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COURT OF CRIMINAL APPEALS OF TENNESSEE
June 1, 1999
EXCERPTS FROM THE TRIAL TRANSCRIPT:
STATE OF TENNESSEE VS. * Honorable John H. Gasaway, III, Judge
PAUL CARR MOSS, JR., * (Second degree murder) Appellant. *
OPINION
The defendant, Paul Carr Moss, Jr., was indicted for the first degree murder of his wife, Peggy Ann Moss. He was convicted of second degree murder, a Class A felony. Tenn. Code Ann. § 39-13-210. The trial court imposed a Range sentence of twenty-five years. The defendant was fined $50,000.00.
On the morning of January 14, 1995, Samuel Mattie (Matt) Moss visited the house of his brother, the defendant. At the time of his arrival, none of the defendant’s four children were present and the defendant asked him to return later in the day, explaining that he intended to discuss a divorce with the victim. Upon his return sometime later, he and the defendant built a fire behind the house and then watched television in a nearby workshed. Meanwhile, the defendant walked back and forth from the workshed to the residence several times. On one of those occasions, the defendant took some items from his tool box before returning to the residence. The defendant appeared to be nervous and was sweating.
On his final trip to the workshed, the defendant left the door ajar. Soon afterward, Matt Moss heard a “pop” and, at first, thought the noise was caused by the fire. The defendant checked at the residence and called for his brother, telling him that the victim had shot herself. At that point, Matt Moss called 9-1-1 and heard the defendant kick the bathroom door. At trial, he testified that the “pop” sounded like either homemade fireworks or the defendant’s .45 handgun.
Brian Lee Biggs, a paramedic with the Robertson County EMS, responded to the 9-1-1 call. When he arrived at the scene, a police officer directed him to a first-floor bedroom where he found the victim lying face-up on the floor. Biggs located a gunshot wound to the victim’s left earlobe, determined that she had no pulse, and, due to the devastating nature of her injuries, did not administer CPR.
Detective Donald Bennett of the Robertson County Sheriff’s Department found a .45 caliber semi-automatic pistol, a magazine, one spent cartridge, and one live round of ammunition above and to the right of the victim’s head.
Detective Bennett recalled that on the night of the shooting, Matt Moss appeared upset. He described the defendant as “quite calm” throughout the evening. Over the course of the evening, the detective began to increasingly suspect that the shooting was not a suicide. He questioned the defendant, who claimed that he had discussed divorce with the victim earlier in the day after which she had requested some time to herself. The defendant claimed to the detective that he and his brother were outside talking when they heard a noise and that when he checked, he found that the bedroom and bathroom doors had been locked. The defendant told Detective Bennett that when he called to the victim and received no answer, he punched a hole in the door, unlocked it, and found the victim lying on the floor after which his brother telephoned 9-1-1. The defendant explained that he then saw the .45 caliber pistol, disarmed it, and placed it on the floor.
The defendant told Detective Bennett that he spoke to the 9-1-1 operator and attempted CPR until the authorities arrived. Special Agent Steve Scott of the Tennessee Bureau of Investigation, an expert in the field of firearm examination, identified the .45 caliber semiautomatic pistol taken from the crime scene. He testified that a bullet from the weapon, which holds eight rounds, had caused the death of the victim.
Dr. Charles Warren Harlan, the medical examiner for Robertson County, performed the autopsy and determined the cause of death was a gunshot wound to the head.
Audiotapes of journals maintained by the defendant were played for the jury. Generally, the journals include statements about his financial problems, his marriage, and MM.
At an extensive pretrial hearing, MM testified to incidents of inappropriate sexual conduct by the defendant. Other witnesses testified to additional prior bad acts on the part of the defendant. While the trial court chose to exclude much of the prior bad acts evidence, it ruled that MM’s testimony was probative of motive and intent, “given the theory of the State that this killing … was committed by [the defendant] specifically to receive proceeds of an insurance policy and also to regain access to his daughter, which the State contends he was obsessed with and had a sexual attraction for.”
In calculating the sentence for felony convictions committed before July 1, 1995, the presumptive sentence is the minimum within the range if there are no enhancement or mitigating factors. If there are enhancement factors but no mitigating factors, the trial court may set the sentence above the minimum. A sentence involving both enhancement and mitigating factors requires an assignment of relative weight for the enhancement factors as a means of increasing the sentence.
The 1989 Act was designed to ensure that every sentence is justly deserved in relation to the seriousness of the offense. Fair and consistent treatment is paramount. The potential for rehabilitation or treatment is an important consideration.
At the sentencing hearing, Monica Cano, sister of the victim, testified that she and the defendant had “ill-feelings” because she had confronted him about abusing his children. She believed that the defendant was a poor provider for the family and described him as a “loud, very abrasive” husband who “put [the victim] down a lot.” Ms. Cano thought the defendant to be a “very abusive” father. She testified that the defendant was controlling, manipulative and dangerous.
Richell Fontana, a friend to the victim, had known the victim and the defendant for nine years. She testified that she had observed them together often and she thought that they had a good relationship. She never saw the defendant abuse his children or the victim. She acknowledged, however, that the victim had mentioned obtaining a divorce.
Bradley Wayne Moss, uncle to the defendant, testified that he had seen the defendant interact with his children regularly over the years and thought the defendant to be more focused on teaching them and less focused on control. He recalled that the defendant was a “workaholic” who always worked two jobs.
The defendant, forty-three at the time of sentencing, has a high-school diploma. He attended Tennessee Technical University but did not obtain a degree. He claimed a birth defect in his lower back and reported past marijuana use but maintained he had not used alcohol or illegal drugs since August 1994. At the time of his arrest, the defendant was attending counseling and taking Prozac. He has four children. He had been employed at Sudberry Millwork since August of 1985.
In our view, the two enhancements outweigh considerably any mitigation and warrant a high-range sentence. We begin at fifteen years and apply the enhancement factors. Because the enhancement factors weigh so heavily, a sentence of twenty-five years, the maximum possible, is deemed appropriate. Accordingly, the judgment of the trial court is affirmed.
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Gary R. Wade, Presiding Judge
CONCUR: