State of Tennessee v. Lorenzo Myrick ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
December 1, 2009 Session
STATE OF TENNESSEE v. LORENZO MYRICK
Direct Appeal from the Criminal Court for Shelby County
No. 06-02052 Chris Craft, Judge
No. W2008-02190-CCA-R3-CD - Filed July 7, 2010
A Shelby County jury convicted the defendant, Lorenzo Myrick, of reckless homicide, a
Class D felony, and facilitation of especially aggravated robbery, a Class B felony. The trial
court sentenced him as a Range I standard offender to three years for reckless homicide,
concurrent with ten years for facilitation of especially aggravated robbery, to be served in the
Tennessee Department of Correction. On appeal, the defendant argues that (1) the evidence
was insufficient to support his convictions; (2) the trial court committed reversible error by
improperly commenting on the evidence; and (3) the trial court improperly denied probation.
Following our review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
J.C. M CL IN, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and J OHN
E VERETT W ILLIAMS, JJ., joined.
Joseph S. Ozment, Memphis, Tennessee, for the appellant, Lorenzo Myrick.
Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Alanda Dwyer, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Background
A Shelby County grand jury indicted the defendant, Lorenzo Myrick, and Carnelious
Cunningham on three counts: (1) first degree murder in the perpetration of a felony; (2) first
degree premeditated murder; and (3) especially aggravated robbery, a Class A felony. The
Shelby County Criminal Court, the Honorable Judge Chris Craft presiding, held a trial in
August 2008, at which the parties presented the following evidence.
Tammy Vaughn testified that her brother, Darius Mann, was shot in the back of his
head during a robbery on July 15, 2005. He died the following day. She spoke with
investigators after her brother’s death and gave them Nicholas Bedford’s name because Mr.
Bedford was her brother’s best friend but had not been at the hospital before the victim died.
On cross-examination, Ms. Vaughn testified that when she gave the police Mr.
Bedford’s name, she was unaware that someone identified him as running from the victim’s
car after the shooting. She said that Mr. Bedford called the victim’s family every day to ask
about the investigation, and he attended the victim’s funeral.
Officer Ricky Davison, of the Memphis Police Department’s Crime Scene
Investigation Unit, testified that he responded to a shooting call in Pierotti Park on July 15,
2005. When he arrived at the scene, he observed a gold Ford Taurus parked near the tennis
court. Officer Davison photographed the exterior and interior of the car. He collected as
evidence a cell phone that he found on the ground beside the car and a bloody t-shirt that he
found on the driver’s floorboard of the car. The court admitted Officer Davison’s
photographs, the cell phone, and the t-shirt into evidence. Officer Davison testified that he
searched the area for shell casings and bullets, but he did not discover any. After the police
moved the victim’s car to the crime scene garage, Officer Davison processed the car for
fingerprints. He lifted fingerprints from the car’s exterior on the left rear quarter panel but
was unable to lift prints from the car’s interior. He sent the fingerprints to the latent print
office.
On cross-examination, Officer Davison testified that he arrived at the scene after the
paramedics had taken the victim to the hospital. He did not know whether the cell phone and
t-shirt were in their respective locations prior to the paramedics’ arrival.
The court read a stipulation into the record to which the parties had agreed. The
parties stipulated that Officer Davison lifted two palm prints from the victim’s car, one of
which matched the victim’s prints and one of which remained unidentified. The second print
did not match either the defendant’s or Carnelious Cunningham’s prints.
Matthew Kinney, the eyewitness, testified that he saw a gunman shoot the victim in
the back of the head. He lived near the Raleigh Community Center in July 2005. He had
previously seen the victim swimming at the community center but did not know his name.
On July 15, 2005, Mr. Kinney was walking home from the community center when he
witnessed the shooting. He testified that he did not get a good look at the shooter, but he did
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get a good look at a second man who was inside the car with the victim. He identified a
photograph of the man inside the car. Mr. Kinney testified that, after the shooting, the man
inside the car ran towards a path in the woods, and the gunman got into a small, dark-colored,
four-door car and drove away. Mr. Kinney said the gun was a “small, black caliber.” The
gunman had a tattoo of a scorpion on his right bicep that was approximately three to four
inches long. Mr. Kinney identified photo arrays that the police had shown him on July 17,
2005, and on September 9, 2005, on which he had circled a photograph of the man who ran
away from the car. He stated that he thought it was the same person in both photographs.
Mr. Kinney testified that he never identified the shooter, but he knew the shooter had worn
a white t-shirt and white pants.
On cross-examination, Mr. Kinney testified that the gunman’s tattoo was red, orange,
green, and blue. Mr. Kinney, upon closer inspection of the two photo arrays, said that he
circled different men in the two arrays. He agreed that the police had shown him photo
arrays from which he did not make any identifications. He said that had been sure of his
identification on July 17, 2005.
On re-direct examination, Mr. Kinney stated that he was “[p]ositive” that the man who
ran away from the car was “[n]umber three” on the September 9 photo array, and he had
circled the wrong person on the July 17 array.
