State of Tennessee v. Adrianne Kiser

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
August 7, 2012 Session
STATE OF TENNESSEE v. ANDRIANNE KISER
Direct Appeal from the Criminal Court for Shelby County
No. 10-06737 John Fowkles, Jr., Judge
No. W2011-01937-CCA-R3-CD - Filed December 10, 2012
A Shelby County Criminal Court Jury convicted the appellant, Andrianne Kiser, of two
counts of attempted voluntary manslaughter, one count of employing a firearm during the
commission of a dangerous felony, and one count of reckless endangerment. After a
sentencing hearing, the appellant received an effective sentence of sixteen years in
confinement. On appeal, the appellant contends that (1) the evidence is insufficient to
support the convictions, (2) the trial court erred by allowing a State witness to testify about
telephone calls she received before trial, and (3) his effective sentence is excessive. Based
upon the oral arguments, the record, and the parties’ briefs, we conclude that the evidence
is insufficient to support the appellant’s reckless endangerment conviction. Therefore, that
conviction is reversed. The appellant’s remaining convictions and sentences are affirmed.
However, the case is remanded to the trial court for correction of the judgment for employing
a firearm during the commission of a dangerous felony.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
Affirmed in Part, Reversed in Part, and the Case is Remanded.
N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL,
and R OGER A. P AGE, JJ., joined.
Joseph A. McClusky (on appeal) and Dianne Thackery (at trial), Memphis, Tennessee, for
the appellant, Andrianne Kiser.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Neal Oldham, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In September 2010, the Shelby County Grand Jury indicted the appellant, Andrianne
1
Kiser, for two counts of attempted second degree murder as a result of his shooting Cedric
Sawyer and David Secamond on April 2, 2010. The grand jury also indicted the appellant
for one count of employing a firearm during the commission of a dangerous felony and one
count of reckless endangerment for endangering the lives of Erica Bays and Ciera Williams
during the incident.
At trial, Kevin Pilatt testified that in April 2010, he was working as a security officer
at the Crystal Palace, a roller skating rink in Memphis. Pilatt explained that once a person
entered the front doors of the building, a long hallway led to two ticket booths. The hallway
and the ticket booths were separated from the skating rink area by a set of doors to the right
of the ticket booths. On the night of April 2, 2010, a rap concert was scheduled to take place.
However, the concert was canceled, and business at the skating rink was slow. About 9:00
p.m., Pilatt was about to go home when ten to twenty cars containing thirty to fifty people
arrived in the parking lot. He said that at first, the people were “wrestling around” in the
parking lot. Then they all went inside the building. Pilatt was walking behind the crowd and
saw the crowd go into the skating rink area without stopping by the ticket booths to pay the
admission fee. Pilatt’s mother, the manager of the Crystal Palace, announced over the
intercom that everyone needed to go to the ticket booths, but the crowd refused. Eventually,
the security officers were able to get the crowd out of the skating rink area and back into the
hallway. Pilatt said that everyone was “arguing and cussing back and forth”; that someone
in the crowd assaulted a security officer; and that everyone ran down the hallway, out the
front doors, and into the parking lot. By the time Pilatt got to the front doors, shots were
being fired in the parking lot. He heard two sets of shots and heard three to four shots during
each set. Cedric Sawyer, a security officer standing next to Pilatt, was shot in the chest. Pilatt
later found a bullet hole in his shirt under his left arm.
David Secamond2 testified that on the night of April 2, 2010, he was working as a
security officer at the Crystal Palace. There was not enough business to justify security
officers being at the skating rink, and Secamond was about to leave when sixty to eighty
1
The appellant’s first name appears as “Andrianne” and “Adrianne” throughout the appellate record.
However, we have referred to his first name as it appears in the indictment.
2
Although the witness’s last name is spelled “Seccamond” in the trial transcript, we have spelled it
as it appears in the indictment.
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people arrived. He said that everyone went inside the Crystal Palace, that someone held open
the doors to the skating rink area, and that the crowd went into the area without paying.
Security officers ushered the crowd into the hallway and pushed the crowd toward the front
of the building. Everyone started exiting the building through the front doors, and Secamond
heard gunshots in the parking lot. He was shot in the hip. He did not see the shooter and
spent three days in The Med.
