State of Tennessee v. Timothy W. Sparrow

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 9, 2012 Session

STATE OF TENNESSEE v. TIMOTHY W. SPARROW

Direct Appeal from the Criminal Court for Williamson County

No. I-CR103731 Robbie Beal, Judge

No. M2012-00532-CCA-R3-CD - Filed March 14, 2013

A Williamson County Criminal Court Jury convicted the appellant, Timothy W. Sparrow, of

two counts of second degree murder, one count of attempted first degree murder, and one

count of attempted aggravated robbery. After merging the second degree murder

convictions, the trial court imposed a total effective sentence of forty years in the Tennessee

Department of Correction. On appeal, the appellant raises the following issues for our

review: (1) whether the trial court erred by failing to suppress a suggestive pretrial

identification of the appellant as the perpetrator; (2) whether the evidence was sufficient to

sustain his convictions; (3) whether the trial court erred by not upholding the appellant’s

Batson challenge after the State peremptorily challenged a black juror; (4) whether the trial

court erred by admitting a statement made by a State’s witness; (5) whether the trial court

erred by admitting a photograph of the murder victim that was taken while he was alive; (6)

whether the trial court erred by admitting a black t-shirt that was alleged to belong to the

appellant; (7) whether the trial court erred in its communications with jurors; (8) whether the

trial court erred in sentencing; and (9) whether the principles of double jeopardy were

violated. Upon review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are

Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which JERRY L. S MITH and

J OHN E VERETT W ILLIAMS, JJ., joined.

Joseph D. Baugh, Franklin, Tennessee, for the appellant, Timothy W. Sparrow.

Robert E. Cooper, Jr., Attorney General and Reporter, Rachel Harmon, Assistant Attorney

General; Kim R. Helper, District Attorney General; and Terry E. Wood, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

A Williamson County Grand Jury indicted the appellant for the premeditated first

degree murder of Jose Arias, the felony murder of Arias, the attempted first degree murder

of Thomas Davenport, the attempted aggravated robbery of Davenport, and aggravated

burglary. The charges stemmed from a shooting that occurred on August 18, 2008, at a

residence on Arno Allisona Road. Prior to trial, the aggravated burglary charge was

dismissed.

At trial, Kimberly Bennett testified that in August 2008, she and Davenport, her

boyfriend, lived in a house at 6936 Arno Allisona Road that her friend, Marilyn Holt, had

rented. Bennett stated that occasionally Arias spent the night at Holt’s house and slept in the

living room on the couch.

In the early morning hours of August 18, Arias was watching a movie in the living

room, and Bennett and Davenport were asleep in their bedroom. Bennett explained that the

bedroom window was beside the driveway and that the sound of a loud vehicle outside woke

her. She thought the vehicle might be a truck. A few minutes later, Arias knocked on the

bedroom door, and Bennett and Davenport allowed him to enter. Arias turned on the lights

and said that his friend from Shelbyville was there to see Davenport. When Davenport asked

to whom Arias was referring, Arias left, walked to the living room, and returned to the

bedroom with the appellant. The appellant stood at the foot of the bed on the left, which was

Davenport’s side, and said that he had a gun he wanted to sell. Davenport said that he did

not want to buy the gun. The appellant offered to sell Davenport a compact disk (CD) player.

Davenport said that he did not have a car and had no need for a CD player. During the

conversation, Arias asked the appellant if he had arrived alone. The appellant said yes. Arias

turned to leave, and the appellant shot him with the gun he had tried to sell to Davenport.

Bennett said the shot sounded like a firecracker. She turned toward the door and saw the

appellant pointing the gun at Arias.

Bennett said that Arias walked down the hall, and the appellant followed, shooting at

him multiple times. The appellant did not speak as he fired the gun. Bennett went to shut

the bedroom door and discovered that the men were down the hall in the kitchen. Arias was

facing the back door. The appellant stood over Arias and shot him in the face. Bennett shut

the door, got back into bed, and covered her head. She heard the appellant running back to

the bedroom. The appellant came in, went to Davenport’s side of the bed and demanded,

“[G]ive me everything you’ve got, Bubba[, which was Davenport’s nickname].” Davenport

responded that he did not have anything. Bennett then heard the gun click, and the appellant

-2-

ran out of the house. Bennett heard the loud vehicle leave.

After the appellant left, Bennett and Davenport walked toward the living room. As

they went, they saw Holt standing in her bedroom doorway. Davenport proceeded to check

on Arias while Bennett and Holt went into Holt’s bedroom to call 911. Davenport brought

Arias into the living room and put him in a chair. Approximately five minutes later, the

police arrived. At the officers’ request, Davenport, Bennett, and Holt stepped outside.

A couple of days later, Bennett went to the police station to see a photograph lineup.

When she looked at the lineup, she was in a room with only Detectives Phillips and Benedict.

She identified the appellant as the perpetrator from the lineup. Bennett noted that prior to

the shooting, she had seen the appellant at Holt’s house four or five times for approximately

five minutes each time. The appellant usually came to the house with Charles Leverette,

whose nickname was “Dump Truck,” or with Leverette’s mother. Bennett said that the

appellant and Leverette came to the house to buy drugs. Bennett said that she did not sell

drugs but that Holt and Davenport did. Bennett acknowledged that around the time of the

shooting, she had used cocaine daily. Around 6:00 or 7:00 p.m. prior to the shooting,

Bennett used approximately $30 worth of crack cocaine, which was about “the size of a

peanut.” She said the high lasted about an hour. Bennett acknowledged that she had several

prior misdemeanor convictions for passing worthless checks.

On cross-examination, Bennett stated that Leverette was from Shelbyville and that he

was friends with all of the residents of Holt’s house. She stated that Leverette visited the

house two or three times a week. Bennett said that when the appellant arrived that night, she

and Davenport were asleep, the lights were off in the bedroom, and the bedroom door was

shut. Bennett said that the appellant wanted to sell or trade Davenport a gun or CD player

for money or drugs. Bennett stated that the gun was small and shiny but that she did not

know if it was a revolver or a semiautomatic. Bennett said that approximately thirty or forty

minutes after the shooting, Davenport spoke with Leverette on the telephone. Bennett said

that after the appellant shot Arias point-blank in the face, blood went all over the kitchen. She

stated that after the shooting, she found a shell casing on the floor of her bedroom near the

television in the corner of the bedroom where the appellant had been standing. She put the

shell casing on her chest of drawers and later gave the shell casing to Detective Benedict.

Bennett acknowledged that she used to be addicted to cocaine and that she had

smoked $30 worth of crack cocaine the night before the shooting. However, she stated that

the drugs had worn off by the time of the shooting and did not affect her memory, her

hearing, or her sight. Bennett said that Detective Benedict did not have her listen to a car to

try to identify the vehicle that came to Holt’s house. Detective Benedict did show her a

photograph lineup from which she identified the appellant. Bennett said that she saw

-3-

television news coverage showing Holt’s house but that she never saw the appellant on

television. When Bennett was shown a photograph of the appellant that was attached to a

press release issued by Detective Benedict, she stated that she had never seen the photograph

before.

Bennett stated that she knew the appellant as Larry. After the shooting, Leverette told

her that Larry was the appellant’s alias. She stated that when she went to view the lineup,

she rode in the same car with Holt and Davenport. She did not recall what they discussed on

the way to the police station. Bennett said that Holt did not see the appellant that night but

that Bennett later told her the assailant was Larry. Bennett said that she saw the appellant

for approximately three to four minutes in her bedroom prior to the shooting, but she

conceded that it could have been a shorter amount of time.

On redirect examination, Bennett stated that she had not used cocaine since the

shooting. She recalled that the appellant was wearing a plain navy blue or black t-shirt and

long blue jean shorts.

Thomas Eugene Davenport testified that on August 18, 2008, he was living at 6939

Arno Allisona Road with Bennett and Holt and that Arias was spending the night at Holt’s

house. Around 2:30 a.m., Davenport and Bennett were in the bedroom watching television

and getting ready to go to sleep. Davenport heard a loud car pull up outside. Someone

knocked on the door, and Arias admitted the person. Davenport shouted to ask Arias who

had arrived. Arias responded that it was his friend Larry from Shelbyville. Thereafter, Arias

knocked on the door of Davenport’s bedroom and said that Larry wanted to know if

Davenport wanted to buy a gun. Davenport said that the room was lit by a bedside lamp.

Arias and the appellant came into the bedroom and stood at the foot of the bed; the appellant

was closer to Davenport than Arias was. Davenport stated that he had previously seen the

appellant at Holt’s house two or three times, usually with Leverette or Leverette’s cousin or

mother, and that he knew the appellant as Larry.

The appellant pulled out the gun and held it in his open palm. Davenport said that it

was a small, shiny, silver .25 caliber gun. Davenport told the appellant that he did not have

any money and could not buy it. Davenport mentioned that he knew someone who might be

interested in buying it but that it was too late to make contact. The appellant then asked if

Davenport wanted to buy a CD player. Davenport said that he did not because he did not

have a car. The appellant suggested that Davenport put the CD player into Holt’s car. As

Arias started to leave the room, the appellant said, “[D]amn you, Jose,” and ran behind Arias.

Davenport saw a flash at the doorway and asked what the appellant was doing. Bennett told

him that the appellant was shooting Arias in the back.

-4-

Arias ran down the hall into the kitchen, and the appellant followed him. Davenport

heard three or four gunshots. Bennett jumped out of bed, slammed the bedroom door closed,

and said, “[H]e’s going to kill us.” Davenport told her to lie down and put a pillow over her

head, and she complied. The appellant kicked the bedroom door open, ran to Davenport, and

demanded, “[G]ive me everything you’ve got.” Davenport said the appellant “click[ed]” the

gun in his face. Davenport told the appellant he did not have anything and held his hands in

front of his face. Davenport thought the appellant was going to kill everyone in the house.

Davenport then saw that a shell casing was sticking up from the gun, jamming it. When the

appellant was unsuccessful at shooting Davenport, he turned and ran toward the door. Holt

came out of her bedroom, and, as he ran, the appellant slammed her against the wall. The

appellant ran out the door, and Davenport followed. From the door, Davenport saw that the

appellant’s car was white and had a “custom grill” and dark-tinted windows. Davenport shut

and locked the front door, told the women to call 911, and went to check on Arias.

Davenport helped Arias walk from the kitchen to the living room, and Arias sat on the

couch. One of the women handed Davenport the telephone, and he spoke with the 911

operator. The operator instructed Davenport to make Arias lean his head back. As he was

doing so, Davenport noticed that Arias had been shot in the face. Davenport said Arias was

holding a pair of pants against his wound but that he was still bleeding.

The police and an ambulance arrived in approximately ten to fifteen minutes.

