State of Tennessee v. Mario A. Lavender and Eric L. Hobbs ( 1996 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1996 SESSION
November 8, 1996
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
APPELLEE, )
) No. 01-C-01-9506-CR-00202
)
) Davidson County
v. )
) J. Randall Wyatt, Jr., Judge
)
) (Robbery and Theft)
MARIO A. LAVENDER and ERIC L. HOBBS, )
)
APPELLANTS. )
FOR THE APPELLANTS: FOR THE APPELLEE:
FOR LAVENDER: Charles W. Burson
Attorney General & Reporter
Deanna C. Bell 500 Charlotte Avenue
Attorney at Law Nashville, TN 37243-0497
211 Third Avenue, North
Nashville, TN 37201 Darian B. Taylor
Assistant Attorney General
FOR HOBBS: 450 James Robertson Parkway
Nashville, TN 37243-0493
Jeffrey A. DeVasher
Assistant Public Defender Victor S. Johnson, III
211 Union Street, Suite 1202 District Attorney General
Nashville, TN 37201-5066 222 Second Avenue, South
(Appeal Only) Nashville, TN 37201-1649
Joan A. Lawson Nicholas D. Bailey
Assistant Public Defender Assistant District Attorney General
211 Union Street, Suite 1202 222 Second Avenue, South
Nashville, TN 37201-5066 Nashville, TN 37201-1649
(Trial Only)
Charles Carpenter
OF COUNSEL: Assistant District Attorney General
222 Second Avenue, South
Karl Dean Nashville, TN 37201-1649
Metropolitan Public Defender
211 Union Street
Nashville, TN 37201-5066
OPINION FILED:___________________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellants, Mario A. Lavender and Eric Hobbs, were found guilty of two counts
of robbery, a Class C felony, and one count of theft over $1,000, a Class D felony, by a jury
of their peers. The trial court found that Lavender was a standard offender and imposed
Range I sentences as follows: (1) count 1, robbery, confinement for six (6) years in the
Department of Correction, (2) count 2, robbery, confinement for six (6) years in the
Department of Correction, and (3) count 4, theft, confinement for four (4) years in the
Department of Correction. The trial court found that Hobbs was a multiple offender and
imposed the following Range II sentences: (1) count 1, robbery, confinement for ten (10)
years in the Department of Correction, (2) count 2, robbery, confinement for ten (10) years
in the Department of Correction, and (3) count 4, theft, confinement for four (4) years in the
Department of Correction. The trial court ordered that the sentences are to be served
consecutively. The effective sentence for Lavender is sixteen (16) years, and the effective
sentence for Hobbs is twenty-four (24) years. In this Court, both Lavender and Hobbs
contend that the sentences imposed by the trial court are excessive. Hobbs also contends
that the trial court committed error of prejudicial dimensions by (a) denying his motion to
suppress a statement he made to police and (b) denying his motion in limine, which sought
to deny the State of Tennessee the right to use his prior convictions to impeach him if he
opted to testify. After a thorough review of the record, the briefs submitted by the parties,
and the law applicable to the issues presented for review, it is the opinion of this Court that
the judgment of the trial court should be affirmed.
During the early morning hours of January 3, 1994, the Wilson family was awakened
when they heard noises outside of their residence. Mr. Wilson looked through a window
to investigate the source of the noise. He saw two African-American males standing
outside his residence. When he illuminated the floodlights outside his residence, the two
men ran across the street and were last seen entering a ditch. Police officers were
summoned. They patrolled the area and, noticing nothing suspicious, departed.
A few minutes later Lavender and Hobbs entered the Newbill residence, which was
located across the street from the Wilsons’ residence. They used a tire iron to open the
2
sliding doors at the rear of the residence. Mr. Newbill was awakened by one of the
appellants. The intruder told Mr. Newbill to turn and face the wall or he would “blow [his]
brains out." He felt something sticking him in the back. He "assumed it was a gun." The
perpetrator told Mr. Newbill to put a pillow over his head. He followed the directions given
to him. Mrs. Newbill was in another bedroom. She too was awakened by one of the
appellants. She was told not to look at the perpetrator. She was also directed to place a
pillow over her head. She was told that if she did not cooperate, they would kill her
husband. The appellants spent in excess of an hour inside the Newbill residence. They
took numerous items of jewelry, guns, and a large sum of cash. They loaded these items
into Mr. Newbill's pickup truck and drove away in the truck. The appellants took in excess
of $10,000 in cash and personal property from the residence. The pickup had a value of
$9,600.
