State of Tennessee v. Sherman Shaw

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 6, 2001

STATE OF TENNESSEE v. SHERMAN SHAW

Direct Appeal from the Criminal Court for Shelby County

No. 99-00712 Carolyn Wade Blackett, Judge

No. W2000-00384-CCA-R3-CD - Filed March 14, 2001

A Shelby County jury convicted the defendant of aggravated robbery. The trial court sentenced him

to 15 years as a Range II multiple offender. In this appeal, the defendant alleges (1) the trial court

erroneously admitted the defendant's custodial statement; (2) the evidence was insufficient to sustain

the defendant's conviction; (3) the cumulative effect of the trial court’s errors requires a new trial;

and (4) the defendant's sentence is excessive. After a thorough review of the record, we affirm the

judgment and sentence imposed by the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JERRY SMITH,

JJ., joined.

Michael E. Scholl, Memphis, Tennessee, for the appellant, Sherman Shaw.

Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Glen C. Baity, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The defendant was convicted of aggravated robbery and received a 15-year sentence. In this

appeal, the defendant alleges (1) the trial court erroneously admitted the defendant's custodial

statement; (2) the evidence was insufficient to sustain the defendant's conviction; (3) the cumulative

effect of the trial court’s errors requires a new trial; and (4) the defendant's sentence is excessive.

Upon our review of the record, we affirm the judgment and sentence imposed by the trial court.

I. FACTS

On September 10, 1998, shortly after 10:00 p.m., the defendant and his accomplice, Corey

Dean, entered a convenience store. The defendant and Dean approached the clerk, Mohammad Alia,

who knew both the defendant and Dean as they had been in the store on prior occasions. Neither the

defendant nor Dean was wearing a mask. The defendant asked if Alia had seen any police in the

neighborhood. When Alia replied “no,” Dean pointed a weapon at him, and the defendant ordered

Alia to open the register. The defendant then removed money from the register and took a pistol

which was hidden near the money. After retrieving the money and weapon, the defendant instructed

Dean to “shoot the mother f---er.” A customer entered the store, and the two men fled the scene.

Alia phoned the police and provided a description of the assailants, and the police were on the scene

within minutes.

The police located the defendant within one block of the scene, and although the defendant

initially fled, he was apprehended. The defendant stated that he ran from the officers because he

possessed a small bag of marijuana which he threw down during the officer’s pursuit; however, no

marijuana was found in the area. Alia identified the defendant near the location of his apprehension.

Dean was not located until several days later.

Investigator Michael Clark testified that he and Sergeant Stan Bowles interviewed the

defendant on September 11th at approximately 1:30 p.m. Clark further testified that the defendant

himself read his Miranda rights aloud and signed a waiver, and Clark informed the defendant of the

factual basis of his investigation. The defendant denied ever being inside the convenience store and

stated he ran because he possessed a small bag of marijuana.

Cory Dean was arrested on September 13th and inculpated the defendant in his statement to

police. Dean also took the authorities back to the area of the defendant’s arrest and led them to the

weapon used in the robbery. Clark re-interviewed the defendant on September 14th. Clark informed

the defendant of Dean’s arrest, and that Dean inculpated him. Thereafter, the defendant signed a

typed confession admitting to his participation in the robbery.

Corey Dean testified that it was the defendant’s idea to rob the store. He stated that after

they entered the store, the defendant handed him a pistol; the defendant took the money and a pistol

from behind the counter; and after they fled, they split the money.

The defendant testified that on September 10th, he was visiting his girlfriend’s apartment and

he decided to purchase some drinks. He left the apartment and while walking to the store, he met

Corey Dean who accompanied him to the store. The defendant further testified that after they

entered the store, Dean pointed a weapon at him and Alia and ordered the defendant to take the

money from the register. The defendant explained that he left the store with Dean because he was

fearful that if he failed to leave with Dean, then he and Alia would be killed.

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The defendant further testified that on September 11th when he was questioned, he refused

to provide Dean’s name because he feared Dean’s gang’s retaliation. The defendant testified that

on September 14th, when he was again interviewed, an unknown man entered the room and

threatened him with a club. He said he signed a fabricated statement due to the threats.

