State of Tennessee v. Deon Larkins ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 9, 2005 Session
STATE OF TENNESSEE v. DEON LARKINS
Direct Appeal from the Criminal Court for Davidson County
No. 2003-C-1895 J. Randall Wyatt, Jr., Judge
No. M2004-02451-CCA-R3-CD - Filed October 12, 2005
The appellant, Deon Larkins, was convicted by a jury of carjacking. As a result, the trial court
sentenced the appellant to twelve (12) years. On appeal, the appellant argues: (1) that the trial court
erred in denying his motion to suppress; (2) that the trial court erred in failing to sustain the
objections regarding hearsay; (3) that the trial court erred in denying the motion to dismiss based on
a false warrant; (4) that the trial court should have granted a mistrial because the jury made a
statement that was unfairly prejudicial; (5) that the appellant’s constitutional rights were violated
because of a “second setting” of the jury after the first panel of jurors was dismissed; (6) that the trial
court erred by not “bringing” a material witness to testify; (7) that the evidence was insufficient to
support the appellant’s conviction; and (8) the appellant’s sentence is excessive. After a thorough
review of the evidence, we determine that a number of the appellant’s first six (6) issues are waived
for failure to prepare an adequate record for our review. As to the remaining issues, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed
JERRY L. SMITH , J., delivered the opinion of the court, in which, DAVID G. HAYES and JAMES
CURWOOD WITT , JR., JJ., joined.
Jonathan E. Richardson, Nashville, Tennessee, for the appellant, Deon Larkins.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Michael Rohling, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
On May 14, 2003, Julia Hunter McGinnis, the victim, noticed a burgundy car with a broken
back window in her neighborhood. She had not seen the car before even though she had lived in the
neighborhood for ten (10) years. Some time later that day, Ms. McGinnis drove her Lincoln
Navigator to the Walgreen’s on the corner of Charlotte Pike and White Bridge Road. The Navigator
was equipped with televisions, a stereo and Sprewell wheels that were valued at over $9,000. Ms.
McGinnis’s nephews Palo Talley and Tyrone Talley were passengers in the vehicle. As they traveled
to Walgreen’s, Ms. McGinnis drove behind the burgundy car. Ms. McGinnis was able to get a good
look at the passenger in the vehicle at a stoplight while she was in the right turn lane and the
burgundy car was in the left turn lane.
After arriving at Walgreen’s, Ms. McGinnis and Palo Talley entered the store. Tyrone Talley
remained in the vehicle. After a few minutes, two (2) men jumped into the front seat of the unlocked
car, pointed a .9 mm gun at Tyrone Talley’s head and ordered him to exit the vehicle. Tyrone Talley
immediately ran into the store and reported that the Navigator had been stolen. Ms. McGinnis ran
to the front of the store in time to see the back of her car crossing over the median at White Bridge
Road headed toward the interstate.
Ms. McGinnis called the police. She noticed that the burgundy car was parked in the
Walgreen’s parking lot. Later that evening, Ms. McGinnis received a telephone call reporting that
her car was at the residence of Linda Howard, the owner of the burgundy car. Ms. McGinnis and
Tyrone Talley went to the address. The police entered the residence and brought out several people,
including the appellant. Ms. McGinnis specifically identified the appellant “because the way he had
his hair and all that.” Tyrone Talley also identified the appellant as the carjacker.
Upon a search of the Lincoln Navigator, officers recovered a .9 mm Ruger 295DC semi-
automatic pistol in the floor of the car.
On August 11, 2003, the appellant was indicted on one (1) count of carjacking in violation
of Tennessee Code Annotated section 39-13-404. After a jury trial, the appellant was convicted of
the indicted offense. The trial court sentenced the appellant to twelve (12) years. After the denial
of a motion for new trial, the appellant filed a timely notice of appeal.
Motion to Suppress
First, the appellant complains that the trial court erred in denying his motion to suppress.
Specifically, the appellant claims that the show-up identification was overly suggestive and that the
trial court erroneously denied the motion to suppress the victim’s identification of the appellant. The
State argues that the appellant has waived the issue for failure to include the transcript of the hearing
on the motion to suppress. We agree.
