State of Tennessee v. Edwin Gomez and Jonathan S. Londono

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 16, 2003 Session

STATE OF TENNESSEE v. EDWIN GOMEZ and JONATHAN S.

LONDONO

Direct Appeal from the Criminal Court for Davidson County

No. 2001-A-280 Cheryl Blackburn, Judge

No. M2002-01209-CCA-R3-CD - Filed February 18, 2004

The Appellants, Edwin Gomez and Jonathan S. Londono, were convicted by a Davidson County jury

of conspiracy to commit aggravated robbery, facilitation of first degree felony murder, facilitation

of especially aggravated robbery, and facilitation of aggravated robbery. Gomez and Londono were

ordered to serve forty-nine years in the Department of Correction as Range I standard offenders. On

appeal, Gomez presents the following issues for our review: (1) whether the trial court erred in not

suppressing the photographic line-up and subsequent in-court identification and (2) whether it was

error to permit testimony concerning $19,600 found in Gomez’s apartment. Londono argues that:

(1) the trial court erred by admitting the statements of Co-defendant Bryant Guartos; (2) the trial

court erred by admitting the statements of the victim as either an excited utterance or a dying

declaration; and (3) the evidence was insufficient to support the verdicts. Both Gomez and Londono

argue that the length of their respective sentences was excessive and that consecutive sentencing was

improper. After a review of the record, the judgments of the trial court are affirmed.

Tenn. R. App. P. 3; Judgments of the Criminal Court are Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN

EVERETT WILLIAMS, JJ., joined.

Glenn R. Funk and Cynthia M. Fort, Nashville, Tennessee, attorneys for Appellant, Edwin Gomez;

David A. Collins, Nashville, Tennessee, and James Stafford, Houston, Texas, Attorneys for

Appellant, Jonathan S. Londono.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B.

Marney, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and

Bret Gunn and Roger Moore, Assistant District Attorneys General, for the Appellee, State of

Tennessee.

OPINION

Factual Background

On March 16, 1999, Carlyle & Company Jewelers, located in the Green Hills Mall of

Nashville, had a special showing of approximately 100 to 110 Rolex watches with an estimated

value of $750,000. The following day, March 17th, two security guards, Roy Rogers and Eugene

Nagele, were removing the watches from Carlyle & Company in order to transport them to another

showing. Nagele exited the mall first in order to inspect a stairwell and elevator area. Rogers began

walking to their Jeep, and Nagele “fell in behind him about 25 or 30 feet.” Nagele then heard the

“sound of running footsteps behind” him. Nagele shouted, “Roy,” and “started to duck down and

turn, and there was a thump and a shot.” After getting a brief glance of a hooded figure and hearing

voices speaking in a foreign language, Nagele was struck in the back of his head and lost

consciousness for a short time. His Colt pistol, estimated at approximately $1,500, was stolen.

When Nagele awoke, he heard Rogers yelling, “Gene, Gene, I’ve been shot.” Rogers twice asked

Nagele to “stop the bleeding.” Rogers died twenty-one days later of complications from his gunshot

wound.

Deborah Sloan arrived at the mall around 9:10 or 9:15 a.m. Ms. Sloan was taking her

children “to a Gymboree play class in the Mall” that morning. She stated that no more than a minute

after she pulled her minivan into the parking lot, she “heard a bang, a loud bang, and a lot of running

and rustling and things like that.” She observed one man lying on the ground, a “second man was

sort of on his hands and knees faced away from [her], and then there was three men just running

around[.]” She then saw two of the men who were “running around” pick up the steel boxes, which

contained the watches, and the third man “lean over beside the man who was lying on the ground

and pick up a gun.” Further, she observed the men leave the parking lot and drive away in a

minivan. She called 911 on her cell phone and remained at the scene until police arrived.

Officer Thales Finchum of the Nashville Police Department was the first to arrive at 9:25

a.m. He found Rogers lying on the ground and recognized that he was “clearly in bad shape.”

Finchum asked Rogers what happened, and Rogers responded that the man who shot him was a

“mulatto” wearing a dark hood. Ms. Sloan described the assailants as having “dark skin, dark hair,

fairly average height and weight as far as size.” She also commented that “[t]hey all had on very big

baggy clothing and very heavy loose jackets” even though it was a warm day in the middle of March.

Sloan estimated that the three men were in their “twenties.” She also observed the minivan as being

“purplish-maroon color” with “gold lettering and gold trim on the wheels.”

Christina Hudson, a mall employee, was in the parking lot on the morning of the robbery.

As she was sitting in her car, she observed a dark-skinned male, that she described as either Hispanic

or Black, get into the passenger side of a purplish-colored minivan. As the man got into the vehicle,

she saw three other people “raise up.” She described the other three men as also Hispanic or Black.

Ms. Hudson observed three of the men exit the vehicle, but she did not know about the robbery and

shooting until “about an hour afterwards.” She was unable to identify any of the men in the van.

Michelle Nicholson was traveling on I-40 a little after 8:00 a.m. on March 17th. While

driving, she observed a maroon van with Florida plates “weaving in and out of traffic.” Her first

observation of the van was “[r]ight at the White Bridge Road exit.” She described the four

-2-

occupants of the vehicle as “all male, Hispanic, dark hair.” According to Ms. Nicholson, the van

exited on Hillsboro Road, which would “be the way to Green Hills Mall.” Later that day, when she

heard news reports of the robbery and the description of the van, she called the police department

and reported the van she had seen. Nicholson was unable to identify either of the Appellants.

Upon receiving this information from Ms. Nicholson, Sergeant Freddie Stromatt of the

Nashville Police Department concluded that the suspects “possibly stayed at a motel along the route

of I40 west of Nashville, headed out towards Memphis.” Stormatt “instructed detectives to go to

each motel from the Charlotte Pike exit all the way back to the county line, to check each motel and

see if they had any male Hispanics that had been staying in that motel that were driving vans.” One

of the detectives discovered that male Hispanics driving two vans had stayed at the Howard Johnson

Motel at I-40 and Charlotte Pike.

Sue Madan, the manager of the Howard Johnson, told police that the men rented rooms 202

and 204. She provided telephone records for these two rooms. These records identified telephone

calls from the motel to two pay telephones, one located inside the mall directly across from Carlyle

& Company and the other located outside a restaurant “[a]bout a block-and-a-half” down the street

from the mall. These records also showed that calls were placed from the rooms using several cards.

The record for one of the cards showed that calls were placed from the Howard Johnson to Miami

on March 15, 1999, then from Alabama to Miami on March 17,1999, and then from Gomez’s home

telephone number to Bogota, Colombia on March, 18, 1999. Videotapes from the Howard Johnson

were also provided to the detectives. Detective Harold Haney of the Nashville Police Department

testified that the tapes showed two men at the front desk, a maroon van and a white van in the motel

parking lot, and people coming and going from the vans. However, Detective Haney admitted that

the tapes were not clear enough to identify any of the individuals.

Robin Capps, a housekeeper at the motel, found a “seat, like that come out of a van” in Room

204. She and another housekeeper removed the seat from the room. The seat was later recovered

by the police.

Tiffany Lee Dozier, the Howard Johnson front desk clerk, registered “at least” five Hispanic

men in March. She recalled that they had two minivans, one white and the other maroon. She stated

that she interacted with one man in particular. He checked the group into the hotel and “was flirting

with [her].” According to Dozier, “[h]e spoke very good English.” Ms. Dozier was later shown a

photo array and identified Co-defendant Bryant Guartos as this man. In addition, Ms. Dozier

identified Londono from a pre-trial photo array as the man who “would come to the desk with the

guy that spoke English.” Ms. Dozier was unable to identify either of the Appellants at trial.

A search of Room 204 was conducted. Detective James Arendall of the Nashville Police

Department found a box of ammunition on the top shelf of the closet. The bullet taken from the

victim Rogers was consistent with the ammunition found in the motel closet. Following fingerprint

analysis, it was determined that Guartos’ fingerprints were on the telephone receiver, Londono’s

fingerprints were on the ammunition box, and Gomez’s fingerprints were on the telephone book.

On July 29, 1999, Detective Norris Tarkington of the Nashville Police Department presented

a photo array to Ms. Sloan. Ms. Sloan identified Co-defendant Bryant Guartos as the man who stole

-3-

the security guard’s gun. On October 10, 2000, Detective Tarkington again presented a photo array

to Ms. Sloan, and she identified Londono as “the person that I saw pick up the last of the boxes and

head back toward their minivan.” On this same date, Ms. Sloan was shown a second photo array,

and she identified Gomez as “the other man who was carrying boxes.” Ms. Sloan identified both of

the Appellants at trial and testified that she was “very sure” that they were the two men involved in

the crime.

