State of Tennessee v. James Todd

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 2, 2010

STATE OF TENNESSEE v. JAMES TODD

Direct Appeal from the Criminal Court for Shelby County

No. 07-00075 James M. Lammey, Jr., Judge

No. W2009-01475-CCA-R3-CD - Filed January 12, 2011

Defendant-Appellant, James Todd, was convicted by a Shelby County Jury of one count of

attempted first degree murder, a Class A felony, and one count of aggravated assault, a Class

C felony. Todd received a twenty-five-year sentence at thirty percent for the attempted first

degree murder conviction and a consecutive ten-year sentence at thirty-five percent for the

aggravated assault conviction, for an effective sentence of thirty-five years in the Tennessee

Department of Correction. On appeal, Todd argues that (1) the trial court erred in denying

his motion to suppress his statement; (2) the trial court erred in allowing the victim to testify

at trial that she previously identified Todd as the perpetrator at a prior hearing; (3) the trial

court erred in admitting unauthenticated and unfairly prejudicial photographs at trial; (4) the

trial court erred in adding language to the jury instruction on duress; (5) the evidence was

insufficient to support his convictions; and (6) the trial court erred in imposing an excessive

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

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D AVID H. W ELLES

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

Robert W. Jones, District Public Defender; J. Mark Alston, and Michael J. Johnson, Assistant

Public Defenders, Memphis, Tennessee, for the Defendant-Appellant, James Todd.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilbur, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Stacey M. McEndree, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

Suppression Hearing. Robert Wilkie, a detective with the Memphis Police

Department, testified that in June 2006 he was assigned to the case involving the attack of

Paula Fowler and her three-year-old son. Detective Wilkie stated that Lieutenant Mark

Mitchell of the West Memphis Police Department notified him that Todd, the Defendant-

Appellant, was willing to talk to him regarding the case.

On August 22, 2006, Detective Wilkie drove to the West Memphis Police Department

and observed Todd standing at the front of the station smoking a cigarette. He asked if Todd

would be willing to come the Memphis Police Department so that he could ask him some

questions, and Todd agreed. Todd said that he was concerned about not having a ride home

to West Memphis, and Detective Wilkie assured him that he would have a ride back home

if he needed one. Todd rode in the front seat of Detective Wilkie’s unmarked police car back

to Memphis and was not handcuffed.

Upon arriving at the Memphis Police Department, Detective Wilkie took Todd to an

interview room on the eleventh floor. Detective Wilkie and Todd sat in silence for

approximately five or ten minutes until Lieutenant Miller entered the room. At that point,

Detective Wilkie did not immediately advise Todd of his Miranda rights. Detective Wilkie

first asked Todd if he had known Charles Fowler. Todd explained that he had known

Charles because he was a friend of Charles’s brother, Sam. He said that he did not know

what had happened to Charles’s family other than the fact that Charles had committed

suicide. Detective Wilkie testified that Todd was not under arrest and was free to leave at

that point during the interview. He further testified that Todd never stopped talking and

never informed him that he wanted to be taken home to West Memphis.

During the interview, Detective Wilkie informed Todd that Charles Fowler’s wife,

Paula Fowler, and their three-year-old son had been attacked, and his name had “come up in

the investigation.” He showed Todd some photos from the crime scene, which included

broken bricks and blood on the walls and the floor. He asked Todd to consent to give him

a DNA sample so that he could be eliminated as a suspect. Todd initially refused to give a

DNA sample. However, when Detective Chatman walked into the room with a warrant to

obtain a sample of Todd’s DNA, Todd “almost simultaneously” consented to the DNA

sample. Detective Chatman served him with the warrant, and Todd signed the consent form

to provide a DNA sample. Detective Wilkie said that they took a break, and he asked Todd

if he needed anything to eat or drink or if he needed to use the restroom. During this fifteen-

minute to twenty-minute break, Detective Wilkie said that Todd was not handcuffed or

shackled. He also said that he recalled that the door to the interview room was open.

Following the break, Detective Wilkie provided Todd with an advice of rights form

regarding his Miranda rights. Todd read this form aloud and signed it. Todd also indicated

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that he understood his rights and wished to talk to the officers. Detective Wilkie and

Lieutenant Mark Miller, who was present, also signed the form. Detective Wilkie informed

Todd that they were giving him an opportunity to tell them what happened before the DNA

results came back because once his DNA linked him to the crime they would not ask him any

more questions about what happened. Todd immediately responded, “Well, how much time

do I get?” Detective Wilkie told Todd that sentencing was “lawyer stuff” that the officers

did not determine. Then Todd, who was still holding the crime scene photographs, dropped

his head and said, “Okay, I did it.” Detective Wilkie asked Todd to tell him what happened.

During his verbal statement, Todd never stated that he wanted to stop talking and never

indicated that he wanted to leave. After Todd gave the verbal statement, Lieutenant Miller

left the interview room. Detective Chatman and Detective Wilkie were present when Todd

subsequently provided his formal, written statement. The written statement, which consisted

of Detective Wilkie typing his questions and Todd’s answers, started at 12:49 p.m. and was

read and signed by Todd at 1:40 p.m. During this time period, Detective Wilkie stated that

he never made any threats or promises to Todd in exchange for his statement. In addition,

he stated that Todd never asked to speak with an attorney during the interview process.

Detective Wilkie said that Todd was not under arrest at the time that he and Todd signed the

advice of rights form; however, Todd was under arrest after he gave his statement of

admission. The first time that Todd was handcuffed or restrained in any way was after he

had signed his written statement and as the officers were preparing the charging documents.

Detective Wilkie stated that Todd never indicated that he did not understand what was

happening. In addition, he stated that Todd never told him that somebody else had threatened

to hurt him if he did not commit the offenses. Detective Wilkie said that if Todd had never

talked to him about what happened, he would have made sure that Todd was taken back to

West Memphis. Detective Wilkie said that no tape or video recording was made of Todd’s

statement in accordance with police policy.

Detective Jerry Chatman testified that he assisted Detective Wilkie in taking Todd’s

typewritten statement on August 22, 2006. He was present during Todd’s questioning and

observed Detective Wilkie typing his questions and Todd’s answers for the written statement.

Detective Chatman said that he also retrieved a search warrant to obtain a sample of Todd’s

DNA. He stated that the only people present were Todd, Detective Wilkie, and himself at

the time that the written statement was being typed. Detective Chatman said that Todd’s

statement was taken in a small interview room and that Todd was not handcuffed or

restrained in any way. He said that Todd never indicated that he did not understand his

Miranda rights prior to giving his written statement. He also said that Todd never said that

he wanted to stop talking during the written statement. He further stated that he and the other

officers never threatened or promised Todd anything during the interview process and that

Todd never asked for an attorney. Detective Chatman stated that he observed the entire

written statement and saw Todd read, initial, and sign the statement.

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Todd testified that on August 22, 2006, a West Memphis police officer informed him

that a Memphis detective wished to speak with him. Todd said that he went to the West

Memphis Police Department and approximately thirty or forty minutes later Detective Wilkie

arrived and asked him if he was willing to ride over to the Memphis Police Department to

talk to him. Todd agreed, and Detective Wilkie said that he would make sure that he had a

ride back to West Memphis if he needed one. Todd said that he did not feel as though he

were under arrest at the time that he left West Memphis with Detective Wilkie.

Todd stated that when they arrived in the interview room at the Memphis Police

Department, the officers “shackled” his right leg to the floor prior to any questioning.

Detective Wilkie told him that this restraint was police procedure. Initially, he and Detective

Wilkie were in the interview room alone, and Detective Wilkie showed him some

photographs. Detective Wilkie then left to get Todd a cigarette and returned with two more

officers, including Detective Chatman. The officers asked Todd for a blood sample, which

he initially refused. However, once the officers returned with a warrant for a DNA sample,

Todd consented to provide a DNA sample.

Todd said Detective Wilkie asked him if he had known Charles Fowler, and Todd

responded that he had known Charles through Charles’s brother, Sam Fowler. Todd said that

Detective Wilkie did not advise him of his rights at that point. Todd said that other than

knowing Charles Fowler through Sam, he “didn’t know nothing.” Todd acknowledged that

he never told Detective Wilkie that he did not want to talk to him about Charles Fowler.

Todd stated that Detective Wilkie took a break and then came back in the interview

room with Detective Chatman. The detectives began asking Todd if he knew Charles

Fowler’s wife and son, and Todd responded that he did not know them. Todd said that the

detectives told him that if he would not agree with them that he would “get a hundred years

from the judge” and that his statement “could help” him regarding sentencing. Todd told the

detectives that he did not know anything about the case.

Detectives Wilkie and Chapman took a break. When they returned, they were

accompanied by another officer who obtained the DNA sample from Todd. Todd said that

the detectives never told him that he had the right to remain silent or the right to an attorney.

However, Todd admitted that he agreed to speak with Detectives Wilkie and Chapman.

Todd claimed that he did not see the advice of rights form until after he was arrested.

Also, Todd said that he was unsure whether he signed the advice of rights form before or

after he gave the formal, written statement. Todd acknowledged that he provided the words

that were in his written statement. He further acknowledged that Detective Wilkie typed his

question and then typed Todd’s answer to that question. Todd said that he was able to read

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the question and his answer as Detective Wilkie typed it. He said that he did not read the

statement before he signed it because he had given “them the statement already.” Todd said

that he was not told he was under arrest until after he gave his statement. He claimed his

Miranda rights were never read aloud to him prior to him giving his statement. He said that

he never asked for a lawyer because “he never had that opportunity.” He also claimed that

he was never told that he had a right to an attorney.

