The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
September 10, 2013 Session
STATE OF TENNESSEE v. DEMETRIUS HOLLINS
Appeal from the Criminal Court for Shelby County
No. 09-05640 Lee V. Coffee, Judge
No. W2012-02001-CCA-R3-CD - Filed November 25, 2013
The defendant, Demetrius Hollins, appeals his Shelby County Criminal Court jury
convictions of attempted second degree murder and especially aggravated robbery,
challenging the sufficiency of the convicting evidence and the exclusion of certain evidence,
as well as the imposition of consecutive sentencing. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed
J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and D. K ELLY T HOMAS, J R., JJ., joined.
Andrew M. Bonderud (on appeal); Samuel Rodriguez, III (at trial and on appeal); and Kevin
P. Henson (at trial), Memphis, Tennessee, for the appellant, Demetrius Hollins.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Stacy McEndree, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
On September 1, 2009, the Shelby County grand jury charged the defendant
with attempted first degree murder and especially aggravated robbery. The trial court
conducted a jury trial in May 2012.
At trial, Truman Greer testified that, on August 29, 2008, he stopped at a
McDonald’s restaurant on the way home from work with his co-workers, Calvin Walker and
“Little Joe.” Mr. Greer parked in the McDonald’s parking lot, and his co-workers walked
toward the restaurant. Mr. Greer remained in his car, and he decided to count the money he
had received earlier from cashing his paycheck. While he was counting his money, he
noticed a black man wearing a blue bandana to the left of his periphery; the bandana was
covering the man’s nose and mouth. Mr. Greer “just froze” when he saw the man, out of
concern that the man would notice the cash he was holding. The man approached the car
parked directly to the left of Mr. Greer’s vehicle. Mr. Greer heard the man say something
to the effect of, “Give me your money, sucker,” followed by the “bang” of a gunshot, at
which point Mr. Greer saw the victim slump over in the driver’s seat of his vehicle. The
gunman reached inside the victim’s vehicle and took something from the victim’s person.
Mr. Greer watched the shooter run across the street and out of his line of vision. Mr. Greer
ran inside the McDonald’s to get assistance for the victim.
On cross-examination, Mr. Greer acknowledged that, in the statement he gave
to the police on the evening of August 29, 2008, he described the gunman as either five feet,
four inches or five feet, five inches tall and estimated his age to be between 19 and 20. Mr.
Greer explained, however, that he was merely guessing, due to his very brief observation of
the gunman.
Calvin Walker testified that, when Mr. Greer parked his vehicle in the
McDonald’s parking lot, he and Joseph Brown, or “Little Joe,” got out of the car, and as they
began walking toward the restaurant, a white Lincoln Town Car with three men inside nearly
ran over them. The two gentlemen continued toward the restaurant. Mr. Walker opened the
door for Mr. Brown, and before Mr. Walker could step inside, he heard a gunshot. Mr.
Walker later gave a description of the three men to law enforcement officers, describing two
of the men as having “braids and tweeds in their head” and stating that the other man was
bald. Mr. Walker testified that one of the men “was young” but the other two men appeared
to be in their mid-30s. Mr. Walker also recalled that the Lincoln had a “[b]lue or red rag top
on it.” After he heard the gunshot, Mr. Walker saw a man running away from the
McDonald’s. The man he saw fleeing from the scene had “little tweeds or braids in his head”
and was wearing a white t-shirt and blue shorts. Mr. Walker did not notice a bandana. Mr.
Walker told Mr. Brown to get help for the victim, and Mr. Walker took off his shirt and
wrapped it around the head of the victim in an attempt to stop the bleeding from the gunshot
wound.
Mr. Walker testified that the victim was “hysterical.” Mr. Walker asked the
victim if he knew the man who had shot him, and the victim told Mr. Walker that “he knew
who had did it to him” although he did not give Mr. Walker a name. Mr. Walker observed
that the victim had been shot in the head, and he stated that “blood was everywhere.”
Emergency medical personnel arrived five to 10 minutes later. Mr. Walker testified that he
told law enforcement officers at the scene that the victim knew who had shot him. Mr.
