State of Tennessee v. Phillip Blackburn

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

November 6, 2007 Session

STATE OF TENNESSEE v. PHILLIP BLACKBURN

Appeal from the Criminal Court for Shelby County

No. 05-08304 Lee V. Coffee, Judge

No. W2007-00061-CCA-R3-CD - Filed June 10, 2008

The defendant, Phillip Blackburn, was convicted of one count of aggravated robbery and one count

of attempted aggravated robbery. The trial court imposed an effective sentence of ten years. In this

appeal, the defendant contends that the trial court should have suppressed the pretrial identifications

of the defendant as unduly suggestive, raises numerous challenges to the handling of the testimony

of co-defendant Danny Green, asserts that he should have been permitted to impeach the testimony

of one of the victims by the use of a prior conviction, insists that the evidence was insufficient, in

light of the “numerous” errors at trial, to support the convictions, and complains that the trial court

erred in the assignment of weight to the established enhancement and mitigating factors. Because

the trial court should have granted the defendant’s request for a mistrial, the judgments of the trial

court are reversed and the case is remanded for a new trial.

Tenn. R. App. P. 3; Judgments of the Criminal Court Reversed and Remanded

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

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

Andre Wharton, Memphis, Tennessee, for the appellant, Phillip Blackburn.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;

William L. Gibbons, District Attorney General; and David Pritchard, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The convictions in this case arose during the robbery of a Backyard Burgers

Restaurant in Memphis, Tennessee. At approximately 9 a.m. on May 5, 2005, two masked men

entered the restaurant behind employee LaQuintin McKinney, trained a gun on employee Priscilla

Allen, and ordered her to open the restaurant safe. A second gunman kept watch over employee

Kamela Ward during the robbery.

Ms. Allen testified that she was running late and had not yet been to the bank to

deposit the previous night’s money when the robbery occurred. As she entered the office to prepare

the deposit, she saw Mr. McKinney exit the restaurant to take out the trash. Moments later, she

heard Ms. Ward scream, and when she stepped outside the office, “the gentleman had a gun and he

told me to back up.” The gunman, who was wearing glasses, grabbed her by the neck, put a gun to

her head, and forced her into the office. The gunman, who she identified as the defendant, and a

second man, who she identified as co-defendant Danny Green, told her “to open up the safe and . .

. give them all of the money from out of the safe and . . . get it right the first time.” The defendant

took $1300 from the safe while Mr. Green subdued the other employees in the kitchen area of the

restaurant. After taking the money, the defendant forced Ms. Allen into the kitchen area, and the

robbers demanded that the victims give up their money and identification. When the victims stated

they had no money or identification, the two men left the restaurant, and Ms. Allen telephoned 9-1-1.

During cross-examination, Ms. Allen acknowledged telling police that the gunman

resembled former Backyard Burgers employee Terrance Florence, whom she described as “Thin, like

[the defendant]. Tall, like [the defendant]. Thin and little bitty eyes, just like [the defendant].” Ms.

Allen recalled that police informed her that Mr. Florence had not committed the offense.

Kamela Ward had arrived a 9:00 a.m. on the morning of May 5, 2005, to begin her

daily duties as a cashier at the Backyard Burgers. Sometime after her arrival but before the store was

scheduled to open at 10:00 a.m., Mr. McKinney “went out to take the garbage out and . . . he had

knocked on the door for me to let him back in.” Because of her small stature, Ms. Ward saw only

Mr. McKinney standing at the door and opened it. She described what happened after she opened

the door:

[W]hen I opened the door to let him in, him and two more other guys

came in behind him. And one had a gun and one didn’t have a gun.

. . . One was light skinned, tall [and] skinny . . . . Had on some

glasses. . . . The dark skinned one had a gun. . . . [T]hey tailed

LaQuintin on to the back where Priscilla was.

After returning from the back of the restaurant, the perpetrators demanded that the victims hand over

their identification and purses. Ms. Ward explained that she had neither on her person, and the two

men left the restaurant. Ms. Allen called 9-1-1 on her cellular telephone while Ms. Ward called the

police from the Backyard Burgers telephone. Ms. Ward testified that although she had identified

the defendant as one of the perpetrators from a photographic lineup, she was unsure of her

identification and could not state with certainty at trial that the defendant had committed the

offenses.

Kathy Holmes, who was charged with facilitation of aggravated robbery for her role

in the offenses, testified on behalf of the State that the defendant, who was a friend of her boyfriend,

asked if she would act as a getaway driver for a robbery he planned to commit. The defendant

promised to help Ms. Holmes post bond for her boyfriend, who had been incarcerated for some time.

Ms. Holmes stated that she initially refused to participate in the robbery, but on the morning of the

offense, the defendant met her on the steps of her apartment building and forced her into the car,

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where Mr. Green was waiting. The defendant brandished a silver handgun and told Ms. Holmes that

she would “regret it” if she refused to participate. Ms. Holmes agreed to act as the driver, explaining

that she was scared because “[h]e knew where I lived. He knew where all my children lived and I

was pregnant at the time.” According to Ms. Holmes, the defendant kept the silver handgun on his

lap during the drive to the Backyard Burgers and made several telephone calls to “LaQuintin.”

“When we got to the Backyard Burgers, there was an associate bringing in the garbage and they told

me to stop and that’s when they jumped out of the car and ran in behind the associate.” Ms. Holmes

said she rolled up the windows and started to drive away after hearing screams from inside the

restaurant. Before she could get away, the defendant and Mr. Green ran from the restaurant toward

the car. Ms. Holmes testified that the defendant pointed the gun at her and told her “to open the

door, or he would kill me, that we had to go, go, go.” The two men dropped her off and promised

to “get back with” her. Ms. Holmes stated that she received none of the proceeds from the robbery.

