State of Tennessee v. George Franklin

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 6, 2007

STATE OF TENNESSEE v. GEORGE FRANKLIN

Direct Appeal from the Criminal Court for Shelby County

Nos. 02-08108 & 02-08109 Chris Craft, Judge

No. W2006-01204-CCA-R3-CD - Filed October 15, 2008

Following a jury trial Defendant, George Franklin, was convicted of the second degree murder of

three-year-old Jessica Borner and the attempted murder of nine other people. Defendant was

convicted under the theory of criminal responsibility for the conduct of another. It is undisputed that

Defendant did not fire the shot that killed Jessica. Defendant was sentenced to twenty-five years at

one-hundred percent for second degree murder and twelve years at thirty percent for each count of

attempted murder. The trial court ordered the sentences to be served consecutively for an effective

sentence of one-hundred and thirty-three years. On appeal, Defendant challenges: (1) the sufficiency

of the evidence to sustain convictions of second degree murder and nine counts of attempted second

degree murder; (2) whether the trial court properly refused to grant a mistrial when the assistant

district attorney general referenced the statement of a co-defendant; (3) whether the trial court

properly prohibited the defense attorney from eliciting information about the alleged dangerousness

of the house; (4) whether the trial court properly excluded certain prior bad acts of witnesses; (5)

whether the trial court properly applied enhancement factors in sentencing; and (6) whether the trial

court properly imposed consecutive sentences. After a thorough review of the record, we affirm the

judgements of the trial court except the sentencing. Because of the improper use of enhancement

factors in sentencing, we modify Defendant’s sentence from twenty-five years to twenty-one years

for second degree murder and from twelve years to nine years for each of the nine convictions for

attempted second degree murder. Otherwise the judgments are affirmed.

Tenn. R. App. P. 3 Appeal as of Right;

Judgments of the Criminal Court Affirmed in Part and Modified in Part

THOMAS T. WOODALL , J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.,

and J.C. MCLIN , JJ., joined.

Paul K. Guibao, Memphis, Tennessee, (on appeal); Gerald Skahan, Memphis, Tennessee; and Jake

Erwin, Memphis, Tennessee, (at trial) and for the appellant, George Franklin.

Robert J. Cooper, Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William

L. Gibbons, District Attorney General; and Robert Carter, Assistant District Attorney General, for

the appellee, State of Tennessee.

OPINION

I. Background

The events surrounding the death of Jessica and the injury to the other victims occurred on

June 12, 2002 at 3448 Rosamond in Memphis. The incident was the result of a drug transaction.

That day several people were “hanging out” in the front yard of the house. Sometime in the early

afternoon, Chris Burnett, who was in the yard, decided he wanted to buy a bag of marijuana.

Another person present in the yard, Antonio Hawthorne, knew Defendant dealt drugs and called

Defendant for Mr. Burnett. Defendant came to the home on Rosamond and sold a ten dollar bag of

marijuana to Mr. Burnett sometime in the early afternoon hours. Defendant then left the premises.

About ten minutes later, the group of adults in the yard determined that the marijuana was “no

good,” and Defendant was called to return and give Mr. Burnett his money back. Defendant came

back to the house and took the marijuana and returned Mr. Burnett’s ten dollars.

There was differing testimony as to what occurred when Defendant returned to give the

money back. According to the State’s witnesses, Defendant was angry and yelling obscenities. Ms.

Helen Hobbs, who lived at 3448 Rosamond, testified that she told Tyrone Taylor who was present

in the yard and Defendant to “get out of my yard with the arguing.” Ms. Hobbs testified that she did

not hear anymore shouting after she said this. Dennis Taylor testified that Defendant returned with

“an attitude.” Mr. Calvin Reed, who was also present in the yard, testified that Tyrone Taylor and

Defendant got into a “big argument.” Defendant testified that he was not angry that Mr. Burnett

wanted his money back but that Tyrone Taylor still acted aggressively towards him. Defendant

stated that Tyrone Taylor yelled at him even after he walked away. Tyrone Taylor testified that he

heard Defendant say he would return to the house when he was leaving. Derek Borner, the eleven-

year-old brother of Jessica, testified that he heard Tyrone Taylor, Chris Burnett, and Defendant

arguing in the front yard. Mr. Borner testified that he told Ms. Hobbs about the argument and then

stood behind her in the doorway. The argument continued and Mr. Borner saw Tyrone Taylor take

off his shirt like “he was getting ready to fight.” Defendant then said he was leaving but that he

would come back.

