State v. Shane Pillow ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1998 SESSION
STATE OF TENNESSEE, )
) NO. 02C01-9707-CC-00243
Appellee, )
) GIBSON COUNTY
VS. )
) HON. DICK JERMAN, JR.,
SHANE PILLOW, ) JUDGE
)
Appellant. ) (Second-Degree Murder and
) Aggravated Assault)
FOR THE APPELLANT: FOR THE APPELLEE:
JERALD M. CAMPBELL, JR. JOHN KNOX WALKUP
-and- Attorney General & Reporter
L. L. HARRELL, JR. 425 Fifth Ave., North
N.W. Court Sq. Nashville, TN 37243-0497
Trenton, TN 38382
ELIZABETH T. RYAN
Asst. Attorney General
425 Fifth Ave., North
Nashville, TN 37243-0493
CLAYBURN L. PEEPLES
District Attorney General
110 College St., Suite 200
Trenton, TN 38382-1841
GARRY G. BROWN
Asst. District Attorney General
110 College St., Suite 200
Trenton, TN 38382-1841
OPINION FILED: ______________________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was convicted of second-degree murder and aggravated
assault. The trial court sentenced him to twenty-three years confinement for second-
degree murder and five years confinement for aggravated assault, to run concurrently.
In this appeal as of right, the defendant presents the following issues for review:
I. whether the evidence contained in the record is insufficient, as a matter
of law, to support his convictions;
II. whether the trial court erred by denying his motion to suppress
statements made to law enforcement officers;
III. whether the trial court abused its discretion by permitting the State to
reopen its case-in-chief to identify the victim’s body;
IV. whether the sentence imposed by the trial court is excessive; and
V. “whether any other reversible error was committed by the trial court.”
Finding no merit in the defendant’s contentions, we affirm.
According to the record, the defendant, Brian Dunn (co-defendant), and the
two victims, Robert Reynolds and Donnie Box, had attended school together. The
defendant described Dunn, Reynolds, and Box as his closest friends. According to the
defendant, he had frequently smoked marijuana and “huffed paint”1 with them.
On March 21, 1996, the defendant, Dunn, Reynolds, and Box had contact
with each other several times during the day. Around 9 a.m., the defendant went to
Reynolds’ home and tried to get him to go somewhere with him, but Reynolds declined.
Later that day, the defendant tried to track down Reynolds at a friend’s house. When
Reynolds returned the defendant’s call, they discussed a set of drums they jointly owned.
Although the drums were at the defendant’s house, the defendant told Reynolds he had
sold them and had Reynolds’ share of the profit. Reynolds told the defendant he and Box
1
“Huffing paint” was described as spraying gold spray paint into a bag and inhaling the vapors in order
to “get high .”
2
would be at the defendant’s house in a few minutes to pick up the money. The defendant
told Reynolds he might not be home when Reynolds and Box arrived, but Reynolds
replied he was coming to his house anyway. When Reynolds and Box arrived, the
defendant would not answer the door. Reynolds and Box drove down the road, only to
return a few minutes later to find the defendant driving out of his driveway. The
defendant promised Reynolds that if he followed him, he would give him his share of the
profit. Reynolds followed him to Dunn’s house, but when he demanded his money, the
defendant refused. Reynolds then left.
When Reynolds later learned the defendant had not sold the drums, he and
Box began searching for him. When they found him and Dunn, Reynolds again
demanded his money. The defendant told Reynolds and Box to follow him to his house.
On the way there, the defendant pulled to the side of the road and tried to get Reynolds
to get in his car. Reynolds would not and instead continued to drive with Box towards the
defendant’s house. When the defendant flashed his lights, Reynolds and Box pulled to
the side of the road. Telling Reynolds he had some money with him, the defendant
enticed Reynolds to get in his car. Meanwhile, Dunn exited the defendant’s car and
began talking with Box. After Reynolds entered the defendant’s car, the defendant
stabbed him in the abdomen, penetrating his liver and bile duct. Reynolds then pinned
the defendant behind the steering wheel, used his elbow to blow the car horn, escaped
from the defendant’s car, and ran to Box’s car. The car horn had alerted Box, who began
walking towards the defendant’s car, even though Reynolds warned against it. The
defendant exited his vehicle and stabbed Box in the middle of his chest. Box turned and
ran away. When Box failed to return, Reynolds drove to a relative’s home where he could
get help.