Emergency medical service workers (EMS) put Arias in the ambulance. Davenport said that

approximately thirty to sixty minutes after the shooting, he received a call from Leverette.

Leverette asked what was going on, and Davenport told him about the shooting. Leverette

said that the appellant’s name was not Larry, it was Timmy. Davenport then passed the

telephone to an officer so he could speak with Leverette.

Davenport said that he later went to the police station with Holt and Bennett to view

a photograph lineup. He said that during the drive, they discussed that the appellant’s

photograph would probably be in the lineup. Davenport positively identified the appellant

as the perpetrator from the lineup. He recalled that the appellant was wearing a dark shirt on

the night of the shooting.

Davenport identified a photograph of a white Ford Crown Victoria that looked like

the car the appellant was driving. After the shooting, Davenport went to the police station

to listen to the Crown Victoria as it was running. He said it had the same distinctive, loud

sound as the car the appellant was driving.

Davenport said that Leverette came by Holt’s house once every one or two weeks

prior to the shooting to buy drugs. Davenport acknowledged that he and Holt sold drugs

-5-

from the house, that he had previously been convicted of selling drugs, and that he was

incarcerated for selling drugs at the time of trial. He said that around 6:00 p.m. prior to the

shooting, he, Bennett, and Arias had smoked crack cocaine. He said he was high for

approximately twenty minutes and was no longer feeling the effects of the drug at the time

of the shooting.

On cross-examination, Davenport stated that Arias never said anything after he was

shot and that he lost a lot of blood. He recalled that Holt was asleep in her bedroom at the

time of the shooting. She came to her door when the appellant was headed out of the house.

As he left, the appellant hit Holt in the neck and slammed her against the wall. Davenport

said that Bennett was sitting on her side of the bed and saw the appellant standing in front

of her at the foot of their bed prior to the shooting.

Davenport said that he had known Leverette for approximately five or six years and

that they had met while working at a factory where batteries were made. Davenport said that

Leverette lived in Shelbyville and that he was not at Holt’s house on the night of the

shooting. When he called, Leverette told Davenport that “[h]e had called somebody just to

be calling them up for something” and that person told Leverette that something had

happened at Davenport’s house. Leverette asked Davenport what was happening. At first,

Davenport thought Leverette said that Larry’s real name was Kenny, but he later realized

Leverette said Timmy. Davenport said that by the time Leverette called, Arias was already

dead. Davenport said that the timing of the call was not unusual because Leverette called

anytime.

Davenport said that he did not see any local news coverage about the case and did not

see a photograph of the appellant prior to the lineup. When Davenport, Holt, and Bennett

went to the police department two days after the shooting to view the photograph lineup,

Bennett said that she did not want to have to look at the appellant’s face again. Davenport

could not remember if they conversed further about the identity of the perpetrator.

Davenport acknowledged that he smoked crack cocaine hours before the shooting.

However, he stated that he had not sold or used drugs since the shooting and that the

conviction for selling drugs for which he was incarcerated was based upon his conduct some

time before the shooting. Davenport denied that smoking crack cocaine that night affected

his memory. Davenport conceded that at a prior proceeding, he testified that the last time he

used cocaine was approximately one week after the shooting.

Marilyn Holt testified that she went to bed around 9:00 or 10:00 p.m. on August 17.

She was later awakened by the sound of what she at first thought were firecrackers. When

she opened her bedroom door, she saw a man running through the living room. As he passed

-6-

her, the man pushed her back into her bedroom. Holt said that she did not recognize the man

but that he looked “quite large” and that she did not think the man was white. When the man

left, Davenport approached her and told her to call 911 because Arias had been shot. As Holt

called 911, she heard a vehicle start outside. She said the car had a distinct, loud sound. Holt

asked who it was, and Bennett told her that it was Larry. Holt said that the only Larry she

knew was from Shelbyville. Before that night, she had seen Larry at her house about four

or five times. Each visit lasted ten to twenty minutes. She said that Larry usually arrived

with other people, mostly Leverette or Leverette’s mom or girlfriend.

Holt said that she later went to the police station and identified a white Crown

Victoria that sounded like the one she heard that night.

Holt said that she never saw a gun that night. However, she said that she felt

something hard in the perpetrator’s hand when he pushed her back into her bedroom. She

also said that she later had a bruise on her jaw.

Holt said that on the morning of the shooting, she gave a written statement to police.

After viewing the statement during her trial testimony, Holt recalled that the perpetrator was

black, but she could not recall seeing a gun.

Holt acknowledged that around the time of the shooting, people were using and selling

crack cocaine at her house. She stated that she occasionally used crack cocaine and that she

and Davenport sold cocaine. She acknowledged that she had been previously convicted of

selling cocaine.

On cross-examination, Holt said that she had worked as a caregiver for the elderly for

approximately thirteen years. She said that she moved into the house on Arno Allisona Road

in November 2004 and that she rented the house from Evelyn Pitt, who lived two doors down

on the same road.

Holt said that when the perpetrator ran past her, he pushed her into the frame of her

bedroom door and that afterward she went into the bedroom. Bennett came into Holt’s

bedroom, jumped on her bed, and started screaming. Bennett told her that Arias had been

shot by Larry. She stated that she stayed with Arias and tried to comfort him while they

awaited an ambulance. She said that Davenport tried to stop Arias’s bleeding. Holt said that

there was blood in the kitchen after the shooting and that it was “a mess.” She did not recall

seeing any bloody footprints in the kitchen.

Holt acknowledged that she never saw the perpetrator but that she identified the

appellant from the photograph lineup as a person she knew. She said that Bennett had told

-7-

her that the appellant was the perpetrator and that Holt then identified the appellant from the

lineup.

Holt said that while she was at work, she saw the appellant’s photograph on a

television news report about the shooting; therefore, Holt knew the appellant was the suspect.

She said that she did not recall talking with Bennett or Davenport about seeing the

appellant’s photograph on a news report but that she might have. However, she maintained

that she, Bennett, and Davenport already knew the appellant was the perpetrator before any

news was televised.

Holt said that she never saw the car the appellant was driving. She said that the car

sounded like it had “a special kind of muffler or something, like vroom.”

Holt said that Leverette was a friend of Davenport’s, that he lived in Shelbyville, and

that he frequently visited Holt’s house. She said that Leverette bought cocaine at the house.

Holt stated that arguments often occurred at her house when people owed money for drugs.

She noted that Leverette “owes everybody” and was sometimes part of the arguments.

Holt said that she did not use cocaine daily, just on weekends. She did not smoke

crack cocaine the night before the shooting.

Clifford Charles Leverette testified that he lived in Shelbyville and had known

Davenport for six to eight years. Leverette said that he also knew Bennett, Holt, and Arias.

Leverette stated that he and Arias had been to Holt’s house together many times to buy and

use drugs. He said that they bought drugs from Holt or Davenport. Leverette stated that he

had known the appellant for one or two years and had been to Holt’s house with him at least

a dozen times. Each time, Leverette would call the appellant Larry because the appellant did

not want anyone to know his name.

Leverette said that early in the morning of August 18, 2008, he called Davenport. He

denied knowing about the shooting incident before the call, explaining that he had called to

ask about acquiring drugs. During the call, Davenport told Leverette that Larry had shot

Arias. Leverette said that detectives then joined the conversation and asked if Leverette

knew Larry. Leverette revealed that Larry was a name used by the appellant, Timothy

Sparrow.

Leverette acknowledged that he had a history of misdemeanor convictions, such as

passing worthless checks.

On cross-examination, Leverette acknowledged that he had a previous conviction of

-8-

criminal impersonation and multiple convictions for misdemeanor thefts. Leverette stated

that he had been to Holt’s house on a near daily basis for drugs. He acknowledged that

approximately thirty to sixty days before the shooting, he was involved in an altercation at

Holt’s house with some black men about money Leverette owed for drugs.

Leverette said that he had called Davenport around 3:00 or 4:00 a.m. He said he had

called that early several times before. He stated that he was drunk and high when he made

the call. He had been drinking all that day and was at home in bed, watching television and

wanting drugs when he called Davenport.

Leverette stated that he did not know of any reason anyone would have ill will toward

Arias, noting that Arias was “a real good friendly fellow.”

Brandy Dion Ray testified that she lived in Tullahoma and that she knew the

appellant. Around 5:00 a.m. on August 18, 2008, the appellant called her and asked for a

ride, explaining that he wanted to spend the night at Ray’s house because he had argued with

his girlfriend. Ray agreed and picked up the appellant near a BP gas station in Shelbyville.

The appellant was wearing tennis shoes, shorts, and a “wife beater” tank top undershirt. After

they arrived at Ray’s house, Ray gave the appellant a yellow shirt to wear. Then, the

appellant slept on the couch, and Ray slept in her bedroom for an hour or hour and a half

before leaving for work.

Ray said that while she was at work, her sister called and asked if Ray knew someone

named Timmy Sparrow. Ray said that she did, and her sister told her that he was wanted for

questioning about a murder. Ray called and told the police that the appellant was at her

house.

Williamson County Sheriff’s Deputy Michael Joseph Terns testified that at

approximately 2:51 a.m. on August 18, 2008, he was dispatched to Arno Allisona Road

because of a shooting. He arrived at the scene at 3:01 a.m. and ordered Davenport, Bennett,

and Holt out of the house. Deputy Terns went into the house and saw Arias covered in blood

and sitting in a recliner in the living room. Arias had a lot of blood on his face and inside his

mouth, and his breathing sounded like “gurgling.” He was unable to speak. Deputy Terns

checked and found that Arias had a pulse. While EMS and other officers were en route,

Deputy Terns confirmed that the house was empty. When Deputy Terns returned to the

living room, Arias had no pulse, was not breathing, and was unresponsive. EMS arrived and

put Arias in an ambulance. The medical examiner later said that Arias had died at the scene.

Deputy Terns said that later that morning, he questioned Davenport about the incident.

Davenport said that Larry shot Arias and that he knew someone who knew Larry better.

-9-

During the conversation, Davenport called Leverette or Leverette called Davenport, and

Deputy Terns asked Leverette questions about Larry. Leverette said that Larry was the

appellant, Timothy Sparrow. Leverette told Deputy Terns that the appellant lived on

Anthony Lane in Davis Estates in Shelbyville.

Dr. Amy R. McMaster, an expert in forensic pathology, performed the autopsy on

Arias’s body. During her examination, she detected four gunshot wounds. She said that a

bullet entered the left cheek, traveled from left to right, toward the back of the body, and

downward. The bullet was recovered from the right side of the neck. Dr. McMaster found

stippling on the left cheek, indicating that the gun was fired between a couple of inches to

a couple of feet from the cheek. She stated that the cheek wound was potentially fatal.

The next wound she detected was from a bullet that entered the right ear, exited the

top of the ear, and entered the skull behind the ear. The wound was also potentially fatal.