Chris Burnett testified that Defendant was “cool” to him and was not angry when he returned

to give back the money. Mr. Burnett stated that Tyrone Taylor was angry and that both men were

“talking shit” to each other. Mr. Burnett testified that he did not see Defendant shoot when he came

to the house the third time because he was on the ground trying to avoid the shooting. Mr. Burnett

further stated that Defendant never threatened him.

Defendant testified that after he left the house, he received a “few” phone calls from Tyrone

Taylor. Defendant stated that Tyrone Taylor was threatening him and that he hung up on him.

Shortly thereafter, Defendant received a phone call from a friend, Rico. Rico told Defendant that

Tyrone Taylor wanted to “talk” and that Defendant should go back to the house. Defendant testified

that he feared what Tyrone Taylor would do to him if they ran into each other on the streets so he

decided to go talk to him. As Defendant drove around the neighborhood, he noticed his cousin’s

car. Defendant testified that he got into the car with his cousin, Leslie Franklin, and Mack Jones and

that they smoked for a short period of time. Defendant and his two friends then drove to the house

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on Rosamond in Mr. Franklin’s car. When they arrived, they did not park in front of the house

where the drug transaction had occurred earlier because Defendant knew that house was a “hot” spot

that the police watched.

According to the State’s witnesses, Defendant, Leslie Franklin, and Mr. Jones got out of the

car with their guns drawn. Defendant had in his possession a nine millimeter handgun and his two

friends each had an assault rifle. Tyrone Taylor testified that he asked Defendant what he was going

to do and that Defendant “started shooting.” Tyrone Taylor stated that Defendant aimed at him and

was the first of the three men to start shooting. Tyrone Taylor was shot in the arm.

Defendant admitted that he wanted his cousin and Mr. Jones to accompany him because he

did not feel safe going back to Rosamond alone. Defendant stated that this was because he knew

that Tyrone Taylor, Antonio Hawthorne, Calvin Reed, and Dennis Taylor were members of the gang

known as the Crips. Defendant testified that after Tyrone Taylor threatened him he was scared, but

he feared running into him on the street more than if he went to the house to talk to him.

Defendant testified that when he arrived at Rosamond he parked down the street and exited

the car. Tyrone Taylor was walking towards him and they exchanged “what’s up.” Then, according

to Defendant, Tyrone Taylor reached for his gun and pointed it at Defendant. Defendant stated that

while he and Tyrone Taylor were greeting each other he heard the other car doors open and he

assumed Mr. Jones and Leslie Franklin had exited the car. Tyrone Taylor fired a shot and Defendant

said he “was ducking.” After that shot was fired, Defendant testified there were “shots coming in

front of me and behind me [from Mr. Jones and Leslie Franklin].” Although Defendant testified that

he always carries a gun and on that day was carrying a nine millimeter, he said he never drew his

gun. Despite the fact that Defendant testified that he never drew his gun, several of the state’s

witnesses testified that they saw that he was carrying a nine millimeter handgun. Tyrone Taylor

testified that Defendant shot him in the arm. However, the crime scene investigator, Ricky Davison,

testified that no nine millimeter casings were found at the scene.

Tyrone Taylor testified that Defendant, Leslie Franklin, and Mr. Jones “started shooting

straight in the house.” Defendant denied that he ever fired his weapon. Defendant also stated that

he did not know there were children in the house. There were, however, several children in the

house that day. There were three-year-old Jessica, four-year-old Lloyd Banks, Jr., ten-year-old

Michael Owens, eleven-year- old Derek Borner, and teenagers Nequeshia Hobbs, Shaquesha Hobbs,

and Sherry Hobbs. Lloyd was shot in the shoulder. A bullet grazed Michael’s shoulder. Derek was

not injured in the incident. Nequeshia was shot in the finger, Shaquesha in the leg, and Sherry was

shot in the right breast.

Many of the adults testified to the chaos during the incident and damage that occurred to the

house. Dennis Taylor testified that he heard more than forty shots fired in the house. Mr.

Hawthorne said he heard “many shots.” Sandra Hawthorne testified that she heard “a whole lot of

shots” and was shot in the back. Ms. Hobbs testified she told the children to “lay down . . .

someone’s shooting.” Ms. Hobbs was shot in her arm, chest, knee, toe, and three places on her side.

Several police officers testified that the damage to the house and the crime scene in general was one

of the worst they had ever seen.