Walker also informed law enforcement officers that he was only able to see the side of the
gunman’s face as he was fleeing from the scene. Mr. Walker was never shown a
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photographic lineup. At trial, Mr. Walker positively identified the defendant as the man he
saw running from the crime scene on August 29.
On cross-examination, Mr. Walker denied telling law enforcement officers on
the evening of August 29 that the victim did not know who shot him. When defense counsel
provided Mr. Walker with a copy of his signed statement, Mr. Walker denied that the
signature on the document was his. Mr. Walker also denied telling the defendant’s private
investigator that the victim did not know who had shot him.
Joseph Brown testified that he accompanied Mr. Greer and Mr. Walker to a
McDonald’s restaurant on August 29 at the end of the work day. Mr. Brown went inside the
restaurant to place his order, and while he was in inside, he heard a gunshot. Mr. Brown
waited inside the restaurant for “a minute” before walking outside. When he walked outside,
he saw the victim “slumped over in the car” with “a whole lot of folks trying to help him.”
Mr. Brown never spoke with anyone about the crime because he “didn’t see nothing.”
The victim, Willie Edwards, testified that he stopped at the McDonald’s
restaurant on August 29 before reporting for his shift at a Krystal restaurant. After ordering
his food inside the restaurant, he returned to his vehicle in the parking lot. He opened his car
door, placed his bag of food on the passenger seat, and sat down in the driver’s seat, but
before he was able to close the driver’s door, a man approached him and demanded that Mr.
Edwards “give [him] something.” When making this demand, the gunman lifted the hem of
his shirt to reveal a small, black revolver. Mr. Edwards took the gunman’s demand to mean
that he wanted money, and Mr. Edwards replied that he had nothing to give the man. Mr.
Edwards admitted at trial that he actually had $350 in cash in the right front pocket of his
shorts. After indicating to the gunman that he had no cash, Mr. Edwards next remembered
waking up on the passenger side of his vehicle, holding the left side of his head behind his
ear. He was covered in blood and was in pain. Mr. Edwards recalled a man at his side,
instructing him to stay still and applying pressure to his head wound. Mr. Edwards testified
that he had never seen that man before and that he had not seen him since the shooting until
he arrived at court to testify. Mr. Edwards did not recall speaking to any law enforcement
officers at the scene of the shooting.
Mr. Edwards described the gunman as a dark-skinned male with short braids
in his hair. Mr. Edwards did not recall anything covering the gunman’s face. He testified
that he had seen the gunman before because the gunman “used to stay in the same apartments
that [Mr. Edwards’] sister used to stay in” and where Mr. Edwards formerly resided when
he was a teenager. Mr. Edwards stated that he had seen the gunman around the Tulane
apartment complex nearly every day “[f]or about six months to a year.” Mr. Edwards stated
that the gunman’s apartment was “one door down” from Mr. Edwards’ sister’s apartment.
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At the time of the shooting, Mr. Edwards had not seen the gunman in five to six years.
Mr. Edwards testified that he recalled arriving at the hospital in the ambulance
but that he remembered nothing after that point until he awoke in the hospital with staples
on the left side of his head and a large scar behind his ear. He stated that he has lost all
hearing in his left ear. Mr. Edwards testified that a law enforcement officer spoke with him
after he awoke from surgery on August 30, and Mr. Edwards informed the officer that he
knew who had shot him, identifying the gunman by his nickname, “Main.” Mr. Edwards
provided the officer with identifying information about the gunman, including the name of
the gunman’s girlfriend and the address of the apartment where the gunman formerly resided.
Mr. Edwards testified that, after providing the officer with this information, the officer
returned later that same day with a photographic lineup, from which Mr. Edwards
immediately identified the defendant as the man who shot him. Mr. Edwards stated that he
did not realize the defendant had stolen his $350 until he was released from the hospital.
On cross-examination, Mr. Edwards acknowledged that, when he was residing
at the Tulane apartments, he did not know the defendant but that rather he was someone Mr.