Dr. McMaster also discovered that a bullet had entered the right side of Arias’s back

and was recovered from the left side of the chest. The wound was potentially fatal. Finally,

another bullet had entered the right side of the back and was recovered from the right side

of the chest. However, because the bullet did not injure an internal organ, the wound was

not necessarily fatal. Dr. McMaster stated that the cause of death was multiple gunshot

wounds.

Dr. McMaster said that Arias’s blood tested positive for cocaine.

Shelbyville Police Officer Darrell Wayne Birdsong testified that in the early morning

hours of August 18, 2008, he was on patrol and received a “BOLO” for a white sedan that

was involved in a murder in Williamson County. Officer Wayne Boyd informed Officer

Birdsong that he saw the vehicle at Davis Estates and that the subject ran away from the

vehicle. After Officer Birdsong went to Davis Estates and saw the vehicle, he met with

Williamson County Deputy Brad Fann to escort him to the scene. When they arrived, Deputy

Fann used his police dog to search for the suspect. Officer Birdsong followed Deputy Fann

and the dog to Depot Street. As they were walking, Officer Birdsong found a black t-shirt

on the ground by the fence line. Officer Birdsong said that the fence was around an empty

lot with tall grass that was wet from morning dew. He stated that no one discharged a

weapon during the search.

On cross-examination, Officer Birdsong stated that he did not pick up the t-shirt but

that Officer Boyd did.

Deputy Bradley Fann testified that he was a K9 handler and that his police dog, a

-10-

German Shepherd named Cash, was certified by the United States Police K9 Association in

tracking humans. At approximately 5:00 a.m. on Monday, August 18, 2008, Deputy Fann

and Cash were called to Bedford County, and Officer Birdsong escorted them to the parking

lot of an apartment complex near Highway 46, Depot Street, and Anthony Street. Officer

Birdsong directed Deputy Fann to a vehicle in the parking lot. Deputy Fann noticed that the

vehicle was not in a parking space and that it appeared that someone had just stopped and

gotten out of the vehicle. Officer Birdsong showed Deputy Fann the footprints of the

suspect. Deputy Fann had Cash begin tracking the suspect. Cash led the officers down an

incline and along a chain link fence behind Beech’s Wrecker Service.

Around the fence line, in a grassy area that was damp with dew, Cash lay down in

front of a black t-shirt. Deputy Fann explained that Cash’s action indicated that the shirt was

associated with the suspect they were tracking. Deputy Fann did not touch the shirt, but he

noticed that it did not appear to have been in the weather for an extended period of time.

Deputy Fann signaled to Deputy Rogers that the shirt was possibly evidence, and Deputy

Fann and Cash continued tracking the suspect.

Deputy Fann said that after finding the shirt, Cash led the officers through a culvert.

The ground was “mushy,” and Deputy Fann could see footprints in the ground. As they

headed on East Depot Street, Cash lost the scent.

Williamson County Sheriff’s Lieutenant Tony Ray Phillips testified that on August

18, 2008, he and Captain Bennett went to Shelbyville because officers had spotted a white

Ford car similar to the suspect’s in the parking lot of the Davis Estates apartment complex.

After Cash alerted on the t-shirt, Deputy Boyd collected the shirt and gave it to Lieutenant

Phillips who put it in a brown paper bag. Lieutenant Phillips later handed the shirt to

Detective Benedict.

While at the apartments, Lieutenant Phillips and Detective Benedict spoke with the

appellant’s family, who indicated that they had not heard from the appellant for a day or two.

Lieutenant Phillips said that the officers started the white car and noticed that it was

very loud. The car seemed to have a muffler that made it louder.

The next day, Lieutenant Phillips received a call from Ray, who revealed that the

appellant was at her house in Tullahoma. Detective Benedict and Lieutenant Phillips went

to Ray’s house and apprehended the appellant. At the time of his arrest, the appellant was

wearing a yellow shirt. While at the house, Lieutenant Phillips collected the appellant’s

tennis shoes and gave them to Detective Benedict. The following day, Ray gave Lieutenant

Phillips a cellular telephone as evidence.

-11-

On cross-examination, Lieutenant Phillips stated that immediately after he put the t-

shirt in a paper bag, he stored the bag in an evidence box located in the back of Captain

Bennett’s truck. Lieutenant Phillips acknowledged that he did not know if Captain Bennett

had any guns or ammunition in the box at the time. When they returned to the Williamson

County Sheriff’s Office, Lieutenant Phillips turned over the bag to Detective Benedict.

On redirect examination, Lieutenant Phillips said that he did not fire his gun on the

day he collected the t-shirt.

Williamson County Sheriff’s Detective Grant Benedict testified that he arrived at

Holt’s house at approximately 3:40 a.m. on August 18, 2008. Other officers and an

ambulance were already on the scene.

Detective Benedict stated that in the kitchen, he found two spent shell casings and a

piece of Arias’s dentures. He found another spent shell casing in the hallway outside a

bedroom door. He stated that there was also blood spatter in the floor. However, Detective

Benedict was unable to find any shoe prints in the blood. Detective Benedict said that later

that day, Davenport called to say he had found another shell casing in his bedroom. Detective

Benedict went the house to retrieve the shell casing. Thereafter, Detective Benedict

submitted the items to the Tennessee Bureau of Investigation (TBI) for testing.

Detective Benedict said that police later received a call informing them that the

appellant was in Tullahoma. Lieutenant Phillips and Captain Bennett arrested the appellant.

During the arrest, they collected the appellant’s shoes, which Detective Benedict sent to the

TBI for testing. Detective Benedict said that he also collected a black t-shirt from Lieutenant

Phillips and sent it to the TBI for testing.

Detective Benedict said that when he saw the appellant following his arrest, the

appellant was wearing a yellow golf shirt and shorts. Detective Benedict interviewed the

appellant, who denied any knowledge of the victim or the murder. The appellant also stated

that he had never been to Holt’s house. The appellant said that he had been at Ray’s house

in Tullahoma since 5:00 p.m. on August 17, 2008.

Detective Benedict stated that on August 20, Davenport, Bennett, and Holt came to

the station to view a photograph lineup. The witnesses arrived together, but Detective

Benedict interviewed each of them separately. All three identified the appellant as the

perpetrator.

Detective Benedict said that the suspect’s car, a Crown Victoria, was a former police

car that was white with silver tailpipes. After listening to the car, Davenport and Bennett

-12-

said it sounded the same as the one the appellant drove on the night of the shooting.

Detective Benedict noted that the car had “after market tailpipes on it and it was very loud.”

He searched the vehicle and found two knives under the hood; one was a kitchen steak knife,

and the other was an open folding knife.

Detective Benedict stated that the distance between Holt’s house and Shelbyville was

approximately twenty-eight miles. The place where Ray picked up the appellant was 1.8

miles from the location where Deputy Fann and Cash lost track of the appellant’s scent.

On cross-examination, Detective Benedict said that the murder weapon was never

found and that no ammunition was found in the Crown Victoria.

Detective Benedict said that an hour or so after the shooting, he put out a “be on the

lookout” (BOLO) for the appellant. Shortly thereafter, he issued a press release and

photograph to the local news networks regarding the search for the appellant. Detective

Benedict stated that Davenport, Bennett, and Holt already knew that the appellant was the

suspect, specifically noting that the witnesses told the police the appellant was the shooter.

Detective Benedict did not caution the witnesses to not watch any news coverage about the

murder.

Agent Terry Arney, an expert firearms and ballistic examiner with the TBI crime

laboratory, testified that she examined the four fired bullets and four fired cartridge casings

collected from the scene. She concluded that the bullets and casings were all fired from the

same firearm.

On cross-examination, Agent Arney stated that no firearm was submitted to the

laboratory for testing. She said that the bullets and casings were from a .25 caliber

semiautomatic pistol. Agent Arney explained that a “stove pipe” malfunction occurred when

an empty, fired cartridge casing remained lodged in the slide mechanism on top of a

semiautomatic pistol instead of being successfully ejected from the pistol. She said that the

gun could also jam when picking up a live cartridge. She explained that both malfunctions

could potentially be fixed by manually pulling the slide back.

On redirect examination, she said that a stove pipe jam could also be cleared by

knocking the trapped cartridge out of the gun.

On recross-examination, Agent Arney stated that after being fired, gunshot residue

could get on the pistol and that the residue could be transferred by handling the gun.

Agent Bradley Everett, an expert serology DNA examiner with the TBI crime

-13-

laboratory, testified that he tested a black t-shirt. He did not detect any blood on the shirt.

Agent Everett swabbed the collar of the shirt for DNA and found a mixture of DNA. The

major contributor was consistent with the appellant’s DNA, but there was insufficient DNA

for a conclusive result regarding the minor contributor.

Agent Everett tested shoes collected from 901 West Grundy Street in Tullahoma. He

found no blood on the shoes, and there was insufficient DNA for testing. He also tested a

cellular telephone collected from Smyrna and found DNA consistent with the appellant’s.

On cross-examination, Agent Everett said that the shoes he tested were dirty, size 13,

black, high top, athletic shoes, and that the brand was Air Jordan.

Agent James Russell Davis, II, a gunshot residue expert with the TBI crime

laboratory, testified that he examined the front side of a size XXXL dark t-shirt for gunshot

residue. He found gunshot residue on both the right and left sides of the shirt. He

acknowledged that it was possible for gunshot residue to be on someone who was not the

shooter if the person stood next to the shooter when the gun discharged or if the person

picked up a weapon that had been recently fired.

On cross-examination, Agent Davis said that he found no gunshot residue on the

shoes. He said that he rarely found gunshot residue on shoes.

The State rested its case-in-chief.

Telisha Sparrow, the appellant’s sister, testified for the defense. She said that the

appellant was twenty-seven years old. She said that in August 2008, she was living in an

apartment on Anthony Lane in Shelbyville with the appellant and his girlfriend, Tammy

Williams. She stated that she had seen the appellant at the apartment the night before police

came to her apartment to ask about the appellant. She said the appellant was not driving a

car but that he was with Tommie Cannon, who was driving a car. The appellant and Cannon

were in and out of the apartment that day. Ms. Sparrow stated that she went to bed between

11:00 p.m. and 12:00 a.m. Around 2:00 or 2:30 a.m., the appellant knocked on her window,

and she let him in back door of the apartment. Thirty minutes to an hour later, the appellant

called her and said that he was going to park Ms. Sparrow’s car, a white Crown Victoria, at

Davis Estates because he did not want to go to jail for driving without a license. Ms.

Sparrow explained that Davis Estates “back[s] up to” the Anthony Lane apartments. She said

that about twenty minutes later, she got up to go get the white car but was interrupted by the

arrival of the police.

