            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE             FILED
                             OCTOBER 1998 SESSION
                                                          February 25, 1999

                                                         Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
STATE OF TENNESSEE,             *    C.C.A. No. 03C01-9803-CR-00084

      Appellee,                 *    UNICOI COUNTY

VS.                             *    Honorable Lynn W . Brown, Judge

MARTIN PALMER JONES,            *    (Sentencing)

      Appellant.                *




For Appellant:                       For Appellee:

Julie A. Martin                      John Knox Walkup
Attorney for Appellant               Attorney General and Reporter
P.O. Box 426
Knoxville, TN 37901-0426             Todd R. Kelley
(on appeal)                          Assistant Attorney General
                                     Criminal Justice Division
David F. Bautista                    425 Fifth Avenue, North
District Public Defender             Cordell Hull Building, Second Floor
                                     Nashville, TN 37243
Robert Oaks
and                                  David Crockett
Deborah Huskins                      District Attorney General
Assistant Public Defenders
142 East Market Street               Lisa Nidiffer
Johnson City, TN 37605               Assistant District Attorney General
(at trial)                           Johnson City, TN 37601




OPINION FILED:__________________


AFFIRMED


GARY R. WADE, PRESIDING JUDGE
                                               OPINION

                  The defendant, Martin Palmer Jones, entered best interest pleas of

guilt to two counts of felony murder and received sentences of life with the possibility

of parole.1 The trial court ordered the sentences to be served consecutively. In this

appeal of right, the defendant argues that the trial court erred by imposing

consecutive sentences in the absence of any aggravating circumstances. W e affirm

the judgment of the trial court.



                  On October 10, 1996, the fifteen-year-old defendant admitted in a

taped interview with TBI special agent Shannon Morton, that on the previous day he

had shot and killed the victims, John Harder and Marsena Ratliff. Only days earlier,

he had stolen a car from a local college and burglarized a residence, stealing

several guns. Armed with a .22 caliber rifle, he had driven up Unaka Mountain

intending to cross into North Carolina. As he neared the top of the mountain, he

recalled having passed an automobile parked at a scenic overlook. Deciding that he

needed money, the defendant parked a short distance from the overlook and walked

toward the victims intending to commit a robbery. When he saw the defendant

approach, Harder asked for assistance in jump starting his car. The defendant did

not reply and, without any warning, shot Harder once in the head. The defendant

confessed that he shot Harder twice more because "he didn't look like he was dead

... I didn't want him to suffer." At that point, the defendant shot Ms. Ratliff, who had

attempted to flee. He told officers that the weapon had to be cocked before each

shot. After taking a dollar from Harder's pocket and ten dollars from Ms. Ratliff's

purse, the defendant drug Harder's body a short distance. He denied having

undressed Ms. Ratliff, sexually accosting her, or moving her body. While driving

down the mountain, the defendant wrecked the stolen car. He then fled on foot to a


       1
           See North Carolina v. Alford, 400 U.S. 25 (1970).

                                                    2
trailer where he was later taken into custody by North Carolina authorities. Shortly

after his arrest, the defendant provided a similar statement to Chris Buchanan, chief

detective with the sheriff's department of Mitchell County, North Carolina.



              At the submission hearing on the Alford plea, the defendant denied

killing the victims. He explained that he confessed to the killings only because an

officer had informed him that "all the evidence was pointing towards me and it would

be the best thing to do." He testified that he had stolen a car and driven to Unaka

Mountain, where he parked and then walked to a waterfall. He claimed that

someone stole his car during his absence and further stated as follows:

              I walked up the mountain and that's when I found the car.
              ... I wasn't aware the people were even dead at that time.
              And when I got to the car, when I looked over, and that's
              when I seen the people. And I got scared and I didn't
              want to be there so I got back in the car and I didn't see
              nobody around. ... [T]here was a .22 rifle laying beside
              the bodies when I walked up on them. ... I picked it up
              and put it in the car and drove on....

The defendant admitted that when he was taken into custody he had a .22 caliber

weapon in his possession, Harder's driver's license, a ten dollar bill, and a one dollar

bill.



              TBI Agent Shannon Morton testified that on October 9, 1996, he

responded to a call concerning a double homicide on Unaka Mountain. Upon arrival

at the scene, he found the body of a woman near the front of a white automobile.

She had been shot in the head several times and her clothing had been partially

removed. He found the male victim, who had been shot several times in the head,

located in the woods nearby. The body appeared to have been dragged from the

parking lot. Shortly after his arrival, Agent Morton learned that an automobile had

been wrecked about five miles from the murder scene on the North Carolina side of

the mountain. Two hunters had informed officials that they had come upon the

                                           3
wreck and talked with a young man, the description of whom matched the

defendant. The hunters saw the defendant hiding weapons and other items in a

wooded area. Officers established roadblocks and, later that evening, the

defendant was apprehended and taken to the Mitchell County Sheriff's Department

for questioning. When defendant's parents arrived, Agent Morton informed the

defendant of his rights and recorded his statement. Agent Morton testified that the

physical evidence found at the crime scene was consistent with the defendant's

statement.