The Newbills testified the two men in their residence "sounded black." Mr. Newbill
saw the wrist of one of the appellants when he was given a glass of water. The man's skin
appeared to be black. He could tell this appellant was wearing gloves.
The Newbills subsequently notified the police. They told the police what occurred
and what was taken from the residence. The officers initiated a broadcast describing the
pickup truck and the items stolen. The broadcast indicated two men committed the
offense.
A police officer saw the pickup truck and followed it. Other officers entered the
pursuit. The appellants subsequently slowed the vehicle, exited the vehicle while it was
still moving, and ran in different directions. The pickup truck struck a telephone pole. The
officers began pursuing the appellants on foot. Both Lavender and Hobbs dropped a pistol
as they were attempting to evade the officers.
Two police search dogs were summoned. One of the dogs found Lavender
underneath a motor vehicle a short distance from the point where he exited the pickup
truck. The second dog located Hobbs in a utility building behind a nearby residence.
3
I.
When Hobbs resisted arrest and attempted to escape from the officers, the police
dog was allowed to subdue him. He sustained several dog bite wounds. Before Officer
Claude Mann transported Hobbs to the hospital, he advised him of the Miranda rights.
Officer Mann stated Hobbs was "moaning and groaning" at the time. When Officer Mann
asked Hobbs if he understood his rights, the appellant answered: "Okay, man, I -- know
the deal, I know the deal, I know the deal." Officer Mann testified Hobbs, who had several
previous arrests and convictions, understood his rights.
Once Hobbs was in a treatment room, Officer Mann removed the handcuffs and
assisted a nurse in removing his clothing so she could view the wounds. A "wad of money"
fell from Hobbs's pants. A second "wad of money" was found in his underwear. Since the
broadcast stated jewelry had been taken in the robbery, Officer Mann removed three gold
chains from Hobbs's neck. When Officer Mann asked Hobbs where he obtained the
jewelry, Hobbs, an African-American, told Mann the jewelry belonged to his uncle. Officer
Mann opened a locket attached to one of the chains. He found a picture of an elderly
Caucasian man inside the locket. When Officer Mann advised Hobbs about this discovery,
Hobbs appeared shocked.
The only evidence of the injuries sustained by Hobbs was given by Officer Mann.
He testified Hobbs sustained "several" dog bites. He also testified Hobbs was in a "little
pain" when he transported him to the hospital.
In this Court, Hobbs asserts that the ruling of the trial court was clearly erroneous.
He argues he was in "such physical pain from the dog bite wounds that he could neither
understand his right not to make statements nor knowingly and voluntarily waive his rights."
The standard of review applicable to suppression issues is well-established. When
a trial court makes a finding of facts at the conclusion of a suppression hearing, the facts
found by the trial court are afforded the weight of a jury verdict.1 As a result, these facts
1
State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994); State v. Makoka, 885
S.W.2d 366, 371-72 (Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Gentry,
881 S.W.2d 1, 5 (Tenn. Crim. App. 1993), per. app. denied (Tenn. 1994); State v. Ray,
880 S.W.2d 700, 704 (Tenn. Crim. App. 1992), per. app. denied (Tenn. 1993); State v.
(continued...)
4
are binding upon this Court if the evidence contained in the record does not preponderate
against these facts.2 This standard has been applied to a variety of confession issues
since 1958.3 The appellate courts have applied this standard when the issue presented
for review is whether the accused intelligently and voluntarily gave the statement in
question.4
In this case, Hobbs has failed to establish the evidence adduced at the suppression
hearing preponderates against the trial court's finding of facts. First, the only evidence
introduced at the hearing was the testimony of Officer Mann. The officer testified he
advised Hobbs of his Miranda rights, and it was clear to him Hobbs understood these
rights. The trial court found Hobbs did understand the Miranda warnings. The trial court
observed this was not the first time Hobbs had been advised of his rights. Officer Mann
also testified Hobbs was bitten "several times," he was "moaning and groaning," and he
was in a "little pain." This evidence does not establish that the wounds had a sufficient or
overbearing effect on Hobbs's capacity to knowingly and understandingly waive his right
to remain silent.5
This issue is without merit.