Cedric Sawyer testified that on the night of April 2, 2010, a rap performance was
supposed to start at the Crystal Palace at 7:00 or 8:00 p.m. The rap group did not show up,
and regular customers were skating. Sawyer was sitting in the parking lot about 10:00 or
10:30 p.m. when twenty or thirty people arrived and entered the building. Three people went
to the ticket booths and paid the admission fee. Sawyer said that one of them opened the
doors to the skating rink area and that the crowd “started bum rushing” through the doors.
Security officers stopped the crowd, and the crowd began arguing with the officers. Sawyer
said that someone hit one of the security officers in the eye and that everyone “stormed out”
of the skating rink area and ran down the hallway toward the front of the building. When
Sawyer got to the front doors, he heard two gunshots. He was shot in the chest and spent two
weeks in The Med. He said that he did not see the shooter but that he saw the appellant in
the building on the night of the shootings. He said he had never seen the appellant before
April 2, 2010.
Andre Boyd testified that on the night of April 2, 2010, he worked as a security officer
at the Crystal Palace. Boyd arrived for work about 9:45 p.m. About thirty minutes later, the
security officers were informed that the manager could not afford to pay them for the night.
Boyd said that the manager bought them chicken dinners and that they “hung out . . . for a
little while.” Fifty to sixty people arrived, and the officers had to get the crowd out of the
skating rink area. Boyd said that the crowd was “getting louder and cursing and wanted to
fight” and that someone “threw a punch” at one of the officers. The security officers forced
the crowd into the hallway outside the skating rink area, and the crowd went into the parking
lot. Boyd was standing at the front doors when he heard five or six gunshots. His roommate,
David Secamond, was shot. Boyd said that the crowd’s altercation with the security officers
was over “within a matter of minutes. As quick as it started . . . it ended.”
On cross-examination, Boyd testified that all of the gunshots came from the same
direction. He acknowledged that he testified at a previous hearing related to this case. He
said he did not remember stating at the hearing that two people were shooting. However, he
said it was possible he made that statement. He also acknowledged saying at the hearing that
some of the shots came from a nine millimeter gun and that the other shots came from a
“thirty-eight.”
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Ciera Williams testified that on April 2, 2010, she and her family drove to Memphis
to shop and go to the Crystal Palace. Some of Williams’s family members went inside the
Crystal Palace to skate. Williams did not go inside; she left the property to get something to
eat. She returned to the skating rink and was sitting outside in her car with her sister when
six to ten cars arrived in the parking lot. Twenty-five or thirty people got out of the cars and
went inside the Crystal Palace. Then all of the people came running outside. Williams said
that she saw a male standing “right in front” of her car and that he was shooting toward the
building. The shooter got into the driver’s side of a red truck or SUV, the vehicle pulled
away, and the shooter fired into the air. Williams said the red vehicle was to the right of her
car and was “probably like two car places away.” Williams said that when the crowd first
arrived in the parking lot, she saw the shooter for about ten minutes, “play fighting around.”
The State asked Williams if she saw the shooter in the courtroom. Williams, referring to the
appellant, stated, “Um, he kind of looks like him, because his ears point out, his ears stick
up. . . . He just, because his ears point up, he favors – that’s what I remembered with his hat
on, the pointed ears sticking out.” The State asked if the appellant was the shooter, and
Williams stated, “I am not sure.”
On cross-examination, Williams testified that she arrived at the Crystal Palace about
10:30 p.m. She acknowledged that she testified at a previous hearing and that she was asked
during the hearing to identify the shooter.
On redirect examination, Williams acknowledged that she identified the appellant at
the hearing as the shooter. The State asked Williams, “How are you feeling right now?”
Williams answered, “Shaky,” and the State requested a jury-out hearing. When Williams’s
redirect testimony resumed, she testified that was scared to testify against the appellant
because she had received telephone calls from a male “telling me not to show up in Court.”
She said that she received the first call near the end of 2010, that the call was from a “9-0-1
number,” and that the male said he was calling for “A. D.” The male knew the name of
Williams’s sister and knew that Williams lived in Clarksdale, Mississippi. Williams said that
she received another telephone call “this past weekend” and that the call was again from a
“9-0-1 number.” The male said that his name was “Shaun” and that he was calling for “A.
D.” Williams said she was scared because the male knew her name, her telephone number,
and the town in which she lived. She said he asked if he was speaking to Ciera, “the one who
testified about the shooting.” Williams lied to him by telling him that she was not Ciera and
hung up. Williams identified the appellant in court as the shooter. She acknowledged that
she had trouble identifying the appellant as the shooter on direct examination because she
was afraid.
