State of Tennessee v. Russell Lenox Hamblin ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 2, 2010
STATE OF TENNESSEE v. RUSSELL LENOX HAMBLIN
Direct Appeal from the Criminal Court for Davidson County
No. 2007-B-1043 Steve Dozier, Judge
No. M2008-02511-CCA-R3-CD - Filed October 29, 2010
The defendant, Russell Lenox Hamblin, was convicted of three counts of aggravated robbery
and sentenced to ten years for each of the first two convictions and to twelve years for the
third conviction. All the sentences were ordered to run consecutively, for a total effective
sentence of thirty-two years. On appeal, he argues that: the evidence was insufficient to
support his convictions; the trial court erred in admitting evidence of the sale and purchase
of automobiles; the trial court abused its discretion in allowing his credibility to be
impeached; and he was improperly sentenced. After careful review, we affirm the judgments
from the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and A LAN E. G LENN, J., joined.
Dumaka Shabazz (on appeal) and Lee Sprouse (at trial), Nashville, Tennessee, for the
appellant, Russell Lenox Hamblin.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Pamela Sue Anderson,
Assistant District Attorney General, for the appellee, State of Tennessee
OPINION
The defendant was convicted of the aggravated robbery of a Chinese restaurant and
a nail salon in Nashville. On December 26, 2006, the victims, Mr. and Mrs. Choy, the
owners of the restaurant, were working alone. There were no customers in the restaurant
when the defendant entered the establishment to pick up an order that cost two dollars. The
defendant left but immediately returned and asked for some hot sauce. Mr. Choy went into
the kitchen to get some hot sauce while the defendant went into the restroom. The defendant
sprayed Ms. Choy in the eye and entered the kitchen where he then sprayed Mr. Choy.
Another man, Sedric Holt, entered the restaurant, pointed a gun at Mrs. Choy, and told Mr.
Choy to lie on the floor. The defendant and Holt opened the cash register and removed all
the money. The defendant was described by Mr. Choy as “the little one.” The defendant
asked if there was a safe or camera in the restaurant, and Mr. Choy told him that they had
neither. The defendant instructed Holt to search the victim’s pockets, where they found
$4300 from Mr. Choy and $100 from Mrs. Choy. One of the robbers took Mrs. Choy’s
purse, and Holt took Mr. Choy’s wallet and car keys.
After the robbers left, Mr. Choy went to the liquor store next door to call 9-1-1,
because the robbers had taken the cord to the restaurant’s phone. At that time, Mr. Choy
noticed that his wife’s car was gone. Mrs. Choy was in charge of making the deposits for the
restaurant. Because she was working longer hours and was caring for a sick family member,
Mrs. Choy did not make regular deposits from Thanksgiving through Christmas and, instead,
kept the deposits in the trunk of her car. The victims did not know how much money was
in the car when it was taken after the robbery.
Mr. Choy was taken to the hospital by ambulance because of the pepper spray in his
eyes. After he showered that evening, he was again burned because the pepper spray in his
hair ran into his eyes. He was unable to identify either of the robbers in the first
photographic lineup but identified Holt in the second photographic lineup.
Eric Holt, a cousin of Sedric Holt, testified that he saw the defendant and Holt remove
some bags from a green Honda automobile that he had not seen prior to the night of the
robbery. He watched them remove the contents of the bags, which included money, credit
cards, identification cards, and pictures of Asian-American children. He testified that the
men threw the pictures and identification cards into a dumpster outside of the apartment. He
said the total amount of money was $17,557. Eric Holt testified that the defendant and his
cousin, Sedric, went shopping at the Hickory Hollow Mall and purchased clothes, an
engagement ring for the defendant’s girlfriend, and a truck with the money. The defendant
bought some items for Eric, but he returned them because he was not a part of their gang.
Eric borrowed the green Honda from Sedric Holt. When he returned the car, Sedric
informed him that it was stolen. Eric was upset because he knew his fingerprints were in the
car and he did not want to go to jail. After his fingerprints were discovered in the car, Eric
was questioned at school by a detective. Eric told the police about the defendant.
