State of Tennessee v. Don Mask Brown, Jr. ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 2, 2010
STATE OF TENNESSEE v. DON MASK BROWN, JR.
Direct Appeal from the Circuit Court for Hardeman County
No. 08-01-0599 J. Weber McCraw, Judge
No. W2009-01001-CCA-R3-CD - Filed November 12, 2010
The Defendant-Appellant, Don Mask Brown, Jr., was convicted by a Hardeman County jury
of second degree murder, a Class A felony, and aggravated robbery, a Class B felony. He
was sentenced as a violent offender to forty years for second degree murder and, as a
multiple offender, to fifteen years for the aggravated robbery. The trial court ordered these
sentences to be served consecutively, for an effective sentence of fifty-five years in the
Tennessee Department of Correction. On appeal, Brown claims: (1) the trial court violated
the principles of Blakely v. Washington by finding that several enhancement factors were
applicable; and (2) the trial court should not have imposed consecutive sentencing. Upon
review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D AVID H. W ELLES
and J OHN E VERETT W ILLIAMS, JJ., joined.
Javier Michael Bailey, Memphis, Tennessee, for the Defendant-Appellant, Don Mask Brown,
Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and Joe Van Dyke, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
Trial. This case stems from the beating death of seventy-nine year old, William
Mask, Jr. (“Mask”). The victim’s wife, Peggy Ann Mask (“Peggy”), was present during the
assault which led to her husband’s death. She testified that on the night of the offense, they
were returning home from dinner and were pulling into their driveway. They got out of their
truck and began walking towards the house. Peggy testified that a man suddenly attacked the
victim, and a fight ensued. Peggy said the victim was repeatedly struck by something in the
perpetrator’s hand. The perpetrator forced Mask to the ground and started to kick him.
Peggy said the perpetrator “just kept kicking him and kicking him and kicking him.” Peggy
screamed for help, got into the truck, and began to honk the horn. The perpetrator ran away
and Peggy went to check on the victim. He had crawled back to the porch. Peggy said
“blood was everywhere.” A neighbor called the police and an ambulance arrived. Several
pictures of the victim were entered as exhibits and showed substantial injuries to the victim’s
face and body.
Peggy testified that the police found two pairs of glasses at the scene of the accident.
one of which belonged to the victim. Peggy did not recognize the other pair of glasses. She
said the victim always kept his billfold in his pocket or in his bedroom. She believed the
perpetrator stole his billfold because it was not found in either location. Peggy was unable
to identify the perpetrator during the attack. She recalled hearing the perpetrator state, “‘I’m
going to kill you, you son-of-a-bitch.’”
Officer Michael Jones of the Bolivar Police Department testified that he responded
to the scene of the attack. He found the victim sitting on the steps of his home with
lacerations on his face and blood running down his body. Officer Jones said a large amount
of blood was in the grass. He found a do-rag (head wrap) and two pairs of glasses. These
items were found in the area where the attack took place. The do-rag was covered in blood.
Officer Jones testified that Mask was taken to the hospital where he eventually died.
Dr. Staci Turner, an Assistant Medical Examiner for Davidson County, testified that
she performed the victim’s autopsy. She determined that the cause of death was blunt force
injuries. Dr. Turner found lacerations, abrasions, and contusions on the victim’s body. He
had a fractured skull as well as a hemorrhage within his scalp tissue. Dr. Turner said the
victim had blood around his brain and fluid in his lungs. The victim also suffered a heart
attack after he was admitted for treatment. Dr. Turner said the heart attack resulted from the
physical strain of blunt force trauma.
Officer Pat Baker of the Bolivar Police Department assisted with the investigation of
the murder. He said the police obtained a blood sample from Brown. Officer Baker testified
that the do-rag and glasses found at the scene of the attack contained Brown’s DNA. Officer
Baker said the victim’s deoxyribonucleic acid (“DNA”) was also found on the do-rag.