On recross-examination, Williams testified that on the night of April 2, 2010, the
shooter was wearing a black “skull cap” and was about five feet, four inches tall. She said
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that after the appellant shot toward the building, an SUV pulled up, and the appellant
“jumped” into the driver’s side. She acknowledged testifying at the appellant’s preliminary
hearing that she only saw the side of the shooter’s face. She also acknowledged that she told
the police the gun was silver and was not a revolver.
Erica Bays, Ciera Williams’s sister, testified that on the night of April 2, 2010, she and
Williams were sitting in Williams’s car while other family members were skating inside the
Crystal Palace. At 10:30 p.m., about thirty teenagers arrived. Some of them were playing
and wrestling in the parking lot. About fifteen minutes later, the teenagers went into the
Crystal Palace. Bays saw everyone run outside. She said that the first person out of the
building was standing in front of Williams’s car and was “firing back at the skating rink.”
The shooter was standing six to eight feet away from Bays. He ran to a red truck that had
pulled up about two parking spaces away from Williams’s car and fired gunshots into the air.
He got into the back of the truck on the passenger side, and the truck drove away. Bays
identified the appellant at trial as the shooter and said he was one of the people she had seen
wrestling earlier in the parking lot. She spoke with the police after the shooting, looked at
a photograph array on April 6, 2010, and identified the appellant’s photograph. Bays was
asked to identify the shooter at the appellant’s preliminary hearing, and she identified
someone other than the appellant. At trial, she explained, “I didn’t pick out the right person,
because I was nervous and scared[.]”
On cross-examination, Bays acknowledged that she gave a statement to police in
which she described the shooter as “a little boy.” She also acknowledged that she told the
police the shooter was fifteen to twenty feet away from her when he fired the first set of shots
and that he said “bitch” every time he fired. She acknowledged that she told the police the
shooter was wearing a black shirt and a hat and that she described the hat as “probably like
a baseball hat.” At the appellant’s preliminary hearing, Bays testified that she was trying to
hide during the shooting. At trial, she said she was “sliding [down] in the seat” but could still
see the appellant.
Officer Jason Matthews of the Memphis Police Department (MPD) testified that he
responded to the shootings and was the first officer on the scene. One victim was lying
inside the front door with a gunshot wound to his lower back or buttocks. Officer Matthews
went inside and saw another victim with a wound to the center of his chest. Two females
were sitting in a car in the parking lot.
Officer John Byars of the MPD testified that he investigated the shootings and
developed the appellant as a suspect. On April 6, 2010, he showed Erica Bays a photograph
array. He said Bays identified the appellant “[i]mmediately.”
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Officer David Payment of the MPD testified that he collected crime scene evidence
after the shootings and found eight spent shell casings. The first casing was 90 feet away
from the west wall of the Crystal Palace; the second casing was 92 feet, 8 inches away; the
third casing was 90 feet, 6 inches away; and the fourth casing was 93 feet, 8 inches away.
The first four casings were nine millimeter Luger spent casings. The fifth casing was 141
feet, 10 inches away from the west wall of the Crystal Palace; the sixth casing was 181 feet,
6 inches away; the seventh casing was 180 feet away; and the eighth casing was 182 feet, 8
inches away. All of the casings in the second group were forty caliber Smith and Wesson
spent casings. On cross-examination, Officer Payment acknowledged that he did not know
how long the casings had been in the parking lot.
Twenty-four-year-old Dashaun “Shaun” Hobbs, the appellant’s younger brother, was
called as the State’s last witness and acknowledged that he telephoned a witness in this case.
He said that he telephoned the witness “about two weeks ago . . . or a week and a half or
so[.]” He stated, “I just asked her was she coming, ‘cause I didn’t feel that he had committed
the crime, or whatever.” He said that the appellant asked him to telephone the witness and
that he did not know he was not supposed to contact witnesses in the case.
Dr. Jeffrey Neuschatz testified for the appellant as an expert in eyewitness
identification that he was an associate professor and the Chair of the Psychology Department
at the University of Alabama in Huntsville. He said that he had reviewed police reports,
witness statements, and the preliminary hearing testimony in this case and that he was
testifying as a paid consultant for the defense. Dr. Neuschatz explained that when a person
witnessed a complex event, the person did not remember the entire event. Instead, the person
remembered fragments of the event and put the fragments together with other information.