Todd stated that his leg was shackled for the entire interview process except for when

he asked to use the bathroom. Detective Wilkie and Chapman and another officer took him

to the restroom and shackled his leg again when he was returned to the interview room.

Todd acknowledged that the advice of rights form informed him that he was under arrest, that

he had a right to a lawyer and that if he did not have money, an attorney would be appointed

for him, and that everything he said could be used against him in a court of law. However,

Todd claimed that he was not advised of these rights until after he had given his statement.

However, Todd acknowledged that he had been arrested before and had been advised of his

rights in those previous, unrelated cases.

At the conclusion of the hearing, the trial court found Todd’s testimony to be

“unbelievable” and “totally incredible.” It did not believe that Todd was shackled to the

floor in the interview room. The court also found that Todd gave his statement freely and

voluntarily and that it saw nothing in the proof that Todd had ever indicated that he wanted

to speak with an attorney. For all of the aforementioned reasons, the trial court refused to

suppress Todd’s statement.

Trial. Sandra Waldo testified that on June 18, 2006, she was dating Charles Fowler,

and they had a sixteen-month-old child together. Waldo stated that she and Charles 1 had

been dating for four years at that time, and they lived together at the Ridge Apartments in

West Memphis. As of June 18, 2006, Waldo, Charles Fowler, and their son had been living

at their apartment in West Memphis for approximately one month. Waldo said that she

discovered that Charles was married shortly after they started dating. However, she

continued to date him because he told her that he did not consider himself married since his

wife refused to give him a divorce.

Waldo said that she was angry at Charles the week of June 18, 2006, because he was

never home. On Saturday, June 17, 2006, the day before Father’s Day, Waldo went into her

living room and saw Charles and another man, who she had never met, sleeping on the floor

and the couch. Waldo woke Charles, took her son outside to play, and saw Charles and the

1

W e will occasionally refer to Charles Fowler, Paula Fowler, and Ashley Fowler by their first names in order

to easily distinguish them in this opinion. W e mean no disrespect by this practice.

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other man leave the house about ten or fifteen minutes later. She said that the man that was

in her living room on June 17, 2006, “could be” Todd, the Defendant-Appellant in this case.

Waldo said Charles and Todd returned to the apartment for lunch. Todd was playing

a game with her son while Charles ate a sandwich. Charles introduced Waldo to Todd, and

she “assumed they were friends.” She said they stayed at the apartment for less than an hour

before leaving in Charles’s truck.

Charles returned to their apartment alone at approximately 9:00 or 10:00 p.m. that

night and immediately went to bed. She did not recall seeing Charles on Sunday, Father’s

Day. Waldo learned that Charles Fowler was deceased on Monday at around 5:00 p.m.

Anthony Gossett testified that he lived “[r]ight around the corner” from Charles

Fowler and Waldo. He said that he was aware that Charles was an “[o]fficer.” He recalled

seeing Charles and another man around noon on June 18, 2006 at Gossett’s home. He

stopped to talk with them for a few minutes, and the man with Charles Fowler asked him for

a cigarette. Gossett said that he was sure that Todd was the man with Charles that day

because he knew “him by the eyes.” Todd asked him if he could step inside his house to use

the restroom while Gossett got the cigarette for him. Gossett said he “kind of got spooked”

and told him to urinate on the side of his house. He did not want to let Todd inside his home

because he did not know him and because he was with Charles, who was a police officer.

Gossett also noticed that Charles had a large screwdriver under his shirt. He talked to the

two men for a few minutes before Charles indicated to Todd that it was time to leave. Then

Charles and Todd walked down the street towards Charles’s home.

Morgan Myers, who was eleven years old at the time of the crimes in this case,

testified that she lived on a street “right across the street” from the victims’ house on Ruskin

Street. On the afternoon of June 19, 2006, Myers stated that she was driving to the grocery

store with her parents. As they were leaving, Myers saw “a man walking up the driveway”

of Paula Fowler’s house across the street. She said that she noticed the man because “he was

wearing a jacket, and [she] figured it was a little hot outside to be wearing a jacket.” The man

“had his hands in his pocket[s], and he was looking down.” She also noticed that the man,

who was alone, was walking “rather slow” and “hesitantly.” Later that night, Myers saw

“police cars and ambulances and a crowd at the house.” Myers then identified Todd as the

man she saw walking up the driveway of Paula Fowler’s home.

Paula Fowler, one of the victims in this case, testified that she had been married to

Charles Fowler for five years, and they had a son, who was three years old in June 2006. She

said that Charles was an officer with the West Memphis Police Department. At the time of

the offense, Paula and their son were living on Ruskin Road in Memphis, and she and

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Charles had been separated for four months. Paula stated that approximately one week

before Father’s Day 2006, Charles told her that he had been deployed to Iraq. She said that

she “took him to the Armory in West Memphis because [Charles] said he was going to be

deployed.” Charles left his 2003 Chevy Avalanche at her house at the time.

She saw Charles again at his mother’s house two days before Father’s Day as she was

bringing their son to spend some time with Charles Fowler’s mother. As she was driving

down the street, she saw Charles working on his brother’s car. She said she “was shocked

because we made eye contact and he . . . tried to run and hide underneath the car.” Paula said

that she was not aware that Charles was still in the country. She “called him a liar” and then

left. She explained that she was “[u]pset” and “hurt” because of his actions. When she

arrived at home, she “took a hammer[] and . . . banged the front of his truck.” She then

parked the truck “around the corner” because she did not want it in her yard. Shortly

thereafter, the truck was gone. Paula said she never saw Charles Fowler again.

On Saturday, June 18, 2006, the day before Father’s Day, Paula said that she took her

son over to his paternal grandmother’s house for her to keep him until Sunday. Paula said

that when she married Charles Fowler, she was aware that Charles had a daughter, Ashley

Fowler, from a previous relationship. However, she discovered that Charles had another son,

who was two years old, the Friday before the offense occurred. On Sunday at 4:00 p.m.,

Paula visited with Charles’s mother for about thirty minutes and then took her son to her

father’s house to celebrate Father’s Day. After seeing her father, she and her son went home.

Upon arriving at her house, Paula noticed that the latch on her side gate was “undone.” She

did not pay much attention to this because her son would sometimes play with the latch. She

picked up her son, who was asleep, and went in the front door of her home. She walked

upstairs to her son’s room and placed him on his bed. As she was headed downstairs to lock

the front door, she saw a man, who she later identified as Todd, wearing a mask and white

surgical gloves with the fingers cut out standing behind the door to her son’s room. Todd’s

mask consisted of a nylon stocking that covered “his mouth to his chin and tied in the back.”

However, the mask did not cover his nose, eyes, or forehead. She stated that she had never

seen Todd before and recalled that he was wearing a “striped white shirt” and white shorts,

white socks, and white tennis shoes. She said that it was still light outside, and she was able

to see Todd clearly because she was only a couple of feet away from him. Todd did not say

anything to her but blocked the doorway so she could not run out of the door. Paula started

screaming, and Todd “had a big landscaping stone in his hand, and he . . . hit [her] in the

back of [her] head.” She said that the stone was approximately ten inches in diameter. As

Todd was hitting her in the back of the head, Paula was “face-to-face” with him. Paula said

that Todd hit her without stopping “approximately forty times.” She was “crying and

screaming and trying to protect [her] head.” Paula said that she was very afraid that she was

going to die in front of her son. In addition, “[b]lood was dripping and running down [her]

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hair – down [her] back – blood [was] just running everywhere.” At the time, Paula could see

her child “crying [and] reaching out to [her].” She said that the attack lasted for

approximately five minutes. She said that she never heard Todd’s voice, and she never heard

anyone else’s voice in her house that day, other than her son’s crying. She also never saw

or heard anyone else in the house during the attack.

Paula said that her son woke up during the attack and began to tug on Todd’s leg.

Todd stopped hitting Paula and hit her son three times in the head. After the third hit, her son

fell to the ground. After her son fell, she said that she wanted to jump on Todd’s back, but

she was too weak. Paula fell to the floor herself and said, “I’m dying – I’m dying.” Todd

did not react. She stayed on the floor with her eyes “semi closed” so that her eyes appeared

closed, but she could still see Todd in the room. Paula said that as she was pretending to be

dead, Todd kneeled down and put his hand on her back for a few seconds. Todd then picked

up the rock fragments scattered on the ground and she heard him walking down the stairs and

out the back door. Paula heard only one set of footsteps. Once she was sure Todd had left

the house, she described what happened next:

I got up. I looked over at my son. I wanted to pick him up, but I knew

I didn’t have the strength to pick him up. And so I went downstairs. And as

I was going down the stairs, I touched my hair, and I could just feel all the

blood dripping down my hair. And I just touched it and felt all of the blood

just running down . . . and I . . . ran out [of] the door[.]

Paula exited her front door, and she fell down in the grass by her mailbox. Her neighbor,

who was standing on his front porch, ran over to help her. A few minutes later, her son ran

out of the front door yelling, “Mommy, Mommy.” The child was bleeding from his head,

and he had blood on his clothes and shoes.

Following the incident, Paula woke up in the intensive care unit of the hospital. She

had a cast on her left arm, and her head was “bandaged up.” She stayed in the hospital for

four days and had follow-up care for at least six months. Once her bandages were removed,

she noticed that her head had been shaved, and she “had stitches and staples . . . all over [her]

head [in] different places.” She also had a scar on her left eye.

Paula first saw her son, who was also in the intensive care unit, two days after the

incident. She said that her son had stitches in the top, middle, and very back of his head, and

one of his eyes was bloodshot.

In June, a detective showed her a photo spread containing several individuals.