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J.C. Fair, who was present at the house that day, testified for the defense. Mr. Fair testified

that when Defendant returned to give back the money he was calm and that Tyrone Taylor was

aggressive. Mr. Fair also testified that Tyrone Taylor had a gun in his waistband on the day the

incident occurred.

Dr. O’Brian Smith testified that Jessica died as a result of a high velocity gun shot wound

to the chest and abdomen. He further testified that a high velocity gun is a gun like an assault rifle,

while a low velocity gun is a gun like a nine-millimeter.

The jury convicted Defendant of the second degree murder of Jessica and attempted second

degree murder of Chris Burnett, Tyrone Taylor, Lloyd Banks, Michael Owens, Sherry Hobbs,

Nequeshia Hobbs, Sandra Hawthorne, Helen Hobbs, and Shaquesha Hobbs. After a sentencing

hearing, the trial court sentenced Defendant to the maximum of twenty-five years for Jessica’s death

and to twelve years on each attempted murder conviction. The trial court found Defendant to be a

dangerous offender and ordered that the sentences be run consecutively. This created an effective

sentence of 133 years.

II. Analysis

On appeal, Defendant challenges the sufficiency of the evidence to sustain convictions of

second degree murder and nine counts of attempted second degree murder, whether the trial court

properly refused to grant a mistrial when the assistant district attorney general referenced the

statement of a co-defendant, whether the trial court properly prohibited the defense attorney from

eliciting information about the alleged dangerousness of the house, whether the trial court properly

excluded certain prior bad acts of witnesses, whether the trial court properly applied enhancement

factors in sentencing, and whether the trial court properly imposed consecutive sentences.

A. Sufficiency of the Evidence

When an accused challenges the sufficiency of the evidence, this Court must review the

record to determine if the evidence adduced during the trial was sufficient “to support the finding

by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is

applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a

combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,18 (Tenn. Crim.

App. 1996).

In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this Court substitute its

inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199

Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the

state the strongest legitimate view of the evidence contained in the record as well as all reasonable

and legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914 S.W.2d 926,

932 (Tenn. Crim. App. 1995).

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The trier of fact, not this Court, resolves questions concerning the credibility of the witnesses,

the weight and value to be given the evidence as well as all factual issues raised by the evidence.

Id. In State v. Grace, the Tennessee Supreme Court stated, “[a] guilty verdict by the jury, approved

by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in

favor of the theory of the State.” 493 S.W.2d 474, 476 (Tenn. 1973).

Because a verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, the accused has the burden in this court of illustrating why the evidence is

insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982); Grace, 493 S.W.2d at 476.

At the time of the offense, the second degree murder was defined as “the knowing killing of

another.” T.C.A. § 39-13-201(1) (2003). Tennessee Code Annotated section 39-11-302(b) defines

“knowing” as referring “to a person who acts knowingly with respect to the conduct or

circumstances surrounding the conduct when the person is aware of the nature of the conduct or that

the circumstances exist. A person acts knowingly with respect to a result when the person is aware

that the conduct is reasonably certain to cause the result.”

Defendant was also convicted of nine counts of attempted second degree murder. Tennessee

Code Annotated section 39-12-101 defines criminal attempt as:

(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

(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.

Defendant was convicted under the criminal responsibility statute. A person is criminally

responsible for an offense committed by the conduct of another if:

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(1) Acting with the culpability required for the offense, the person causes or aids an

innocent or irresponsible person to engage in conduct prohibited by the definition of

the offense;

(2) Acting with intent to promote or assist the commission of the offense, or to

benefit in the proceeds or results of the offense, the person solicits, directs, aids, or

attempts to aid another person to commit the offense; or

(3) Having a duty imposed by law or voluntarily undertaken to prevent commission

of the offense and acting with intent to benefit in the proceeds or results of the

offense, or to promote or assist its commission, the person fails to make a reasonable

effort to prevent commission of the offense.

T.C.A. § 39-11-402. This statute codifies the longstanding common law theories of “accessories

before the fact and aiders and abettors.” Id., Sentencing Commission Comments. However, criminal

responsibility is not itself a separate crime; rather, it is “solely a theory by which the State may prove

the defendant’s guilt of the alleged offense . . . based upon the conduct of another person.” State v.

Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). Under a theory of criminal responsibility, a

defendant’s presence and companionship with the perpetrator of a felony before and after the

commission of the offense are circumstances from which the defendant’s participation in the crime

may be inferred. State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). No particular act need

be shown, and the defendant need not have played a physical role in the crime in order to be held

criminally responsible for the crime. State v. Caldwell, 80 S.W.3d 31, 38 (Tenn. Crim. App. 2002).

Rather, to be held criminally responsible for the acts of another, the defendant need only “‘associate

himself with the venture, act with knowledge that the offense is to be committed, and share in the

criminal intent of the principle in the first degree.’” Id. (quoting State v. Maxey, 898 S.W.2d 756,

757 (Tenn. Crim. App. 1994)).

In the instant case, Defendant admitted that he wanted Mack Jones and Leslie Franklin to

accompany him to the house on Rosamond. Defendant stated that this was because he thought

“something could happen.” Defendant also stated that if he had not returned to the house then no

one would have been injured or killed that day. Defendant knew Mack Jones and Leslie Franklin

were in possession of assault rifles, and he admitted he was in possession of a nine-millimeter

handgun. Defendant stated that he thought there was a possibility that Tyrone Taylor would want

to fight and that Defendant was willing to get it over with “right there.” From the Defendant’s

testimony alone, there is ample evidence to support his convictions under the theory of criminal

responsibility for the conduct of another person.

In addition to Defendant’s testimony, Tyrone Taylor testified that he tried to talk to

Defendant and Defendant responded that he did not want to talk. Tyrone Taylor testified that

Defendant was the first to shoot his gun. Dennis Taylor testified to similar happenings that day.

Dennis Taylor stated that Tyrone Taylor tried to talk to Defendant but that Defendant would not talk

to him and “just started shooting.” Because a reasonable trier of fact could have found Defendant

guilty of one count of second degree murder under the theory of criminal responsibility and nine

counts of attempted second degree murder, Defendant is not entitled to relief as to this issue.

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B. The Denial of the Motion for Mistrial

Defendant contends that the trial court erred when it refused to grant a mistrial after the

assistant district attorney referenced a comment made by Defendant’s co-defendants during his

cross-examination of Defendant. The co-defendants were not available to testify. The statement at

issue occurred as follows:

[ASSISTANT DISTRICT ATTORNEY ]: But y’all had to go to another location to get

the weapon.

[DEFENDANT]: No sir.

[ASSISTANT DISTRICT ATTORNEY ]: You know that’s what they [co-defendants]

said.

[DEFENSE COUNSEL]: Objection.

...

[DEFENSE COUNSEL]: If we could approach, Judge?

[THE COURT ]: Yes.

...

[DEFENSE COUNSEL]: Judge, if I understand him, he’s talking about

what Leslie and Mack said?

[ASSISTANT DISTRICT ATTORNEY ]: Right.

[DEFENSE COUNSEL]: They’re not going to be able to be cross-

examined.

[ASSISTANT DISTRICT ATTORNEY ]: It’s not being offered for the truth of the

matter.

[DEFENSE COUNSEL]: But he’s talking about comments and

statements that co-defendants made and

asking questions about that. Judge, I think

that’s highly improper.

THE COURT : I don’t think you should do that, [Assistant

District Attorney], because unless you are

going to put them on and call them as

witnesses, you can’t - I mean, that’s what

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Bruton is all about, you know, not allowing

statements in.

...

THE COURT : I’m going to give a curative instruction.

[DEFENSE COUNSEL]: Ok, thank you.

THE COURT : Ladies and Gentlemen, attorneys [sic]

statements aren’t evidence. What other people

said or didn’t say or what people suggest they

might have said are not evidence at all unless

they are here, called as a witness by either

side, and they can be cross-examined, so I’m

going to ask you just to strike that question

from your minds because it’s just not - at this

point, people could ask, “Well isn’t it true that

President Bush said you did this and that,” and

it’s just not evidence, so I’m going to ask you

to strike it.”

The determination of whether to grant a mistrial rests within the sound discretion of the trial

court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). The reviewing court should not overturn

that decision absent an abuse of discretion. State v. Brown, 53 S.W.3d 264, 284 (Tenn. Crim. App.

2000). The burden of establishing the necessity for mistrial lies with the party seeking it. State v.

Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). No abstract formula should be

mechanically applied in making this determination, and all circumstances should be taken into

account. State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993).