(...continued)
Adams, 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992), per. app. denied (Tenn. 1993);
State v. Woods., 806 S.W.2d 205, 208 (Tenn. Crim. App. 1990), cert. denied, 502 U.S.
1079, 112 S. Ct. 986, 117 L. Ed. 2d 148 (1992); State v. Aucoin, 756 S.W.2d 705, 710
(Tenn. Crim. App. 1988), cert. denied, 489 U.S. 1084, 109 S. Ct. 1541, 103 L. Ed. 2d 845(1989).
2
Stephenson, 878 S.W.2d at 544; State v. Smith, 868 S.W.2d 561, 570 (Tenn.
1993); State v. Bobo, 727 S.W.2d 945, 948 (Tenn.), cert. denied, 484 U.S. 872, 108 S. Ct.
204, 98 L. Ed. 2d 155 (1987); State v. O'Guinn, 709 S.W.2d 561, 565-66 (Tenn.), cert.
denied, 479 U.S. 871, 107 S. Ct. 244, 93 L. Ed. 2d 169 (1986); State v. Harbison, 704
S.W.2d 314, 318 (Tenn. 1986); State v. Kelly, 603 S.W.2d 726, 729 (Tenn. 1980);
Makoka, 885 S.W.2d at 371-72; Ray, 880 S.W.2d at 704; Adams, 859 S.W.2d at 362;
Aucoin, 756 S.W.2d at 710.
3
Wooten v. State, 203 Tenn. 473, 481, 314 S.W.2d 1, 4-5 (1958).
4
Stephenson, 878 S.W.2d at 544.
5
See State v. Middlebrooks, 840 S.W.2d 317, 327 (Tenn. 1992); State v. Workman,
667 S.W.2d 44, 48 (Tenn.), cert. denied, 469 U.S. 873, 105 S. Ct. 226, 83 L. Ed. 2d 155(1984).
5
II.
Hobbs filed a motion in limine asking the trial court to "conduct a hearing outside the
presence of the jury to determine the admissibility of any character or other crime evidence
the State may seek to introduce at the trial of this cause." The trial court conducted a
hearing prior to trial. Although this motion does not address the admissibility of Hobbs's
prior convictions to impeach him as a witness, defense counsel argued the State of
Tennessee should not be permitted to use Hobbs’s prior convictions to impeach him if he
opted to testify. The record reflects Hobbs had been convicted of the following felonies:
(a) theft over $10,000 on July 22, 1991. The offense was committed on February
20, 1991, in Madison County;
(b) aggravated robbery on December 10, 1991. The offense was committed on
August 21, 1991 in Madison County;
(c) aggravated burglary on December 10, 1991. The offense was committed on
August 22, 1991, in Madison County; and
(d) theft over $1,000 on December 10, 1991. The offense was committed on
August 22, 1991, in Madison County.
The trial court ruled these felonies could be used to impeach Hobbs if he testified in
support of his defense. The court found the probative value of these offenses far
exceeded any prejudicial effect that these convictions might have on the trier of fact.
Hobbs did not testify in support of his defense.
Hobbs contends "the trial court erred in ruling that [his] prior felony convictions
would be admissible for impeachment purposes." He argues "the provisions of the
Tennessee Rules of Evidence do not support the admission of the convictions under the
circumstances of this case, and that the trial court's ruling deprived him of his right to a fair
trial in violation of the Fifth and Fourteenth Amendments to the United States Constitution
and Article I, § 9 of the Tennessee Constitution." He predicates his argument on the
similarity of these offenses to the offenses alleged in the indictment.
The State of Tennessee may use a prior conviction to impeach an accused if the
conviction meets the criteria established by Rule 609 of the Tennessee Rules of Evidence.
This rule states in part:
6
(a) GENERAL RULE. For the purpose of attacking the
credibility of a witness, evidence that the witness has been
convicted of a crime may be admitted if the following
procedures and conditions are satisfied:
***
(2) The crime must be punishable by death or imprisonment
in excess of one year under the law under which the witness
was convicted or, if not so punishable, the crime must have
involved dishonesty or false statement.
(3) If the witness to be impeached is the accused in a criminal
prosecution, the State must give the accused reasonable
written notice of the impeaching conviction before trial, and the
court upon request must determine that the conviction's
probative value on credibility outweighs its unfair prejudicial
effect on the substantive issues. The court may rule on the
admissibility of such proof prior to the trial but in any event
shall rule prior to the testimony of the accused. If the court
makes a final determination that such proof is admissible for
impeachment purposes, the accused need not actually testify
at the trial to later challenge the propriety of the determination.