On cross-examination, Ms. Sparrow said that when the appellant called her around

-14-

2:30, 3:00, or 3:30 a.m., he said that “the police [were] after him and he was parking the car

at Davis Estates because he didn’t have a driver’s license.” She stated that the police never

asked for the appellant; they only asked for the location of her car.

Ms. Sparrow said that the appellant called her later that morning. She told him that

police were looking for him, saying he murdered someone. The appellant denied hurting

anyone and did not reveal where he was. Ms. Sparrow did not tell police that she had not

seen the appellant that night; she told police that she had not talked to the appellant.

Tommie Cannon testified that he lived in Shelbyville and had been friends with the

appellant since they were five or six years old. Cannon said that he remembered seeing a

report in the newspaper about the appellant being arrested. Cannon said that he and the

appellant were together “the night before they said it was supposed to happen or something

like that. . . . Might have been the same night.” Cannon said that he and the appellant met

at the appellant’s apartment. After ten or fifteen minutes, they left together in Cannon’s car,

a black 1986 Cutlass. Cannon recalled that a white Crown Victoria was at the appellant’s

apartment; he thought the car belonged to the appellant’s girlfriend. Cannon said that he and

the appellant “rolled around” for a couple of hours and that they returned to the appellant’s

apartment complex around 1:00 a.m. They walked to the nearby apartment of Lakisa Adams

where they watched television and talked for thirty or forty-five minutes. Thereafter, they

returned to the appellant’s apartment. Cannon stayed for about an hour then left around 2:30

a.m.

On cross-examination, Cannon said that when they returned to the appellant’s

apartment after visiting with Adams, they sat outside and talked. When Cannon left, he saw

the appellant going in the front door of the apartment.

Lakisa Adams testified that around 12:00 or 1:00 a.m. the night before the appellant

was arrested, the appellant and Cannon came to her apartment. They stayed for over an hour,

watching television and talking.

Berry Odem testified that he lived in Spring Hill and that he knew the appellant,

Davenport, Arias, and Leverette. Odem acknowledged that he had previously been convicted

of three misdemeanor thefts and of misdemeanor criminal impersonation. Odem stated that

he and Arias went to Holt’s house around 4:00 p.m. looking for crack cocaine. Odem said

that Arias seemed nervous. Odem left Holt’s house at approximately 5:30 or 6:00 p.m. Odem

stated that Davenport and Leverette had sold crack cocaine at Holt’s house.

David Brundage, an expert in firearms, tool marks, gunshot residue, latent

fingerprints, and tire mark identification, testified that fingerprints can be lifted from spent

-15-

cartridge casings. He stated that after a gun is fired, gunshot residue may be deposited on

the hands of the shooter. Additionally, gunshot residue could be transferred to a weapon

holster or fabric that comes into contact with the weapon after it is fired. He cautioned that

latex gloves should be worn when evidence is collected to prevent gunshot residue from

being transferred from an officer’s hands to the item; otherwise, there is the possibility of

cross-contamination.

On cross-examination, Brundage acknowledged that gunshot residue, particularly

primer residue, is delicate and easily lost. Therefore, the lack of gunshot residue was not

conclusive proof that someone did not fire a gun.

The jury convicted the appellant of two counts of the second degree murder of Arias,

one count of the attempted first degree murder of Davenport, and one count of the attempted

aggravated robbery of Davenport. The trial court merged the second degree murder

convictions and sentenced the appellant to consecutive sentences of twenty years for the

second degree murder conviction and the attempted first degree murder conviction. The trial

court imposed a sentence of eight years for the attempted aggravated robbery conviction and

ordered the sentence to be served concurrently with the twenty-year sentences for a total

effective sentence of forty years.

On appeal, the appellant raises the following issues for our review: (1) whether the

trial court erred by failing to suppress the identification of the appellant as the perpetrator;

(2) whether the evidence was sufficient to sustain his convictions; (3) whether the trial court

erred by not upholding the appellant’s Batson challenge; (4) whether the trial court erred by

failing to strike Holt’s written statement; (5) whether the trial court erred by admitting a

photograph taken of Arias while he was alive; (6) whether the trial court erred by admitting

the black t-shirt that purportedly belonged to the appellant; (7) whether the trial court erred

in its communications with jurors; (8) whether the trial court erred in sentencing; and (9)

whether the principles of double jeopardy were violated.

II. Analysis

A. Suppression of Identification

The appellant contends that the photograph lineup, which was viewed by Davenport,

Bennett, and Holt on August 20, 2008, was unduly suggestive and violated his due process

rights. Specifically, the appellant complains that a press release issued by the sheriff’s

department shortly after the shooting “unnecessarily tainted the identification procedure” and

that the “identification was conducted in an impermissibly suggestive manner such that it

created a substantial likelihood of irreparable misidentification.” Therefore, the appellant

-16-

argues that the trial court should have suppressed the witnesses’ identification of the

appellant. In response, the State argues that none of the witnesses reported seeing the

appellant’s photograph in a news report prior to the identification and that, regardless, the

photograph in the press release was not the photograph used in the lineup. Accordingly, the

State contends that the identification process was not suggestive and that the trial court

correctly denied the motion to suppress.

In reviewing a trial court’s determinations regarding a suppression hearing,

“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of

fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact

in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.

Nevertheless, appellate courts will review the trial court’s application of law to the facts

purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the

State, as the prevailing party, is “entitled to the strongest legitimate view of the evidence

adduced at the suppression hearing as well as all reasonable and legitimate inferences that

may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Moreover, we note that “in

evaluating the correctness of a trial court’s ruling on a pretrial motion to suppress, appellate

courts may consider the proof adduced both at the suppression hearing and at trial.” State

v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

At the suppression hearing, Detective Benedict testified that after the appellant was

developed as a suspect, he prepared a press release for all local news outlets, which stated

that the police were looking for the appellant in connection with a murder. Detective

Benedict issued another press release after the appellant was apprehended. Both press

releases included the appellant’s driver’s license photograph.

After the appellant was arrested, Detective Benedict compiled a photograph lineup

using booking photographs. Detective Benedict noted that the appellant was wearing a

yellow shirt in his booking photograph and was wearing a red shirt in his driver’s license

photograph. Holt, Davenport, and Bennett came to the police station, and Detective Benedict

brought them into the interview room one at a time to view the photograph lineup. Detective

Benedict did not tell any of the witnesses that the suspect was among those depicted.

Detective Benedict did not ask the witnesses if they had seen anything on the television news

about the case.

Lieutenant Tony Phillips testified that Holt, Davenport, and Bennett identified the

appellant as the perpetrator. Lieutenant Phillips did not advise the witnesses to avoid

newscasts relating to the case. Lieutenant Phillips said that he was present when the

photograph lineup was shown to the witnesses. He did not ask the witnesses if they had seen

-17-

any news coverage about the case, the lighting in the house, or how long they viewed the

assailant. He did ask them if they knew the appellant, but he could not recall their responses.

Lieutenant Phillips said that the witnesses described the appellant as “a big, tall, heavy set

black guy.” They also described his hair and clothing, but Lieutenant Phillips could not

remember the exact description.

Holt testified that while she was at work, she saw a news report that police were

“looking for a – Mr. Sparrow from Shelbyville in regard to a murder in College Grove,

Tennessee.” Holt did not watch the entire report, explaining that “it was just something [she]

didn’t want to think about really.” She briefly discussed with Davenport that police were

looking for the appellant in Shelbyville. Holt said that she had previously seen the appellant

two or three times. On the night of the shooting, she saw that the perpetrator was a big, black

male, but the events happened too quickly for her to see the identity of the man. However,

Davenport told her that the appellant was the perpetrator. Holt stated that she looked at the

photograph lineup after seeing the news report, but she maintained, “I knew what I was

looking for. I mean, I knew I had seen him before anyway, you know. . . . Because I didn’t

think the TV looked like him at all. . . . [H]e looked fatter.”

Bennett testified that later on the morning of the shooting, while police were still at

the scene, she saw a report on the television news regarding a murder, and during the report,

a photograph of Holt’s house was shown. Bennett said that she did not see another news

report about the crime. Bennett said that she had previously seen the appellant at Holt’s

house. When she looked at the photograph lineup two or three days after the shooting, she

identified the appellant as the perpetrator.

Davenport testified that he and Bennett saw the appellant during the shooting and that

they knew he was the perpetrator. He stated that he, Bennett, and Holt discussed the

appellant’s being the perpetrator before they identified his photograph from the lineup.

The court found that any potential exposure to news reports identifying the appellant

as the perpetrator did not “ipso facto invalidate[] the photo array that was used in this

instance.” Therefore, the court found that the appellant’s constitutional rights were not

infringed and denied the appellant’s motion to suppress the identification. On appeal, the

appellant challenges this ruling.

In Neil v. Biggers, 409 U.S. 188, 198-99 (1972), the United States Supreme Court

established a two-part analysis to assess the validity of a pretrial identification. First, the trial

court must determine whether the identification procedure was unduly suggestive. Biggers,

409 U.S. at 198. “To be admissible as evidence, an identification must not have been

conducted in such an impermissibly suggestive manner as to create a substantial likelihood

-18-

of irreparable misidentification.” State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998) (citing

Simmons v. United States, 390 U.S. 377 (1968)). If the trial court determines that the

identification was unduly suggestive, it must then consider whether, under the totality of the

circumstances, the identification procedure was nonetheless reliable. Biggers, 409 U.S. at

198-99.

The proof at the suppression hearing and at trial revealed that only Davenport and

Bennett clearly saw the shooter that evening. They stated that they knew him as Larry and

had seen him at Holt’s house previously. Although Holt did not clearly see the shooter,

Davenport and Bennett told her that the appellant was the perpetrator. Davenport said that

he never saw any news coverage about the shooting. Bennett said that she saw a television

news report and that the only photograph in the report was of the house. Holt said that she

saw the appellant’s photograph in a television news report but that she did not think the

photograph closely resembled him. Therefore, there was no indication that the primary

identification witnesses, Davenport and Bennett, were influenced by any potential news

coverage containing the appellant’s photograph.

Moreover, as the trial court found, even if the witnesses had seen the photograph, it

did not necessarily taint the identification. Generally, a pretrial identification procedure,

even if suggestive, will not negate the identification of the appellant when it is otherwise

reliable. Biggers, 409 U.S. at 198-99; Cribbs, 967 S.W.2d at 794. In Biggers, 409 U.S. at

199-200, the Supreme Court identified five factors for assessing the reliability of an

identification: (1) the opportunity of the witness to view the perpetrator at the time of the

offense; (2) the witness’ degree of attention; (3) the accuracy of the witness’s prior

description of the perpetrator; (4) the level of certainty demonstrated by the witness at the

confrontation; and (5) the time between the crime and the identification. See also State v.