The state rebutted the defendant’s testimony with the testimony of Dean and Investigator

Clark. Dean stated that he was not a gang member and never pointed a weapon at the defendant.

Investigator Clark stated that during the defendant’s second interview, he and Officer Stan Bowles

were the only persons in the room; nobody else entered the room; and no night sticks or batons were

ever inside the room.

II. SUPPRESSION MOTION

The defendant contends his confession should have been suppressed. Specifically, the

defendant contends (1) there was unnecessary delay in taking him before a magistrate; (2) his

confession was involuntary; and (3) he was denied his right to counsel.

A. Suppression Hearing

At the suppression hearing, Investigator Clark testified that the defendant was arrested on

Thursday, September 10, 1998, at 10:18 p.m., and he first interviewed the defendant on Friday,

September 11th, at approximately 1:30 p.m. Before the interview, Clark gave the defendant a

Miranda rights form, and the defendant read it aloud and stated that he understood his rights. The

defendant then signed the Miranda waiver and indicated he wished to talk with Clark. During the

interrogation, the defendant denied any involvement in the robbery, denied ever being inside the

store, stated he ran from the officers because he possessed a small amount of marijuana, and

instructed Clark to re-interview him if “anything changed” in the case.

On September 13th, Corey Dean was arrested and inculpated the defendant. Due to the

defendant’s request for a re-interview if “anything changed” in the case, Clark re-interviewed the

defendant on September 14th and informed him of Dean’s statement. The defendant quickly

admitted his involvement in the robbery. Additionally, Clark testified that the defendant never

requested to speak with an attorney.

The defendant, on the other hand, testified that he had requested an attorney from Clark in

both interviews, but Clark denied his request. The defendant further testified that during the second

interview on September 14th, he was left alone in the room; an unknown person entered and

threatened him with a club; and due to his threats, the defendant signed a fabricated confession.

The trial court found that the defendant was duly advised of his Miranda rights and

voluntarily decided to give the statement. The trial court expressly found defendant’s testimony

lacking in credibility and concluded defendant was not threatened or coerced. Viewing “the totality

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of the circumstances,” the trial court found defendant’s allegations to be without merit and denied

the motion to suppress.

B. Standard of Review

The findings of fact made by the trial court at the hearing on a motion to suppress are binding

upon this Court unless the evidence contained in the record preponderates against them. State v.

England, 19 S.W.3d 762, 766 (Tenn. 2000). The trial court, as the trier of fact, is able to assess the

credibility of the witnesses, determine the weight and value to be afforded the evidence and resolves

any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, this Court

is not bound by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn.

1998). The application of the law to the facts found by the trial court are questions of law that this

court reviews de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the

burden of establishing that the evidence contained in the record preponderates against the findings

of fact made by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

C. Delay in Appearance Before a Magistrate

The Fourth Amendment requires that a judicial determination of probable cause be issued

promptly. Gerstein v. Pugh, 420 U.S. 103, 125, 95 S. Ct. 854, 43 L. Ed. 2d 54 (Tenn. 1975). When

a person subjected to a warrantless arrest confesses after being detained for more than 48 hours

without a judicial determination of probable cause, the confession should be excluded unless the

prosecution establishes that the confession was sufficiently an act of free will to purge the primary

taint of the unlawful invasion. State v. Huddleston, 924 S.W.2d 666, 674 (Tenn. 1996) (citing

Brown v. Illinois, 422 U.S. 590, 598, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)). However, the

issuance of a valid arrest warrant satisfies the requirement that there be a judicial determination of

probable cause. State v. Carter, 16 S.W.3d 762, 766 (Tenn. 2000) (citing Baker v. McCollan, 443

U.S. 137, 143, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979)).

Although it is unclear from the record exactly when an arrest warrant was issued, Investigator

Clark testified that “formal charges” were brought on the evening of September 12th. If so, this

satisfied the Gernstein requirement.

Tenn. R. Crim. P. 5(a) requires that one “arrested . . . be taken without unnecessary delay

before the nearest appropriate magistrate.” The “intimidating environment” is exacerbated when the

detainee is not properly brought before the magistrate. Huddleston, 924 S.W.2d at 670.

