         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                    AT KNOXVILLE
                              Assigned on Briefs July 25, 2001

                 STATE OF TENNESSEE v. GARLAND GODSEY

                  Appeal from the Criminal Court for Cumberland County
                           No. 4969   Leon C. Burns, Jr., Judge



                                 No. E2000-01944-CCA-R3-CD
                                       December 4, 2001


The defendant was tried and convicted of second degree murder in the Cumberland County Criminal
Court in connection with an aggravated assault of a bar patron who died approximately one month
later. The trial court sentenced the defendant as a violent offender to 25 years incarceration in the
Tennessee Department of Correction. On appeal, the defendant takes issue with the trial court’s
failure to instruct the jury on “diminished capacity” and with the length of the sentence he received.
Based upon our review, we affirm the judgment below.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T. WOODA LL
and ROBERT W. WEDEMEYER , JJ., joined.

Robert L. Marlow, Shelbyville, Tennessee, for the Appellant, Garland Godsey.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
William E. Gibson, District Attorney General; Anthony J. Craighead, Assistant District Attorney
General; and Ben Fann, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

                On August 5, 1997, the defendant, Garland Godsey, brutally and senselessly attacked
Eddie Parsons in the Good Times Bar in Crossville. Parsons was hospitalized with severe head
injuries that rendered him comatose and unable to breathe without a ventilator. Approximately 30
days after the assault, Parsons died in a nursing home without ever having regained consciousness.
The defendant was indicted for premeditated, first degree murder, and following a jury trial he was
convicted of the lesser-included offense of second degree murder. See Tenn. Code Ann. §§ 39-13-
202 (Supp. 2000), 39-13-210 (1997). On February 11, 2000, the trial court sentenced the defendant
as a violent offender to a term of 25 years incarceration. On June 26, 2000, the defendant filed an
untimely motion for new trial. The trial court heard the motion the same day and entered an order
denying the new trial motion on July 18, 2000. An untimely notice of appeal followed on August
8, 2000. Before us, the defendant confesses the jurisdictional impasse but, nevertheless, asks us to
review the sufficiency of the jury instructions and the sentence imposed. Finding no basis to reverse,
we affirm the judgment of the trial court.

                The facts of this case are essentially undisputed and do not require a lengthy
exposition. Numerous patrons of the Good Times Bar witnessed the defendant attack Parsons.
According to the testifying witnesses, Parsons had been at the bar drinking for some time, and by all
accounts, he was very inebriated. The defendant was no stranger himself to alcohol, and by the time
he arrived at the bar, he had consumed approximately one and one-half cases of beer. The defendant
approached Parsons, and an argument ensued about a $40 debt that Parsons owed the defendant.
When the confrontation threatened to become physical, a female patron interceded and separated the
two men. The defendant and Parsons retreated to opposite ends of the bar.

                 The atmosphere in the bar seemingly calmed down, and the defendant told the
bartender to prepare a round of drinks for everyone present. At some point, the defendant and
Parsons resumed their argument by verbally exchanging obscenities and, as described by one
witness, just “mouthing back and forth.” The exchange continued in this fashion until Parsons called
the defendant a “son of a bitch.” The defendant stood and moved toward Parsons. Some witnesses
testified that the defendant walked, and others said that he ran. Nonetheless, when he reached
Parsons, the defendant punched Parsons with his fist with such force that Parsons was catapulted
backwards off his bar stool. Parsons’ head hit the concrete floor.

                The witnesses’ accounts diverge over whether the defendant continued with his fists
to pound Parsons in the head, began kicking Parsons’ lifeless body, or “jumped flat-footed in the air
and stomped him in the face.” There is agreement, however, that during the attack the defendant
grabbed Parsons’ hair and slammed his head repeatedly into the concrete floor. The female patron
who had earlier interceded testified that she tried to pull the defendant off of Parsons. She testified
that she hollered, “You’re killing him.” Eventually, the attack subsided, and the defendant left the
bar.

              The defendant was arrested two or three days later and charged with aggravated
assault. A homicide charge of first degree murder was initiated following Parsons’ death.

