State of Tennessee v. Marthias S. Phillips and Lanard Keith Armstrong ( 2002 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 27, 2001
STATE OF TENNESSEE v. MARTHIAS S. PHILLIPS and LANARD
KEITH ARMSTRONG
Direct Appeal from the Criminal Court for Davidson County
No. 97-C-1833 J. Randall Wyatt, Jr., Judge
No. M2000-02575-CCA-R3-CD - Filed September 27, 2002
A Davidson County jury found the defendants, Marthias S. Phillips and Lanard Keith Armstrong,
guilty of facilitation of first-degree murder, criminal attempt to facilitate especially aggravated
kidnapping, and criminal attempt to facilitate especially aggravated robbery. The trial court
sentenced both defendants to serve 4-year sentences for their criminal attempt to facilitate especially
aggravated kidnapping convictions, 4-year sentences for their criminal attempt to facilitate especially
aggravated robbery convictions, and 20-year sentences for their facilitation of first-degree murder
convictions. The trial court sentenced both defendants as Range I offenders and ordered them to
serve their 4-year sentences for criminal attempt to facilitate especially aggravated kidnapping
concurrently to their 20-year sentences for facilitation of first-degree murder. The court then ordered
them to serve their 4-year sentences for criminal attempt to facilitate especially aggravated robbery
consecutively to their concurrent 20-year sentences, resulting in an effective sentence of 24 years.
The defendants now bring the instant appeal. Defendant Armstrong and Defendant Phillips both
challenge the sufficiency of the evidence to support their convictions, the propriety of the trial court’s
jury instructions, and the effectiveness of their trial counsel. Defendant Armstrong additionally
challenges the propriety of his sentence. After thoroughly reviewing the record and applicable law,
we find that none of these allegations merit relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
JERRY SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA MCGEE
OGLE , JJ. , joined.
Sam E. Wallace, Jr., Nashville, Tennessee for appellant, Marthias S. Phillips, and Dianne Turner,
Nashville, Tennessee for appellant, Lanard Keith Armstrong.
Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. Johnson, District Attorney General; Bret Gunn and Katrin Miller, Assistant District
Attorneys General, for appellee, State of Tennessee.
OPINION
Factual Background
Dee Martin, a female friend of the victim, began discussions with Andre Kirby, Ronald
Benedict, Learice Thomas, Defendant Armstrong, and Defendant Phillips about planning the robbery
of the victim, a drug-dealer who kept drugs and large sums of money in his house. These six
individuals were all members of the “Folks” gang. They developed a plan in which Martin would
contact the victim and ask him for a ride home from work, and once the victim agreed and was
dropping Martin off at her apartment, the others would force the victim to go back to his apartment
where they would rob him.
On December 20, 1996, these six individuals acted on their plans to rob the victim. They met
at Martin’s apartment and discussed their plan. Benedict’s role was to secure the victim’s car and
drive it to the victim’s apartment. Defendant Armstrong gave Benedict a .32 revolver that had been
kept at the apartment, and Benedict also collected a scarf and a glove from the apartment. When
Benedict returned to the apartment later that night, he met Defendant Phillips, Defendant Armstrong,
and Thomas, who were wearing dark clothes and ski masks while walking out the back door of the
apartment. He recognized Defendant Phillips by his voice and Defendant Armstrong and Thomas
by their height and build.
Martin called the victim and arranged to have him pick her up from her workplace. She then
called Kirby and notified him that the victim was en route to pick her up. The victim and his
girlfriend, Mabel Moore, picked up Martin at approximately 9:15 p.m. Martin claimed that she
wanted to call off their plan to rob the victim because the victim was not alone, but was with Moore.
When the victim stopped off in the Tennessee Village to speak with someone there, Martin called
Kirby and attempted to call off the robbery. Once Martin, Moore, and the victim arrived at Martin’s
apartment, Martin and the victim exited the car. Martin screamed as five men approached them.
