State of Tennessee v. Samuel Moore ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
March 21, 2012 Session
STATE OF TENNESSEE v. SAMUEL MOORE
Direct Appeal from the Circuit Court for Warren County
No. F-11829 Larry B. Stanley, Jr., Judge
No. M2011-01680-CCA-R3-CD - Filed January 31, 2013
A Warren County Circuit Court Jury convicted the appellant, Samuel Moore, of attempted
first degree murder, aggravated assault, and assault. The trial court imposed a total effective
sentence of thirty-one years in the Tennessee Department of Correction. On appeal, the
appellant challenges the State’s failure to provide him with a verbatim transcript of the
suppression hearing, the trial court’s denial of his motion to suppress, the sufficiency of the
evidence supporting his convictions, and the sentences imposed. Upon review, we affirm the
judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are
Affirmed.
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and R OGER A. P AGE, JJ., joined.
Robert S. Peters, Winchester, Tennessee, for appellant, Samuel Moore.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Lisa S. Zavogiannis, District Attorney General; and Joshua Crain, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The appellant’s charges stemmed from two shootings on the night of September 3,
2008, at the home of the victims, Timothy Dorris and his mother, Carol Wright. At trial,
Dorris testified that he was in a sexual relationship with Brandy Franklin while Franklin was
living with and romantically involved with James Bailey. Dorris believed that Franklin was
in love with him and wanted her to end her relationship with Bailey.
Dorris stated that in the beginning of September 2008, he was living with his mother.
On the night of September 3, 2008, Dorris was drunk and called Franklin, who was at
Bailey’s house. He said that the conversation was “civil” until “somebody else grabbed the
phone and started cussing me out.” He did not know the identity of the person.
Shortly after the call, someone drove by Dorris’s house and fired three or four shots
at the house. When they heard the shots fired, Dorris and Wright ran outside the house and
saw a white vehicle drive away. Although Dorris ran toward the vehicle as it left, he was
unable to see who was in the vehicle. Dorris and Wright went back inside the house, and
Dorris called Bailey’s house. He said that he was angry because he thought “they” had shot
at him. Dorris could not recall if he spoke with someone or if he left a message.
Dorris testified that after the shooting outside, he continued drinking. He and Wright
were in the living room when someone kicked in the front door. Dorris got out of the
recliner, looked out the door, and saw the appellant pointing a twelve gauge shotgun at him.
The appellant asked “if [he] was Tim.” Dorris said no and closed the door. As he turned
around, a bullet came through the door and struck the left side of his back. At the time of the
shooting, Dorris had never met the appellant.
Dorris said that he was hospitalized for approximately two weeks but could only
remember the final three or four days of his stay. Dorris lost three ribs and his spleen, his
colon was “severed,” and he underwent three or four surgeries. After he was released from
the hospital, he went to live with his sister because he was afraid to go home. He continued
to see a doctor because of pain in his stomach. Additionally, he said that he was seeing a
counselor for post-traumatic stress disorder (PTSD).
On cross-examination, Dorris acknowledged that he had never spoken to the appellant
before the day of the shooting and that he could not identify the person with whom he spoke
over the telephone. He said that the door opened toward his recliner and that the recliner
prevented the door from completely opening. He acknowledged that the door was closed
when the gun was fired and that the shooter could not see where Dorris was standing.
Robert Boisinraut, one of the paramedics who responded to the scene, testified that
when he arrived, Dorris was lying inside the door, leaned up against a chair. Dorris “had an
abdominal evisceration, which means that basically his intestines were protruding from his
body.” Boisinraut said that Dorris was alert and spoke with him but that Dorris’s injuries
were life-threatening, and he had to be taken to Erlanger Hospital by medical helicopter.