Following Mr. Kinney’s testimony, the defendant, by the parties’ agreement, displayed
his tattoo for the jurors.
Sergeant Caroline Mason, of the Memphis Police Department, testified that she
participated in the investigation of the victim’s homicide. She identified Carnelious
Cunningham as number three on the September 9 photo array and Nicholas Bedford as
number two on the July 17 photo array. She and Detective Eric Hutchison, the case
coordinator, obtained cell phone records related to the cell phone found at the crime scene.
The records led them to develop Cunningham as a suspect. During the investigation, they
also developed the defendant as a suspect. Detective Hutchison contacted the defendant via
telephone, and the defendant came in to speak with them on September 14, 2005. The
defendant offered to take the officers to the location of the weapon. On September 15, 2005,
the defendant took the officers to the north side of Scenic Hills Elementary School, but they
did not locate the weapon where he said it would be. Sergeant Mason testified that she did
not feel that the defendant wanted to assist them but “was just out there.” She suggested that
they return to the Criminal Justice Complex, but the defendant requested that they search the
wooded area on the south side of the school. In the wooded area, the defendant pointed out
the magazine of the weapon. After Sergeant Mason found the weapon, the defendant asked
her whether the grip was missing on one side. She testified that the weapon she found was,
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in fact, missing the grip on one side. Sergeant Mason identified the handgun she found, and
the court admitted it as evidence.
After crime scene officers came to the scene to photograph the weapon, Sergeant
Mason, Detective Hutchison, and the defendant returned to the homicide office, and the
defendant gave a formal statement. Sergeant Mason said that, prior to giving the statement,
the defendant had not implicated himself in the crime. The defendant read an advice of
rights form, and Sergeant Mason read it aloud to him as well. He indicated that he
understood his rights. The defendant agreed to speak with the officers without an attorney
present and signed the form. Sergeant Mason testified that the defendant never asked for a
lawyer and that she and Detective Hutchison did not threaten or coerce the defendant into
giving a statement.
In his statement, the defendant denied being responsible for the victim’s death. He
said that Carnelious Cunningham, “[a] friend of [his] that [they had] in custody for the
murder[,]” was responsible. He knew that Cunningham had bought drugs from the victim
in the past. He had seen Cunningham with a small chrome forty-five caliber pistol that was
missing a grip the day before the victim was shot but not anytime after the shooting.
Cunningham told him that
he had robbed an old lady at a mall bank, had money and weed with him, and
on the news the next day, [the victim] was killed. [The defendant] questioned
him about the gun and he told [the defendant] he was going to throw it away
either in the river or in some trees by the a [sic] school.
The defendant said that Cunningham had more than one hundred dollars in cash and what
appeared to be a quarter ounce of marijuana. He took the officers to Scenic Hills Elementary
School to look for the weapon because that is where Cunningham told him he would throw
away the weapon. The defendant said that Cunningham was a member of an organization
called J.U.B., which he said stood for “Just Us Brothers.” The defendant said he was not a
member of J.U.B. but “used to hang out with them.” He knew that the victim was a member
of the Gangster Disciples and an organization called Network. He did not know of a
disagreement between Network and J.U.B.
Sergeant Mason testified that there were “inconsistencies in that first statement
relating to the facts as [she] knew them at the time.” The defendant gave them a second
statement on September 16, 2005. Sergeant Mason said that neither she nor Detective
Hutchison threatened or coerced the defendant into giving the statement, and they advised
him of his rights prior to taking the statement. The defendant indicated that he understood
his rights and said that he wanted to give a second statement because he had not told the truth
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in the first statement. The defendant admitted he was present when the victim was shot. He
said Cunningham arranged to meet the victim to buy marijuana. They went together to meet
the victim. They both got out of Cunningham’s black Camry, and Cunningham shot the
victim. The defendant ran to Cunningham’s house, and Cunningham drove the Camry to his
house. Then they went to Cunningham’s brother’s house, and Cunningham split the money
with him. They smoked the marijuana together. Later, Cunningham gave him the gun to
dispose of it. He did not get rid of the gun right away. The detectives called to talk to him
about the murder, and he threw away the gun at the school the night before he went to talk
to the detectives. The defendant said the gun was his cousin’s, but he had it before the
victim’s shooting. He kept the weapon either in his car or his closet, and he gave it to
Cunningham the night before the shooting. He knew that Cunningham planned to “[m]ake
a stang[,]” which meant “[a]nything as far as robbing, shooting, beating somebody for money
or anything.” He was standing six to seven feet away from the victim’s car when
Cunningham, who was standing by the driver’s side window, shot the victim in the head. He
did not know whether the victim was alive when he left the scene. Cunningham called the
victim’s cell phone later to see if he was alive. The defendant said that Cunningham shot the
victim so he could take the victim’s money and marijuana.
