State of Tennessee v. Joshua Lee Brown

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 8, 2011

STATE OF TENNESSEE v. JOSHUA LEE BROWN

Appeal from the Criminal Court for Davidson County

No. 2007-A-708 Seth W. Norman, Judge

No. M2010-00437-CCA-R3-CD - Filed September 28, 2011

The Defendant, Joshua Lee Brown, was found guilty by a Davidson County Criminal Court

jury of two counts of felony murder; attempted first degree murder, a Class A felony; and

attempted especially aggravated robbery, a Class B felony. See T.C.A. §§ 39-13-202 (2006)

(amended 2007), 39-12-101 (2010), 39-13-403 (2010). He was sentenced to life

imprisonment without the possibility of parole for each of the felony murder convictions, to

twenty years’ confinement for attempted first degree murder, and to ten years’ confinement

for attempted especially aggravated robbery. The attempted first degree murder conviction

was ordered to be served consecutively to the remaining convictions, for an effective

sentence of life plus twenty years. On appeal, he contends that (1) the trial court erred by

denying his motion to redact a portion of the video evidence; (2) the trial court erred by

denying his motion to strike the State’s notice of intent to seek a sentence of life

imprisonment without the possibility of parole; (3) the trial court erred by denying his motion

to strike the felony murder aggravating circumstance from the State’s notice of intent to seek

a sentence of life imprisonment without the possibility of parole; (4) the trial court erred by

granting the State’s request to augment the pattern jury instruction on the “heinous, atrocious,

and cruel” aggravating circumstance; (5) the trial court erred by rejecting his requested

sentencing instruction regarding the statutory mitigating circumstance that he acted under the

substantial domination of another person; (6) his rights to due process and a fair trial were

violated when the trial court failed to give the jury meaningful guidance or directions as to

their deliberations during the punishment phase of the trial; (7) the trial court erred by

imposing partially consecutive sentences; and (8) the evidence was insufficient to establish

the “heinous, atrocious, and cruel” aggravating circumstance as to one of the victims during

sentencing. We conclude that although the trial court erred when giving a special jury

instruction, the error was harmless in light of the whole record. Furthermore, we conclude

that although the evidence was insufficient to establish an aggravating circumstance and the

trial court failed to make the necessary findings when imposing consecutive sentences, the

sentences imposed were appropriate. We affirm the judgments of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J OHN E VERETT

W ILLIAMS and N ORMA M CG EE O GLE, JJ., joined.

C. Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant District Public

Defender (on appeal); and J. Michael Engle and Joan A. Lawson, Assistant District Public

Defenders (at trial), for the appellant, Joshua Lee Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;

Victor S. Johnson, III, District Attorney General; and Thomas Thurman, Dina Shabayek, and

Jeff Burks, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

This case relates to an attempted robbery of an AMPM Discount Tobacco shop during

which two store employees, Salama Estfanous and Bishouy Hanna, were killed and one

customer, James Rayburn, was shot. At the trial, Mr. Rayburn testified that he was shopping

at AMPM Discount Tobacco on December 12, 2006, at approximately 9:15 p.m. He said that

he was a frequent customer at the store and that as he joked with Mr. Estfanous and Mr.

Hanna, two masked persons entered the store, one carrying a shotgun and the other carrying

a pistol. Everyone in the store was ordered to the ground, and the person holding the pistol

fired it into the air. Mr. Rayburn said that the persons asked Mr. Estfanous for money and

that when Mr. Estfanous stated he did not understand English, the person with the shotgun

shot Mr. Estfanous. He said that after Mr. Estfanous was shot, one of the masked persons

stated they would kill everyone in the store. Mr. Rayburn said they shot him in the back as

he lay face down on the ground and shot Mr. Hanna in the stomach as he lay on the ground.

He said the person with the pistol approached him, placed the gun to his head, and pulled the

trigger. He said he heard the pistol “click.” He said that he was able to call 9-1-1 after the

persons left the store and that the police arrived a few minutes later.

Mr. Rayburn testified that he was taken to the hospital but that he did not know how

long he remained there because he fell into a coma. He had four surgeries, including having

his colon and portions of his intestines removed. He said that the injury caused him daily

problems and that although he was formerly self-employed, he received disability benefits

at the time of the trial.

On cross-examination, Mr. Rayburn testified that he immediately dropped to the floor

when instructed to do so by the masked persons. He agreed he was face down on the floor

during the robbery. He agreed that although he saw one person with a shotgun and the other

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with a pistol when they entered the store, he was not able to see what occurred after he

dropped to the floor. He agreed that several shots were fired from both weapons, that the

person with the pistol went behind the counter, and that the person with the shotgun remained

in front of the counter. He agreed that he was not asked for money and that nothing was

taken from him. He said that during the robbery, a customer lay on the floor near the potato

chips.

Frederick Cowan testified that he was in the AMPM Discount Tobacco shop on

December 12, 2006, at approximately 9:15 p.m. He said that as he bought potato chips, a

man with a sawed-off shotgun forced him to the ground. He said that a shot was fired at his

head as he dropped to the ground but that the shot missed. Although he could not see the

faces of the persons who attempted to rob the store, he heard them ask the store clerk for

money. He said he spoke with the police and gave them a statement that night.

On cross-examination, Mr. Cowan agreed that two persons entered the store, one with

a sawed-off shotgun and the other with a handgun. He did not know if the person with the

handgun ordered people to the ground. He agreed that the entire encounter happened quickly

and that he heard a lot of yelling and shooting. On redirect examination, Mr. Cowan testified

that the man with the shotgun pointed the gun at his face and ordered him to the ground.

Metro Police Officer Dewan Daniels testified that he responded to a robbery and

shooting at the AMPM Discount Tobacco shop on December 12, 2006. He saw two men on

the floor near the cash register. Both men had been shot and one was not breathing. Another

man who had been shot was on the ground behind the register and was not breathing.

Mohab Khamis testified that in 2006, he owned the AMPM Discount Tobacco shop

located at 342 North Gallatin Road in Madison, Tennessee. He said seven security cameras

were located throughout the store. He drove to his store after being told of the shootings and

gave the police the recordings of the shootings. He said that the recordings showed the

masked persons touching the cash register and that he gave the register to the police to allow

them to obtain fingerprints from it. He said nothing was taken from his store during the

robbery.

Metro Police Officer Christopher Brennan testified that he arrived at the scene around

9:40 p.m. on December 12, 2006. He said that when he entered the store, he saw one victim

on the floor near the counter, one being treated by paramedics, and another behind the

counter. He collected cartridge casings and spent shotgun shells from near the victims and

photographed the scene. He identified photographs of the scene and items he recovered. He

and the detectives at the scene watched the video recordings of the shootings and took the

store’s cash register to the police department for fingerprinting.