Michael Turberville, a forensic scientist for the Tennessee Bureau of Investigation,
corroborated Officer Baker’s testimony that the do-rag contained DNA from the victim and
Brown. He also said Brown’s DNA was on the glasses.
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Following the proof at trial, the jury convicted Brown of aggravated robbery and
second degree murder. He was acquitted of first degree felony murder.
Sentencing Hearing. The State introduced the presentence report prepared by the
Tennessee Board of Probation and Parole. It states that Brown was thirty-three years old
when the offenses occurred. The report lists Brown’s prior record, which includes felony
convictions for vehicular homicide, felon in possession of a weapon, robbery, and escape.
Brown was also convicted of driving with a revoked license, possession of marijuana,
reckless endangerment, driving under the influence of an intoxicant, assault, criminal
trespassing, driving with a suspended license (two counts), and making an improper turn.
At the sentencing hearing, the State’s only witness was Austin Alexander Baker, III.
Baker testified that he was a close friend of the victim’s family. Baker said the victim’s
children were not present at the sentencing hearing because the victim’s son was undergoing
a critical medical procedure. The children gave Baker an impact statement which he read
aloud at the hearing. The statement described the victim as the “cornerstone” of his family
and an active member of his church and community. The statement included comments from
the victim’s nephew, niece, daughter, and son. They discussed the positive impact that the
victim had on their lives and the considerable void left by his death. The victim’s niece
requested that Brown receive the maximum sentence allowed by law.
After reading the statement, Baker testified that he spent time with the victim’s family
following the murder. He said the victim’s death had an emotional and financial impact on
the family. Baker testified that the victim’s wife, Peggy, could no longer rely on the victim’s
income. Baker stated that the victim also provided money to other family members and
friends in need. Following Baker’s testimony, the State informed the trial court that Peggy
did not wish to testify.
Brown testified and disputed his conviction for vehicular homicide. He denied that
he was at fault and claimed that his vehicle was forced off the road by an oncoming vehicle
that crossed into his lane. His younger brother was the victim of the crash. Brown denied
that he was under the influence of alcohol during the crash. He admitted that he was in
possession of marijuana at the time, which led to an additional conviction. Brown stated that
at the age of eighteen, he was convicted of robbery and escape. He denied that he tried to
escape, claiming that the conviction was the result of a misunderstanding with the police.
Brown testified further that he had six children between the ages of eight and ten. He
said he did what he could to take care of them. While in prison, Brown attended programs
in anger management, coping, and life skills. He also worked towards obtaining his GED.
Brown said he was able to find employment upon his release from prison. He denied that he
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was a member of a gang, and said that the authorities mistakenly identified him as a gang
member because of a tattoo on his back.
Brown acknowledged that he had a prior conviction for possession of a handgun. He
claimed the gun accidentally went off after an argument with his brother. Brown said his
brother was not present when the gun was fired. Brown testified that he pled guilty to all of
his prior offenses. He denied having substance abuse issues, though he admitted to
occasionally using marijuana. He claimed he was not responsible for the victim’s death.
On cross-examination, Brown said he pled guilty to driving under the influence in
connection with the vehicular homicide. He was also convicted of driving on a revoked
license based on the same incident. Brown acknowledged that it was his third conviction for
driving on a revoked license.
Katherine Brown, Brown’s mother, testified that Brown had a close relationship with
his children. Katherine Brown said she listened to her son’s testimony, and she believed that
he was truthful.
Following the testimony at the hearing and the arguments of counsel, the trial court
found that Brown qualified as a Range II multiple offender based on his prior felony
convictions. As a Range II offender, the sentencing range for second degree murder, a Class
A felony, was between twenty-five and forty years. See T.C.A. § 40-35-112(b)(1), 39-13-
210 (2007). The sentencing range for aggravated robbery, a Class B felony, was between
twelve and twenty years. See T.C.A. § 40-35-112(b)(2), 39-13-402 (2007). The trial court
imposed the maximum sentence of forty years for second degree murder and a fifteen-year
sentence for aggravated robbery. Brown was required to serve one hundred percent of his
sentence for second degree murder as a violent offender. See T.C.A. § 40-35-501(i)(1)
(2007).