He said that the person could make inferences from events he or she had experienced that
were similar to the event in question, that the person could collect information from “external
sources,” and that “they put all that together.” He said that memory was “very fluent” and
that a person’s memory could change every time the person retold the story. A person could
well-remember events the person had repeated or rehearsed, such as driving home, but events
the person saw only one time were susceptible to “memory impairment.” Witnessing a
stressful event, such as a shooting, could impair a person’s memory. He said that eyewitness
identification accuracy also was much worse when the culprit was wearing a hat because the
hat “cuts off some of the cues to the face.” He said that seeing someone prior to the event
could cause “unconscious transference,” which occurred “when you mistakenly think
someone who is at the scene was the person who committed the crime.”
On cross-examination, Dr. Neuschatz acknowledged that he had not spoken to anyone
involved with this case and that he was testifying based upon studies and hypotheses. He
also acknowledged that seeing a person for ten to fifteen minutes prior to the stressful event
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would help an eyewitness identify the person later.
On redirect examination, defense counsel showed Dr. Neuschatz a photograph of the
crime scene. He described the scene as “dimly lit.”
The jury convicted the appellant of two counts of attempted voluntary manslaughter,
a Class D felony, as a lesser-included offense of attempted second degree murder; one count
of employing a firearm during the commission of a dangerous felony, a Class C felony; and
one count of reckless endangerment, a Class E felony. After a sentencing hearing, the trial
court sentenced him to consecutive sentences of four years for each attempted voluntary
manslaughter conviction, six years for the employing a firearm conviction, and two years for
the reckless endangerment conviction for a total effective sentence of sixteen years in
confinement.
II. Analysis
A. Sufficiency of the Evidence
The appellant claims that the evidence is insufficient to support the convictions. When
an appellant challenges the sufficiency of the convicting evidence, the standard for review
by an appellate court is “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App.
P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all
reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the
weight and value to be afforded the evidence, as well as all factual issues raised by the
evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
This court will not reweigh or reevaluate the evidence, nor will this court substitute its
inferences drawn from the circumstantial evidence for those inferences drawn by the jury.
Id. Because a jury conviction removes the presumption of innocence with which a defendant
is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant
has the burden of demonstrating to this court that the evidence is insufficient. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “The standard by which the trial court
determines a motion for judgment of acquittal at the end of all the proof is, in essence, the
same standard which applies on appeal in determining the sufficiency of the evidence after
a conviction.” State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim. App. 2000).
1. Eyewitnesses Unreliable
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First, the appellant contends that the evidence is insufficient to support all of the
convictions because Ciera Williams’s and Erica Bays’s identifications of him are unreliable.
He notes that Williams initially was unable to identify him at trial as the shooter and that
Bays identified someone else at his preliminary hearing as the shooter. The State argues that
the evidence is sufficient. We agree with the State.
Regarding Williams’s identification of the appellant, the State asked her on direct
examination if the appellant was the shooter, and she answered, “I am not sure.” On redirect
examination, Williams explained that she had been afraid to identify the appellant because
someone had contacted her and told her not to come to court. Deshaun Hobbs later admitted
that he had contacted Williams at the appellant’s request. Regarding Bays’s identification
of the appellant, Bays acknowledged at trial that she identified another person at the
appellant’s preliminary hearing as the shooter. However, Bays had identified the appellant
from a photograph array just four days after the crimes, and Officer Byars testified that Bays
selected the appellant’s photograph “[i]mmediately.” Bays also identified the appellant at
trial as the shooter. The jury, as was its prerogative, obviously accredited the witnesses’
testimony and resolved any discrepancies in favor of the State. We conclude that the
evidence is sufficient to support the convictions.
2. Attempted Voluntary Manslaughter
Next, the appellant contends that the evidence is insufficient to support his attempted
voluntary manslaughter convictions because the State failed to show that he acted under
adequate provocation. He claims that, at most, he is guilty of reckless endangerment. In a
related argument, he contends that if this court finds he is guilty of reckless endangerment,
then his conviction for employing a firearm during the commission of a dangerous felony
cannot stand because reckless endangerment is not listed as a “dangerous felony” pursuant
to Tennessee Code Annotated section 39-17-1324(i)(1). The State argues that the evidence
is sufficient to support the attempted voluntary manslaughter convictions. We agree with the
State.
Voluntary manslaughter is defined as “the intentional or knowing killing of another
in a state of passion produced by adequate provocation sufficient to lead a reasonable person
to act in an irrational manner.” Tenn. Code Ann. § 39-13-211(a). Relevant to this case, a
person commits criminal attempt when the person, acting with the kind of culpability
otherwise required for the offense “[a]cts with intent to cause a result that is an element of
the offense, and believes the conduct will cause the result without further conduct on the
person’s part.” Tenn. Code Ann. § 39-12-101(a)(2).