(b) TIME LIMIT. Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed
between the date of release from confinement and the
commencement of the action or prosecution; if the witness
was not confined the ten-year period is measured from the
date of conviction rather than release. . . .
According to this rule, the State of Tennessee may use a prior adult conviction to impeach
the testimony of an accused in a criminal prosecution if (a) the conviction was for a crime
that is punishable by death or imprisonment in excess of one (1) year or a misdemeanor
involving dishonesty or a false statement, (b) less than ten years have elapsed between
the date the accused was released from confinement and the commencement of the
prosecution, (c) the State of Tennessee gave reasonable written notice of the particular
conviction or convictions it intends to use to impeach the accused prior to trial, and (d) the
trial court finds the probative value of the felony or misdemeanor on the issue of credibility
outweighs its unfair prejudicial effect.6
In this case, the first three requirements, (a) through (c), have been satisfied. Thus,
the only issue which this Court must resolve is whether the probative value of the four
felonies outweighed their unfair prejudicial effect due to the similarity between these
6
See State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992).
7
convictions and the offenses alleged in the indictment.
In determining whether the probative value of a felony used to impeach an accused
outweighs its unfair prejudicial effect on the issues to be resolved by the jury, a trial court
should (a) "assess the similarity between the crime on trial and the crime underlying the
impeaching conviction" and (b) "analyze the relevance the impeaching conviction has to
the issue of credibility."7 When the analysis is applied in this case, it is clear the trial court
did not abuse its discretion in ruling the four felonies could be used to impeach Hobbs if
he opted to testify in support of his defense.8
The mere fact a prior conviction of the accused is identical, or similar in nature, to
the offense for which the accused is being tried does not, as a matter of law, bar the use
of the conviction to impeach the accused as a witness.9 The appellate courts of this state
have held the offenses of robbery, burglary, and theft are "highly probative of credibility"10
because these crimes involve dishonesty.11 Thus, the appellate courts have held that
convictions for these felonies may be used to impeach an accused being tried for one or
more of these offenses absent circumstances which require a different result.12
7
N. Cohen, D. Paine, and S. Sheppeard, Tennessee Law of Evidence, § 609.9 at
p. 288 (2nd ed. 1990); see Farmer, 841 S.W.2d at 839.
8
It is a well-established rule of law that questions concerning the admissibility of
evidence rest within the sound discretion of the trial court; and an appellate court will not
interfere with the exercise of this discretion absent a clear abuse appearing on the face of
the record. Stephenson, 878 S.W.2d at 542; State v. Van Tran, 864 S.W.2d 465, 477
(Tenn. 1993), cert. denied, ____ U.S. ____, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994);
State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S. Ct.
1368, 122 L. Ed. 2d 746 (1993); State v. Baker, 751 S.W.2d 154, 163 (Tenn.. Crim. App.),
per. app. denied (Tenn. 1987).
9
See State v. Miller, 737 S.W.2d 556, 560 (Tenn. Crim. App.), per. app. denied
(Tenn. 1987).
10
State v. Crank, 721 S.W.2d 264, 266 (Tenn. Crim. App.), per. app. denied (Tenn.
1986).
11
State v. Tune, 872 S.W.2d 922, 927 (Tenn. Crim. App.), per. app. denied (Tenn.
1993)(burglary); Miller, 737 S.W.2d at 560(burglary); Crank, 721 S.W.2d at 266 (burglary);
State v. Bowers, 673 S.W.2d 887, 889 (Tenn. Crim. App.), per. app. denied (Tenn. 1984)
(burglary); State v. Stafford, 670 S.W.2d 243, 245 (Tenn. Crim. App.), per. app. denied
(Tenn. 1984) (robbery and burglary); State v. Cole, 665 S.W.2d 407, 410 (Tenn. Crim.
App. 1983) (burglary); Price v. State, 589 S.W.2d 929, 931-32 (Tenn. Crim. App.), cert.
denied (Tenn. 1979) (burglary and grand larceny).
12
State v. Goad, 692 S.W.2d 32, 37 (Tenn. Crim. App.), per. app. denied (Tenn.