Philpott, 882 S.W.2d 394, 400 (Tenn. Crim. App. 1994). If, using the Biggers standard, a

pretrial confrontation was so impermissibly suggestive that it violated an accused’s right to

due process, both the out-of-court and in-court identifications are excluded. State v.

Shanklin, 608 S.W.2d 596, 598 (Tenn. Crim. App. 1980).

Davenport and Bennett both testified that they clearly saw the appellant, whom they

knew as Larry, on the night of the shooting. Two days after the shooting, they positively

identified the appellant as the perpetrator from a photograph lineup. The photograph was not

the same as the photograph in the press release. Regardless, Davenport and Bennett knew

the appellant as a prior acquaintance. Accordingly, we conclude that the trial court did not

err in denying the appellant’s motion to suppress the identification of the appellant as the

perpetrator. See State v. Cedric Terry, No. W1999-01568-CCA-R3-CD, 2001 WL 204185,

at *4 (Tenn. Crim. App. at Jackson, Feb. 23, 2001); see also State v. Marcus Fitzgerald, No.

W2000-02669-CCA-R3-CD, 2002 WL 1558500, at *8 (Tenn. Crim. App. at Jackson, Jan.

-19-

15, 2002).

B. Sufficiency of the Evidence

Next, the appellant challenges the sufficiency of the evidence sustaining his

convictions of the second degree murder of Arias, the attempted first degree murder of

Davenport, and the aggravated robbery of Davenport. On appeal, a jury conviction removes

the presumption of the appellant’s innocence and replaces it with one of guilt, so that the

appellant carries the burden of demonstrating to this court why the evidence will not support

the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellant

must establish that no reasonable trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Tenn. R. App. P. 13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. See State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the

credibility of witnesses and the weight and value to be given the evidence, as well as all

factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate

courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

Second degree murder is defined as the knowing killing of a victim. See Tenn. Code

Ann. § 39-13-210(a)(1). “A person acts knowingly with respect to a result of the person’s

conduct when the person is aware that the conduct is reasonably certain to cause the result.”

Tenn. Code Ann. § 39-11-302(b); see also State v. Ducker, 27 S.W.3d 889, 896 (Tenn.

2000).

First degree premeditated murder is the “premeditated and intentional killing of

another.” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation “is an act done after the

exercise of reflection and judgment” and “means that the intent to kill must have been formed

prior to the act itself. [However,] [i]t is not necessary that the purpose to kill pre-exist in the

mind of the accused for any definite period of time.” Id. at (d). Although there is no

concrete test for determining the existence of premeditation, Tennessee courts have relied

upon the following factors to support a jury’s inference of premeditation: (1) the appellant’s

prior relationship to the victim which might suggest a motive for the killing; (2) the

appellant’s declarations of intent to kill; (3) the appellant’s planning activities before the

killing; (4) the manner of the killing, including the appellant’s using a deadly weapon upon

an unarmed victim, killing the victim while the victim is retreating or attempting escape, or

killing the victim in a particularly cruel manner; (5) the appellant’s demeanor before and after

the killing, including a calm demeanor immediately after the killing. See State v. Pike, 978

-20-

S.W.2d 904, 914 (Tenn. 1998); State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997).

A criminal attempt occurs when a person acting with the kind of culpability otherwise

required for the offense:

(1) Intentionally engages in action or causes a result that would

constitute an offense if the circumstances surrounding the

conduct were as the person believes them to be;

(2) Acts 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; or

(3) Acts with intent to complete a course of action or cause a

result that would constitute the offense, under the circumstances

surrounding the conduct as the person believes them to be, and

the conduct constitutes a substantial step toward the commission

of the offense.

Tenn. Code Ann. § 39-12-101(a)(1)-(3).

Aggravated robbery is defined as robbery accomplished with a deadly weapon or by

display of any article used or fashioned to lead the victim to reasonably believe it to be a

deadly weapon. See Tenn. Code Ann. § 39-13-402(a)(1). Robbery is defined as “the

intentional or knowing theft of property from the person of another by violence or putting the

person in fear.” Tenn. Code Ann. § 39-13-401(a). A theft of property occurs when someone,

with the intent to deprive the owner of property, knowingly obtains or exercises control over

the property without the owner’s effective consent. Tenn. Code Ann. § 39-14-103.

The proof at trial revealed that the appellant tried to sell Davenport a gun and a CD

player before shooting Arias. Davenport and Bennett testified that after the shooting, the

appellant burst into Davenport’s bedroom, went to Davenport’s side of the bed, and

demanded, “[G]ive me everything you’ve got, Bubba.” Davenport responded that he did not

have anything, the appellant pointed the gun at Davenport, and the gun “click[ed].”

Davenport saw that the gun was jammed, and he feared that the appellant would kill everyone

in the house. When speaking to police, Davenport, Bennett, and Holt positively identified

the appellant as the perpetrator. During a search, police found a recently discarded black t-

shirt with the appellant’s DNA on the collar and gunshot residue on the front.

The appellant asserts that Davenport, Bennett, and Holt were not reliable witnesses

-21-

because they were admitted crack cocaine users. At trial, Holt testified that she did not use

cocaine prior to the shooting, and Davenport and Bennett testified that the crack cocaine

they had used was no longer affecting them at the time of the shooting. The appellant

complains that the officers who handled the black t-shirt could have contaminated it with

gunshot residue from their hands. However, the officers who handled the t-shirt testified that

they had not fired their weapons near the time the shirt was discovered and that any chance

of contamination was minimal. The appellant contends that the lack of blood on the t-shirt

or his shoes suggests that the appellant was not the shooter. Neverthlesss, the jury chose to

believe the testimony of Davenport and Bennett that the appellant was the shooter. The jury,

not this court, determines the credibility of the witnesses and the weight and value to be

given their testimony. See State v. Millsaps, 30 S.W.3d 364, 368 (Tenn. Crim. App. 2000)

(stating that “the weight and credibility of the witnesses’ testimony are matters entrusted

exclusively to the jury as the trier[ ] of fact”). In the instant case, the jury clearly resolved

the issue of credibility in the State’s favor. We may not now reconsider the jury’s credibility

assessment. See State v. Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000). We conclude that

a reasonable jury could have found the appellant guilty of the second degree murder of Arias

and of the attempted first degree murder and attempted aggravated robbery of Davenport.

C. Batson Challenge

The appellant argues that the trial court erred by allowing the State to dismiss Juror

Garrett, a black female. The appellant contends that the dismissal was not based upon a

sufficiently gender-neutral or race-neutral reason.

In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that

the prosecutor’s use of peremptory challenges to intentionally exclude jurors of the

defendant’s race violated his right to equal protection under the Fourteenth Amendment to

the United States Constitution. In Powers v. Ohio, 499 U.S. 400 (1991), the Court eliminated

the requirement that the defendant and any wrongfully excluded juror(s) be of the same race.

See State v. Ellison, 841 S.W.2d 824, 826 (Tenn. 1992). Thus, under Powers, a defendant

can establish a prima facie case of purposeful discrimination by showing that the prosecution

excluded members of a cognizable racial group from the venire. Id. To invoke Batson

protections, a defendant must establish a prima facie case that a juror is being challenged on

the basis of race or gender. See Batson, 476 U.S. at 94. Once the defendant has presented

a prima facie case of purposeful discrimination, the trial court shall require the State to give

a race-neutral reason for the challenge. Id.

During voir dire, the State used a peremptory challenge to excuse Juror Garrett. The

appellant raised a Batson challenge, arguing that the appellant was black and so was Juror

Garrett. The court asked the State for the reason for dismissing Juror Garrett. The State

-22-

responded:

It’s more with her responses to when people are talking.

But there were three different things: One was when I was

talking to Mr. Wicks about the higher standards she was always

nodding to his responses like she was agreeing to his responses

about holding me to a higher standard than reasonable doubt

because of the seriousness of this case.[ 1 ]

The second reason was that when they were getting into

who watches CSI and stuff like that, she watches CSI. And

there is going to be a lot of TBI things. She was one of the ones

that watches CSI. Which as you know in my experience,

particularly with jury trials, that standard is way above any

actual reality having to do with TBI or anything that they do,

that show. I mean, they do investigations, they can find

fingerprints on things that nobody else in the world can find.

There was a third thing and I didn’t write it down, but it

was something that [defense counsel] was saying that she was

agreeing with, nodding her head. Had to do with one of the bias

of – it was when she rolls her eye when he was talking about his

client not having to testify, and it was something in that area. I

didn’t write that one down though.

But, I mean, it was – after a while I was getting a horrible

feeling about her that she was going to hold me to a higher

standard and just bringing stuff up of scientific testimony that I

just don’t think – that’s one lady right next to her, that was the

other CSI one. And I just think that that brings in a standard

way more than I have to prove.

The State further noted that the race composition of the jury pool did not change because

other African-American women remained in the jury pool.

Our supreme court has emphasized that under Batson, a trial court “‘must carefully

articulate specific reasons for each finding on the record, i.e., whether a prima facie case has

1

Only the portion of voir dire concerning the dismissal of Juror Garrett was transcribed for the record

on appeal. The transcript does not include the questions asked to or the responses of Juror Wicks.

-23-

been established; whether a neutral explanation has been given; and whether the totality of

the circumstances support a finding of purposeful discrimination.’” State v. Hugueley, 185

S.W.3d 356, 369 (Tenn. 2006) (quoting Woodson v. Porter Brown Limestone Co., 916

S.W.2d 896, 906 (Tenn. 1996)). In the present case, the trial court did not expressly find that

the appellant had made out a prima facie case of racial discrimination, yet it required the

State to provide a reason for striking Juror Garrett. Therefore, we will proceed on the

assumption that the trial court found that a prima facie case was established. See, e.g.,

Hugueley, 185 S.W.3d at 371; Woodson, 916 S.W.2d at 905.

The State explained that it struck Juror Garrett based upon her body language, her

nodding in agreement with the responses of others about holding the State to a standard

higher than beyond a reasonable doubt, and her “avid” watching of the television show CSI.

Our supreme court has stated, “If a race-neutral explanation is provided, the trial court must

then determine, from all of the circumstances, whether the defendant has established

purposeful discrimination.” Hugueley, 185 S.W.3d at 368 (citing Batson, 476 U.S. at 98).

The “trial court may not simply accept a proffered race-neutral reason at face value but must

examine the prosecutor’s challenges in context to ensure that the reason is not merely

pretextual.” Id. (citing Miller-El v. Dretke, 545 U.S. 231 (2005)). In this case, the court

stated that it did not see Juror Garret nodding but noted that it did not doubt the State’s

observations. Accordingly, the court found that the State articulated a specific, non-race

related reason for excusing Juror Garrett. Further, the court said that Juror Garrett, an

African-American woman, was replaced by Juror Johns, who was also an African-American

woman. Therefore, the court overruled the appellant’s Batson challenge. We conclude that

the totality of the circumstances do not support a finding of purposeful discrimination and

that the trial court properly overruled the appellant’s Batson challenge.