The appellant has the obligation to ensure that the record on appeal is sufficient to allow
meaningful review. State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993). Thus, the failure to
include the transcript of a suppression hearing generally constitutes a waiver of the issue. See Tenn.
R. App. P. 24(b); Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997). When no
transcript is included in the record, this Court must presume that the ruling of the trial court is
correct. See Ballard, 855 S.W.2d at 560-61; State v. Taylor, 669 S.W.2d 694, 699 (Tenn. Crim. App.
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1983). Because the record on appeal does not contain a transcript of the suppression hearing, the
appellant has waived this issue.
Hearsay Testimony
Next, the appellant claims that the trial court erred in failing to sustain the “objections of
defense counsel as to the testimony regarding the absent Ericka House and others who made out of
court statements for the truth as to the matter of the car jacking at issue herein.” The State argues
that the appellant has waived the issue for failure to make appropriate references to the record and
cite authority for his argument.
In support of his argument, the appellant cites to pages 23, 24 and 25 in the trial transcript.
Those portions of the transcript contain testimony by the victim, Ms. McGinnis, describing what she
saw and did when she ran out of the Walgreen’s store after she was informed that her vehicle was
stolen. Later on in the transcript, Ms. McGinnis commented that she “received a phone call back
stating that they may know where my truck is.” At that point, the trial court cautioned Ms. McGinnis
about hearsay, and the rest of her testimony focused on what she saw and did. We have been unable
to locate any portion of the transcript where the State attempted to offer testimony about the
statements of Ericka House.
As noted by the State, this Court requires that, on appeal, a defendant present an argument,
make appropriate references to the record, and cite relevant legal authority in support of his or her
argument. See Tenn. Ct. Crim. App. R. 10(b) (stating that “[i]ssues which are not supported by
argument, citation to authorities, or appropriate references to the record will be treated as waived in
this court”). Additionally, all Tennessee appellate level courts require the appellant’s brief to contain
an argument, citations to authorities, and appropriate references to the record. See Tenn. R. App.
P. 27(a)(7) (requiring the brief of the appellant to contain “[a]n argument, . . . , setting forth the
contentions of the appellant with respect to the issues presented, and the reasons therefor, including
the reasons why the contentions require appellate relief, with citations to the authorities and
appropriate references to the record (which may be quoted verbatim) relied on”). Failure to comply
with these basic rules will ordinarily constitute a waiver of the issue. See Tenn. Ct. Crim. App. R.
10(b); State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000).
In the present case, the appellant makes no citation to authority, save a one sentence recitation
of the definition of hearsay and no citation to the record that corresponds to the bald allegations
contained in his issue. Under these circumstances we decline to review this issue as it is presented.
See State v. Keller, 813 S.W.2d 146, 150 (Tenn. Crim. App. 1991) (stating that “bald assertions
unaccompanied by legal argument or citations to authorities are waived”).
False Warrants Claim
The appellant also argues that Ms. McGinnis and Tyrone Talley gave false statements “with
the intent of misleading the Court to prosecute [the appellant].” Specifically, the appellant contends
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that Ms. McGinnis gave differing descriptions of the appellant to the police, magistrate judge and
to the court during the preliminary hearing. The State argues that the appellant has waived the issue.
At the beginning of the trial, defense counsel made an oral motion to dismiss based upon a
claim that the prosecution was brought on a “false warrant.” The trial court denied the motion,
determining that the issuance of the indictment by the Grand Jury cured any defect that may have
existed in the warrant.
On appeal, the appellant does not make any citations to the record that would substantiate
his allegations. Again, the appellant has the duty to make citation to authority and appropriate
references to the record. See Tenn. R. App. P. 27(a)(7). The appellant has waived this issue.
Moreover, the trial court correctly noted that the indictment cured any issue that may have existed
regarding probable cause. Jones v. State, 332 S.W.2d 662, 667 (Tenn. 1960).
Jury Response to Question
The appellant claims that, in response to defense counsel’s questions during voir dire, the jury
“responded that the defendant had to have done something or else he would not be there in court.”
We have failed to find such response from the jury in the record on appeal. With no more than a
bare assertion, we have no way of reviewing this claim on appeal. See Tenn. Ct. Crim. App. R.