Meanwhile, the defendant and Dunn had found Box, who was still breathing.
They placed Box in the trunk of the defendant’s car, took him to a bridge spanning the
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Rutherford Fork of the Obion River, and pushed him into the river. The defendant and
Dunn then fled the state of Tennessee. The next day, they surrendered themselves to
law enforcement officers in Indianola, Mississippi, who contacted the Gibson County
Sheriff’s Department in Tennessee. Deputies from the Gibson County Sheriff’s
Department traveled to Indianola with the defendant’s and Dunn’s fathers.
When the Gibson County deputies arrived in Indianola, they examined the
defendant’s car. They found the murder weapon and a larger knife on the front seat of
the car. Blood was found on the back bumper and on a plastic tarpaulin in the trunk. The
defendant gave several statements to Lt. Jimmy Hand of the Gibson County Sheriff’s
Department. He told him that he had stabbed Reynolds. He also admitted stabbing Box,
even though Box did nothing to threaten him. He said that he and Dunn chased Box after
he ran away, and when they found him, he was still breathing. He then identified the
bridge where they pushed Box into the river. Box’s body was later found in the Obion
River near the bridge the defendant identified. The autopsy of Box’s body revealed he
was alive when he was pushed into the river, even though the stab wound penetrated his
heart. The cause of death, however, was attributed to the stab wound, not to drowning.
I.
The defendant first challenges the sufficiency of the evidence with regards
to his conviction for second-degree murder. When an accused challenges the sufficiency
of the convicting evidence, this Court must review the record to determine if the evidence
adduced at trial is sufficient "to support the finding by the trier of fact of guilt beyond a
reasonable doubt." T.R.A.P. 13(e). This Court may not reweigh or reevaluate the
evidence or substitute its inferences for those drawn from circumstantial evidence by the
trier of fact. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). To the
contrary, this Court is required to afford the State the strongest legitimate view of the
evidence contained in the record as well as all reasonable and legitimate inferences
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which may be drawn from the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978).
Questions concerning the credibility of the witnesses, the weight and value
to be given the evidence, and the factual issues raised by the evidence are resolved by
the trier of fact, not this Court. Id. "A guilty verdict by the jury, approved by the trial
judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State." State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
Since a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused, as the appellant, has the burden of illustrating to this
Court why the evidence is insufficient to support the verdict. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). This Court will not disturb a verdict of guilt on a sufficiency
challenge unless the facts in the record are insufficient, as a matter of law, for a rational
trier of fact to find the accused guilty beyond a reasonable doubt. Id.Under the facts of the instant case, the State had to prove beyond a
reasonable doubt that the defendant knowingly killed Box. T.C.A. § 39-13-210. Reynolds
testified that Box and the defendant had met between the two cars. He did not see the
defendant stab Box, but he heard Box exclaim, “Oh, s---, Shane,” and he saw Box run
from the defendant. The defendant admitted in his confession that he had stabbed Box,
even though Box had not threatened or attempted to harm him. The autopsy revealed
the stab wound was in the middle of Box’s chest and the knife penetrated his heart.
Although Box was thrown into the river while he was still alive, the cause of death was the
stab wound.
To contrast, the defendant testified during the trial his confessions were
false and that he and Dunn had agreed to tell three different stories. He also testified
Dunn killed Box. The jury obviously rejected this testimony, which was their prerogative
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in evaluating each witness’s credibility. See Cabbage, 571 S.W.2d at 835. The evidence
was sufficient beyond a reasonable doubt to support the jury’s verdict that the defendant
knowingly killed Box. T.R.A.P. 13(e); Jackson v. Virginia, 443 U.S. 307 (1979).
Therefore, the defendant’s argument is without merit.
II.
Next, the defendant contends the trial court reversibly erred by denying his
motion to suppress three statements made to Gibson County deputy sheriffs. He
predicates his argument upon Tennessee Rules of Juvenile Procedure 7 and 30. He also
argues he did not knowingly and voluntarily waive the rights afforded by Miranda v.
Arizona, 384 U.S. 436 (1966). The State counters that the Tennessee Rules of Juvenile
Procedure are inapplicable here because the defendant was tried as an adult. The State
also contends the defendant knowingly and voluntarily waived his Miranda rights.