On cross-examination, Sergeant Mason testified that the defendant voluntarily came
to the homicide office on the morning of September 14, 2005. Detective Hutchison
interviewed him, and she assisted the detective. The defendant told them that he could take
them to the location of the murder weapon. At 2:00 p.m., she filled out an arrest ticket on
the defendant, charging him with first degree murder. Sergeant Mason also completed a
forty-eight-hour hold form and presented it to a judicial commissioner so that they could
detain the defendant in the jail during their investigation. They took the defendant to the jail
at 12:20 a.m. on September 15. Later on September 15, she and Detective Hutchison took
the defendant to the school to look for the weapon, and she discovered the weapon at 11:48
a.m. Then, they returned to the homicide office and continued interviewing the defendant.
She began taking his first formal statement at 3:56 p.m., and he signed his statement at 6:10
p.m. He gave his second formal statement at 1:44 a.m. on September 16. Sergeant Mason
recalled that the defendant’s mother came to the office on September 14. She spoke to his
mother but could not recall what she said. She did not recall the defendant asking to call his
mother. On September 15, she interviewed Matthew Kinney and showed him a photospread
that included the defendant’s picture. He was unable to identify anyone in the photospread
as being involved in the shooting.
Officer Stacy Milligan, of the Memphis Police Department’s Crime Scene Unit,
testified that she recovered a gun with serial number DEA1244 from Scenic Hills Elementary
School on September 15, 2005. She took the gun to a crime scene analyst, who processed
the weapon for fingerprints and did not recover any. Officer Milligan said the gun was clean
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and free of rust. She said that she would have expected to see rust if it had been in the
elements for two months.
Detective Eric Hutchison, of the Memphis Police Department, testified that he was
assigned to the felony assault unit in July 2005. On July 15, 2005, he responded to a call at
approximately 1:00 p.m. that there was a shooting victim at Pierotti Park. The victim was
suffering from a gunshot wound to the head, and he was asking for his sister. Detective
Hutchison did not have any other involvement in the case until he joined the homicide office
in late August. He became the lead investigator on the case, taking over from Sergeant
Jessica Burton. Detective Hutchison spoke with Nicholas Bedford and eliminated him as a
suspect. He testified that the Raleigh Community Center did not have surveillance
equipment and that Matthew Kinney was the only witness to the shooting.
He interviewed Mr. Kinney, who told him that he was walking home from the Raleigh
Community Center when he heard a gunshot. Mr. Kinney looked towards the sound and saw
two black males standing beside a car. The man with the gun drove away in a dark colored
car, and the other man ran away. Mr. Kinney said the gunman had a tattoo that appeared to
be a dragon on his right arm. Detective Hutchison testified that, in his opinion, the
defendant’s tattoo was consistent with Mr. Kinney’s description. He said that Carnelious
Cunningham did not have a tattoo on his upper arm.
Detective Hutchison examined the victim’s cell phone records, which led him to talk
to Cunningham. He determined that Cunningham lived at the end of the trail that the second
person involved in the shooting ran down. Cunningham’s phone records led him to speak
with the defendant. Additionally, Cunningham’s brother suggested that the detective speak
with the defendant.
The defendant called Detective Hutchison on September 13, 2005. The defendant told
him he suspected that Cunningham was responsible for the homicide, and they arranged for
the defendant to go to the homicide office the following day. Detective Hutchison testified
that Cunningham was in custody for the homicide at the time. The defendant admitted to
calling Cunningham. Detective Hutchison said the calls were back-to-back “immediately
after the shooting itself[,] and they were continuous throughout the night.” The defendant
told him that the calls were related to a trip to a shopping mall. Detective Hutchison told the
defendant that they were going to detain him so they could put together a photospread to
show the eyewitness.
When he took the defendant down to the jail, the defendant told him that he could
provide the weapon that Cunningham used to kill the victim. The next day, Detective
Hutchison and Sergeant Mason took the defendant to the school to search for the weapon.
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Detective Hutchison testified that the defendant “was eager to go.” The defendant first
pointed them to an area by a softball field, and they unsuccessfully searched through leaves
under the bleachers. They decided to leave, and as they were pulling out onto the street, the
defendant asked them to search one more area. He pointed them to a wooded area, where
he found the gun’s magazine. Detective Hutchison testified that the defendant said he found
it by luck and that the defendant was very familiar with the gun because he knew that one of
the grips was missing before he saw the gun.
The defendant gave a formal statement that afternoon at the homicide office.
Detective Hutchison also interviewed Cunningham again. After Cunningham gave a
statement, Detective Hutchison told the defendant what Cunningham had said. Then, the
defendant stated that he wanted to give another statement “because he wanted the opportunity
to testify against [Cunningham] because [Cunningham was] the actual shooter and not him.”
In his second statement, the defendant said that he and Cunningham planned to rob
the victim. They arranged to meet the victim. Before the victim arrived, Cunningham hid
in the woods with a gun while the defendant stayed in Cunningham’s mother’s black Camry.
When the victim arrived, Cunningham walked up to the car and shot him in the back of the
head. The defendant got out of the car, took the victim’s marijuana and money, and ran
away.