10(b). This issue is waived.
Impaneling of Multiple Juries
The appellant next contends that the trial court dismissed a jury panel “because a witness for
the State did not come to court on the first setting.” The appellant makes no reference to any part
of the record in which this even allegedly occurred, and this Court can find no such dismissal in the
record that was submitted on appeal. The only thing in the record remotely related to the jury
occurred after the trial court noted the State’s request for a continuance while defense counsel was
questioning jurors during voir dire. Ms. McGinnis was ill and could not be in court, and the trial
court stated that “the jury had not been impaneled and sworn, when the Court granted the State a
continuance due to its material witness being too ill to be present in court.” Again, the appellant has
failed to prepare an adequate record for our review. See Tenn. Ct. Crim. App. R. 10(b). This issue
is waived.
Failure to Compel Lisa Howard’s Attendance at Trial
In his sixth issue, the appellant complains that it was “plain and material error for this Court
to decide not [sic] use its power and process to bring this material witness, Linda Howard, to testify
on behalf of Defendant as she was subpoenaed for that purpose.” The appellant makes no citations
to the record and fails to cite any authority for this argument. This issue is waived.
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Sufficiency of the Evidence
The appellant contends that the weight of the evidence was against the verdict. The State
counters that the record demonstrates that the evidence was legally sufficient to convict the appellant.
When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all
conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779.
In the case herein, the appellant was convicted of carjacking. According to Tennessee Code
Annotated section 39-13-404, “‘Carjacking’ is the intentional or knowing taking of a motor vehicle
from the possession of another by use of: (1) A deadly weapon; or (2) Force or intimidation.”
Viewing the evidence in a light most favorable to the State, the evidence of the appellant’s guilt was
overwhelming. Ms. McGinnis saw the appellant in the burgundy car in her neighborhood. She later
saw the appellant riding in the burgundy car while she was on the way to Walgreen’s. Tyrone Talley
was in the Navigator when the appellant jumped in the vehicle, pointed a .9 mm handgun at Mr.
Talley’s head and ordered him out of the car. Both Ms. McGinnis and Tyrone Talley were able to
positively identify the appellant as the perpetrator. Based on these undisputed facts, the evidence
was sufficient to convict the appellant of the crime as indicted.
Sentencing
Lastly, the appellant claims that the enhancement of the appellant’s sentence from eight (8)
years to twelve (12) years violated his Sixth Amendment rights, citing Blakely v. Washington, 542
U.S. 296 (2004). The State counters that the appellant has waived the issue for failure to include the
transcript of the sentencing hearing in the record on appeal. Alternatively, the State argues that the
application of the enhancement factors was proper even if Blakely were applicable to the appellant’s
case.
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While we acknowledge that there is no transcript of the sentencing hearing in the record on
appeal, we choose to address the appellant’s sentencing issue on the merits. Nevertheless, we
determine that the issue has no merit. The Tennessee Supreme Court recently determined that
Blakely did not announce a new rule of law and that “the Tennessee Criminal Sentencing Reform
Act does not authorize a sentencing procedure which violated the Sixth Amendment right to jury
trial.” State v. Gomez, 163 S.W.3d 632, 651 (Tenn. 2005). In Gomez, the court determined that
despite the ability of trial judges to set sentences above the presumptive sentence based on the
finding of enhancement factors neither found by a jury nor admitted by a defendant, Tennessee’s
sentencing structure does not violate the Sixth Amendment and does not conflict with the holdings
of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), United States v. Booker, ___ U.S.
___, 125 S. Ct. 738 (2005), or United States v. FanFan, the case consolidated with Booker, because
“[t]he Reform Act [of Tennessee] authorizes a discretionary, non-mandatory sentencing procedure
and requires trial judges to consider the principles of sentencing and to engage in a qualitative
analysis of enhancement and mitigating factors . . . all of which serve to guide trial judges in
exercising their discretion to select an appropriate sentence within the range set by the Legislature.”
Gomez, 163 S.W.3d at 661. As a result of the decision in Gomez, the appellant’s issue is without
merit.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
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JERRY L. SMITH, JUDGE
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