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On cross-examination, Officer Brennan agreed that the store had seven surveillance

cameras and that the cameras were clearly visible to anyone entering the store. He identified

a photograph of the area near the cash register and agreed that money was on the counter and

that money filled two containers beneath the register. On redirect examination, Officer

Brennan testified that both of the store’s cash registers were taken to the police department

for processing.

Metro Police Officer William Kirby testified that he worked in the identification

section of the police department and that he helped process evidence taken from the AMPM

Discount Tobacco shop. He said he was able to obtain fingerprints from a cash register. He

said that he watched the surveillance video after recovering the prints and that the video

showed one of the masked persons touching the register in the same area where he recovered

the prints. He submitted the prints to the Metro Police Department latent fingerprint

examination section for analysis. He said he also examined a pair of pants and Reebok tennis

shoes to determine if blood was present. He said that one of the shoes contained two spots

that appeared to be blood and that he swabbed the spots and submitted the swabs to the police

department’s property room.

On cross-examination, Officer Kirby testified that the pants submitted were a dark

color and did not appear to have blood on them. He said that he did not do further testing of

the pants and that he instructed a detective to submit the pants to the Tennessee Bureau of

Investigation (TBI) laboratory for testing. He said his role in the investigation was to collect

evidence, not analyze it. He did not know if the tennis shoes were sent to the TBI laboratory

for testing.

Metro Police Detective Harold Dean Haney testified that he investigated the

December 12, 2006 shootings at the AMPM Discount Tobacco shop, but that Detective Mike

Roland was the lead detective in the investigation. He was called to the scene at

approximately 10:00 p.m. and spoke with witnesses at the scene. He viewed the security

footage from the store and learned that the suspects touched the cash register and did not

wear gloves. He said that the security footage was edited and placed on a CD but that

nothing was changed except the duration of each camera’s recording. The CD was played

for the jury and showed each of the seven camera angles recorded within the store as the

shootings occurred.

Detective Haney testified that the Defendant became a suspect after Officer Kirby

submitted the fingerprints lifted from the cash register for analysis. A warrant was issued for

the Defendant’s arrest, and he was arrested on December 13, 2006. Detective Haney said

that the Defendant ran as the police approached the Defendant’s home but that the Defendant

was quickly captured, arrested, and transported to the police department for questioning.

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Robin Betts and Rokisha Alderson were also arrested at the Defendant’s home and taken to

the police department for questioning. Detective Haney said that the Defendant’s family was

present at the home and that he received consent to search the home and a Ford Explorer

parked in front of the home.

Lorita Marsh, an expert in the field of fingerprint analysis, testified that she was a

certified latent fingerprint examiner for the Metro Police Department. She said she entered

the two latent fingerprints that were recovered from the cash register into an automated

fingerprint identification system to determine possible matching candidates. She said that

the Defendant was the top candidate on the list and that she compared the Defendant’s

known fingerprints with the latent fingerprints submitted by Officer Kirby. She said that her

analysis revealed the two prints taken from the register were the Defendant’s left index and

left middle fingerprints and that her finding was verified by her supervisor, Julia Hooper.

On cross-examination, Ms. Marsh agreed that she examined numerous fingerprints

recovered from the scene in addition to those found on the cash register. She agreed she was

unable to match some of the prints to any particular person. She said only two of the latent

fingerprints matched known prints, those of the Defendant. On redirect examination, Ms.

Marsh agreed that she compared the known fingerprints of Rokisha Alderson with the latent

prints found at the scene and that she did not find a match.

Metro Police Detective Cody O’Quinn testified that he observed the autopsies of the

victims on December 13, 2006. He said he received the buckshot pellets and other projectiles

recovered from the victims. He said projectiles were recovered from Mr. Estfanous’s spine,

back, left lung, and neck. He said that glass was recovered from Mr. Hanna’s abdomen and

chest and that projectiles and shotgun wadding were recovered from Mr. Hanna’s chest and

back. He submitted the items to the Metro Police Department property room and then

transferred the items to the police department laboratory.

Metro Police Detective Danny Satterfield testified that he assisted Detective Roland’s

investigation of the shootings that occurred at the AMPM Discount Tobacco shop. He said

that he went to Vanderbilt Hospital to check on Mr. Rayburn and that the surgical pathology

unit gave him a bullet recovered from Mr. Rayburn.

Metro Police Sergeant Chris Steele testified that he assisted in the Defendant’s arrest.

He said the police were given consent to search the Defendant’s home and a Ford Explorer

in front of the home. He said that he saw ski masks and dark clothing on the back seat of the

Explorer and that Officer Thomas Simpkins gathered the items. On cross-examination,

Sergeant Steele agreed that the Explorer sat directly in front of the home and that the ski

masks and clothing could be seen through the windows easily.

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Metro Police Officer Thomas Simpkins testified that he worked in the identification

section of the police department and that he gathered evidence from the home where the

Defendant was arrested and an Explorer in front of the home. He identified pictures of the

home and items the police recovered. He identified two knit caps and said he obtained one

from the front seat of the Explorer and the other from the console. He said that within the

home, he recovered a jacket with fur lining, a black jacket, black pants, a black sweater, a

blue shirt, and shoes. He identified the items.

On cross-examination, Officer Simpkins agreed that he did not search the home or the

Explorer and that he collected and photographed evidence as instructed. He said some of the

items were removed from the Explorer and placed on the ground before he photographed and

collected them. He said the ski masks were in the front seat when he arrived at the home and

agreed they could cover a person’s face. He agreed that a photograph of the living room

showed the shoes he recovered and a bicycle.

Metro Police Detective Mike Roland testified that he was the lead detective

investigating the shootings. He said that Mr. Hanna’s and Mr. Estfanous’s bodies were still

at the store when he arrived and that they were taken to the medical examiner’s office. He

said the police arrested the Defendant after finding the Defendant’s fingerprints on the store’s

cash register. Robin Betts, who was eighteen years old, and Rokisha Alderson, who was

sixteen years old, were also taken to the police department for questioning. He said Mr. Betts

and Ms. Alderson admitted their involvement in the shootings at the tobacco shop. He said

the Defendant was informed of his constitutional rights and appeared to understand his rights

before he gave a video recorded statement. He identified the Defendant’s recorded statement

and a transcript of the recording. The recording was played for the jury.