Barbara Franklin, an employee of Carlyle & Company, testified that a Hispanic man came

into the store the afternoon before the robbery and was asking questions about the Rolex watches.

She later identified this man as Co-defendant Bryant Guartos. She also testified that another man,

who spoke “halting” English, accompanied Guartos; however, Ms. Franklin was unable to identify

either of the Appellants as the man who accompanied Guartos.

Londono’s girlfriend, Julie Jimenez, testified that she was living in Miami with Londono in

the Spring of 1999. During that time, Londono left for “[s]even or ten days” but did not tell her

where he was going. He told her the purpose for the trip was to make some money. She testified

that Gomez, Co-defendant Guartos, Maria Sierra, and another unidentified individual accompanied

Londono on this trip. According to Jimenez, the group left in two vans, one white and the other

maroon. Londono called Jimenez while he was gone and told her that he was in Tennessee. She

recognized Gomez’s voice in the background of this phone conversation. At some point before

Londono returned to Miami, he called Jimenez and told her that he wanted to give her a Rolex

watch. Upon his return, Londono related the events of the robbery to Jimenez. While he gave a

different version of events, he did admit to taking the watches. Thereafter, Londono and Jimenez

went on a shopping spree and spent approximately $3,000 on furniture and a television set.

According to Jimenez, Londono insisted that she purchase everything in her name. He also gave

Jimenez some Nashville postcards.

On April 25, 1999, Detective Gerard Starkey of the Miami Dade Police Department arrested

Londono at the Miami Marriott Hotel on unrelated charges. Upon a search of Londono’s burgandy

van, Detective Starkey found a postcard of the Nashville riverfront area. Thereafter, Detective

Starkey located Gomez at his apartment in the Fontainebleau Hilton Hotel. Upon a search of

Gomez’s apartment, detectives found $19,600 in cash concealed beneath the kitchen counter above

the dishwasher. The detectives also discovered a furniture receipt for $570, dated March 25, 1999,

and three money transfer receipts for $6,000, two of which were dated March 23, 1999.

Londono and Gomez were both questioned by the police regarding their involvement in the

robbery. The Appellants both denied ever being in Nashville. Co-defendant Guartos was also

interviewed and confessed to his involvement in the crime. In Guartos’ statement, he said they sold

the watches for $230,000 in Miami, and they got $40,000 each. Guartos later denied ever making

this statement.

Gomez, Londono, and Guartos1 were subsequently indicted as follows: Count I, conspiracy

to commit aggravated robbery; Count II, felony murder of Roy Rogers; Count III, especially

1

Guartos was tried separately and convicted as indicted.

-4-

aggravated robbery of Roy Rogers; and Count IV, aggravated robbery of Eugene Nagele. After a

trial by jury, Gomez and Londono were convicted of Count I as charged; Count II, facilitation of

felony murder as a lesser included offense; Count III, facilitation of especially aggravated robbery

as a lesser included offense; and Count IV, facilitation of aggravated robbery as a lesser included

offense. Following a sentencing hearing, the Appellants received a total effective sentence of forty-

nine years. The Appellants’ motions for new trial were denied, and this appeal followed.

ANALYSIS

I. Suppression of Photo Array

Gomez argues that the trial court erred by not suppressing Deborah Sloan’s out-of-court

photo identification of the Appellant and subsequent in-court identification. Specifically, he

contends that “the out of court photo array was impermissibly suggestive and should have been

suppressed but also, further contends that due to the impermissible suggestiveness of the out of court

identification, the subsequent in court identification should not have been admitted.”

The Appellant’s motion to suppress was filed on Thursday, January 31, 2002. A hearing on

the motion was held on Friday, February 1, 2002. Argument was presented, but no proof was

offered. Trial began on Monday, February 4, 2002. The trial court ruled that the suppression issue

was waived for failure to comply with the pre-trial scheduling order. The State contends that the

issue is, likewise, waived on appeal. We agree.

Pursuant to Rule 12(b)(3), Tennessee Rules of Criminal Procedure, motions to suppress

evidence must be raised "prior to trial." State v. Davidson, 606 S.W.2d 293, 295 (Tenn. Crim. App.

1980); Feagins v. State, 596 S.W.2d 108, 109-10 (Tenn. Crim. App. 1979). Additionally, this rule

provides that "the court may, at the time of the arraignment or as soon thereafter as practicable, set

a time for the making of pretrial motions or requests and, if required, a later date of hearing." Tenn.

R. Crim. P. 12(c). The failure to present a motion to suppress by the time set by the trial court

constitutes waiver, but the trial court may grant relief from the waiver for "cause shown." Tenn. R.

Crim. P. 12(f); State v. Hamilton, 628 S.W.2d 742, 744 (Tenn. Crim. App. 1981); Davidson, 606

S.W.2d at 295. Under this rule, defense counsel travels at peril with an untimely motion unless the

record adequately reflects cause for the late filing because he or she has the burden of overcoming

the waiver. See State v. Randolph, 692 S.W.2d 37, 40 (Tenn. Crim. App. 1985).

A hearing on the motion was held on the Friday before trial was to begin. At the hearing, the

following colloquy occurred between the court and defense counsel:

THE COURT: I want to hear you, Mr. Funk, on why I should even entertain

these motions. They were filed yesterday, almost at 3:30, somewhere around there.

This case has been pending for some period of time. You’ve been on this case since

October, so why should I even hear these motions filed on the eve of trial?

...

-5-

THE COURT: - - there is no surprise to anybody that there is a photo lineup

in this case, and that Ms. Sloan picked out the defendant. I mean, that’s been, it was

in the first trial. That’s been known since day one. I told you when you got in on the

case you had better be ready for trial. I wasn’t going to put up with delays because

of it.

[DEFENSE COUNSEL]: I’m not asking for a continuance, Judge.

THE COURT: Yeah, but you filed a motion, which is an evidentiary issue

about suppression of a photo lineup and her in-court testimony, which should have

been filed months ago if you expect me to hear it.

[DEFENSE COUNSEL]: I do expect you to hear it.

THE COURT: Why? I guess that is the question. Why? It is too late. You

will have to agree it is too late.

...

THE COURT: . . . I think the cases say when there is a pretrial scheduling

order and you wait until the time of trial, it is too late. You’ve waived it. That is

what they say, and Friday before trial, when there has been months, and you were

clearly told that you had to be ready, that it’s too late. I mean, mainly because you

filed it at 3:30 yesterday.

...

THE COURT: . . . The trial starts Monday morning at nine o’clock. When

is it that we are supposed to have this hearing.

[DEFENSE COUNSEL]: I’m available any time.

THE COURT: . . . [T]hat is not an appropriate answer, and you know that.

...

THE COURT: . . . [E]vidence is going to be introduced in trial about a photo

lineup. You’ve known that since day one; have you not?

[DEFENSE COUNSEL]: That’s correct.

A black and white copy of the photo array was provided to the defense during pretrial discovery.

The week before trial was to begin defense counsel requested a color version of the photo array from

the State. The motion to suppress challenged this color photo array, asserting that it was “unduly

suggestive.” At the motion hearing, defense counsel argued “suggestiveness” based upon (1) the fact

-6-

that the array displayed “OCA” or arrest numbers and (2) the lighting of the Appellant’s photograph.

In response, the State explained,

Judge, it was in discovery. [Defense counsel] came down to the office this

week because I had the color version. Of course, the copies were in black and white.

Part of what [defense counsel] is complaining about is the copy that I showed

. . . , because I was trying to figure out which lineup was Mr. Gomez and Mr.

Londono, did have OCA numbers because the detectives keep a copy of that so they

will know who is who.

The actual photo lineup used in this case is like all the others. They do not

have OCA numbers or arrest numbers on any of them. The detective testified to all

that in [Co-defendant Guartos’] trial. There is no issue about the OCA numbers or

any identifying marks with regard to the photos.

Moreover, we emphasize, as noted by the State, “[N]obody asked to see it to begin with, the color

version, until this week, but the black and white version has been in discovery response from the

very beginning.” The State then informed the court that it would not be introducing the line-up with

the OCA numbers into evidence. Defense counsel withdrew his objection to the line-up on the basis

of the OCA numbers and argued that the line-up was suggestive because it was “taken in a different

light. . . . [T]he color version has him stand out in a way that is not appearing in the black and

white.” Regarding the lighting of the photo array, the trial court observed, “I’ve looked at this photo.