Detective Hutchison testified that the medical examiner’s office removed a bullet
from the victim. He took the bullet and the gun recovered from Scenic Hills Elementary
School to the Tennessee Bureau of Investigation (“TBI”) for comparison.
On cross-examination, Detective Hutchison testified that Casey Cunningham,
Carnelious Cunningham’s brother, arrived at the homicide office with the defendant on
September 14. He interviewed Casey Cunningham because Carnelious Cunningham’s phone
records revealed numerous calls between the brothers around the time of the shooting, which
Detective Hutchison considered suspicious. Detective Hutchison said “[he] cleared those up
once [he] interviewed Casey Cunningham.” Concerning Nicholas Bedford, Detective
Hutchison said that Mr. Bedford provided an alibi witness, his child’s grandmother.
Detective Hutchison testified that he spoke by phone with the defendant’s mother several
times. He recalled telling her the last time she called that she should “get [her] son an
attorney[;] he’s going to be charged.” Detective Hutchison said that he did not show Mr.
Kinney a photograph of the defendant’s tattoo. He testified that, contrary to his testimony
during direct examination, the defendant did not make a written statement that Cunningham
hid in the woods before shooting the victim, but he recalled the defendant saying that during
an interview.
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On re-direct examination, Detective Hutchison testified that the defendant gave
several different versions of his story. On re-cross-examination, he said the defendant
originally denied any involvement in the shooting.
Agent Teri Arney, a special agent forensic scientist with the TBI, testified that she
compared the bullet recovered by the medical examiner from the victim’s head to a bullet she
fired through the weapon recovered by the Memphis Police Department in this case. She
opined that the weapon fired the bullet recovered from the victim. She testified that the
weapon was a forty-five caliber semi-automatic pistol manufactured by AMT. The pistol
was missing one grip and the extractor. Because the pistol’s extractor was missing, the pistol
would not eject the cartridge case after firing a bullet. The operator would have to manually
remove the cartridge case from the pistol’s chamber.
Dr. Marco Ross, a medical examiner with the Shelby County Medical Examiner’s
Office, testified that the victim died from a gunshot wound to the back of his head. The
bullet proceeded through his skull and brain and exited on the right side of his skull, lodging
behind his right ear. Dr. Ross said that his office removed the bullet, photographed it, and
sealed it in an envelope. He testified that the victim’s toxicology report indicated the
presence of marijuana but not alcohol or any other drugs. Dr. Ross opined that the gunman
fired the pistol from a distance greater than three to four feet because there was no stippling
around the wound.
The defendant testified that he was not present when the victim was killed. He did
not recall anything specific that happened on July 15, 2005. The defendant said that he had
known Carnelious Cunningham since the eighth grade, and they graduated together from
Trezevant High School. The defendant testified that his cousin, Antonio, left a gun in his
car, and Cunningham saw the gun in the backseat of the car several days before the victim
was killed. Cunningham asked to borrow the gun, and the defendant said that he did not
know what Cunningham intended to do with it. Days before the police arrested the
defendant, Cunningham returned the gun to him and asked him to throw it away. He told the
defendant that “he had robbed some old lady.” He did not hide the gun at Scenic Hills
Elementary School until the night before his appointment to speak with investigators. His
friend, Chris Tucker, was with him when he hid the gun. He said he “was scared” because
“[he] really didn’t know nothing [sic], but all [he knew was that] this gun could have been
involved in something.” The defendant testified that Cunningham’s brother told him that the
police wanted to speak with him. According to him, the police told him that Cunningham
explained that the phone calls between Cunningham and the defendant on July 15 were about
their plans to go to a mall. He merely repeated Cunningham’s explanation, as told to him by
the police, in his written statement. The defendant and Cunningham learned through Chris
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Tucker that the police were looking at Cunningham’s phone records. Cunningham said that
he would tell the police that “he used to buy weed from [the victim].”
On September 14, 2005, the defendant voluntarily went to the homicide office to
speak with investigators. He testified that he waited in the lobby for thirty minutes before
Sergeant Mason came out and saw his tattoo. The defendant identified a picture of his tattoo,
which the court admitted as an exhibit. He described the tattoo on his right arm as “prayer
hands with a chain and a cross hanging from it with [his] initials in it[,] and it say [sic]
chosen one.” It was a single color. He testified that he got the tattoo when he was sixteen,
and he had done nothing to alter it. The defendant said he has never had a dragon or scorpion
tattoo, and he did not have a tattoo on his left arm.
The defendant testified that Sergeant Mason put the defendant in an interview room
and shackled his ankle to either the floor, a table, or a chair. He waited for “hours” until
someone came in, and “they slam[med] they [sic] hands on the table[,]” demanding that he
tell them what he knew. He told the officer that he did not know anything, even though he
knew that Cunningham previously had the gun that the defendant hid. He asked the first
officer he spoke to if he could speak with his mother.