Edwards would see in passing. He agreed that he had no disagreements or altercations with
the defendant while living at the Tulane apartments. Mr. Edwards testified that he did not
recall anything he might have said to Mr. Walker at the scene of the shooting before
emergency medical personnel arrived, nor did he recall speaking to law enforcement officers
shortly after the shooting.
On redirect examination, Mr. Edwards acknowledged that he had spoken with
Mr. Walker and some other people while in a waiting room prior to his testimony. He denied
speaking with any of them about the case or discussing their testimony.
Sergeant Charles C. Smith with the Memphis Police Department (“MPD”)
testified that, on August 29, 2008, he was assigned to Felony Response and was called to a
shooting at a McDonald’s restaurant. When he arrived at the scene, he encountered a grey
Ford Escort with an open driver’s door. He noticed what appeared to be blood on the
driver’s seat, as well as a McDonald’s drink cup and bag of food located on the console
between the front seats. Mr. Edwards had already been removed from the vehicle and
transported to the hospital. On cross-examination, Sergeant Smith acknowledged that one
of the witnesses to the shooting described seeing a white Lincoln Town Car with a tan top
and Mississippi tags at the scene, but the sergeant admitted that the MPD did not issue an
“APB” on the vehicle.
MPD Lieutenant Byron Hardaway testified that his supervisor sent him to the
Regional Medical Center (“the Med”) on August 29 to ascertain the condition of a shooting
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victim. Once Lieutenant Hardaway arrived at the Med, he spoke with the trauma center
physician, who informed him that the victim, Mr. Edwards, was in critical condition but was
alert. Lieutenant Hardaway was directed to a trauma room, where he encountered Mr.
Edwards lying on a gurney with his eyes open, awaiting a “CAT” scan. Lieutenant
Hardaway testified that he introduced himself and asked Mr. Edwards if he knew who shot
him, to which Mr. Edwards replied, “I don’t know.” Lieutenant Hardaway stated that Mr.
Edwards’ speech was slurred and barely comprehensible. Believing Mr. Edwards to be under
the influence of medication, Lieutenant Hardaway decided not to speak with him any further
at that time.
MPD Officer Terrence Holt testified that he was the first officer to arrive on
the scene of the shooting on August 29. When he arrived, he noticed a crowd gathered
around Mr. Edwards’ vehicle. Mr. Edwards was slumped over in the driver’s seat of the
vehicle with his left leg hanging out of the driver’s side door, and he was rocking back and
forth and bleeding from a head wound. Officer Holt attempted to question Mr. Edwards, but
Mr. Edwards could not respond. Officer Holt testified that it appeared as if Mr. Edwards
wanted to speak to him but was unable to do so.
MPD Sergeant J.D. Smith testified that he was with the Robbery Bureau in
August 2008. Mr. Edwards’ case was assigned to him on August 30, at which time Sergeant
Smith and his partner proceeded to the Med to speak with Mr. Edwards. When Sergeant
Smith arrived, Mr. Edwards’ head was bandaged, and Sergeant Smith described Mr.
Edwards’ demeanor as “calm and simple.” When Sergeant Smith inquired who had shot Mr.
Edwards, Mr. Edwards responded that he knew the gunman, whom he knew as “Main,” from
the Tulane Apartments where “Main” had resided with his girlfriend, Wanda. Sergeant
Smith used this information to determine that the defendant was the man known as “Main.”
Sergeant Smith then compiled a photographic lineup, which he presented to Mr. Edwards,
and Mr. Edwards “immediately” identified the defendant as the man who shot him.
On cross-examination, Sergeant Smith acknowledged that his superior officer
did not agree to issue an arrest warrant immediately after Mr. Edwards’ identification of the
defendant from the photographic lineup, believing that not enough evidence existed to issue
a warrant at that time.
With this evidence, the State rested its case. Following the trial court’s denial
of the defendant’s motion for judgment of acquittal and a Momon colloquy, see Momon v.
State, 18 S.W.3d 152, 161-62 (Tenn. 1999), the defendant elected not to testify but did
choose to present proof.
MPD Sergeant Investigator Robert Tutt testified that he interviewed Mr.