However, she did not identify anyone in that first set of photographs as the perpetrator. Paula

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later discovered that Todd’s photograph was not in the first photo spread. Paula was shown

a second photo spread in August. She stated, “One [of the photographs in the second photo

spread] looked familiar, but I wasn’t quite sure at that point. One stood out more than the

other ones[,] but I wanted to be 100 percent sure that [the individual in the photograph] was

the person [who committed the crimes].” She was unsure because the person in the photo

spread had facial hair, and her attacker did not have facial hair at the time of the offense.

On November 9, 2006, Paula appeared in General Session court for a hearing related

to this case, although she did not testify. Defense counsel then objected to this line of

questioning because her testimony constituted “an in-court identification.” Once the trial

court determined that this testimony was admissible, Paula continued her testimony and

stated that she identified Todd as the perpetrator at the November 9, 2006 hearing in General

Sessions in which she did not testify. She said that no one pointed Todd out to her or

identified him in any way during the hearing. Upon seeing Todd, she felt “angry” and

“kn[e]w exactly who he was.” She stated that she knew Todd was her attacker because of

“[h]is face. His features. His eyes – especially his eyes. His nose. His chin. His facial

structure.” She acknowledged that she was not comfortable making an identification from

a two-dimensional photograph; however, she said that once she saw him in person at the

hearing, she was “[o]ne hundred percent” sure that Todd was her attacker. She later saw

Todd at another pre-trial hearing, in which she testified and identified him as her attacker.

She also identified Todd as her attacker at trial.

Jimmy Stokes testified that he lived across the street from Paula Fowler and her son

in June 2006. On the Friday night before Father’s Day, Stokes saw Paula hitting Charles

Fowler’s truck with a hammer while talking on her cell phone. Approximately forty-five

minutes later, Charles Fowler arrived and parked his truck in a “cove” near Stokes’s home.

Charles then walked away from his truck and returned alone in a “dark blue Bonneville” with

tinted windows. He looked at his truck again and appeared “real[ly] angry.” Stokes said that

Friday night was the last time that he saw Charles’s truck in his neighborhood.

Stokes next saw Charles Fowler and another man, who had never seen before, on

Saturday. He said that Charles and the man went into Paula Fowler’s house for a short time

at 10:00 or 11:00 a.m.. He said that they left for a short time and then they came back and

re-entered the house. Then they left the house a second time. Both times, Charles Fowler

and the man were riding in a Pontiac Bonneville. Stokes said that Paula Fowler and her son

were not present during these two incidents.

Stokes said that on the following day, which was Father’s Day, he was preparing to

eat dinner when he saw Paula Fowler and her son arrive at her house and go inside.

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A short time later, Stokes’s wife noticed that Paula had fallen down in her front yard. Stokes

and his oldest son immediately walked over. He said Paula Fowler was “very bloody” with

blood on her head and her side. When they reached her side, she mumbled, “He hurt my

baby – can you help my baby.” Stokes said that he did not want to go into the house, but a

few minutes later Paula’s son came to the front door, and Stokes encouraged him to come

outside. He said that the child also had blood from his head to his bottom. Stokes instructed

his wife to call 911.

Dr. George Maish, III, a trauma surgeon at The Med hospital in Memphis, testified

that he was working when Paula Fowler arrived. Paula was “admitted with complex stellate

laceration to the back of her skull with part of the scalp missing.” A Cat Scan later revealed

that she also had a “subarachnoid hemorrhage,” which means that she had some bleeding on

the surface of the brain.” Dr. Maish said that Paula had a six-centimeter laceration on the

back of her head, a three-centimeter laceration nearby, and a small laceration over her eye.

She also had a “stellate” or “star shaped” laceration, which consisted of a five-centimeter

laceration with a three-centimeter laceration through it. Paula had also sustained a hand

fracture which did not require surgery. The hospital admitted Paula in critical condition.

Ashley Fowler, Charles Fowler’s seventeen-year-old daughter from a prior

relationship, testified that her father died on June 19, 2006. She stated that, at the time of her

father’s death, he was married to Paula Fowler and that he and Paula had one child, who was

three years old. Ashley stated that her father “had different lives that he lived” with different

women other than his wife. She confirmed that her father’s girlfriend at the time that he died

was Sandra Waldo and that her father and Waldo had a child together. Ashley said that she

had seen Todd with her father at her grandmother’s house and in her father’s truck. Her

father introduced Todd to her as “E.” She said that there did not seem to be any animosity

between her father and Todd. However, she said, “[I]t seem[ed] like they were . . . plotting

something maybe.” She added, “I remember one of them saying something about doing

something for me or something like that.” She stated that she saw Todd in her father’s truck

“not that long before I saw him on the news again, and that’s when I – it kind of dawned on

me that [he] was the same person.”

On June 18, 2006, Ashley Fowler stated that she had eaten at a restaurant and was

returning home when she saw police cars surrounding the house her father shared with Paula

Fowler. She said that approximately a week prior to Father’s Day, her father typed a letter

falsely claiming that he was being deployed to Iraq. After being taken to an army base, her

father showed up at her grandmother’s house. When the family said that they thought he was

leaving the country, he replied, “No, I’m not going nowhere.” She said that this was the last

time she saw her father.

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Following the incident, Ashley visited Paula Fowler and Paula’s son many times. She

stated that as a result of his injuries, Paula’s son has “permanent marks” or scars on his head

where his hair will not grow.

China Taylor testified that in 2006 she was living with her boyfriend, Todd, in West

Memphis. Taylor said that Todd was not employed in June 2006, and she “was taking care

of him.” She said that Todd commonly went by his middle name, Edward. Taylor said she

knew Charles Fowler because Todd was a friend of Charles’s brother, Sam. She remembered

seeing Charles Fowler pick up Todd in a white truck. She said that although they left in the

truck, Todd walked back to her house an hour later. After the attack occurred, Taylor said

she saw Todd “pacing from Big Pete[’s] house to [her] house looking for Charles Fowler.”

She stated that Todd told her, “I’m waiting on him to come back [so that] he can pay me.”

Todd said that Fowler owed him $250 for “moving furniture or something.” Charles Fowler

did return, although he did not have the money, and he was later found dead. Todd told

Taylor that Charles had made him hit Paula Fowler with a brick and that Charles had him at

gunpoint in a closet in the child’s room. Todd claimed that Fowler told him if he did not kill

the woman and her child then Fowler was going to kill him. Todd claimed that he told Paula

Fowler, “Don’t worry about it, I’m not going to kill you.” Todd told Taylor that he could not

kill Paula Fowler because of his “conscience.”

A.J. Pounds, an officer with the Crime Scene Investigations unit of the Memphis

Police Department, testified that he was called to the Paula Fowler’s address on June 18,

2006. He took numerous photographs inside and outside the residence. As he approached

the house, he noticed a bloody towel in the front yard and blood around the front door of the

house. He went up the stairs and noticed several areas of “blood spatter and blood.” Once

he arrived at Paula’s son’s bedroom, he noticed a brick on the floor and “assorted blood

spatter.” Because one photograph could not accurately depict the child’s room, Officer

Pounds stated that exhibits 9 and 10 showed the left and right sides of the room. He

identified “blood spatter on the wall and the shade of the window next to the bed.” He said

that some of this blood was as high as six feet from the ground. In addition, there was a large

area of blood spatter at the bottom portion of the child’s bed. Exhibit 13 showed placards

set out by Officer Pounds that identified several pieces of evidence in the room. Exhibit 14

showed a close-up view of Paula Fowler’s earring on the floor. Exhibit 15 showed a piece

of brick and pieces of hair from Paula’s scalp. Exhibit 16 showed a close-up view of the

strands of hair. Exhibit 17 showed a rock and a nylon stocking. Exhibits 18 through 22

showed pieces of brick and various strands of hair. Exhibit 29 showed a nylon stocking that

was found in Paula’s backyard. Exhibit 34 showed a brick that had “dents or areas that had

been chunked out or torn away.” Exhibits 37 and 38 showed pictures of footprints in the

backyard. Exhibits 35 and 36 showed the dental stone casts of the footprints. Officer Pounds

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said that the footprints appeared to be fresh because of the moisture in the dirt. He also said

that all the footprints in the backyard appeared to come from the same pair of shoes.

Following Officer Pounds’s testimony, the trial court read a stipulation into the record

for the jury. The stipulation noted that the evidence sent for testing matched the DNA of

Paula Fowler and her son. It also stated that no other individual’s DNA, including Todd’s

DNA, was found at the scene of the crime.

Linda Littlejohn, a Special Agent for the Tennessee Bureau of Investigation, was

accepted as an expert in the area of shoeprint or footwear impression. She testified that she

examined the shoeprint impression from the scene of the crime and compared those

impressions to Todd’s shoes that had been submitted. She determined that the tread pattern

from the shoeprint impressions was “totally inconsistent” with the tread pattern on Todd’s

shoes that had been submitted. In addition, Special Agent Littlejohn was unable to determine

the size of the shoe from the impressions collected because they did not contain a complete

tread pattern.

Dabney Kirk, a Special Agent with the Tennessee Bureau of Investigation, was

accepted as an expert in the area of latent fingerprints. He said that one brick and several

pieces of bricks and a piece of plastic wrapping were submitted for fingerprint testing, but

he was not able to collect any latent fingerprints. Special Agent Kirk said that he was not

surprised that he was unable to find any prints because the brick and the brick pieces had a

surface that was very rough.