The victims recovered the Honda on the evening of January 3, 2007, after it had been
found by the police. Their daughter noticed there was a cellular telephone in the car and
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knew that her parents did not own a cellular telephone. She went through the phone and
observed that it belonged to someone involved in the robbery.
Sedric Holt testified that he was eighteen years of age in 2006. He testified that he
met the defendant in 2006. The defendant started dating his sister after Thanksgiving that
year. He testified that, in November 2006, the defendant began saying they were a crime
boss family and got a tattoo on his hands that said “Crime boss.” His sister got a “CBF”
tattoo. On December 26, 2006, Holt was riding with the defendant when they stopped at the
House of Choy restaurant. He testified that he had taken some Ecstasy pills and smoked
marijuana laced with cocaine two hours earlier. He put a gun in his pocket and walked into
the restaurant with the defendant. The defendant ordered food and went to the restroom
before spraying Mrs. Choy with mace.
Sedric Holt said he drew his gun and aimed it at Mr. Choy while ordering him to show
his hands. After he watched the defendant spray mace in Mr. Choy’s face, Holt looked for
money. The victims told them that they did not have any money in the restaurant. The
defendant told them that he did not want to hurt them; he only wanted money. Sedric Holt
took a $100 bill from Mrs. Choy and the money in her pocket. The defendant told him to
take the victim’s keys, and he complied. When they left the victim’s restaurant, the
defendant told him to take Mrs. Choy’s car. They sorted the stolen goods and determined that
they had taken approximately seventeen thousand dollars. The defendant later made a down
payment on a black Aztec truck with some of the money.
On the evening of January 12, 2007, Andy Dao, another victim, was working in his
father’s nail salon on Donelson Pike when two people, later identified as the defendant’s
girlfriend and Sedric Holt, entered the store. The defendant’s girlfriend received a manicure
while Sedric Holt paced in and out of the store. When the manicure was complete, Sedric
Holt paid for the service. The victim heard her ask Holt, “Are you actually going to pay for
this?” After they exited, Holt walked back inside and asked the victim for change for a ten-
dollar bill. When the victim bent down to take out ten one-dollar bills, Holt displayed a gun
and said, “stick it up.” Holt then took a can of mace from his pocket and sprayed the victim.
The victim was able to turn away to avoid the spray in the face. Holt took the store’s money
envelope which contained approximately five hundred dollars.
An eyewitness in the store testified that the defendant was not the man who robbed
the store but did positively identify the defendant’s girlfriend and his car. Holt testified that
the defendant was driving the car, and both men were identified in a surveillance video from
a neighboring restaurant.
Analysis
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The defendant argues that the evidence was insufficient to support his conviction for
aggravated robbery. When an accused challenges the sufficiency of the evidence, this court
must review the record to determine if the evidence adduced during the trial was sufficient
“to support the finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R.
App. P. 13(e). This rule is applicable to findings of guilt predicated upon direct evidence,
circumstantial evidence, or a combination of direct and circumstantial evidence. State v.
Brewer, 932 S.W.2d 1, 18 (Tenn. Crim. App. 1996).
In determining the sufficiency of the evidence, this court does not reweigh or
reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this
court substitute its inferences for those drawn by the trier of fact from circumstantial
evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary,
this court is required to 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. State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003).
The trier of fact, not this court, resolves questions concerning the credibility of the
witnesses, the weight and value to be given the evidence, as well as all factual issues raised
by the evidence. Id. In State v. Grace, the Tennessee Supreme Court stated that “[a] guilty
verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for
the State and resolves all conflicts in favor of the theory of the State.” 493 S.W.2d 474, 476
(Tenn. 1973).
Because a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused has the burden in this court of illustrating why the
evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493 S.W.2d at 476.