She recalled that at the time of the robbery, the defendant wore glasses and had “dreads, probably

down to his shoulders . . . and also he had a goatee.”

During cross-examination, Ms. Holmes admitted that she had initially stated that she

participated in the robbery to raise money for her boyfriend’s bail. She insisted, however, that the

initial statement was false and given only because she feared the defendant. Ms. Holmes testified

that her fear of the defendant also kept her from contacting police after the robbery. Ms. Holmes

acknowledged that she expected to enter a guilty plea and hoped to receive a diversionary sentence.

The defendant presented no proof.

At the conclusion of the trial, the jury convicted the defendant as charged. After a

sentencing hearing, the trial court imposed an effective sentence of ten years.

I. Suppression of Pretrial Identifications

The defendant contends that the trial court erred by denying his pretrial motion to

suppress the pretrial identifications of the defendant made by Ms. Allen and Ms. Ward. He asserts

that the identification procedures were unduly suggestive, rendering later in-court identifications

unreliable and inadmissible. The State contends that the identification procedures were not unduly

suggestive and that nothing in the evidence suggests that the identifications were unreliable or

inadmissible.

“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.” Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971

(1968). In Simmons, the Court observed that “improper employment of photographs by police may

sometimes cause witnesses to err in identifying criminals.” Id. at 383. Noting that “[e]ven if the

police subsequently follow the most correct photographic identification procedures . . . , there is

some danger that the witness may make an incorrect identification,” the Court concluded that the

danger of misidentification “will be increased if the police display to the witness only the picture of

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a single individual who generally resembles the person he saw, or if . . . the photograph of a single

such individual recurs or is in some way emphasized.” Id. The Court also observed that “[t]he

chance of misidentification is also heightened if the police indicate to the witness that they have

other evidence that one of the persons pictured committed the crime.” Id.

Following Simmons, the Court in Neil v. Biggers, 409 U.S. 188, 198-99, 93 S. Ct.

375, 381-82 (1972), established a two-part analysis to assess the validity of a pre-trial identification.

First, the trial court must determine whether the identification procedure was unduly suggestive. Id.

at 198, 93 S. Ct. at 381-82. 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 198-99, 93 S. Ct. at 382.

The trial court denied the defendant’s pretrial motion to suppress the eyewitness

identifications, concluding that the defendant had failed to establish that the identification procedure

used with each witness was impermissibly suggestive. When the trial court makes a finding of facts

at the conclusion of a suppression hearing, the facts are accorded the weight of a jury verdict. State

v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). The trial court’s findings are binding upon this

court unless the evidence in the record preponderates against them. State v. Odom, 928 S.W.2d 18,

23 (Tenn. 1996); see also Stephenson, 878 S.W.2d at 544; State v. Goforth, 678 S.W.2d 477, 479

(Tenn. Crim. App. 1984). Questions of credibility of witnesses, the weight and value of the

evidence, and resolution of conflicts in 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 the evidence. Odom, 928 S.W.2d at 23. We review the defendant’s claim with

these standards in mind.

At the hearing on the motion to suppress, Memphis Police Department Sargent Walter

Davidson testified that the defendant, Mr. Green, and Ms. Holmes became suspects after an

anonymous individual reported to CrimeStoppers that they were involved in the robbery. After the

tip was received, two photographic lineups, one containing a photograph of the defendant and a

second containing a photograph of Mr. Green, were prepared by entering into a computer “the . . .

similar age, age range, race,” and physical characteristics of each defendant. Sargent Davidson

explained, “[W]e go by complexions and things such as that to make sure that . . . no one stands out,

and that they are all similar and like in appearance.” Sargent Davidson also testified that the suspects

were randomly positioned on the array by the computer.

Sargent Davidson showed the photo spreads to Ms. Allen on June 9, 2005. He

testified that he did not tell Ms. Allen whether either lineup contained a suspect. He also denied

suggesting that she pick a certain photograph or making any one photograph more obvious than the

others. After viewing the lineups for a short time, Ms. Allen circled the defendant’s picture and

signed her name.

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Ms. Allen confirmed Sargent Davidson’s testimony regarding the identification

procedure. She testified that Sargent Davidson told her that two suspects had been arrested but did

not tell her that either suspect’s photograph was in the array. She repeatedly insisted that no one

suggested in any way that she choose a specific photograph. She also stated that none of the

photographs was highlighted.

Memphis Police Department Officer Joseph Poindexter showed the photographic

lineups to Ms. Ward on June 9, 2005. Officer Poindexter testified that he did not suggest that Ms.

Ward choose the defendant’s photograph and did nothing to draw attention to that photograph. He

stated that he told Ms. Ward that he had a suspect who might not be featured in the lineup. Officer

Poindexter testified that Ms. Ward indicated that she was positive in her identification of the

defendant.

Ms. Ward testified that she “wasn’t to[o] sure about” her identification of the

defendant because the robbery “happened so fast.” She said that she identified the defendant using

a process of elimination and that although the defendant resembled the first perpetrator to enter the

restaurant, she was not positive. Ms. Ward emphasized that Officer Poindexter did not tell her to

choose the defendant’s photograph and, in fact, did nothing to suggest that she pick any certain

photograph. During cross-examination, she reiterated that she chose the defendant’s photograph

because the defendant looked familiar.

Regarding the photographic lineup, the trial court observed that “[i]t appears . . . to

be a fair composition of six individuals with similar features and hairstyles. There’s nothing

outstanding or unique about [the defendant] in the photograph . . . .” The trial court concluded that

“it appears to the Court from all the testimony . . . that there was no violation of [the defendant’s]

rights.” We agree.