-2-
Wright testified that on the night of the shootings, she left to run an errand, and, when
she returned, Dorris was drunk, upset, and crying. He said that he and Franklin had an
argument over the telephone. Wright said that they heard a gunshot and went outside. After
they were outside, Wright heard three gunshots being fired from the road. She saw a white
sport utility vehicle (SUV) with one of its doors open. She also saw a gun but was unable
to see the shooter. The SUV drove away, and Wright thought it might be Franklin. Dorris
ran through a field toward the vehicle but could not catch it. After the vehicle left, Dorris
and Wright went back in the house.
Wright said that after the shooting outside, she and Dorris were sitting in the living
room. The next thing she recalled was seeing “the front door come flying in,” and a male
voice asked, “Are you Tim?” Dorris said no and tried to shut the door. Wright heard a loud
pop and saw the front door’s insulation material spray into the air. Dorris leaned over a desk,
looked “dumbfounded,” and told her that he had been shot. Wright helped Dorris to the
floor, then she called 911. Wright did not see who was behind the door.
Wright said that she and Franklin were friends and that she knew Franklin was
involved in a relationship with both Bailey and Dorris. Wright recalled that about three
months prior to the shooting, she went to Bailey’s house to see Franklin. The appellant and
Bailey were at Bailey’s house. Dorris was drunk and had telephoned for Franklin. The call
agitated the appellant, and he looked at Wright and repeatedly told her, “[Y]our son ain’t
nothing but a n[*****].” He also stated, “I got something for him,” then looked at Bailey.
Brandy Franklin testified that she was living with Bailey when she began a romantic
relationship with Dorris. She told Dorris that she wanted to be with him exclusively if she
could get out of her relationship with Bailey.
Franklin said that on the night of the shooting, she was at Bailey’s house and was
talking to Dorris on a cellular telephone. Franklin said that Bailey knew she was speaking
with Dorris but that he did not care that she was involved with Dorris. The conversation
ended, but Dorris called again. Franklin handed the telephone to her best friend, then
Franklin passed the telephone to the appellant. The appellant laughed and told Dorris, “I’ll
whoop your ass, boy. . . . I’ll show you how to do it.” The appellant closed the telephone,
said he was going home, and left Bailey’s house.
Franklin said that at some point that night, Dorris left a message on the answering
machine, saying, “[Y]ou just going to leave me like this, drive by and shoot.” Franklin did
not know what Dorris was talking about until police told her about the shooting.
-3-
Franklin said that on the night of the shooting Bailey left for work around 9:30 p.m.
At approximately 10:00 p.m., Franklin left to go to a friend’s house in Jacksboro. Ashley
Nunley and Cody Pryor, who were living with Franklin but were not related to her, called
Franklin and told her that they thought police were at the house. Franklin told them to get
down, be quiet, and go across the field to Bailey’s mother’s house.
Franklin said that later that night, Investigator Martin found her at a friend’s house
and told her that Dorris had been shot. Investigator Martin took her to the Warren County
Jail where she gave a statement, but she did not mention the conversation between the
appellant and Dorris because she did not think the appellant’s threat was serious. In her
statement, she said that Bailey told her to “keep her mouth shut.” A day or two later,
Investigator Martin spoke with Franklin again and informed her that he knew she had left the
appellant’s involvement out of her first statement. At Investigator Martin’s behest, Franklin
gave another statement, acknowledging that she knew the appellant because he had done
some painting and mowing for Bailey. She also acknowledged that the appellant was at
Bailey’s house on the day of the shooting, that he spoke with Dorris on the telephone, and
that he threatened to “whoop” Dorris.
On cross-examination, Franklin stated that the appellant never threatened to shoot
Dorris and reiterated that she did not take the appellant’s threat to “whoop” Dorris seriously.
James Bailey testified that he was engaged to Franklin. Bailey said that on the night
of September 3, 2008, the appellant came to his house and that he gave the appellant twenty
dollars to buy gas. Bailey denied that he paid the appellant to shoot Dorris.
