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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE JUNE 1998 SESSION

FILED
August 14, 1998 Cecil Crowson, Jr.
Appellate C ourt Clerk

STATE OF TENNESSEE, Appellee,

v.

ALGERNON WILLIE RICE, Appellant.

) ) ) ) ) ) ) ) ) ) )

No. 03C01-9707-CR-00252 Hamilton County Honorable Stephen M. Bevil, Judge (Second degree murder)

For the Appellant: Ardena J. Garth District Public Defender and Richard K. Mabee Assistant Public Defender 701 Cherry Street, Suite 300 Chattanooga, TN 37402 (AT TRIAL) Ardena J. Garth District Public Defender and Donna Robinson Miller Assistant Public Defender 701 Cherry Street, Suite 300 Chattanooga, TN 37402 (ON APPEAL)

For the Appellee: John Knox Walkup Attorney General of Tennessee and Clinton J. Morgan Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 William H. Cox, III District Attorney General and Bates W. Bryan, Jr. Assistant District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge

OPINION

The defendant, Algernon W illie Rice, appeals as of right from his conviction upon a guilty plea in the Hamilton County Criminal Court for second degree murder, a Class A felony. The trial court sentenced the defendant as a Range I, standard offender to twenty years in the Department of Correction. The defendant contends that the trial court erred by applying enhancement factors and by failing to consider mitigating factors. We affirm the judgment of conviction.

This case involves the stabbing death of Amy Simon, an eighty-six-yearold neighbor of the defendant. The defendant was charged with first degree murder, and he entered a guilty plea to second degree murder pursuant to an agreement.

At the sentencing hearing, the defendant testified that he had no prior felony convictions, but he admitted that he had been convicted of assault and battery approximately ten years earlier. The defendant denied his guilt for this prior conviction. He said that he stayed at a mental health facility for thirty days after the commission of the assault and battery. He stated that he had received psychiatric treatment all of his life and that he had to take medicine for a nerve condition. The defendant explained that he was in a wreck that caused brain damage and resulted in nineteen operations. The defendant admitted that he had drug and alcohol problems and that he received treatment for his addictions. Regarding his employment history, the defendant testified that he had tried to work but that he was unable to do so because he suffered from arthritis and back pain. The defendant denied killing the victim, who he described as being like his aunt, and he claimed that he would never hurt anyone. The defendant claimed that he was at the wrong place at the wrong time.

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On cross-examination, the defendant testified that on the night of the offense, he drank some beer and then went to the victim's apartment to tell her to turn her television down because the volume was too loud. He stated that the victim's apartment door was open a little. The defendant said that when he knocked on the door, it opened and he saw the victim lying face down in blood. He testified that he asked two neighbors for help and that one of the neighbors called the ambulance. The defendant testified that he then left with his brother.

The defendant testified that he was questioned on three occasions regarding the victim's death. He said that on the first two occasions, he told the officers that he did not kill the victim. He acknowledged that he told the officers during the first questioning that he had been cutting pork and during the second questioning that he had been cutting chicken. The defendant testified that he confessed when questioned the third time. The defendant testified that he did not stab the victim. The defendant claimed that he lied when he told the officers that he killed the victim because he was intoxicated, medicated and scared. He stated that he told the officers that he had been drinking and taking medication on the night of the offense.

The defendant acknowledged that he gave a statement to police detailing that the victim said, "Oh, my God," when he stabbed her, but he claimed that he concocted the story. He said that he also made up other statements that he told the officers, including that he went back to his apartment, rinsed off the knife, went back to the victim's apartment, and called the police. The defendant asserted that the knife did not have any blood on it. The defendant testified that he did not have an explanation for why he made up the details of the crime.

John Rice, the defendant's brother, testified that he was paralyzed as a result of an accident two years earlier. He stated that the defendant cared for him. He

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said that the defendant had been a good brother to him. He stated that the defendant had mental problems.

The presentence report reflects that the then thirty-seven-year-old defendant graduated from high school and that he was unemployed. It shows that the defendant denied committing the crimes and claimed that he confessed to killing the victim after repeated questioning because he had a bad nervous condition. The report states that the defendant had been treated several times for mental problems resulting from an automobile accident when he was two years old. The report describes the defendant's psychiatric history as extensive. The presentence report states that the defendant's medical records are attached to the report. However, the medical records are not included in the record on appeal. The report reflects that the defendant said that he was in poor health, suffering from arthritis, back problems, and poor nerves. He also reported that he began drinking alcohol at the age of twelve, and he said that he drank as much as a case and a half of beer at a time, even while taking medication. The defendant said that he began using crack cocaine at the age of twenty-seven and that he used it as often as possible, at least three times a week. It states that the investigating officer did not believe that the defendant planned to kill the victim. The presentence report reflects that the defendant had no prior felony convictions but that he had been convicted of a misdemeanor assault and battery in 1987.

At the conclusion of the sentencing hearing, the trial court sentenced the defendant as a Range I, standard offender to twenty years in the Department of Correction. In sentencing the defendant, the court found that the statement given by the defendant to police accurately reflected the events that occurred on the night of the offense. It determined that the defendant's testimony was not truthful. It applied the following enhancement factors pursuant to T.C.A.

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