Neither victim described any behavior on the part of the police officers that was

designed to suggest the selection of the defendant’s photograph. Although both Sergent Davidson

and Officer Poindexter informed the witnesses that a suspect had been arrested, neither stated that

the suspect’s photograph appeared in the lineup. The photographic array, which appears in the

appellate record, does not appear to be suggestive on its face. The defendant’s photograph is not

highlighted in any way and the appearance of the others in the array is similar to that of the

defendant. Further, the defendant’s photograph appears only a single time in the lineup. Although

Ms. Ward later testified at the hearing on the motion to suppress and at trial that she was uncertain

of her identification, she indicated on the identification form that she was certain. Her uncertainty

would not, in any event, lead to a conclusion that the identification procedure was unduly suggestive.

Because the defendant has failed to establish that the procedure used to procure the pretrial

identification was not unduly suggestive, we need not discuss further the factors outlined in Neil.

The judgment of the trial court denying the motion to suppress the identifications is affirmed.

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II. Cross-examination of Priscilla Allen

The defendant next asserts that he should have been permitted to utilize Ms. Allen’s

previous conviction for theft during his cross-examination of the witness. The State contends that,

because the conviction was 13 years old, the trial court properly ruled that it could not be used to

impeach the witness pursuant to Tennessee Rule of Evidence 609.

Tennessee Rule of Evidence 609 provides in pertinent part:

(a) General Rule. For the purpose of attacking the credibility

of a witness, evidence that the witness has been convicted of a crime

may be admitted if the following procedures and conditions are

satisfied:

(1) The witness must be asked about the conviction on

cross-examination. If the witness denies having been convicted, the

conviction may be established by public record. If the witness denies

being the person named in the public record, identity may be

established by other evidence.

(2) The crime must be punishable by death or imprisonment

in excess of one year under the law under which the witness was

convicted or, if not so punishable, the crime must have involved

dishonesty or false statement.

....

(b) Time Limit. Evidence of a conviction under this rule is

not admissible if a period of more than ten years has elapsed between

the date of release from confinement and commencement of the

action or prosecution; if the witness was not confined, the ten-year

period is measured from the date of conviction rather than release.

Evidence of a conviction not qualifying under the preceding sentence

is admissible if the proponent gives to the adverse party sufficient

advance notice of intent to use such evidence to provide the adverse

party with a fair opportunity to contest the use of such evidence and

the court determines in the interests of justice that the probative value

of the conviction, supported by specific facts and circumstances,

substantially outweighs its prejudicial effect.

Tenn. R. Evid. 609. We review the trial court’s determination of this issue via an abuse of discretion

standard. State v. Thompson, 36 S.W.3d 102, 109 (Tenn. Crim. App. 2000).

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Here, the defendant sought to cross-examine Ms. Allen with a 13-year-old conviction

for theft, arguing that the conviction was relevant to the witness’s veracity. The trial court sustained

the State’s objection, ruling that the conviction lacked any probative value because of its staleness.

Although the trial court did not express any reasons for not applying the exception to Rule 609(b)’s

time limit for prior convictions, we nevertheless reject the defendant’s bid to place the trial court in

error. As the proponent of the use of a 13-year-old conviction to impeach a prosecution witness, the

defendant was obliged to “give the adverse party sufficient advance notice of intent to use such

evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.”

Tenn. R. Evid. 609(b). The record contains no indication of any such notice. More importantly, the

defendant did not proffer any evidence that would show that the probative value of the dated

conviction, albeit a theft conviction, substantially outweighed its prejudicial effect. See id.; see also

Tenn. R. Evid. 103(a) (“Error may not be predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling is one

excluding evidence, the substance of the evidence and the specific evidentiary basis supporting

admission were made known to the court by offer or were apparent from the context.”). Thus, based

upon the present record,1 we discern no error in the trial court’s refusal to allow the witness to be

impeached with a 13-year-old conviction.

III. Testimony of Danny Green

The defendant mounts four separate but interrelated challenges to the trial court’s

handling of the testimony of Danny Green, who was a co-defendant of the defendant but not on trial

jointly with him. Each claim has some measure of merit and, due to the related nature of the claims

and our view that the trial court erred by denying the defendant’s request for a mistrial, we will

consider each of the defendant’s claims as it relates to the defendant’s assertion that the trial court

should have granted a mistrial.

The series of events leading to the defendant’s motion for a mistrial began with the

State’s calling co-defendant Danny Green as a witness. After Mr. Green was seated on the witness

stand, the trial court inquired on the record and in the presence of the jury whether the witness had

agreed to waive his Fifth Amendment protection against self-incrimination. The trial court explained

to the witness and the jury that the witness had been indicted jointly with the defendant and had not

yet been tried. After an extensive voir dire, the trial court concluded that Mr. Green had voluntarily,

intelligently, and knowingly agreed to waive Fifth Amendment protection. Mr. Green immediately

implicated himself and the defendant in the robbery of the Backyard Burgers. He testified that the

defendant approached him about participating in the robbery and that he agreed to take part. He

stated that he and the defendant went to Mr. McKinney’s house to the discuss the robbery. The

following colloquy then commenced:

[Prosecutor]: So you’re supposed to meet up with [Mr. McKinney];

did that happen?

1

If the issue comes up on retrial, the defendant will have opportunity to seek the trial court’s further evaluation

of this impeachment issue.

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[Mr. Green]: Yes, sir.

[Prosecutor]: Tell us about that?

[Mr. Green]: We met up at his house. I picked up [the defendant] at

a gas station and we met at his house.

[Prosecutor]: Just the three of you, or was there anyone else

involved?

[Mr. Green]: It was Ms. Holmes, [Ms. Allen] and [Ms. Ward] and

[Mr. McKinney].

