State of Tennessee v. Willie Jones ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 5, 2016
STATE OF TENNESSEE v. WILLIE JONES
Appeal from the Criminal Court for Shelby County
No. 12-05666 James M. Lammey, Jr., Judge
No. W2014-02428-CCA-R3-CD - Filed April 6, 2016
The defendant, Willie Jones, appeals his Shelby County Criminal Court jury convictions
of second degree murder and being a felon in possession of a firearm, claiming that the
trial court erred by admitting certain witness testimony and by excluding other witness
testimony, by refusing to instruct the jury on self-defense, and by limiting his cross-
examination of certain witnesses. In addition, the defendant claims that the evidence was
insufficient to support his conviction of second degree murder, that the trial court erred
by imposing consecutive sentencing, and that the cumulative effect of these errors
prevented him from receiving a fair trial. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and D. KELLY THOMAS, JR., JJ., joined.
Paul K. Guibao, Memphis, Tennessee (on appeal); and Lorna McClusky, Memphis,
Tennessee (at trial), for the appellant, Willie Jones.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Carla Taylor and
Chris West, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
In October 2012, the Shelby County Criminal Court grand jury charged the
defendant with one count each of second degree murder, employing a firearm during the
commission of a dangerous felony, and being a felon in possession of a firearm, arising
out of the shooting death of the defendant‟s wife, Melody Shawnee Jones. The trial court
conducted a jury trial in July 2014.
The State‟s proof at trial showed that on the evening of April 27, 2011,
Memphis Police Department (“MPD”) Officer David Rowsey was dispatched to 1309
Royal Oaks on a “shot fired” call. The defendant answered the door when Officer
Rowsey and his partner, Officer Walker, arrived at approximately 11:00 p.m. The
defendant stated that he had shot his wife and directed the officers to an upstairs
bedroom, where Officer Rowsey discovered the body of the victim lying in a pool of
blood. On cross-examination, Officer Rowsey clarified that the defendant had stated,
“„You need to help me, I shot my wife by accident.‟”
Derrick Delancy, a firefighter paramedic with the Memphis Fire
Department, also responded to a call to the defendant‟s residence. Upon entering the
residence, Mr. Delancy found the victim lying “in a big puddle of blood.” While working
to save her, Mr. Delancy noticed a handgun on the bed nearby and requested that MPD
officers secure the firearm.
Lyrics Harlmon, the victim‟s brother, was awakened by multiple telephone
calls between 10:30 p.m. and 10:46 p.m. on April 27. Mr. Harlmon then received a text
message from his mother asking him to “call her ASAP.” After speaking with his
mother, Mr. Harlmon proceeded to the victim‟s residence. After he arrived, he listened to
a voicemail left on his cellular telephone at 10:46 p.m., and he heard the voices of the
defendant and the victim. After listening to the message, Mr. Harlmon gave the
telephone to MPD officers on the scene. Through the testimony of Mr. Harlmon, the
State entered into evidence a recording of the voicemail message, which was received
from the defendant‟s telephone. On the recording, a man and a woman, identified by Mr.
Harlmon as the defendant and the victim, can be heard arguing. Over the course of the
four-minute recording, the arguing escalates as the defendant begins cursing at the victim
and the victim tries to reason with him, asking, “Why are you doing this?” and “Why
would you do that to your damn children?” The arguing stops and, after nearly 20
seconds of silence, the sound of a single gunshot is audible. A few seconds later, the
defendant can be heard saying, in an even tone, “Shawnee,” just before the recording
ends.
On cross-examination, Mr. Harlmon insisted that he heard the victim state
on the audio recording, “„[W]hy are you pointing the gun at me,” and that he informed
officers on the scene of the victim‟s mention of a gun. Mr. Harlmon also testified that he
told officers that “it sounded like I may have heard a gun go off.”
MPD Officer Lee Walker with the crime scene division photographed the
crime scene on April 27, and through Officer Walker‟s testimony, the State introduced
into evidence those photographs. Based on conversations with other officers on the
scene, Officer Walker was under the impression that the defendant had been cleaning his
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handgun when it fired, striking the victim. Officer Walker searched for items that would
typically be used to clean a firearm and found none. Officer Walker photographed the
handgun lying on the bed in the upstairs bedroom, then removed the ammunition from
the weapon and catalogued both the ammunition and the firearm.