Robert Wilkie, a detective with the Memphis Police Department, testified that he was

assigned to work on this case on June 18, 2006. As a part of his investigation, he talked with

Paula Fowler and her son and contacted the crime scene investigators to ensure that they had

fully processed the scene. On June 29, 2006, Detective Wilkie showed Paula Fowler a

spreadsheet that did not contain a picture of Todd. He said that the first photo spread was

for the purpose of eliminating possible suspects. Paula informed him that her perpetrator was

not on the first photo spread. On July 24, 2006, he showed Paula a second photo spread that

contained a photo of Todd, who had been identified as a suspect through a crime stopper’s

tip. Paula looked at the second photo spread and indicated that she believed that Todd was

her attacker. However, she declined to positively identify him because the photograph was

an old picture, and was not absolutely certain that he was the perpetrator. On July 25, 2006,

Detective Wilkie showed Paula Fowler a third photo spread. During the presentation of the

third photo spread, Paula immediately focused on Todd’s picture and told him that she was

“eighty percent sure” that he was her attacker because “she was starting to get sick to her

stomach.” Detective Wilkie noted that at the time of the second and third photo spreads,

Todd had never been identified in the media as a possible suspect.

-12-

Detective Wilkie then testified similarly to his testimony from the suppression hearing

regarding Todd’s interview and subsequent arrest. Detective Wilkie read Todd’s written

confession to the jury, which stated in pertinent part:

Q. On Sunday, June 18, 2006, Paula Fowler and [her son] were assaulted.

Are you the person responsible?

A. Yes.

....

Q. Who was with you when they were assaulted?

A. Me and Charles Fowler.

Q. Did you have any type of weapon?

A. I had a brick.

Q. Where did you get the brick?

A. Charles had it in his truck already.

Q. Did Charles Fowler have a weapon?

A. Yes.

Q. What type of weapon did Charles have?

A. He had something like a forty cal[iber] and a thirty-eight [caliber]

Derringer – you can shoot it two times.

Q. In your own words, tell what happened before, during, and after the

assault.

A. He came and picked me up from my house around 9:00 or 10:00

Sunday morning. We was just riding around at first, and he had took

me and bought me some drugs. He probably bought me a hundred

dollars worth, and I was smoking and he was drinking.

-13-

First he told me that he wanted to go to Memphis and get some clothes

out of his house because he was fixin’ to leave.

We parked behind the house and walked around to the front door – so,

he took me to her house. We went inside, and he brings the brick in.

And then when I got in the house, I got scared because he asked me to

knock his wife out, and then he was going to come in there and shoot

her. He told me that when we got in the house – and then he told me

that he wasn’t going to leave Memphis until it got done. It was like

him having the guns, and if I didn’t do it, then we were all going to die.

And we were sitting in the front room. He had the key, and when his

wife and son pulled up, he gave me the brick and the stocking. So, I

put it on, and he made me go upstairs and to go in his son’s room, and

he was going in their bedroom.

And when I got upstairs, it just so happened that they came into her

son’s room, and was in their bedroom with the two pistols.

When she put him down in the bed and turned around and I was just

standing behind the door, and she seen me, and she got to hollering, and

it scared me. And I was trying to tell her that he was in the house but

I couldn’t because he had those guns.

When she got to hollering, I went up to her, and I hit her a couple of

times. The little boy jumped up, and when I was swinging the brick, I

guess that he was trying to cover his mother up, and I hit him. But I

don’t know how many times I hit him. I just wanted Charles to see

some blood so he would know I had done it.

I ran down the stairs, and Charles still had his guns, and Charles asked

if I killed her, and I told him no.

When I turned to come out of the room, he was standing in the doorway

watching, and he said, “Come on,” so we ran. We ran to the truck. We

went out the door and ran through the backyard. We hopped one fence

and got in the truck and went back to West Memphis.

-14-

He dropped me off, and the next thing I heard, he had killed himself.

He just said, on our way home, that the police would come looking for

him.

Q. Where were Paul[a] Fowler and [her son] [w]hen you left?

A. They were on the floor of the kid’s room.

Q. Is there anything you wish to add to your statement which will aid this

investigation?

A. I would first like to say to his wife and his son and his family members

that I was put in a situation that I really couldn’t get out of without

doing something or dying myself. I’m sorry [about] what happened to

his wife and son. I am a drug addict, and he used it against me, and I

throw myself upon the mercy of the courts and the family.

I have told the truth about everything. I only ask for your leniency

because I haven’t ever done anything like this, and I was caught up in

a situation that we would have all died if I didn’t do something. I tried

to tell her, but he would have killed us all if I did. I just want to tell

them all I am sorry.

I am not no killer or wife beater or a kid beater.

Detective Wilkie reiterated that according to Todd’s statement, Charles Fowler was

in Paula Fowler’s bedroom, rather than in the child’s closet, at the time of the attack.

Moreover, he said Todd never indicated that Charles Fowler made any actual threats to him.

Detective Wilkie said that Todd told him that Charles Fowler had guns at the time of the

offenses, but Todd “never said anything about him pointing [the gun] at him or anything like

that.” He confirmed that Todd never said he tried to prevent this crime from happening, to

call for help, or to get away. Detective Wilkie identified Todd at trial as the individual who

made the aforementioned written statement.

ANALYSIS

I. Motion to Suppress. Todd argues that his statement should have been suppressed

because it was not given knowingly, voluntarily, and intelligently. First, he claims that he

did not feel free to leave the interview room because he was shackled to the table. Second,

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he argues that his claims of innocence were rebuffed by the detectives, who inundated him

with photographs from the crime scene. Third, he asserts that no officers advised him of his

Miranda rights even though the police obtained a warrant for his DNA sample. Fourth, he

argues that the detectives threatened him with a sentence of 100 years if he did not confess.

Fifth, he asserts that he did not sign a waiver of his Miranda rights until after he had given

his statement. Sixth, he claims that he did not read his written statement which was typed

by the detectives.

In response, the State contends that the trial court properly denied the motion to

suppress Todd’s statement after determining that he had waived his right to counsel and his

right to remain silent. In addition, the State argues that the court accredited the officers’

testimony and determined that Todd’s testimony regarding his statement was “unbelievable.”

“On review, an appellate court may consider the evidence presented at the suppression

hearing as well as at trial in determining whether the trial court properly denied a pretrial

motion to suppress.” State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998). In conducting

our review, it has long been settled that “[f]indings of fact made by the trial judge after an

evidentiary hearing of a motion to suppress are afforded the weight of a jury verdict, and this

court will not set aside the trial court’s judgment unless the evidence contained in the record

preponderates against his findings.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)

(quoting State v. Adams, 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992)). In addition, the

Tennessee Supreme Court has stated:

Questions 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. The party prevailing in the trial court 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. So long as the greater weight of the evidence supports the

trial court’s findings, those findings shall be upheld. In other words, a trial

court’s findings of fact in a suppression hearing will be upheld unless the

evidence preponderates otherwise.

Id. at 23. The courts of this state have concluded that “a trial court’s determination at a

suppression hearing is presumptively correct on appeal.” State v. Saylor, 117 S.W.3d 239,

244 (Tenn. 2003) (citing State v. Harbison, 704 S.W.2d 314, 318 (Tenn. 1986)).

We conclude that the trial court properly denied the motion to suppress Todd’s

statement. The court accredited Detective Wilkie and Detective Chatman’s testimony

regarding the statement and determined that Todd’s testimony was “unbelievable” and

-16-

“totally incredible.” The court further determined that Todd gave his statement freely and

voluntarily and never indicated to the officers that he wanted to speak with an attorney during

the interview process. Accordingly, we conclude that the evidence in the record does not

preponderate against the trial court’s findings.

II. Victim’s Testimony about Prior Identification of Todd at Preliminary

Hearing. Todd argues that the trial court erred in allowing Paula Fowler to testify that she

had made a prior in-court identification of Todd as the perpetrator at an earlier hearing. He

contends that this testimony regarding the prior in-court identification violated his right to

due process. Todd further asserts that the victim’s identification during the prior hearing

could have been influenced by the fact that the positive identification took place after “two

failed photo line-ups” containing his photograph. Finally, Todd argues that Paula’s prior in-

court identification was not reliable pursuant to Neil v. Biggers, 409 U.S. 188, 199 (1972).

The State first responds by arguing that Todd waived this issue because he failed to

include this issue in his motion for new trial. In any event, the State contends that Todd has

failed to establish that the trial court’s actions amount to plain error in this instance.

Here, Paula Fowler testified at trial that she appeared in General Sessions court for

a hearing related to this case, although she did not testify. Defense counsel requested a bench

conference and objected to this line of questioning because Paula Fowler’s testimony

constituted “an in-court identification.” The court stated, “Well, prior identification doesn’t

necessarily have to be in court under oath. It can be identification at a live lineup –

identification at a seated hearing like they do a lot of times in General Sessions.” The court

further stated, “[P]rior times that [Paula Fowler had] seen [Todd] is relevant to her being able

to identify him. She saw him at the hearing, and yet she didn’t testify. Does that mean that

she can’t say she saw him at the hearing? I think that’s – I don’t think [her testimony is]

unfair. She is subject to cross-examination.” The defense asked for a recess after direct

examination so that he could determine what he wanted to ask Paula Fowler about her

identification of Todd as the perpetrator at the hearing in General Session.

We agree that Todd has waived this issue because he failed to include it in his motion

for a new trial. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented

for review shall be predicated upon error in the admission or exclusion of evidence, jury

instructions granted or refused, misconduct of jurors, parties or counsel, or other action

committed or occurring during the trial of the case, or other ground upon which a new trial

is sought, unless the same was specifically stated in a motion for a new trial; otherwise such

issues will be treated as waived.”). Tennessee Rule of Appellate Procedure 3(e) states, in

pertinent part, that “in all cases tried by a jury, no issue presented for review shall be

predicated upon error in the admission or exclusion of evidence . . . unless the same was

-17-

specifically stated in a motion for a new trial; otherwise such issues will be treated as

waived.” Because this issue, if found to be meritorious, would result in a new trial, Todd’s

failure to include it in his motion for a new trial results in waiver. State v. Keel, 882 S.W.2d.