In sentencing Brown, the trial court found that several enhancement factors were
applicable. It stated:
The Court finds [the] following enhancement factors which are not
themselves essential elements of this offense. Defendant does have a previous
history of criminal convictions or behavior in addition to those necessary to
establish the appropriate range. The Court does find that the victim of this
offense was particularly vulnerable because of his age or physical disability.
I think the testimony was he was a man in his early eighties. The defendant
treated or allowed [the] victim to be treated with exceptional cruelty during the
commission of the offense. Testimony at trial indicated that while the man
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was down, he was repeatedly kicked. Also, the Court viewed the photographs
during the trial.
The Court also finds as an enhancing factor that . . . the personal
injuries inflicted upon, sustained or taken from the victim [were] particularly
great. And then the felony resulted in the death of the victim. So the Court
does look at those as enhancing factors.
The trial court then addressed whether to impose consecutive sentencing. It found that
consecutive sentencing was appropriate under the criteria set forth under Tennessee Code
Annotated section 40-35-115. The trial court determined that Brown had an extensive
criminal history. It also concluded that Brown was a dangerous offender whose behavior
indicated little or no regard for human life. The trial court pointed to the beating of the
victim and Brown’s prior conviction for vehicular homicide. The trial court found that
Brown showed no hesitation about committing a crime in which the risk to human life was
high. Lastly, the trial court determined that confinement was necessary to protect society.
This appeal followed.
ANALYSIS
Brown raises three claims regarding sentencing. First, he argues that the trial court
violated the principles of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), by
finding that several enhancement factors were applicable. Brown claims these enhancement
factors should have been submitted to the jury, and not decided by the trial court. He does
not contest whether particular enhancement factors were applicable. Second, Brown argues
that his due process rights were violated because the State failed to provide notice of its
intent to seek consecutive sentencing. Third, Brown claims consecutive sentencing was
improper because his criminal history was not extensive. In response, the State argues that
the trial court did not err in sentencing Brown. It claims his sentences are consistent with the
purposes and principles of the Sentencing Act. The State also asserts that consecutive
sentencing was appropriate because Brown is a dangerous offender with an extensive
criminal record.
We will first address Brown’s claim that the trial court violated the principles of
Blakely by finding that several enhancement factors were met. On June 24, 2004, the United
States Supreme Court held in Blakely that “‘[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.’” Blakely, 542 U.S. at 301, 124
S. Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63
(2000)). On June 7, 2005, after the United States Supreme Court’s opinion in Blakely, the
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Tennessee legislature passed a new sentencing law eradicating presumptive sentences and
establishing advisory sentencing guidelines. Under the new sentencing law, “the trial court
‘shall consider, but is not bound by’ an ‘advisory sentencing guideline’ that suggests an
adjustment to the defendant’s sentence upon the presence or absence of mitigating and
enhancement factors.” State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008) (quoting T.C.A.
§ 40-35-210(c) (2006)).
Here, Brown committed the offenses in 2007. The Compiler’s Notes to the amended
Tennessee Code Annotated section 40-35-210 (2006) state that the amended act “shall apply
to sentencing for criminal offenses committed on or after June 7, 2005.” Because Brown
committed the offenses in this case after June 7, 2005, he was sentenced under the 2005
amendments to the sentencing act. As previously stated, the amended act established
advisory sentencing guidelines for trial courts. Accordingly, Brown cannot claim that the
trial court erroneously employed judicial fact-finding in its application of enhancement
factors because these enhancement factors under the amended sentencing act are merely
advisory, not mandatory. See T.C.A. § 40-35-210 (2006), Compiler’s Notes. He is not
entitled to relief on this issue.
Brown’s second claim is that his due process rights were violated by the imposition
of consecutive sentencing. He asserts that the State did not provide notice of its intent to
seek consecutive sentencing, and therefore his defense was prejudiced. Brown raised this
issue at the sentencing hearing. The trial court rejected Brown’s argument, finding that
sufficient notice was given. The trial court also stated that it had an absolute duty to consider
consecutive sentencing under Tennessee Code Annotated section 40-35-115.