Pursuant to Tennessee law, a person is criminally responsible for an offense
committed by the conduct of another if “acting with intent to promote or assist the
commission of the offense, or to the benefit in the proceeds or results of the offense, the
person solicits, directs, aids, or attempts to aid another person to commit the offense.”
T.C.A. § 39-11-402(2). A defendant’s presence and companionship with the perpetrator of
a felony before and after the commission of the offense are circumstances from which that
defendant’s participation in the crime may be inferred under a theory of criminal
responsibility. State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). No particular
act need be shown, and the defendant need not have played a physical role in the crime in
order to be held criminally responsible. See State v. Caldwell, 80 S.W.3d 31, 38 (Tenn.
Crim. App. 2002). To be held criminally responsible for the acts of another, the defendant
need only “associate himself with the venture, act with knowledge that the offense is to be
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committed, and share in the criminal intent of the principal in the first degree.” State v.
Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994).
A conviction may not be based solely upon the uncorroborated testimony of an
accomplice. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (citing State v. Bigbee, 885
S.W.2d 797, 803 (Tenn. 1994)). “An accomplice is one who knowingly, voluntarily, and
with common intent unites with the principal offender in the commission of a crime.” State
v. Allen, 976 S.W.2d 661, 666 (Tenn. Crim. App. 1997). The general test is whether the
accomplice would be indicted for the offense charged against the defendant. Id. There must
be some fact testified to, entirely independent of the accomplice’s testimony, which, taken
by itself, leads to the inference, not only that a crime has been committed, but also that the
defendant is implicated in it; and this independent corroborative testimony must also include
some fact establishing the defendant’s identity. Shaw, 37 S.W.3d at 903. The corroborative
evidence need not be adequate in and of itself to support a conviction. Id. Generally, the
jury determines whether sufficient corroboration exists. Shaw, 37 S.W.3d at 903.
Robbery is the intentional or knowing theft of property from another by violence or
putting the person in fear. T.C.A. § 39-13-401. Aggravated robbery is a robbery
accomplished with a deadly weapon. T.C.A. § 39-13-402(a)(1).
After reviewing the evidence in the light most favorable to the State, the record
reflects that the defendant was criminally responsible for the aggravated robbery of the
victims. His co-defendant, Sedric Holt, testified that the defendant suggested that they go
to the victims’ restaurant, where the defendant sprayed the victims with mace to incapacitate
them. The defendant instructed his co-defendant to take the victims’ car keys and, later, their
car. He testified that they took seventeen thousand dollars in cash, which the defendant put
in his pocket. When they went to the mall, the defendant purchased items with the stolen
money. The defendant also purchased an automobile and a safe with the stolen money.
It is clear that co-defendant Sedric Holt was an accomplice with the defendant in the
commission of the crimes. Therefore, it was necessary for the State to produce evidence
corroborating the testimony of the co-defendant. Mr. Choy, one of the victims, corroborated
the co-defendant’s testimony regarding the events surrounding the robbery. He identified the
co-defendant as the “bigger” man who used the gun in the robbery. The State also presented
the testimony of Eric Holt, who stated that the defendant started the Crime Boss Family. On
the night of the crimes, he observed the defendant and the co-defendant remove several bags
from the trunk of a green Honda automobile. He watched them remove money and other
items from the bags. He testified that the cash from the bags totaled $17,557. He saw the
defendant pocket the money and then purchase clothes, a truck, and other items with the
money.
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Further, the State presented evidence that the defendant spent a lot of money
immediately after the robbery of the restaurant. Police recovered a bill of sale that showed
the defendant and his girlfriend paid $1700 in cash as a deposit for a black Aztec automobile
on December 27, 2006, a day after the robbery. Other receipts included a $1500 paint job,
$1000 in cash for tires, and $1250 for car stereo equipment purchased on December 28,
2006. The State presented sufficient evidence to support the defendant’s conviction for the
aggravated robbery of Mr. and Mrs. Choy.