Taken in the light most favorable to the State, the evidence shows that a crowd of
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people forced its way into the skating rink area, that the manager told everyone to exit the
area and go to the ticket booths, and that security officers forced the crowd into the hallway.
The people in the crowd were angry with the officers and cursing them, and someone in the
crowd assaulted an officer. Then everyone ran outside. The appellant, who was the first
person out of the building, turned around and fired numerous gunshots toward the front doors
where the security officers were standing, striking Sawyer and Secamond. The jury
obviously concluded that the appellant’s being forced out of the skating rink created adequate
provocation to support convictions for attempted voluntary manslaughter, and we will not
second-guess the jury’s decision. Given that the evidence is sufficient to support the
attempted voluntary manslaughter convictions, the appellant’s argument regarding the
conviction for employing a firearm is moot.
3. Reckless Endangerment
Finally, the appellant contends that the evidence is insufficient to support the felony
reckless endangerment conviction because Williams and Bays were not in the “zone of
danger.” The State argues that the evidence is sufficient because the bullets could have
ricocheted off the building and struck the victims. We agree with the appellant that the
evidence is insufficient.
Felony reckless endangerment is defined as “[engaging] in conduct that places or may
place another person in imminent danger of death or serious bodily injury.” Tenn. Code Ann.
§ 39-13-103(a). “Reckless endangerment committed with a deadly weapon is a Class E
felony.” Tenn. Code Ann. § 39-13-103(b)(2). A firearm is a “deadly weapon.” Tenn. Code
Ann. § 39-11-106(a)(5)(A). In State v. Payne, 7 S.W.3d 25, 28 (Tenn. 1999), our supreme
court explained that in order for the threat “to be ‘imminent,’ the person must be placed in
a reasonable probability of danger as opposed to a mere possibility of danger.” Moreover,
“the term ‘zone of danger’ may be employed to define that area in which a reasonable
probability exists that the defendant’s conduct would place others in imminent danger of
death or serious bodily injury if others were present in that zone or area.” Id.
Turning to the instant case, the State argued during the appellant’s motion for
judgment of acquittal and during closing arguments that the appellant’s firing into the air in
a crowded parking lot constituted reckless endangerment. On appeal, the State argues for the
first time that the appellant is guilty of reckless endangerment because the bullets he fired
toward the Crystal Palace could have ricocheted off the building and struck Williams and
Bays. We are unpersuaded by either argument.
Taken in the light most favorable to the State, the evidence shows that the appellant
ran out of the Crystal Palace, turned around, and fired four shots toward the building. He
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was at least ninety feet away from the building and was standing in front of Williams’s car
when he fired the first set of shots. Williams and Bays were behind him and were not in the
line of fire. Although the State now claims that the bullets could have ricocheted off the
building and struck Williams and Bays, the State did not make that argument at trial and
presented no evidence to support that theory. After the appellant fired the first set of shots,
he ran to a red SUV that had stopped about two parking spaces away from Williams’s car and
fired four shots into the air. The State introduced photographs showing the locations of the
second set of spent shell casings and Williams’s car. However, the State did not present any
evidence to show how far away the appellant was from the car when he fired the second set
of shots; whether Williams and Bays were in the “zone of danger”; or whether the bullets
could have injured the sisters, who were sitting in the car, upon the projectiles’ descent.
Therefore, we conclude that the evidence is insufficient to support the reckless endangerment
conviction.
In sum, we conclude that the evidence is insufficient to support the appellant’s
reckless endangerment conviction and that the conviction must be reversed. The evidence
is sufficient to support the appellant’s convictions of attempted voluntary manslaughter and
employing a firearm during the commission of a dangerous felony.
B. Williams’s Rebuttal Testimony
The appellant claims that the trial court erred by allowing Ciera Williams to testify
about telephone calls she received before trial, telling her not to come to court. The appellant
argues that the evidence was inadmissible under 404(b), Tennessee Rules of Evidence, and
had little to no probative value. The State argues that the trial court properly admitted
Williams’s testimony. We agree with the State.
On direct examination, the State asked Williams if the appellant was the shooter, and
Williams answered, “I am not sure.” On redirect examination, she acknowledged that she
identified the appellant as the shooter at a previous hearing. The State asked how she was
feeling, and she described herself as “Shaky.” The State requested a jury-out hearing. During
the hearing, Williams said she was nervous and scared because “[ever] since I testified the
first time I been getting phone calls.” She said she received two calls from “9-0-1 numbers.”