D. Holt’s Statment

The appellant complains regarding the admission of Holt’s prior statement to police,

asserting that it was “self-serving hearsay.” In response, the State argues that Holt’s

statement was not hearsay because it was used only to refresh her recollection and was never

admitted into evidence.

At trial, Holt said that she did not recall seeing a gun on the night of the shooting and

that she could not recall the race of the perpetrator. The State attempted to show Holt a

written statement she gave police. The appellant objected, contending that the statement was

“self-serving hearsay.” The State clarified that it wanted to use the statement to refresh

Holt’s recollection. The court allowed the State to use the statement for that purpose. At that

point, the State asked Holt if she could recall what she said in her statement about seeing a

gun or the race of the perpetrator. She said that she could not. The State asked if seeing the

-24-

statement would help refresh her recollection. She said that it might because the events were

“more vivid” at the time she gave the statement. The State passed Holt the statement, and

the court admonished her to read the statement to herself. Nevertheless, Holt read aloud, “I

was sleeping and heard what I . . . .” The court stopped her, again cautioning her to read the

statement to herself. Holt then read aloud, “I jumped up and there was a tall black guy with

a gun . . . .”

The appellant objected, complaining that Holt had read part of the statement aloud.

The court overruled the objection. The State then asked Holt if the statement refreshed her

recollection, and Holt stated that it did. The State asked for the statement to be introduced

for identification purposes only. The court stated, “I don’t do the identification thing. I’m

going to allow it to be made Exhibit Number 18. And what will happen is it will not be

allowed to be shown to the jury. It will be for other purposes only.” Thereafter, Holt

testified that after reading her statement, she recalled that the perpetrator was black but that

she still did not recall whether he had a gun.

Generally, hearsay, which is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,”

is not admissible unless it falls under an exception to the rule against hearsay. Tenn. R. Evid.

801(c), Tenn. R. Evid. 802. However, in the instant case, the statement itself was not

“offered in evidence.” Instead, the State used the statement to attempt to refresh Holt’s

recollection. See Tenn. R. Evid. 612 (stating that while testifying, a witness may use a

writing to refresh his or her memory for the purpose of testifying). The use of a statement

to refresh recollection under Tennessee Rule of Evidence 612 does not violate the rule

against hearsay. See State v. Mark Walker, No. M2001-00341-CCA-R3-CD, 2002 WL

1558515, at *11 (Tenn. Crim. App. at Nashville, July 16, 2002). Further, Tennessee Rule

of Evidence 803(5) provides that the following items are not excluded by the rule against

hearsay:

A memorandum or record concerning a matter about

which a witness once had knowledge but now has insufficient

recollection to enable the witness to testify fully and accurately,

shown to have been made or adopted by the witness when the

matter was fresh in the witness’s memory and to reflect that

knowledge correctly. If admitted, the memorandum or record

may be read into evidence but may not itself be received as an

exhibit unless offered by an adverse party.

In order to justify the use of a writing to refresh a testifying witness’s recollection

pursuant to Rule 612, an attorney must demonstrate that it is necessary to refresh the

-25-

witness’s memory and that the writing will provide the necessary refreshing. See State v.

Mathis, 969 S.W.2d 418, 421 (Tenn. Crim. App. 1997). After looking at the statement, Holt

was able to independently testify of her own recollection about the race of the perpetrator but

not about whether he had a gun. See State v. Carpenter, 773 S.W.2d 1, 10 (Tenn. Crim. App.

1989). Therefore, the trial court did not err in allowing the State to use the statement to

refresh Holt’s recollection.

We note that although Holt was cautioned to read the statement to herself, she read

a brief portion of the statement aloud. The appellant argues that the jury could have placed

“more emphasis on her recorded, uncross-examined hearsay recollection than her testimony

at trial.” However, after reading the statement, Holt confirmed that she recalled the

perpetrator was black but could not recall him holding a gun. We conclude that any error

committed by reading the brief portion of the statement aloud was harmless. See Tenn. R.

App. P. 36(b); State v. Dotson, 254 S.W.3d 378, 388 (Tenn. 2008).

E. Life Photograph

On appeal, the appellant appears to argue that the photograph of the victim while alive

was irrelevant to any issue at trial, specifically contending that he “does not dispute the cause

of the victim’s death.” He also appears to complain that if the photograph were relevant, it

should have been excluded because its probative value was substantially outweighed by the

danger of unfair prejudice. The State contends that even if the photograph were irrelevant,

the admission of the photograph was harmless.2

During Davenport’s direct examination, the State attempted to introduce a photograph

of Arias while he was alive. The appellant objected, arguing that the photograph was not

relevant. The State responded that the photograph identified Arias. The court overruled the

objection, stating that the photograph could be admitted to identify the victim. The appellant

then raised a second objection, contending that he had not previously been made aware that

the State would attempt to admit a photograph taken while the victim was alive. The

appellant said that case law supported his objection. The parties and the court agreed to

resume the discussion the next morning to give defense counsel an opportunity to research

the issue.

2

The State maintains that on appeal, the appellant argues a different theory of exclusion than that

forwarded at trial. At trial, the appellant complained that the photograph was not relevant. On appeal, the

appellant extensively quotes from State v. Prince Adams, No. W2009-01492-CCA-R3-CD, 2011 WL

4375332, at *6 (Tenn. Crim. App. at Jackson, Sept. 21, 2011), perm. to appeal granted, (Tenn. Feb. 15,

2012). He makes little further argument other than the quotation from Adams. However, Adams concerned

the relevance of a photograph of a murder victim while alive; therefore, we have generously construed his

quotation as a furtherance of his complaint regarding relevancy.

-26-

The following day, Holt testified that she had known Arias for approximately two

years. Holt identified the photograph of Arias while he was alive. The State asked for the

photograph to be made an exhibit. The court said, “As per the issues noted previously and

reserved, the Court accepts this as the next . . . exhibit.”

The decision regarding the admissibility of photographs lies within the sound

discretion of the trial court, and that ruling will not be overturned on appeal absent a showing

of an abuse of that discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). In order

to be admitted as evidence, a photograph must be relevant to an issue at trial. Tenn. R. Evid.

402; State v. Braden, 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993). Evidence is relevant

if it has “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. However, 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.” Tenn. R. Evid. 403. “‘If relevant, the photograph is not

rendered inadmissible because the subject portrayed could be described by words; . . . the

photograph would be cumulative; . . . or [the photograph] is gruesome or for some other

reason is likely to inflame the jury.’” Collins v. State, 506 S.W.2d 179, 185 (Tenn. Crim.

App. 1973) (quoting 3 Wharton’s Criminal Evidence § 637 (13th ed.)).

We note that our supreme court has previously approved of the admission during trial

of a photograph taken while the victim was alive to establish the corpus delecti of the crime

and to prove that the “person killed was the same person named in the indictment.” State v.

Nesbit, 978 S.W.2d 872, 902 (Tenn. 1998) (appendix). However, the relevancy of such

photographs can be tenuous, or the evidence can be cumulative to other photographs of the

victim taken at the crime scene or during autopsy. See State v. Young, 196 S.W.3d 85, 106

(Tenn. 2006); State v. Dicks, 615 S.W.2d 126, 128 (Tenn. 1981). In the instant case, there

was no issue about the victim’s identity or about his being alive prior to the crime. As such,

there was little, if any, relevance to the photograph. Therefore, we conclude that the trial

court erred by admitting the photograph. Regardless, we note that the error was harmless.

See, e.g., Young, 196 S.W.3d at 106-07. Therefore, the appellant is not entitled to any relief

on this issue.

F. Admissibility of the Black T-Shirt

The appellant challenges the admissibility of the black t-shirt, asserting that the State

failed to sufficiently establish the chain of custody for the shirt and that there was insufficient

proof as to the shirt’s relevance. However, as the State contends, the appellant failed to

contemporaneously object to the admission of the t-shirt. In fact, before the t-shirt was

admitted into evidence, the trial court specifically asked defense counsel if there was an

-27-

objection. Defense counsel responded, “No.” Accordingly, the appellant has waived this

issue. Tenn. R. App. P. 36(a) (providing that “[n]othing in this rule shall be construed as

requiring relief be granted to a party responsible for an error or who failed to take whatever

action was reasonably available to prevent or nullify the harmful effect of an error”).

G. Court Communication with Jurors

On appeal, the appellant complains about two communications between the trial court

and the jury. First, the appellant challenges the trial court’s responding to a jury question that

was submitted during deliberations by giving the answer to the jury foreman and directing

the foreman to take the answer to the rest of the jurors. Second, he challenges the trial court

greeting the jury in the morning outside the presence of the parties.

1. Supplemental Instruction

During deliberations, the jury sent the trial court the following question: “should the

lesser included second-degree murder be read as second-degree felony murder?” The trial

court said that it would inform the jury that the original charge was correct and would not

give further instruction. The court said that it would not bring the jury into the courtroom

to answer the question. Defense counsel said that he thought the jury should be brought into

the courtroom because it would be inappropriate for the judge to speak with the jury in the

deliberation room without the parties being present. The court responded that it would have

the jury foreperson come into the courtroom and have him relay the answer to the rest of the

jury.

The appellant does not contend that the trial court’s answer to the jury question was

incorrect. However, he complains about the trial court’s method of answering the question.

The appellant contends that the entire jury should have been brought into the courtroom for

the question to be answered. The State contends that the appellant has waived this issue by

failing to contemporaneously object. See Tenn. R. App. P. 36(a). Our review of the record

reveals that although the appellant expressed displeasure at the idea of the trial court going

into the jury room to answer the question, he raised no objection when the trial court brought

the jury foreman into the courtroom to receive the answer to the question.

We note that a trial judge has the authority to give supplemental instructions in

response to jury questions. State v. Forbes, 918 S.W.2d 431, 451 (Tenn. Crim. App. 1995).

This court has previously stated that when giving a supplemental instruction,

the appropriate course of action for the trial court would have

been to bring the jurors back into open court, read the

-28-

supplemental instruction . . . along with a supplemental

instruction emphasizing that the jury should not place undue

emphasis on the supplemental instructions, and then allow the

jury to resume its deliberations.

State v. Bowers, 77 S.W.3d 776, 791 (Tenn. Crim. App. 2001); see also Spencer v. A-1

Crane Serv., 880 S.W.2d 938, 941 (Tenn. 1994); State v. Mays, 677 S.W.2d 476, 479 (Tenn.

Crim. App. 1984). Regardless, we conclude that nothing in the record indicates that the trial

court’s error in its method of delivering an answer to the jury’s question more probably than

not affected the judgment in light of the entire record. See Bowers, 77 S.W.3d at 791; Tenn.