Defendant’s counsel properly objected, and the trial court issued a curative instruction;

therefore, we must determine if the trial court abused its discretion by not granting a mistrial. In the

instant case, the reference made by the assistant district attorney regarding the statement made by

the co-defendants was brief and vague. After the objection the trial court informed the jury that

statements or questions asked by attorneys are not evidence and should not be considered by them

in determining their verdict. This instruction was repeated in the oral and written jury charge as

well. Therefore, we conclude that the curative instruction was sufficient to clarify to the jury what

they could consider in determining Defendant’s guilt or innocence. Accordingly, the trial court did

not abuse its discretion, and Defendant is not entitled to relief as to this issue.

C. The Exclusion of Evidence of the Alleged Dangerousness of the House

Defendant contends that the trial court erred in refusing to allow him to introduce evidence

of the alleged dangerousness of the house in order to explain why Defendant went back to the home

armed and with two armed friends. In the jury-out offer of proof as to this issue, Defendant cross-

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examined Geraldine Borner, Jessica Borner’s mother. Defense counsel asked Ms. Borner, who lived

at 3448 Rosamond, if she was aware of several instances involving violence at the residence. Ms.

Borner responded that she was unaware of any of the violent instances asked about by defense

counsel. This cross-examination was the only evidence presented in the offer of proof by the

defense. Because Ms. Borner denied any knowledge of the alleged dangerousness of the house and

because no other evidence was presented as to the relevancy of the issue, the trial court did not err

when it refused to allow Defendant to introduce evidence or cross-examine witnesses on this issue.

D. The Exclusion of Certain Prior Bad Acts of Witnesses

Defendant contends that the trial court erred in refusing to allow the defense to elicit

information about prior bad acts of witnesses other than Tyrone Taylor. The court also held a jury-

out hearing to determine what prior bad acts, if any, could be inquired into by the defense. The trial

court determined that only the prior bad acts of Tyrone Taylor could be brought out by the defense.

The trial court determined that the jury could find that Tyrone Taylor was the first aggressor.

Defendant testified that his co-defendants began shooting after Tyrone Taylor pulled a gun on them.

The court determined that “they would have a right to put on proof of Tyrone Taylor’s

aggressiveness, but not anyone else’s aggressiveness or fights in the neighborhood . . .”

The rulings on admissibility of evidence are largely within the sound discretion of the trial

court and will not be disturbed on review absent abuse of discretion. State v. DuBose, 953 S.W.2d

649, 652 (Tenn. 1997). Abuse of discretion is found when “it appears that the trial court applied an

incorrect legal standard, or reached a decision which is against logic or reasoning that caused an

injustice to the party complaining.” State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002) (quoting

State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)). In the instant case, the court held a jury-out

hearing and determined that only the prior bad acts of Tyrone Taylor could be admitted. Defense

counsel objected to the exclusion of the other witnesses’ prior bad acts, but the trial court determined

that evidence of prior bad acts of the others present in the yard was irrelevant. Specific violent acts

of the victim are admissible to corroborate Defendant’s assertion that the victim (Tyrone Taylor) was

the first aggressor. State v. Furlough, 797 S.W.2d 631, 649 (Tenn. Crim. App. 1990). However,

those acts are not admissible to prove the victim (or witnesses) acted in accordance with a character

trait. Furlough, 797 S.W.2d at 649. While the trial court properly allowed the defense to present

evidence of Tyrone Taylor’s prior bad acts because, under the defense’s theory, he was the first

aggressor, the other witnesses’ or victims’ prior bad acts were not admissible under Furlough or

Tennessee Rules of Evidence Rule 404(b). Accordingly, Defendant is not entitled to relief as to this

issue.

E. Sentencing Issues

We note that the legislature has recently amended several provisions of the Sentencing

Reform Act of 1989, which became effective June 7, 2005. However, although Defendant was

sentenced after the effective date of the amended Act, Defendant’s crimes in this case occurred prior

to June 7, 2005, and Defendant did not elect to be sentenced under the provisions of the amended

Act by executing a waiver of his ex post facto protections. See 2005 Tenn. Pub. Acts ch. 353 § 18.

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Therefore, this case is not affected by the 2005 amendments, and the statutes cited in this opinion

are those that were in effect at the time the instant crimes were committed.