410, 416 (Tenn. Crim. App. 1994).

Since Todd has waived this issue, we may only review it for plain error. See T.R.A.P.

36(b) (“When necessary to do substantial justice, an appellate court may consider an error

that has affected the substantial rights of a party at any time, even though the error was not

raised in the motion for a new trial or assigned as error on appeal.”). In State v. Adkisson,

this court stated that in order for an error to be considered plain:

(a) the record must clearly establish what occurred in the trial court;

(b) a clear and unequivocal rule of law must have been breached;

(c) a substantial right of the accused must have been adversely affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is “necessary to do substantial justice.”

899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (citations omitted). All five factors must

be shown, and it is unnecessary to consider each factor if it is obvious that one of the factors

cannot be established. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000).

Our analysis of this issue is based upon the United States Supreme Court holdings in

Simmons v. United States, 390 U.S. 377 (1968), and Neil v. Biggers, 409 U.S. 188 (1972).

In Simmons, the Court held that “convictions based on eyewitness identification at trial

following a pretrial identification by photograph will be set aside on that ground only if the

photographic identification procedure was so impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable misidentification.” 390 U.S. at 384. In Neil v.

Biggers, the Court established a two-part analysis which the trial court must apply to

determine the validity of a pre-trial identification. 409 U.S. at 198-99. First, the trial court

must determine whether the identification procedure was unduly suggestive. Id. at 198.

Next, 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. Id. at 199. In Tennessee, it is unnecessary to apply the totality of the

circumstances test described in Biggers if the identification procedure was not unduly

suggestive. See State v. Butler, 795 S.W.2d 680, 686 (Tenn. Crim. App. 1990).

-18-

Based on our review of the record, we conclude that there was nothing unduly

suggestive about the photo spreads containing Todd’s picture or the overall identification

process. The second photo spread contained photographs of six African American males,

all of whom had some facial hair. The third photo spread again contained photographs of six

African American males, with five out of the six containing some facial hair. The

photographs in the second and the third spreadsheets were uniform in size. Moreover,

nothing about Todd’s photograph in each of the photo spreads was “grossly dissimilar” to

the other pictures in the photo spread. Finally, and most importantly, there was nothing

unduly suggestive about Paula Fowler’s identification of Todd at the November 9, 2006

hearing in General Sessions. The evidence showed that Todd was not identified in any way

during this hearing. Paula stated that although she was not comfortable making an

identification from a photograph, she was “one hundred percent” sure that Todd was her

attacker when she saw him at this hearing. Because there was nothing unduly suggestive

about the identification process, Todd has not established plain error regarding this issue

because a clear and unequivocal rule of law was not breached. Accordingly, Todd is not

entitled to relief on this issue.

III. Admission of Photographs. Todd argues that the trial court erred in admitting

photographs that had been pre-marked outside the presence of the jury because the

photographs were not properly authenticated. He further argues that the prejudicial effect

of the challenged photographs substantially outweighed their probative value.

In response, the State initially asserts that Todd has waived this issue because he

agreed to the process of pre-marking the photographs as exhibits. Waiver notwithstanding,

the State argues that the Officer Pounds properly authenticated the photographs because he

testified that he physically took the photographs. In addition, the State asserts that Todd

failed to identify the particular photographs that he found objectionable on appeal. Finally,

the State argues that the trial court did not abuse its discretion in finding that the probative

value of the photographs substantially outweighed any prejudicial effect.

Here, during a jury-out hearing, the court requested that the State premark the

photographs that would be admitted through Officer A.J. Pounds, the crime scene officer.

The following exchange occurred:

The Court: It would really expedite matters if you could premark some

things – if there are any objectionable photographs, I guess we

ought to settle that, but –

[The State]: Okay.

-19-

The Court: If you feel like these are going to be entered into evidence,

[Defense Counsel], it would expedite matters if we would just

go ahead and premark them and agree they will be marked in as

evidence. That way it will save a lot of time walking back and

forth tendering the photograph as an exhibit and her asking

foundation questions such as, “Does it fairly and accurately

represent the scene,” on each photograph. I think it would help

out. But I’ll give you all time to look through those.

Following a lunch recess, Todd was brought into the courtroom. The parties informed

the court that the defense had objected to the photographs with the yellow stickers. Defense

counsel made a Rule 403 objection to three photographs of the child’s bedroom that depicted

pools of blood and smears of blood and argued that these photographs were cumulative. The

court ruled that the State had to present these photographs to present the room in its entirety.

The court also determined that some photographs were necessary to show the position of the

closet in the room as well as the “severity of the attack” which related to “intent” and

“premeditation” and established that this crime “could very well be an attempted murder one

rather than just a simple assault.” Accordingly, the trial court determined that the “probative

value [of these photographs] . . . substantially outweigh[ed] any unfair prejudice.”

The next photograph depicted “some blood spatter on the wall and the [blinds].”

Defense counsel objected to this photograph on the basis that it was cumulative. The State

argued that this photograph showed the “complete saturation of what appeared to be blood”

on the bed ruffle, sheets, and comforter and appeared to show that the child had just gotten

out of bed. The court ruled that the “probative value does outweigh . . . any prejudicial effect

at all.”

The next photograph showed placards identifying objects on the floor. The court

ruled that “it does point out the fact that there are objects and not just blood [spots] on the

floor, so I’m going to allow that.”

The next photograph depicted a dresser in the child’s room. The defense objected on

the basis that the picture was cumulative, since the dresser had appeared in an earlier

photograph. The court noted that the photograph showed a clump of hair that was not visible

in the other photograph. The State also argued that the photograph also showed some small

pieces of brick and an earring. The court determined that the picture was “not inflammatory”

and was not “unduly prejudicial.”

-20-

The next photographs showed placards 11 and 18, which identified pieces of broken

brick. The court ruled that “the jury should be entitled to see the scene as it was at the time”

and the photograph “goes to the severity [of the attack].”

The next photograph showed a piece of Paula Fowler’s scalp that was lost during the

attack. The court stated that “the state has the burden of proving the case beyond a

reasonable doubt, and this photograph is not inflammatory.” Ultimately, the court ruled that

the photograph was admissible.

The next photographs showed pieces of broken bricks and pieces of the victim’s scalp

that was lost during the attack. The court again ruled that “the state has the burden of

proving this case beyond a reasonable doubt” and that the pictures were “not inflammatory

in any way” The State also voluntarily withdrew three other photographs to which the

defense had objected.

The State explained to the trial court that although there were thirteen C.D.’s of

pictures made with forty to fifty pictures on each C.D., it did not develop all of these pictures.

The State added that it attempted “to avoid duplication” with the photographs that it sought

to introduce. The court took a short recess so that the photographs that it had determined

were acceptable could be premarked.

Once court resumed, the court had the following discussion with the parties:

The Court: All right. All the next exhibits have been premarked.

The photographs, I pretty much have indicated – at least

I thought I did – that as far as I’m concerned these are in

evidence. But it you wish to move them into evidence

without too much formality, you may do so for the sake

of the jury.

[The State]: Yes, Judge.

....

The Court: Okay. So, starting at [Exhibit No.] 3 [and] going all the

way through Exhibit 53. So, there’s fifty exhibits that

have been premarked?

[The State]: Yes.

-21-

....

The Court: So, any of the items that have been tagged that you find

particularly objectionable at this time?

[Defense counsel]: Your Honor, we don’t have any objections to any of the

photographs with the exception of the ones we obviously

mentioned – we’ve already done that, so we should be

able to go through these rather smoothly and quickly.

The Court: So, it’s fair to say that I can assume that all of these

things are in evidence?

[Defense counsel]: Yes, Your Honor.

....

The Court: – [S]ome of the bloody photos, you were objecting to as

being cumulative or – .

[Defense counsel]: And we will remain silent when they’re presented, and

we rely on our former objections.

The Court: Okay. Very good.

....

[Defense counsel]: Your Honor, I would ask for Your Honor to explain to

the jury what we’ve done. We’ve tried to expedite it, and

we’re agreeable to do that.

The Court: Very good.

The trial court has discretion regarding the admissibility of photographs, and a ruling

on this issue “will not be overturned on appeal except upon a clear showing of abuse of

discretion.” State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). First, a photograph must

be “verified and authenticated by a witness with knowledge of the facts” before it can be

admitted into evidence. Id. Second, a photograph must be relevant to an issue that the jury

must determine before it may be admitted. State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998)

(citing State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); Banks, 564 S.W.2d at 951).

-22-

However, if the photograph’s “prejudicial effect outweighs its probative value,” it should not

be admitted. See Tenn. R. Evid. 401 and 403; Banks, 564 S.W.2d at 951. A relevant

photograph “may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” See Banks,

564 S.W.2d at 951. Unfair prejudice has been defined by the Tennessee Supreme Court as

“an undue tendency to suggest decision on an improper basis, commonly, though not

necessarily an emotional one.” Id. Photographs must never be used “solely to inflame the

jury and prejudice them against the defendant.” Id.

Upon review of the record, we agree with the State that these photographs were

properly authenticated by Officer A.J. Pounds. Therefore, any argument regarding the

authenticity of the photographs is moot. In addition, there is nothing gruesome, graphic, or

horrifying about these pictures. Compare Banks, 564 S.W.2d at 950-51 (citing People v.

