State v. Charles W. Sanderson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST 1997 SESSION
September 19, 1997
Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) NO. 01C01-9608-CR-00384
Appellee, )
) WILSON COUNTY
VS. )
) HON. J. O. BOND, JUDGE
CHARLES W. SANDERSON, )
) (Aggravated Burglary)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
COMER DONNELL JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
KAREN G. CHAFFIN JANIS L. TURNER
Assistant District Public Defender Assistant Attorney General
213 North Cumberland St. 450 James Robertson Parkway
Lebanon, TN 37087 Nashville, TN 37243-0493
TOM P. THOMPSON, Jr.
District Attorney General
H. DOUGLAS HALL
Assistant District Attorney
111 Cherry St.
Lebanon, TN 37087-3609
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
On November 29, 1995, a Wilson County jury found defendant, Charles W.
Sanderson, guilty of aggravated burglary, a Class C felony. The trial court sentenced
defendant to 15 years as a Range III (45%) Persistent Offender. Defendant
challenges both the conviction and sentence alleging the following errors:
(1) the failure of the trial judge to dismiss the indictment for
lack of a preliminary hearing recording;
(2) the trial court’s incorrect statement of the law regarding
circumstantial evidence;
(3) the trial court’s improper definition of reasonable doubt;
(4) the trial court’s denial of the request to exclude witnesses
from the courtroom prior to voir dire;
(5) the failure to suppress defendant’s statement giving a
false name to the officer;
(6) allowing the indictment in the jury room;
(7) the wrongful admission of a screwdriver into evidence;
(8) improper final argument by the state;
(9) insufficiency of the evidence; and
(10) an improper sentence.
We AFFIRM the conviction and the sentence.
FACTS
Houston Dedman, father of the victim, saw a pick-up truck at the victim’s
mobile home on October 7, 1994, the date of the crime. While his wife was calling
the victim at her workplace and then 911, Dedman continued to watch from his back
porch approximately 350 feet away. He saw a heavy-set, long-haired man wearing
a white tee-shirt and blue jeans go first to the front door of the trailer and then to the
back door. The man entered the mobile home and stayed inside five to ten minutes
before exiting by the back door. The authorities then arrived on the scene and
apprehended the defendant and another suspect. Dedman identified the defendant
as the same person he saw enter the mobile home. Defendant’s fingerprints were
found on the back door of the mobile home.
Lieutenant Kenny Burns responded to the 911 dispatch. As he pulled into the
driveway, he saw a truck and a male with long hair standing close to the mobile
home. He testified that defendant saw him and started to run toward the truck. At
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that point, Burns made him stop and lie down on the ground. The man had on blue
jeans and a white tee-shirt. When asked his name, the defendant gave Lt. Burns the
false name of “Chuck Binkley.” Chuck Binkley was actually a female who was the
owner of the truck and the wife of the other person apprehended. Lt. Burns identified
defendant as the man he had apprehended.
According to the TBI lab report, a screwdriver found in the truck could have
produced the pry marks on the back door frame, but there were not sufficient
identifying characteristics to show exclusion of all other prying devices.
The victim testified that no one had permission to be on her property on that
date, and all her doors had been locked. She arrived shortly after the apprehension
of the defendant and before officers left the scene. The chain on her back door had
been broken. She went into her house and found the bedroom “ransacked” with
doors opened and drawers pulled out. The jewelry box on the bed had all of its
drawers pulled out. Nothing had been taken.
LACK OF RECORDING OF PRELIMINARY HEARING
The General Sessions Court judgment shows that defendant was bound over
on “attempt to commit aggravated burglary.” Defendant claims prejudicial error
because the trial court refused to dismiss the indictment based on the General
Sessions Court’s failure to make a recording of his preliminary hearing in violation
of Tenn. R. Crim. P. 5.1(a). Butts v. State, 640 S.W.2d 37, 38 (Tenn. Crim. App.
1982), held that “the failure to provide a recording or its equivalent may constitute
harmless error. . . [when] the trial evidence so conclusively showed . . . guilt that a
record of the preliminary hearing could not have aided the defense.” Defendant
claims his facts justify a different outcome. We do not agree. Proof of guilt was
overwhelming. Defendant has failed to show any prejudice. The failure to record the
preliminary hearing was harmless error. Tenn. R. App. P. 36(b); see also State v.
Bohanon, 745 S.W.2d 892, 896 (Tenn. Crim. App. 1987).
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TRIAL COURT COMMENTS
Defendant argues that the trial court erred in commenting incorrectly on the
burden of proof during voir dire, and that the court erred in its definition of reasonable
doubt in comments made before voir dire.
A.