The defendant’s reliance upon the Rules of Juvenile Procedure is
misplaced. The Rules of Juvenile Procedure apply to judicial proceedings in a juvenile
court and have no applicability where, as here, the juvenile is transferred to a court of
original jurisdiction with criminal jurisdiction for trial as an adult. See State v. Lundy, 808
S.W.2d 444, 446 (Tenn. 1991); Colyer v. State, 577 S.W.2d 460, 462 (Tenn. 1979); State
v. Turnmire, 762 S.W.2d 893, 896 (Tenn. Crim. App. 1988). Thus, the defendant’s
reliance on the Rules of Juvenile Procedure will not afford him relief on appeal.
Moreover, the record is clear that the defendant knowingly and voluntarily
waived his Miranda rights prior to giving his statements to the police. When determining
whether an accused has voluntarily and knowingly waived the Miranda rights, this Court
must consider the totality of the circumstances existing when the accused waived these
rights. State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992); Lundy, 808 S.W.2d
at 446. This includes the defendant’s age, education, mental competence and ability,
6
and the facts surrounding the waiver of these rights. Benton, 759 S.W.2d 427, 431-32
(Tenn. Crim. App. 1988). No single factor is conclusive; rather, it is the cumulative effect
of these factors that is significant in determining whether the accused voluntarily waived
his rights. Id. at 431.
Here, the day after the incident, Lt. Hand interviewed the defendant in the
sheriff’s department in Indianola. The interview lasted just over two hours, beginning at
9:30 p.m. and ending at 11:35 p.m. Deputy Norvell and the defendant’s father were
present during every interview with the defendant. Lt. Hand advised the defendant of his
Miranda rights. The defendant told Lt. Hand he understood these rights and was willing
to waive them. The defendant and his father signed a waiver of rights form. On several
occasions, Lt. Hand told the defendant he was entitled to a lawyer and that he could stop
answering questions at any time, but the defendant repeatedly stated he did not want to
confer with a lawyer or have a lawyer present. Lt. Hand took a recorded statement from
the defendant and then told the defendant to give a written statement of what occurred.
The defendant complied. Not believing the defendant’s statement, Lt. Hand asked the
defendant if he would give him a third statement. Again, the defendant complied, stating
he would give a truthful statement.
Prior to trial, the defendant moved to suppress these statements. In
denying the defendant’s motion, the trial court noted that the totality of the circumstances
indicated the defendant knowingly and voluntarily waived his constitutional rights and
freely and voluntarily gave these three statements to the police. During trial, the State
introduced these three statements into evidence.
Based on the totality of these circumstances, we agree with the trial court
that the defendant was fully advised of his Miranda rights before he knowingly and
voluntarily chose to waive those rights. See State v. Van Tran, 864 S.W.2d 465, 472
7
(Tenn. 1993); Middlebrooks, 840 S.W.2d at 326; State v. Gordon, 642 S.W.2d 742, 745
(Tenn. Crim. App. 1982). Accordingly, the defendant’s argument that the trial court
should have granted his motion to suppress must fail.
The defendant also argues that the trial court erred in allowing a fourth
statement given to Deputy Currie to be used to impeach his trial testimony. We treat this
argument as waived, however, by the defendant’s failure to cite any supporting authority.
T.R.A.P. 27(a)(7); Rules of the Court of Criminal Appeals of Tennessee 10(b); State v.
Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988).
III.
Next, the defendant contends the trial court committed reversible error by
permitting the State to reopen its case-in-chief to identify the body recovered from the
river as Donnie Box’s body. When the State rested its case-in-chief, the defendant
moved for judgment of acquittal on the ground the State failed to prove Box was in fact
dead. The defendant argued a body was found in the Rutherford Fork of the Obion River,
but it was never identified as Box’s body. The district attorney general stated he had an
agreement with defense counsel that the identity of the body was not required and that
the entire evidence of the chain of custody of the body, including identification of the body
by Box’s father, would be stipulated. On the other hand, defense counsel stated he
believed it was only the testimony of the ambulance personnel who took Box’s body to
the coroner in Memphis that would be stipulated. The trial court found there was an
agreement, but that counsel misunderstood the scope of the argument. The court
granted the district attorney general’s motion to reopen the State’s case-in-chief in order
to establish the body recovered from the river was that of Box. The State did so.