Jenko, 410 Ill. 478, 102 N.E.2d 783 (1951)) (“[P]hotographs of [a] corpse are admissible in

murder prosecutions if they are relevant to the issues on trial, notwithstanding their gruesome

and horrifying character.”). Furthermore, nothing in the photographs would confuse or

mislead the jury, waste the court’s time, or be redundant. See Tenn. R. Evid. 403; see also

Banks, 564 S.W.2d at 951. After reviewing the record, we conclude that the trial court did

not abuse its discretion in admitting these photographs.

IV. Jury Instruction Regarding the Defense of Duress. Todd argues that the trial

court improperly expanded the Tennessee Supreme Court’s holding in Leach v. State, 42

S.W. 195, 197 (Tenn. 1897), to apply to non-homicide cases. He claims that since he was

charged with two “non-homicide” offenses, the additional language in the special jury

instruction was error and prejudiced him.

In response, the State contends that Todd was not entitled to the defense of duress

pursuant to Leach because Todd should have used the brick to attack Mr. Fowler, who was

“allegedly armed,” rather than Ms. Fowler, who was “unarmed and defenseless.” In addition,

it argues that the phrase added by the trial court to the jury instruction on duress did not

materially alter the instruction. Instead, the State asserts that the court’s addition of the

phrase “or where the defendant had conspired with another person to commit the crime”

follows the reasoning in Leach that a defendant may not use the defense of duress where he

places himself in a situation where he might be forced to commit a criminal offense.

Moreover, it argues that the phrase was not an incorrect statement of the law because there

are no Tennessee cases that allow a defendant to enter a conspiracy and then raise the defense

of duress. Citing Mallicoat v. State, 539 S.W.2d 54, 57 (Tenn. Crim. App. 1976), the State

contends that even if this court concludes that the addition of the phrase to the jury

-23-

instruction was improper, the error was harmless because Mr. Fowler’s threat against Todd

at the time of the offenses was not “continuous,” or “present, imminent, and impending.”

Tennessee Code Annotated section 39-11-504 defines the defense of duress:

(a) Duress is a defense to prosecution where the person or a third person is

threatened with harm that is present, imminent, impending and of such a nature

to induce a well-grounded apprehension of death or serious bodily injury if the

act is not done. The threatened harm must be continuous throughout the time

the act is being committed, and must be one from which the person cannot

withdraw in safety. Further, the desirability and urgency of avoiding the harm

must clearly outweigh the harm sought to be prevented by the law proscribing

the conduct, according to ordinary standards of reasonableness.

(b) This defense is unavailable to a person who intentionally, knowingly, or

recklessly becomes involved in a situation in which it was probable that the

person would be subjected to compulsion.

Here, following the close of proof, the State requested that the court add language to

the jury instruction regarding the defense duress based on Leach v. State, 42 S.W. 195 (Tenn.

1897). In Leach, the Tennessee Supreme Court held that duress is not a defense where the

defendant conspired with another person to commit the murder. Id. at 197. The defense

argued that the additional language was unnecessary, given that the pattern jury instruction

on duress included language that the defense of duress was “unavailable to a person who

intentionally, knowingly, recklessly becomes involved in a situation in which it was probable

that the person would be subjected to compulsion.” The court responded, “Being involved

in a situation where it’s probable a person would be subjected to compulsion is different than

stating that . . . if the defendant . . . had conspired to commit murder . . . he can’t then claim

duress.” The court determined that it was proper to have the jury instruction include the

additional language from Leach, and the defense asked that the court note its objection for

the record. The court later provided the following instruction, which included the language

from Leach as emphasized, to the pattern jury instruction regarding the defense of duress:

This defense is unavailable to a person who intentionally, knowingly,

or recklessly becomes involved in a situation in which it was probable that the

person would be subjected to compulsion or that the defendant conspired with

another person to commit the crime.

The right to trial by jury is guaranteed by the United States and Tennessee

Constitutions. U.S. Const. amend. VI; Tenn. Const. art. I, § 6. It follows that a defendant

-24-

also has a right to a correct and complete charge of the law, so that each issue of fact raised

by the evidence will be submitted to the jury on proper instructions. State v. Garrison, 40

S.W.3d 426, 432 (Tenn. 2000). Accordingly, trial courts have the duty to give “a complete

charge of the law applicable to the facts of the case.” State v. Davenport, 973 S.W.2d 283,

287 (Tenn. Crim. App. 1998) (quoting Harbison, 704 S.W.2d at 319). There is no

requirement that a trial court be limited to using pattern jury instructions. State v. West, 844

S.W.2d 144, 151 (Tenn. 1992). When reviewing challenged jury instructions, we must look

at “the charge as a whole in determining whether prejudicial error has been committed.” In

re Estate of Elam, 738 S.W.2d 169, 174 (Tenn. 1987) (citation omitted); see also State v.

Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994).

In addition, special instructions are given “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). The refusal to grant a special

request for instruction is error only when the general charge does not fully and fairly state the

applicable law. Id. On appellate review, a jury instruction must be considered in its entirety

and read as a whole rather than in isolation. Leach, 148 S.W.3d at 58.

Todd argues that the court improperly expanding the holding in Leach to non-

homicide cases. In Leach, the defendant appealed the trial court’s refusal to provide the

following instruction to the jury: “If the proof shows that the defendant . . . entered into a

conspiracy to kill [the victim], but afterwards abandoned his purpose, and was forced to kill

him in order to save his own life, he would not be guilty of murder in the first degree.” Id.

at 197. In reviewing this issue, the Tennessee Supreme Court held:

If it be true that one of his co-conspirators was near by with a gun, and in a

threatening attitude towards the defendant, as the confession may indicate, that

would work no diminution of his offense. In such a case, if in fact a real one,

it was his duty to spare [the victim], and at the same time protect himself by

turning his weapon upon his threatening confederate. He could not with any

degree of legal palliation elect a course absolutely safe to himself, and slay an

innocent man, rather than take some risk to himself in an equal combat with

a relentless companion.

Id. In Mallicoat, 539 S.W.2d at 57, this Court upheld Leach and cited other authorities for

the same proposition. The court quoted with approval the following statement from

A MERICAN J URISPRUDENCE regarding coercion and duress:

-25-

Though coercion does not excuse taking the life of an innocent person,

it does excuse most, if not all, other offenses. In order to constitute a defense,

the coercion or duress must be present, imminent, and impending, and of such

a nature as to induce a well-grounded apprehension of death or serious bodily

injury if the act is not done. Apprehension of loss of property, or of slight or

remote personal injury, is no excuse. Furthermore, the danger must be

continuous throughout the time when the act is being committed and must be

one from which the defendant cannot withdraw in safety. The doctrine of

coercion or duress cannot be invoked as an excuse by one who had a

reasonable opportunity to avoid doing the act without undue exposure to death

or serious bodily harm. And threat or fear of future injury is not sufficient.

Id. (quoting 21 A M. J UR. 2 D, Criminal Law § 100). The Mallicoat court also quoted with

approval the following language from the treatise C ORPUS J URIS S ECONDUM:

While the rule has no application in the case of homicide, and

compulsion cannot excuse taking the life of an innocent man . . . in general an

act which would otherwise constitute a crime may be excused on the ground

that it was done under compulsion or duress, since the necessary ingredient of

intention . . . is then lacking.

The compulsion or coercion which will excuse the commission of a

criminal act must be present, imminent, and impending, and of such a nature

as to induce a well grounded apprehension of death or serious bodily harm if

the act is not done; it must be continuous, and there must be no reasonable

opportunity to escape the compulsion without committing the crime. A threat

of future injury is not enough, particularly after danger from the threat has

passed. . . .

Id. (quoting 22 C.J.S. Criminal Law § 44).

Todd specifically argues that the additional language in the jury instruction prejudiced

him because he was being tried for two “non-homicide” charges, namely attempted first

degree murder and aggravated assault, rather than a murder charge. However, the record

contains ample evidence showing that Todd entered into a conspiracy with Charles Fowler

to kill his wife and child. The evidence showed that Todd intended to kill Paula Fowler

when he struck her in the head more than forty times with a brick. Todd’s failure to succeed

in killing Paula Fowler should in no way prevent the application of Leach. We agree with

the State that, pursuant to Leach, Todd should have used the brick to attack his co-

-26-

conspirator, Charles Fowler, rather than attack Paula Fowler, who was innocent and

defenseless.

Moreover, Todd was not entitled to the defense of duress because Charles Fowler’s

alleged threat against him was not “continuous”, or “present, imminent, or impending.” In

the written statement to police, Todd asserted that Charles Fowler was in Paula Fowler’s

bedroom, rather than beside him in the child’s closet, at the time of the attack. Todd never

said that Charles Fowler directly threatened him if he did not commit the crimes. In addition,

Todd never indicated that Charles Fowler aimed a gun at Todd to ensure that Todd

committed the offenses in this case. Accordingly, we conclude that the language added to

the jury instruction was proper. We further conclude that, regardless of the language of the

instruction, the defense of duress was not available to Todd because Fowler’s threat was

neither “continuous” nor “present, imminent or impending.” See T.C.A. § 39-11-504;

Mallicoat, 539 S.W.2d at 57.

V. Sufficiency of the Evidence. Todd argues that the evidence is insufficient to

support his convictions. First, he claims that the evidence failed to prove that he intended

to kill the victim because the evidence showed that the victim “was knowingly left alive.”

Second, Todd argues that he was entitled to the defense of duress because the evidence

showed that Charles Fowler “would harm him and others if he did not do what he wanted

[him] to do.”

The State responds that the evidence was sufficient to support the convictions. It

argues that the evidence established that Todd acted with premeditation and intended to kill

Paula Fowler. It further argues that the jury chose to reject the defense of duress.