[Prosecutor]: What are you talking about now?

[Mr. Green]: That we met up at his house to talk about what was

going to happen in the robbery.

[Prosecutor]: Tell us about that?

[Mr. Green]: Well, basically we went to [Mr. McKinney’s] house

and we met up with everybody else and they was telling us how the

robbery was going to take place and that we was the only chosen two

that can follow through with the robbery.

[Prosecutor]: Okay. Who was the chosen two?

[Mr. Green]: Me and [the defendant], they ask us if, you know, we

was willing to do the robbery, you know, and we said, yeah.

[Prosecutor]: Who is, “they”?

[Mr. Green]: Me and [Mr. McKinney] and [Ms. Allen] and [Ms.

Ward].

[Prosecutor]: You’re saying that [Ms. Allen] and [Ms. Ward] were

at this meeting?

[Mr. Green]: Yes, sir.

[Prosecutor]: When did this meeting take place?

[Mr. Green]: May the 3rd. It was about a couple of days before the

robbery happened.

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At that point, the prosecutor approached the bench and requested a jury-out hearing,

explaining, “It’s my belief that this is perjury testimony and I’ll need to consult with his lawyer for

a moment, because I can’t put on what I believe to be knowingly perjury testimony.” The trial court

granted the request for a recess, during which the defense objected, stating that the proper procedure

would be for the prosecutor to voir dire the witness regarding the questionable testimony outside the

presence of the jury. Defense counsel objected to the prosecutor’s discussing Mr. Green’s testimony

with Mr. Green and his attorney in the middle of the witness’s direct examination. The trial court

overruled the objection, stating that it would allow Mr. Green to discuss the situation with his

attorney. Defense counsel objected further, noting that Mr. Green did not ask to speak to his

attorney and that instead “it was [the prosecutor] who wanted a recess so that in my opinion . . . this

man could be under some undue influence by his lawyer, or to try to get his testimony together.”

The trial court stated that it would not allow defense counsel to “attack the integrity” of the

prosecutor and overruled the objection. The trial court explained that “the prosecutor cannot go

forward with this witness if he believes that this witness is committing perjury. That is absolutely

the law and it is absolutely his ethical obligation.” The trial court ruled that it had properly allowed

the prosecutor to speak with Mr. Green’s attorney and had also appropriately allowed the attorney

to speak with his client.

After Mr. Green and his attorney left the courtroom, defense counsel lodged another

objection to the proceedings:

Now, there is a very simple recourse for [the

prosecutor], or any lawyer who stands in a place where a witness is

testifying to something that was not consistent to what they said.

And the recourse is, you just get them off the stand. It’s just that

simple.

This man does not have to be his witness. He called

the witness and it would seem to me that that witness, at that point,

when he becomes, or is observed to be testifying to something that is

not consistent and you believe it may be perjury, then it seems to me

that the lawyer for the state, or whoever has called that witness, has

to make a choice about the witness.

Now, the question is, what’s perjury, I would submit

is a matter for then the jury, to be perfectly honest. . . .

We’re seeing the facts come from the evidence on the

witness stand. And yet, the minute that this witness says something

that is a little shocking to [the prosecutor], we automatically assume

it’s perjury.

We don’t know if it was perjury . . . those matters that

he told [the prosecutor], that might have been inconsistent. Then he

has a hostile witness. There are ways to deal with that.

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The court defended its ruling, and the prosecutor indicated that “[t]he matter’s been resolved.” The

prosecutor explained that he had elected to cease questioning the witness and would “pass the

witness in front of the jury.” The trial court then asked Mr. Green’s attorney whether his client

wished “to continue to waive his [F]ifth [A]mendment right to self-incrimination.” The court then

conducted a voir dire of the witness:

[Court]: Mr. Copeland has now indicated that you have changed your

mind, which is of your absolute right. At any time you decided that

you want to not testify, if you want to stop giving statements you

have an absolute right to re-invoke, or to invoke that [F]ifth

[A]mendment privileges.

Is it your intention at this time that you no longer wish to

testify in this trial?

[Mr. Green]: Yes, sir.

[Court]: Do you no longer wish to be questioned by anyone

regarding your involvement, or your knowledge of this offense?

[Mr. Green]: No, sir.

The prosecutor then stated his intention to call Mr. Green’s attorney, Mr. Copeland, as a witness to

rebut his client’s statement that Ms. Ward and Ms. Allen were involved in the planning of the

robbery. Defense counsel objected to both the reassertion of Mr. Green’s privilege against self-

incrimination and the State’s plan to call Mr. Copeland as a witness. Defense counsel stated that the

trial court’s handling of Mr. Green’s testimony had caused the defense to be “hamstrung.” The trial

court overruled the objection to its ruling that Mr. Green could reassert his Fifth Amendment rights

explaining, “If a right is waived, it is not waived permanently.” The court likened the situation to

that of an accused during a custodial interrogation, “if this defendant waived his right . . . and in the

middle of giving a statement . . . told the police officer, I want to talk to a lawyer, I want to stop this

questioning, right now,” all questioning would have to cease.

Defense counsel noted for the record that Mr. Green had not himself asked to stop

the questioning so that he could speak with his attorney. Instead, it was the prosecutor who stopped

the questioning and the prosecutor who asked that the witness consult with his lawyer. The trial

court nevertheless overruled the objection. The court then asked the prosecutor why he desired the

testimony of Mr. Green’s attorney. The prosecutor responded, “I would call Mr. Copeland for the

purposes of saying that this conversation regarding a prior meeting between all of the parties

involved, including Priscilla Allen and Kamela Ward was never brought up by Mr. Green.” The

defendant objected, noting that “this is a case that is going far beyond . . . the mandates of the

Constitution. . . . [T]his is the most preposterous thing I’ve ever heard of in my life.” Defense

counsel continued, “[The defendant] is not getting a fair trial, in my opinion, . . . with all due respect,

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but we have a comedy of all of these errors.” The trial court agreed that it would be inappropriate

to allow Mr. Copeland to testify to statements made by his client.