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Walker following the shooting on August 29. In the course of that interview, Sergeant Tutt
asked Mr. Walker if he had spoken with the victim, and Mr. Walker responded that he had
asked the victim who had shot him. Sergeant Tutt stated that Mr. Walker told him “that the
victim had been shot in the head and he wasn’t talking” and that “he wasn’t really saying
anything.” Sergeant Tutt testified that Mr. Walker also told him that the victim “said he
didn’t know who shot him.” Sergeant Tutt testified that it was his practice to ask witnesses
to review and sign their statements, and he stated that he had never forged a signature on a
witness’s statement.
Private investigator Lorea Negroni testified that she interviewed Mr. Walker
at the behest of the defendant on May 11, 2011, at Mr. Walker’s place of employment. Ms.
Negroni testified that Mr. Walker was “very open,” describing what he had seen on August
29, 2008, and providing Ms. Negroni with his telephone number in the event that she needed
to speak with him again. Ms. Negroni stated that Mr. Walker told her that he had asked the
victim who had shot him and that the victim replied that he did not know. Ms. Negroni
described the interview as “pleasant” and denied that Mr. Walker had been uncooperative
with her.
Based on this evidence, the jury convicted the defendant as charged of
especially aggravated robbery and the lesser offense of attempted second degree murder.
Following a sentencing hearing, the trial court sentenced the defendant to 20 years on the
attempted second degree murder conviction, to be served consecutively to a 40-year sentence
for the especially aggravated robbery conviction, for an effective sentence of 60 years.
Following the denial of his timely but unsuccessful motion for a new trial, the
defendant filed a timely notice of appeal. In this appeal, the defendant argues that the
evidence adduced at trial was insufficient to support his convictions and that the trial court
erred by excluding the testimony of defense witness, Laurel Miles. In addition, the defendant
argues that the sentence imposed was excessive. We consider each claim in turn.
I. Sufficiency
The defendant first contends that the evidence was insufficient to support his
convictions of attempted second degree murder and especially aggravated robbery. We
disagree.
We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324
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(1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).
When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the evidence,
as well as all factual issues raised by the evidence are resolved by the trier of fact. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State
the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. Id.
As charged in this case, “[e]specially aggravated robbery is robbery as defined
in § 39-13-401 . . . [a]ccomplished with a deadly weapon; and . . . [w]here the victim suffers
serious bodily injury.” Id. § 39-13-403(a). “Second degree murder is . . . [a] knowing killing
of another.” T.C.A. § 39-13-210. “A person acts knowingly with respect to a result of the
person’s conduct when the person is aware that the conduct is reasonably certain to cause the
result.” Id. § 39-11-302(b). “A person commits criminal attempt who, acting with the kind
of culpability otherwise required for the offense . . . [a]cts with intent to cause a result that
is an element of the offense, and believes the conduct will cause the result without further
conduct on the person’s part[.]” Id. § 39-12-101(a)(2).
Here, the proof adduced at trial established that the defendant approached Mr.
Edwards in the McDonald’s parking lot and demanded that Mr. Edwards “give [him]
something,” while lifting the front of his shirt to reveal a handgun. When Mr. Edwards
stated that he had nothing for the defendant, the defendant shot Mr. Edwards one time in the
head, stole $350 from Mr. Edwards’ pocket, and fled the scene. The shooting caused
permanent hearing loss in Mr. Edwards’ left ear. Both Mr. Edwards and Mr. Walker
positively identified the defendant as the shooter, and Mr. Edwards explained that he
recognized the defendant because the two had, at one time, lived in the same apartment
complex for several months.
The defendant argues that the State’s eyewitnesses provided inconsistent
descriptions of the assailant and stresses that Mr. Edwards initially told Sergeant Hardaway
that he did not know who had shot him. In addition, the defendant points to the testimony
of defense witnesses Sergeant Tutt and Ms. Negroni, both of whom claimed that Mr. Walker
stated that the victim could not identify the shooter. The jury heard all of this testimony and
clearly believed the State’s witnesses, as was their prerogative. Questions of witness
credibility and all factual issues are resolved by the jury. See Cabbage, 571 S.W.2d at 835.