              In accepting the plea, the trial court determined that Agent Morton's

testimony established sufficient facts to constitute the offense. The trial court

characterized the defendant's testimony as "absolutely incomprehensible" and

determined that the defendant was guilty as charged.



              At a subsequent sentencing hearing, Agent Morton testified that the

murder weapon was a bolt action .22 caliber rifle which had been recovered from

the defendant's wrecked vehicle. These facts were consistent with the defendant's

pretrial statements. The officer also related that he had interviewed witnesses who

had seen the defendant on Unaka Mountain on the day before the murders. Other

witnesses had observed the defendant in the possession of a weapon near the

murder scene only forty minutes or so prior to the shootings.



              The autopsy reports indicated that Harder was shot twice in the head

and three times in the body. Ms. Ratliff sustained three gunshot wounds to the

head.



              Kitty Mendez Ratliff, mother of the victim Marsena Ratliff, testified that


                                           4
the death of her daughter was devastating for her and her husband. Linda Harder,

mother of the victim John Harder, and Christy Harder, his wife, testified to the gravity

of their loss.



                 Scott Wayne Verran, a teacher in Happy Valley High School in Carter

County, testified that the defendant had been his student for six weeks. He

described the defendant as quiet, withdrawn, and having average intelligence.

David Allen Hughes, also a teacher at the high school, described the defendant as a

somewhat interested, adequate student who did not pose disciplinary problems.

Both teachers, however, confirmed that the defendant had a problem with truancy.

Claudette Bennett, who had taught the defendant during elementary school,

remembered him as a good student. School librarian Cheryl White characterized

him as a quiet, average student. Holly Johnson, the fifth grade teacher of the

defendant, remembered him as a pleasant, friendly child who was not disruptive.

Rhonda Delfth remembered the defendant as non-violent and possessing average

intelligence.



                 Ralph Sparks, an administrator for the Upper East Tennessee

Regional Juvenile Detention Center, where the defendant was housed, described

the defendant as non-violent and unusually cooperative. Sam Kerns, a jail

supervisor of the Unicoi County Sheriff's Department where the defendant had been

in solitary confinement, described the defendant as "a model prisoner" who was

non-violent, courteous, neat and clean. Sam Garland, a friend of the defendant's

family who had known the defendant all his life, testified that the defendant had

been a polite child with very supportive parents.



                 Pauline Edmondson, in custody of the defendant from the age of three


                                            5
months, adopted him when he was ten years old. She described her son as quiet,

shy, independent, and non-violent. She stated that he had attended church most of

his life. Ms. Edmondson, who could not identify any event that might have prompted

the defendant to runaway, confirmed that her son had stolen a car later used in the

murders and had been involved in a burglary. She expressed the belief that her son

had not committed the killings because he had falsely admitted to acts in the past.

Ms. Edmondson thought the case had not been adequately investigated.



              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 (Tenn. 1994). The Sentencing Commission

Comments provide that 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, 863 (Tenn. Crim. App. 1987). The record in

this case demonstrates that the trial court made adequate findings of fact.




                                           6
                 Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the

court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution:

                 [C]onsecutive sentences should not routinely be imposed
                 . . . and . . . the aggregate maximum of consecutive
                 terms must be reasonably related to the severity of the
                 offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the

cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,

the codification of the holdings in Gray and Taylor; consecutive sentences may be

imposed in the discretion of the trial court only upon a determination that one or

more of the following criteria2 exist:

                 (1) The defendant is a professional criminal who has
                 knowingly devoted himself to criminal acts as a major
                 source of livelihood;

                 (2) The defendant is an offender whose record of
                 criminal activity is extensive;

                 (3) The defendant is a dangerous mentally abnormal
                 person so declared by a competent psychiatrist who
                 concludes as a result of an investigation prior to
                 sentencing that the defendant's criminal conduct has
                 been characterized by a pattern of repetitive or
                 compulsive behavior with heedless indifference to
                 consequences;

                 (4) The defendant is a dangerous offender whose
                 behavior indicates little or no regard for human life, and
                 no hesitation about committing a crime in which the risk
                 to human life is high;

        2
           The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.

                                                      7
              (5) The defendant is convicted of two (2) or more
              statutory offenses involving sexual abuse of a minor with
              consideration of the aggravating circumstances arising
              from the relationship between the defendant and victim
              or victims, the time span of defendant's undetected
              sexual activity, the nature and scope of the sexual acts
              and the extent of the residual, physical and mental
              damage to the victim or victims;

              (6) The defendant is sentenced for an offense
              committed while on probation;

              (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



              In Gray, our supreme court ruled that before consecutive sentencing

could be imposed upon the dangerous offender, as now defined by subsection

(b)(4) in the statute, other conditions must be present: (a) that the crimes involved

aggravating circumstances; (b) that consecutive sentences are a necessary means

to protect the public from the defendant; and (c) that the term reasonably relates to

the severity of the offenses.