We note that Brown failed to support his argument with any legal authority. He did
not cite to any statute that required the State to provide notice.1 Additionally, Brown does
not refer to any cases holding that consecutive sentencing is dependent upon the defendant
receiving notice. Ordinarily, Brown’s failure to support his claim by legal argument or
citation to legal authority would waive the issue. See Tenn. Ct. Crim. App. R. 10(b) (“Issues
which are not supported by argument, citation to authorities, or appropriate references to the
record will be treated as waived in this court.”); State v. Thompson, 36 S.W.3d 102, 108
(Tenn. Crim. App. 2000). However, we have reviewed the record and applicable authority,
and we will address the merits of his claim.
1
At the sentencing hearing, defense counsel was questioned about the legal basis for his assertion
that the State had a duty to provide notice. Defense counsel responded that “the statute” required the State
to give notice. Presumably, he was referring to Tennessee Code Annotated section 40-35-202(a), which
requires the State to give notice of its intent to sentence the defendant as a multiple, persistent or career
offender, not its intent to seek consecutive sentencing.
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In State v. Anthony Reid, this court addressed an identical due process claim where
the State failed to provide notice of its intent to seek consecutive sentencing. No.
E2000-02619-CCA-R3-CD, 2001 WL 818205, at *10-12 (Tenn. Crim. App., at Knoxville,
July 20, 2001). The court analyzed Tennessee Code Annotated section 40-35-115, which
governs consecutive sentencing. Id. at *11. The court stated:
This statute places full responsibility for determining whether consecutive
sentences are proper upon the trial judge. Specifically, it directs that where “a
defendant is convicted of more than one (1) criminal offense, the court shall
order sentences to run consecutively or concurrently as provided by the criteria
in this section.” Tenn. Code Ann. § 40-35-115(a) (1997) (emphasis added).
The statute continues by stating that “[t]he court may order sentences to run
consecutively if the court finds by a preponderance of the evidence” that any
of the seven criteria enumerated in the statute apply. Id. § 40-35-115(b)
(emphasis added). The imposition of consecutive sentences is not dependent
upon any required notice from the prosecution. Neither does the statute
require that a judge review information relevant to a defendant’s sentence prior
to the sentencing hearing in order to give a defendant “notice” of any kind.
Id. The court added:
Tennessee Code Annotated section 40-35-115 specifically enumerates what
criteria the judge will examine when making a determination regarding
consecutive sentences and, in doing so, also provides sufficient information so
that a defendant may adequately prepare to argue against such sentencing if he
so chooses.
Id. The court ultimately held that the defendant’s due process rights were not violated by the
State’s failure to provide notice. Id. at *12. This holding is consistent with other decisions
from this court. See State v. Cedric Terry, No. W1999-01568-CCA-R3-CD, 2001 WL
204185, at *7 (Tenn. Crim. App., at Jackson, Feb. 23, 2001) (“[T]he state is not required to
give notice that it is seeking consecutive sentencing.”); State v. Willie C. Powell, No.
02C01-9210-CR-00246, 1994 WL 34631, at *4 (Tenn. Crim. App., at Jackson, Feb. 9, 1994)
(“In our view, [Tennessee Code Annotated section 40-35-202] “simply does not require any
advanced notice of intent on the part of the state to seek consecutive sentencing.”). We agree
with the holdings of these cases and conclude that Brown’s claim is without merit. He is not
entitled to relief on this issue.
Brown’s final claim is that the trial court erred in finding under Tennessee Code
Annotated section 40-35-115 that he had an extensive criminal record, the basis upon which
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the trial court imposed consecutive sentencing. Brown asserts that his criminal record is not
extensive because (1) he has not had any convictions since 2000; (2) several of his
convictions arose from the same incident; and (3) he denied being at fault for the vehicular
homicide. The State argues the trial court properly imposed consecutive sentences in this
case. We agree.