This is the color photo, and interestingly enough, the lighting on all of them appears to be a little

different. . . . There is nothing in this photo spread that would point to any one, any particular one

other than any of the others[.] . . .”

Nonetheless, the trial court was unable to fully develop the suppression issue without the

testimony of Ms. Sloan, the witness who identified the Appellant from the photo array, and Detective

Tarkington, the officer who showed Ms. Sloan the photo array. Thus, the trial court entered piece-

meal findings as the trial progressed and the proof developed.2 The trial court correctly concluded

2

After Deborah Sloan testified at trial, the trial court found:

I listened to the proof about the photo lineups and the photo presentation and find that they were

neither suggestive nor whatever, so whatever your motion was, I would have ruled against you.

Clearly, all the questions you had went toward cross-examination, not admissibility, so just so it is

clear in the record that I would not have suppressed either the photo lineup or the lineup in court.

A violation of due process has occurred if the identification procedure is so suggestive as to give rise to a very substantial

likelihood of irreparable misidentification. Neil v Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 381 (1972); see also

Bennett v. State, 530 S.W .2d 511, 512-15 (Tenn. 1975). Second, if the identification was unduly suggestive, the court

must determine, under the totality of the circumstances, whether the identification is nevertheless reliable. Neil v.

Biggers, 409 U.S. at 199; 93 S. Ct. at 382.

In the instant case, the record clearly supports the trial court's finding that the photo identification procedure

was not unduly suggestive. Ms. Sloan had a sufficient opportunity to view the Appellant at the time of the crime and,

(continued...)

-7-

that the Appellant had the information within his control and could have filed an appropriate motion

in a timely fashion. Under these circumstances, the Appellant’s failure to timely file the motion to

suppress as required by the trial court’s scheduling order constituted waiver of the right to complain

about introduction of the photo array and subsequent in-court identification. Tenn. R. Crim. P. 12(f).

At the hearing, defense counsel claimed that “[w]e get sent a black and white copy that does not

accurately reflect the color copies that are going to be presented at trial, and then that is a surprise

to us a week before trial. . . . They are not supposed to provide us with misleading things. . . .” This

claim is without merit. The black and white copy did not prevent defense counsel from investigating

the case, including requesting a color copy prior to the week before trial. In this case, no threshold

showing of good cause for the Appellant's failure to make a timely motion is shown or even

suggested.

We are mindful that sanctions for violation of a local or state court procedural rule should

not work an undue hardship upon the litigants. In this respect, trial courts should look to the actual

or potential prejudice flowing from the violation in considering the course of action to take. See,

e.g., State v. Garland, 617 S.W.2d 176, 185 (Tenn. Crim. App. 1981). Primary purposes of Rule

12(b)(3), which requires filing prior to trial, relate to avoiding interruption and inefficiency in jury

trials and to providing the State an opportunity to appeal an adverse ruling while keeping its chance

of a successful prosecution if the ruling is overturned. Feagins, 596 S.W.2d at 110. It is apparent

that the trial court found no just cause for the untimely filing and no just cause to grant relief from

the waiver. We believe that the record contains material evidence to support the trial court's

discretionary action.

II. Money found in Gomez’s Apartment

Gomez argues that “it was abuse of the trial court’s discretion to allow the testimony of

[Miami Police] Officer Starkey relating to the $19,600.00 cash seized from the [Appellant’s]

apartment in that there was no foundation laid to cause that cash to be relevant to the Rolex robbery

which was the subject of this trial.” His challenge is two-fold. First, the Appellant argues that the

State violated discovery Rule 16, Tennessee Rules of Criminal Procedure. Second, he contends that

the cash seized from his Miami apartment was connected to a diamond robbery in Texas and,

therefore, its admission constituted impermissible evidence of "other crimes, wrongs, or acts" within

the meaning of Rule 404(b), Tennessee Rules of Evidence.

Prior to trial, the Appellant filed a motion in limine to prohibit "the prosecution from

introducing any evidence or testimony of a search conducted of the Fontainebleau Towers,

Apartment 117 Miami Florida." This motion was denied as being untimely. However, discovery

responses from the State concerning the items discovered in the apartment did not include any

mention of the $19,600 seized. After trial had commenced, the State, after speaking with Detective

Starkey, who conducted the search of the Appellant's apartment, became aware that this sum of cash

2

(...continued)

because of the nature of the crime, Ms. Sloan had a high degree of attention at the time of the incident. There was no

evidence or argument presented that the procedure conducted by Detective Tarkington was suggestive in any way. The

photographic arrays depicted Hispanic individuals with very similar facial characteristics, hair color, and hair length.

Therefore, we conclude that this issue is without merit.

-8-

was also discovered in the kitchen cabinet area above the dishwasher. The State promptly informed

defense counsel of the information. Defense counsel objected to any testimony regarding the money.

The State responded that it only intended to introduce the testimony of the detective as to what he

saw in the apartment and did not intend to introduce any physical evidence of the money. The State

explained, "[T]he items that were seized from [the Appellant's] apartment came from the FBI and

the money was not listed anywhere in their list of items. I think that is probably because the Miami

Police Department seized the money and went ahead with proceedings against the money."

During a jury-out hearing, Detective Starkey testified that, on April 26, 1999, he went to the

Appellant's apartment to serve a warrant for a diamond robbery in Texas. The Appellant was

arrested outside the "entry way to his door." Thereafter, the Appellant gave consent to search the

apartment, and a sum of cash in the amount of $19,600 was found "[i]n the kitchen area, up above

the dishwasher." The detective further testified that the Appellant did not acknowledge ownership

of the cash and that he did not "know whether the cash in this apartment had anything to do with the

diamond case as opposed to the Rolex watches case." He also stated that there were indications that

three people lived in the apartment.

Following Detective Starkey's testimony, defense counsel again objected to testimony

concerning the money, arguing that:

Officer Starkey can testify about all of the items that were listed in the discovery

response. With regards to the money at issue here, I would still maintain that he

should not be allowed to testify about money, one, on the grounds that it violates the

discovery rules. Obviously, I understand the Court's point that, well, Mr. Gomez

knew about the money because he was present when the money was taken and he

apparently was served some papers while he was in jail, but that doesn't indicate that

that money had anything to do with this case, and for this to all of a sudden whipsaw

back on him in the middle of trial and have the State argue that it does have

something to do with this case hindered my ability to prepare for this case.

In addition, Judge, I would also say that given that the actual arrest in this

case was dealing with a diamond theft that happened closer in time to April 26, '99,

than the events in this case, then what we have is proof from one case being

introduced as proof on the second case and the only way - - and there is no real way

to keep these two separate if you allow the testimony.

Following argument by the State, the trial court ruled:

All right, well, first of all, I do find that information is sort of subject to the

discovery rule; however, as soon as the State became aware of [the evidence, they]

advised defense counsel. What I was trying to determine and the reason I wanted to

hear was whether or not [the Appellant] had any knowledge of the money, which is

clear from the testimony that he did, so that whatever violations there were, it was

only compounded by the fact that apparently [the Appellant] didn't tell his attorney,

so I'm going to allow the testimony. Clearly, obviously, there is not going to be

anything about the diamond situation in Texas.

-9-

Back to your issue about the fact it could be proceeds from another crime,

well, I don't know that. Maybe, maybe not. It is just hard to say, but I don't think the

State has any firm proof. If, in fact, they knew clearly that this was proceeds from

another crime, I might buy your argument, but I don't hear any information that

would lead me to believe that.

...

All right. Now obviously, you are going to be free to question or if you want

to put on proof that it came from something else, I guess you can, I mean, I know that

is not going to be reasonable, but there is not enough proof in this record from the

testimony for me to determine that wasn't involved in this, because it is close in time

after this case. There is an awfully lot of, seven-hundred-fifty-thousand dollars

($750,000.00) worth of Rolex [watches] taken, plus there is going to be some

statements introduced in evidence, and in fact, they got [two-hundred-thirty-thousand

dollars ($230,000.00)] for this, so overrule your objection.

Defense counsel then stated for the record:

This is precisely what Rule 16 deals with. Had I known that this money was

going to be charged to this crime, I could have gone and gotten the records from

Texas, found out what the Texas authorities have already attributed this money to the

diamond crime. [The Appellant] has already pled guilty in Texas to that crime, and

if that is a substantive part of their proof that this money was part of that crime, then

I'd be able to show that, and then that would prevent you from letting this in, but I

haven't had the opportunity to present that evidence or even investigate that.

The court observed, "Just because Texas authorities might have been arguing that would not

necessarily preclude Tennessee authorities from arguing that."