The defendant was also convicted of the aggravated robbery of Mr. Dao for his
actions in the robbery of the Angel Nails Salon on January 12, 2007. Sedric Holt, who was
also involved in this robbery, drew his gun on this victim. Holt took a white folder from the
counter and left the scene in a vehicle driven by the defendant. The State produced sufficient
evidence in the form of a surveillance video and other witness testimony to corroborate
Sedric Holt’s testimony. The defendant and Holt took $500 from the nail salon. A witness
testified that she saw the robber leave in a black automobile, and the jury heard evidence that
the defendant drove a black automobile. From this evidence, the State produced evidence
corroborating Sedric Holt’s accomplice testimony, and a rational trier of fact could have
found the defendant guilty of aggravated robbery of the victim, Mr. Dao.
Next, the defendant argues that the trial court erred when it admitted the bills of sale
for a Lincoln Town Car and an Aztec, because they were not self-authenticating records of
a regularly conducted activity. The State argues that the defendant has waived the issue
because he failed to cite to the record pursuant to Tennessee Rules of Appellate Procedure
27(a)(7). This court will deem an issue waived when a defendant has failed to support an
issue with argument, citation to authorities, or appropriate references to the record. See
Tenn. Ct. Crim. App. R. 10(b). The defendant’s brief is devoid of any reference to the
record; therefore, this issue is waived.
Next, the defendant argues that the trial court erred in allowing his prior robbery
conviction to be mentioned. The trial court concluded that the prior conviction was probative
of the defendant’s credibility and not outweighed by any unduly prejudicial effect. The State
may use a prior adult conviction to impeach the testimony of an accused in a criminal
prosecution if: (a) the conviction was for a crime that is punishable by death or imprisonment
in excess of one year or a misdemeanor involving dishonesty or false statement; (b) less than
ten years has elapsed between the date the accused was released from confinement and the
commencement of the prosecution; (c) the State gives reasonable written notice of the
particular conviction or convictions it intends to use to impeach the accused prior to trial; and
(d) the trial court finds that the probative value of the felony or misdemeanor on the issue of
credibility outweighs its unfair prejudicial effect on the substantive issues. Tenn. R. Evid.
609; see State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999). On appeal, this court will
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review the trial court’s determination of this issue under the abuse of discretion standard.
See State v. Thompson, 36 S.W.3d 102, 110 (Tenn. Crim. App. 2000).
The Tennessee Supreme Court has previously determined that robbery is a crime of
dishonesty and is probative of credibility. State v. Caruthers, 676 S.W.2d 935, 941 (Tenn.
1984). This court has held that even if a prior conviction involves the same or similar crime
for which the defendant is being tried, it does not automatically require its exclusion. See
State v. Baker, 956 S.W.2d 8, 15 (Tenn. Crim. App. 1997); State v. Miller, 737 S.W.2d 556,
560 (Tenn. Crim. App. 1987). However, if “the prior conviction and instant offense are
similar in nature the possible prejudicial effect increases greatly and should be more carefully
scrutinized.” Long v. State, 607 S.W.2d 482, 486 (Tenn. Crim. App. 1980). The trial court
must analyze the prior conviction and the offense on trial to determine if the conviction’s
probative value on credibility is outweighed by the danger of unfair prejudice.