During the first call, the caller asked if Williams knew “A. D.” She said the caller told her
that A.D. “didn’t do it and he be [sic] crying and stuff like that and he don’t [sic] want y’all
to come to Court in May.” Williams knew the caller was talking about the appellant. During
the second call, the caller again said he was calling for A.D. The caller knew Williams’s
name and knew her sister’s first name was Erica. Williams said she had not wanted to
identify the appellant on direct examination because she was scared. The State asked her if
she was sure the appellant was the shooter, and she answered, “No.” Upon being questioned
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by the trial court, Williams said that the caller did not threaten her but that “he was telling
me, basically, not to come to Court.”
The State argued that the trial court should allow Williams to testify about the
telephone calls because “the jury should be allowed to hear about this conversation, why she
is scared today and why that identification is shaky today.” The defense argued that the
evidence was “more prejudicial than probative” because nothing directly linked the appellant
to the calls. The trial court ruled that the calls could not be considered prior bad acts because
they had not been connected to the appellant. The court noted that case law allowed
testimony about a defendant’s threatening a witness. However, the court determined that
those cases were not on point because the appellant did not threaten the witness in this case.
Nevertheless, the court ruled that the calls were highly relevant to the issue of identification
“because of the obvious effect that the phone calls [have] had on the witness.” The trial
court also ruled that the probative value of the evidence “far” outweighed the prejudicial
effect.
Williams’s redirect testimony resumed. At the conclusion of her testimony, she
identified the appellant as the shooter. The trial court then instructed the jury as follows:
Ms. Williams’ testimony with regard to the phone calls
and the way she felt. My instructions to you are that that
testimony wasn’t provided to prove to you any assertion with
regard to the defendant, whether or not he tried to threaten her.
Nothing of that has been tied to him. So you are not to
consider it for that purpose, at all.
The reason it was allowed is to show the impact on the
witness, okay. So it is really for two issues, the witness
credibility, the credibility as a witness. And then, also, your
consideration as far as the identification testimony is concerned.
But, you are not to put any weight on it, with regard to
the defendant, having made the phone calls, or anything, okay.
It is only for the purpose of dealing with the witness and the
value that you put on the witness testimony for identification
and credibility.
On appeal, the appellant contends that the calls were inadmissible as prior bad acts
pursuant to Tennessee Rule of Evidence 404(b). However, the appellant did not make that
argument at trial. “Ordinarily, issues raised for the first time on appeal are waived.” State
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v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996). In any event, the trial court
ruled that Rule 404(b) was not at issue because the calls had not been connected to the
appellant. See Tenn. R. Evid. 404(b)(3) (providing that proof of a defendant’s other crimes,
wrongs, or acts are inadmissible unless the court finds proof of the other crime, wrong, or act
to be clear and convincing). The State argues that the trial court properly allowed Williams
to testify about the calls and that the jury instruction was unnecessary because any attempt
by a defendant to suppress a witness’s testimony “is relevant as a circumstance from which
guilt of the accused may be inferred.” Tillery v. State, 565 S.W.2d 509, 511 (Tenn. Crim.
App. 1978). However, at the time of the trial court’s ruling, Dashaun Hobbs had not testified
and linked the appellant to the calls. Therefore, the trial court ruled that this was an issue
solely of relevance.
Generally, evidence must be relevant to some issue at trial in order to be admissible.
See Tenn. R. Evid. 402. “‘Relevant evidence’ means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401; see
also State v. Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999). However, even relevant
evidence “may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.
403. It is within the trial court’s discretion to determine whether the proffered evidence is
relevant; thus, we will not overturn the trial court’s decision absent an abuse of discretion.
See State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995). “Under this standard,
we will not reverse unless the trial court applied an incorrect legal standard, or reached a
decision which is against logic or reasoning that caused an injustice to the party
complaining.” State v. Cannon, 254 S.W.3d 287, 295 (Tenn. 2008) (internal quotations and
citations omitted).
Williams had identified the appellant at a previous hearing as the shooter. However,
on direct examination at trial, she said she was not sure. The trial court ruled that the
telephone calls were relevant to explain Williams’s fear in testifying against the appellant and
why she had become unsure of his identification as the shooter since the preliminary hearing.