While “[t]here must be an end of the calling of witnesses at some time,”
Hughes v. State, 126 Tenn. 40, 78, 148 S.W. 543, 552 (1912), the State may be granted
8
permission to reopen its case immediately after it has rested, State v. Harrington, 627
S.W.2d 345, 348 (Tenn. 1981); White v. State, 497 S.W.2d 751, 754 (Tenn. Crim. App.
1973). For instance, on occasion, the State may need to reopen its case-in-chief
because the district attorney general failed to prove an essential element or introduce
relevant evidence due to an oversight. See, e.g., Harrington, 627 S.W.2d at 348; White,
497 S.W.2d at 754. The State’s motion to reopen its case-in-chief for the purpose of
introducing additional evidence addresses itself to the sound discretion of the trial court.
Harrington, 627 S.W.2d at 348; Hughes, 126 Tenn. at 74-75, 148 S.W. at 552; State v.
Tuttle, 914 S.W.2d 926, 931 (Tenn. Crim. App. 1995); White, 497 S.W.2d at 754. An
appellate court will not interfere with the exercise of this discretion unless clear abuse
appears on the face of the record. Tuttle, 914 S.W.2d at 931; State v. Bell, 690 S.W.2d
879, 882 (Tenn. Crim. App. 1985); White, 497 S.W.2d at 754.
Here, the record clearly reflects the district attorney general and defense
counsel entered into an agreement, but that there was an honest disagreement regarding
the scope of the agreement. A miscarriage of justice would have resulted if the State’s
motion to reopen its case-in-chief had been denied. For these reasons, the trial court did
not abuse its discretion by permitting the State to reopen its case-in-chief in order to
prove the victim’s identity.
IV.
The defendant contends the sentences imposed by the trial court are
excessive. He argues the trial court erred by using certain enhancement factors and
refusing to apply certain mitigating factors.
The trial court applied six enhancement factors in determining the length
of the defendant’s sentences: (a) the offense involved more than one victim, T.C.A.
§ 40-35-114(3); (b) the defendant treated or allowed the victim to be treated with extreme
9
cruelty, T.C.A. § 40-35-114(5); (c) the defendant has a previous history of an
unwillingness to comply with the conditions of a sentence involving release into the
community, T.C.A. § 40-35-114(8); (d) the defendant had no hesitation about committing
a crime when the risk to human life was high, T.C.A. § 40-35-114(10); (e) the defendant
was on probation for a former felony conviction, T.C.A. § 40-35-114(13); and (f) the
defendant was adjudicated to have committed a delinquent act or acts as a juvenile which
would have constituted a felony if committed by an adult, T.C.A. § 40-35-114(20).
The defendant contends the trial court should not have used enhancement
factor (5), the defendant treated or allowed the victim to be treated with extreme cruelty.
T.C.A. § 40-35-114(5). This enhancement factor is not an element of either second-
degree murder or aggravated assault. Moreover, the record reflects the defendant and
Dunn put Box in the trunk of the defendant’s car and transported him to the bridge
spanning the Rutherford Fork of the Obion River. Box was near death and should have
been taken to a hospital. Although both the defendant and Dunn were aware Box was
still alive, they pushed him into the river and then fled the jurisdiction. This conduct was
extremely cruel. This subissue is without merit.
Next, the defendant contends the trial court erroneously applied
enhancement factor (8), the defendant has a previous history of an unwillingness to
comply with the conditions of a sentence involving release into the community. T.C.A.
§ 40-35-114(8). When sentencing the defendant, the trial court stated on the record that
it was relying upon the presentence report. However, the record on appeal does not
contain the presentence report, which makes it impossible for this Court to conduct an
appropriate de novo review of this issue pursuant to T.C.A. § 40-35-401(d) or determine
whether the trial court erred. State v. Hayes, 894 S.W.2d 298 (Tenn. Crim. App. 1994).
Instead, this Court must conclusively presume that the trial court correctly used this
enhancement factor to enhance the defendant’s sentences. State v. Coolidge, 915
10
S.W.2d 820, 826-27 (Tenn. Crim. App. 1995); State v. Embry, 915 S.W.2d 451 (Tenn.
Crim. App. 1995); State v. Locust, 914 S.W.2d 554, 557 (Tenn. Crim. App. 1995).