Martin testified that all of the men were wearing coats and that Defendant Phillips was wearing a
black trench coat and Defendant Armstrong was wearing a baseball cap. Defendant Phillips, armed
with a shotgun that Martin had seen in her apartment, told the victim to “brace himself.” The victim
then began running, and Defendant Phillips, Defendant Armstrong, and Thomas chased him. At
some point thereafter, the victim was shot and killed.
While the defendants and Thomas chased the victim, Benedict, who was wearing a coat,
mask, and gloves, jumped into the victim’s car, which Moore had been driving. He pointed a gun
at Moore and ordered her to drive “under a bridge, over by the railroad tracks, you know, like on a
dirt road.” Benedict then ordered Moore out of the car, and as he was getting out of the passenger
door, Moore drove away. Benedict then began shooting at the retreating car. Benedict dumped his
clothes in a garbage can located on the Fisk University campus. An off-duty police officer who was
working as a Fisk University security guard stopped Benedict, discovered that he had no outstanding
warrants, and therefore released him. Moore later identified some gloves, a ski mask, and a Raider’s
jacket recovered from that garbage can as being similar to those worn by Benedict.
After the shooting, Defendant Phillips told Benedict that he and the victim had struggled over
the shotgun and that the shotgun had fired into the victim’s stomach. However, Defendant
Armstrong told Benedict that Defendant Phillips and the victim struggled for the gun and that the
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victim had the gun to Defendant Phillips’s throat. Defendant Armstrong then “ma[d]e a decision
whether it would be [Defendant Phillips] or [the victim].” Rodney Earl Jones, who claimed to have
been present during discussions about the planned robbery but not participating in those discussions,
testified that Defendant Phillips told him that he shot the victim when the victim reached for his gun
and that Defendant Armstrong told him that he had shot the victim while the victim and Defendant
Phillips were struggling for Phillips’s gun.
Meanwhile, when Martin heard the gunshots, she retreated to her apartment. Defendant
Armstrong advised her not to go back outside, and 10 to 15 minutes later, Benedict and Defendant
Phillips returned to the apartment, as well. Approximately 30 to 35 minutes after Martin arrived at
her apartment, the group finally left the apartment through the back door.
Victoria Anderson witnessed the victim’s shooting. She saw the victim surrounded by three
men and a fourth man standing near the side of her apartment building. She heard two shots, the first
of which hit an air conditioner near her and the second of which hit the victim. She saw the victim
fall after being shot and watched his attackers run away. Anderson then called the police, walked
outside, and covered the victim with a blanket.
Detective Clifford Mann interviewed Martin several hours after the shooting, in which she
finally admitted to some limited knowledge of the murder. In her second interview, Martin
confessed to her involvement in the instant crime.
Police officers recovered a spent shell casing from the crime scene and bullet fragments from
the victim. They determined that the shell casing was fired from a rifle and that the bullet fragments
were fired from a pistol or a rifle. The medical examiner who performed an autopsy on the victim
testified that the victim died of a gunshot wound to the chest, and that the wound was consistent with
having been fired from an assault rifle.
All six individuals who were involved in planning the victim’s robbery, Benedict, Thomas,
Kirby, Martin, Defendant Armstrong, and Defendant Phillips, were indicted for their involvement
in the resulting events. Defendant Armstrong and Defendant Phillips were tried jointly, and Martin
and Benedict testified for the state at their trial. As aforementioned, a jury found the defendants
guilty of facilitation of first-degree murder, criminal attempt to facilitate especially aggravated
kidnapping, and criminal attempt to facilitate especially aggravated robbery, for which they each
received an aggregate twenty-four year sentence. The defendants now bring this appeal, both
challenging the sufficiency of the evidence to support their convictions, the propriety of the jury
instructions, and the effectiveness of their counsel at trial. Defendant Armstrong also alleges that
the trial court improperly sentenced him. For the reasons below, we conclude that their allegations
do not merit relief.