                At trial, the defense did not dispute that the defendant attacked Parsons and caused
Parsons’ death; nor did the defense rely on self-defense or pursue an affirmative defense of insanity
at the time of the commission of the offense. Rather, the defense sought to demonstrate through
expert testimony that the defendant suffers from “intermittent explosive disorder” whereby his
capacity to control aggressive impulses is extremely diminished. As a result, the defense argued that
the defendant did not have the mental culpability required for first or second degree murder. The
jury, nonetheless, found the defendant guilty of second degree murder.




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               In his first issue, the defendant claims that the evidence at trial raised the issue of his
diminished capacity such that the trial court had an affirmative responsibility to give an instruction
that a defendant’s diminished mental capacity may negate a culpable mental state required for certain
degrees of homicide. Before we can consider this complaint, the untimely notice of appeal must be
addressed.

                Our jurisdiction is activated by the timely filing of a notice of appeal. Such notice
is required to be filed within 30 days after the entry of the judgment or order from which relief is
sought. Tenn. R. App. P. 4(a). The only refuge that permits appellate review following an untimely
notice of appeal is the authority conferred in criminal cases for this court to waive the timely filing
of the notice of appeal “in the interest of justice.” Id. Although the defendant has not made such
a request, we deem the interests of justice to be better served by waiving the timely filing of the
appeal notice.

                 The defendant did not request an instruction on “diminished capacity” at trial. His
failure to do so constitutes waiver. See State v. Lynn, 924 S.W.2d 892, 898-99 (Tenn. 1996) (alleged
omission in charge must be raised at trial or issue is waived); State v. Cravens, 764 S.W.2d 754
(Tenn. 1989).

                Moreover, Appellate Rule 3(e) provides that

                in all cases tried by a jury, no issue presented for review shall be
                predicated upon error in the admission or exclusion of evidence, jury
                instructions granted or refused, misconduct of jurors, parties, or
                counsel, or other action committed or occurring during the trial of the
                case, or other ground upon which a new trial is sought, unless the
                same was specifically stated in a motion for new trial; otherwise, such
                issues will be treated as waived.

Tenn. R. App. P. 3(e). The untimely filed new trial motion in this case further defeats review of the
“diminished capacity” instruction issue. See State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim.
App. 1989) (untimely new trial motion restricts review to those issues that would result in outright
dismissal of prosecution, such as sufficiency of the evidence). It matters not that the trial court
considered and ultimately ruled on the motion; it lacked jurisdiction over the untimely motion. See
State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997).

                In very rare circumstances, plain errors may be reviewed when “necessary to do
substantial justice.” Tenn. R. Crim. App. 52(b). Pursuant to State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994), five factors should be considered to determine if an error rises to
the level of plain error: (a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused
must have been adversely affected; (d) the accused did not waive the issue for tactical reasons; and
(e) consideration of the error is necessary to do substantial justice. All five factors must be


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established by the record before the existence of plain error is recognized. See State v. Smith, 24
S.W.3d 274, 283 (adopting the Adkisson test for determining when plain error exists).

                In this case, we are convinced that no plain error occurred. The concept of
diminished capacity recognizes that a defendant may offer evidence relevant to show the existence
of a mental condition that could negate the mens rea for the charged offense. Diminished capacity
is not a defense to the commission of a crime. State v. Hall, 958 S.W.2d 679, 688-89 (Tenn. 1997).
The defendant in this case was afforded the widest latitude in the introduction of expert and lay
testimony in an effort to identify and explain how the combination of low serotonin, alcoholism,
brain damage, mental retardation, and intermittent explosive disorder resulted in diminished capacity
to form the culpable mental state of mind for first and second degree murder. In closing arguments,
the defense then relied heavily on that testimony in promoting the position that the defendant did not
“premeditate” the homicide and did not “knowingly” kill Parsons. We have, furthermore, reviewed
the trial court’s charge in this case, and the jury was correctly instructed on the proper mens rea
required for first degree murder and the applicable lesser-included offenses. The trial court, in our
opinion, was not required to separately charge “diminished capacity.” See State v. Grose, 982
S.W.2d 349, 354 (Tenn. Crim. App. 1997) (no particular additional jury instruction on diminished
capacity necessary where defendant introduced proof of his diminished mental abilities and jury was
instructed on proper mens rea required for first degree murder). Because the failure to instruct does
not breach a clear and unequivocal rule of law, plain error is not indicated.

               The defendant’s other complaint on appeal, regarding an excessive sentence, is that
the evidence did not support application of enhancement factor (5) that the victim was treated with
exceptional cruelty and that mitigating factors, such as his diminished capacity, were not considered.
The defendant does not advocate what sentence he regards as appropriate.