Tennessee Bureau of Investigation (“TBI”) Special Agent and forensic
scientist Cervinia Braswell testifed as an expert in firearms identification. Agent
Braswell examined the weapon recovered from the crime scene, a .22 caliber revolver, as
well as one spent cartridge case and six live cartridges. After test-firing four of the
cartridges and examining the spent cartridge case from the crime scene, Agent Braswell
determined that the cartridge case had been fired from the subject revolver. Agent
Braswell also examined the bullet recovered from the medical examiner, but the damage
to the bullet was too extensive for her to determine whether it had been fired from the
revolver. Agent Braswell‟s examination of the victim‟s shirt revealed that the distance
between the shirt and the muzzle of the revolver was less than 18 inches.
Marla Clark, the victim‟s cousin, testified that she paid the victim to
transport her child to and from school. One week prior to the victim‟s death, the victim
told Ms. Clark that “she was tired of the situation and that she wanted a divorce and [the
victim and the defendant] had agreed to . . . separate.” On the morning of April 27, Ms.
Clark contacted the victim and asked if she was “ready for the gas money.” The victim
responded in the affirmative, explaining that the money was needed because the only
money she had at that time was needed to pay for car insurance.
MPD Sergeant Eric Jackson responded to a domestic violence call at the
residence of the defendant and the victim on August 27, 2009. When the victim placed
the 9-1-1 call, she had explained that she “was involved with a physical altercation with”
the defendant and that “she was calling in secret” because she did not want the defendant
to know she had contacted the police. When Sergeant Jackson arrived at the residence,
he observed injuries to the victim‟s neck and arm. Sergeant Jackson and his partner
determined that the defendant was the primary aggressor and placed him under arrest.
A.H.J.,1 the 12-year-old daughter of the defendant and victim, testified that,
when she was five years old, she recalled that the victim was awake late at night waiting
for the defendant to return home. Because A.H.J. could not sleep, she sat with the victim
in the living room. When a truck arrived outside the residence, the victim instructed
A.H.J. to return to her room. A.H.J. overheard the victim tell the defendant to “tell that
trick to come inside,” followed by arguing among the victim, the defendant, and another
woman. After the woman left the house, A.H.J. heard her parents continue to argue, and
1
As is the policy of the court, we refer to minors by their initials.
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she heard “banging and loud noises against the wall” while her mother “would scream
and cry.”
When A.H.J. was six or seven years old and in the first grade, she was
practicing baton twirling in her room when the defendant returned home “drunk” with “a
brown bag with a bottle in it.” The defendant took the baton from A.H.J. and began
“bopping” A.H.J., the victim, and A.H.J.‟s 17-year-old brother on the head with it.
A.H.J., believing the defendant was just “playing,” chased after the defendant to retrieve
her baton. The victim asked the defendant to stop, stating that she knew he was “hitting
[her] harder than” he was hitting the children. The defendant then stopped and punched
the victim in the face.
When A.H.J. was in the second grade, she witnessed the defendant ask the
victim for the family‟s gasoline discount card. The victim asked the defendant where he
intended to go, and the defendant replied that it was none of the victim‟s business. When
the victim refused to turn over the card, the defendant attempted to grab it from the
victim‟s handbag, and the victim accused him of stealing. The defendant then began
beating the victim repeatedly. A.H.J. attempted to call 9-1-1, but the defendant knocked
the telephone from her hand and told her to go to her room. A.H.J. then tried to access 9-
1-1 through a computer, but the defendant appeared and knocked the computer away
from her while the victim “was just crying.”
The following year, the victim decided to force the defendant to move out
of the family‟s residence. A.H.J. encountered the defendant in the living room, packing
his belongings, and A.H.J. asked the defendant to say a prayer with her. The defendant
refused and told A.H.J. to “pray with [the victim] because she need[ed] it the most.”
At the age of nine, A.H.J. moved to the Royal Oaks residence with her
parents. Shortly thereafter, A.H.J. recalled an incident when she could hear “bumping
against the wall and [the victim‟s] screaming and crying.” Realizing that her parents
were “fighting” again, A.H.J. attempted to call 9-1-1, but she did not know the address.
The defendant‟s friend, known as Bologna, was visiting at the time, and A.H.J. asked him
to “go outside and tell me the address.” When Bologna realized that A.H.J. was
contacting the authorities, he took the telephone from her and ended the call.