A. Discovery Violation

Rule 16(c), Tennessee Rules of Criminal Procedure, requires:

If, prior to or during trial, a party discovers additional evidence or material previously

requested or ordered, which is subject to discovery or inspection under this rule, the

party shall promptly notify the other party or the other party's attorney or the court of

the existence of the additional evidence or material.

Both the State and a defendant have a continuing duty to disclose evidence previously requested and

subject to discovery under Rule 16. Tenn. R. Crim. P. 16(c). When arguing that the State violated

Rule 16, a defendant bears the burden of showing "the degree to which the impediments to discovery

hindered trial preparation and defense at trial." State v. Thomas Dee Huskey, No. E1999-00438-

CCA-R3-CD (Tenn. Crim. App. at Knoxville, June 28, 2002) (quoting State v. Brown, 836 S.W.2d

530, 548 (Tenn. 1992)). In State v. Brown, 552 S.W.2d 383, 386 (Tenn. 1977), our supreme court

-10-

noted with approval the ABA Standards Relating to Discovery and Procedure Before Trial; § 2.4

(prosecuting attorney charged only with using "diligent good faith efforts" to obtain discoverable

material or information from other governmental personnel). Furthermore, the trial court should

refrain from excluding evidence for noncompliance with discovery rules "except when it is shown

that Defendant is actually prejudiced by the state's failure and the prejudice cannot be otherwise

eradicated." Thomas Dee Huskey, No. E1999-00438-CCA-R3-CD (quoting State v. Payne, 791

S.W.2d 10, 16 (Tenn. 1990)). The Appellant gave consent to search the apartment and was present

when the money was found. Also, he had been served with a seizure petition for the money. The

State explained why the evidence had not been discovered earlier and immediately disclosed the

information to defense counsel. Accordingly, we agree the trial court’s ruling admitting this

evidence as we find compliance with this rule. See also Tenn. R. Crim. P. 16, Note 22.

B. Character Evidence

Admissible proof must satisfy the threshold determination of relevancy mandated by

Tennessee Rule of Evidence 401, which defines relevant evidence as that "having any tendency to

make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence." Rule 403 adds that relevant

"evidence may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence." Tenn. R. Evid. 403. Finally, Rule 404

deals with "character evidence." Subsection (b) of this rule provides that "evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to show action in

conformity with the character trait." Tenn. R. Evid. 404(b).

Contrary to the assertion of the Appellant, Detective Starkey, in his testimony before the jury,

did not mention the Texas diamond theft. Rather, the jury was only told that $19,600 had been

discovered in the Appellant's apartment. Thus, the jury was not exposed to evidence of other crimes,

wrongs, or acts reflecting the Appellant's character as controlled by Rule 404(b). Regarding the

relevancy of the cash, the Appellant's argument that the money was not relevant because it

represented the proceeds of the diamond theft is, likewise, without merit. An issue of consequence

before the jury in this case was whether the Appellant had the intent to benefit in the proceeds or

results of the offense. Evidence of the money found in the Appellant’s apartment was relevant to

establish intent to benefit in the proceeds or results of the offense. Based upon the facts of the case,

we conclude, as did the trial court, that the jury could infer that the money located in the Appellant’s

apartment was the proceeds of the Rolex theft. To determine otherwise would prevent introduction

of a large sum of cash when an Appellant commits numerous thefts and allow him to benefit from

further criminal activity. Additionally, absent any proof to the contrary, we fail to see how Texas

would be better equipped to link a sum of cash to one robbery as opposed to another.3 The reason

3

At the motion for new trial hearing, defense counsel presented the court with the Appellant’s file from the

federal public defender’s office in the southern district of Florida. The Appellant contended that the file established that

the“$19,600 was tied to the theft of the diamonds.” However, the file only states, “Gomez consented to a search of the

apartment where he was staying and they found the black bag that had the diamonds in it, $19,600 cash, and 2 suitcases

full of $34,000 worth of stolen glasses[.]” The Appellant pled guilty to the diamond theft. As noted by the trial court,

(continued...)

-11-

the Appellant was in possession of the money is a jury question. Accordingly, the trial court properly

admitted the evidence. Furthermore, we conclude that, even if admission of the money was error,

such error was harmless and without prejudicial impact upon the jury due to the fact that the

Appellant was convicted of facilitation and, thus, the jury determined that the State had not proven

he had the intent to benefit in the proceeds or results of the offense. See Tenn. R. Crim. P. 52(a).

III. Co-defendant Guartos’ statements

Londono argues that “the trial court erred in admitting the statements attributed to Co-

defendant Guartos.” In order to establish the existence of a conspiracy, the State moved prior to trial

to declare Guartos unavailable as a witness and admit his redacted statements as statements against

penal interest, under Tennessee Rule of Evidence 804(b)(3), at the trial of the Appellants. The trial

court reserved ruling on the motion until further testimony was developed at trial.

Bryant Guartos was apparently the first to be apprehended and, according to the Appellant,

the State elected to sever his case and proceed to try him separately. He was convicted of first degree

felony murder, conspiracy to commit aggravated robbery, especially aggravated robbery, and

aggravated robbery. His case was on appeal at the time the Appellants went to trial. During a jury-

out proceeding, Guartos advised the court that he would exercise his Fifth Amendment privilege

against self-incrimination. He was not called to testify. At trial, Detective Tarkington testified that,

during his investigation of this case, he interviewed Guartos on March 19, 2000. At trial, Tarkington

testified to the following redacted version of Guartos’ statements:

He stated that he and the others were in Nashville. They stayed at the Howard

Johnson’s and they were, they came to Nashville in two rented vans. One was a wine

color or red color and the other one was white, and they took the seat out of one of

the vans because they needed more room, and he stated they sold the watches for

two-hundred-thirty-thousand dollars ($230,000.00) in Miami, and his proceeds from

that, his take of that was forty-thousand dollars ($40,000).4

3

(...continued)

“I guess if there was a trial and that money was introduced and was linked directly to that, you might have a different

issue. But the mere fact that the $19,600 is found,” does not preclude “that it’s related to the theft of the watches from

Carlyle & Company.” We agree with the conclusion of the trial court.

4

This statement was redacted by the State to be inculpatory only in nature. Guartos’ original statement as

transcribed by Detective Tarkington at the time of the interview reads:

He stated, “I was there. Maria was there. He named Jonathan, and Chato (Edwin Gomez),

Javier as the shooter, and an old man known as Mosquito as the driver of the wine colored van. He

stated they used two rented vans which they got from someone in Miami for $2500.00. One of the

vans was, “wine colored or red. The other was white.” He admitted they stayed at the Howard

Johnson Motel and used two rented rooms while in Nashville. He stated he and Maria were in the

wine colored van. According to Guartos the others were in the white van. H e stated he and Maria

took the seat out of the white van at the motel because they needed more room. Later he stated his

fingerprints should not have been found on the seat. W e asked why and his reply was they (others)

wiped it off. He stated they got $230,000.00 for the watches when they were sold in Miami. He stated

(continued...)

-12-

Detective Haney traveled with Detective Tarkington to Miami and participated in the interview with

Guartos. Detective Haney also testified as to the contents of Guartos’ statements. The trial court

ruled that the Guartos’ statements were admissible, finding that:

[O]ne of the issues I have to look at is whether or not Mr. Guartos, when he

gave this statement, which was against his penal interest, and that a person

reasonably situated in his position would have known it. Now that is how it is

relevant. . . . The issue is whether or not he really understood that this was going to

be to his detriment and that he also just wasn’t trying to shift blame.

Now as I see what [the State] is proposing really does not necessarily

implicate the defendants at all and with the prior - - okay, this is what I’m going to

rule. I’m going to rule with that . . . this statement can come in.

After each time the statement was testified to in the presence of the jury and in the written jury

charge, the trial court provided a cautionary instruction. The following instruction was provided to

the jury in the written charge:

You have heard testimony about statements which were alleged to have been

made by Bryant Guartos, and give it such weight, if any, as you believe it deserves.

However, you may only consider these statements on the issue of whether the

conspiracy charged in Count One existed. You may not consider this evidence in

determining whether a particular defendant joined in the charged conspiracy.

A. Statement Against Interest

Rule 804 of the Tennessee Rules of Evidence provides, in pertinent part, as follows:

The following are not excluded by the hearsay rule if the declarant is

unavailable as a witness:

....

(3) Statement Against Interest. - A statement which was at the time of its making so far

contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the

declarant to civil or criminal liability or to render invalid a claim by the declarant against

another, that a reasonable person in the declarant's position would not have made the

statement unless believing it to be true.