1985) (robbery conviction admissible to impeach accused in a prosecution for armed
robbery); State v. Norris, 684 S.W.2d 650, 654 (Tenn. Crim. App. 1984), per. app. denied
(continued...)
8
Hobbs’s reliance on Long v. State13 and State v. Farmer14 is misplaced. In Long,
a conviction for second degree murder was used to impeach the accused in a prosecution
for assault with intent to commit murder in the first degree. In Farmer, a conviction for
assault with intent to commit manslaughter was used to impeach the accused in a
prosecution for murder in the second degree. In both cases, this Court held the prejudicial
effect of introducing the prior convictions outweighed the probative value of the convictions.
As this Court said in Farmer, the probative value of these convictions was "slight or
nonexistent."15 In this case, the convictions are "particularly probative of credibility."16
This issue is without merit.
III.
Lavender and Hobbs challenge the length and method of serving the sentences
imposed by the trial court. Lavender contends the trial court committed error of prejudicial
dimensions by imposing the maximum sentences within the appropriate range and
requiring the sentences to be served consecutively. Hobbs contends that the trial court
committed prejudicial error by imposing the maximum sentences for robbery and requiring
him to serve the sentences consecutively.
A.
(...continued)
(Tenn. 1985) (armed robbery conviction admissible to impeach accused in a prosecution
for armed robbery); State v. Cole, 665 S.W.2d 407, 410 (Tenn. Crim. App. 1983), per. app.
denied (Tenn. 1984) (burglary convictions admissible to impeach accused in a prosecution
for burglary); State v. Davis, 649 S.W.2d 12, 13 (Tenn. Crim. App. 1982), per. app. denied
(Tenn. 1983) (bank robbery conviction admissible to impeach accused in a prosecution for
bank robbery); State v. Fluellen, 626 S.W.2d 299, 300 (Tenn. Crim. App.), per. app. denied
(Tenn. 1981) (armed robbery conviction admissible to impeach accused in a prosecution
for armed robbery).
13
607 S.W.2d 482 (Tenn. Crim. App.), per. app. denied (Tenn. 1980).
14
841 S.W.2d 837 (Tenn. Crim. App.), per. app. denied (Tenn. 1992).
15
841 S.W.2d at 840
16
Tune, 872 S.W.2d at 927.
9
When an accused challenges the length and manner of service of a sentence, it is
the duty of this Court to conduct a de novo review on the record with a presumption that
"the determinations made by the court from which the appeal is taken are correct."17 This
presumption is "conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances."18 The
presumption does not apply to the legal conclusions reached by the trial court in
sentencing the accused or to the determinations made by the trial court which are
predicated upon uncontroverted facts.19 However, this Court is required to give great weight
to the trial court's determination of controverted facts as the trial court's determination is
based upon the witnesses' demeanor, appearance, and vocal inflection.
In conducting a de novo review of a sentence, this Court must consider (a) any
evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the
principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives,
(e) the nature and characteristics of the offense, (f) any mitigating or enhancing factors, (g)
any statements made by the accused in his own behalf, and (h) the accused's potential or
lack of potential for rehabilitation or treatment.20
The party challenging the sentences imposed by the trial court has the burden of
establishing that the sentences imposed by the trial court were erroneous.21
17
Tenn. Code Ann. § 40-35-401(d).
18
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
19
State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891
S.W.2d 922, 929 (Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Bonestel,
871 S.W.2d 163, 166 (Tenn. Crim. App. 1993).
20
See Tenn. Code Ann. §§ 40-35-103 and -210; State v. Scott, 735 S.W.2d 825,
829 (Tenn. Crim. App.), per. app. denied (Tenn. 1987).
21
Sentencing Commission Comments to Tenn. Code Ann. § 40-35-401; Ashby, 823
S.W.2d at 169; Butler, 900 S.W.2d at 311.
10
B.
The trial court found the evidence supported four enhancement factors, and the
court used these factors to enhance the appellants’ sentences within the appropriate
range. The enhancement factors used to increase these sentences were: (a) they had a
previous history of criminal convictions and criminal behavior,22 (b) they treated or allowed
the victim to be treated with exceptional cruelty during the commission of the offense,23
(c) they had no hesitation about committing a crime when the risk to human life was high,24
and (d) they committed the crime under circumstances where the potential for bodily injury
to a victim was great.25 The trial court found there were no mitigating circumstances
supported by the record.