Regardless of whether there was a Gernstein and/or a Rule 5(a) violation, we conclude the

defendant is not entitled to relief. If there is a Gernstein violation, a court must look to the following

four factors to determine if the confession is admissible:

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(1) the presence or absence of Miranda warnings;

(2) the temporal proximity of the arrest and the confession;

(3) the presence of intervening circumstances; and finally,

of particular significance,

(4) the purpose and flagrancy of the official misconduct.

Huddleston, 924 S.W.2d at 674-75 (citing Brown, 422 U.S. at 603-04). A confession obtained

during a period of “unreasonable delay” in violation of Rule 5(a) is still admissible, provided the

totality of the circumstances reveal it was voluntarily given. Carter, 16 S.W.3d at 769; Huddleston,

924 S.W.2d at 670.

The evidence clearly establishes that the defendant received and understood the Miranda

warnings prior to giving his statement. This factor favors admission of the confession.

Next, we consider the temporal proximity of the defendant’s confession to his arrest. The

defendant was arrested at approximately 10:30 p.m. on September 10th, and his written confession

was obtained shortly after noon on September 14th, approximately 85 hours after his arrest.

Accordingly, this factor weighs in favor of suppression.

The third factor we must consider is whether an intervening circumstance occurred that

purged the taint of the defendant’s illegal detention. Clark testified that during the defendant’s

September 11th interview, the defendant specifically requested that Clark re-interview him if any

circumstances changed. The defendant’s signed confession corroborates this testimony. Dean was

arrested on September 13th and provided incriminating evidence implicating the defendant. This

information was conveyed by Clark to the defendant on September 14th, shortly before his

confession. We find that the defendant’s specific request to be re-interviewed by Clark and the

discovery of further incriminating evidence are intervening circumstances that favor admission of

the defendant’s confession.

The fourth factor we consider is the purpose and flagrancy of the official misconduct. In

Huddleston, an officer testified that the defendant “was detained so that the police could continue

the investigation and develop additional evidence.” 924 S.W.2d at 676. In the case at bar, the

defendant was not held for the purpose of gathering evidence to establish probable cause. The

defendant was arrested minutes after the robbery within one block of the crime scene, and the victim

positively identified the defendant at the time of the defendant’s arrest. The officer clearly had

sufficient probable cause to secure an arrest warrant at the time of the arrest. The arrest was around

10:30 p.m. on Thursday the 10th; the defendant denied involvement in his 1:30 p.m. statement on

Friday the 11th; “formal charges” were initiated on the evening of Saturday the 12th; the defendant

confessed shortly after noon on Monday the 14th; and defendant was taken before a magistrate that

same Monday. This factor favors admission of the confession.

Furthermore, the totality of the circumstances reveals the confession was voluntary. The

evidence supports the trial court’s finding that the statement was not the product of coercion or

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threats. There is nothing else in the record suggesting an involuntary statement. See Huddleston,

924 S.W.2d at 670 (listing the various factors to consider in determining whether a confession is

involuntary in light of a Rule 5(a) violation).

After consideration of the aforementioned factors, we conclude that the defendant’s

confession was properly admitted, regardless of whether or not there was a Fourth Amendment

violation and/or a Rule 5(a) violation. This issue is without merit.

C. Involuntary Statement

The defendant contends his written statement was involuntary, thus in violation of the Fifth

Amendment. We recognize that the relinquishment of Miranda rights must be voluntary and may

not be the product of intimidation or coercion. State v. Blackstock, 19 S.W.3d 200, 207-08 (Tenn.

2000) (citing State v. Stephenson, 878 S.W.2d 530, 544-45 (Tenn. 1994)). However, in light of the

factual findings by the trial court which are supported by the record as discussed above, there was

no intimidation or coercion. Thus, this issue is without merit.

D. Right to Counsel

The defendant contends he requested counsel, and his requests were ignored. Once an

accused requests counsel, the interrogation must cease. Edwards v. Arizona, 451 U.S. 477, 482,

1015 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). Any subsequent statement by the accused as a result of

police-initiated interrogation must be suppressed. Id. at 484-85.