When Detective Hutchison and Sergeant Mason came in, they told him he could not
speak with his mother. He said, “[W]ell, get me a lawyer. I’m ready to go.” They told him,
“No. You ain’t [sic] going nowhere [sic]” and that Cunningham said the defendant was
responsible. When the officers took him to the jail to be booked, he told Detective Hutchison
about the gun. Once he was in the jail, he called his mother. The next day, the officers took
him to search for the gun. He could not remember on which side of the school he had thrown
it away, which is why they searched both sides of the school. The defendant testified that
neither of his statements to the police were the complete truth. He said he did not kill the
victim, and he did not know for a fact that Cunningham killed him because he was not there.
Christy Williams, the defendant’s mother, testified that Chris Tucker gave her
Detective Hutchison’s phone number on September 14, 2005. She called the detective
several times that day until she was able to reach him. When she got through to the detective,
she asked to speak with the defendant, but Detective Hutchison said that the defendant was
there for questioning and that she could not speak with him. The defendant called her cell
phone between 2:00 and 2:30 a.m. Ms. Williams went to the homicide office as soon as she
got off work on the morning of September 15. Sergeant Mason told her that the defendant
was just there for questioning and that “they didn’t have anything on him,” so he did not need
a lawyer. She next spoke to Detective Hutchison. He told her that her son was over eighteen
and had not asked to speak with her. He further said that she did not know what her son
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might say before he left. When she told him, “[T]hat’s coercion[,]” he replied, “[G]et a
lawyer and prove it.”
On cross-examination, Ms. Williams testified that she hired an attorney by the
following Monday. On re-direct examination, Ms. Williams explained that the defendant’s
father provided the money to hire the attorney.
Following the close of proof and deliberations, the jury returned its verdicts finding
the defendant not guilty of premeditated murder, but guilty of the lesser-included charge of
reckless homicide, a Class D felony, and guilty of the lesser-included charge of facilitation
of especially aggravated robbery, a Class B felony. The trial court sentenced him as a Range
I standard offender to three years for reckless homicide and ten years for facilitation of
especially aggravated robbery. The court ordered the defendant to serve the sentences
concurrently in the Tennessee Department of Correction. The court denied the defendant’s
motion for new trial, and the defendant filed a timely notice of appeal.
Analysis
I. Sufficiency of the Evidence
On appeal, the defendant asserts that the evidence presented at trial was insufficient
to support his convictions. Specifically, he argues that the state did not prove his guilt
beyond a reasonable doubt because (1) the eyewitness identified two different individuals as
being the person who ran away from the scene after the shooting; (2) the eyewitness’s
description of the shooter’s tattoo did not match the defendant’s tattoo; and (3) the defendant
testified that the police coerced his statements.
Our review begins with the well-established rule that once a jury finds a defendant
guilty, his or her presumption of innocence is removed and replaced with a presumption of
guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the
convicted defendant has the burden of demonstrating to this court why the evidence will not
support the jury’s verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden, the defendant must
establish that no “rational trier of fact” could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Evans,
108 S.W.3d 231, 236 (Tenn. 2003); Tenn. R. App. P. 13(e). In contrast, the jury’s verdict
approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor
of the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
from that evidence. Carruthers, 35 S.W.3d at 558; Tuggle, 639 S.W.2d at 914. Questions
concerning the credibility of the witnesses, conflicts in trial testimony, the weight and value
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to be given the evidence, and all factual issues raised by the evidence are resolved by the trier
of fact and not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not
attempt to re-weigh or re-evaluate the evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn.
2002); Bland, 958 S.W.2d at 659. Likewise, we do not replace the jury’s inferences drawn
from the circumstantial evidence with our own inferences. See State v. Elkins, 102 S.W.3d
581, 582 (Tenn. 2003); Reid, 91 S.W.3d at 277.
To sustain the defendant’s conviction for reckless homicide, the state had to prove
beyond a reasonable doubt that the defendant or one for whom the defendant was criminally
responsible recklessly killed the victim. See Tenn. Code Ann. § 39-13-215(a).
[A] person . . . acts recklessly with respect to circumstances surrounding the
conduct or the result of the conduct when the person is aware of but
consciously disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur. The risk must be of such a nature
and degree that its disregard constitutes a gross deviation from the standard of
care that an ordinary person would exercise under all the circumstances as
viewed from the accused person’s standpoint.
Id. § 39-11-302(c). A person is criminally responsible for the conduct of another if, “[a]cting
with intent to promote or assist the commission of the offense, or to benefit in the proceeds
or results of the offense, the person solicits, directs, aids, or attempts to aid another person
to commit the offense.” Id. § 39-11-402(2). Criminal responsibility is not a separate crime
but instead a theory by which the state may prove the defendant’s guilt based upon another
person’s conduct. State v. Mickens, 123 S.W.3d 355, 389-90 (Tenn. Crim. App. 2003).