Ashley Nunley testified that she had lived with Franklin’s best friend, who was “kind
of like [Nunley’s] mom,” and that the woman and Nunley were living with Franklin. On the
night of September 3, 2008, the police came by Bailey’s house. At Franklin’s direction,
Nunley and Cody Pryor, Nunley’s ex-boyfriend, left Bailey’s house and went to Bailey’s
mother’s house to avoid the police. Later that night or early the next morning, police found
Nunley and Pryor and took them to the Warren County Sheriff’s Department to give
statements. Nunley told police that she did not know anything. Subsequently, on September
11, 2008, Nunley gave a written statement to police. In her written statement, she said that
the appellant came by Bailey’s house the night of the shooting, that the appellant stayed a few
minutes then left, and that about an hour later, the appellant came back then left again.
Cody Pryor testified that on September 3, 2008, he was outside Bailey’s house
working on his car. Pryor saw the appellant come to Bailey’s house one time and leave.
Later that evening, when police came by Bailey’s house, Franklin telephoned Pryor and
Nunley and told them to leave and go to Bailey’s mother’s house. They complied.
-4-
The next day, Pryor talked to the police. In his first statement, he did not tell police
about seeing the appellant at Bailey’s house. Just before Pryor’s second statement, the police
told Pryor that Dorris had been shot and that Dorris thought Pryor did it. Pryor said the
accusation made him angry because he knew it was not true. Therefore, in his second
statement, Pryor told police that the appellant was at Bailey’s house on the night of the
shooting. Pryor said he had heard that “there had been [a] confrontation between [Dorris]
and [the appellant] over the phone and that it had led to [Dorris] being shot.”
Investigator Marc Martin testified that at around 10:00 p.m. on September 3, 2008,
he was called to the scene of the shooting. When he arrived, Dorris had already been taken
from the scene. Wright and Dorris’s sister were present; they told police that Dorris and
Franklin were in a relationship and that they had a heated telephone conversation that night.
They also said that the appellant was Bailey’s friend and that the appellant had previously
threatened to hurt Dorris. Wright said that the shooter looked like Michael Vargo; however,
police verified that Vargo had an alibi for the time of the crime.
Investigator Martin said that he asked a patrol officer to go by Bailey’s house but that
no one answered the door. Later, Investigator Martin found Bailey at work. Bailey denied
knowing about a relationship between Dorris and Franklin. Investigator Martin asked if
Bailey had recently seen the appellant, and Bailey said that he had not seen the appellant for
a month. Investigator Martin also spoke with Franklin, who revealed that she had spoken
with Dorris that night. Franklin let Investigator Martin listen to a voicemail Dorris had left.
Investigator Martin said that most of the witnesses were uncooperative.
Investigator Martin said that hospital staff notified him when Dorris was conscious
and able to speak. Dorris was still “in bad shape,” but Investigator Martin needed to talk
with him because he did not know if Dorris would live or die. During the conversation,
Dorris identified Pryor as the shooter.
Investigator Martin later spoke with Pryor, who denied involvement in the shooting.
As a result of that interview, Investigator Martin spoke with Bailey. Bailey admitted that he
knew of Franklin’s relationship with Dorris and that the appellant had been at Bailey’s house
that night.
Subsequently, after waiving his Miranda rights, the appellant spoke with Investigator
Martin. Investigator Martin recalled that the appellant “was willing to tell us fairly quickly
that he had shot [Dorris].”
The appellant told Investigator Martin that around 8:00 p.m. on September 3, 2008,
he went to Bailey’s house. While he was there, he spoke with the appellant over the
-5-
telephone. He said that Dorris was drunk and threatened to rape the appellant’s wife.
Additionally, Dorris threatened to exhume the appellant’s deceased parents and desecrate
their bodies. The appellant got angry and told Bailey and Franklin that he was “going to take
care of” Dorris. He drove to Dorris’s house, fired some shots from the road to scare him, and
returned to Bailey’s house. When the appellant told Bailey what he had done, Bailey gave
him twenty dollars. The appellant returned to Dorris’s house and “shot him through the front
door of his house.” The appellant maintained that he did not intend to shoot Dorris and that
he only wanted to scare him. The appellant said that after the shooting, he went home and
went to bed. The next morning, he threw the gun “in a hole in Blues Hill.”