The trial court then ruled that it would require Mr. Green to invoke his Fifth

Amendment right in front of the jury. The court also concluded that because it would not be fair for

the defendant “to be denied an opportunity to effectively cross-examine this . . . witness,” “the only

remedy that the [c]ourt would have at that point, would be [to] order that Mr. Green’s testimony be

stricken from the record and I would inform the jury not to consider any of his testimony for any

purposes.” The defendant objected, “That’s exculpatory testimony. . . . That came out before you

re-invoked the [F]ifth [A]mendment. He freely and voluntarily, you know, chose to testify . . . .

[W]e submit [that] should be allowed to be considered by this jury . . . .” The court overruled the

objection:

It would be unfair to both sides in this situation to

allow that testimony to stand on the record when you . . . would not

be given an opportunity to cross-examine that testimony and [the

prosecutor] would not be given an opportunity to develop that

testimony and to impeach Mr. Green with any previous statements

that he may have given . . . .

....

The only other remedy that I would have at that point

would be to allow [the prosecutor] to call Mr. Copeland and have Mr.

Copeland testify about those statements that may have been given,

because those would be prior inconsistent statements. It would not

violate any attorney client privileges, because the statements were

made in the presence of a third party.

The trial court then suddenly indicated that it had reconsidered its earlier ruling and had decided that

“Mr. Green does not have a right to re-invoke his [F]ifth [A]mendment privileges once he’s waived

those rights.” Nevertheless, the trial court concluded that it could not “compel [Mr. Green] to

provide any answers” and that if the witness indicated an unwillingness to answer further questions

it “would tell the jury at that point that all of his testimony shall be stricken.”

The defendant again objected to the striking of Mr. Green’s testimony. Defense

counsel reiterated the opinion that the proceedings had become “grossly, grossly unfair and in my

opinion, a violation of [the defendant’s] fundamental due process right to a fair trial” and asked for

a mistrial. The court denied the request and explained, “I am not necessarily going to strike that

testimony, but it would be patently unfair not to allow the State of Tennessee to impeach that

testimony.” The court again stated that Mr. Green “cannot take back his [F]ifth [A]mendment

privileges against self-incrimination. But, I cannot compel him to answer questions.” The court then

brought Mr. Green back in and questioned him in front of the jury. During that colloquy, the court

advised the witness, “[I]f he decides to ask you a question . . . you don’t have the right to say, I’m

taking my [F]ifth [A]mendment privileges against self-incrimination, I don’t want to testify. But,

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you do have the right to say that I choose not to answer[.]” When the trial court asked the witness

if he desired to waive his attorney-client privilege with regard to those statements made in the

presence of his attorney and the prosecutor, Mr. Green’s attorney interjected and asked for a

continuance so that he could consult the Board of Professional Responsibility. Mr. Copeland also

stated that it was his opinion that his client had not committed perjury because he had never been

asked if Ms. Allen and Ms. Ward participated in the planning of the robbery.

The trial court then ruled that it would strike Mr. Green’s testimony on the basis of

his refusal to answer any further questions. Defense counsel again objected to the striking of the

testimony. In the alternative, the defendant again asked the trial court to declare a mistrial. The trial

court overruled the objection, denied the request for a mistrial, and instructed the jury to disregard

Mr. Green’s testimony. Neither the State nor the defendant put on any further proof.

As indicated, the defendant presents several claims with regard to the trial court’s

handling of Mr. Green’s testimony and contends that the trial court should have granted a mistrial.

Whether to grant a mistrial is an issue entrusted to the sound discretion of the trial court. See State

v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). “Generally a mistrial will be declared

in a criminal case only when there is a ‘manifest necessity’ requiring such action by the trial judge.”

State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). 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). “The purpose for declaring a mistrial is to correct damage done to the judicial

process when some event has occurred which precludes an impartial verdict.” Id. On appeal, this

court will disturb a trial court’s denial of a motion for mistrial only when there is an abuse of

discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990); Williams, 929 S.W.2d at 388. An

abuse of discretion occurs when the trial court applies an incorrect legal standard or reaches a

conclusion that is “illogical or unreasonable and causes an injustice to the party complaining.” State

v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.

2006)); see also State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). We will consider each of the trial

court’s rulings in turn.

Upon being surprised by Mr. Green’s revelation that the victims had actually been

involved in the planning of the robbery, the State ceased questioning and approached the trial court.

We must interject here that the effect of this testimony was to paint the victims, both of the State’s

eyewitnesses, as accomplices. We also note that a defendant may not be convicted by

uncorroborated accomplice testimony. See State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2000) (citing

State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); Monts v. State, 379 S.W.2d 34, 43 (Tenn.

1964)). The prosecutor then expressed concern to the judge that the witness was offering perjured

testimony. The State’s later proffer regarding its perjury concern, however, demonstrated that it had

no good faith basis to advance the perjury claim. The prosecutor stated that Mr. Green had never

before indicated that Ms. Allen and Ms. Holmes were involved in the planning of the robbery;

however, he did not indicate that Mr. Green had ever testified in a manner contradictory to the

testimony he presented upon direct examination. Nor would the State’s proffer rise to the level of

an inconsistent statement for purposes of Tennessee Rule of Evidence 613 because, as the prosecutor

explained, the inconsistency was based upon Mr. Green’s earlier omission rather than an earlier

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statement. The trial court’s actions following the bench conference only served to compound the

error.