To sustain his conviction for facilitation of especially aggravated robbery, the state
had to prove beyond a reasonable doubt that the defendant knew that another person intended
to commit an especially aggravated robbery and “knowingly furnishe[d] substantial
assistance in the commission of” the especially aggravated robbery “but without the intent
required for criminal responsibility under [Tennessee Code Annotated section]
39-11-402(2).” Tenn. Code Ann. § 39-11-403(a). An especially aggravated robbery is “the
intentional or knowing theft of property from the person of another by violence or putting the
person in fear” that is “(1) [a]ccomplished with a deadly weapon; and (2) [w]here the victim
suffers serious bodily injury.” Tenn. Code Ann. §§ 39-13-401(a), -403(a).
Viewing the evidence in a light most favorable to the state, the evidence showed that
the defendant recklessly killed the victim and facilitated the especially aggravated robbery
committed by Cunningham. The eyewitness, Matthew Kinney, identified Cunningham, not
as the man who shot the victim, but as the man who ran away after the shooting.
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Additionally, he described the shooter as having a tattoo on his upper right arm. According
to the defendant’s trial testimony, Cunningham implicated him as the shooter. Other trial
testimony revealed that Cunningham did not have a tattoo on his upper right arm, while the
defendant did. While Mr. Kinney’s description of the gunman’s tattoo did not match the
defendant’s tattoo, the jury saw the defendant’s tattoo and were free to reach their own
conclusions regarding the similarity. Sergeant Mason and Detective Hutchison testified that
they did not coerce the defendant’s statements. The defendant admitted in his second
statement to police that he provided Cunningham with a weapon, that he was present when
Cunningham robbed the victim, that he did not call an ambulance or stop to see if the victim
was alive, and that Cunningham split the victim’s money and marijuana with him. The
forensics proved that the weapon provided by the defendant, and later hidden by the
defendant, fired the bullet that struck the victim in the back of his head, resulting in his death.
The jury resolved questions of credibility and conflicts in testimony in favor of the state. We
conclude that the evidence was sufficient to support the defendant’s convictions of reckless
homicide and facilitation of especially aggravated robbery; therefore, the defendant is
without relief as to this issue.
II. Judicial Comments on the Evidence
For his second issue, the defendant argues that the trial judge made impermissible
comments on the evidence. He contends that the trial judge committed reversible error by
instructing the jury, during defense counsel’s cross-examination of a witness and during the
state’s closing argument, concerning the admissibility and constitutionality of the statements
given by the defendant to police. The state responds that the trial judge’s instruction during
cross-examination was permissible and did not amount to a comment on the evidence. The
state further argues that the defendant waived his second assignment of error, the court’s
instructions during closing arguments, by failing to make a contemporaneous objection. We
agree with the state that the court’s instructions were not comments on the evidence but
disagree that the defendant waived his second assignment of error.
The state constitution forbids judges from instructing juries on the facts of the case.
Tenn. Const. art. VI, § 9 (stating that “[t]he [j]udges shall not charge juries with respect to
matters of fact, but may state the testimony and declare the law”). “In all cases the trial judge
must be very careful not to give the jury any impression as to his feelings or to make any
statement which might reflect upon the weight or credibility of evidence or which might
sway the jury.” State v. Suttles, 767 S.W.2d 403, 406-07 (Tenn. 1989). If the reviewing
court finds that a trial judge made an improper comment on the evidence, then the court must
consider whether the comment was prejudicial in the context of the case. See Mercer v.
Vanderbilt Univ., Inc., 134 S.W.3d 121, 134 (Tenn. 2004).
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The defendant assigns error to two interjections by the trial judge, during his cross-
examination of Detective Hutchison and during the state’s closing arguments. Before the
first interjection, the defense counsel was questioning the detective about whether he recalled
the defendant asking to speak to his mother. The prosecutor requested a bench conference,
but the trial judge addressed the jury rather than holding a conference. The judge said,
Ladies and gentlemen, let me say this to you. [Defense counsel] has
every right and the State has every right to talk to this witness about statements
that were taken.
However, there is no question that these statements are admissible in
evidence or were not taken in violation of Constitutional rights. If they were,
then they would not . . . have been admitted into evidence.
So any questions that are asked this officer by the State or the defense
and any answers that he gives them about whether or not there was a mother
who wanted to talk to her son or anything like that, are questions that you can
use and circumstances you can use, to decide whether or not these statements
were truthful or made by the defendant or were not made by the defendant or
were not truthful if made by him.
But you - - it’s not going to be your business to go back in the jury room
and decide whether or not you’re going to consider evidence or find it
unconstitutional because these statements have already been found to be
Constitutionally taken.
That’s a legal decision that has to be made when we decide whether or
not certain evidence is admitted. So, I’m trying not to involve myself in the
lawsuit, but when you hear these questions and answers, you need to
understand that you’re going to have to decide as with all other evidence what
weight to be given and the credibility, not only the credibility of the witnesses
who testify to things, such as the officer, but also the credibility of any
statements that are made.