              In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high

court reaffirmed those principles, holding that consecutive sentences cannot be

required of the dangerous offender "unless the terms reasonably relate[] to the

severity of the offenses committed and are necessary in order to protect the public

(society) from further criminal acts by those persons who resort to aggravated

criminal conduct." The Wilkerson decision, which modified somewhat the strict

factual guidelines for consecutive sentencing adopted in State v. Woods, 814

S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human

process that neither can nor should be reduced to a set of fixed and mechanical

rules." Wilkerson, 905 S.W.2d at 938.




                                          8
              The trial court based the imposition of consecutive sentences upon the

classification of the defendant as a dangerous offender. Tenn. Code Ann. § 40-35-

115(b)(4). It concluded that the defendant had been untruthful in his testimony and

was remorseless for his crimes. The trial court also determined that the record

supported the conclusion that the defendant demonstrated little or no regard for

human life and had no hesitation about committing a crime in which the risk to

human life was high: "[the defendant] armed himself. He planned a robbery. And,

then he decided to kill. ... [H]e placed a greater value on the[ir] money ... than he did

on their lives. So, there is no doubt that he is a dangerous offender." Furthermore,

the trial court determined that the circumstances surrounding the offenses were

aggravated:

              This involved the use of ... a bolt action firearm, a rifle
              that took time to operate. The bolt has to be moved
              before it will fire again. ... [H]e gave absolutely no
              warning ... He just starts shooting him, doesn't ask him
              for money. ... After he shoots Mr. Harder, Ms. Ratliff
              hollers and then starts running. And, as she is
              attempting to flee he shoots her. There is not heat of
              passion, no indication of any mental disturbance. This
              was not only felony murder ... it was also a premeditated
              murder. ... There was a conscious choice that he made
              to kill these people ....



              Next, the trial court addressed the defendant's potential for

rehabilitation, which was characterized as "extremely poor." The trial court

concluded as follows:

              [T]ake a look at those pictures and see what he did to
              each of those individuals, and then wonder how could
              somebody go through their pockets. His confession says
              he turned Ms. Ratliff over and went through her pockets,
              and her face ... is full of bullet holes. There's no
              indication that he's struck then ... or ... now, or at all ... as
              to the horror of what he did. ... I can't understand
              someone who is absolutely cold. ... He's just sitting there
              calmly now ... as if ... he's watching a television program,
              and that's the way ... it's been the whole time. For
              rehabilitation to occur, [one] has to acknowledge what
              [one has] done. The first step ... is honesty ... and we

                                             9
             don't have it ... and that's a key to his ... potential for
             rehabilitation. ... There is no expression of regret .... No
             apology ... absolutely no remorse.



             The trial court also determined that the aggregate length of

consecutive life sentences reasonably related to the severity of the offenses and

that due to the severity of the crimes, the public needed to be protected from the

defendant. After determining that the defendant had no potential for rehabilitation,

the trial court stated that the defendant would be "as much of a danger at age sixty-

five ... as he was on that mountain ...." While considering the defendant's youth, the

trial court ruled that lack of substantial judgment on the part of the defendant was

not demonstrated by the proof and that consecutive sentences were justly deserved

due to the seriousness of the offenses and necessary to avoid depreciating the very

serious nature of these offenses.



             In our view, the extensive findings by the trial court are supported by

the record. The defendant showed no regard for human life and, by his own pretrial

confessions, had absolutely no hesitation in shooting the defenseless victims. The

explanation that multiple gunshots were motivated by mercy for the suffering of the

victims is not credible. There were several aggravating circumstances: the

defendant shot without warning and without provocation; the defendant had a prior

criminal history, having stolen cars and burglarized a residence only days before the

shootings; the defendant exhibited a lack of remorse and has refused to accept

responsibility for his crimes. His lack of candor is evident. Because the defendant

does not appear to be amenable to rehabilitation, the imposition of consecutive

sentences may be necessary to protect the public from the possibility of future

criminal conduct. The consecutive sentences are reasonably related to the gravity

of the crimes.


                                          10
          Accordingly, we affirm the judgment of the trial court.



                                             _____________________________
                                             Gary R. Wade, Presiding Judge

CONCUR:



________________________________
David H. Welles, Judge



________________________________
Thomas T. W oodall, Judge




                                      11