Next, the defendant contends the trial court erroneously applied
enhancement factor (10), the defendant had no hesitation about committing a crime when
the risk to human life was high. T.C.A. § 40-35-114(10). This Court has previously held
this factor is not applicable in second-degree murder cases, State v. Butler, 900 S.W.2d
305, 313-14 (Tenn. Crim. App. 1994), or aggravated assault cases, State v. Hill, 885
S.W.2d 357, 363 (Tenn. Crim. App. 1994). Thus, the trial court erred in using this factor
to increase the defendant’s sentences.
`` Although the defendant does not challenge the use of enhancement factor
(3), the offense involved more than one (1) victim, T.C.A. § 40-35-114(3), the State
correctly states in its brief this factor may not be used to enhance the defendant’s
sentences. In this case there were two victims, but the defendant was convicted of
committing a crime against each victim. The appellate courts have consistently held
enhancement factor (3) may not be used to enhance a sentence under these
circumstances. State v. Freeman, 943 S.W.2d 25, 31 (Tenn. Crim. App. 1996); State
v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995); State v. Clabo, 905 S.W.2d
197, 206 (Tenn. Crim. App. 1995). Thus, the trial court erred in using this factor to
increase the defendant’s sentences.
The defendant also does not challenge the use of enhancement factor (13),
that the felonies here were committed while the defendant was on probation from a prior
felony conviction. T.C.A. § 40-35-114(13)(C). It appears clear from the record that the
defendant was on probation for a juvenile offense, not a felony conviction, when he
committed the instant crimes, thus rendering enhancement factor (13) inapplicable.
Thus, the trial court also erred in using enhancement factor (13) to increase the
11
defendant’s sentences.
There are certain enhancement factors that the trial court did not apply,
even though they are supported by the record. The defendant testified he smoked
marijuana frequently and sold drugs on occasion. Each time the defendant possessed
or sold drugs constituted criminal behavior.2 See State v. Keel, 882 S.W.2d 410, 419
(Tenn. Crim. App. 1994). Thus, the trial court should have applied enhancement factor
(1), the defendant had a previous history of criminal convictions or criminal behavior.
T.C.A. § 40-35-114(1). Additionally, the defendant used a deadly weapon, a knife, to kill
Box. Since the use of a deadly weapon is not an element of second-degree murder, the
defendant’s sentence for second-degree murder should have been enhanced pursuant
to enhancement factor (9), the defendant possessed a deadly weapon during the
commission of the crime. T.C.A. § 40-35-114(9); Butler, 900 S.W.2d at 312-13; Sills v.
State, 884 S.W.2d 139, 145 (Tenn. Crim. App. 1994).
The trial court applied one mitigating factor, finding that the defendant
lacked substantial judgment in committing the offenses due to his young age, which was
seventeen. T.C.A. § 40-35-113(6). The defendant argues the trial court should have also
considered the following mitigating factors: (a) he acted under strong provocation, T.C.A.
§ 40-35-113(2); (b) substantial grounds existed which tended to excuse or justify the
defendant’s criminal conduct although it failed to establish a defense, T.C.A.
§ 40-35-113(3); and (c) he committed the offenses under such unusual circumstances
that it is unlikely there was a substantial intent to violate the law which motivated his
conduct. T.C.A. § 40-35-113(11). We disagree.
This entire matter began when the defendant lied to Reynolds by telling him
2
Apparently, the defendant also had several convictions as a juvenile. However, this Court cannot
consider these convictions since the presentence report has not been inc luded in the record. Embry , 915
S.W.2d at 451.
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he had sold the drum set. The defendant then antagonized Reynolds by repeatedly
refusing to give him his share of profits from the “sale.” The defendant continued to
provoke Reynolds by arguing with him about profits from a sale that did not even occur.
Moreover, there is no question the defendant was always the aggressor. He attempted
to get Reynolds to go somewhere with him early that morning, and later, he tried to get
Reynolds to ride with him in his car. Reynolds refused to do so. The defendant flashed
his lights to entice Reynolds and Box to pull to the side of the road. The defendant
stabbed both Reynolds and Box for no apparent reason. Given these circumstances, the
trial court properly refused to apply the three mitigating factors advanced by the
defendant.
In sum, while there were some enhancement factors the trial court should
not have used to enhance the defendant’s sentences, there were other factors the trial
court should have used to enhance his sentences. Further, the trial court properly
applied the only mitigating factor it could under the circumstances of this case, i.e., that
the defendant lacked substantial judgment in committing the offenses due to his young
age. See T.C.A. § 40-35-113(6). Thus, we find no error with the sentences imposed by
the trial court.