In the video recording, Detective Roland informed the Defendant of his constitutional

rights, including his right to remain silent and his right to an attorney. The Defendant stated

that he understood his rights and signed a waiver of his rights. Detective Roland told the

Defendant that the police had evidence indicating the Defendant was involved in a homicide

the night before and asked the Defendant why he did it. The Defendant replied, “Stress and

mental . . . problems” caused by not taking his medication. He said that two or three years

earlier, he stopped taking his medication for depression and “mental problems.” The

Defendant stated that he rode to the tobacco shop with Buddy Robinson, who was his cousin,

and that robbing the store was Mr. Robinson’s idea. He said he had never been involved in

a previous robbery. He said that although he initially told Mr. Robinson he did not want to

be involved in the robbery, “my mind just went blank and just got out of the truck and went

in there and told him to come on with the money.” He said that he ordered the people to the

ground, that Mr. Robinson asked the clerk for money, and that the clerk refused. He said that

after Mr. Robinson fired the first shot, “I said naw, then went on and shot the man who was

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on the ground once. Then when I shot the other shot, I didn’t know who the other shot hit,

I just shot it at the ground. I guess the bullet shots spread and hit the man . . . .” The

Defendant said that he purchased the shotgun he used during the robbery from a man on the

street and that he gave “powder” to a woman named Camry in exchange for the truck he used

during the robbery. He said that he wore a black shirt, a gray “hoodie,” and a ski mask

during the robbery and that Mr. Robinson wore a grey shirt, black pants, and a jacket with

fur around the hood. When Detective Roland disputed the Defendant’s version of the

robbery, the Defendant ended the interview.

Detective Roland testified that the Defendant lied when he said Buddy Robinson was

involved in the crime. He said that the recording of the shooting showed the Defendant

wearing blue jeans with white lettering during the robbery but that the jeans were not found

at the Defendant’s home or in the Explorer. He said the police collected projectiles and

shotgun shell casings from the scene, one bullet recovered from Mr. Rayburn at Vanderbilt

Hospital, and projectiles recovered from the victims by the medical examiner. He identified

swabs taken from the Reebok tennis shoes found in the Defendant’s home and said the swabs

were sent to the TBI laboratory for testing. He said that he also asked the medical examiner

to take samples of the victims’ blood for comparison to blood found on the evidence

recovered from the Defendant’s home and the Explorer and that the medical examiner

provided the samples to the TBI laboratory.

On cross-examination, Detective Roland agreed that a large amount of cash sat in a

basket directly beneath the cash register at the tobacco shop, but he did not know the amount.

He agreed his investigation revealed that the person holding the pistol fired the first shot. On

redirect examination, Detective Roland agreed the money beneath the register was pulled

forward to be photographed and said the money was originally in a position that was not

easily seen.

TBI Agent Steve Scott, an expert in firearms identification, testified that he was a

forensic scientist with the firearms identification unit. He said that although most bullets and

shell cases could be matched to the weapon that fired them, shotgun pellets could not

normally be matched to a certain weapon because shotgun barrels were smooth and did not

contain identifying marks that could be imparted to the shotgun pellets. He said the .38

caliber bullets recovered from the scene and from Mr. Rayburn at Vanderbilt Hospital were

fired from the same gun. He said the .38 caliber bullets had hollow points, which created

more tissue damage upon impact. He said that he examined eighteen double-aught buckshot

pellets submitted by the medical examiner’s office and that the pellets were consistent with

the two shotgun shell cases he examined.

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TBI Agent Patrick Ihrie testified that he was a forensic scientist with the serology and

DNA unit. He said that serology was the identification of body fluids and that unknown

samples of fluids could be compared to and matched with known samples. He said that the

Metro Police Department asked him to compare a swab and scrapings taken from a Reebok

tennis shoe with blood samples taken from Mr. Estfanous and Mr. Hanna. He said that the

swab taken from the Reebok tennis shoe matched Mr. Hanna’s DNA profile and that the

chance of a random match occurring was less than one in 134 million.

On cross-examination, Agent Ihrie testified that although he saw a picture of the

Reebok tennis shoes, he never saw the actual shoes. He was not aware of any TBI policy

requiring analysis of the original source of evidence, as opposed to a sample taken from the

original source. He agreed he used a database maintained by the Federal Bureau of

Investigation to generate DNA statistics and said he did not think any Egyptians were

included in the database. He said that the statistics provided information on how common

a DNA profile was within a given population and that the numbers were generally similar

across different populations. On redirect examination, Agent Ihrie testified that genetic

markers differed from person to person and that only identical twins could have the same

DNA profile.

Dr. Amy McMaster, an expert in forensic medicine, testified that she performed

autopsies on Mr. Estfanous and Mr. Hanna. She said Mr. Estfanous had a large shotgun

wound on his back and pistol wounds on his back and neck. She said that he died from the

wounds minutes after being shot and that he did not have drugs or alcohol in his body. She

recovered bullets from near Mr. Estfanous’s spine and neck, shotgun wadding from his lung,

and buckshot pellets from his flank, back, spine, and lung. She said that Mr. Hanna had a

shotgun wound to his abdomen and that she recovered shotgun pellets, shotgun wadding, and

glass from his body. She said that Mr. Hanna died from the shotgun wound, which caused

damage to his heart, lungs, liver, and ribs, and that he did not have drugs or alcohol in his

body. She took samples of Mr. Hanna’s and Mr. Estfanous’s blood and submitted the

samples to the TBI for testing. On cross-examination, Dr. McMaster testified that although

the victims’ injuries would not have caused death instantly, the victims would not have lived

for more than a few minutes, at most, after being shot.

Upon this evidence, the jury found the Defendant guilty of attempted especially

aggravated robbery, attempted first degree murder, and two counts of felony murder. During

the punishment phase of the trial, Adel Abdelmessih testified through an interpreter that he

was Mr. Hanna’s mother’s uncle. He said that Mr. Hanna was like a son to him and that Mr.

Hanna assisted him with his health problems. He said that Mr. Hanna’s mother was admitted

to a hospital after hearing that Mr. Hanna was killed and that the entire family was devastated

by his death. He said Mr. Hanna assisted his family financially.

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Eid Ghatas testified that he was Mr. Estfanous’s cousin. He said that Mr. Estfanous

supported his parents and siblings financially. He said that Mr. Estfanous’s father collapsed

and had a nervous breakdown after hearing that his son died and that the entire family was

devastated.

William T. Robinson, Jr., testified for the defense that he taught the Defendant at the

Institution of Learning Research, an alternative school for students with emotional and

educational problems, when the Defendant was sixteen and seventeen years old. He said that

the Defendant’s parents did little to supervise the Defendant, that the Defendant was absent

from school frequently, and that the Defendant often slept during class. He said that when

the Defendant attended school, it was usually due to pressure from the Defendant’s probation

officer. He said that he questioned the Defendant’s ability to think and reason and that the

Defendant had a learning disability.

On cross-examination, Mr. Robinson testified that he did not know why the Defendant

was sent to the alternative school or why he was on probation. He said he met the

Defendant’s mother one time at church and agreed she was supervising the Defendant at that

time. On redirect examination, Mr. Robinson testified that the Defendant’s mother did not

attend the trial.

Dr. Geraldine Bishop, an expert in intellectual disabilities and developmental

psychology, testified that she was a clinical and developmental psychologist and that she

frequently worked with and performed assessments of mentally retarded persons.1 She said

untrained persons would often not immediately realize if a person were mildly retarded. She

said persons suffering from mild mental retardation often do not know how to behave and

will react impulsively when confronted with unfamiliar situations.

