emotional."    When she gave the victim

prescription headache medicine, he complained that two pills

were not enough and angrily knocked the bottle out of her hand

when she refused to give him more.    The children were

apparently upsetting the victim.    Ms. Lemoine's son, who was


                                3
crying, had hurt himself and the victim's two daughters had

apparently changed their minds about spending the night.      Ms.

Lemoine testified that she loaded the children into the car,

realized that she did not have her keys, and went back to the

residence.    Upon her return, the victim, again angry, told her

that he had changed his mind and decided that the children

should eat before they left.



             After she had finished cooking, Ms. Lemoine went

back into the bedroom to talk to the victim, who said he

wanted to talk to the defendant.      Ms. Lemoine testified that

the defendant, who appeared to be holding something behind his

back, entered the bedroom.    She heard the victim apologize for

pointing the gun and the defendant reply, "I could kill you."

The victim then said to go ahead that he had wanted to die

earlier that day anyway.



             Ms. Lemoine next saw the defendant and victim

together as she looked out to the deck through the sliding

glass door.    She saw the defendant point a gun at the victim,

who had his head down, heard a shot, and then saw the victim

fall.   When she went outside, the defendant claimed that the

victim had just been "nicked."       Ms. Lemoine observed, however,

that the victim was seriously injured and called 911.



             At that point, the defendant went back inside, sat

quietly at the bar, and directed Winters to take his pistol to

his truck and leave.    The truck did not start, however, and

Winters returned to the residence.      The defendant then placed


                                 4
his gun on the bar and said, "there wasn't nothing to do now

but wait."



             Heather Dailey, the victim's oldest daughter,

remembered that her father had a severe headache on the day of

the shooting.    She saw the victim point his gun at the

defendant and sensed that the victim was angry.    She did not

realize her father had been shot until so informed by Ms.

Lemoine.



             Winters testified that he had been out drinking with

the victim and the defendant on the day of the murder.       During

the course of the afternoon, there had been some discussion

between the defendant and the victim about the victim pointing

a gun at Winters, but Winters stated that their conversation

was not tense.    However, upon returning to the residence, the

victim became agitated and pointed his .357 Magnum at Winters,

who covered his head and retreated into the hallway without

further incident.    Winters also observed the victim hit and

kick a punching bag so viciously as to cause the victim's

younger daughter to cry.    Thereafter, when the victim had left

for his bedroom, Winters asked the defendant to unload the

.357 before the victim aimed it at someone else.    The victim,

however, returned before the defendant could do so and angrily

pointed his rifle at the defendant when he noticed that the

.357 had been removed from its holster.



             Later, Winters went to the truck and got the

defendant's gun.    He then went into the bedroom where the


                                 5
children were watching television.   At that point, Winters

walked out of the bedroom and overheard the victim "hollering"

at the defendant, saying "I'll kill you or you kill me."

Winters saw the victim with his arms in the air and heard a

shot fired.   As the defendant came back inside, Winters

checked on the victim and asked Ms. Lemoine to call 911.



            After the shooting, Winters, who explained that he

had been drinking heavily throughout the evening, had told

officers that the victim and Ms. Lemoine had engaged in a

terrible fight, with the victim swearing and making threats.

He informed the investigating officers that the victim had

wanted to do some target shooting and yelled, "I'll kill you,"

just before he was shot.



            Charles Seay, Jr., with the Dickson County Ambulance

Service, arrived to find the victim lying on a walkway

attached to the deck.   He was not breathing, but was briefly

revived.   Seay observed a large knife or machete to the right

of the victim's head.



            Donald Shirley, a Dickson County Sheriff's

Department officer, helped emergency personnel tend to the

victim.    He then placed the defendant in his police car, read

him his rights, and eventually transported him to the police

station.



            Officers John Bowlerjack and Debbie Jones

Bowlerjack, also with the Dickson County Sheriff's Department,


                                6
secured the inside of the residence until detectives arrived.

John Bowlerjack spoke with the defendant first, describing his

attitude as "nonchalant."   The defendant told him that he and

the victim had been target shooting and that, just as he

pulled the trigger, the victim jumped into the path of the

bullet.    Winters also spoke briefly with John Bowlerjack,

corroborating the defendant's claim that he and the victim

were target shooting, but adding that the two men had been

arguing.   The two officers then found several guns in the

residence and a long knife hanging on the wall behind the bar.



            Dickson County Detectives Randy Starkey and Wayne

Heflin took two statements from the defendant.   In those

statements, the defendant claimed that the victim had never

appeared angry during the course of the day, had asked him to

target shoot outside, and had jumped into the pathway of the

first shot.   The defendant could not explain the actions of

the victim and did not know why the machete was on the deck.



            Robert Daniel Royce, a TBI forensic examiner,

confirmed that a .44 Remington Magnum belonging to the

defendant had fired the fatal shot.   He determined that the

weapon was one of the loudest and most powerful available.