Todd was convicted of criminal attempt, murder in the first degree and aggravated

assault. The criminal attempt statute states:

(a) A person commits criminal attempt who, 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

-27-

(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.

(b) Conduct does not constitute a substantial step under subdivision (a)(3),

unless the person’s entire course of action is corroborative of the intent to

commit the offense.

(c) It is no defense to prosecution for criminal attempt that the offense

attempted was actually committed.

T.C.A. § 39-12-101 (2006). First degree murder is the premeditated and intentional killing

of another person. Id. § 39-13-202(a)(1) (2003). Premeditation is defined as “an act done

after the exercise of reflection and judgment.” Id. § 39-13-202(d). This section further

defines premeditation:

Premeditation means that the intent to kill must have been formed prior to the

act itself. It is not necessary that the purpose to kill pre-exist in the mind of the

accused for any definite period of time. The mental state of the accused at the

time the accused allegedly decided to kill must be carefully considered in order

to determine whether the accused was sufficiently free from excitement and

passion as to be capable of premeditation.

Id. § 39-13-202(d). “‘Premeditation’ is the process of thinking about a proposed killing

before engaging in the homicidal conduct.” State v. Brown, 836 S.W.2d 530, 540-41 (Tenn.

1992) (quoting C. Torcia, Wharton’s Criminal Law § 140 (14th ed. 1979)).

The existence of premeditation is a question of fact for the jury to determine and may

be inferred from the circumstances surrounding the offense. State v. Rosa, 996 S.W.2d 833,

837 (Tenn. Crim. App. 1999) (citing Brown, 836 S.W.2d at 539), perm. to appeal denied

(Tenn. June 14, 1999). “[T]he use of a deadly weapon upon an unarmed victim; the

particular cruelty of the killing; declarations by the defendant of an intent to kill; evidence

of procurement of a weapon; preparations before the killing for concealment of the crime;

and calmness immediately after the killing” may support the existence of premeditation.

Bland, 958 S.W.2d at 660 (citing Brown, 836 S.W.2d at 541-42; West, 844 S.W.2d at 148).

This Court has also noted that the jury may infer premeditation from any planning activity

by the defendant before the killing, evidence concerning the defendant’s motive, and the

nature of the killing. State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995) (citation

omitted).

-28-

An individual commits the offense of aggravated assault when, as relevant in this

case, he “[i]ntentionally or knowingly commits an assault as defined in § 39-13-101” and

“[u]ses or displays a deadly weapon[.]” T.C.A. § 39-13-102(a)(1)(B) (2006). The assault

statute states:

(a) A person commits assault who:

(1) Intentionally, knowingly or recklessly causes bodily injury to another;

(2) Intentionally or knowingly causes another to reasonably fear imminent

bodily injury; or

(3) Intentionally or knowingly causes physical contact with another and a

reasonable person would regard the contact as extremely offensive or

provocative.

Id. § 39-132-101(a) (2006).

The State, on appeal, is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which may be drawn from the evidence. State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,

the standard of review applied by this court is “whether, after reviewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of

Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court

or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact

of guilt beyond a reasonable doubt.”

A verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt; therefore, a defendant on appeal has the burden of showing that the

evidence is insufficient to support the jury’s verdict. State v. Thacker, 164 S.W.3d 208, 221

(Tenn. 2005) (citing State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers,

35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the State’s

witnesses and resolves all conflicts in the evidence in the State’s favor. Bland, 958 S.W.2d

at 659 (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). Issues regarding the

credibility of witnesses, the weight and value of the evidence, and all factual issues raised

by the evidence are resolved by the jury as the trier of fact, and this court does not re-weigh

-29-

or re-evaluate the evidence. Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978),

superseded by statute on other grounds as stated in State v. Barone, 852 S.W.2d 216, 218

(Tenn. 1993)). Guilt may be found beyond a reasonable doubt in a case where there is direct

evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805

S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331

(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)), perm. to appeal denied

(Tenn. Nov. 13, 1990).

“The identity of the perpetrator is an essential element of any crime.” State v. Robert

Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3 (Tenn. Crim. App.,

at Nashville, Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)).

The State has the burden of proving “the identity of the defendant as the perpetrator beyond

a reasonable doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App.

1995)). The identity of the defendant as the perpetrator may be established by direct

evidence, circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d at

793. “The credible testimony of one identification witness is sufficient to support a

conviction if the witness viewed the accused under such circumstances as would permit a

positive identification to be made.” State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App.

1999) (citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)), perm. to

appeal denied (Tenn. Dec. 27, 1999). This court has stated that the identification of the

defendant as the perpetrator is a question of fact for the jury after considering all the relevant

proof. Strickland, 885 S.W.2d at 87 (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn.

Crim. App. 1982), perm. to appeal denied (Tenn. June 21, 1982)). In addition, as relevant

here, this court has held that “the testimony of a victim, by itself, is sufficient to support a

conviction.” Id. (citing State v Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981)).

The evidence was more than sufficient to support Todd’s convictions for attempted

first degree murder and aggravated assault. Todd signed a written statement confessing to

the crimes in this case. Paula Fowler identified him as the perpetrator at an earlier hearing

and at trial. She also testified that Todd hit her forty times in the head with a brick within

a span of five minutes and hit her son three times in the head with this brick. Both Paula

Fowler and Morgan Myers placed Todd alone at the scene of the crimes. Ashley Fowler

testified that her father and Todd were “plotting something[.]” Although Todd presented a

defense of duress at trial, the jury was free to determine that he was not entitled to this

defense. We will not “reweigh or reevaluate the evidence.” Bland, 958 S.W.2d at 659.

Accordingly, Todd is not entitled to relief on this issue.

VI. Sentence. Todd argues that the trial court imposed an excessive sentence.

Specifically, he challenges the length of his sentence and the imposition of consecutive

sentences. The State responds that Todd’s sentence was proper.

-30-

On appeal, we must review issues regarding the length and manner of service of a

sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.

§ 40-35-401(d) (1997). Nevertheless, “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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The defendant has the burden of showing the

impropriety of the sentence. Sentencing Comm’n Comments, T.C.A. § 40-35-401(d) (1997).

This means that if the trial court followed the statutory sentencing procedure, made adequate

findings of fact that are supported by the record, and gave due consideration and proper

weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing

Act, this court may not disturb the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In a case where

“the trial court applies inappropriate mitigating and/or enhancement factors or otherwise fails

to follow the Sentencing Act, the presumption of correctness fails.” Carter, 254 S.W.3d at

345 (citing State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992), perm. to appeal

denied (Tenn. March 22, 1993)). Because it appears that the trial court properly applied the

enhancement factors, because no mitigating factors applied, and because the court followed

the purposes and principles of the Sentencing Act, our review is de novo with a presumption

of correctness. See id. at 345-46; Ashby, 823 S.W.2d at 169.

A trial court, when sentencing a defendant, must consider the following:

(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 the mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114;

(6) Any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; and

(7)Any statement the defendant wishes to make in the defendant’s own behalf

about sentencing.

-31-

T.C.A. § 40-35-210(b) (2006).

A. Length of Sentence. Todd contends that the trial court erred in applying

enhancement factor (5), “[t]he defendant treated, or allowed a victim to be treated, with

exceptional cruelty during the commission of the offense[,]” and enhancement factor (6),

“[t]he personal injuries inflicted upon . . . the victim was particularly great[.]” See T.C.A.

§ 40-35-114(5), (6) (2006). Citing State v. Arnett, 49 S.W.3d 250, 258 (Tenn. 2001), he

argues that the trial court erred in applying the exceptional cruelty factor to his two

convictions because the court “seemed to focus upon the longstanding impact of the crime

on the victims rather than which acts of the defendant were over and above what is required

to establish the offenses of [attempted] premeditated murder and aggravated assault.” In

addition, citing State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994), he argues that the trial

court erred in applying the particularly great personal injuries factor because there was no

proof of injuries beyond that necessary to commit the offense. In response, the State argues

that Todd’s criminal history alone was sufficient to sentence him to the maximum sentence

for his conviction.

Here, the trial court found that the following enhancement factors were applicable

under Tennessee Code Annotated section 40-35-114 in counts one and two of the indictment:

(1) The defendant has a previous history of criminal convictions or criminal

behavior, in addition to those necessary to establish the appropriate range;

(2) The defendant was a leader in the commission of an offense involving two

(2) or more criminal actors;

....

(5) The defendant treated, or allowed a victim to be treated, with exceptional

cruelty during the commission of the offense;

(6) The personal injuries inflicted upon, or the amount of damage to property

sustained by or taken from, the victim was particularly great;

....

(8) The defendant, before trial or sentencing, failed to comply with the

conditions of a sentence involving release into the community[.]

-32-

T.C.A. § 40-35-114 (1), (2), (5), (6), (8) (2006).

The trial court found that the following enhancement factor was applicable to count

one:

(9) The defendant possessed or employed a firearm, explosive device, or other

deadly weapon during the commission of the offense[.]

Id. § 40-35-114(9) (2006).

The trial court found that the following enhancement factor was applicable to count

two:

(4) A victim of the offense was particularly vulnerable because of age or

physical or mental disability[.]

Id. § 40-35-114(4) (2006). The defense did not present any mitigating factors for the trial

court’s consideration.

Although the trial court applied the aforementioned enhancement factors, Todd only

challenged the court’s application of factors (5) and (6). Regarding factor (1), Todd’s

“previous history of criminal convictions or criminal behavior,” the State entered certified

copies of Todd’s convictions in Arkansas, which included felony convictions for aggravated

assault and theft. Todd also had a pending felony case in which he was charged with

possession of drugs with intent to sell and had posted bond on this case one month prior to

committing the offenses in this case. Todd also had misdemeanor convictions for possession

of drugs and disorderly conduct.