Dr. Bishop testified that she reviewed the Defendant’s school records and that when

he was in kindergarten, he was diagnosed as being mentally retarded and placed in special

education classes. She said that the Defendant underwent regular psychological assessments

during school and that he was found to be mildly retarded in each developmental category

except physical development. She said the Defendant was mildly retarded academically,

intellectually, and with regard to his adaptive behavior, which included how effectively a

person could perform basic tasks and communicate.

1

We note that on April 9, 2010, the General Assembly ordered all references to“mental retardation”

in Tennessee Code Annotated to be changed to “intellectual disability.” See 2010 Tenn. Pub. Acts 734. The

testimony of witnesses is provided as given.

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Dr. Bishop testified that she administered tests on the Defendant to determine his level

of intelligence and adaptive behavior. She said the Defendant’s full scale IQ was sixty-six,

which was in the bottom one percent of the population. She said that his ability to make

decisions and focus on complicated situations was impaired and that he probably did not have

the ability to participate meaningfully in his own defense. She said the Defendant’s adaptive

behavior functioning was significantly impaired in the areas of communication, daily living,

and socialization. She said over ninety-nine percent of the population had better adaptive

behavior than the Defendant. She said that the Defendant was able to perform simple plans

but that he would not know how to think and would react impulsively if something

unexpected occurred. She said the Defendant’s desire to be in the company of others may

have caused him to ride to the scene of the robbery with his co-defendants.

On cross-examination, Dr. Bishop testified that she was hired to determine if the

Defendant was mentally retarded. During her assessment of the Defendant, she spent about

four or five hours with him, reviewed his school records, and spoke with his family. She

agreed the last test administered to the Defendant while he was in school indicated that he

had an IQ of seventy-seven and that although he was on the borderline of mental retardation,

he was not mildly retarded. She said the increase in his IQ score could have been caused by

medications he took at the time.

Dr. Bishop agreed that she was provided with information regarding the Defendant’s

criminal record. She was aware that in 2003, the Defendant went into an assistant principal’s

office and stole money from her purse and that the Defendant was also charged in 2003 for

possessing a .32 caliber pistol, which he said he purchased from someone on the street for

seventy-five dollars. She was not aware that the Defendant stole cars in 2004 and 2005 or

that he provided the police with false names when he was arrested. She said mildly retarded

persons could lie to protect themselves. She was not aware the Defendant informed the

police that he bought the shotgun used to kill the victims from a man on the street or that he

traded cocaine to obtain the car used during the robbery. She said mildly retarded people

could negotiate for things and find a way to meet their needs. She was aware the Defendant

wore a ski mask during the robbery and said the Defendant had the ability to plan things. She

was not surprised that the Defendant disposed of the murder weapon or the car used during

the robbery and said the Defendant was able to perform tasks to protect himself.

On redirect examination, Dr. Bishop testified that the Defendant’s full scale IQ was

measured to be sixty-two at age seven, sixty at ages eleven and twelve, and sixty-seven at age

sixteen. She said his earlier evaluations were consistent with her findings of mild mental

retardation.

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Upon this evidence, the jury sentenced the Defendant to life imprisonment without the

possibility of parole for each of the felony murder convictions. The trial court sentenced the

Defendant to twenty years’ confinement for attempted first degree murder and to ten years’

confinement for attempted especially aggravated robbery. The attempted first degree murder

conviction was ordered to be served consecutively to the remaining convictions, for an

effective sentence of life plus twenty years. This appeal followed.

I

The Defendant contends that the trial court erred by denying his motion to redact a

portion of the video evidence. He argues that the portion of the video depicting Mr. Hanna’s

intestines after he was shot in the stomach was not relevant to any contested issue at trial and

that the probative value of this portion of the video was substantially outweighed by the

danger of unfair prejudice. The State contends that the trial court properly denied the

Defendant’s motion and did not abuse its discretion. We agree with the State.

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. Prejudicial evidence

is not excluded as a matter of law. State v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000)

(citing State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim. App. 1993)). The trial court’s decision

to admit or exclude evidence will be overturned on appeal only when there has been an abuse

of discretion. See State v. Samuel, 243 S.W.3d 592, 599 (Tenn. Crim. App. 2007).

In denying the Defendant’s motion to redact the portion of the video evidence

showing Mr. Hanna’s intestines, the trial court noted that the images, “despite being

somewhat inevitably gruesome, are not so graphic as to unnecessarily inflame any trier of

fact of ordinary sensibility. The distance of the cameras from the victims and the relatively

low resolution of the recording assist in abating the inherently horrific nature of this type of

injury.” The trial court found that the jury would be better informed as to the sequence of

events if permitted to view the recording in its entirety and concluded that the probative value

of the evidence was not substantially outweighed by the danger of unfair prejudice.

We have viewed the surveillance video submitted at the trial. Although the angle

produced from camera one shows the Defendant shoot Mr. Hanna in the stomach and Mr.

Hanna convulse, Mr. Hanna’s intestines are not clearly shown. The angles from camera three

and camera five show Mr. Hanna’s intestines protrude shortly after the Defendant shoots him

in the stomach. We note that cameras three and five are the only cameras to capture footage

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of the co-defendant shooting Mr. Rayburn and that although camera seven shows an

obstructed view of the co-defendant standing behind the counter and the Defendant reaching

over the counter, only footage from camera five clearly shows the Defendant and his co-

defendant touching the cash register. The recordings have a relatively low resolution, and

all of the cameras showing Mr. Hanna are mounted on the ceiling and are several feet from

his body.

We agree with the trial court that the video evidence was relevant to inform the jury

of the sequence of events and the Defendant’s actions. The video shows Mr. Hanna and the

other victims directly before, during, and after the Defendant’s crimes. Despite the potential

for prejudice, the footage showing Mr. Hanna’s intestines is short in duration, and the protrusion is

limited in size and is not particularly bloody or overly graphic considering the type of wound

inflicted. We agree with the trial court that the probative value of this evidence was not

substantially outweighed by the danger of unfair prejudice and conclude that the trial court

did not abuse its discretion by admitting the video evidence. The Defendant is not entitled

to relief.

II

The Defendant contends that the trial court erred by denying his motion to strike the

State’s notice of intent to seek a sentence of life imprisonment without the possibility of

parole. He argues that such a sentence constitutes cruel and unusual punishment when

imposed on a person who is intellectually disabled, as proscribed by the Eighth Amendment

to the United States Constitution and article I, section 16 of the Tennessee Constitution. The

State argues that the trial court properly denied the Defendant’s motion because there is no

legal precedent to support the Defendant’s argument. We agree with the State.

A defendant may not be sentenced to death if suffering from an intellectual disability

at the time the first degree murder was committed. T.C.A. § 39-13-203(3)(b) (2010).