Investigator Martin said that police were unable to recover the gun used to shoot
Dorris. The appellant refused to tell police exactly where the gun was because he feared
police would “charge [him] with that[,] too.”
Investigator Martin testified that police collected a total of five shell casings from
around Wright’s house and the roadway. The slug that passed through Dorris was found in
the front room. Investigator Martin noticed a hole in the front door consistent with a shotgun
and saw that the door’s foam insulation had been blown out around the living room.
Investigator Martin said that the shotgun shells from Dorris’s yard and the shotgun shells
from the road near the house were all fired from the same gun.
Investigator Martin recalled that when the appellant left the general sessions
courtroom after his case was bound over to the grand jury, Investigator Martin was sitting
outside the courtroom with another investigator, “cutting up.” The appellant “made the
comment that he would get [Investigator Martin] for laughing at him.”
The appellant did not present any proof at trial.
The jury convicted the appellant of the attempted first degree murder of Dorris, a
Class A felony; the aggravated assault of Dorris, a Class C felony; and the assault of Wright,
a Class A misdemeanor. The trial court sentenced the appellant to twenty-five years, six
years, and eleven months and twenty-nine days, respectively. The court ordered the sentence
for the misdemeanor assault conviction to run concurrently with the felony sentences.
However, the court determined that the appellant’s aggravated assault sentence should be
served consecutively to his attempted first degree murder sentence, for a total effective
sentence of thirty-one years. On appeal, the appellant challenges the State’s failure to
provide him with a verbatim transcript of the suppression hearing, the trial court’s denial of
his motion to suppress, the sufficiency of the evidence supporting his convictions, the trial
court’s refusal to merge the attempted first degree murder and aggravated assault convictions,
and the trial court’s imposition of consecutive sentencing.
-6-
II. Analysis
A. Statement of Evidence
First, we will address the appellant’s claim that he is entitled to a new trial because
a complete transcript of his suppression hearing was not available. On February 26, 2009,
the appellant filed a motion to suppress the statement he made to police in response to
custodial interrogation. A suppression hearing was held on May 13, 2009. A letter written
by the court reporter reflects that during the suppression hearing, the recording equipment
malfunctioned, and she was unable to produce a verbatim transcript of the proceedings. In
an attempt to follow Rule 24 of the Tennessee Rules of Appellate Procedure, the State
prepared a statement of the evidence reflecting what transpired during the suppression
hearing.
The appellant filed an objection to the statement of the evidence, arguing that
[a]ccording to the rule set forth in the case of State v. Draper,
800 S.W.2d 489 (Tenn. Crim. App. 1990), when the issues make
out a colorable need for a complete record, the State is then
required to provide the defendant with a complete verbatim
transcript of the evidence and the proceedings. If the State
contends as it does in this case that a statement of the evidence
will suffice, the State then has the burden or onus of showing
that a statement of the evidence is sufficient for the defendant to
effectively present the issues and have them determined by the
appellate court on the merits.
The appellant maintained that a summary of the testimony did not adequately “convey the
full nature and character of the witness testimony.” He asserted that the malfunction of the
recording equipment was the State’s fault and that “[t]he State’s attempt to correct this
problem is inadequate.” The appellant contended that the statement of evidence prepared by
the State “is insufficient for the [appellant] to effectively present the issues and have them
determined by the appellate court on the merits”; therefore, he is entitled to a new trial.
The trial court filed an order denying the appellant’s motion. The court held that the
statement of evidence was a fair, accurate, and complete account of what transpired at the
suppression hearing.
-7-
On appeal, the appellant challenges the trial court’s ruling, again relying on Draper
as authority for his claim that he is entitled to a new trial. The State contends that the
appellant’s reliance on Draper is misplaced. We agree with the State.