On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d) (2007). Nevertheless, “the presumption of correctness which accompanies
the trial court’s action 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). The defendant has the burden of showing the
impropriety of the sentence. Sentencing Comm’n Comments, T.C.A. § 40-35-401(d) (2007).
If the trial court followed the statutory sentencing procedure, made adequate findings of fact
that are supported by the record, and gave due consideration and proper weight to the factors
and principles that are relevant to sentencing under the sentencing act, this court may not
disturb the sentence even if a different result was preferred. State v. Fletcher, 805 S.W.2d
785, 789 (Tenn. Crim. App. 1991). Because the trial court properly considered the purposes
and principles of the sentencing act pursuant to sections 40-35-102 and -103 and all relevant
facts and circumstances, our review will be de novo with a presumption of correctness. In
conducting our de novo review, this court must consider:
(1) The evidence, if any, received at the trial and the sentencing hearing;
(2) The presentence report;
(3) The principles of sentencing and arguments as to sentencing alternatives;
(4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114;
(6) Any statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee; and
(7) Any statement the defendant wishes to make in the defendant’s own behalf
about sentencing.
T.C.A. § 40-35-210(b) (2007); State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).
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Where a defendant is convicted of one or more offenses, the trial court has discretion
to decide whether the sentences shall be served concurrently or consecutively. T.C.A. § 40-
35-115(a) (2007). A trial court may order multiple offenses to be served consecutively if it
finds by a preponderance of the evidence that a defendant fits into at least one of the seven
categories in section 40-35-115(b) (2007). An order of consecutive sentencing must be
“justly deserved in relation to the seriousness of the offense.” T.C.A. § 40-35-102(1) (2007).
In addition, the length of a consecutive sentence must be “no greater than that deserved for
the offense committed.” T.C.A. § 40-35-103(2) (2007).
Here, the trial court found that the following criterion were met under section 40-35-
115(b):
(2) The defendant is an offender whose record of criminal activity is extensive;
(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[.]
T.C.A. § 40-35-115(b) (2007).
The record supports the trial court’s finding that criterion (2) and (4) were applicable.
The presentence report shows that Brown has felony convictions for vehicular homicide,
felon in possession of a weapon, robbery, and escape. The report states that Brown was also
convicted of driving with a revoked license, possession of marijuana, reckless endangerment,
driving under the influence of an intoxicant, assault, criminal trespassing, driving with a
suspended license (two counts), and making an improper turn. Brown’s criminal record is
extensive regardless of whether he denied responsibility for particular offenses. This is
sufficient to establish an extensive criminal history. In addition, the record shows that
criterion (4) was met. At the age of thirty-three, Brown has already been convicted of second
degree murder, vehicular homicide, aggravated robbery, robbery, driving under the influence,
assault, and felon in possession of a dangerous weapon. These offenses certainly qualify
Brown as a dangerous offender.
Based on the testimony at trial, Brown also exhibited “no regard for human life” and
“no hesitation about committing a crime in which the risk to human life is high[.]” T.C.A.
§ 40-35-115(b)(4). The victim was seventy-nine years old when he was ambushed and
brutally beaten by Brown. The victim’s wife testified that the victim was hit before being
forced to the ground and repeatedly kicked while on the ground. Peggy said she heard
perpetrator state, “‘I’m going to kill you, you son-of-a-bitch.’” The doctor who performed
the autopsy concluded that Mask died as a result of blunt force injuries. The victim had a
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fractured skull and a hemorrhage within his scalp tissue, as well as lacerations, abrasions, and
contusions on his body. The trial court did not err in finding that both criterion (2) and (4)
were applicable. Brown had the burden of proving that the impropriety of his sentence. He
did not meet this burden, and therefore he is not entitled to relief.
CONCLUSION
Based on the foregoing, the judgments of the trial court are affirmed.
___________________________________
CAMILLE R. McMULLEN, JUDGE
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