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Viewing this evidence in the light most favorable to the prosecution, we hold the evidence
adduced at trial sufficiently established that the defendant robbed and attempted to murder
the victim and thus is guilty of attempted second degree murder and especially aggravated
robbery.
II. Witness Testimony
The defendant next contends that the trial court erred in excluding the
testimony of defense witness, Laurel Miles, offered for the sole purpose of attacking the
credibility of the State’s eyewitnesses. The trial court conducted a hearing outside the
presence of the jury, at which the defense argued that Ms. Miles had observed the State’s
eyewitnesses conversing in a holding room prior to testifying. The defense advanced the
theory that the four men were discussing the case, which led Mr. Walker to change his
testimony as to whether Mr. Edwards knew who had shot him. The trial court determined
that the proffered testimony of Ms. Miles was irrelevant and thus should be excluded.
However, the trial court allowed the defense to examine Ms. Miles outside the jury’s
presence to make an offer of proof.
Laurel Miles, a recent college graduate who had studied criminal justice,
testified that she had observed the entire trial out of personal interest. Ms. Miles testified
that, prior to the testimony of Mr. Greer, Mr. Brown, Mr. Walker, and Mr. Edwards, she
observed the four gentlemen “sitting in the clear holding area” having “a casual
conversation.” She stated that she was unable to hear anything that the men said. Ms. Miles
observed that the four gentlemen were “pretty close together having a conversation.” On
cross-examination, Ms. Miles clarified that two of the men were sitting next to one another
on a bench and the other two men were standing nearby.
In excluding this testimony, the trial court stated that it could not function as
rebuttal testimony because there was nothing to rebut:
Had [Mr. Edwards] told the jury that, “No, I did not have any
conversations with anyone in the witness room,” it would be
proper rebuttal at that point, if there was a witness that would
[say] that, “Yeah, I actually saw him talking to folks in the
witness room.” But what he has testified to is that he did, in
fact, have a conversation with these folks, but he did not talk to
them about anything relating to the substance of his testimony,
did not talk to – did not discuss the case with any of the
witnesses.
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...
So the testimony from the witness, purported witness,
would be, “I saw conversation.” Apparently cannot say, “I
heard conversation,” cannot say exactly what may have been
heard or what may have been said, cannot say that she actually
saw these people talking about the case, but she saw them
talking, and . . . Mr. Edwards did, in fact, tell the jury that he did
have conversations with the people in the witness room but it
was simply saying hello.
Now, people say hello a lot of different ways. Some
people can say, “Hello, how are you doing,” and some people
can say, “Hello,” and start talking about the Grizzlies or the
weather or a lot of other things, but he clearly said, “We had no
conversations about the case,” so it would not be rebuttal to say
that, yeah, they did have conversations, they were talking. . . .
....
So if this evidence were presented, what I’m being asked
to do is to allow the jury to speculate that Mr. Edwards was not
telling the truth and that they might have [been] talking about
the case, and the [c]ourt has told the jury that they cannot base
the verdict on speculation, that it has to be based on the facts, on
the evidence and on the law, and there is nothing on the record
that would indicate that Mr. Edwards has not told the truth about
whether or not he had conversations about the case, . . . .
....
And for those reasons, the [c]ourt will find that the
purported testimony from that witness would not be relevant,
under 401. It’s not admissible, under 402, and the danger of
unfair prejudice substantially outweighs any probative value that
that testimony could happen [sic] and would simply lead the jury
to go back and start speculating, and that is something that they
cannot do, . . . .
Questions concerning evidentiary relevance rest within the sound discretion of
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the trial court, and this court will not interfere with the exercise of this discretion in the
absence of a clear abuse appearing on the face of the record. See State v. DuBose, 953
S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993); State
v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). An abuse of discretion occurs when the trial
court applies an incorrect legal standard or reaches a conclusion that is “illogical or
unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204 S.W.3d
772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)); see also
State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).
Relevant evidence is evidence “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.” Tenn. R. Evid. 401. “Evidence which is
not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed relevant,
it may be still be excluded “if the 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.