The defendant argues that the trial court’s decision to admit evidence of the
defendant’s prior robbery conviction during his trial for robbery undermined the protections
of the accused. However, this court has held that a trial court does not abuse its discretion
when the defendant was on trial for aggravated robbery and the trial court concluded that a
prior conviction for robbery was a crime of dishonesty and probative of the defendant’s
credibility. See State v. Welcome, 280 S.W.3d 215, 222-23 (Tenn. Crim. App. 2007). Just
as in Welcome, the trial court in this case did not abuse its discretion. In the instant case, the
trial court concluded that the evidence of the prior robbery conviction was probative of the
defendant’s credibility and was not outweighed by any unduly prejudicial effect; therefore,
it did not abuse its discretion when it allowed the defendant to be impeached by his prior
conviction. The record does not preponderate against this conclusion. The defendant
discusses the proper procedure for introducing the evidence but does not argue that the State
or trial court followed improper procedure for presenting his prior convictions. He merely
concludes that this court should determine that any time a defendant has a prior conviction
for the same offense for which he is on trial, the evidence of the prior conviction is always
more prejudicial than the probative value of the knowledge of the crime. The defendant does
not contend that the trial court failed to follow procedure but, instead, that the court drew an
incorrect conclusion. As we have previously stated, the Tennessee Supreme Court has held
that even if a prior conviction involves the same or similar crime for which the defendant is
being tried, it does not automatically require its exclusion. The record reflects that the trial
court conducted the proper inquiry; therefore, the defendant is not entitled to relief on this
issue.
Next, the defendant argues that the trial court improperly imposed consecutive
sentencing. A court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that:
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(2) [t]he defendant is an offender whose record of criminal activity is
extensive;
(4) [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; or
(6) [t]he defendant is sentenced for an offense committed while on probation.
T.C.A.§ 40-35-115(b); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
Furthermore, in the event the trial court finds the defendant is a “dangerous offender,” it must
also determine whether the consecutive sentences (1) are reasonably related to the severity
of the offenses committed; (2) serve to protect the public from further criminal conduct by
the offender; and (3) are congruent with general principles of sentencing. State v. Wilkerson,
905 S.W.2d 933, 939 (Tenn. 1995).
Here, the trial court found that the defendant had an extensive criminal history, that
he committed the new crimes while on probation, and that he was a dangerous offender. We
conclude that the record supports these findings because any of the three would justify the
imposition of consecutive sentences. The presentence report shows that the defendant had
fourteen prior convictions for non-traffic related offenses, including a robbery conviction in
2005, two convictions for unlawful possession of a weapon, two convictions for assault, and
criminal impersonation. The defendant asks the court to consider only felonies under
Tennessee Code Annotated section 40-35-115(b)(2), but does not cite to any authority that
supports his argument. It is well settled that the trial court may consider misdemeanors in
determining extensive criminal history. The record supports the trial court’s finding that the
defendant had an extensive history to justify imposing consecutive sentences.
The court also properly found that the defendant was on probation at the time he
committed the underlying crimes. The defendant does not dispute this finding on appeal
though, alone, it would support the imposition of consecutive sentencing. The presentence
report shows that the defendant pled guilty to robbery in 2005 and received a five-year
sentence of probation. The new offenses were committed in 2006 and 2007, during the
period the defendant was on probation. Further, the record demonstrates that the defendant’s
probation was revoked on November 21, 2007, following a hearing because of the arrests in
the underlying cases. The trial court properly imposed consecutive sentences after finding
that the defendant committed the underlying crimes while he was on probation for the 2005
robbery conviction.
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The defendant also argues that the trial court erred in determining he was a dangerous
offender under Tennessee Code Annotated section 40-35-115(b)(4). He argues that there
was no evidence that he actually possessed a gun and that the mace he used to subdue some
of the victims did not cause serious bodily injury. The trial court applied this factor because
the victims in the restaurant robbery were sprayed with mace and because the defendant’s co-
defendant employed a handgun during the commission of the offense. The trial court also
considered that the victims in the restaurant were told that they did not have enough money
which caused them further fear after the handgun had been brandished. The trial court found
that the Wilkerson factors were satisfied in the imposition of the sentences because of the
seriousness of the crimes and because the public needed to be protected from further serious
criminal conduct by the defendant. See Wilkerson, 905 S.W.2d at 939.
We conclude that the imposition of consecutive sentences was proper. Any of the
factors applied by the trial court were sufficient to sentence the defendant to consecutive
sentences. Therefore, the defendant is not entitled to relief on this issue.
Conclusion
Based on the foregoing and the record as a whole, we affirm the judgments from the
trial court.
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JOHN EVERETT WILLIAMS, JUDGE
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