Sufficiency
The defendants’ allege that the evidence introduced at trial is insufficient to support their
convictions for facilitation of first-degree murder, criminal attempt to facilitate especially aggravated
kidnapping, and criminal attempt to facilitate especially aggravated robbery. We first note that
Defendant Armstrong has waived this issue by failing to support his argument with any references
to authority or to the record. See Tenn. R. Ct. Crim. App. 10(b). Therefore, we will address only
Defendant Phillips’s sufficiency challenge.
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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 in evaluating the convicting proof. State v. Tilson, 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.” Id. at 779.
The defendants were both convicted of facilitation of first-degree felony murder, criminal
attempt to facilitate especially aggravated kidnapping, and criminal attempt to facilitate especially
aggravated robbery. In order to support a conviction for facilitation of felony-murder, there must
be evidence of the defendant’s facilitation of a felony, the commission or attempted commission of
the underlying felony, and a killing during the commission or attempted commission of that felony.
“A person is criminally responsible for the facilitation of a felony if, knowing that another intends
to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-
402(2), the person knowingly furnishes substantial assistance in the commission of the felony.”
Tenn. Code Ann. § 39-11-403(a). Felony murder is a form of first-degree murder, and it is defined
as “[a] killing of another committed in the perpetration of or attempt to perpetrate any first degree
murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse or aircraft piracy.”
Tenn. Code Ann. § 39-13-202(a)(2).
In order to support a conviction for criminal attempt to facilitate especially aggravated
kidnapping, there must be evidence of a criminal attempt, which is defined, in pertinent part, as
follows:
(a) A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense:
(1) Intentionally engages in action or causes a result that would constitute an offense
if the circumstances surrounding the conduct were as the person believes them to be;
(2) Acts with intent to cause a result that is an element of the offense, and believes
the conduct will cause the result without further conduct on the person's part; or
(3) Acts with intent to complete a course of action or cause a result that would
constitute the offense, under the circumstances surrounding the conduct as the person
believes them to be, and the conduct constitutes a substantial step toward the
commission of the offense.
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Tenn. Code Ann. § 39-12-101(a). Furthermore, to support this conviction, there must also be
evidence of the defendant’s facilitation of a felony, which is defined above, and that the defendant
attempted to facilitate the crime of especially aggravated kidnapping, which is defined as a false
imprisonment “accomplished with a deadly weapon or by a display of any article used or fashioned
to lead the victim to reasonably believe it to be a deadly weapon.” Tenn. Code Ann. § 39-13-
305(a)(1). False imprisonment is defined as the “knowing removal or confinement of another so as
to substantially interfere with the other’s liberty.” Tenn. Code Ann. § 39-13-302(a).
In order to support a conviction for criminal attempt to facilitate especially aggravated
robbery, there must be evidence of criminal attempt and facilitation of a felony, which are both
defined above, and especially aggravated robbery. Especially aggravated robbery consists of a
robbery, which is defined as “the intentional or knowing theft of property from the person of another
by violence or putting in fear,” that is accomplished with a deadly weapon and in which the victim
suffers serious bodily injury. Tenn. Code Ann. §§ 39-13-401, 403.
Defendant Phillips complains that the evidence “preponderates against the verdict” (1)
because the state did not prove that the defendants committed or attempted to commit the felonies
of especially aggravated kidnapping and especially aggravated robbery and therefore did not prove
the commission of an underlying felony to support his felony murder conviction and (2) because the
jurors must have found that Defendant Phillips did not have a criminally responsible intent, which
is required to sustain a facilitation conviction. We will address each of Defendant Phillips’s
arguments in turn.
First, we address Defendant Phillips’s contention that the state failed to prove the
commission of an underlying felony to support his facilitation of felony murder conviction.