Although the death penalty constitutes cruel and unusual punishment with regard to the

intellectually disabled, no court in this state has ever held that a sentence of life

imprisonment without the possibility of parole violates the Eighth Amendment to the United

States Constitution or article I, section 16 of the Tennessee Constitution when applied to an

intellectually disabled defendant. See Van Tran v. State, 66 S.W.3d 790 (Tenn. 2001); see

also Atkins v. Virginia, 536 U.S. 304 (2002).

In denying the Defendant’s motion, the trial court stated:

The Defendant admits that the existing statutory and

caselaw offers no support for his contention, however, he

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proposes that sentencing a mentally retarded person to prison for

the remainder of his life qualifies as cruel and unusual

punishment. While courts have held that the death penalty

constitutes constitutionally impermissible punishment with

regard to the mentally retarded, it has yet to be decided that life

without parole is of such severity as to transgress the protective

boundaries of the Eighth Amendment.

The Defendant argues that because the United States Supreme Court recently held that

a sentence of life imprisonment without the possibility of parole constituted cruel and

unusual punishment when applied to a juvenile offender convicted of a nonhomicide offense,

the trial court should have come to a similar conclusion in this case and struck the State’s

notice of intent to seek a sentence of life imprisonment without the possibility of parole. See

Graham v. Florida, __ U.S. __, 130 S.Ct. 2011 (2010). We disagree. Unlike the defendant

in Graham, this case involves an adult Defendant convicted of murdering two unarmed

persons during a botched robbery attempt. As noted above, nothing in our jurisprudence

suggests that the Defendant’s intellectual disability renders his sentence unconstitutional.

We hold that the trial court did not err by denying the Defendant’s motion. The Defendant

is not entitled to relief.

III

The Defendant contends that the trial court erred by denying his motion to strike the

felony murder aggravating circumstance from the State’s notice of intent to seek a sentence

of life imprisonment without the possibility of parole. He contends that this aggravating

factor was inappropriate because the State used identical proof to establish both the

Defendant’s guilt and the application of the aggravating factor. The State responds that the

trial court properly denied the Defendant’s motion because the felony murder aggravating

circumstance can support a sentence of life imprisonment without the possibility of parole

when a defendant is convicted of felony murder. We agree with the State.

A sentence of life imprisonment without the possibility of parole may be imposed if

the State proves beyond a reasonable doubt that a murder was “knowingly committed,

solicited, directed, or aided by the defendant, while the defendant had a substantial role in

committing or attempting to commit, or was fleeing after having a substantial role in

committing or attempting to commit, any . . . robbery.” T.C.A. § 39-13-204(i)(7) (2006)

(amended 2008, 2009, 2010). The felony murder aggravating circumstance can be used to

enhance a sentence to life imprisonment without parole when a defendant is convicted of

felony murder. State v. Butler, 980 S.W.2d 359, 363 (Tenn. 1998). Tennessee Code

Annotated section 39-13-204 “is unambiguous and contains no restriction upon the use of

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an aggravating circumstance when the aggravator duplicates an element of the offense.” Id.

Although the Defendant argues that the aggravating factor was inappropriate, he cites

no legal authority to support his position and concedes that our courts have previously

decided this issue against him. We conclude that the trial court did not err by denying the

Defendant’s motion. The Defendant is not entitled to relief.

IV

The Defendant contends that the trial court erred by granting the State’s request to

augment the pattern jury instruction on the “heinous, atrocious, and cruel” aggravating

circumstance. He argues that the trial court should not have informed the jury that the

anticipation of physical harm constitutes mental torture because the additional instruction

was not supported by the evidence, the instruction constituted an improper judicial comment

on the evidence, and the pattern jury instruction fully and accurately defined the term

“torture” without the additional instruction. The State contends that the trial court did not

err by augmenting the pattern jury instruction with a clarifying statement of law. We

conclude that although the trial court erred when giving the special instruction, the error was

harmless in light of the whole record.

In criminal cases, the trial court has the duty to charge the jury on all of the law that

applies to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992) (citing

State v. Thompson, 519 S.W. 2d 789, 792 (Tenn. 1975)). Anything short of a complete

charge denies the defendant his constitutional right to a trial by jury. See State v. McAfee,

737 S.W.2d 304, 308 (Tenn. Crim. App. 1987). A jury instruction must be reviewed in its

entirety and read as a whole rather than in isolation. State v. Leach, 148 S.W.3d 42, 58

(Tenn. 2004). “An instruction should be considered prejudicially erroneous only if the jury

charge, when read as a whole, fails to fairly submit the legal issues or misleads the jury as

to the applicable law.” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (citing State v.

Vann, 976 S.W.2d 93, 101 (Tenn. 1998)).

When giving jury instructions, the trial court has a duty to define statutory terms

containing a technical meaning. State v. Raines, 882 S.W.2d 376, 382-83 (Tenn. Crim. App.

1994). Torture is “the infliction of severe physical or mental pain upon the victim while he

or she remains alive and conscious.” State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985).

Causing a victim to anticipate physical harm may constitute mental torture. See State v.

Carter, 114 S.W.3d 895, 904-05 (Tenn. 2003); State v. Nesbit, 978 S.W.2d 872, 886-87

(Tenn. 1998).

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The Tennessee Pattern Jury Instructions define torture using the definition stated in

Williams but do not state what type of mental pain can constitute torture. See T.P.I.- Crim.

7.04(a) (10th ed. 2006). “The proper function of a special instruction is to supply an

omission or correct a mistake made in the general charge, to present a material question not

treated in the general charge, or to limit, extend, eliminate, or more accurately define a

proposition already submitted to the jury.” State v. Cozart, 54 S.W.3d 242, 245 (Tenn. 2001)

(citing Chesapeake, O. & S.W.R. Co. v. Foster, 13 S.W. 694 (1890)).

During the punishment phase of the trial, the trial court instructed the jury that a

sentence of life without the possibility of parole could be imposed if the State proved beyond

a reasonable doubt that Mr. Hanna’s murder was especially heinous, atrocious, or cruel, in

that it involved torture or serious physical abuse beyond that necessary to produce death. The

trial court defined torture as “the infliction of severe physical or mental pain upon the victims

while he or she remains alive and conscious. Anticipation of physical harm to [one’s] self

or a loved one then constitutes mental torture.” (Emphasis added.)

We conclude that the trial court made an incorrect statement of law when it gave the

special instruction. If the jury determined that Mr. Hanna anticipated physical harm, the trial

court’s use of the word “then” effectively directed a verdict that the Defendant tortured Mr.

Hanna. Although the anticipation of physical harm to one’s self or a loved one may

constitute mental torture under appropriate circumstances, it is not a foregone conclusion that

mental torture is present every time a person anticipates harm before it occurs.

Having determined that the trial court erred when giving the special instruction

regarding the “especially heinous, atrocious, or cruel” aggravating circumstance, we must

determine the effect of that error. As noted above, if the jury determined that Mr. Hanna

anticipated physical harm, the instruction effectively directed a verdict that the Defendant

tortured Mr. Hanna. The jury’s finding that the “especially heinous, atrocious, or cruel”

aggravating factor applied was surely influenced by the trial court’s instruction because the

jury is presumed to have followed the instructions of the trial court. See State v. Reid, 164

S.W.3d 286, 346 (Tenn. 2005).