Approximately one week before the victim‟s death, A.H.J. overheard her
parents arguing in their bedroom. A.H.J. heard the defendant tell the victim that “„one
day you ain‟t going to be here.‟”
Doctor Karen Chancellor, forensic pathologist and chief medical examiner
for Shelby County, performed the victim‟s autopsy. Doctor Chancellor determined that
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the cause of the victim‟s death was a gunshot wound to the chest, and the manner of
death was homicide.
With this evidence, the State rested. Following a Momon colloquy and the
denial of the defendant‟s motion for judgments of acquittal, the defendant elected to
testify and to present proof.
Officer Kevin Covington with the MPD Felony Response Bureau testified
that he took a statement from Mr. Harlmon on April 27 and that he did not recall Mr.
Harlmon‟s stating anything about a gun or a gunshot.
The defendant testified that he and the victim had been in a relationship for
20 years at the time of her death. He admitted that they “argued a lot” and “fought a lot”
and that they would occasionally “break up for a while.” The defendant denied ever
bringing another woman to the residence he shared with the victim, and he did not recall
the incident with the baton. When asked if he had ever struck the victim, the defendant
responded that he and the victim “had a lot of physical altercations.” With respect to
A.H.J.‟s testimony about the gasoline discount card incident, the defendant admitted to
pushing the victim, causing her to fall over a recliner, but he denied beating her. The
defendant denied ever “smack[ing] a computer out of” A.H.J.‟s hands and insisted that he
had never been abusive to his children. The defendant also denied ever telling the victim,
“„[Y]ou‟re not going to be around.‟”
When asked about the voicemail recording that had been entered into
evidence, the defendant explained that he had been angry at his brother for erasing the
telephone numbers that had been saved in his cellular telephone. The defendant stated
that the victim was asking him “why I‟m acting like that, it ain‟t her fault.” The
defendant testified that he and the victim then began arguing about money because the
victim “didn‟t want to tell [him] how much money she had.” The victim told the
defendant “she was fixing to count her coins,” and, according to the defendant, the
argument ceased. The victim was cleaning up the bedroom while the defendant drank a
beer.
When he finished his beer, the defendant asked the victim for his gun. The
victim told him that the gun was inside her purse. The defendant testified that he
retrieved the gun and that it was “already cocked from the night before.” He explained
that he routinely slept with the firearm cocked in order to protect the house from an
intruder. The defendant stepped into the bathroom to wash his hands and told the victim
that he planned to go outside to shoot his gun. As the defendant was standing in the
doorway of the bathroom, he attempted to uncock his weapon. Because his hands were
still wet, his thumb “slipped off the hammer” and the gun “fired,” striking the victim.
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The victim called the defendant‟s name, and he “could tell by the panic in her voice that
something was wrong.” The defendant then threw the gun onto the bed and contacted 9-
1-1. The 9-1-1 recording, which was admitted into evidence and played for the jury,
indicated that the call was placed by the defendant at 10:50:31 p.m. The defendant
denied that he had intended to shoot or kill the victim.
The defendant admitted that he was a convicted felon and that, as such, he
should not have had a handgun in his possession.
Based on this evidence, the jury convicted the defendant as charged of
second degree murder and being a felon in possession of a handgun; the State agreed to
enter a judgment of nolle prosequi on the charge of employing a firearm during the
commission of a dangerous felony. Following a sentencing hearing, the trial court
imposed a 25-year sentence for the second degree murder conviction, to be served at 100
percent by operation of law. The court sentenced the defendant as a multiple offender for
the felon in possession of a firearm conviction and imposed a four-year sentence, to be
served consecutively to the 25-year sentence, for an effective sentence of 29 years.
Following the denial of his timely motion for new trial, the defendant filed
a timely notice of appeal. In this appeal, the defendant contends that the trial court erred
by admitting certain witness testimony and by excluding other witness testimony, by
refusing to instruct the jury on self-defense, and by limiting his cross-examination of
certain witnesses; that the evidence adduced at trial was insufficient to support his
conviction of second degree murder; that the trial court erred by imposing consecutive
sentencing; and that the cumulative effect of these errors prevented him from receiving a
fair trial. We will address each issue in turn.
I. Evidentiary Issues
A. Prior Bad Acts
The defendant first contends that the trial court improperly admitted
evidence of his prior bad acts and that the trial court erred by excluding testimony of the
victim‟s violent nature. The State responds that the trial court did not abuse its
discretion.