The judge then read to the jury an instruction about prior statements of the defendant, which
he later included in the jury charge that he gave before closing arguments. The judge
continued by saying that he could not allow the jury to decide during deliberations that the
defendant’s statements were unconstitutionally obtained because he had previously ruled on
the matter. He further said
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And by telling you that, I’m not telling you that I believe any witness is
credible or incredible or you should give more weight to one thing or another
thing or that you give any weight at all to these two alleged statements . . . or
that you give them a lot of weight or no weight.
During the state’s closing arguments, the prosecutor said, “I will tell you, ladies and
gentlemen, that [the defendant’s statements] are not the product of coercion.” Defense
counsel objected and asked for a curative instruction regarding attorneys’ opinions. The
prosecutor requested that the court repeat its previous instructions about the constitutionality
of the defendant’s statements. The court then instructed the jury that the attorneys could
discuss reasonable inferences that the jury could draw from the evidence but could not give
their opinion. The court went on to discuss “jury nullification,” saying that the suppression
of evidence was a legal decision made by the court prior to trial and not a matter for jury
consideration. The court concluded by saying that the admission of evidence was not a
comment on the truthfulness of the statements, the credibility of witness, or the weight of the
evidence.
Initially, we note that the defendant did not waive his second assignment of error by
failing to contemporaneously object. It is well-settled that once an attorney has made an
objection and the court has overruled it, an attorney need not make further exceptions
regarding the same issue. See Louisville & N.R. Co. v. Gower, 3 S.W. 824, 826 (Tenn. 1887)
(“One ruling on one question is enough, and a repetition of similar exceptions is not to be
required, if, indeed, to be tolerated.”); Gulf Refining Co. v. Frazier, 83 S.W.2d 285, 299
(Tenn. App. 1934). In this matter, the defendant’s two assignments of error are sufficiently
similar that defense counsel did not need to repeat his objection to the court’s jury instruction
to preserve the issue for appeal.
As for the merits of the defendant’s argument, the trial court’s comments were
accurate statements of the law and not impermissible comments on the evidence. The trial
judge, in essence, told the jury that he was responsible for determining the legal question of
the admissibility of evidence while they were responsible for determining the credibility and
weight of the evidence. The Tennessee Rules of Evidence entrust the trial judge to determine
preliminary questions such as the admissibility of evidence. Tenn. R. Evid. 104(a). The trial
court correctly stated that the jury determines the credibility of witnesses and the value and
weight of evidence. Bland, 958 S.W.2d at 659; see also Byrge v. State, 575 S.W.2d 292, 295
(Tenn. Crim. App. 1978). We conclude that the trial court’s comments did not reflect on the
weight or credibility of the evidence; therefore, the defendant’s argument is without merit.
III. Denial of Full Probation
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The defendant argues that the trial court abused its discretion by denying his request
for full probation. He contends that his strong social history and lack of criminal history
“outweigh experimental marijuana use and the crime itsself [sic].” The state responds that
the defendant has not carried his burden of proving his suitability for full probation. We
agree with the state.
At the sentencing hearing, the victim’s mother testified that her son’s death devastated
her family and asked the court to impose the maximum sentence. The state introduced the
defendant’s presentence report, which the court admitted as evidence. The defendant
presented character witnesses, including a former assistant principal, a secretary, and a
teacher from Trezevant High School, who each testified that the defendant had been a
peaceful, respectful student.
Patricia Innis, the mother of the defendant’s girlfriend, testified that she had known
the defendant for six and one-half years and considered him to be a peaceful, intelligent
person. She said he had started college, and she had no objection to her daughter marrying
him when they both finished college.
Shamira Innis, the defendant’s girlfriend, testified that she had known the defendant
since she was fourteen years old and did not believe he had a character of violence. She said
that she believed the defendant would follow the rules of probation and that the defendant
had support, including herself, to help him. Ms. Innis testified that she had not seen the
defendant drink alcohol or use drugs.
The defendant’s aunt testified to his good character and stated her belief that the
presentence report’s statement that the defendant was in a gang called J.U.B. was incorrect.
The defendant’s mother testified that the authorities arrested the defendant for
disorderly conduct when he was a freshman in high school. To her knowledge, her son was
not in a gang.
The defendant testified that he was not in a gang. He said he was familiar with “Just
Us Brothers” but explained that it was a group of young men, not a “criminal street gang.”
He said that he had completed one semester at Southwest Community College. He planned
to graduate from college and marry his girlfriend.
The trial court found that the defendant was a Range I standard offender because he
had a history of criminal behavior. Specifically, he had used marijuana since he was fifteen
years old. The court found that the defendant’s drug use was an enhancement factor
applicable to both convictions, but the court gave the factor little weight. The court stated
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that it had considered the statistical information, the presentence report, the arguments made
by the parties, and the nature of the criminal conduct. The court found that the criminal
conduct involved was “egregious.” The court sentenced the defendant to ten years for
facilitation of especially aggravated robbery and to three years for reckless homicide, in the
Tennessee Department of Correction. Finding that the defendant was not a dangerous
offender, the court ordered the sentences to run concurrently. The court denied the
defendant’s request for full probation, citing the circumstances of the criminal conduct, the
defendant’s lack of potential rehabilitation because of his untruthfulness, society’s “interest
in being protected from possible future criminal conduct of him, because of his involvement
with guns and lies,” and that full probation would depreciate the seriousness of the offense.