Regarding factor (5), that Todd “treated, or allowed a victim to be treated, with

exceptional cruelty during the commission of the offense,” the trial court noted that “an

element of the offense [is not] that you get beat with a brick countless times to where you

can’t even count the number of blows.” The court added the following:

[Todd] rendered all of these blows [to Paula Fowler] and . . . rendered blows

to a three year old, both of whom . . . have survived this and are going to have

to live with this for the rest of their lives. The exceptional cruelty is mind

boggling. It’s beyond description.

The poor boy. There’s not even words that can describe how cruel this

was. And particularly when the defendant reached over to see if the victim

-33-

was breathing and how frightening and appalling. It must have been ungodly

for the victim of the criminal attempt first degree murder to know that he is –

that there might be some more whacks coming because he might have detected

I am breathing. I know she testified that she faked like she was dead. And it

was luck for her. If she had kept up a struggle she might not have survived

this.

And I think that Number 5, I put tremendous amount of weight on that.

This was cruel. I’ve never seen since I’ve been here anything more cruel that

this.

The Tennessee Supreme Court has held that evidence supporting the application of the

“exceptional cruelty” enhancement factor must “‘denote[] the infliction of pain or suffering

for its own sake or from the gratification derived therefrom, and not merely pain or suffering

inflicted as the means of accomplishing the crime charged.’” Arnett, 49 S.W.3d at 258

(quoting State v. Haynes, No. W1999-01485-CCA-R3-CD, 2000 WL 298744, at *3 (Tenn.

Crim. App., at Jackson, Mar. 14, 2000)). We conclude that the trial court properly applied

factor (5) in this case.

Regarding factor (6), that “[t]he personal injuries inflicted upon, or the amount of

damage to property sustained by or taken from, the victim was particularly great,” the trial

court stated:

I think the personal injuries upon both of them – I mean, the [conviction] for

criminal attempt first degree murder especially – I mean, it could have been

one gunshot wound but it’s not an element of the offense. I think the personal

injuries as far as Count 1 are great. I saw the damage that was done and also

the suffering that still goes on. I believe there will be no repairing this.

You can live. You will exist. But, you know, every[]time you come

home at night . . . you’d have to worry about whether or not the boogy man is

in the closet. That’s horrible. So I think – I think it does not apply to

aggravated assault because I think it’s too closely related to the elements of the

offense but criminal attempt first degree murder I believe Number 6 applied.

Later, the trial court reconsidered and applied enhancement factor (6) to the aggravated

assault conviction because count two of the indictment charged Todd with committing an

assault through the use or display of a deadly weapon rather than committing an assault that

caused serious bodily injury to another. See id. § 39-13-102(a)(1)(A), (B) (2006). This court

has previously held that “[t]he term ‘personal injury’ [as stated in enhancement factor (6)]

-34-

is broad enough to embrace the severe emotional injuries and the psychological scaring that

the victim has suffered and will continue to suffer as a result of the appellant's actions.”

State v. Smith, 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994). We also conclude that the

trial court properly applied factor (6) in this case.

After applying the aforementioned enhancement factors, the trial court imposed a

twenty-five-year sentence for the attempted first degree murder conviction and a consecutive

ten-year sentence for the aggravated assault conviction. The trial court stated although it

sentenced Todd to the maximum sentence in his range, he felt that the sentences were not

lengthy enough given the severity of the crimes.

Because the offenses in this case occurred on June 18, 2006, the 2005 amended

sentencing act governs this case. Under the amended sentencing act, “the trial court ‘shall

consider, but is not bound by’ an ‘advisory sentencing guideline’ that suggests an adjustment

to the defendant’s sentence upon the presence or absence of mitigating and enhancement

factors.” State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008) (quoting T.C.A. § 40-35-210(c)

(2006)). Moreover, under the new law “[a]n appellate court is . . . 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 Tennessee Supreme Court explained the impact of the

2005 amended sentencing act:

The amended statute no longer imposes a presumptive sentence.

Rather, 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. § 40-35-210(d). Those purposes and

principles include “the imposition of a sentence justly deserved in relation to

the seriousness of the offense,” id. § 40-35-102(1), a punishment sufficient “to

prevent crime and promote respect for the law,” id. § 40-35-102(3), and

consideration of a defendant’s “potential or lack of potential for . . .

rehabilitation,” id. § 40-35-103(5).

Id. at 343 (internal footnote omitted). The court also emphasized the broad discretion the

trial court has in sentencing a defendant under this act:

[A] trial court’s weighing of various mitigating and enhancement factors has

been left to the trial court’s sound discretion. Since the Sentencing Act has

been revised to render these factors merely advisory, that discretion has been

broadened. Thus, even if a trial court recognizes and enunciates several

applicable enhancement factors, it does not abuse its discretion if it does not

-35-

increase the sentence beyond the minimum on the basis of those factors.

Similarly, if the trial court recognizes and enunciates several applicable

mitigating factors, it does not abuse its discretion if it does not reduce the

sentence from the maximum on the basis of those factors. The appellate 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.

We initially note that the defendant has the burden of showing the impropriety of the

sentence. See T.C.A. § 40-35-401(d) (2006), Sentencing Comm’n Comments. Despite

Todd’s arguments to the contrary, we conclude that the trial court properly applied

enhancement factors (5) and (6) in this case. Upon review, we conclude that the record fully

supports the trial court’s imposition of a twenty-five year sentence for the attempted first

degree murder conviction and a ten-year sentence for the aggravated assault conviction.

Accordingly, Todd is not entitled to relief on this issue.

B. Consecutive Sentence. Todd also argues that the trial court erred in imposing a

consecutive sentence. First, he asserts that the trial court erroneously applied the factor that

he was a professional criminal who has knowingly devoted his life to criminal acts as a major

source of livelihood because no proof was presented “reflecting the amount of money that

the defendant derived from prior criminal offenses.” See T.C.A. § 40-35-115(b)(1) (2006).

Second, he argues that the trial court erroneously applied the factor that Todd was a

dangerous offender. See id. § 40-35-115(b)(4) (2006). He contends that the trial court

applied the dangerous offender factor primarily based on the circumstances surrounding the

offense and further argues that an inherently dangerous crime does not justify consecutive

sentences in light of the more severe penalties for these crimes. In response, the State

contends that the trial court properly applied these factors in sentencing Todd to a

consecutive sentence.

Where a defendant is convicted of one or more offenses, the trial court has discretion

to decide whether the sentences shall be served concurrently or consecutively. Id. § 40-35-

115(a) (2006). A trial court may order multiple offenses to be served consecutively if it finds

by a preponderance of the evidence that a defendant fits into at least one of the seven

categories in section 40-35-115(b). An order of consecutive sentencing must be “justly

deserved in relation to the seriousness of the offense.” Id. § 40-35-102(1). In addition, the

length of a consecutive sentence must be “no greater than that deserved for the offense

committed.” Id. § 40-35-103(2).

-36-

Here, the trial court determined that consecutive sentences were proper based on the

following factors:

(1) The defendant is a professional criminal who has knowingly devoted the

defendant’s life to criminal acts as a major source of livelihood;

(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;

Id. § 40-35-115(b)(1), (4) (2006).

Here, the trial court, in applying the professional criminal factor, found that Todd

would not have agreed to kill a woman and her child unless he was “[de]void of any

consci[ence].” In addition, the presentence report establishes that Todd had a poor history

of employment. Moreover, Todd’s criminal record indicated that his only source of income,

especially at the time of the offenses in this case, was from criminal acts. Accordingly, we

conclude that the trial court properly applied this factor.

Regarding the dangerous offender factor, the court also determined that Todd was

“about as dangerous a man as there has ever been.” The court further stated, “[T]he main

reason why I think it has to be consecutive is just based upon the facts of this case alone, the

circumstances surrounding the commission of the offense are particularly aggravated.”

Finally the court made the following statement regarding this factor:

I think [Todd] is a dangerous offender. Based not only on the facts of this case

but also he’s shown that to be true in his life as well as in his record and his

previous dealings with the law. And I think it’s necessary to protect society

from his unwillingness to lead a productive life. And definitely anyone that

would do this would be anti-social. And he’s leading an anti-social life-style.

We conclude that the trial court properly ordered consecutive sentencing regarding

the dangerous offender factor as well. Regarding this subsection, the Tennessee Supreme

Court has stated:

Proof that an offender’s behavior indicated little or no regard for human life

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

high, is proof that the offender is a dangerous offender, but it may not be

sufficient to sustain consecutive sentences. Every offender convicted of two

or more dangerous crimes is not a dangerous offender subject to consecutive

-37-

sentences; consequently, the provisions of [s]ection 40-35-115 cannot be read

in isolation from the other provisions of the Act. The proof must also establish

that the terms imposed are reasonably related to the severity of the offenses

committed and are necessary in order to protect the public from further

criminal acts by the offender.

State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002) (quoting State v. Wilkerson, 905 S.W.2d

933, 938 (Tenn.1995)) (emphasis added). Unlike the other six subsections, the trial court

must make additional factual findings for the “dangerous offender” factor because it is “the

most subjective and hardest to apply.” Id. (quoting State v. Lane, 3 S.W.3d 456, 461 (Tenn.

1999)).

The record shows that the trial court properly applied the professional criminal and

dangerous offender factors in ordering consecutive sentencing. Accordingly, we conclude

that the trial court did not err in ordering consecutive sentencing in this case.

CONCLUSION

The judgments of the trial court are affirmed.

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CAMILLE R. McMULLEN, JUDGE

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