First, the trial court acquiesced in the prosecutor’s request that Mr. Green’s testimony

be interrupted so that the witness could consult with his attorney. The record is clear that the

prosecutor, and not Mr. Green, requested the recess. We can discern no legal standard that required

this sequence of events. It was only after the recess, and resulting consultation with his attorney and

the prosecutor, that Mr. Green indicated an unwillingness to undergo further questioning. The trial

court first ruled that Mr. Green would be permitted to re-invoke his Fifth Amendment protection

against self-incrimination as a total bar to any further questioning. This ruling is contrary to

established legal principles. This court has held that

A trial witness other than the accused in a criminal prosecution may

not claim a blanket Fifth Amendment immunity from giving relevant

testimony simply because certain questions which may be asked on

cross-examination might elicit incriminating answers. The witness

should be required to answer those questions seeking to elicit relevant

non-incriminating information in the witness’ possession. If the

witness is asked for incriminating information on cross-examination

he may claim the Fifth Amendment privilege at that time.

State v. Dooley, 29 S.W.3d 542, 551 (Tenn. Crim. App. 2000). This court has also recognized,

however, that “the right of a co-defendant . . . to exercise his Fifth Amendment privilege against

self-incrimination has a greater force than the right of a mere witness to the same privilege.” State

v. Baker, 751 S.W.2d 154, 161 (Tenn. Crim. App. 1987). Nevertheless, even a testifying co-

defendant is not entitled to “blanket immunity” by asserting his protection against self-incrimination.

Moreover, even where Fifth Amendment protections may be claimed in the first

instance, “[a] witness cannot discontinue testimony as to transactions already disclosed by the

witness.” State v. Stapleton, 638 S.W.2d 850, 855 (Tenn. Crim. App. 1982). “Once he discloses a

fact, though incriminatory, he must testify with respect to the details of that fact.” Id. (citing Rogers

v. United States, 340 U.S. 367, 71 S. Ct. 438 (1951) (holding that “[d]isclosure of a fact waives the

privilege as to details”)). “As to each question to which a claim of privilege is directed, the court

must determine whether the answer to that particular question would subject the witness to a ‘real

danger’ of further crimination.” Rogers, 340 U.S. at 374, 71 S. Ct. at 443. Thus, in this case, Mr.

Green could not assert the privilege with regard to those facts already disclosed. Because he had

already admitted his participation in the planning and execution of the robbery, he was obliged to

answer questions about the details of that offense. Even if, as the State suggests, Mr. Green was

asserting the privilege with regard to a future perjury prosecution, that assertion would not provide

the witness with blanket immunity from testifying to matters unrelated to the alleged perjury.

As indicated, however, the trial court reversed its ruling that Mr. Green could refuse

to testify on Fifth Amendment grounds but nevertheless concluded that it could not “compel” the

witness to answer any further questions. The trial court articulated no legal basis for this conclusion,

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and we can discern none. “A witness has no right to refuse to answer any and every question asked

him in a judicial proceeding. He has only the right to invoke the Fifth Amendment with respect to

matters that will incriminate him.” Stapleton, 638 S.W.2d at 855; see also Tenn. R. Evid. 501

(“Except as otherwise provided by constitution, statute, common law, or by these or other rules

promulgated by the Tennessee Supreme Court, no person has a privilege to . . . [r]efuse to be a

witness [or] [r]efuse to disclose any matter . . . . ”).

After concluding that it would not compel Mr. Green to answer any more questions,

the trial court again compounded the error by ruling that it would either strike the witness’s

testimony or allow the State to call Mr. Copeland to rebut Mr. Green’s testimony. At that point,

however, both the State and the defense had noted for the record that there would be no further

questioning of the witness. As a result, the defendant objected to both potential courses of action.

After Mr. Copeland requested a recess in order to consult with the Board of Professional

Responsibility, the trial court ruled that it would not, in fact, permit the State to call Mr. Copeland

as a witness and that the only “fair” thing to do was strike Mr. Green’s testimony in order to protect

the defendant’s confrontation rights and the State’s “right” to impeach the witness. The record is

abundantly clear, however, that the defendant wanted Mr. Green’s testimony in the record. As

defense counsel pointed out, Mr. Green’s revelation that the victims helped plan the robbery was

favorable to the defense. The defendant did not assert that his confrontation rights were being

violated and expressly waived any such assertion by requesting that Mr. Green’s testimony remain.

Further, although the State is certainly entitled, as is any party, to impeach a witness with a prior

inconsistent statement, this entitlement does not rise to the level of a constitutional right akin to the

defendant’s right to confrontation of witnesses. In addition, as the State’s proffer suggests, Mr.

Green had not actually made a prior inconsistent statement and had, instead, omitted from his earlier

discussions with the State the fact that the victims were involved. The State was free, as defense

counsel suggested, to ask the trial court to declare Mr. Green a hostile witness and cross-examine

him with regard to the earlier conversation. In any event, the trial court’s decision to strike Mr.

Green’s testimony was based upon the earlier erroneous rulings and was, therefore, itself erroneous.

The trial court mistakenly concluded, in its ruling denying the defendant’s motion for

new trial, that “had the [c]ourt granted a mistrial . . . this defendant . . . would have had the right to

file a motion [to dismiss the indictment] because [his] rights have been violated and this is double

jeopardy.” The law is clear, however, that retrial is not barred under double jeopardy principles

when either manifest necessity requires the mistrial or the defendant consents to the mistrial order.

State v. Mounce, 859 S.W.2d 319, 321-22 (Tenn. 1993). Here, not only did the defendant consent

to a mistrial, he expressly requested one. In consequence, he would not have been entitled to object

to a retrial on double jeopardy grounds.