We agree that the calls were relevant to explain Williams’s fear and reluctance to identify the
appellant. Regarding prejudice, the trial court reduced the prejudicial effect of Williams’s
testimony by specifically instructing the jury that the calls had not been linked to the
appellant and that the jury could consider Williams’s testimony only in determining whether
the calls had impacted her identification of the appellant and her credibility. Generally, we
presume that a jury has followed the trial court’s instructions. See State v. Butler, 880
S.W.2d 395, 399 (Tenn. Crim. App. 1994). Given that the prejudicial value of relevant
evidence must be substantially outweighed by the danger of unfair prejudice in order for the
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evidence to be inadmissible, we cannot say that the trial court abused its discretion by ruling
that Williams could testify about the calls. Therefore, the appellant is not entitled to relief.
C. Sentencing
The appellant contends that his effective sentence is excessive because the trial court
misapplied an enhancement factor and improperly ordered consecutive sentencing. The State
argues that the trial court properly sentenced the appellant. We agree with the State.
At the appellant’s sentencing hearing, the State did not call any witnesses to testify
and asked that the trial court rely on the appellant’s presentence report. According to the
report, the then twenty-one-year-old appellant was single with a one-year-old daughter. In
the report, the appellant described his mental health as “fair” and his physical health as
“excellent” with no past or current use of alcohol or illegal drugs. The report shows that he
was expelled from the tenth grade in 2006 and attended Job Corps in Kentucky from May to
September 2007. He stated in the report that he worked for his uncle at Top Cat Masonry
from the ages of sixteen to twenty. The report shows that the appellant has two prior
convictions of driving on a suspended license and one conviction each of unlawful
possession of a weapon, disorderly conduct, and criminal trespass. The report also shows
that he violated the probation sentence he received for the unlawful possession of a weapon
conviction and that he was adjudicated delinquent as a juvenile of sexual battery in 2000.
The victim of the sexual battery offense testified for the appellant that her brother was
the appellant’s grandfather. In 2000, the then ten-year-old appellant was living with his
grandfather, who was involved in a custody battle over the appellant with the victim’s
mother. Someone accused the appellant of sexually assaulting the victim. The victim denied
that the appellant did anything of a sexual nature to her.
The appellant chose not to make a statement on his own behalf at the sentencing
hearing. However, he asserted through his attorney that he was not guilty of the crimes in
this case.
The trial court noted that it had reviewed the appellant’s presentence report.3 The trial
court applied enhancement factors (3), that the offense involved more than one victim, and
(10), that the defendant “had no hesitation about committing a crime when the risk to human
life was high.” Tenn. Crim. App. § 40-35-114(3), (10). The trial court also applied
enhancement factor (6), that the personal injuries inflicted upon the victim were particularly
3
As noted by the appellant, the presentence report was never made an exhibit at the hearing but was
included in the appellate record.
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great, to the appellant’s attempted voluntary manslaughter convictions. See Tenn. Crim.
App. § 40-35-114(6). The trial court applied no mitigating factors. See Tenn. Crim. App.
§ 40-35-113.
The trial court noted that the appellant was a Range I, standard offender and that the
range of punishment was two to four years for the attempted voluntary manslaughter
convictions and one to two years for the reckless endangerment conviction. See Tenn. Code
Ann. § 40-35-112(a)(4), (5). The trial court also noted that the minimum sentence for the
employing a firearm conviction was six years. See Tenn. Code Ann. § 39-17-1324(h)(1).
The trial court sentenced the appellant to four years for each attempted voluntary
manslaughter conviction and two years for the reckless endangerment conviction. The trial
court sentenced the appellant to six years for the employing a firearm conviction and noted
that the sentence had to be served at one hundred percent and consecutively to the other
sentences. See Tenn. Code Ann. § 39-17-1324(e)(1), (2). The trial court ordered that the
appellant serve all of the sentences consecutively for a total effective sentence of sixteen
years in confinement.
Previously, appellate review of the length, range, or manner of service of a sentence
was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).
However, our supreme court recently announced that “sentences imposed by the trial court
within the appropriate statutory range are to be reviewed under an abuse of discretion
standard with a ‘presumption of reasonableness.’” State v. Susan Renee Bise, ___ S.W.3d
___, No. E2011-00005-SC-R11-CD, 2012 Tenn. LEXIS 645, at *76 (Knoxville, Sept. 26,
2012). In conducting its review, this court considers the following factors: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by the
parties on enhancement and mitigating factors; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also State
v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to demonstrate
the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n
Cmts.