Lavender and Hobbs contend the trial court should not have used enhancement
factors (5), (10), and (16) to enhance their respective sentences. Lavender also contends
the trial court should have applied mitigating factor (6) because of his age at the time he
committed the crimes in question.26
The record reflects that Lavender was convicted of two offenses before the date in
question. He was convicted of selling a controlled substance and possession of a
controlled substance. Hobbs had been convicted of at least four felonies and two
misdemeanors. Thus, the trial court properly used enhancement factor (1) to enhance the
appellants' sentences.
Lavender and Hobbs make a strong argument that enhancement factors (5), (10),
and (16) were erroneously applied by the trial court to enhance their sentences within the
appropriate range. They take the position factors (10) and (16) should not be applied when
an accused is convicted of robbery. While this Court has held on numerous occasions
these factors should not be used to enhance a sentence in a robbery case, this is not an
22
Tenn. Code Ann. § 40-35-114(1).
23
Tenn. Code Ann. § 40-35-114(5).
24
Tenn. Code Ann. § 40-35-114(10).
25
Tenn. Code Ann. § 40-35-114(16).
26
Tenn. Code Ann. § 40-35-113(6).
11
ironclad rule which applies in every robbery case. To the contrary, whether an
enhancement factor should be used to enhance a sentence depends on the elements of
the offense and the evidence adduced at the trial and sentencing hearing.
In this case, the victims were senior citizens. Mr. Newbill was retired. The record
establishes Mr. Newbill suffered from heart disease. It was serious enough for Mr. Newbill
to take medication to avoid having a heart attack. Due to the shock of being awakened
during the night, the stress of being told he would be shot if he did not cooperate, and living
through this ordeal for approximately an hour, Mr. Newbill started having chest pains and
shortness of breath, classic signs of an ensuing heart attack. Mr. Newbill told the
appellants he was a heart patient, he was suffering the symptoms of a heart attack, and
he was going to be sick. The appellants would not permit him to get out of bed.
Consequently, he did not have access to his medication. Mr. Newbill took a nitroglycerine
tablet to alleviate the pain and avoid an ensuing heart attack after the appellants exited the
residence.
While it is true the appellants did not know who resided in the residence or the
condition of their health, this fact neither excuses nor mitigates the effect their conduct had
upon the Newbills. When they entered the Newbill residence, they assumed the risk that
a victim may be advanced in age, the victim may have a serious, life-threatening illness,
and their conduct could aggravate this medical condition and cause life-threatening
circumstances.
Based upon the facts of this case, the trial court properly applied enhancement
factors (5), (10), and (16). Neither factor constitutes an element of either robbery or theft.
The trial court should have applied enhancement factor (8) to increase Hobbs's
sentences within the appropriate range.27 The presentence report establishes that Hobbs
was granted probation in Madison County. This probation was revoked when he was
arrested for and convicted of several new crimes.
The trial court properly rejected mitigating factor (6).28 Lavender was 27 years of age
when he was sentenced. He has worked approximately four months since he left high
27
Tenn. Code Ann. § 40-35-114(8).
28
Tenn. Code Ann. § 40-35-113(6).
12
school in the eleventh grade. The record is devoid of evidence that Lavender's youth had
any effect on his criminal conduct. To the contrary, he was convicted of two drug offenses
before committing the crimes in question.
This issue is without merit.
C.
The trial court ordered that the appellants' sentences are to be served consecutively.
It found Hobbs to be "an offender whose criminal activity is extensive,"29 and both Lavender
and Hobbs to be "dangerous offender[s] 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."30 The appellants contend the sentences should be served concurrently.
An accused may be required to serve multiple sentences consecutively if (a) the
accused meets the criteria for consecutive sentencing set forth in the applicable statute,31
(b) the effective sentence imposed reasonably relates to the severity of the crimes
committed by the accused,32 and (c) an extended period of incarceration is necessary to
protect the public from the accused's future criminal conduct.33 The State of Tennessee
has the burden of establishing these factors before an accused can be required to serve
multiple sentences consecutively.34
Hobbs qualifies for consecutive sentencing because his "record of criminal activity
is extensive."35 Between February 1, 1991 and December 10, 1991, he was convicted of
aggravated robbery, aggravated burglary, theft of property in excess of $10,000, two
counts, evading arrest, assault, resisting arrest, and impersonation. He was required to
29
Tenn. Code Ann. § 40-35-115(b)(2).