The language cited by defendant is an effort by the trial court during voir dire
to illustrate the difference in direct and circumstantial evidence. The language used
by the trial judge accurately paraphrases T.P.I. - Crim. § 42.03 (4th ed. 1995). This
issue is without merit.
B.
Defendant complains the trial court erroneously told the jury before voir dire
that:
Beyond a shadow of a doubt is not the rule, beyond any doubt
is not the rule. It’s simply beyond a reasonable doubt. That there’s no
other reasonable answer to it other than just--reasonable answer.
Although the last phrase concerning a “reasonable answer” is vague, no harm
inured to the defendant. The statements concerning “shadow of a doubt” and
“beyond any doubt” are accurate statements of the law. This issue is without merit.
MOTION TO SEQUESTER WITNESSES PRIOR TO VOIR DIRE
Defense counsel requested sequestration of the witnesses prior to voir dire.
The trial court denied the request so the potential jurors could determine if they knew
any of the witnesses. At the time of trial, Tenn. R. Evid. 615 provided that
sequestration was to be effective before voir dire if requested.1 However, defendant
has demonstrated no prejudice as a result of the failure to sequester prior to voir dire.
1
The rule has now been amended to make sequestration before voir dire
discretionary with the trial court.
4
This is harmless error. Tenn. R. App. P. 36(b); State v. Anthony, 836 S.W.2d 600,
605 (Tenn. Crim. App. 1992).
MOTION TO SUPPRESS GIVING NAME TO OFFICER
Defendant contends the officer’s request for defendant’s name should have
been preceded by Miranda warnings since defendant was in custody. A request for
a defendant’s name does not trigger the necessity of Miranda warnings. See
Pennsylvania v. Muniz, 496 U.S. 582, 601-602 (1990); State v. Williams, 623 S.W.2d
118, 121 (Tenn. 1981). This issue is without merit.
INDICTMENT IN THE JURY ROOM
Defendant contends the trial court erred in allowing the jury to take the
indictment into the jury room during deliberations. As a matter of custom, many trial
courts allow the indictment to be taken to the jury room; however, there is no express
legal authority concerning this custom. Raybin, Tennessee Criminal Practice and
Procedure, § 31.14 (1985). We see no prejudice to the defendant. The indictment
was read to the jury at the beginning of trial. The trial judge properly instructed the
jury that the indictment was not evidence against the defendant and could not create
any inference of guilt. This issue is without merit.
ADMISSION OF SCREWDRIVER INTO EVIDENCE
Defendant contends the trial court erred in allowing evidence about the
screwdriver found in the vehicle. Even though the scientific testing was not
conclusive, the screwdriver was found in a place that, coupled with trial testimony,
would allow an inference that it was a tool used to pry the door of the residence.
There is nothing in the record to reflect that its probative value was outweighed by its
prejudice to defendant. This issue is without merit.
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PROSECUTOR’S CLOSING ARGUMENT
Defendant complains of the following argument made by the prosecutor in final
argument:
He [defense counsel] wants you to say, if he was in there, he
was just doing trespass, just little ole misdemeanor trespass is what he
was doing. Convict him of that. You know, bring it down to trespass.
The defendant did not request the range of punishment charge and claims that
the mention of “misdemeanor” constituted prejudicial conduct. The State did not
advise the jury of the range of punishment. We find nothing improper in telling the
jury that a particular offense is a misdemeanor or a felony. This issue is without
merit.
SUFFICIENCY OF THE EVIDENCE
Defendant contends the evidence is insufficient to justify the guilty finding. In
determining the sufficiency of the evidence, this court does not reweigh or re-evaluate
the evidence. State v. Cabbage, 571 S.W.2d 832 (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). A jury
verdict approved by the trial judge accredits the state’s witnesses and resolves all
conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the State is entitled to
the strongest legitimate view of the evidence and all legitimate or reasonable
inferences which may be drawn therefrom. Id. This Court will not disturb a verdict
of guilty due to the sufficiency of the evidence unless the defendant demonstrates
that the facts contained in the record and the inferences which may be drawn
therefrom are insufficient, as a matter of law, for a rational trier of fact to find the
accused guilty beyond a reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19
(Tenn. Crim. App. 1996). Accordingly, it is the appellate court’s duty to affirm the
conviction if the evidence, viewed under these standards, was sufficient for any
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rational trier of fact to have found the essential elements of the offense beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317
(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).
The evidence was clearly sufficient to sustain the conviction of aggravated
burglary. The defendant was seen unlawfully entering and leaving the premises and
was apprehended at the scene. The premises were “ransacked;” therefore, the jury
could conclude there was an intent to steal. See State v. Chrisman, 885 S.W.2d 834,
838 (Tenn. Crim. App. 1994). The fact that nothing was actually removed is not
determinative. This issue is without merit.