Defendant was sentenced to twenty-five years for his second degree murder conviction and

twelve years for each of the nine convictions of attempted second degree murder all to be served

consecutively for a total effective sentence of 133 years. A person convicted of second degree

murder, a Class A felony, faces fifteen to twenty-five years in prison. The statutory presumptive

sentence was twenty years. T.C.A. §§ 39-13-210(c), -40-35-112(a)(1). A person convicted of

attempted second degree murder, a Class B felony, faces eight to twelve years in prison. The

statutory presumptive sentence was eight years. T.C.A. §§ 39-12-107(a), -39-13-210(c), -40-35-

112(a)(2).

When a defendant challenges the length or the manner of service of his or her sentence, this

Court must conduct a de novo review with a presumption that the determinations made by the trial

court are correct. T.C.A. § 40-35-401(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). This

presumption, however, is contingent upon an affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances. State v. Pettus, 986

S.W.2d 540, 543-44 (Tenn. 1999).

In making its sentencing determinations the trial court had to consider: (1) the evidence

presented at the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and

arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct;

(5) any appropriate enhancement and mitigating factors; (6) the defendant’s potential or lack of

potential for rehabilitation or treatment; and (7) any statements made by Defendant in his own

behalf. T.C.A. §§ 40-35-103 and -210; State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim.

App.1995). The defendant bears the burden of showing that his sentence is improper. T.C.A. §

40-35-401(d), Sentencing Commission Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).

1. Enhancement Factors

The sentencing hearing in this case was held on March 14, 2006. In April 2005, our supreme

court concluded that the pre-2005 Sentencing Reform Act did not violate Blakely v. Washington, 542

U.S. 296, 124 S. Ct. 2531 (2004). State v. Gomez, 163 S.W.3d 632, 661 (Tenn. 2005) (Gomez I).

In Blakely, the United States Supreme Court concluded that the “‘statutory maximum’ for

[sentencing] purposes is the maximum sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S.Ct. at 2536; (quoting

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000)).

In Blakely, the Court held that “‘o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.’” Id. The United States Supreme Court subsequently vacated

our supreme court’s ruling in Gomez I and remanded the case to the supreme court for additional

consideration in light of the Court’s opinion in Cunningham v. California, 549 U.S. , 127 S. Ct.

856, 166 L. Ed. 2d 856 (2007). In Cunningham, the Supreme Court held “[b]ecause circumstances

in aggravation are found by the judge, not the jury, and need only be established by a preponderance

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of the evidence, not beyond a reasonable doubt . . . the DSL violates Apprendi’s bright-line rule:

Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’”

Cunningham, 549 U.S. at ___, 127 S.Ct. 856. (citing Apprendi, 530 U.S. at 490, 120 S.Ct. at 2348).

Upon reconsideration, our supreme court in Gomez II concluded that other than a defendant’s

previous history of criminal convictions or other facts admitted to by the defendant, the application

of enhancement factors which increases the defendant’s sentence over the statutorily presumptive

sentence deprives the defendant of his or her Sixth Amendment right to have a jury determine

whether those enhancement factors applied. State v. Gomez, 239 S.W.3d 733, 739-40 (Tenn. 2007)

(Gomez II ) (citing Cunningham, 127 S. Ct. at 860).

Although Defendant challenged the length of his sentence on appeal, Defendant did not base

his claim on Sixth Amendment principles but rather on the misapplication of enhancement factors.

Defendant does have a prior criminal record consisting of three misdemeanor convictions. The trial

court during the sentencing hearing stated that it found, as an enhancement factor for all the

convictions, the fact that Defendant did have a prior criminal record, but did not “give a good deal

of weight to it” because the convictions were misdemeanors. The court went on to find three more

enhancement factors. See T.C.A. 40-35-114(3), (5), (10). The court stated that it gave a “good deal

of weight” to factor (2), that Defendant was the leader in the commission of the offense. The court

also found that Jessica was particularly vulnerable because of her age and that Defendant possessed

a firearm during the offense. The court found no mitigating factors. When sentencing Defendant for

the nine attempted second degree murders, the court found five enhancement factors. See T.C.A.

40-35-114 (2), (3), (10), (11), (17). The court stated that it sentenced Defendant to twelve years on

each attempted second degree murder conviction because “there are just a whole lot of enhancement

factors.”