Given the number of errors made with regard to Mr. Green’s testimony and the

prejudice to the defendant in striking the testimony, the trial court should have granted the

defendant’s request for a mistrial. At the time of the defendant’s request, the focus of the trial had

clearly shifted to the issue of Mr. Green’s testimony and away from the defendant’s right to a fair

trial. We conclude that the trial court abused its discretion by refusing to grant a mistrial. In

consequence, the judgment of the trial court is reversed and the case is remanded for a new trial.

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IV. Sentencing

In his final complaint, the defendant asserts that the sentence is excessive. To

facilitate any further appellate review, we will review the defendant’s claim.

When a defendant challenges the length of a sentence, this court generally conducts

a de novo review of the record with a presumption that the determinations made by the trial court

are correct. T.C.A. § 40-35-401(d) (2003). This presumption, however, 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 burden

of showing that the sentence is improper is upon the appellant. Id. If the review reflects the trial

court properly considered all relevant factors and its findings of fact are adequately supported by the

record, this court must affirm 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 the event the record fails to

demonstrate the required consideration by the trial court, appellate review of the sentence is purely

de novo. Ashby, 823 S.W.2d at 169.

In making its sentencing determination in the present case, the trial court, at the

conclusion of the sentencing hearing, was obliged to determine the propriety of sentencing

alternatives by considering (1) the evidence, if any, received at the trial and sentencing hearings, (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 enhancement and mitigating factors, (6) any statements the defendant

made in his behalf about sentencing, and (7) the potential for rehabilitation or treatment. T.C.A. §§

40-35-210(a), (b); -103(5); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

At the time of the defendant’s sentencing, the legislature had amended the sentencing

code to address the implications of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

See T.C.A. § 40-35-114 (2003) (promulgating factors for enhancing sentence length) (amended Pub.

Acts 2005, ch. 353, § 5 (effective June 7, 2005)). The transcript of the sentencing hearing indicates

that the defendant was sentenced under the 2003 version of the Sentencing Act. Because the crimes

occurred on May 5, 2005, sentencing was not governed by the 2005 amendments to the Sentencing

Act. Had the defendant desired sentencing under the 2005 amendment to the Sentencing Act, he

could have executed a waiver of his ex post facto protections. See T.C.A. § 40-35-114 (Supp. 2005),

compiler’s notes; see also State v. Robert Lamont Moss, Jr., No. M2006-00890-CCA-R3-CD, slip

op. at 5 n.1 (Tenn. Crim. App., Nashville, Dec. 4, 2007). No waiver appears in the record; thus, the

sentence in this case was governed by the pre-2005 statute.

In enhancing the sentences to ten years for aggravated robbery and four years for

attempted aggravated robbery, the trial court found that the defendant was a leader in the

commission of the offenses. See T.C.A. § 40-35-114(3) (2003). In mitigation, the court concluded

that the defendant, because of his youth, lacked substantial judgment in committing the offense; that

the defendant committed the offense under such unusual circumstances that it is unlikely he had a

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sustained intent to violate the law; and that the defendant had no criminal record and strong family

support. See T.C.A. § 40-35-113(6), (11), (13) (2003).

The defendant does not contest the application of the enhancement and mitigating

factors but argues that the trial court failed to properly weigh the factors in imposing the effective

ten-year sentence. The weight given each enhancement and mitigating factor, however, is left to the

discretion of the trial court as long as the trial court complies with the purposes and principles of the

sentencing act and its findings are supported by the record. T.C.A. § 40-35-210 (2003), Sentencing

Comm’n Comments; State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Kelley, 34 S.W.3d

471, 479 (Tenn. Crim. App. 2000). Here, the record evinces no state law reason to reduce the length

of the defendant’s sentence. This does not, however, conclude our inquiry into the propriety of the

defendant’s sentence.

On June 24, 2004, the United States Supreme Court released its opinion in Blakely,

holding 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. at 301, 124 S. Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466,

490, 120 S. Ct. 2348, 2362-63 (2000)). The “statutory maximum” to which a trial court may

sentence a defendant is not the maximum sentence after application of appropriate enhancement

factors, other than the fact of a prior conviction, but the “maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id. at 303,

124 S. Ct. at 2537. Under Blakely, then, the “statutory maximum” sentence which may be imposed

is the presumptive sentence applicable to the offense. See id., 124 S. Ct. at 2537. The presumptive

sentence may be exceeded without the participation of a jury only when the defendant has a prior

conviction and/or when an otherwise applicable enhancement factor was reflected in the jury’s

verdict or was admitted by the defendant.

At the time of sentencing in this case, the Tennessee Supreme Court had held that,

despite Blakely, the Tennessee Criminal Sentencing Reform Act of 1989 did not run afoul of the

Sixth Amendment right to jury trial as interpreted in Blakely. See State v. Gomez, 163 S.W.3d 632,

654-61 (Tenn. 2005) (Gomez I), vacated and remanded, Gomez v. Tennessee,___ U.S. ___, 127 S.

Ct. 1209, 167 L. Ed. 2d 36 (2007). On January 22, 2007, the United States Supreme Court released

its decision in Cunningham v. California, 549 U.S. ___, 127 S. Ct. 856 (2007), holding that

California’s sentencing scheme, which had numerous similarities to Tennessee’s sentencing scheme,

did not survive Sixth Amendment scrutiny intact under Blakely. Following on the heels of

Cunningham, on February 20, 2007, the United States Supreme Court vacated Gomez I and

remanded that case for reconsideration in light of Cunningham, see Gomez v. Tennessee, ___ U.S.