SENTENCING
Finally, defendant contends the trial court erred by imposing a 15-year
sentence to run consecutively to his prior sentences. This Court’s review of the
sentence imposed by the trial court is de novo with a presumption of correctness.
Tenn. Code. Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing
principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991).
The burden is upon the appealing party to show that the sentence is improper.
Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments. In conducting
our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider
the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and sentencing
hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
and arguments as to sentencing alternatives; (4) [t]he nature and
characteristics of the criminal conduct involved; (5) [e]vidence and
information offered by the parties on the enhancement and mitigating
factors in §40-35-113 and §40-35-114; and(6) [a]ny statement the
defendant wishes to make in his own behalf about sentencing.
If no mitigating factors or enhancement factors are present, Tenn. Code Ann.
§ 40-35-210 provides that the presumptive sentence shall be the minimum sentence
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within the applicable range. See State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim.
App. 1991). However, if such factors do exist, a trial court should start at the
minimum sentence, enhance the minimum sentence within the range for
enhancement factors, and then reduce the sentence within the range for the
mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each
factor is prescribed by the statute, as the weight given to each factor is left to the
discretion of the trial court as long as its findings are supported by the record. State
v. Moss, 727 S.W.2d 229 (Tenn. 1986); State v. Santiago, 914 S.W.2d 116 (Tenn.
Crim. App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission
Comments.
A.
In sentencing the defendant to the maximum Range III punishment of 15
years, the trial court found no mitigating factors and four (4) enhancement factors.
The applicable enhancement factors found by the trial court were:
(1) previous history of criminal convictions in addition to
those necessary to establish Range III punishment
under Tenn. Code Ann. § 40-35-114(1);
(2) previous history of unwillingness to comply with
conditions of a sentence involving release in the
community under Tenn. Code Ann. § 40-35-114(8);
(3) the defendant abused a position of public trust when
he committed this crime while on furlough under
Tenn. Code Ann. § 40-35-114(15); and
(4) the crime was committed under circumstances under
which the potential for bodily injury to a victim was
great under Tenn. Code Ann. § 40-35-114(16).
Defendant contends the trial court erred in its application of the last three
enhancement factors.
Defendant concedes he has prior convictions in addition to those necessary
to establish Range III punishment. More specifically, the defendant has been
convicted of second degree burglary (enhanced to a life sentence as an habitual
criminal), grand larceny (enhanced to a life sentence as an habitual criminal), three
(3) separate counts of third degree burglary and robbery by use of a deadly weapon.
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The proof also established that defendant had two (2) prior parole revocations.
Accordingly, the court properly applied the enhancement factor relating to a previous
history of unwillingness to comply with the conditions of a sentence involving release
in the community.
The trial court found that the defendant was on a three-day furlough when this
offense was committed and, therefore, found the defendant abused a position of
public trust. We find no support for the application of this factor in the context of a
furlough. See State v. Seay, 945 S.W.2d 755, 766 (Tenn. Crim. App. 1996) (holding
that this factor did not apply to a defendant who committed an offense while on
probation). However, committing a crime while on furlough for a felony qualifies as
an enhancement factor under Tenn. Code Ann. § 40-35-114(13)(E). Furlough is a
type of release into the community under the indirect supervision of the Department
of Correction or local governmental authority. Accordingly, this enhancement factor
should have been applied instead of the public trust enhancement factor.
The trial court found that this aggravated burglary was committed under
circumstances under which the potential injury to the homeowner was great. The
homeowner was not present at the time of the burglary. The state concedes and we
agree that this factor was erroneously applied. See State v. Avery, 818 S.W.2d 365,
369 (Tenn. Crim. App. 1991).
In spite of the misapplication of the above-mentioned enhancement factors,
we conclude under our de novo review that the maximum 15-year sentence is
appropriate for this defendant.
B.
The trial court ran this 15-year sentence consecutively to the sentences for
which defendant was on furlough at the time of the offense. The trial court found that
the defendant was a professional criminal and an offender whose record of criminal
activity was extensive. See Tenn. Code Ann. § 40-35-115(b)(1) and (2). We further
find that consecutive sentencing is necessary to protect the public against further
criminal conduct by the defendant and that the consecutive sentences reasonably
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relate to the severity of the offenses. See State v. Wilkerson, 905 S.W.2d 933, 938
(Tenn. 1995). We find no error in the sentence.
CONCLUSION
For the reasons stated above, we AFFIRM the conviction for aggravated
burglary and the sentence imposed.
JOE G. RILEY, JUDGE
CONCUR:
CURWOOD WITT, JUDGE
JOE H. WALKER, III, SPECIAL JUDGE
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