In Draper, this court recognized that an appealing party is required to provide the
appellate court with a record sufficient to address the issues raised on appeal. See Draper,
800 S.W.2d at 492; see also Tenn. R. App. P. 24(b). This court also recognized that “the vast
majority” of appealing defendants are indigent and cannot afford to have the necessary
proceedings transcribed. See Draper, 800 S.W.2d at 494. Therefore, the Draper court held
that an indigent defendant had the right to have the germane portions of the proceedings
against him or her transcribed at the State’s expense. Draper, 800 S.W.2d at 492-95. In
other words, Draper primarily concerned the rights of an indigent defendant to have
transcripts prepared even if he or she cannot afford it.
In Draper, however, this court did not hold that only a verbatim transcript satisfies the
State’s obligation “to provide the [indigent] defendant with a ‘record of sufficient
completeness’ to permit proper consideration of the issues the defendant will present for
review.” Id. at 494 (quoting Draper v. Washington, 372 U.S. 487, 499 (1963)). Instead, this
court acknowledged that an “accused may prepare and include a statement of the evidence
and proceedings in the record if ‘no stenographic report, substantially verbatim recital or
transcript of the evidence or proceedings is available’. [emphasis added].” Id. at 492
(quoting Tenn. R. App. P. 24(b)). We conclude that the appellant’s reliance on Draper is
misplaced.
In our view, the situation in the instant case is almost identical to State v. William
Keith Blackburn, No. M2009-01140-CCA-R3-CD, 2011 WL 2893083 (Tenn. Crim. App.
at Nashville, July 20, 2011), perm. to appeal denied, (Tenn. 2011). In Blackburn, the entire
testimony of two trial witnesses and the partial testimony of one trial witness were unable to
be transcribed due to technical problems and the court reporter’s inadvertent failure to record
those testimonies. Id. at *15. Blackburn’s defense counsel prepared a statement of evidence
but argued that “the ‘statement is by no means a fair, accurate and complete account of the
testimony of the missing witnesses.’” Id. at *16. However, on appeal this court concluded
that the statement of the evidence satisfied Rule 24 of the Rules of Appellate Procedure and
that the appellant’s due process rights were not infringed.
As Rule 24 provides, when
no . . . transcript of the evidence or proceedings is available, the
appellant shall prepare a statement of the evidence or
proceedings from the best available means, including the
-8-
appellant’s recollection. The statement should convey a fair,
accurate and complete account of what transpired with respect
to those issues that are the bases of appeal. . . .
Tenn. R. App. P. 24(c) (emphasis added). In examining Rule 24, our supreme court has
explained that
the rules allow for a statement of the evidence or proceedings to
be used in cases where a verbatim transcript does not exist.
Because the statements are partly generated from the parties’
own recollections, however, Rule 24(c) anticipates that the
appellant will file a statement, that the appellee may file
objections to the statement, and that “[a]ny differences regarding
the statement shall be settled as set forth in subdivision (e) of
this rule” (emphasis added). Moreover, Rule 24(e) expressly
requires that the differences “shall be submitted to and settled
by the trial court regardless of whether the record has been
transmitted to the appellate court” (emphasis added). When
“shall” is used in a statute or rule, the requirement is mandatory.
Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009). Rule
24 further provides that “[a]bsent extraordinary circumstances, the determination of the trial
court is conclusive.” Tenn. R. App. P. 24(e).
In the instant case, the State prepared a statement of evidence, which the trial court
found was a “fair, accurate and complete account” of the suppression hearing. The appellant
did not contend that the statement of evidence was inaccurate; instead, he argued that “[t]he
testimony cannot simply be summarized adequately to convey the full nature and character
of the witness testimony” because the “nuances in the testimony cannot be replicated by a
statement of this kind.” Therefore, he contended that without a verbatim transcript of the
suppression hearing, this court would be unable to consider whether the appellant’s statement
was admissible. We conclude that, as the trial court found, the statement of the evidence is
sufficient for our review of the issues.