                Unlike jury instruction issues, sentencing issues are not required to be raised in a new
trial motion to secure review at a later time on appeal. See State v. Patterson, 966 S.W.2d 435, 440
(Tenn. Crim. App. 1997). Therefore, review in this case hinges upon what effect is given to the
untimely filed notice of appeal. Although the defendant has not requested that we waive the
untimely filing, we elect to do so in the interest of justice to review the propriety of the defendant’s
25-year sentence.

               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 of the record with a presumption that the
determinations made by the trial court are correct. Tenn. Code 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). “The burden of showing that the sentence is improper is upon the
appellant.” Id. In the event the record fails to demonstrate the required consideration by the trial
court, review of the sentence is purely de novo. Id. If appellate review reflects that the trial court
properly considered all relevant factors and if its findings of fact are adequately supported by the



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record, 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).

                Our review of the sentencing hearing convinces us that the trial court followed the
appropriate sentencing procedure, imposed a lawful sentence after considering and weighing the
factors and principles of sentencing, and made findings of fact that are adequately supported by the
record. The trial court’s determinations are, therefore, entitled to a presumption of correctness.

                 At sentencing, the trial court found and applied three enhancement factors. The
defendant does not challenge application of enhancement factor (1) that he has a previous history
of criminal convictions, Tenn. Code Ann. § 40-35-114(1) (Supp. 2000), or enhancement factor (8)
that he has a previous history of unwillingness to comply with the conditions of a sentence involving
release in the community, id. § 40-35-114(8). The defendant does dispute and deny that he treated
Parsons with “exceptional cruelty” that would justify application of enhancement factor (5). Id. §
40-35-114(5).

                 The trial court’s findings in regard to “exceptional cruelty” are thorough and fully
support application of enhancement factor (5). The trial court emphasized that Parsons posed no
threat after he was knocked to the ground, but the defendant continued his vicious attack. “[M]aybe
one bashing of the head,” the trial court observed, “would not be exceptional cruelty, but here, with
three or more bashings into the concrete . . . I think that fits as exceptional cruelty in the commission
of the offense.” We agree with the trial court’s assessment. See State v. Alexander, 957 S.W.2d 1,
6 (Tenn. Crim. App. 1997) (vicious attack justified finding of exceptional cruelty).

                As for mitigating factors, we disagree with the defendant that the trial court failed to
consider his “diminished capacity” and his potential for treatment. The trial court acknowledged that
there was “strong evidence” about the defendant’s various disorders, but it did not “believe that it
is significant enough to reduce it from the weight of the enhancing factors.” The trial court also
believed that the jury had already taken the expert testimony into consideration in rejecting first
degree murder. It is by now elementary that the weight to be assigned to enhancement and
mitigating factors presented at sentencing is within the discretion of the trial court. State v. Moss,
727 S.W.2d 229, 238 (Tenn. 1986); State v. Shropshire, 874 S.W.2d 634, 642 (Tenn. Crim. App.
1993). The trial court in our opinion did not abuse its discretion. Similarly, there is no hard and fast
rule as to affording “double credit” for a mitigating factor when a conviction of a lesser-included
offense indicates that consideration was given by the jury to the same mitigating sentencing factor.
See State v. Manolito Jemison, No. M1999-00752-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App.,
Nashville, Nov. 22, 2000) (jury’s verdict “may” render mitigating factor inappropriate for further
consideration in sentencing, but no automatic prohibition against giving “double credit” applies).
Again, it is a matter of discretion. We have previously observed that there is no per se prohibition
against "double mitigation" of a sentence by applying a mitigating factor even though the jury has
extended leniency to the defendant on the same basis; however, "double mitigation" is inappropriate
if additional consideration of the relevant facts is not merited. See State v. Samuel D. Braden, No.
01C01-9610-CC-00457, slip op. at 12 (Tenn. Crim. App., Nashville, Feb. 18, 1998). The trial court


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did not believe that additional consideration was merited, and we see no basis to disturb that
conclusion or the imposition of a 25-year sentence

                The defendant, we conclude, is not entitled to relief on either claim that he has raised
in this appeal. The conviction and sentence are affirmed.



                                        __________________________________________
                                        JAMES CURWOOD WITT, JR., JUDGE




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