R. App. P. 36(b).

2. Ex Parte Communication

Next, the appellant challenges the trial court’s speaking with the jury out of the

presence of counsel and the appellant. However, the appellant acknowledges that he “does

not have any way to determine what was communicated to the jury.”

The facts regarding this issue are gleaned solely from the transcript of the hearing on

the motion for new trial. During the hearing, defense counsel said that “there was some

indication that the Court had talked to the jury out of the presence in – I think that what the

Court was doing was talking, saying hello, . . . goodbye, . . . that sort of thing, but we allege

that any communication outside the presence of the jury is potential error.” In response, the

trial court stated:

I’m sure I did speak to the jury. Whenever juries come back on

the next morning of a prolonged trial I take the opportunity to go

back to the jury room, welcome them back, . . . make sure that

they’re all here, not that I don’t trust our law clerks to

appropriately count, but I make sure that they’re all here. Make

sure that there are no concerns, family emergencies or

otherwise. The Court considers that jury an administrative

function of the Court and does not believe it to be inappropriate.

The record does not specifically reflect what, if anything, the trial court said to the

jury. Even the appellant alleges that, at most, the court exchanged pleasantries with the jury.

Nevertheless, this court has previously stated that “[g]iven the importance of judicial

impartiality and fairness in appearance as well as in fact, it is generally considered improper

for the trial judge to communicate with jurors off the record and outside the presence of

-29-

counsel.” State v. Tune, 872 S.W.2d 922, 928 (Tenn. Crim. App. 1993). Therefore, “[w]hen

such ex parte communications relate to an aspect of the trial, the trial judge should usually

disclose the communication to counsel for all parties.” Id. Regardless, such instances are

subject to harmless error analysis. Id.

Generally, ex parte communications by the trial court and the jury are subject to

reversal “‘where a timely complaining party shows specific prejudice, or where, owing to the

nature of the ex parte communication, the reviewing court is unable to determine whether the

action was actually harmless.’” Id. (citing Guy v. Vieth, 754 S.W.2d 601, 605 (Tenn. 1988)).

To this end, our supreme court has stated:

“We recognize that there may be times when

administrative communications between judge and jury may

properly transpire in the absence of counsel, so long as these

communications do not contain supplemental instructions

relating to the case and are clearly incapable of prejudicing the

rights of the parties. In this general category would be

communications relating to the jurors’ welfare, comforts and

physical needs. Such communications must not directly or

indirectly refer to the specifics of the case, must be collateral to

the issues under consideration, and must not be capable of

affecting the deliberative process in any manner.”

Guy, 754 S.W.2d at 605 (quoting Truscott v. Chaplin, 403 F.2d 644, 645 (3d Cir. 1968)).

From our review of the record, we can discern no prejudice to the appellant by the trial

court’s greeting the jury. Therefore, we conclude that the appellant is not entitled to relief

on this issue.

H. Sentencing

The appellant raises several issues regarding sentencing. Specifically, he complains

that the State gave insufficient notice of enhancement; therefore, the court erred by finding

that he was a multiple Range II offender in regard to his attempted aggravated robbery

conviction. He also contends that the length of his sentences is excessive and that the trial

court erred by the imposing consecutive sentencing.

Previously, appellate review of the length, range, or manner of service of a sentence

was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).

However, our supreme court recently announced that “sentences imposed by the trial court

within the appropriate statutory range are to be reviewed under an abuse of discretion

-30-

standard with a ‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn.

2012). Our supreme court has further explicitly stated that “the abuse of discretion standard,

accompanied by a presumption of reasonableness, applies to within-range sentences that

reflect a decision based upon the purposes and principles of sentencing, including the

questions related to probation or any other alternative sentence.” State v. Caudle, 388

S.W.3d 273, 278-79 (Tenn. 2012). In conducting its review, this court considers the

following factors: (1) the evidence, if any, received at the trial and the sentencing hearing;

(2) the presentence report; (3) the principles of sentencing and arguments as to sentencing

alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence

and information offered by the parties on enhancement and mitigating factors; (6) any

statistical information provided by the administrative office of the courts as to sentencing

practices for similar offenses in Tennessee; (7) any statement by the appellant in his own

behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§

40-35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98. The burden is on the appellant

to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,

Sentencing Comm’n Cmts.

1. Notice

The appellant argues that the trial court erred by finding that the appellant was a

multiple, Range II offender for his attempted aggravated robbery conviction because the

State’s notice was deficient. Prior to trial, the State filed a “Notice of Intent to Use Criminal

History and Evidence of Prior Bad Acts.” Therein, the State maintained that it was listing

the appellant’s criminal history to provide notice for “enhancement of punishment,

impeachment, cross-examination, evidence of prior bad acts and any and all other purposes

allowed under current law.” The notice consisted of approximately seven pages of the

appellant’s prior criminal history. The notice provided the name of the offense of which the

appellant was convicted, the court in which the appellant was convicted, and the date on

which the appellant was convicted. However, the notice did not specify the range of

punishment sought or which convictions were the felonies to be used to support the range

enhancement.

On October 12, 2011, the appellant filed a “Motion to Strike Sentencing Enhancement

of the Defendant Sparrow,” arguing that the notice was insufficient. Specifically, the

appellant complained that the “‘mult-tasking’ Notice of Intent to Use Criminal History and

Evidence of Prior Bad Acts[] does not advise the [appellant] of what status the State asserts

for the [appellant] at Sentencing.” On November 29, 2011, the trial court denied the

appellant’s motion, stating that after a hearing had been held on the matter, the court found

the notice to be sufficient. The court further stated that “the State was ordered to give a copy

of the [appellant’s] certified priors and Pen. Pack to the [appellant].” The “Pen. Pack” is

-31-

included as an exhibit to the sentencing hearing, which was held on January 4, 2012. The

packet contains copies of the appellant’s judgments of conviction.

Tennessee Code Annotated section 40-35-202(a) provides:

If the district attorney general believes that a defendant should

be sentenced as a multiple . . . offender, the district attorney

general shall file a statement thereof with the court and defense

counsel not less than ten (10) days before trial or acceptance of

a guilty plea; provided, that notice may be waived by the

defendant in writing with the consent of the district attorney

general and the court accepting the plea. The statement . . . must

set forth the nature of the prior felony convictions, the dates of

the convictions and the identity of the courts of the convictions.

See also Tenn. R. Crim. P. 12.3(a) (“Written statements of the district attorney giving notice

that the defendant should be sentenced to an enhanced punishment . . . shall be filed not less

than ten (10) days prior to trial. If the notice is filed later than this time, the trial judge shall

grant the defendant, upon motion, a reasonable continuance of the trial.”).

“The purpose of the statutory notice of intent to seek enhanced sentencing is to (a)

provide fair notice to an accused that he/she is exposed to other than standard sentencing, (b)

to facilitate plea bargaining, (c) to enable the accused to make an informed decision before

entering a guilty plea, and (d) to a certain extent, to aid in trial strategy.” State v. Livingston,

197 S.W.3d 710, 713-14 (Tenn. 2006). Generally, “when the State has substantially

complied with [Tennessee Code Annotated section] 40-35-202(a), an accused has a duty to

inquire about an ambiguous or incomplete notice and must show prejudice to obtain relief.”

State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990).

We conclude that the State substantially complied with Tennessee Code Annotated

section 40-35-202(a) because the notice “contains the State’s express intent ‘to seek

enhanced punishment,’ sets forth the nature of the prior felony convictions, the dates, and the

identity of the courts of the convictions, and was filed months in advance of the trial and

sentencing hearing.” State v. Taylor, 63 S.W.3d 400, 413 (Tenn. Crim. App. 2001).

Moreover, after a hearing on the issue, the appellant was supplied with the “Pen. Pack,”

giving him actual notice of the offenses that would be used to enhance his sentence. As our

supreme court has explained:

While “perfect” notice is not required, . . . we have

strictly applied the requirement of section 40-35-202(a) that

-32-

some notice meeting the minimal requirements of the statute be

given. . . .

To reiterate, the notice provision of Tenn. Code Ann. §

40-35-202(a) requires, at a minimum, that the State file: (1)

written notice, (2) clearly expressing the State’s intention to seek

sentencing outside of the standard offender range, (3) setting

forth the nature of the prior felony conviction, the dates of the

convictions, and the identity of the courts of the convictions.

Livingston, 197 S.W.3d at 713-14 (footnote omitted).

The record establishes the notice reflected, in pertinent part, that the appellant had

prior convictions of forgery up to $1,000, a Class E felony and of selling less than .5 grams

of cocaine, a Class C felony. Thus, he had notice of the offenses being used to enhance his

sentence. After applying the convictions to his instant conviction of attempted aggravated

robbery, a Class C felony, the appellant was properly classified as a Range II offender. See

Tenn. Code Ann. § 40-35-106(a)(1). Therefore, we conclude that the appellant is not entitled

to relief on this issue.

2. Length of Sentence

The appellant argues that the length of his sentences is excessive. He specifically

contends that the trial court erred in failing to apply mitigating factors and in weighing the

enhancement factors and mitigating factors.

At the sentencing hearing, Arias’s oldest brother, Renee Arias, testified that the victim

was forty-four years old at the time of his death. He said that he and the victim were from

Cuba and that they were close. He said that the victim was hardworking, gentle, funny,

happy, and a good father. He stated that his family blamed him for the victim’s death.

Bennett testified that the victim was a friendly, wonderful person. She stated that she

thought the appellant intended to kill everyone in the house, saying “I really and truly believe

with all my heart if there had been any more bullets in that gun we would have all been

killed.” She said that she had trouble sleeping and that she suffered from anxiety about being

in the house alone. She maintained that she had been though counseling after the incident.

She stated that she had been a crack cocaine addict but that she had not used drugs since the

shooting.

Ralph H. Buddy Peden, who was a retired food business sales executive, testified that

-33-

he was a recovering alcoholic and that he went to the Williamson County Jail every Thursday

for an Alcoholics Anonymous meeting with the inmates. He stated that for two years, the

appellant had been actively participating in the meetings. He said that the appellant was an

outspoken leader and talked about “the error of his ways.” Peden believed that the appellant

had made a major change in his life.

Charles Edward Gospodarek, a retired systems administrator for Hartford Insurance,

testified that he was active in sponsoring people in drug recovery, including at the

Williamson County Jail and the Easley Criminal Justice Center. He stated that for two or

three years, the appellant had participated in the Alcoholics Anonymous meetings.

Gospodarek stated that at first, the appellant was quiet. Then, he began talking about his

issues. Gospodarek said that the appellant had benefitted from his participation in the

meetings and that other inmates had benefitted from the appellant, as well.