B. Motion to Suppress
Next, we will address the appellant’s complaint regarding the denial of his motion to
suppress. In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
-9-
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
Nevertheless, appellate courts will review the trial court’s application of law to the facts
purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the
State, as the prevailing party, is “entitled to the strongest legitimate view of the evidence
adduced at the suppression hearing as well as all reasonable and legitimate inferences that
may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Moreover, we note that “in
evaluating the correctness of a trial court’s ruling on a pretrial motion to suppress, appellate
courts may consider the proof adduced both at the suppression hearing and at trial.” State
v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
The appellant contends that his confession should have been suppressed because he
was illiterate and did not knowingly and intelligently waive his rights against self-
incrimination. Generally, for a confession to be admissible, it must be “‘free and voluntary;
that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct
or implied promises, however slight, nor by the exertion of any improper influence. . . .’”
State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996) (quoting Bram v. United States, 168 U.S.
532, 542-43 (1897)). Further, to determine the admissibility of a confession, “the particular
circumstances of each case must be examined as a whole.” Id. If, prior to making a
statement, the police inform the accused of his Miranda rights and the accused proceeds to
knowingly and voluntarily waive those rights, the statement is then admissible against the
accused due to the valid waiver of the privilege against self-incrimination. State v. Callahan,
979 S.W.2d 577, 581 (Tenn. 1998) (citing Miranda v. Arizona, 384 U.S. 436, 444-45
(1966)).
This court has previously stated that
despite testimony of the appellant’s illiteracy, mental disability,
and educational background; these factors do not, in and of
themselves, render the appellant’s statement involuntary. See
State v. Perry, 13 S.W.3d 724, 738 (Tenn. Crim. App.), perm. to
appeal denied, (Tenn. 1999) (citing State v. Bell, 690 S.W.2d
879, 882 (Tenn. Crim. App. 1985); State v. Greer, 749 S.W.2d
484, 485 (Tenn.. Crim. App. 1988); State v. Kelley, 683 S.W.2d
1, 6 (Tenn. Crim. App. 1984). Rather, they constitute factors for
the trial court to consider in evaluating the totality of the
circumstances.
State v. John Philip Noland, No. E2000-00323-CCA-R3-CD, 2000 WL 1100327, at *6
(Tenn. Crim. App. at Knoxville, Aug. 3, 2000).
-10-
In the instant case, the trial court found that the appellant was informed of his Miranda
rights and that he did not indicate that he did not understand his waiver. Investigator Martin
testified that he read the appellant his rights directly from a form on which the rights were
written. The appellant acknowledged that he understood the waiver and signed the form. The
appellant did not indicate that he did not understand or that he was illiterate. Although the
appellant’s wife testified that the appellant was illiterate, Investigator Martin asserted that
he read each portion of the statement to the appellant as he wrote it and then read the entire
statement to the appellant before the appellant signed the statement. There was no proof that
the appellant did not understand his rights or his statement. Accordingly, we conclude that
the trial court did not err in denying the appellant’s motion to suppress.
C. Sufficiency of the Evidence
The next issue listed in the appellant’s “Statement of Issues Presented for Review”
is whether the evidence was sufficient to sustain the appellant’s convictions. However, the
appellant did not make any argument concerning this issue. Therefore, we conclude that the
appellant has waived this issue. See Tenn. Ct. Crim. App. R. 10(b); Tenn. R. App. P.
27(a)(7).
D. Sentencing
The appellant’s remaining issues concern the trial court’s sentencing determinations.
The appellant contends that the trial court erred by imposing sentences for attempted first
degree murder and aggravated assault instead of merging the convictions. He also contends
that the trial court erred by imposing consecutive sentences.