However, as noted supra, felony murder is defined as “[a] killing of another committed in the
perpetration of or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft,
kidnapping, aggravated child abuse or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2). The
state introduced evidence that the defendants, armed and dressed in black, chased the victim at
gunpoint. Apparently, the defendants were trying to gain control of the victim in order to carry out
their plan of capturing the victim and forcing him to allow them entry into his house so that they
could steal the drugs and large sums of money that he kept there. Furthermore, the state also
introduced evidence regarding the way in which the victim was murdered. In one account of the
events, Defendant Phillips shot the victim during a struggle over Phillips’s gun, and in a second
account, Defendant Armstrong shot the victim while witnessing Defendant Phillips and the victim
struggle over Phillips’s gun. Based on this evidence, we believe that there was sufficient evidence
for a jury to conclude (1) that a felony was committed, namely the especially aggravated kidnapping
of the victim, (2) that the victim was killed during the commission of that felony, and (3) that
Defendant Phillips either committed the felony murder himself, or was guilty of the lesser-included
crime of facilitation of felony murder. See State v. Burns, 6 S.W.3d 453, 470 (Tenn. 1999) (holding
that facilitation of first-degree murder is a lesser-included offense of first-degree murder); State v.
Hicks, 835 S.W.2d 32, 35-36 (Tenn. Crim. App. 1992) (noting that although the evidence in this case
supported a felony murder conviction, the jury instead convicted the defendant of the lesser-included
offense of facilitation of felony murder, “a prerogative that the jury has under our system of justice
and a right to which the accused is entitled”). Therefore, because we find that the evidence was
sufficient to support a conviction for felony murder, Defendant Phillips’s contention that the
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evidence is insufficient to support his conviction for the lesser-included offense of facilitation of
felony murder lacks merit.
Defendant Phillips also argues that the evidence is insufficient to support his facilitation of
felony murder conviction because the jury found that he did not have a criminally responsible intent.
As outlined above, criminal responsibility for the facilitation of a felony is defined as follows: “A
person is criminally responsible for the facilitation of a felony if, knowing that another intends to
commit a specific felony, but without the intent required for criminal responsibility under § 39-11-
402(2), the person knowingly furnishes substantial assistance in the commission of the felony.”
Tenn. Code Ann. § 39-11-403(a). Section 39-11-402 defines the crime of criminal responsibility
for the conduct of another, and sub-section 39-11-402(2) enumerates one of the ways in which a
person may be criminally responsible for the criminal conduct of another, namely by “[a]cting with
intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of
the offense [and] solicit[ing], direct[ing], aid[ing], or attempt[ing] to aid another person to commit
an offense.” Tenn. Code Ann. § 39-11-402(2). Defendant Phillips argues that because the jury
charge included the above definition and because the jury found him guilty of facilitation based on
these definitions, the jury found that he did not have a criminally responsible intent. Defendant
Phillips further argues that “[w]ithout at least the amount of intent required for criminal
responsibility for the conduct of another . . . there is a legally insufficient basis for holding a
facilitator guilty of felony murder.” We disagree.
Criminal responsibility for the facilitation of a felony is a lesser-included offense of criminal
responsibility for the conduct of another. See State v. Fowler, 23 S.W.3d 285, 288 (Tenn. 2000).
Specifically, an accused need not have the criminal intent required to sustain a conviction for
criminal responsibility in order to be convicted of facilitation. See Tenn. Code Ann. § 39-11-403(a).
As our supreme court stated when discussing the applicability of the facilitation statute, “[t]he
Sentencing Commission Comments to section -403 state that application of the facilitation statute
is appropriate where an offender participates substantially in a felony but lacks the intent to promote,
assist or benefit from the offense.” State v. Flemming, 19 S.W.3d 195, 199 (Tenn. 2000).
Therefore, without finding that Defendant Phillips intended to promote, assist, or benefit from the
commission of the crimes, the jury could have reasonably concluded that he was guilty of having
facilitated the commission of those crimes if they determined that he knew that someone intended
to commit a felony and knowingly furnished that person with substantial assistance in the
commission of that felony. As discussed supra, we believe that based on the facts of this case, the
jury could have reached such a conclusion. Thus, this issue lacks merit.