Correctional Officer Lance John Dorman testified that he worked the area in which

the appellant was housed and that he had few problems with the area. He stated that the

appellant was not a disruptive inmate.

Correctional Officer James Hamner Gillam testified that he worked the area in which

the appellant was housed and that the appellant was a respectful, nondisruptive inmate.

In the presentence report, the appellant described his family history as having its “ups

and downs.” He explained that his mother was addicted to drugs and frequently changed

addresses. He said that he and his sisters “were passed from house to house among

relatives.” He acknowledged that he was “a ‘problem child.’” He stated that while his sisters

continued to live with relatives, he was placed in foster care.

In determining a specific sentence within a range of punishment, the trial court should

consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of

punishment is the sentence that should be imposed, because the

general assembly set the minimum length of sentence for each

felony class to reflect the relative seriousness of each criminal

offense in the felony classifications; and

(2) The sentence length within the range should be

adjusted, as appropriate, by the presence or absence of

mitigating and enhancement factors set out in §§ 40-35-113 and

40-35-114.

-34-

Tenn. Code Ann. § 40-35-210(c).

Although the trial court should consider enhancement and mitigating factors, the

statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also

Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our supreme

court has stated that “a trial court’s weighing of various mitigating and enhancement factors

[is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words,

“the trial court is free to select any sentence within the applicable range so long as the length

of the sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id.

at 343. “[A]ppellate courts are therefore left with a narrower set of circumstances in which

they might find that a trial court has abused its discretion in setting the length of a

defendant’s sentence.” Id. at 345-46. “[They are] bound by a trial court’s decision as to the

length of the sentence imposed so long as it is imposed in a manner consistent with the

purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

The appellant was convicted of second degree murder, a Class A felony; attempted

first degree murder, a Class A felony; and attempted aggravated robbery, a Class C felony.

As a standard, Range I offender, he was subject to a sentence between fifteen to twenty years

for each Class A felony conviction. Tenn. Code Ann. § 40-35-112(a)(1). As a multiple,

Range II offender, he was subject to a sentence between six and ten years for the Class C

felony conviction. Tenn. Code Ann. § 40-35-112(b)(3). The trial court sentenced the

appellant to twenty years for each of his Class A felony convictions and to eight years for his

attempted aggravated robbery conviction.

The trial court found the following enhancement factors: (1) that the appellant had

a previous history of criminal convictions or criminal behavior, in addition to those necessary

to establish the appropriate range; (7) that the offense involved a victim and was committed

to gratify the appellant’s desire for pleasure or excitement; (9) that the appellant possessed

or employed a firearm, explosive device or other deadly weapon during the commission of

the offense; (10) that the appellant had no hesitation about committing a crime when the risk

to human life was high. Tenn. Code Ann. § 40-35-114(1), (7), (9), and (10).

With regard to enhancement factor (1), the trial court noted that the appellant had a

history of multiple criminal convictions. Tenn. Code Ann. § 40-35-114(1). The appellant,

who was twenty-seven years old, had approximately fifty-five prior convictions. Therefore,

this enhancement factor was applicable.

With regard to enhancement factor (7), the trial court said that “there could be an

argument made that the [appellant] obviously came in for the purposes of obtaining drugs for

– and that would be to gratify a desire for pleasure, but I don’t put much weight on that. I

-35-

don’t think it’s necessarily appropriately applied, but it certainly is a factor that the Court

could consider.” Tenn. Code Ann. § 40-35-114(7). We can find nothing in the record to

support the application of this enhancement factor.

With regard to enhancement factor (9), the court applied it to the second degree

murder and attempted murder convictions. Tenn. Code Ann. § 40-35-114(9). However, the

court stated that it would not afford the enhancement factor much weight. Because the use

of a weapon is not an element of second degree murder or attempted first degree murder, the

trial court was entitled to use this enhancement factor to enhance the sentence for those

convictions.

With regard to enhancement factor (10), the court found that the appellant had no

hesitation about committing a crime when the risk to human life was high. Tenn. Code Ann.

§ 40-35-114(10). However, the court stated, “I think that is anticipated by the statutes and

is not necessarily applied as an enhancement factor.” Because enhancement factor (10) is

inherent in the offenses for which the appellant was convicted, the trial court was correct in

stating that enhancement factor (10) should not be applied. See State v. Robert Jesus Porrata,

No. W2011-00749-CCA-R3-CD, 2012 WL 5199693, at *6 (Tenn. Crim. App. at Jackson,

Oct. 22, 2012).

The court found that mitigating factor (6), that the appellant, because of youth or old

age, lacked substantial judgment in committing the offense, did not apply. The trial court

stated that the appellant was twenty-four years old at the time of the offense, “I don’t believe

there’s any evidence that his maturity level was so low that that mitigating factor should be

applied here.”

The trial court also found under enhancement factor (13), that the appellant’s

“background does not have any offenses where violence was used to precipitate any type of

criminal activity.” Additionally, the court found that the appellant had family support and

that he was well behaved in jail.

The appellant does not complain about the application of any of the enhancement or

mitigating factors. His only complaint is about the weight attributed to the factors.

Specifically, the appellant argues that the trial court should have attributed more weight to

the mitigating factors, particularly his difficult childhood and his good behavior in jail.

However, this court does not reweigh mitigating and enhancement factors. See Carter, 254

S.W.3d at 345. Therefore, this issue is without merit.

3. Consecutive Sentencing

-36-

The appellant argues that the trial court erred by ordering that the sentences be served

consecutively. Generally, “[w]hether sentences are to be served concurrently or

consecutively is a matter addressed to the sound discretion of the trial court.” State v.

Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997). Tennessee Code Annotated

section 40-35-115(b) contains the discretionary criteria for imposing consecutive sentencing.

See also State v. Wilkerson, 905 S.W.2d 933, 936 (Tenn. 1995). The trial court may impose

consecutive sentencing upon finding the existence of any one of the criteria. In the instant

case, the trial court found criterion (2), that the appellant was an offender whose record of

criminal activity was extensive. Tenn. Code Ann. § 40-35-115(b)(2). The court noted that,

even at the appellant’s relatively young age, he had an extensive criminal history and had

committed an offense “pretty much every year since the age of majority.” The appellant’s

presentence report reflects that as an adult, the appellant had been convicted of: two counts

of felony forgery up to $1,000; two counts of felony possession of less than .5 grams of

cocaine; thirty-nine counts of misdemeanor theft; misdemeanor failure to appear;

misdemeanor conspiracy to distribute drugs; driving while his license was suspended; driving

on a revoked license; possession of a weapon with the intent to go armed; and traffic

offenses. Additionally, the presentence report reflects that the appellant has violated

probation or parole on four occasions. Therefore, the record supports the conclusion that the

appellant has an extensive criminal history.

The trial court also found that the appellant’s behavior reflected that he “had no

hesitation in committing a crime in which the risk to human life was high.” Without

specifically stating so, the court essentially found that the appellant was “a dangerous

offender whose behavior indicates little or no regard for human life, and no hesitation about

committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-

115(4). Generally, 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 (2) ‘the terms are reasonably related to the severity of the

offenses.’” State v. Moore, 942 S.W.2d 570, 574 (Tenn. Crim. App. 1996) (quoting

Wilkerson, 905 S.W.2d at 938); see also State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). The

court stated that the instant crimes were “egregious.” Specifically, the court stated that the

appellant went into someone’s home as an invited guest; shot Arias multiple times without

provocation, including shooting Arias in the back; then the appellant committed further

criminal acts by attempting to rob and shoot Davenport. The court found that, “obviously,

[the appellant] has no regard or at least had no regard on this evening of the sanctity of

human life and, quite frankly, I don’t find that he has much regard for it now.” The court

said, “Certainly, this Court could look at his record and say that the –that the community

would not be safer having him on the streets as the community would having him locked up

based upon the number of criminal offenses he’s had in his fairly young life.” We conclude

that the trial court did not err by imposing consecutive sentencing based upon the appellant

-37-

being a dangerous offender.

I. Double Jeopardy

Finally, the appellant raises multiple double jeopardy arguments. The double jeopardy

clauses of the United States and Tennessee constitutions protect an accused from: (1) a

second prosecution following an acquittal; (2) a second prosecution following conviction;

and (3) multiple punishments for the same offense. State v. Watkins, 362 S.W.3d 530, 548

(Tenn. 2012). Recently, in Watkins, our supreme court opted to rely upon a two-step test

based upon Blockburger to determine when double jeopardy attached. Id. at 556-57. Our

supreme court stated that courts must “first consider whether the defendant’s dual

convictions arose from the same act or transaction.” Id. at 558. The second step of the test

“requires courts to examine the statutory elements of the offenses.” Id. at 557. Generally,

[i]f the elements of the offenses are the same, or one offense is

a lesser included of the other, then we will presume that multiple

convictions are not intended by the General Assembly and that

multiple convictions violate double jeopardy. However, if each

offense includes an element that the other does not, the statutes

do not define the “same offense” for double jeopardy purposes,

and we will presume that the Legislature intended to permit

multiple punishments.

Id. (footnote omitted).

First, the appellant argues that he should not have been sentenced for both second

degree murder convictions. However, the record reflects that the second degree murder

convictions were merged; therefore, the principles against double jeopardy were not violated.

Next, he contends that his

attempted aggravated robbery conviction stems from his act of

attempting [to take] the victims or occupants’ property. And the

attempted murder conviction arose from the [appellant’s]

attempt to put the victims and occupants of the attempted

robbery in fear. The aggravated robbery statute obviously exists

to prohibit a person from forcibly taking property from another

by using a deadly weapon or causing serious bodily injury. The

threat of murder is very persuasive in convincing others to give

up their property. In our case, thus, the evidence relied on by

-38-

the State is the same for all the convictions, a continuous

criminal episode.

The appellant’s second degree murder conviction stemmed from the shooting of Arias.

His attempted first degree murder conviction stemmed from his unsuccessful attempt to shoot

Davenport. His attempted aggravated robbery conviction stemmed from his pointing a gun

at Davenport and demanding “everything you’ve got.” None of the offenses are statutorily

the “same offense” for double jeopardy purposes. Accordingly, this issue is without merit.

III. Conclusion

In sum, we conclude that the trial court did not err by failing to suppress the

identification of the appellant as the perpetrator; that the evidence was sufficient to sustain

his convictions; that the trial court did not err by not upholding the appellant’s Batson

challenge; that the trial court did not err by failing to strike Holt’s statement; that the trial

court did not err by admitting a black t-shirt; and that the trial court did not abuse its

discretion in sentencing the appellant. Additionally, we conclude that the appellant was not

prejudiced by any errors the trial court made in admitting a photograph of Arias that was

taken while he was alive or during its communications with jurors. Therefore, we affirm the

judgments of the trial court.

_________________________________

NORMA McGEE OGLE, JUDGE

-39-