On appeal, the appellant argues that “[i]t does not appear that the court should have
sentenced the [appellant] to consecutive sentences for attempted first-degree murder and
aggravated assault. These two offenses arose out of the same incident and were part of the
same investigation, and an acquittal or conviction of one . . . would have barred prosecution
for the other.” Although the appellant has couched this issue as a challenge to consecutive
sentencing, he appears to raise double jeopardy concerns. Generally, the double jeopardy
clauses of the United States and Tennessee constitutions protect an accused from: (1) a
second prosecution following an acquittal; (2) a second prosecution following conviction;
and (3) multiple punishments for the same offense. State v. Watkins, 362 S.W.3d 530, 548
(Tenn. 2012).
Initially, we note that the record does not include the opening and closing statements.
However, in its response to the appellant’s argument regarding consecutive sentencing, the
State said that the appellant
-11-
went to an individual that he did not know on two separate
occasions on the night in question, the first time firing off
rounds which led to the initial charge of aggravated assault, . .
. which the jury convicted him of and subsequently going back
to that residence, though that time shooting the individual
through the door after asking what his name was and verifying
that he was the individual he wanted to shoot, leading to the . .
. attempted first degree murder.
The appellant did not challenge the State’s recitation of facts. Moreover, the appellant did
not argue at the sentencing hearing or in his motion for new trial that the convictions were
based upon the same incident. In fact, the appellant raises this issue for the first time on
appeal. Based upon the evidence at trial, it is apparent that the convictions were based upon
separate incidents. Accordingly, we conclude that the appellant’s convictions do not violate
double jeopardy and that his claim is without merit.
As his final issue, the appellant challenges the trial court’s imposition of consecutive
sentencing. Previously, appellate review of the length, range, or manner of service of a
sentence was de novo with a presumption of correctness. See Tenn. Code Ann. §
40-35-401(d). However, our supreme court recently announced that “sentences imposed by
the trial court within the appropriate statutory range are to be reviewed under an abuse of
discretion standard with a ‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682,
708 (Tenn. 2012). Our supreme court has further explicitly stated that “the abuse of
discretion standard, accompanied by a presumption of reasonableness, applies to
within-range sentences that reflect a decision based upon the purposes and principles of
sentencing, including the questions related to probation or any other alternative sentence.”
State v. Christine Caudle, __ S.W.3d __, No. M2010-01172-SC-R11-CD, 2012 WL 5907374,
at *5 (Tenn. at Nashville, Nov. 27, 2012).
In conducting its review, this court considers the following factors: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by the
parties on enhancement and mitigating factors; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise,
380 S.W.3d at 697-98. The burden is on the appellant to demonstrate the impropriety of his
sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.
-12-
In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of
punishment is the sentence that should be imposed, because the
general assembly set the minimum length of sentence for each
felony class to reflect the relative seriousness of each criminal
offense in the felony classifications; and
(2) The sentence length within the range should be
adjusted, as appropriate, by the presence or absence of
mitigating and enhancement factors set out in §§ 40-35-113 and
40-35-114.
Tenn. Code Ann. § 40-35-210(c).
Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also
Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our supreme
court has stated that “a trial court’s weighing of various mitigating and enhancement factors
[is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words,
“the trial court is free to select any sentence within the applicable range so long as the length
of the sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id.
at 343. “[A]ppellate courts are therefore left with a narrower set of circumstances in which
they might find that a trial court has abused its discretion in setting the length of a
defendant’s sentence.” Id. at 345-46. “[They are] bound by a trial court’s decision as to the
length of the sentence imposed so long as it is imposed in a manner consistent with the
purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.
At the sentencing hearing, the State submitted the appellant’s presentence report as
an exhibit. The appellant stipulated the accuracy of his criminal convictions contained in the
report. Specifically, the report reflects that the appellant had three felony convictions for
marijuana possession, three felony convictions for domestic violence, one felony conviction
for child abuse, and misdemeanor convictions for marijuana possession, trespassing, driving
on a suspended license, and possession of drug paraphernalia. The report also reflects that
the appellant violated probation on three separate occasions.
In sentencing the appellant, the trial court noted that the appellant’s prior criminal
record was extensive and “very troublesome.” The court said, “Anyone who would engage
in those types of behaviors over a number of years and then engage in the type of behavior
-13-
that occurred here is a thoroughly dangerous and – dangerous is the best word to use for it.