30
Tenn. Code Ann. § 40-35-115(b)(4).
31
Tenn. Code Ann. § 40-35-115.
32
State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).
33
Wilkerson, 905 S.W.2d at 939.
34
State v. Barker, 642 S.W.2d 735, 739 (Tenn. Crim. App. 1982).
35
Tenn. Code Ann. § 40-35-115(b)(2).
13
serve the sentences for the felony convictions in the Department of Correction. Two of the
sentences were served consecutively. The offenses in question occurred on January 3,
1994. It is obvious that Hobbs committed the present offenses shortly after he was
released from the Department of Correction.
In his brief, Hobbs contends his prior convictions cannot be the basis of an
enhanced sentence and a consecutive sentence. This argument ignores the reported
decisions which hold the contrary. This Court has held on numerous occasions the prior
convictions of an accused can be used to establish the appropriate range, or enhance a
sentence within the appropriate range, and justify consecutive sentences.36
Both appellants qualify for consecutive sentencing because their "behavior indicates
[that they had] little or no regard for human life, and no hesitation about committing a crime
in which the risk to human life is high."37 The offense of robbery is a "crime in which the
risk to human life is high." In this case, the conduct of the appellants towards Mr. Newbill
established they had absolutely "no regard for human life.”
Mr. Newbill suffered from heart disease. The shock of being awakened in his home
and the fear instilled in him by the appellants caused him to suffer chest pains and
shortness of breath. These are common symptoms of an approaching or actual heart
attack. Mr. Newbill explained to one of the appellants he had a heart condition, he was
suffering from these symptoms, and he was about to become sick. The appellants would
not permit Mr. Newbill to get out of his bed. As a result, he did not have access to his
medication. However, he was given a glass of water. He testified he was in "bad shape."
Just as soon as the appellants exited the residence, Mr. Newbill took a nitroglycerine tablet
to alleviate the pain and to avoid having a heart attack. In short, the appellants did not
care if Mr. Newbill lived or died.
The evidence strongly suggests that the appellants were prowling the neighborhood
looking for a residence from which to steal property and a vehicle. Mr. Wilson, who lived
36
See State v. Franklin, 919 S.W.2d 362, 366 (Tenn. Crim. App. 1995), per. app.
denied (Tenn. 1996); State v. Marshall, 888 S.W.2d 786, 788 (Tenn. Crim. App.), per. app.
denied (Tenn. 1994); State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim. App. 1993), cert.
denied, ____ U.S. ____, 114 S. Ct. 1200, 127 L. Ed. 2d 548 (1994); State v. Davis, 825
S.W.2d 109, 113 (Tenn. Crim. App. 1991), per. app. denied (Tenn. 1992).
37
Tenn. Code Ann. § 40-35-115(b)(4).
14
across the street from the Newbills, heard noises. He turned on the outside floodlights and
saw two black men running away. They ran across the street and disappeared in a ditch.
Most people would be afraid to engage in other criminal activity for fear the police may be
summoned and find them in the neighborhood. Not the appellants. They entered the
Newbills’ residence and the remainder of the story is history.
What occurred after the police officers initiated their pursuit of Mr. Newbill's truck
also establishes this ground for consecutive sentencing. When the officers initiated their
pursuit, the appellants reduced the speed of the truck and exited while the truck was still
moving. The truck struck a pole. The truck could have struck someone preparing to walk
across the street, someone en route to work, or it could have struck a residence and killed
the sleeping occupants.
The damage to the vehicle indicates the truck was still traveling at a relatively high
rate of speed. The impact completely demolished the truck. The insurance company
found the truck was beyond repair, and it paid Mr. Newbill $9,600, the fair market value of
his 1991 model truck.
The lengthy sentences imposed by the trial court were appropriate. These
sentences "reasonably relate to the severity of the offenses” committed by the appellants.38
Also, these sentences are "necessary to protect the public against further criminal conduct"
at the hands of the appellants.39 Both of the appellants have prior criminal records, and
they have been required to serve jail or prison sentences for the past transgressions.
Obviously, the shorter sentences did not deter the appellants from committing the crimes
in this case.
________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
38
Wilkerson, 905 S.W.2d at 939.
39
Wilkerson, 905 S.W.2d at 939.
15
______________________________________
JOHN H. PEAY, JUDGE
______________________________________
DAVID G. HAYES, JUDGE
16