4

(...continued)

he used his $40,000.00 to buy his home in Miami.

W e note that, within this statement, a sentence has been “blacked-out” from the copy provided to this court and is, thus,

illegible.

-13-

The Advisory Commission Comments to the rule state that "this rule follows modern Tennessee law

by admitting declarations against penal interest as well as those against pecuniary or proprietary

interest."

We find no error by the trial court in admitting the statements of Bryant Guartos over

objection by the defense. See State v. Nathan Alex Weaver, No. M2001-00873-CCA-R3-CD (Tenn.

Crim. App. at Nashville, Apr. 15, 2003). Guartos was clearly an unavailable witness, see Tennessee

Rule of Evidence 804(a), and, because Guartos admitted to Detectives Tarkington and Haney that

he came to Nashville with others in two vans, white and wine-colored, stayed at the Howard

Johnson, and they got $230,000 for the watches from the robbery, the contested statements clearly

implicate Guartos in a crime. Furthermore, we note that Guartos was convicted of the crimes for

which the Appellants are currently on trial. We therefore conclude that Guartos’ statements were

admissible pursuant to Rule 804 of the Tennessee Rules of Evidence as statements against interest.

B. Confrontation Clause

Thus, we turn to the substance of the statement to determine its admissibility. See Nathan

Alex Weaver, No. M2001-00873-CCA-R3-CD. On its face, Guartos’ statements qualify as

statements against interest because, through his admissions, he exposed himself to liability for

multiple criminal charges. However, our inquiry is not ended as we must move from the technical

analysis of the rules to the broader analysis of the constitutional implications. People v. Farrell, 34

P.3d 401, 405 (Colo. 2001); Nathan Alex Weaver, No. M2001-00873-CCA-R3-CD. The

Confrontation Clause of the United States Constitution guarantees a criminal defendant the right to

confront witnesses against him or her. U.S. CONST . amend. VI; Davis v. Alaska, 415 U.S. 308, 315,

94 S. Ct. 1105, 1110 (1974). This right is also protected by the Tennessee Constitution. TENN .

CONST . art. I, § 9. The right of confrontation encompasses the right to cross-examine. Barber v.

Page, 390 U.S. 719, 721, 88 S. Ct. 1318, 1320 (1968). It is the principal means by which the

believability of a witness and the truth of his testimony are tested. Davis, 415 U.S. at 316, 94 S. Ct.

at 1110. The right to confront and cross-examine is not absolute however, and may, in appropriate

cases, bow to accommodate other legitimate interests in the criminal trial process. Chambers v.

Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046 (1973). Reliable hearsay which comports with

an exception to the hearsay rule does not violate a defendant's confrontation rights. State v. Causby,

706 S.W.2d 628, 631 (Tenn. 1986) (citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539

(1980)); see also State v. Kennedy, 7 S.W.3d 58, 65 (Tenn. Crim. App. 1999). Such statements are

deemed "so inherently trustworthy that adversarial testing would add little to their reliability."

Kennedy, 7 S.W.3d at 66. To meet that high burden of truthfulness, the statement must either (1)

fall within a firmly rooted hearsay exception or (2) bear particularized guarantees of trustworthiness.

Ohio v. Roberts, 448 U.S. at 66, 100 S. Ct. at 2539.

1. Firmly Rooted Hearsay Exception

The first question for our consideration is whether the statements made by Bryant Guartos

fall within a firmly rooted hearsay exception. Nathan Alex Weaver, No. M2001-00873-CCA-R3-

CD. We have affirmed the trial court's ruling that the statements made by Guartos to Detectives

Tarkington and Haney were statements against penal interest. Tenn. R. Evid. 804(b)(3). We must

thus address whether statements against penal interest qualify as a firmly rooted hearsay exception.

-14-

A co-defendant's confession given during a custodial interrogation may be motivated by the co-

defendant's desire to minimize his own culpability by implicating the accused and, therefore, courts

should view the statement with special suspicion. Farrell, 34 P.3d at 406; see also Lilly v. Virginia,

527 U.S. 116, 131-32, 119 S. Ct. 1887, 1897-98 (1999). A "statement against interest by a co-

defendant made during custodial interrogation does not fall within a firmly rooted hearsay

exception." Farrell, 34 P.3d at 406 (quoting Stevens v. People, 29 P.3d 305, 313 (Colo. 2001.))

Because Guartos is a co-defendant, who made statements against interest in the course of a custodial

interrogation, his statements cannot be classified as falling under a firmly rooted exception to the

hearsay rule. Nathan Alex Weaver, No. M2001-00873-CCA-R3-CD.

2. Guarantees of Trustworthiness

Accordingly, we turn to the question of whether Guartos’ statements possess sufficient

guarantees of trustworthiness to be admissible under the reliability requirements of the Confrontation

Clause. Lilly, 527 U.S. at 135, 119 S. Ct. at 1899; Roberts, 448 U.S. at 66, 100 S. Ct. at 3529. In

State v. Henderson, 554 S.W.2d 117 (Tenn. 1977), the Tennessee Supreme Court reviewed the

standards for determining when an out-of-court statement satisfies a defendant's confrontation rights

under both the United States and the Tennessee Constitutions. The court stated that at least three

criteria must be met in order to satisfy the Confrontation Clause: (1) the evidence to be presented

must not be “crucial” or “devastating,” (2) the State must make a good faith effort to secure the

presence of the person whose statement is to be offered against the defendant, and (3) the evidence

offered under a hearsay exception must bear its own “indicia of reliability.” Henderson, 554 S.W.2d

at 119-20.

The first prong of the test requires that the evidence to be admitted must not be "crucial" or

"devastating." Evidence is deemed "crucial" if it constitutes an essential element of the crime.

Henderson, 554 S.W.2d at 119; Kennedy, 7 S.W.3d at 65. In this case, the statements were offered

to prove that a conspiracy existed, but the jury was instructed that they could not consider the

statements “in determining whether a particular defendant joined in the conspiracy.” Thus, the

statements were not an essential element of the crime and did not constitute "crucial" or

"devastating" evidence. The second prong of the test requires the State to make a good faith effort

to secure the presence of the declarant. In this case, Guartos stated in court that he would assert his

Fifth Amendment privilege if called to testify. The State fulfilled its duty with regard to the second

prong.

Finally, the Henderson test requires that the evidence to be admitted bear its own “indicia

of reliability.” To determine whether the statement bears its own “indicia of reliability,” the

following factors should be considered: (1) whether the statement was truly self-inculpatory; (2)

whether the statement was detailed; (3) whether police officers threatened or coerced the defendant

to make the statement; (4) whether the confession was offered in exchange for leniency; (5) whether

the declarant was likely to have personal knowledge of the events in the statement; (6) whether the

declarant made the statement shortly after the described events; (7) whether the declarant had a

reason to retaliate against the defendant; and (8) whether the declarant was mentally or physically

unstable at the time of the confession. Farrell, 34 P.3d at 406-07. The statement as redacted was

truly self-inculpatory. Guartos understood that the giving of the statement was detrimental to him.

He accepted direct culpability, did not try to minimize his own involvement, and was not merely

-15-

trying to shift the blame. Moreover, it was detailed. The statement describes the various crimes and

sequence of events at a level that would be difficult to fabricate. Guartos specified the amount of

his share in the robbery and described the two vans that the group used in effectuating the robbery.

Detective Tarkington described the interview process as “very calm” and testified that he did not

make any promise of leniency in exchange for the confession. Guartos confessed to his involvement

in the crimes and named other individuals who participated in the robberies. He expressed no

animosity towards anyone. Additionally, Detective Tarkington testified that Guartos did not appear

to be under the influence of any intoxicant or exhibit any strange behavior.

Thus, we conclude that, although the statement does not fall into a firmly rooted hearsay

exception, it was nonetheless supported by sufficient guarantees of trustworthiness to support its

admissibility under the Confrontation Clause. The three prongs of the Henderson test were satisfied.

The trial court, after considering all relevant factors and cautioning the jury about the use of the

statements, properly admitted Guartos’ statements at the trial of the Appellants.

IV. Admissibility of Rogers’ statements

The Appellant contends the trial court erred by allowing the deceased Rogers’ inadmissible

hearsay statement into evidence at trial. He asserts that the statement did not qualify as either an

excited utterance, Tennessee Rule of Evidence 803(2), or a dying declaration, Tennessee Rule of

Evidence 804(b)(2). We disagree.