Jury Instructions
Defendant Armstrong argues that the trial court erred by failing to instruct the jury that
Rodney Jones, who testified against him at trial but was not indicted for any participation in the
instant crime, was an accomplice as a matter of law or that the jury should decide whether Jones was
an accomplice as a matter of fact. However, the trial court failed to grant Defendant Armstrong a
new trial on this ground because it determined that Defendant Armstrong waived the issue by failing
to ask for such a jury instruction.
The trial court correctly found that Defendant Armstrong waived this issue when he failed
to request this jury instruction at trial. In State v. Anderson, 985 S.W.2d 9 (Tenn. Crim. App. 1997),
this Court addressed a factually similar scenario, one in which the trial court failed to include any
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accomplice instructions in the jury charge1 and in which the defendant failed to make a request for
an accomplice instruction. Ultimately, we found that the defendant waived the issue by failing
submit such a request based on the following reasoning:
[O]ur supreme court has held that an instruction on the rule requiring corroboration
of an accomplice’s testimony is not fundamental. Monts v. State, . . . 379 S.W.2d 34,
42 (Tenn. 1964); Arterburn v. State, . . . 344 S.W.2d 362, 364 (Tenn. 1961). Upon
the trial court’s failure to instruct the jury regarding accomplice testimony and the
requirement of corroboration, it becomes the obligation of the defendant to make a
special request for the instruction. Cole v. State, . . . 215 S.W.2d 824, 826 (Tenn.
1948); State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988). In the absence
of a special request, the trial court does not err by failing to instruct the jury about
accomplice testimony even if the circumstances of the case warrant such an
instruction. Arterburn, . . . 344 S.W.2d at 364; Cole, . . . 215 S.W.2d at 826; State v.
Blackwood, 713 S.W.2d 677, 681 (Tenn. Crim. App. 1986); State v. Copeland, 677
S.W.2d 471, 475 (Tenn. Crim. App. 1984); Bolton v. State, 591 S.W.2d 446, 448
(Tenn. Crim. App. 1979).
Anderson, 985 S.W.2d at 17-18. In the instant case, Defendant Armstrong similarly failed to make
a special request for an accomplice instruction regarding Jones’s testimony. Accordingly, he has
waived this issue on appeal. See id. Furthermore, we do not find that there is a basis for concluding
that Jones was an accomplice in the commission of the crimes at issue. An accomplice must do
more than have guilty knowledge, be morally delinquent, or even in participate in a distinct but
related offense. See State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990); Pennington
v. State, 478 S.W.2d 892, 898 (Tenn. Crim. App. 1971). The test for whether a witness is also an
accomplice is whether that witness could have been convicted of the offense. Lawson, 794 S.W.2d
at 369. While Jones was present during discussions in which the defendants and others planned to
kidnap and rob the victim, he claims not to have participated in those discussions. Moreover, there
is no other evidence linking him to the instant crimes. Therefore, we find that the trial court did not
err by failing to instruct the jury that Jones was an accomplice as a matter of law or that they could
determine that he was an accomplice as a matter of fact.
Defendant Phillips contends that the trial court erred by instructing the jury on flight, arguing
that there was no evidence to support a finding that he left the jurisdiction in order to avoid
prosecution. However, Defendant Phillips has waived this issue by failing to make appropriate
citations to the record or supporting authority in his argument. See Tenn. R. Ct. Crim. App. 10(b).
Regardless of the defendant’s waiver, we find that the trial court’s flight instruction was proper
because there is evidence in the record to support a finding that Defendant Phillips fled the
jurisdiction shortly after the commission of the instant crimes. Specifically, he traveled to Indiana
on December 22 or 23, 1996 for a period of seven or eight days, which was a period of time shortly
after the commission of the crimes on the evening of December 20, 1996. Moreover, the trial court
informed the jury that if they were to determine that Defendant Phillips fled the jurisdiction, the jury
could not base a verdict of guilt solely on that finding. Therefore, we find that the trial court did not
err by instructing the jury on the issue of flight.