V.
The defendant has presented an issue captioned “[w]hether any other
reversible error was committed by the trial court,” under which he presents five separate
arguments. Although this Court does not favor the lumping of several unrelated issues
within a single issue, see State v. Williams, 914 S.W.2d 940, 947-48 (Tenn. Crim. App.
1995), each argument will be addressed in turn.
A.
The defendant sought to introduce two photographs. One photograph
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depicted a confederate flag and the other photograph depicted a Nazi swastika. The
defendant contended that Dunn had painted these insignias on the bridge where Box was
pushed into the Obion River. The trial court did not abuse its discretion in ruling the
photographs should be excluded as evidence. See State v. Bowers, 744 S.W.2d 588,
590 (Tenn. Crim. App. 1987). This evidence was not relevant to any issue to be resolved
by the jury, and the prejudicial effect of admitting this evidence would far outweigh the
probative value, if any, of the photographs. See State v. Banks, 564 S.W.2d 947, 951
(Tenn. 1978). Furthermore, this argument has been waived, as the defendant has failed
to cite any supporting authority. T.R.A.P. 27(a)(7); Rules of the Court of Criminal Appeals
of Tennessee 10(b).
B.
The defendant contends the trial court erred by denying “his pre-trial motion
for funds for a [private] clinical psychologist.” We find no reversible error because the
defendant failed to comply with State v. Barnett, 909 S.W.2d 423 (Tenn. 1995).
Moreover, this argument has been waived for failure to cite authority. T.R.A.P. 27(a)(7);
Rules of the Court of Criminal Appeals of Tennessee 10(b).
C.
The defendant contends the trial court erred by denying his motions for a
judgment of acquittal on the first-degree murder charge and by instructing the jury on the
offense of first-degree murder. This issue is moot because the jury returned a verdict of
second-degree murder. See State v. Robert E. Sanderson, No. 01C01-9308-CR-00269,
Davidson County (Tenn. Crim. App. filed September 27, 1995, at Nashville). Additionally,
this argument has been waived for failure to cite authority. T.R.A.P. 27(a)(7); Rules of
the Court of Criminal Appeals of Tennessee 10(b).
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D.
The defendant contends the trial court erred in denying two motions for
continuance. Whether a continuance should be granted rests within the sound discretion
of the trial court. Mandina v. State, 749 S.W.2d 472, 473 (Tenn. Crim. App. 1985); State
v. Lambert, 741 S.W.2d 127, 131 (Tenn. Crim. App. 1987). This Court will not interfere
with the exercise of this discretion absent clear abuse appearing on the face of the
record. Moorehead v. State, 219 Tenn. 271, 409 S.W.2d 357, 358 (1966). Here, the
defendant has failed to show clear abuse of discretion.
E.
Finally, the defendant contends that under T.C.A. § 37-1-133(b), the trial
court erroneously allowed the assistant district attorney general to question him during
the sentencing hearing about his prior juvenile court proceedings and that the trial court
improperly used this evidence to enhance his sentence. The defendant’s reliance upon
§ 37-1-133(b) is misplaced. Section 37-1-133(b) states, “The disposition of a child and
evidence adduced in a hearing in juvenile court may not be used against such child in any
proceeding in any court other than a juvenile court, whether before or after reaching
majority, except in dispositional proceedings after conviction of a felony for the purposes
of a pre-sentence investigation and report.” However, while evidence of juvenile
convictions is not admissible during the guilt phase of a criminal case, State v. Davis, 741
S.W.2d 120, 123 (Tenn. Crim. App. 1987), this Court has held that “a juvenile record of
criminal conduct may properly be considered in assessing a suitable sentence upon a
felony conviction by an adult.” State v. Stockton, 733 S.W.2d 111, 112-13 (Tenn. Crim.
App. 1986). The defendant’s argument lacks merit.
CONCLUSION
Each issue raised by the defendant is without merit. The judgment of the
trial court is affirmed.
_______________________________
JOHN H. PEAY, Judge
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CONCUR:
(Not participating)*
JOE B. JONES, Judge
______________________________________
THOMAS T. W OODALL, Judge
*Judge Joe B. Jones died May 1, 1998, and did not participate in this opinion.
We acknowledge his faithful
service to this Court, both as a member of the Court and as its Presiding Judge.
16