Officer Finchum was the first police officer to arrive at Green Hills Mall after the robbery

and shooting. Upon arrival Officer Finchum observed the victim, Roy Rogers, lying in the parking

lot with a “bullet hole in his chest.” According to Officer Finchum, Rogers looked “ashen[.] . . . He

was clearly in bad shape.” Officer Finchum further testified:

Well, again, he was laying down on his back. He had a bullet hole in his

chest, what appeared to be a bullet hole. . . . I immediately asked him what had

happened at that point in time, because it looked like he was kind of fading pretty

quick on me and I wanted to get as much information as I could from him as quick

as I could, and so I asked him, I said, you know, what happened, you know, and I said

who shot you? He said it was a man, a mulatto. He said he had on a dark hood. . .

. I asked him a couple more questions and I saw I really wasn’t going to get anything

more out of him. I again called the dispatcher and told them to have that ambulance

step it up.

Rogers died twenty-one days later from complications from his gunshot wound. The Appellant had

previously objected to the testimony about the assailant being “mulatto.”

Hearsay is a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted. Tenn. R. Evid. 801. Hearsay

statements, in general, are inadmissible. Notwithstanding, the reliability and circumstantial

guarantees of trustworthiness of certain nontestimonial statements have permitted courts to carve out

various limited exceptions to the hearsay rule.

-16-

The rules of evidence provide for an excited utterance exception to the hearsay rule. Tenn.

R. Evid. 803(2). An excited utterance is "[a] statement relating to a startling event or condition made

while the declarant was under the stress of excitement caused by the event or condition." Tenn. R.

Evid. 803(2); see also State v. Gordon, 952 S.W.2d 817, 819 (Tenn. 1997). In order for a statement

to qualify as an excited utterance, (1) there must be a startling event or condition, (2) the statement

must relate to the startling event or condition, and (3) the statement must be made while the declarant

is under the stress or excitement from the event or condition. Gordon, 952 S.W.2d at 820. The

underlying theory of this exception is that circumstances may produce a condition of excitement

which temporarily stills the capacity of reflection and produces utterances free of conscious

fabrication. State v. Land, 34 S.W.3d 516, 528-29 (Tenn. Crim. App. 2000). "The ultimate test is

spontaneity and logical relation to the main event and where an act or declaration springs out of the

transaction while the parties are still laboring under the excitement and strain of the circumstances

and at a time so near it as to preclude the idea of deliberation and fabrication." State v. Smith, 857

S.W.2d 1, 9 (Tenn. 1993) (citations omitted). Moreover, "it is well established that trial courts have

broad discretion in determining the admissibility of evidence, and their rulings will not be reversed

absent an abuse of that discretion." State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996) (citations

omitted).

In the instant case, being robbed at gun point and shot in the chest undoubtedly qualified as

a startling event. Additionally, the statement was made shortly after the event. Officer Finchum

arrived on the scene minutes after the robbery and shooting occurred. The statement related to the

identity of the assailant. Furthermore, Officer Finchum described Rogers as “ashen,” “in bad shape,”

and “fading pretty quick.” Based upon these facts, we conclude that the statement was made while

Rogers was under the stress of being robbed and shot. Accordingly, the statement qualified as an

excited utterance, and the trial court did not abuse its discretion by admitting the statement.

The trial court also considered admission of Rogers’ statement as a dying declaration and,

“as a matter of caution,” submitted an instruction to the jury in that regard. See 7 TENNESSEE

PRACTICE , TENNESSEE PATTERN JURY INSTRUCTIONS – CRIMINAL § 42.15 (Comm. of the Tenn.

Judicial Conference 5th ed. 2000). Tennessee Rule of Evidence 804(b)(2) provides the

circumstances that allow for the hearsay rule exception known as a dying declaration: "In a

prosecution for homicide, a statement made by the victim while believing that the declarant's death

was imminent and concerning the cause or circumstances of what the declarant believed to be

impending death." There are four preliminary facts that must be proven prior to admitting a hearsay

statement under the exception for a dying declaration: (1) the declarant must be dead, (2) the

statement must be admitted only in a homicide prosecution in which the declarant is the victim, (3)

the statement must concern the cause or circumstances of death, and (4) the declarant must have

spoken or written the statement under the belief that death was imminent. See NEIL P. COHEN ET AL.,

TENNESSEE LAW OF EVIDENCE , § 8.35[2] (4th ed. 2000). The last provides the indicia of reliability

and truth that justifies admission of the statement. Id.

During trial, the trial court ruled, “I will also again instruct the jury about a dying declaration

which will tell them about how they are to receive that because I think from what he testified to

about him being ashen, being shot in the chest, knew he was in grave condition, from Officer

Finchum’s testimony, that that would qualify[.] . . .” This court has previously held that it is not

necessary that the declarant state unequivocally a belief that death is imminent. State v. Maruja

-17-

Paquita Coleman, No. 01C01-9401-CR-00029 (Tenn. Crim. App. at Nashville, July 31, 1997).

"Awareness of impending death has been inferred from the language and condition of the declarant,

the facts and circumstances surrounding the statement, and medical testimony concerning the

seriousness of the victim's condition." Id. (citations omitted). Importantly, it is not necessary that

the victim die shortly after making the statement to qualify for the hearsay exception as a dying

declaration if the requirements of the rule are satisfied. Id. The law requires only that the declarant

believed death was "imminent;” proof that the dying declarant believed that death would come

within a specified number of hours or minutes is not reasonable. One authority states that the

rationale for this exception is that one facing imminent death will be truthful for fear of "eternal

consequences." COHEN , § 8.35[2]. Clearly, the declarant's belief is the crucial factor.

The Appellant contends that there was no proof that Rogers had the requisite belief in his

own imminent death. We disagree. According to the medical report, the cause of death was

determined to be complications from a gunshot wound to the chest. Mr. Nagele testified that the

victim yelled, “Gene, Gene, I’ve been shot, I’ve been shot” and that he kept saying, “stop the

bleeding, stop the bleeding.” The testimony of Officer Finchum indicated that Rogers believed he

was gravely injured. According to Dr. Thomas Deering, a foresenic pathologist, Rogers would have

died “within minutes to hours” had he not received medical attention because his injuries were

severe and “the bleeding would have been fairly extensive.” Given the facts, Rogers’ belief that his

death was imminent can be readily inferred. Since the evidence supports the trial court's conclusion

that the victim was aware of his impending death at the time he made the statement to Officer

Finchum, we cannot say that the trial court abused its discretion by admitting Rogers’ statement as

a dying declaration. The Appellant is not entitled to relief on this issue.

V. Sufficiency of the Evidence

Londono argues that the evidence introduced at trial was insufficient to support his

convictions for conspiracy to commit aggravated robbery, facilitation of the first degree felony

murder of Roy Rogers, facilitation of the especially aggravated robbery of Roy Rogers, and

facilitation of the aggravated robbery of Eugene Nagele. Specifically he is contending that the

evidence is insufficient because Deborah Sloan’s identification, Tiffany Dozier’s identification, and

the fingerprint evidence are unreliable.

A jury conviction removes the presumption of innocence with which a defendant is cloaked

and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of

demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

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). Likewise, it is not the duty of this

court to revisit questions of witness credibility on appeal, that function being within the province of

the trier of fact. State v. Holder, 15 S.W.3d 905, 911 (Tenn. 1999); State v. Burlison, 868 S.W.2d

713, 719 (Tenn. Crim. App. 1993). Instead, the Appellant must establish that the evidence presented

at trial was so deficient that no reasonable trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Moreover, the State

is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may

be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). These rules are applicable

-18-

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

both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.

1990).

The following definitions are pertinent to the convictions for which the Appellant was

convicted. First degree felony murder is defined as the "killing of another committed in the

perpetration of or attempt to perpetrate any . . . robbery[.]" Tenn. Code. Ann. § 39-13-202(a)(2)

(2003). Robbery is defined as "the intentional or knowing theft of property from the person of

another by violence or putting in fear." Tenn. Code Ann. § 39-13-401(a) (2003). Robbery is

aggravated when it is “[a]ccomplished with a deadly weapon or by display of any article used or

fashioned to lead the victim to reasonably believe it to be a deadly weapon[.]” Tenn. Code Ann. §

39-13-402(a)(1)(2003). Additionally, robbery becomes especially aggravated when it is

accomplished with a deadly weapon and the victim suffers serious bodily injury. Tenn. Code Ann.

§ 39-13-403(a) (2003). The Appellant was convicted of facilitation of these crimes. To support a

conviction for facilitation, it must be shown that an accused (1) knew another person intended to

commit a specified felony, (2) but without the intent to promote or assist the commission of the

offense or to benefit in the proceeds or results of the offense, (3) knowingly furnished substantial

assistance in the commission of the felony. Tenn. Code Ann. §§ 39-11-402(2), -403(a) (2003).