___, 127 S. Ct. 1209 (2007).

On remand in Gomez, the Tennessee Supreme Court applied the principles of Blakely

and Cunningham to determine that Tennessee’s pre-2005 sentencing code violated Gomez’ right to

jury trial. State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (Gomez II). The Gomez II court held that

the trial court had committed plain error on constitutional grounds in applying factors for being a

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leader in the commission of the offenses and in possessing or employing a firearm to enhance

sentences. Id. at 743.

The defendant’s failure to raise the Blakely issue prior to appeal deprives him of

plenary review; however, this court may consider plain error upon the record under Rule 52(b) of

the Tennessee Rules of Criminal Procedure. State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984). Before

an error may be so recognized, however, it “must be ‘plain’ and it must affect a ‘substantial right’

of the accused.” State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994). The word

“plain” is synonymous with “clear” or equivalently “obvious.” United States v. Olano, 507 U.S. 725,

734, 113 S. Ct. 1770, 1777 (1993). “Rule 52(b) leaves the decision to correct the forfeited error

within the sound discretion of the court of appeals, and the court should not exercise that discretion

unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.’” Id. at 732 (citations omitted).

In State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000), our supreme court adopted

the standard announced by this court in Adkisson. There, we defined “substantial right” as a right

of “fundamental proportions in the indictment process, a right to the proof of every element of the

offense, and is constitutional in nature.” Adkisson, 899 S.W.2d at 639. Our supreme court also

adopted Adkisson’s five factor test for determining whether an error should be recognized as 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.’”

Smith, 24 S.W.3d at 282 (quoting Adkisson, 899 S.W.2d at 641-42). “[A]ll five factors must be

established by the record before [a reviewing court] will recognize the existence of plain error, and

complete consideration of all the factors is not necessary when it is clear from the record that at least

one of the factors cannot be established.” Id. at 283. Our supreme court also observed that “the

‘plain error must [have been] of such a great magnitude that it probably changed the outcome of the

trial.’” Id. (quoting Adkisson, 899 S.W.2d at 642) (internal quotation marks omitted).

Looking first at the adequacy of the record, we have before us the trial court record,

including the presentence report and the transcripts of the trial and of the sentencing hearing, from

all of which we can glean that the trial court enhanced the defendant’s sentence for aggravated

robbery from the presumptive sentence of 8 years to ten years and the sentence for attempted

aggravated robbery from the presumptive sentence of three years to four years, see T.C.A. §

40-35-210(c) (2003) (“The presumptive sentence for a Class B, C, D and E felony shall be the

minimum sentence in the range if there are no enhancement or mitigating factors. . . .”), on the basis

that the defendant was a leader in the commission of the offenses. We deem the record adequate for

review on the merits.

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The issue at stake is the defendant’s Sixth Amendment right to have a jury determine

the factors that enhance his sentence beyond the presumptive sentence. In Gomez II, our supreme

court determined that Gomez’ sentence enhancement violated a clear and unequivocal rule of law

for purposes of noticing plain error. As in Gomez II, the Blakely claim in the present case implicates

a clear and unequivocal rule of law.

Looking next to whether the claimed violation of the Sixth Amendment adversely

affected a substantial right of the defendant, the trial court utilized an enhancement factor that

involved factual determinations of the “type . . . prohibited by Apprendi.” Gomez II, 239 S.W.3d

at 743. Thus, as in Gomez II, the enhancement of the sentence adversely affected a substantial right

of the defendant.

“The fourth consideration for plain error review is whether the record indicates that

the [d]efendant[] waived [his] Sixth Amendment claims for tactical reasons.” Id. at 741. As in

Gomez II, “the record in this case is silent and does not establish that the [d]efendant[] made a

tactical decision to waive [his] Sixth Amendment claims.” See id. Thus, the record evinces no basis

in tactics or strategy for rejecting plain error review.

Finally, we examine the need for assuring substantial justice as a basis for noticing

plain error. In Gomez II, our supreme court, in examining whether substantial justice had been

availed or withheld, looked at the relative impact on sentence enhancement of Gomez’ prior criminal

record vis a vis the other, Blakely-infirm factors. The court commented that, as a reviewing appellate

court, it was authorized to “[a]ffirm, reduce, vacate or set aside the sentence imposed,” id. at 743

(quoting T.C.A. § 40-35-401(c) (2006)), suggesting that the court, if it could, would look at what

sentence it would impose using the Blakely-compliant enhancement factor of prior criminal record

to determine whether the trial court’s use of other factors deprived the defendant of “substantial

justice.” In Gomez II, however, the court determined that the record of “criminal histories [was] not

sufficiently well-developed [to allow a] determin[ation of] the proper sentences based on this

enhancement factor alone.” Id. at 743. In that situation, the Gomez II court apparently reasoned, the

appellate court could not bring an appropriate, Blakely-compliant sentence into focus, and

accordingly, the court held that, to ensure substantial justice, it must remand the case to the trial

court for a “resentencing hearing at which the trial court will have an opportunity both to determine

the full scope of the Defendants’ criminal histories and to consider whether imposition of the

maximum sentence on all convictions is appropriate.” Id.

Because this defendant has no prior criminal convictions, there are no Blakely-

compliant factors applicable to either sentence. Thus, the defendant was entitled to the presumptive

sentence on each count and the need for assuring substantial justice requires that we recognize the

error as plain.

CONCLUSION

Because the trial court erred by denying the defendant’s request for a mistrial, the

judgment of the trial court is reversed, and the case is remanded for a new trial. Further, because the

record does not establish any Blakely-compliant enhancement factor, the defendant was

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constitutionally entitled to the presumptive sentence on each count. Thus, the sentencing decision

of the trial court is reversed.

___________________________________

JAMES CURWOOD WITT, JR., JUDGE

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