We see no abuse of discretion in the trial court’s decision to exclude the
testimony of Ms. Miles. Because Mr. Edwards admitted conversing with the other State’s
witnesses prior to testifying, Ms. Miles’s testimony that she saw the four men engaged in
conversation would in no way rebut Mr. Edwards’ testimony. Moreover, the fact that Ms.
Miles was unable to hear the gentlemen’s conversation rendered her testimony irrelevant
because it offered nothing in the way of facts of consequence to the determination of this
case. Accordingly, the exclusion of Ms. Miles’s testimony was not error.
The defendant also argues that the trial court’s decision to exclude the
testimony of Ms. Miles violated his Sixth Amendment right to confront witnesses against
him. The defendant did not make this argument before the trial court, however, and “[i]ssues
raised for the first time on appeal are considered waived.” State v. Johnson, 970 S.W.2d 500,
508 (Tenn. Crim. App. 1996). Moreover, as acknowledged by the defendant in his argument
before this court, the Confrontation Clause is inapplicable in situations involving
impeachment of an adverse witness through a third-party witness. The Sixth Circuit Court
of Appeals has stated that, “[w]ith respect to a defendant’s ability to present extrinsic
evidence for impeachment, moreover, this court has noted that the Supreme Court has not
recognized the sweep of the Confrontation Clause ‘to encompass the right to impeach an
adverse witness by putting on a third-party witness.’” Jordan v. Warden, Lebanon Corr.
Inst., 675 F.3d 586, 597 (6th Cir. 2012) (quoting Harrington v. Jackson, 1 F. App’x 367, 370
(6th Cir. 2001)); see also Nevada v. Jackson, 133 S. Ct. 1990, 1994 (2013) (citing Delaware
v. Fensterer, 474 U.S. 15, 22 (1985), and Jordan, 675 F.3d at 596 and stating that “this Court
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has never held that the Confrontation Clause entitles a criminal defendant to introduce
extrinsic evidence for impeachment purposes”). The defendant’s reliance on this argument
is misplaced, and we need not consider it any further.
III. Sentencing
Finally, the defendant challenges the sentence imposed by the trial court,
arguing that the trial court erred by ordering consecutive service of the sentences. The
defendant does not, however, frame his argument as a traditional challenge to sentence
alignment but rather contends that the consecutive service of sentences for attempted second
degree murder and especially aggravated robbery violates principles of double jeopardy. We
disagree.
Double jeopardy principles embodied in the Fifth Amendment to the United
States Constitution protect defendants from twice being placed in jeopardy for the same
offense by barring (1) a second prosecution for the same offense following acquittal, (2) a
second prosecution for the same offense after conviction, and (3) multiple punishments for
the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Benton v. Maryland,
395 U.S. 784 (1969); see also Tenn. Const. art. I, § 10; State v. Watkins, 362 S.W.3d 530,
548 (Tenn. 2012). “Whether multiple convictions violate double jeopardy is a mixed
question of law and fact,” which appellate courts review de novo with no presumption of
correctness. Watkins, 362 S.W.3d at 539.
In Watkins, our supreme court rejected the analysis for double jeopardy
questions found in State v. Denton, 938 S.W.2d 373 (Tenn. 1996), and it adopted in its place
“the Blockburger [v. United States, 284 U.S. 299, 304 (1932)] same elements test currently
utilized by the federal courts and the vast majority of our sister states.” Watkins, 362 S.W.3d
at 556. The threshold inquiry is whether the convictions at issue arose out of the “same act
or transaction.” Id. If that question is answered in the affirmative, then the court must
determine whether the statutory elements are the same. Id. at 557. If, however, “each
offense includes an element that the other does not, the statutes do not define the ‘same
offense’ for double jeopardy purposes, and we will presume that the Legislature intended to
permit multiple punishments.” Id.
In the instant case, the defendant’s convictions unquestionably arose from the
“same act or transaction.” The defendant demanded that Mr. Edwards “give him something”
while raising his shirt to reveal the handgun in his waistband. When Mr. Edwards did not
comply, the defendant shot him in the head, causing serious bodily injury, and stole his
money. Turning to the elements of the two crimes, especially aggravated robbery involves
the knowing or intentional theft of property from a person, accomplished with a deadly
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weapon and resulting in serious bodily injury to the victim. T.C.A. §§ 39-13-401, -403.