Despite the likelihood that the jury’s finding was influenced by the erroneous

instruction, a “final judgment from which relief is available and otherwise appropriate shall

not be set aside unless, considering the whole record, error involving a substantial right more

probably than not affected the judgment or would result in prejudice to the judicial process.”

T.R.A.P. 36(b). In sentencing the Defendant to life imprisonment without the possibility of

parole for the murder of Mr. Hanna, the jury found two aggravating circumstances

applicable: the “especially heinous, atrocious, or cruel” aggravating circumstance and the

felony murder aggravating circumstance. The jury could properly impose a sentence of life

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imprisonment without the possibility of parole based on the felony murder aggravating

circumstance alone, and it did so when sentencing the Defendant for the murder of Mr.

Estfanous. See T.C.A. § 39-13-204(i). The record reflects no reason why the jury would

have sentenced the Defendant differently for the murder of Mr. Hanna had they not been

instructed on the additional aggravating circumstance or found it inapplicable. We conclude

that although the trial court erred when giving the special instruction, this error was harmless

and did not more probably than not affect the judgment or result in prejudice to the judicial

process. The Defendant is not entitled to relief.

V

The Defendant contends that the trial court erred by rejecting his requested sentencing

instruction regarding the statutory mitigating circumstance that he acted under the substantial

domination of another person. He argues that the instruction should have been given because

he informed the police that the robbery was Mr. Robinson’s idea and that he did not want to

be involved but that he became involved after his mind went “blank.” He also argues that

the instruction was appropriate because the evidence showed that he was intellectually

disabled and susceptible to domination by others. The State contends that the trial court did

not err because no credible evidence supported the Defendant’s claim that he was under the

substantial domination of another person and because the evidence established that the

Defendant freely and voluntarily engaged in the robbery. We conclude that the trial court did

not err by rejecting the Defendant’s requested sentencing instruction.

In criminal cases, the trial court has the duty to charge the jury on all of the law that

applies to the facts of the case. See Harris, 839 S.W.2d at 73. During the punishment phase

of a first degree murder trial, the trial judge shall instruct the jury “to weigh and consider any

mitigating circumstances raised by the evidence at either the guilt or sentencing hearing. . .

.” T.C.A. § 39-13-204(e)(1).

The Defendant relies upon proof of his mental disability and his recorded statement

to Detective Roland to support his claim that he was under the substantial domination of

another person during the robbery. Although the Defendant told Detective Roland that

robbing the store was Mr. Robinson’s idea and initially told Mr. Robinson he did not want

to be involved in the robbery, Detective Roland testified that Mr. Robinson was not involved

in the robbery. He said Mr. Betts and Ms. Alderson admitted their involvement in the

robbery. The indictment reflects that the Defendant, Mr. Betts, and Ms. Alderson, not Mr.

Robinson, were charged with the crimes. The record reflects that Ms. Alderson was the other

masked person involved in the robbery and that Mr. Betts drove the truck used during the

attempted robbery. Furthermore, although Dr. Bishop testified that the Defendant’s desire

to be in the company of others may have caused him to ride to the site of the robbery with

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his co-defendants and that the Defendant would react impulsively if something unexpected

occurred, she did not testify that the Defendant was under the domination of anyone during

the robbery. The record reflects that the person by whom the Defendant claims to have been

controlled during the robbery was not involved with the crimes or indicted. No other

evidence indicated that the Defendant was under the substantial domination of another

person. We conclude that the evidence did not support the mitigating circumstance and that

the trial court did not err by rejecting the Defendant’s requested sentencing instruction. The

Defendant is not entitled to relief.

VI

The Defendant contends that his rights to due process and a fair trial were violated

when the trial court failed to give the jury meaningful guidance or directions as to their

deliberations during the punishment phase of the trial. He argues that the jury should have

been instructed on how to weigh and consider the aggravating and mitigating circumstances,

including an instruction that aggravating circumstances must outweigh mitigating factors in

order to impose a sentence of life imprisonment without the possibility of parole. The State

contends that the trial court’s instructions complied with the requirements of law and that the

instructions enabled the jury to weigh the evidence properly and determine an appropriate

sentence. We agree with the State.

Tennessee Code Annotated section 39-13-207 controls the sentencing for first degree

murder cases in which the State does not seek the death penalty, but is seeking life

imprisonment without the possibility of parole as the maximum punishment, and states:

The sentencing proceeding shall be conducted in accordance

with the provisions of § 39-13-204, excluding references to the

death penalty.

(b) If the jury unanimously determines that no statutory

aggravating circumstance or circumstances have been proven by

the state beyond a reasonable doubt . . . the court shall sentence

the defendant to imprisonment for life.

(c) If the jury unanimously determines that the state has proven

beyond a reasonable doubt one (1) or more of the statutory

aggravating circumstances set forth in § 39-13-204(i), the jury

shall, in its considered discretion, sentence the defendant either

to imprisonment for life without possibility of parole or to

imprisonment for life.

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(d) The jury shall be instructed that, in imposing sentence, it

shall weigh and consider the statutory aggravating circumstance

or circumstances proven by the state beyond a reasonable doubt

and any mitigating circumstance or circumstances.

Tennessee Code Annotated section 39-13-204(f)(2) also states that if a jury unanimously

determines that the State has proven one or more of the statutory aggravating circumstances

beyond a reasonable doubt, the trial judge shall instruct the jury that when choosing between

the sentences of imprisonment for life without the possibility of parole and imprisonment for

life, the jury “shall weigh and consider the statutory aggravating circumstance or

circumstances proven by the state beyond a reasonable doubt and any mitigating

circumstance or circumstances.” Although a jury may not impose a sentence of death unless

the State establishes that the aggravating factors outweigh any mitigating circumstances

beyond a reasonable doubt, no such requirement or jury instruction is required when the

death penalty is not sought. See T.C.A. § 39-13-204(g). The statute “directs that the jury

must ‘weigh and consider’ the aggravating and mitigating circumstances but does not require

the jury to determine that the aggravating circumstances outweigh the mitigating

circumstances by any specific level of proof in order to impose a sentence of life

imprisonment without the possibility of parole.” State v. Guy, 165 S.W.3d 651, 663 (Tenn.

Crim. App. 2004) (citing T.C.A.§ 39-13-204(f)(2)).