In Gomez II, our supreme court reviewed the defendants’ sentencing claims under plain error

analysis. Gomez, 239 S.W.3d at 737. Rule 52 of the Tennessee Rules of Criminal Procedure

provides that “[w]hen necessary to do substantial justice, an appellate court may consider an error

that has affected the substantial rights of an accused at any time, even though the error was not raised

in a motion for new trial or assigned as error on appeal.” Relief is granted under plain error review

“only where five prerequisites are met: (1) the record clearly establishes what occurred in the trial

court; (2) a clear and unequivocal rule of law was breached; (3) a substantial right of the accused was

adversely affected; (4) the accused did not waive the issue for tactical reasons; and (5) consideration

of the error is “necessary to do substantial justice.” Id. (quoting State v. Smith, 24 S.W.3d 274, 282

(Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)).

In the case sub judice, the record clearly establishes what occurred in the trial court in

determining the length of Defendant’s sentences, and thus the first prerequisite is met. In Gomez II,

our supreme court concluded that “the trial court’s application of the two other enhancement factors

[not based on the defendants’ prior convictions] breached a clear and unequivocal rule of law” in

light of Cunningham. Gomez II, 239 S.W.3d at 740-41. Further, the trial court’s determination that

enhancement factors (3), (5), (10), (11), and (17) were applicable to increase Defendant’s sentences

deprived him of the Sixth Amendment right to have a jury determine whether those enhancement

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factors applied and, thus, a substantial right of the accused was adversely affected. See id. At the

time of Defendant’s sentencing hearing, Gomez I, which concluded that Tennessee’s sentencing

structure did not violate Sixth Amendment principles, was controlling precedent. Therefore, it

cannot be said that Defendant waived his Sixth Amendment claim for tactical reasons. See id.

Finally, although Defendant has a criminal record, the trial court admittedly did not give that much

weight and enhanced his sentence because of the many other enhancements factors found. In light

of Gomez II, we conclude that granting Defendant relief is necessary to do substantial justice in this

case. Accordingly, we reduce Defendant’s sentence to twenty-one years for the second degree

murder conviction and to nine years for each of the nine convictions for attempted second degree

murder.

2. Consecutive Sentencing

This Court has consistently held that Blakely does not impact consecutive sentencing. See

State v. William Shane Bright, No. E2006-01906-CCA-R3-CD, 2007 WL 1259176, at *3 n.1 (Tenn.

Crim. App., at Knoxville, April 30, 2007) perm. app. denied (Tenn. July 6, 2007); State v. Earice

Roberts, No. W2003-02668-CCA-R3-CD, 2004 WL 2715316 at *14-15 (Tenn. Crim. App., at

Jackson, Nov. 23, 2004) perm. app. denied (Tenn. April 6, 2005); State v. Lawrence Warren Pierce,

No. M2003-01924-CCA-R3-CD, 2004 WL 2533794 at *16 (Tenn.Crim.App., Nashville, Nov. 9,

2004) perm. app. denied (Tenn. March 15, 2005).

Under Tennessee Code Annotated section 40-35-115(b)(4), a court may impose consecutive

sentences when the defendant is convicted of more than one offense and when the trial court finds

by a preponderance of the evidence that “the defendant is a dangerous offender whose behavior

indicates little or no regard for human life, and no hesitation about committing a crime in which the

risk to human life is high.” “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.” State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).

Once a court has determined that a defendant is a dangerous offender, it must also determine that

an “extended sentence is necessary to protect the public against further criminal conduct by the

defendant and that the consecutive sentences must reasonably relate to the severity of the offenses

committed.” Wilkerson, 905 S.W.2d at 939.

In the instant case, the trial court properly determined that Defendant was a dangerous

offender. The court stated, “[a]nyone [sic] who would get two armed men with automatic rifles and

descend upon a person’s house, after having already left, and then come back, [with] fully loaded

weapons . . . has no regard for human life and no hesitation about committing a crime in which the

risk to human life is high.” The court then found that extended confinement was necessary to protect

the public from Defendant’s “unwillingness to lead a productive life, and his resort to criminal

activity in furtherance of an anti-social lifestyle.” Lastly, the court concluded that “with the

devastation that he wrought on this community and these people, I find that that reasonably relates

to these offenses.” Because the trial court properly determined that Defendant was a dangerous

offender and applied consecutive sentencing, Defendant is not entitled to relief as to this issue.

CONCLUSION

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For the foregoing reasons, the judgments of the trial court are affirmed except in regard to

sentencing. In regard to the issue of sentencing we modify Defendant’s sentence to twenty-one years

for the conviction of second degree murder and to nine years for each conviction of attempted second

degree murder, to be served consecutively for a total effective sentence of 102 years.

___________________________________

THOMAS T. WOODALL, JUDGE

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