Finally, the Appellant was also convicted of conspiracy to commit aggravated robbery:

[I]f two (2) or more people, each having the culpable mental state required for the

offense which is the object of the conspiracy and each acting for the purpose of

promoting or facilitating commission of an offense, agree that one (1) or more of

them will engage in conduct which constitutes such offense.

Tenn. Code. Ann. § 39-12-103(a) (2003).

In the light most favorable to the State, the proof established that, on March 17, 1999, Rogers

and Nagele were removing approximately $750,000 worth of Rolex watches from Carlyle &

Company Jewelers, when they were robbed of the watches and Rogers was mortally wounded. The

assailants also took Nagele’s Colt pistol. Nagele was unable to identify any of the attackers but

testified that they spoke in a foreign language. Deborah Sloan, an eyewitness, saw the aftermath of

the shooting and the circumstances surrounding the robberies. She described the three men as having

“dark skin, dark hair, fairly-average height and weight.” Further, she stated that the men were in

their twenties and they drove away in a “purplish-maroon color” van. Ms. Sloan later identified

Gomez, Londono, and Guartos as the assailants. She also identified Londono and Gomez at trial.

Following an investigation, it was determined that the assailants stayed at a Howard Johnson Motel

on Charlotte Pike. A motel employee, Tiffany Lee Dozier, identified Gomez and Londono from

photographic arrays. Fingerprints taken from the hotel matched those of the Appellants.

Additionally, ammunition found in the motel closet was consistent with the bullet which struck the

victim Rogers. Also, phone records from the motel showed calls to pay phones in the Green Hills

Mall. Londono’s girlfriend, Julie Jimenez, testified that Londono related the events of the robbery

to her and that he stated he wanted to give her a Rolex watch. While he gave a different version of

events, he did admit to Jimenez that he took the watches. Upon a search of Londono’s burgundy van

in Miami, detectives found a postcard of the Nashville riverfront area. Additionally, upon a search

of Gomez’s Miami apartment, detectives found $19,600 in cash concealed beneath the kitchen

-19-

counter. In Guartos’ statement, he said they sold the watches for $230,000 and they got $40,000

each.

The determination of the weight and credibility of the testimony of witnesses and

reconciliation of conflicts in that testimony are matters entrusted exclusively to the trier of fact and

not this court. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Likewise, the credibility of

eyewitness testimony identifying the accused as the perpetrator of the criminal offense for which he

stands trial is a question of fact for the determination of the jury upon consideration of all competent

proof. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App.1993). The credible testimony of

one identification witness is sufficient to support a conviction if the witness viewed the accused

under such circumstances as would permit a positive identification to be made. Id. at 87-88. Despite

any conflicts within the proof at trial, as the arbiters of the credibility of the witnesses, the jury chose

to accredit the testimony of the State's witnesses and reject the claims of the Appellant. The

Appellant has had his day in court. This court may not reevaluate the evidence or substitute its

inferences for those drawn by the trier of fact from the evidence. Cabbage, 571 S.W.2d at 835. The

proof introduced at trial is legally sufficient to support the Appellant’s convictions. Accordingly,

we find that this issue is without merit.

VI. Sentencing

Following a sentencing hearing, both Appellants, as Range I standard offenders, received

respective sentences of six years for their convictions for conspiracy to commit aggravated robbery,

twenty-five years for their convictions for facilitation of first degree felony murder, twelve years for

their convictions for facilitation of especially aggravated robbery, and six years for their convictions

for facilitation of aggravated robbery. These sentences were ordered to be served consecutively to

one another. Londono's sentences were also ordered to be served consecutively to his federal

sentence for theft of diamonds and his Texas sentence for manslaughter. This was the maximum

sentence permissible for both Appellants. Both Appellants contend that the trial court improperly

applied enhancement factors and erred in imposing consecutive sentencing.

When an accused challenges the length, range, or the manner of service of a sentence, this

court has a duty to conduct a de novo review of the sentence with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997); State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). This presumption is "conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and all relevant facts

and circumstances." Ashby, 823 S.W.2d at 169. When conducting a de novo review of a sentence,

this court must consider: (a) the evidence, if any, received at the trial and the sentencing hearing; (b)

the pre-sentence report; (c) the principles of sentencing and arguments as to sentencing alternatives,

if so eligible; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory

mitigating or enhancement factors; (f) any statement that the Appellant made on his own behalf; and

(g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,

-103, -210 (1997); Ashby, 823 S.W.2d at 168. Furthermore, we emphasize that the Appellant bears

the burden of showing that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing

Commission Comments (2003).

-20-

A. Length

In determining the Appellants’ sentences, the trial court considered three enhancement

factors: (1) The Appellants have a previous history of criminal convictions or criminal behavior in

addition to those necessary to establish the appropriate range; (2) The Appellants were leaders in the

commission of the offense involving two or more criminal actors; and (3) The Appellants possessed

or employed a firearm, explosive device or other deadly weapon during the commission of the

offense. Tenn. Code Ann. § 40-35-114(1), (2), (9) (1997).5

The trial court applied enhancement factor (1) to all of the Appellants' convictions and gave

this factor great weight. Gomez does not challenge the use of this enhancement factor; however,

Londono does, arguing that this factor "should not have been applied since the criminal behavior

used occurred after the commission of the offense for which he stands convicted." The Appellant’s

criminal history includes a conviction for "Theft from Interstate Shipment, April 14, 1999, United

States District Court, Northern District of Texas, Ft. Worth Division."6 Londono's history also

includes a conviction for "Manslaughter, April 12, 2000, Houston, Texas, Criminal Court." The trial

court noted, "[F]or enhancing factors, factor number one, isn't there all kinds of case law that says

it doesn't even have to be convictions, but that the behavior can occur after the crime." Defense

counsel conceded that there was substantive case law contrary to his position but, nonetheless, argues

on appeal, without any citation to case law, that application of this factor amounts to "an ex post

facto type situation." This court has previously held that a sentencing court "can consider criminal

convictions or any other criminal behavior which occurred prior to the sentencing hearing as

constituting a previous history of criminal convictions or criminal behavior, regardless of whether

the convictions or behavior occurred before or after the criminal conduct under consideration." State

v. John Allen Chapman, No. 01C01-9604-CC-00137 (Tenn. Crim. App. at Nashville, Sept. 30, 1997)

(quoting State v. Poole, No. 02C01-9506-CC-00178 (Tenn. Crim. App. at Jackson, Jan. 31, 1996),

aff'd, 945 S.W.2d 93 (Tenn. 1997)); see also State v. Jordan, 116 S.W.3d 8, 24 (Tenn. Crim. App.

2003). Such past criminal behavior on the part of the Appellant adequately supports application of

enhancement factor (1) to all convictions.

With regard to contested enhancement factor (2), the Appellants were leaders in the

commission of the offenses, we find that the proof in the record supports its application. At the

sentencing hearing, the trial court observed,

[T]he facts in this case are pretty overwhelming in the sense of we have individuals

who decided that they were going to come to Nashville, Tennessee. They came here

in order to rob and to steal . . . Rolex watches, and they did a very methodical

approach, renting a hotel room at the Howard Johnson's, and the testimony from that

was that clearly there were two people that kept coming up to the registration, one of

5

W e note that, because of recent renumbering of the enhancements factors under this section, the correct

enhancement numbers are now (2), (3), and (10). See Tenn. Code Ann. § 40-35-114 (2003).

6

Neither of these convictions are contained in the presentence report; however, they were provided by the State

in its "Notice of Intent to Use Convictions or Prior Bad Acts for Impeachment Purposes."

-21-

which was Mr. Guartos and is the one who spoke English whereas the other

individual didn't.

There they arm themselves, clearly left behind a box of ammunition with Mr.

Londono's fingerprint on it, and there they proceeded to go to the Green Hills Mall

where they staked that out the day before. . . . They were . . . waiting for the

individuals to come out with the watches and there they committed the crime and

then sped off, and actually this crime, the way it was planned out so methodical,

probably would not have been solved if it hadn't been for the lady driving down the

Interstate.

In weighing this factor, the trial court stated, this factor "is going to be considered but the wieght is

not that great[.]" Both Appellants challenge the application of this factor. Gomez argues that he was

convicted of facilitation, and "the very definition of facilitation would negate a finding that he could

have been a leader in the offense." Londono contends that application of this factor was improper

because "the record is void of any testimony that places him in any sort of leadership position."