Second degree murder is the knowing killing of another, T.C.A. § 39-13-210(a)(1), and
criminal attempt is defined as “acting with the kind of culpability otherwise required for the
offense” while intending “to cause a result that is an element of the offense” and believing
“the conduct will cause the result without further conduct on the person’s part[,]” id. § 39-12-
101(a)(2). Clearly, each of these offenses contain elements the other does not. Especially
aggravated robbery must involve a theft, must be accomplished with a deadly weapon, and
must cause serious bodily injury, whereas attempted second degree murder involves the
intent to kill someone. As such, separate convictions of attempted second degree murder and
especially aggravated robbery do not violate principles of double jeopardy.
Although the defendant does not appear to take issue with the trial court’s
findings, we find no error in the trial court’s decision to impose consecutive sentencing.
When a defendant is convicted of multiple crimes, the trial court may order the sentence to
be served consecutively if it finds by a preponderance of the evidence that a defendant falls
into one of seven categories listed in Tennessee Code Annotated section 40-35-115. They
are:
(1) The defendant is a professional criminal who has knowingly
devoted the defendant’s life to criminal acts as major source of
livelihood;
(2) The defendant is an offender whose record of criminal
activity is extensive;
(3) The defendant is a dangerous mentally abnormal person so
declared by a competent psychiatrist who concludes as a result
of an investigation prior to sentencing that the defendant’s
criminal conduct has been characterized by a pattern of
repetitive or compulsive behavior with heedless indifference to
consequences;
(4) The defendant is a dangerous offender whose behavior
indicates little or no regard for human life, and no hesitation
about committing a crime in which the risk to human life is
high;
(5) The defendant is convicted of two (2) or more statutory
offenses involving sexual abuse of a minor with consideration
of the aggravating circumstances arising from the relationship
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between the defendant and victim or victims, the time span of
defendant’s undetected sexual activity, the nature and scope of
the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed while
on probation; or
(7) The defendant is sentenced for criminal contempt.
T.C.A. § 40-35-115(b). The existence of a single category is sufficient to warrant the
imposition of consecutive sentences. See State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim.
App. 1997). In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), the supreme court imposed
two additional requirements for consecutive sentencing when the “dangerous offender”
category is used: the court must find that consecutive sentences are reasonably related to the
severity of the offenses committed and are necessary to protect the public from further
criminal conduct. Id. at 937-39; see State v. Imfeld, 70 S.W.3d 698,707-08 (Tenn. 2002).
In the instant case, the trial court based its decision to order consecutive
sentencing on findings that the defendant had an extensive history of criminal activity and
that the defendant was a dangerous offender. See T.C.A. § 40-35-115(b)(2), (4). The trial
court noted that the defendant’s criminal activity spanned 24 years and that “the only thing
that stops [the defendant] from committing crimes is when he is in prison.” With respect to
the dangerous offender category, the trial court found that the defendant continued to carry
firearms “when he knows he has no legal ability to do so” and noted that the only reason the
defendant appeared to have shot Mr. Edwards was that the victim “apparently [was] not
moving quickly enough when [the defendant] demanded property from Mr. Edwards.” The
trial court examined the Wilkerson factors and found that consecutive sentences “reasonably
relate[] to the severity of the offenses for which the [d]efendant stands convicted and are, in
fact, necessary in order to protect the public from further criminal acts by [the defendant].”
These findings are more than “sufficient to warrant the imposition of consecutive sentences.”
Adams, 973 S.W.2d at 231. Accordingly, we find no error in the trial court’s decision to
impose consecutive sentencing.
IV. Conclusion
The evidence is sufficient to support the defendant’s convictions. The trial
court did not err by excluding the testimony of Ms. Miles or by imposing consecutive
sentencing. Accordingly, we affirm the judgments of the trial court.
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JAMES CURWOOD WITT, JR., JUDGE
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