In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of
punishment is the sentence that should be imposed, because the
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general assembly set the minimum length of sentence for each
felony class to reflect the relative seriousness of each criminal
offense in the felony classifications; and
(2) The sentence length within the range should be
adjusted, as appropriate, by the presence or absence of
mitigating and enhancement factors set out in §§ 40-35-113 and
40-35-114.
Tenn. Code Ann. § 40-35-210(c).
Although the trial court should also consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; Bise,
___ S.W.3d at ___ n.32, 2012 Tenn. LEXIS 645, at **42-43 n.32. We note that “a trial
court’s weighing of various mitigating and enhancement factors [is] left to the trial court’s
sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select
any sentence within the applicable range so long as the length of the sentence is ‘consistent
with the purposes and principles of [the Sentencing Act].’” Id. at 343. “[A]ppellate courts
are therefore left with a narrower set of circumstances in which they might find that a trial
court has abused its discretion in setting the length of a defendant’s sentence.” Id. at 345-46.
“[They are] bound by a trial court’s decision as to the length of the sentence imposed so long
as it is imposed in a manner consistent with the purposes and principles set out in sections
-102 and -103 of the Sentencing Act.” Id. at 346.
Turning to the instant case, the appellant contends that the trial court erred by
imposing a sentence in excess of the minimum prescribed sentence. Specifically, he argues
that the trial court erred by applying enhancement factor (10), that the defendant had no
hesitation about committing a crime when the risk to human life was high.
As to the appellant’s reckless endangerment conviction, this court has held that
enhancement factor (10) does not apply to a reckless endangerment conviction because the
risk to human life is inherent in the offense. State v. Emory Leslie Letson, No.
E2010-00055-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 673, at *16 (Knoxville, Aug. 26,
2011). In any event, we have already determined that the evidence is insufficient to support
that conviction. Regarding the appellant’s remaining convictions, this enhancement factor
“is broadly written to include ‘risk to human life.’” State v. Imfeld, 70 S.W.3d 698, 707
(Tenn. 2002). The factor “may be applicable when individuals other than the victim may
have been harmed by the commission of the offense.” State v. Pierre Terry, No.
W2009-00169-CCA-R3-CD, 2009 Tenn. Crim. App. LEXIS 991, at *13 (Jackson, Dec. 8,
2009) (citing id.). The evidence shows that the appellant was the first one out of the Crystal
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Palace, turned around, and fired toward the building as people were exiting and security
officers were standing at the front doors. Kevin Pilatt, who was standing beside Cedric
Sawyer, testified that he found a bullet hole in his shirt. Therefore, the trial court properly
applied this enhancement factor.
Regarding consecutive sentencing, the trial court stated during the sentencing hearing
that “I just can’t think of a worse situation. An individual hanging out [in] a parking lot of
a business and firing shots at a group of people at the front door.” The trial court said that
it was ordering consecutive sentencing based upon the appellant’s being 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. See Tenn. Code Ann. § 40-35-
115(b)(4). The trial court stated that the circumstances of case were extremely aggravated,
that confinement for an extended period of time was necessary to protect society, and that
the aggregate length of the sentences related to the offenses.
In order to find that a defendant is a dangerous offender, a court must also find that
(1) the sentences are necessary in order to protect the public from further misconduct by the
defendant and that (2) the terms are reasonably related to the severity of the offenses. State
v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995); see also State v. Lane, 3 S.W.3d 456, 461
(Tenn. 1999). In the instant case, the trial court properly addressed the Wilkerson factors.
Accordingly, the trial court properly ordered the appellant to serve the attempted voluntary
manslaughter convictions consecutively. As stated previously, the appellant was required
to serve the sentence for employing a firearm during the commission of the dangerous felony
consecutively. Given that the evidence is insufficient to support the appellant’s conviction
of reckless endangerment, that conviction is reversed and his effective sentence is fourteen
years in confinement.
III. Conclusion
Based upon the oral arguments, the record, and the parties’ briefs, we conclude that
the evidence is sufficient to support the appellant’s convictions and sentences for attempted
voluntary manslaughter and employing a firearm during the commission of a dangerous
felony. However, the evidence is insufficient to support his conviction of reckless
endangerment. Therefore, that conviction is reversed, and his effective sentence is modified
to fourteen years in confinement. The case is remanded to the trial court for correction of the
judgment for employing a firearm to reflect that the appellant is to serve one hundred percent
of that sentence instead of thirty percent.
_________________________________
NORMA McGEE OGLE, JUDGE
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