Questions concerning evidentiary relevance rest within the sound discretion
of the trial court, and this court will not interfere with the exercise of this discretion in the
absence of a clear abuse appearing on the face of the record. See State v. DuBose, 953
S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993);
State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). An abuse of discretion occurs when the
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trial court applies an incorrect legal standard or reaches a conclusion that is “illogical or
unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204
S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.
2006)).
Relevant evidence is evidence “having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. “Evidence which
is not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed
relevant, it may be still be excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence,” Tenn. R. Evid. 403.
Generally speaking, “[e]vidence of a person‟s character or trait of character
is not admissible for the purpose of proving action in conformity therewith on a particular
occasion.” Tenn. R. Evid. 404(a). This rule is subject to certain exceptions, however,
including “evidence of a pertinent trait of character offered by an accused or by the
prosecution to rebut the same.” Tenn. R. Evid. 404(a)(1). In addition, “[e]vidence of
other crimes, wrongs, or acts” may be admissible for “other purposes,” such as proving
identity, criminal intent, or rebuttal of accident or mistake. Tenn. R. Evid. 404(b); State
v. Thacker, 164 S.W.3d 208, 239-40 (Tenn. 2005). To admit such evidence, the rule
specifies four prerequisites:
(1) The court upon request must hold a hearing outside the jury‟s
presence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and
the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to
be clear and convincing; and
(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b).
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In the instant case, the trial court conducted hearings outside the jury‟s
presence to determine the admissibility of the testimony of Officer Jackson regarding the
defendant‟s August 2009 arrest for the domestic assault of the victim; the testimony of
Ms. Clark concerning the victim‟s intent to file for divorce and her need of gasoline
money; and the testimony of A.H.J. regarding the defendant‟s prior domestic abuse of the
victim. With respect to Officer Jackson, the court found clear and convincing evidence
of a settled purpose to harm the victim, see State v. Smith, 868 S.W.2d 561, 574 (Tenn.
1993), that it was not too far removed in time from the murder to be relevant, and that its
probative value was not outweighed by the danger of unfair prejudice. No abuse of
discretion attends the admission of this testimony.
Concerning the testimony of Ms. Clark, it appears that her testimony did
not rise to the level of a 404(b) issue. That the victim indicated, one week prior to her
death, that she wished to divorce the defendant and stated on the date of her death that
she was in need of gasoline money does not call into question the defendant‟s character
or action in conformity with a character trait. Both of the victim‟s statements were
unquestionably hearsay, see Tenn. R. Evid. 801, 802, but the statement regarding the
divorce was subject to the state of mind exception, see Tenn. R. Evid. 803(3). The
statement concerning the need for gasoline money appears to be inadmissible hearsay
subject to no exception. The defendant failed to object to this testimony at trial, however,
and a court “generally has no duty to exclude evidence or to provide a limiting instruction
to the jury in the absence of a timely objection.” State v. Smith, 24 S.W.3d 274, 279
(Tenn. 2000). In any event, the testimony regarding the victim‟s need for gasoline
money was certainly harmless.
With respect to A.H.J.‟s testimony of multiple instances of domestic abuse
and threats, the trial court found clear and convincing evidence of the defendant‟s settled
purpose to harm the victim and the volatile relationship between the defendant and the
victim, see Smith, 868 S.W.2d at 574, and the court further found that the probative value
of each of the six specific incidents outweighed the danger of unfair prejudice.
Additionally, the trial court found A.H.J. to be “very impressive” and found her
testimony to be “very, very believable.”
Given the trial court‟s thorough compliance with the requirements of Rule
404(b), we find no abuse of discretion in the lower court‟s decision to admit the
aforementioned testimony.
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B. Self-Defense
The defendant argues that the trial court erred by refusing to allow the
defendant‟s mother to testify about the victim‟s violent nature and by refusing to instruct
the jury on self-defense.
Our review of the record reveals that at no point did the defendant request a
jury instruction on self-defense, nor did the defendant raise this issue in his motion for
new trial or his amendments to the motion. See Tenn. R. App. P. 3(e) (“[I]n all cases
tried by a jury, no issue presented for review shall be predicated upon error in . . . [any]
ground upon which a new trial is sought, unless the same was specifically stated in a
motion for a new trial; otherwise such issues will be treated as waived.”); see also State v.
Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding that a defendant relinquishes the
right to argue on appeal any issues that should have been presented in a motion for new
trial but were not raised in the motion); State v. Dodson, 780 S.W.2d 778, 780 (Tenn.
Crim. App. 1989). “Issues raised for the first time on appeal are considered waived.”
State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996); see also Tenn. R. App.
P. 36(b). Because he raises the jury instruction issue for the first time on appeal, it is
waived.
With respect to the defendant‟s argument that the trial court erred by its
refusal to allow him to present the testimony of his mother regarding the victim‟s alleged
violent nature, the defendant failed to make an offer of proof following the trial court‟s
ruling. Without this testimony, we cannot assess the impact of the trial court‟s exclusion
of the evidence. When the trial court makes a ruling excluding evidence, the party
offering the evidence is obliged to make an offer of proof to preserve the issue for
review. See Tenn. R. Evid. 103(a)(2) (“Error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party is affected, and . . . [i]n
case the ruling is one excluding evidence, the substance of the evidence and the specific
evidentiary basis supporting admission were made known to the court by offer or were
apparent from the context.”); see also State v. Hall, 958 S.W.2d 679, 691 n.10 (Tenn.
1997) (“Not only does [an offer of proof] ensure effective and meaningful appellate
review, it provides the trial court with the necessary information before an evidentiary
ruling is made. Indeed, generally, if an offer of proof is not made, the issue is deemed
waived and appellate review is precluded.”). Accordingly, the defendant has waived this
issue.
II. Cross-Examination of State Witnesses
The defendant next contends that the trial court erred by limiting his ability
to meaningfully cross-examine A.H.J. and Mr. Harlmon, thereby infringing on his
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constitutional right to confront witnesses against him. We disagree.
In Tennessee, “the propriety, scope, manner and control of the examination
of witnesses is a matter within the discretion of the trial judge, subject to appellate review
for abuse of discretion.” State v. Caughron, 855 S.W.2d 526, 540 (Tenn. 1993); see State
v. Hutchison, 898 S.W.2d 161, 172 (Tenn. 1994); State v. Dishman, 915 S.W.2d 458, 463
(Tenn. Crim. App. 1995); State v. Barnard, 899 S.W.2d 617, 624 (Tenn. Crim. App.
1994); see also Tenn. R. Evid. 611(a) (stating that the trial court has authority to
“exercise appropriate control over the presentation of evidence and conduct of the trial
when necessary to avoid abuse by counsel”). Consequently, absent a clear abuse of
discretion that results in manifest prejudice to the accused, this court will not interfere
with the trial court‟s exercise of its discretion on matters pertaining to the examination of
witnesses. State v. Johnson, 670 S.W.2d 634, 636 (Tenn. Crim. App. 1984).
With respect to the testimony of A.H.J., the defendant wished to cross-
examine her regarding her alleged anger issues and an unidentified medication she had
been prescribed for, among other things, post-traumatic stress disorder. The trial court
conducted a hearing outside the presence of the jury and determined that questions
regarding A.H.J.‟s alleged anger and prescribed medication were irrelevant. Given the
overwhelming evidence of the defendant‟s guilt, as will be addressed more fully herein,
we cannot say that this limitation imposed by the trial court resulted in “manifest
prejudice” to the defendant, and we find no abuse of discretion in the trial court‟s
decision.
Likewise, we find no abuse of discretion in the trial court‟s supposed
limitation of the cross-examination of Mr. Harlmon. The defendant complains that Mr.
Harlmon testified on direct examination that he had informed MPD officers that he had
heard the sound of a gunshot on the voicemail left by the defendant at 10:46 p.m. on
April 27 but that Mr. Harlmon‟s statement to officers at the scene contained no such
mention of hearing gunfire. On cross-examination, Mr. Harlmon insisted that he had told
officers about the sound of the gunshot, but defense counsel failed to impeach Mr.
Harlmon with his statement. When defense counsel attempted the impeachment on
recross-examination, the State objected, and the trial court sustained the objection,
properly finding that such questioning was beyond the scope of redirect examination.
Moreover, in the defendant‟s case-in-chief, MPD Officer Kevin Covington testified that
he took a statement from Mr. Harlmon on April 27 and that he did not recall Mr.
Harlmon‟s stating anything about a gun or a gunshot. Under these circumstances,
nothing indicates that the trial court improperly restricted the defendant‟s ability to
effectively cross-examine Mr. Harlmon. The defendant is not entitled to relief on this
issue.