Before the jury began their deliberations, the trial court instructed the jury that the

State alleged the felony murder aggravating circumstance with regard to Mr. Estfanous’s

murder, and the felony murder and “heinous, atrocious, or cruel” aggravating circumstances

with regard to Mr. Hanna’s murder. The trial court also instructed the jury that it should

consider any mitigating circumstances raised by the evidence, including: (1) the capacity of

the Defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the

requirements of the law was substantially impaired as a result of mental disease or defect; (2)

the Defendant lacked substantial judgment in committing the offense because of his youth;

(3) the Defendant was mentally retarded; (4) the Defendant cooperated with the police by

admitting his involvement; (5) the Defendant attended twenty schools while growing up; and

(6) the Defendant did not receive the intervention or resources needed to assist his significant

educational, personal, and family problems. The trial court also instructed the jury that

If you unanimously determine that a statutory aggravating

circumstance or circumstances have been proved by the State

beyond a reasonable doubt, you shall, in your considered

discretion, sentence the defendant either to imprisonment for life

without possibility of parole or to life imprisonment. In

choosing between the sentences . . . you shall weigh and

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consider the statutory aggravating circumstance or

circumstances proven by the state beyond a reasonable doubt

and any mitigating circumstance or circumstances.

The jury was instructed that it had to use its considered discretion and weigh and

consider the aggravating and mitigating circumstances before imposing a sentence. The jury

was not required to determine that the aggravating circumstances outweighed the mitigating

circumstances by any specific level of proof in order to impose a sentence of life

imprisonment without the possibility of parole. We conclude that the jury instructions met

the requirements of Tennessee Code Annotated sections 39-13-204(f)(2) and 39-13-207 and

that the jury was properly instructed with regard to their consideration of the aggravating and

mitigating circumstances when determining an appropriate sentence. The Defendant is not

entitled to relief.

VII

The Defendant contends that the evidence was insufficient to establish the “heinous,

atrocious, and cruel” aggravating circumstance as to Mr. Hanna because no evidence

established that the Defendant tortured or inflicted serious physical abuse after he shot Mr.

Hanna once. The State contends that the evidence was sufficient because it established that

Mr. Hanna suffered the anticipation of death in the moments before he was shot and then

suffered physical and emotional pain after he was shot. We hold that the evidence was not

sufficient to support this aggravating circumstance.

“In determining whether the evidence supports a jury’s finding of a statutory

aggravating circumstance, the proper inquiry for an appellate court is whether, after

reviewing the evidence in the light most favorable to the State, a rational trier of fact could

have found the existence of the aggravating circumstance beyond a reasonable doubt.” State

v. Suttles, 30 S.W.3d 252, 262 (Tenn. 2000). A sentence of life imprisonment without the

possibility of parole may be imposed if the State proves beyond a reasonable doubt that a

murder was “especially heinous, atrocious, or cruel, in that it involved torture or serious

physical abuse beyond that necessary to produce death.” T.C.A. § 39-13-204(i)(5). As noted

above, torture is “the infliction of severe physical or mental pain upon the victim while he

or she remains alive and conscious.” Williams, 690 S.W.2d at 529. Causing a victim to

anticipate physical harm may constitute mental torture. See Carter, 114 S.W.3d at 904-05;

Nesbit, 978 S.W.2d at 886-87. Serious physical abuse has been defined as follows:

The word “serious” alludes to a matter of degree. The abuse

must be physical, as opposed to mental, and it must be “beyond

that” or more than what is “necessary to produce death.”

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“Abuse” is defined as an act that is “excessive” or which makes

“improper use of a thing,” or which uses a thing “in a manner

contrary to the natural or legal rules for its use.”

State v. Odom, 928 S.W.2d 18, 26 (Tenn. 1996) (quoting Black’s Law Dictionary 11 (6th ed.

1990)).

The record reflects that after the Defendant shot Mr. Estfanous, the Defendant and his

co-defendant spent a few seconds attempting to open the cash register before the Defendant

turned to Mr. Hanna, fired his shotgun once, and ran from the store. Mr. Rayburn testified

that after the Defendant shot Mr. Estfanous, either the Defendant or the other masked person

stated that they would kill everyone in the store. The Defendant did not physically harm Mr.

Hanna after firing the single shot. Although causing a victim to anticipate physical harm can

constitute mental torture, we note that the cases in which our courts have concluded that

mental torture was present did not involve a threat of harm quickly followed by a single fatal

blow. See, e.g., Carter, 114 S.W.3d at 904 (finding mental torture applicable when the

defendants broke into the victim’s home at gunpoint, forced the victim in a closet before

raping the victim’s wife and ransacking their home, and then murdered the victim and his

wife); Nesbit, 978 S.W.2d at 886-87 (finding mental torture applicable when the victim was

burned and beaten over a six-hour time period in her own home while four of her young

children were present); State v. Hodges, 944 S.W.2d 346, 357-58 (Tenn. 1997) (finding

mental torture applicable when the victim was handcuffed, bound, and placed on a bed with

a pillow over his head as the defendants ransacked his home, discussed whether they should

kill the victim, and then suffocated the victim). Despite the fact that our courts have not

expressly stated that the harm must be anticipated for any particular length of time, to find

mental torture applicable in this case would render almost every fatal shooting quickly

preceded by a physical threat to be torture. We hold that the evidence was not sufficient to

support a finding that Mr. Hanna’s murder involved torture or serious physical abuse beyond

that necessary to produce death.

The Defendant argues that because the evidence was insufficient to support the

“especially heinous, atrocious, or cruel” aggravating circumstance, his sentence on this

conviction should be reduced from life imprisonment without the possibility of parole to life

imprisonment. We disagree. In addition to this aggravating circumstance, the jury also

found the felony murder aggravating circumstance applicable to the Defendant’s conviction

for murdering Mr. Hanna. As previously noted, a sentence of life imprisonment without the

possibility of parole may be imposed if the State proves beyond a reasonable doubt that a

murder was knowingly committed while the Defendant committed or attempted to commit

a robbery. T.C.A. § 39-13-204(i)(7). It is not disputed that the Defendant murdered Mr.

Hanna during the attempted commission of an especially aggravated robbery. We hold that

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although the evidence was insufficient to support the “especially heinous, atrocious, or cruel”

aggravating circumstance, a sentence of life imprisonment without the possibility of parole

was properly imposed pursuant to the felony murder aggravating circumstance. The

Defendant is not entitled to relief.

VIII

The Defendant contends that the trial court erred by imposing partially consecutive

sentences. He argues that consecutive sentences are improper because the court made no

reference to any of the statutory factors upon which consecutive sentences may be imposed

and a sentence of life imprisonment without the possibility of parole plus twenty years is not

the least severe measure necessary to achieve the purposes for which the sentence was

imposed. The State concedes that the trial court failed to state proper criteria under

Tennessee Code Annotated section 40-35-115 (2010) to justify imposing consecutive

sentences, but it contends that a partially consecutive sentence was proper because the

Defendant is a dangerous offender whose behavior indicates little or no regard for human life

and no hesitation about committing a crime in which the risk to human life is high. We

conclude that although the trial court failed to make the findings required by law to impose

consecutive sentences, a partially consecutive sentence is appropriate.