1
In the instant case, the trial court did inform the jury tha t Ben edict and M artin were acc omp lices in
the commission of the crimes at issue. Furthermore, the court gave them instructions regarding how to weigh the
acco mplice testimo ny.
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Effectiveness of Assistance of Counsel
Defendant Armstrong and Defendant Phillips both complain that they received ineffective
assistance of counsel during their trial. We first note that claims of ineffective assistance of counsel
are generally more appropriately raised in a petition for post-conviction relief rather than on direct
appeal. See State v. Carruthers, 35 S.W.3d 516, 551 (Tenn. 2000); see also State v. Anderson, 835
S.W.2d 600, 606 (Tenn. Crim. App. 1992) (“Raising issues pertaining to the ineffective assistance
of counsel for the first time [on direct appeal] in the appellate court is a practice fraught with peril.”).
Generally, a post-conviction petition hearing provides a forum where an accused can build an
evidentiary basis demonstrating the ineffectiveness of his or her counsel. See Kirby George Wallace
v. State, No. 01C01-9308-CCA-00275, 1994 Tenn. Crim. App. LEXIS 591, at *3 (Tenn. Crim. App.
at Nashville, Sept. 15, 1994) (“[P]roceeding on an ineffectiveness claim without an evidentiary
hearing makes it practically impossible to demonstrate prejudice as required in ineffective assistance
claims.”).
With that caveat, we further note that when a defendant seeks relief on the basis of having
received ineffective assistance of counsel, the defendant bears the burden of showing that (a) the
services rendered by trial counsel were deficient and (b) that the deficient performance was
prejudicial. Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to
demonstrate deficient performance, the defendant must show that the services rendered or the advice
given was below “the range of competence demanded of attorneys in criminal cases.” Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the defendant must
show that there is a reasonable probability that, but for counsel’s deficient performance, the result
of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.
Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984).
A claim of ineffective assistance of counsel is a mixed question of law and fact and subject
to de novo review; however, a trial court’s fact-findings are subject to a de novo review with a
presumption of correctness. See Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Conclusions
of law are subject to a de novo standard of review. See id. Furthermore, an appellate court may
neither re-weigh nor re-evaluate the evidence or substitute its own inferences for those drawn by the
trial court. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).
Defendants Armstrong and Phillips both complain that their counsel ineffectively represented
them by failing to request a jury instruction regarding Rodney Earl Jones’s role in the instant crime
as their accomplice. However, Defendant Phillips has waived this issue by failing to include it in
his motion for new trial. See Tenn. R. App. P. 3(e). The trial court stated in its order denying the
defendants’ motions for new trial that it did not find that the evidence introduced at trial could
support a conclusion that Jones acted as an accomplice in the commission of the crime at issue. As
discussed supra, we find no evidence in the record that would support a finding that Jones acted as
the defendants’ accomplice because the only evidence linking him to the instant crime is his own
testimony that he was present during discussions about the planning and commission of the crimes
but did not participate in those discussions. This evidence is insufficient to support a finding that
Jones acted as an accomplice. See State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990)
(stating that in order to be an accomplice, a person must be more than someone who merely “has
guilty knowledge or is morally delinquent, or who was even an admitted participant in a distinct but
related offense”). Accordingly, we find that defendants’ counsel did not provide deficient
representation by failing to request an accomplice instruction regarding the witness Jones.