            Dr. Charles Harlan, Chief Medical Examiner for the

State of Tennessee, performed the autopsy.   He found that a

"tight contact gunshot wound" to the forehead caused the

victim's death.   It was his opinion that the gun had been

pressed against the victim's skull at the time the shot was


                                7
fired.   The victim had a .15 percent blood alcohol level.




           On appeal, the state is entitled to the strongest

legitimate view of the evidence and all inferences which might

be drawn therefrom.    State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978).   The credibility of the witnesses, the weight to

be given their testimony, and the reconciliation of conflicts

in the proof are matters entrusted exclusively to the jury as

triers of fact.   Byrge v. State, 575 S.W.2d 292, 295 (Tenn.

Crim. App. 1978).   When the sufficiency of the evidence is

challenged, the relevant question is whether, after reviewing

the evidence in the light most favorable to the state, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.   State v. Williams,

657 S.W.2d 405, 410 (Tenn. 1983), cert. denied, 465 U.S. 1073

(1984); Tenn. R. App. P. 13(e).



           Although the state claims the sufficiency issue has

been waived on procedural grounds, we chose to address the

merits of the claim.   Voluntary manslaughter is defined as

"the intentional or knowing killing of another in a state of

passion produced by adequate provocation sufficient to lead a

reasonable person to act in an irrational manner."   Tenn. Code

Ann. § 39-13-211(a).



           Here, the defendant admitted that he fired the shot

that killed the victim.   While he claimed that the shooting

was accidental, there was evidence that he and the victim had


                                8
exchanged heated words and that the victim had angrily pointed

a gun at the defendant just a short while before the shooting.

Medical evidence suggested that the defendant's gun was

pressed against the victim's head when fired.



          These were contested facts.    Under such

circumstances, it is the prerogative of the jury to determine

whether the shooting was purposeful or accidental.    Clearly,

there was sufficient evidence to establish each of the

elements of voluntary manslaughter.



                               I

          Next, the defendant contends that the trial court

erred by admitting autopsy photos of the victim, depicting the

gunshot wound to his head.   He claims that the graphic nature

of the photographs was so prejudicial as to outweigh their

probative value.



          The admission of photographs is governed by

Tennessee Rule of Evidence 403.    See State v. Banks, 564

S.W.2d 947 (Tenn. 1978).   To be admissible, the evidence must

be relevant and its probative value must outweigh any

prejudicial effect.   Tenn. R. Evid. 403; State v. Banks, 564

S.W.2d at 950-51.   Whether to admit the photographs is within

the discretionary authority of the trial court;   its ruling

will not be reversed absent a clear showing of an abuse.

State v. Allen, 692 S.W.2d 651 (Tenn. Crim. App. 1985).



          Here, the photographs were especially probative in


                               9
light of the defendant's claim that the shooting was

accidental.   Two eyewitnesses testified that the two men were

several feet apart immediately before the fatal shot.   Dr.

Harlan's autopsy led him to conclude that the gun was held

directly to the victim's head when fired.   Thus, the place and

nature of the gunshot wound were highly probative of guilt.

Moreover, the photographs were not particularly gruesome.

While the entry wound was visible, the forehead remained

intact and very little blood could be seen.   In short, we find

that the trial court properly admitted these photographs into

evidence.



                                II

            The defendant also insists that the trial court

erred by imposing the maximum possible sentence of six years

and argues that it should have suspended the entire sentence.

He submits that neither of the two enhancement factors applied

by the court were applicable and complains that mitigating

factors were given insufficient weight.



            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).   The Sentencing Commission Comments provide that


                                10
the burden is on the defendant to show the impropriety of the

sentence.



            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, and -210; State v. Smith, 735 S.W.2d 859, 862

(Tenn. Crim. App. 1987).



            The defendant argues that Tenn. Code Ann. § 40-35-

114(9), the employment of a firearm during the commission of

the crime, cannot be used to enhance his sentence because it

is an element of the offense of voluntary manslaughter.    This

argument was rejected, however, in State v. David Keith

Daugherty, No. 03C01-9203-CR-00082 (Tenn. Crim. App. at

Knoxville, August 27, 1993), which specifically held that the

use of a firearm was not an essential element of manslaughter.

Consequently, this factor was properly applied.



            The defendant also disputes the applicability of

Tenn. Code Ann. § 40-35-114(16), that the potential for injury

to the victim was particularly great.   We agree.   In

Daugherty, this court held that the factor was an element of

any homicide case and, therefore, could not be considered to


                                11
enhance a sentence.



          The state argues that Tenn. Code Ann. § 40-35-

114(10), that the defendant had no hesitation about committing

a crime when the risk to human life was high, should have been

applied as an enhancement factor by the trial court.     It bases

its claim, for the most part, on the powerful nature of the

defendant's weapon.    In State v. Lambert, 741 S.W.2d 127, 134

(Tenn. Crim. App. 1987), however, this court determined that

this factor was also inherent in any homicide and could not be

used to enhance the defendant's sentence.