Appellate review of sentencing is de novo on the record with a presumption that the

trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d) (2010). As the

Sentencing Commission Comments to these sections note, the burden is now on the

appealing party to show that the sentencing is improper. This means that if the trial court

followed the statutory sentencing procedure, made findings of fact that are adequately

supported in the record, and gave due consideration and proper weight to the factors and

principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb

the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789

(Tenn. Crim. App. 1991).

However, “‘the presumption of correctness which accompanies the trial court’s action

is conditioned upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances.’” State v. Carter, 254 S.W.3d

335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). In

this respect, for the purpose of meaningful appellate review, the trial court must place on the

record its reasons for arriving at the final sentencing decision, identify the mitigating and

enhancement factors found, state the specific facts supporting each enhancement factor

found, and articulate how the mitigating and enhancement factors have been evaluated and

balanced in determining the sentence. State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see

T.C.A. § 40-35-210(e) (2010).

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Also, in conducting a de novo review, we must consider (1) any evidence received at

the trial and 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, (5) any mitigating or statutory enhancement factors, (6) statistical information

provided by the administrative office of the courts as to sentencing practices for similar

offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)

the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,

823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

In imposing a sentence within the appropriate range of punishment for the defendant:

[T]he court shall consider, but is not bound by, the

following advisory sentencing 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.

T.C.A. § 40-35-210 (2010). From this, “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].’” Carter, 254 S.W.3d at 343 (quoting T.C.A. §

40-35-210(d)).

The determination of concurrent or consecutive sentences is a matter left to the

discretion of the trial court and should not be disturbed on appeal absent an abuse of

discretion. State v. Blouvet, 965 S.W.2d 489, 495 (Tenn. Crim. App. 1997). Consecutive

sentencing is guided by Tennessee Code Annotated section 40-35-115(b), which states in

pertinent part that the court may order sentences to run consecutively if it finds by a

preponderance of the evidence that:

(2) The defendant is an offender whose record of criminal

activity is extensive; or

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...

(4) The defendant is a dangerous offender whose behavior

indicates little or no regard for human life, and no hesitation

about committing a crime in which the risk to human life is

high; or

...

(6) The defendant is sentenced for an offense committed while

on probation.

The imposition of consecutive sentences on an offender found to be a dangerous offender

also requires “the finding that an extended sentence is necessary to protect the public against

further criminal conduct by the defendant and that the consecutive sentences must reasonably

relate to the severity of the offenses committed.” State v. Wilkerson, 905 S.W.2d 933, 939

(Tenn. 1995). Only one of the criteria stated in Tennessee Code Annotated section

40-35-115 need exist to support consecutive sentencing. State v. Mickens, 123 S.W.3d 355,

394 (Tenn. Crim. App. 2003).

After the jury sentenced the Defendant to life imprisonment without the possibility of

parole for each of the felony murder convictions, the trial court held a separate sentencing

hearing for the Defendant’s attempted first degree murder and attempted especially

aggravated robbery convictions. At the sentencing hearing, the State introduced the

presentence report. In the report, the Defendant stated that he used marijuana and cocaine

daily, beginning at the age of fifteen and continuing until the time of his incarceration. The

Defendant also stated that he was expelled from McGavock High School for fighting. The

report reflects that the Defendant has previous convictions for reckless driving, driving with

a suspended license, criminal impersonation, theft of property valued at more than $500 but

less than $1000, and casual exchange of drugs. After being convicted of theft of property

on July 3, 2005, the Defendant was sentenced to eighteen months’ probation. The

presentence report reflects that the Defendant violated the terms of his probation twice and

that he was on probation when he committed these felonies. The Defendant submitted

documents listing the schools he attended and an assessment of his special needs and

recommendations for treatment. The Defendant also apologized to the victims’ families.

The trial court found that the following enhancement factors applied: (8) The

Defendant, before trial or sentencing, failed to comply with the conditions of a sentence

involving release into the community; (10) The Defendant had no hesitation about

committing a crime when the risk to human life was high; and (13) The Defendant was

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released on probation at the time he committed these felonies. See T.C.A. § 40-35-114

(2010). The trial court found no mitigating factors applicable. In determining that the

twenty-year sentence for attempted first degree murder should run consecutively to the

sentences for felony murder, the trial court stated:

I might also point out that the co-defendant in this matter

has heretofore been sentenced to life imprisonment with 15

years consecutive. It is the opinion of this Court that [the

Defendant] was in fact the leader of the crimes and that he did,

in fact, commit those murders. He was the trigger man in those

murders. Certainly his sentence should be in excess of the

sentence that was received by the co-defendant. That’s the

judgment of the Court.

Although the trial court’s finding that the Defendant was a leader in the commission

of the offense could be used as an enhancement factor, it was not a proper factor under

Tennessee Code Annotated section 40-35-115 to justify imposing consecutive sentences. See

T.C.A. § 40-35-114, -115. The trial court’s finding that he was the “triggerman” and

deserved more punishment also was not a proper factor to justify imposing consecutive

sentences. Despite the trial court’s reliance on these improper criteria, we note that the trial

court found as an enhancement factor that the Defendant was released on probation at the

time he committed these felonies, a proper factor upon which the court could order the

Defendant’s sentences to run consecutively. See T.C.A. § 40-35-115(b)(6). The Defendant

does not dispute that he was on probation at the time of the offenses. Furthermore, the record

reflects that the Defendant is a dangerous offender whose behavior indicates little or no

regard for human life and no hesitation about committing a crime in which the risk to human

life is high, that an extended sentence is necessary to protect the public against further

criminal conduct by the Defendant, and that consecutive sentences reasonably relate to the

severity of the offenses committed. See Wilkerson, 905 S.W.2d at 939. The Defendant

entered the store and murdered Mr. Estfanous almost immediately, before Mr. Estfanous

could attempt to open the cash register. The Defendant proceeded, without provocation, to

murder Mr. Hanna as he lay defenseless on the floor. The Defendant has multiple previous

convictions and continued to violate the law when placed on probation. This evidence

supports a finding that the criteria provided in Tennessee Code Annotated section

40-35-115(b)(4), -115(b)(6), and Wilkerson were applicable in the Defendant’s case and that

consecutive sentencing was proper.

With regard to the Defendant’s claim that the sentence is not the least severe measure

necessary to achieve the purposes for which his sentence was imposed, we note that the

jury’s sentencing the Defendant to life imprisonment without the possibility of parole reflects

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that the sentence was imposed to ensure that the Defendant not be released from prison

during his lifetime. A partially consecutive sentence furthers this purpose and ensures that

the Defendant will not be released. We conclude that although the trial court failed to make

the findings required by law to impose consecutive sentences, a partially consecutive

sentence is appropriate. Furthermore, we hold that in light of the facts in this case, the

Defendant’s sentences were appropriate and that they were not imposed arbitrarily. See

T.C.A. § 39-13-207(g).

In consideration of the foregoing and the record as a whole, we affirm the judgments

of the trial court.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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