First, a trial court may apply an enhancement factor based on facts underlying an offense for which

the defendant has been acquitted, so long as the facts have been established in the record by a

preponderance of the evidence. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2003). Second, this

court has held that “enhancement for being a leader in the commission of an offense does not require

that the Appellant be the sole leader but only that he be ‘a’ leader” in the commission of the offense.

State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993) (citation omitted). We agree with the

finding of the trial court that, based upon the fingerprint evidence, the testimony at trial, and the

methodical nature of the crime, the Appellants were leaders in the commission of these offenses.

Accordingly, we find the trial court's application of enhancement factor (2) to all of the Appellants'

convictions was proper.

Finally, the trial court applied factor (9) only to the Appellants' convictions for facilitation

of first degree felony murder. Gomez contends that "there was no proof as to who possessed or fired

a weapon." Londono appears to be arguing that, because they were only convicted of facilitation,

their sentences cannot be enhanced based upon this factor as the jury rejected a theory of criminal

responsibility. The underlying felony in this case is the robbery of Rogers. Robbery is defined as

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

person in fear." Tenn. Code Ann. § 39-13-401(a). Thus, the use of a firearm is not an essential

element of robbery. However, while there is no question that a firearm was employed during the

commission of the offense, there is no evidence to connect the firearm to either Appellant. We

cannot conclude that this enhancement factor can be applied vicariously under the facts presented.

See State v. Johnny Wayne Harris and Gary L. (Jake) Harris, No. 03C01-9507-CC-00202 (Tenn.

Crim. App. At Knoxville, July 19, 1996). Accordingly, enhancement factor (9) does not apply to

the Appellants' convictions for facilitation of first degree felony murder.

When there are enhancement factors and no mitigating factors, there is no presumptive

sentence and the court may sentence above the minimum in the range. Tenn. Code. Ann. §

40-35-210(d). The weight to be afforded an existing factor is left to the trial court's discretion so

long as the court complies with the purposes and principles of the 1989 Sentencing Act and its

findings are adequately supported by the record. State v. Boggs, 932 S.W.2d 467, 475-76 (Tenn.

-22-

Crim. App. 1996). The weight to be afforded mitigating and enhancement factors derives from

balancing relative degrees of culpability within the totality of the circumstances of the case involved.

Id. at 476; see also State v. Marshall, 870 S.W.2d 532, 541 (Tenn. Crim. App. 1993). Enhancement

factors (1) and (2) are of particular weight in this case. Under these circumstances, the trial court

was justified in imposing the maximum sentence for each conviction.

B. Consecutive Sentencing

In its sentencing decision, the trial court imposed consecutive sentences with regard to each

Appellant. Concerning Gomez, the trial court reasoned in part as follows:

I am . . . going to find that he is a dangerous offender, and that the behavior indicates

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

the risk to human life was high.

He is also, and if I find that factor, in order to use consecutive sentences, I

have to determine that the aggregate term reasonably relates to the severity of the

offenses and it's necessary in order to protect the public from further serious criminal

conduct by the defendant.

Well, clearly, after these events, Mr. Gomez goes and is involved in another

major theft for which he has now been convicted in Federal Court for that, so clearly,

the aggregate sentence must be as great as possible in order to protect the public from

further serious criminal conduct. This is a horrible crime that occurred in this

community for which individuals decided to come here and do it. It is not a crime

for which it was spur of the moment or otherwise, so I'm going to find by definition

that he is a dangerous offender and given the history that it is a justly deserved

sentence under the circumstances pursuant to Wilkerson, so I am going to [order] all

sentences consecutive.

Gomez argues that consecutive sentencing was error because (1) the circumstances surrounding the

offenses in all counts, apart from those inherent in the offenses themselves, were not aggravated, (2)

the aggregate length of the sentence does not reasonably relate to his convictions, and (3) it is not

necessary to protect the public from future criminal activity by the Appellant. Furthermore, he

contends, citing State v. Massey, 757 S.W.2d 350, 353 (Tenn. Crim. App. 1986), that consecutive

sentencing is inappropriate "for 'episodic offenses,' i.e., one criminal act involving multiple victims,

or multiple offenses committed simultaneously or serially against a single victim. The offenses for

which the trial court imposed consecutive sentences involves (sic) one victim and were clearly part

of a single criminal episode."

Regarding Londono, the trial court imposed consecutive sentences and reasoned as follows:

[H]e 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 was

high. Looking at Wilkerson, in order to determine the appropriate sentence, I have

to determine that the aggregate term reasonably relates to the severity of the offenses.

-23-

Again, this was a horrible crime for which two security guards doing their job

were robbed of seven-hundred-fifty-thousand dollars ($750,000.00) worth of Rolex

watches in sort of an ambush situation, and necessary in order to protect the public

from further serious criminal conduct by the defendant. He has since been convicted

of manslaughter and a theft involving a large number of diamonds.

All that indicates that Mr. Londono needs the maximum sentence in this case,

so all sentences are going to run . . . consecutive to each other, consecutive to his

Federal sentence and consecutive to his Texas sentence[.] . . .

Londono contends that this decision was error because "in order to facilitate all of the results he

would necessarily have had to conspire with the others and therefore the offenses are inseparable and

therefore all of the conduct merges into one act for which he should have received concurrent

sentences."

Tennessee Code Annotated § 40-35-115(b)(4) (2003) provides that the sentencing court may

order sentences to run consecutively if the 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[.]" If a defendant is

found to be a dangerous offender, the court must also find that the aggregate sentence is reasonably

related to the severity of the offenses and is necessary to protect the public from further criminal

activity of the offender. State v. Wilkerson, 905 S.W.2d 933, 936-38 (Tenn. 1995); see also State

v. Lane, 3 S.W.3d 456 (Tenn. 1999) (holding Wilkerson factors were limited to sentencing of

"dangerous offenders"). Moreover, in determining whether the sentencing court providently

exercised its discretion, "the overriding concern" is the fairness of the resulting sentence under all

the circumstances. State v. Sullivan, No. M1999-02547-CCA-R3-CD (Tenn. Crim. App. at

Nashville, Oct. 13, 2000); see generally Gray v. State, 538 S.W.2d 391 (Tenn. 1976).

The focus is “upon the presence of aggravating circumstances” surrounding the crime or

crimes for which a defendant is on trial. Gray, 538 S.W.2d at 393. We find that, contrary to the

assertions of Gomez, State v. Massey is not controlling. In Massey the court observed that a criminal

episode, involving non-aggravated crimes, may become aggravated by the number of crimes

committed or the number of victims involved. Massey, 757 S.W.2d at 353. However, in the present

case, the crimes for which the Appellants were convicted are themselves aggravated.

The following aggravated circumstances exist. The Appellants are from Miami and traveled

to Nashville specifically for the purpose of committing this robbery. As the trial court noted:

They did a very methodical approach, renting a hotel room at the Howard Johnson's.

. . . There they arm themselves, clearly left behind a box of ammunition with Mr.

Londono's fingerprint on it, and there they proceeded to go to the Green Hills Mall

where they staked that out the day before. . . . They were . . . waiting for the

individuals to come out with the watches and there they committed the crime and

then sped off[.]

-24-

This was an “ambush situation.” They quickly knocked Nagele unconscious and stole his weapon.

Then, they executed Rogers. Additionally, after the commission of this robbery, both Appellants

were involved in a diamond theft in Texas.

Sentencing is inescapably a human process that neither can nor should be reduced to a set of

fixed and mechanical rules. Wilkerson, 905 S.W.2d at 938. The trial court imposed respective

consecutive sentences for an effective forty-nine-year sentence. Upon de novo review, we conclude

that the imposition of consecutive sentences for each Appellant was appropriate based upon their

classifications as dangerous offenders. Furthermore, the aggregate sentence imposed is reasonably

related to the severity of the offenses and is necessary to protect the public from further criminal acts

by the Appellants. Accordingly, the Appellants’ sentencing issues are without merit.

CONCLUSION

Based upon the foregoing, we conclude that the issues raised on appeal are without merit.

The trial court properly admitted (1) Deborah Sloan’s out-of-court and in-court identification of both

Appellants, (2) testimony concerning $19,600 found in Gomez’s apartment, (3) the statements of Co-

defendant Bryant Guartos, and (4) the statements of the victim Rogers as either an excited utterance

or a dying declaration. The evidence was sufficient to sustain the Appellants’ convictions. We

further conclude that the Appellants’ sentences were not excessive as to length and that consecutive

sentencing was appropriate. Accordingly, the judgments of conviction and resulting sentences are

affirmed.

___________________________________

DAVID G. HAYES, JUDGE

-25-