An appellate court’s review of a challenged sentence is de novo on the record with a
presumption the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d).
The Sentencing Commission Comments to this section of the statute indicate the defendant
bears the burden of establishing that the sentence is improper. Id., Sentencing Comm’n
Comments. When the trial court follows the statutory sentencing procedure and gives due
consideration and proper weight to the factors and principles relevant to sentencing, this
court may not disturb the sentence. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991).
A defendant is eligible for probation if the sentence received by the defendant is ten
years or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a). A
defendant with a total effective sentence in excess of ten years is eligible for probation if the
individual sentences imposed for the convictions fall within the probation eligibility
requirements. See State v. Langston, 708 S.W.2d 830, 832-33 (Tenn. 1986). A defendant
seeking full probation bears the burden on appeal of showing the sentence imposed is
improper, and that full probation will be in the best interest of the defendant and the public.
State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). The trial court’s denial of
probation is not subject to appellate review except for an abuse of discretion. Stiller v. State,
516 S.W.2d 617, 620 (Tenn. 1974). A trial court abuses its discretion if there is no
substantial evidence in the record to support its conclusion, in light of statutory criteria and
decisions of the Tennessee Supreme Court. State v. Grear, 568 S.W.2d 285, 286 (Tenn.
1978).
In determining whether to grant or deny probation, a trial court should consider the
circumstances of the offense, the defendant’s criminal record, the defendant’s social history
and present condition, the need for deterrence, and the best interest of the defendant and the
public. Grear, 568 S.W.2d at 286; State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.
1995). The trial court should also consider the principles of sentencing outlined in Tennessee
Code Annotated section 40-35-103, including the defendant’s potential for rehabilitation.
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The defendant’s lack of credibility is also an appropriate consideration and reflects on a
defendant’s potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim.
App. 1999). Additionally, the sentence imposed “should be no greater than that deserved for
the offense committed” and “should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-103. Finally, when
a sentence involves confinement, the court should consider the following:
(A) Confinement is necessary to protect society by restraining a defendant who
has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective deterrence
to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant[.]
Id.
Probation may be denied based solely upon the circumstances surrounding the offense.
State v. Ring, 56 S.W.3d 577, 586 (Tenn. Crim. App. 2001); Hartley, 818 S.W.2d at 374.
However, the circumstances of the offense as committed must be especially violent,
horrifying, shocking, reprehensible, offensive or otherwise of an excessive or exaggerated
degree; and the nature of the offense must outweigh all factors favoring probation. Hartley,
818 S.W.2d at 374-75.
Here, the defendant is eligible for probation because his sentence is ten years.
Because his sentence results from a Class B felony, however, he is not presumed to be a
favorable candidate for alternative sentencing. Furthermore, as the defendant requested full
probation, he bears the burden of establishing that the sentence imposed was improper.
In considering the defendant’s request for full probation, the trial court discussed the
defendant’s good social history and lack of criminal history other than his drug use. The
court expressed concern over the defendant’s lack of potential rehabilitation and stated that
society had an interest in being protected from his possible future criminal conduct. The
court stated that the defendant was “a good liar” based on his testimony and statements to the
police and that “he [had] his family fooled” because “even taking what [the defendant said
as] true, in his second statement, he watched a young man be slaughtered and then didn’t
even call the ambulance, didn’t even call a doctor.” The court found that the fact that the
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defendant had not previously been on probation mitigated in his favor, but that full probation
would depreciate the seriousness of the offense.
In our view, the record contains substantial evidence to support the trial court’s denial
of full probation. The defendant contends that the trial court’s finding that the defendant was
untruthful was insufficient to support denial of probation. However, the defendant’s
truthfulness is probative of his potential for rehabilitation. State v. Bunch, 646 S.W.2d 158,
160-61 (Tenn. 1983); Nunley, 22 S.W.3d at 289. “The trial judge is in the best position to
assess a defendant’s credibility and potential for rehabilitation.” Nunley, 22 S.W.3d at 289.
Furthermore, the defendant’s credibility was not the trial court’s only consideration in its
denial of full probation. The court found that the defendant’s lack of potential for
rehabilitation, the circumstances of the offense, and the risk of depreciating the seriousness
of the offense outweighed the defendant’s good social history and lack of criminal history.
The defendant has not shown that the trial court abused its discretion. We conclude that the
defendant failed to show that the sentence imposed was improper and that full probation
would be in the best interest of the defendant and the public. See Baker, 966 S.W.2d at 434.
Therefore, the defendant is without relief on this issue.
Conclusion
Based on the foregoing reasons, we affirm the judgments of the trial court.
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J.C. McLIN, JUDGE
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