Implicit in the factual findings by the trial court was that the defendant did not request

counsel. The evidence does not preponderate against this finding. This issue is without merit.

III. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence was insufficient to sustain his conviction for

aggravated robbery. We disagree.

A. Standard of Review

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

record to determine if the evidence adduced during the trial was sufficient "to support the findings

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

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

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

App.1996). The trier of fact, not this court, resolves questions concerning the credibility of the

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

evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Because a verdict of guilt

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removes the presumption of innocence and replaces it with a presumption of guilt, the accused has

the burden in this court of illustrating why the evidence is insufficient to support the verdict returned

by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973).

B. Analysis

The evidence was more than sufficient to sustain the defendant’s conviction. The defendant

was located minutes after the robbery within one block of the convenience store; the store’s clerk,

previously acquainted with the defendant, identified him at the scene, at a hearing, and at trial; Dean

testified that the defendant was his accomplice; and the defendant confessed to the crime. This issue

is without merit.

IV. CUMULATIVE ERROR

The defendant alleges the cumulative effect of trial errors requires that the defendant be

granted a new trial. Since we have found no errors, this issue is without merit.

V. SENTENCING

The defendant alleges that the trial court erroneously sentenced the defendant to an enhanced

sentence as a Range II offender and improperly applied enhancement factors. We disagree.

A. Standard of Review

This Court’s review of the sentence imposed by the trial court is de novo with a presumption

of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an

affirmative showing in the record that the trial judge considered the sentencing principles and all

relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of correctness and our

review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40-35-

210(c) provides that the presumptive sentence for most offenses shall be the minimum sentence

within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher,

805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court

should start at the minimum sentence, enhance the minimum sentence within the range for

enhancement factors and then reduce the sentence within the range for the mitigating factors. Tenn.

Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the statute, as the

weight given to each factor 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.

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State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim.

App. 1997); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments. Nevertheless,

should there be no mitigating factors, but enhancement factors are present, a trial court may set the

sentence above the minimum within the range. Tenn. Code Ann. § 40-35-210(d); Lavender, 967

S.W.2d at 806; Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).

B. Analysis

The trial judge entered excellent findings and first determined the defendant had prior

convictions for aggravated burglary and robbery, thereby making him a Range II offender. The trial

judge then applied sentencing enhancement factors (1) (a previous history of criminal convictions

or criminal behavior in addition to those necessary to establish the appropriate range) and (10) (no

hesitation about committing a crime when the risk to human life was high), and mitigating factor

(12) (the defendant acted under duress or under the domination of another person). See Tenn. Code

Ann. §§ 40-35-114(1) and (10), -113(12). The trial judge sentenced the defendant to 15 years in the

Department of Correction.

The defendant had two prior felony convictions consisting of aggravated burglary and

robbery, both Class C felonies. The defendant was properly classified as a Range II offender. See

Tenn. Code Ann. § 40-35-106(a)(1).

The defendant also had a prior conviction for misdemeanor larceny. The trial court properly

used this misdemeanor conviction under enhancement factor (1), although it is entitled to little

weight.

As for enhancement factor (10), the evidence clearly supports its application. The evidence

revealed that a customer came in the store during the robbery. Thus, this factor was properly applied

since one other than the victim was in the area and subject to injury. State v. Sims, 909 S.W.2d 46,

50 (Tenn. Crim. App. 1995).

The defendant faced a range of punishment of 12 to 20 years as a Range II offender. See

Tenn. Code Ann. § 40-35-112(b)(2). Considering the enhancement factors and mitigating factor

applied by the trial court, the 15-year sentence, which was less than mid-range, was appropriate.

This issue is without merit.

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CONCLUSION

Based upon the foregoing, we conclude (1) the trial court properly admitted the defendant’s

inculpatory statement; (2) the evidence was sufficient to sustain the defendant's conviction for

aggravated robbery; (3) there were no cumulative errors; and (4) the trial court properly sentenced

the defendant. Thus, the judgment of the trial court is affirmed.

___________________________________

JOE G. RILEY, JUDGE

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