He is a danger to society.” The court noted:
The facts of this case are even more troublesome in that
. . . this was not an ongoing feud. This is not retaliation from
harming your child, harming your mother. Really this was – I
believe most of the proof was that the [appellant] and the
victims really didn’t know each other that well. It’s hard to
imagine a much more bizarre and frightening scenario than what
happened here. We want to be safe. We want to be free to
come and go. We want to have confidence in our fellow citizens
in the city and the state and the United States and behave like
somewhat rational human beings and that is about as far from
what [the appellant] did in this situation as you could get, a
random – almost randomly shooting a man in his own house
with a shotgun for very little reason and causing great damage
to him, causing the . . . assault towards his mother, the other
assault.
The trial court sentenced the appellant to twenty-five years for the attempted first
degree murder conviction, six years for the aggravated assault conviction, and eleven months
and twenty-nine days for the misdemeanor assault conviction. The court ordered the
sentence for the assault conviction to run concurrently with the felony sentences. However,
the court determined that the appellant’s aggravated assault sentence should be served
consecutively to his attempted first degree murder sentence.
The court found that the appellant was a dangerous offender whose behavior indicated
little or no regard for human life. The court said, “[T]hat cannot be questioned I don’t think.”
The court further found that the “circumstances surrounding the commission of this offense
are aggravated. I think they’re just simply atrocious and almost inhuman.” The court stated:
Confinement for an extended period of time is necessary to
protect society from this gentleman’s unwillingness to lead a
productive life and there is no question in my mind that this
gentleman would resort to additional criminal activity in
furtherance of what I would call an anti-social lifestyle and that
the aggregate length of the sentences reasonably relates to the
offense[s of] which the [appellant] stands convicted.
-14-
Generally, “[w]hether sentences are to be served concurrently or consecutively is a
matter addressed to the sound discretion of the trial court.” State v. Adams, 973 S.W.2d 224,
230-31 (Tenn. Crim. App. 1997). Tennessee Code Annotated section 40-35-115(b) contains
the discretionary criteria for imposing consecutive sentencing. See also State v. Wilkerson,
905 S.W.2d 933, 936 (Tenn. 1995). The trial court may impose consecutive sentencing upon
finding the existence of any one of the criteria. In the instant case, the trial court found
criterion (2), that the appellant was an offender whose record of criminal activity is
extensive, and criterion (4), that the appellant 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)(2), (4). In order to
impose consecutive sentencing upon finding that a defendant is a dangerous offender, a court
must also find that “(1) the sentences are necessary in order to protect the public from further
misconduct by the defendant and (2) ‘the terms are reasonably related to the severity of the
offenses.’” State v. Moore, 942 S.W.2d 570, 574 (Tenn. Crim. App.1996) (quoting
Wilkerson, 905 S.W.2d at 938); see also State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).
First, we note that the trial court found that the appellant had an extensive criminal
history. Our review of the record reveals that the appellant has several prior convictions, the
majority of which involve drugs and physical violence. Therefore, we agree with the trial
court’s application of criterion (2). Additionally, the court found that the appellant was a
dangerous offender, that he would likely return to criminal activity, and that the length of the
sentences was reasonable in relation to the offenses committed. The trial court thoroughly
supported these findings on the record. Again, we agree with the trial court’s findings and
conclude that the court did not err by imposing consecutive sentences.
III. Conclusion
In sum, we conclude that the trial court did not err in accepting a statement of the
evidence instead of a transcript of the suppression hearing and that the trial court correctly
denied the appellant’s motion to suppress. We further conclude that the evidence was
sufficient to sustain the appellant’s convictions, that his convictions do not violate double
jeopardy, and that the trial court did not err by imposing consecutive sentencing. Therefore,
we affirm the judgments of the trial court.
___________________________________
NORMA MCGEE OGLE, JUDGE
-15-