Defendant Armstrong also argues that his counsel provided him with deficient representation
because his counsel failed to call two alibi witnesses to testify at trial. However, Defendant
Armstrong has waived this issue by failing to make any citations to authority or to the record in
support of his argument. See Tenn. R. Ct. Crim. App. 10(b). Furthermore, we agree with the trial
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court that Defendant Armstrong has failed to demonstrate how he was prejudiced by his counsel’s
failure to call these witnesses. He did not offer these witnesses’ testimony at the motion for new trial
hearing, and thus we have no way of determining how Defendant Armstrong would have been
exculpated by their testimony. See Black v. State, 794 S.W.2d 753, 757 (Tenn. Crim. App. 1990)
(stating that an accused who alleges that his counsel provided deficient representation by failing to
call a witness at trial should present that witness’s testimony at an evidentiary hearing).
Accordingly, we find that defendant Armstrong has failed to show that he was deficiently
represented. Thus, this issue lacks merit.
Sentencing Challenge
Defendant Armstrong alleges that the trial court improperly ordered his sentence for criminal
attempt to facilitate especially aggravated robbery to run consecutively to his other two convictions,
facilitation of felony murder and criminal attempt to facilitate especially aggravated kidnapping.
“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review on the
record of such issues. Such review shall be conducted with a presumption that the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d).
“However, 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). In
conducting our review, we must consider the defendant’s potential for rehabilitation, the trial and
sentencing hearing evidence, the pre-sentence report, the sentencing principles, sentencing
alternative arguments, the nature and character of the offense, the enhancing and mitigating factors,
and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b); Ashby, 823 S.W.2d at
169. We are to also recognize that the defendant bears “the burden of demonstrating that the
sentence is improper.” Id.
A trial court may impose consecutive sentencing upon a determination that one or more of
the criteria set forth in Tennessee Code Annotated section 40-35-115(b) exists. This section permits
the trial court to impose consecutive sentences if the court finds, among other criteria, that “[t]he
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.” Tenn. Code Ann.
§ 40-35-115(b)(4). However, before sentencing the defendant to serve consecutive sentences on the
basis that he is a dangerous offender, the trial court must find that the resulting sentence is
reasonably related to the severity of the crimes and necessary to protect the public against further
criminal conduct. See State v. Imfeld, 70 S.W.3d 698, 708-09 (Tenn. 2002); State v. Wilkerson, 905
S.W.2d 933, 938-39 (Tenn. 1995). The trial court found that Defendant Armstrong was a dangerous
offender and accordingly ordered him to serve his sentence for criminal attempt to commit especially
aggravated robbery consecutive to his other two sentences.
Defendant Armstrong argues that the trial court erred by finding him to be a dangerous
offender because “[t]here was no evidence other than that adduced at trial” upon which to base a
finding that Defendant Armstrong was a dangerous offender and thus a candidate for consecutive
sentencing. However, the circumstances surrounding a criminal episode are proper considerations
for determining whether to sentence a defendant to serve his convictions stemming from that episode
consecutively. See, e.g., Imfeld, 70 S.W.3d at 708-09. In the instant case, the trial court stated that
the planning and commission of the attempted especially aggravated robbery indicated that the
defendants had little or no regard for human life and no hesitation about committing a crime where
the risk to human life was high. The trial court noted the facts that the defendants were heavily
armed and wearing ski masks in support of this finding. The trial court also noted that the victim’s
murder was a brutal one, as he was ambushed, chased at gunpoint, and then shot and killed.
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Considering these factors and that the defendants would serve only a portion of their sentences due
to their status as Range I offenders, the trial court ordered the defendants to serve their sentence for
criminal attempt to facilitate especially aggravated robbery conviction consecutive to their other two
sentences, finding that the resulting sentence of 24 years would be appropriately related to their
crimes. We find that this analysis was sufficient to satisfy the requirement of a finding that the
consecutive sentence is sufficiently related to the severity of the crime and necessary to protect the
public from the defendant’s further criminal activity. Therefore, we find that the trial court
appropriately sentenced Defendant Armstrong. Thus, his sentencing challenge lacks merit.
Conclusion
For the foregoing reasons, we find that none of the defendants’ allegations merit relief.
Accordingly, the judgment of the trial court is AFFIRMED.
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JERRY L. SMITH, JUDGE
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