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III. Sufficiency
Next, the defendant argues that the evidence adduced at trial was
insufficient to support his second degree murder conviction. We disagree.
We review the defendant‟s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).
When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.
As charged in this case, “[s]econd degree murder is . . . [a] knowing killing
of another.” T.C.A. § 39-13-210. Affording the State the strongest legitimate view of the
evidence and deferring to the credibility determinations made by the jury, we conclude
that the evidence strongly supports the defendant‟s conviction of second degree murder.
The evidence established that the defendant shot the victim once in the chest from a
distance of less than 18 inches. On the audio recording of the four-minute voicemail left
on Mr. Harlmon‟s telephone at 10:46 p.m. on April 27, the defendant and the victim can
clearly be heard arguing, and the argument escalated into the defendant‟s raising his
voice and cursing at the victim. Near the end of the four-minute recording, the sound of a
gunshot is audible, and a few seconds later, the defendant calmly says the victim‟s name
before calling 9-1-1 at 10:50:31 p.m. Although the defendant claimed that the shooting
was accidental, such matters of witness credibility and evidentiary weight are within the
exclusive province of the trier of fact, and this court will not reweigh such evidence. See
Dorantes, 331 S.W.3d at 379.
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IV. Sentencing
The defendant next contends that the trial court abused its discretion by
ordering consecutive service of his sentences. Specifically, the defendant asserts that the
trial court failed to make the requisite findings to classify him as a dangerous offender.
Again, we disagree.
Our standard of review of the trial court‟s sentencing determinations in this
case is whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005
amendments to „place on the record, either orally or in writing, what enhancement or
mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.‟” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. §
40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709.
With respect to consecutive sentencing, our supreme court has held that the
standard of review adopted in Bise “applies similarly” to the imposition of consecutive
sentences, “giving deference to the trial court‟s exercise of its discretionary authority to
impose consecutive sentences if it has provided reasons on the record establishing at least
one of the seven grounds listed in Tennessee Code Annotated section 40-35-115(b).”
State v. Pollard, 432 S.W.3d 851, 861 (Tenn. 2013). When the trial court bases its
consecutive sentencing determination on the “dangerous offender” ground, the court
“must conclude that the evidence has established that the aggregate sentence is
„reasonably related to the severity of the offenses‟ and „necessary in order to protect the
public from further criminal acts.‟” Id. at 863 (quoting State v. Wilkerson, 905 S.W.2d
933, 938 (Tenn. 1995)).
At the sentencing hearing in the instant case, the trial court clearly
determined that consecutive sentencing reasonably related to the severity of the
defendant‟s crimes but failed to make the other requisite finding of necessity to protect
the public from further criminal acts. When “[f]aced with this situation, the appellate
court has two options: (1) conduct a de novo review to determine whether there is an
adequate basis for imposing consecutive sentences; or (2) remand for the trial court to
consider the requisite factors in determining whether to impose consecutive sentences.”
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Pollard, 432 S.W.3d at 864. In this case, unlike the situation in Pollard, sufficient
factual findings exist for this court to conduct a de novo review.
The defendant‟s presentence report, which was introduced into evidence at
the sentencing hearing, established that his criminal history spanned some 13 years,
beginning with minor traffic convictions at the age of 19 and graduating to two felony
drug convictions, a conviction of criminal exposure to HIV, and a conviction for the prior
domestic assault of the victim. The trial testimony established that the defendant had
repeatedly engaged in the domestic abuse of the victim, even going so far as to threaten
her impending demise one week prior to her murder.
Given the defendant‟s lengthy criminal history, his history of domestic
violence against the victim, and his possession of a loaded and cocked handgun, the
sentence imposed by the trial court reasonably related to the severity of the crimes
committed and was necessary to protect the public from further criminal acts by the
defendant. As such, the proof established that the defendant was a dangerous offender.
We therefore find an adequate basis for the imposition of consecutive sentencing and
affirm the sentencing determination of the trial court.
V. Cumulative Error
Finally, the defendant contends that the cumulative effect of the trial court‟s
errors inured to his prejudice. Having considered each of the defendant‟s issues on
appeal and concluded that he is not entitled to relief for any, we need not consider this
issue any further. State v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010) (“To warrant
assessment under the cumulative error doctrine, there must have been more than one
actual error committed.”).
Conclusion
Based upon the foregoing analysis, the judgments of the trial court are
affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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