          The trial court afforded the defendant some

mitigation because this crime was committed "under such

unusual circumstances that it is unlikely that a sustained

intent to violate the law motivated his conduct."    Tenn. Code

Ann. § 40-35-113(11).    It refused, however, to apply Tenn.

Code Ann. § 40-35-113(2), that "the defendant acted under

strong provocation."    We do not disagree with either

conclusion.



          The defendant was charged with second degree murder.

His conviction of the lesser included offense of voluntary

manslaughter was apparently based upon the jury's conclusion

that he acted under "adequate provocation."    The defendant

claims that the jury verdict warrants application of the

"strong provocation" mitigating factor.    See Tenn. Code Ann. §

40-35-113(2).   There is no prohibition against trial courts

giving a defendant "double credit" in these circumstances.


                                12
Yet, this court has previously ruled that the factor need not

be automatically applied in voluntary manslaughter cases.    See

State v. McKinzie Monroe Black, No. 01C01-9401-CC-00006 (Tenn.

Crim. App. at Nashville, July 14, 1995).   Here, the defendant

had been drinking and "playing with guns."   These factors

contributed to a heated argument, which apparently led the

defendant to shoot the victim at point blank range.     While the

provocation may have been adequate to reduce the degree of the

defendant's culpability, the nature and the circumstances of

this crime do not necessarily demonstrate the kind of "strong

provocation" required to mitigate the sentence.   We,

therefore, defer to the finding made by the trial court.



            As a standard Range I offender, the defendant was

eligible for a sentence ranging between three and six years.

Tenn. Code Ann. § 40-35-112(a)(3).    The trial court properly

applied one enhancement and one mitigating factor, but

improperly applied a second enhancement factor.   That the

defendant employed a firearm in the commission of the crime

carries particularly great weight.    Alcohol and firearms are a

particularly dangerous combination.   That the defendant

handled a firearm in the presence of four children is also a

concern.    The enhancement factor justifies a sentence above

the minimum, but not the absolute maximum.   From our de novo

review of the record and application of the appropriate

mitigating and enhancing factors, we conclude that a sentence

of five years is warranted.   The length of the sentence is so

modified.




                                13
             Among the factors determinative on the issue of

probation are the circumstances of the offense, the

defendant's criminal record, social history, present

condition, his potential for rehabilitation or treatment, and

the deterrent effect upon and best interest of the defendant

and the public.    State v. Grear, 568 S.W.2d 285 (Tenn. 1978);

Stiller v. State, 516 S.W.2d 617, 619-20 (Tenn. 1974).

Especially mitigated or standard offenders convicted of Class

C, D, or E felonies are presumed to be favorable candidates

"for alternative sentencing options in the absence of evidence

to the contrary."    Tenn. Code Ann. § 40-35-102(6).   With

certain statutory exceptions, none of which apply here,

probation must be automatically considered by the trial court

if the sentence imposed is eight years or less.    Tenn. Code

Ann. § 40-35-303(a).    The ultimate burden of establishing

suitability for probation, however, is still upon the

defendant.    Tenn. Code Ann. § 40-35-303(b).



             Alternative sentencing issues must be determined by

the facts and circumstances of the individual case.    State v.

Moss, 727 S.W.2d 229 (Tenn. 1986).    "[E]ach case must be

bottomed upon its own facts."    State v. Taylor, 744 S.W.2d

919, 922 (Tenn. Crim. App. 1987).



             The defendant, who lives with his mother, has no

significant prior criminal history and works sporadically as

an auto mechanic.    His ability to work is limited by a

crippling injury he sustained to his left arm in a motorcycle

accident.    Those factors weigh in favor of a grant of


                                 14
probation.    The death of the victim, however, has

traditionally required a showing of exceptional circumstances

to warrant probation.    State v. Blackwood, 713 S.W.2d 677, 682

(Tenn. Crim. App. 1986).    While the fact that a life was

taken, standing alone, is no longer an adequate basis for

denying probation, see State v. McKinzie Monroe Black, No.

01C01-9401-CC-00006 (Tenn. Crim. App. at Nashville, July 14,

1995), the nature and circumstances of this offense, among

other things, warrants the denial of probation.     The

defendant's social history is not entirely positive.      At

thirty-eight, the defendant should have had the maturity to

appreciate the foolishness of his conduct on the night of the

shooting.    His disregard for the safety of others was blatant

and his casual attitude toward the use of a weapon was

inexcusable.    The grant of probation would clearly depreciate

the seriousness of the offense.



             The conviction is affirmed.   The sentence is

modified to five years.



                                 ______________________________
                                 Gary R. Wade, Judge

CONCUR:




____________________________________
David H. Welles, Judge



____________________________________
William S. Russell, Special Judge




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