State v. Delivetrick Blocker

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED NOVEMB ER SESSION, 1998 March 10, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9803-CR-00120 )

Appellee, )

)

) HAMILTON COUNTY VS. )

) HON. GARY D. GERBITZ, DELIVETRICK D. BLOCKER, ) JUDGE )

Appe llant. ) (Felon y Murd er, Esp ecially ) Aggravated Robbery)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAMILTON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

PHILIP L. DUVAL JOHN KNOX WALKUP 537 Market Street, Suite 204 Attorney General and Reporter Chattanooga, TN 37402 R. STEPHEN JOBE

Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243-0493

BILL COX

District Attorney General

RODNEY STRONG

Assistant District Attorney General Suite 300, Courts Building Chattanooga, TN 37402

OPINION FILED ________________________ AFFIRMED IN PART; MODIFIED IN PART; REMANDED DAVID H. WELLES, JUDGE

OPINION

The Defen dant, Delivetrick D. Blocker, appeals as of right his convictions and sentences for especially aggravated robbery and first degree murder committed during the pe rpetra tion of e spec ially aggravated robbery. Following sentencing hearings, the jury sen tenced Defen dant to life imprisonment without the possibility of p arole for his murder conviction; and the trial court sentenced him to twenty-two years for especially aggravated robbery, to be served consecutive to his life sentence. We affirm Defendant’s conviction for felony murder and m odify his conviction for especially aggravated robbery to attempted especially aggra vated robbe ry.

In this appe al, Defen dant pre sents seven issues for review: (1) whether the trial court erred by denying his motion to suppress his pretrial statement to police, (2) wheth er the tr ial cou rt erred by allow ing a witnes s to tes tify that th e victim carried a wallet, (3) whether the trial court erred by failing to grant his motion for judgment of acquittal and whether the evidence was sufficient to s ustain his convictions, (4) whether the trial court abused its discretion by ordering the sentence for especially aggra vated robbe ry to be served co nsec utive to h is sentence of life imprisonment without parole, (5) whether a juvenile may be senten ced to life w ithout the p ossibility of parole, and (6) whether the trial cou rt erred by permitting the jury to sente nce h im to life withou t the po ssibility o f parole based up on the single ag gravating factor of felon y murder.

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In this case, the proof at trial showed that Defendant and his severed co-

defendants, cous in Rob ert Blo cker a nd Ca lvin Tra mm ell, who w ere all juveniles at the time of this crime,1 called for a taxicab from a Hamilton County convenience store. When it arrived, they instructed the driver to take them appro ximate ly one-ha lf mile, to a location that the State characterized as wooded and secluded, along a street with several vaca nt homes . As the perpe trators exited the car, Defen dant heard Robert Bloc ker dema nd mon ey from the driver, who reache d over be tween th e seats. Defendant told police that he believed the driver was reaching for a gun, so he pulled a saw ed-off s hotgu n from his pants and po inted it at the d river. He the n shot the driver at a range between six and twelve inches fro m his he ad. All three perpetrators fled the scene, and an area home owner d iscovere d the victim when th e taxicab c rashed into her pa tio.

I. MOTION TO SUPPRESS

Defendant contends that the trial court erred by failing to suppress the statement he made to police on the night he was arrested. He argues (1) that officers did not advise him of his Miranda rights u ntil after he m ade his s tateme nt, and (2) that waiver of his rights was not voluntary, knowing, and intelligent, but rather the product of coercion and intimidation. Both the juvenile court, prior to Defe ndan t’s transfer, and the Hamilton County Criminal Court held hearings on this matter, and b oth denied the motion to sup press. W e affirm this decision, concluding that the evid ence d oes no t prepon derate against finding that officers did not que stion De fendan t prior to informing him of his Miranda rights and that his waiver was volu ntary, kno wing, an d intelligent.

1 Defendant was seventeen years old at the time of this crime.

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Juvenile Court Hearing

At Defendant’s suppression hearing in the Juvenile Court for Hamilton County, the judge hea rd testimony for the State from D etective Tim Carroll, who stated that he read D efend ant his Miranda rights in the presence of Def enda nt’s mother prior to any questioning about the murder. Carroll denied having any discussions regarding the outcome of the case, and he denied making any promises in exchange for a statement. Carroll also denied threatening Defendant to induce him to provide a statement. The detective testified that Defendant and his mother signed the waiver of rights form, and that Detective Tommy W oods and Ke n McC rary, a juven ile officer, also witnesse d Defe ndant’s s ignature .

On cross -exam ination at the ju venile cou rt hear ing, De tective C arroll acknowledged that four o r five oth er office rs acc omp anied him to Defe ndan t’s home at the time of the arrest, that Defe ndan t was ta ken s epara tely from his mother to the police service ce nter, and that Defe ndant d id not have an opportu nity to confer in private with his mother prior to his interview. Furthermore, the detective stated that he had a conversation with Defendant before he turned on the tape recorder to record the statement, but not before he read Defendant his Miranda rights.

Defe ndan t’s mother testified that on the day of his a rrest, her son opened the door, s aw the officers , and s aid he would get his m other. Ac cording to Ms. Blocker, officers followed Defendant back into the house and told Defendant that they were ta king h im in for questioning a bout a mu rder. They told Ms . Blocker, while in her son’s presence, that she needed to come to the police service center because she “knew about” the crim e and “cou ld also be arreste d.”

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When asked “at what point [Defendant] was read his Miranda rights in the interview ro om,” Ms. Blocker replied, “After Tim Carroll told him if he bullshitted him, he’d make sure he’d g et the g __d_ __ ch air and my so n said , okay, I’ll te ll you what you want to kn ow.” Ms. Blocker also testified, “In my presence the man just kept saying that he know [sic] what happened and that I knew what happened and if he kept—if he kept—if my son bullshitted him, he’d m ake sure he got the chair a nd he k ept cursin g my so n.” She stated that the Miranda rights waiver form “was read as the man was signing it, as the man was writing out the thing,” and she affirmed that Defendant acknowledged on tape that he had signed the waiver. When asked on tape whether they had been threatened, neither Defendant nor his mother stated that threats had been made.

Defendant also testified at the juvenile suppression hearing. He stated,

When we came ou t of the house [on the night of arrest], Dete ctive Tim Carroll pu lled me a way from a fe male officer and took me across the street and he said what do you know about the cab driver murder. I said I d on’t kn ow no thing. H e said before this nig ht is over your g__d___ ass is going to know something and he took me back o ver there to her, to the fe male o fficer.

He affirmed that officers told his mother “she could be arrested for knowing something about the mu rder.” De fendan t stated tha t he signe d the rights waiver “[a]fter Tim C arroll kept like makin g his little threa ts abou t the electric c hair.” He stated that no one read the form to him, that the threats scared him, and that he would not have made a statement to police had he not been threatened with the electric ch air.

Defendant testified , “First, [C arroll] asked me, asked me my story. After he wrote a ll of that d own, h e told me— had m e to sig n it and he did n’t read it off

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to me or nothing, asked m e to sign it.” He claimed that his Miranda rights were read to him for the first time on the tape recording, after he had given his version of events and signed the waiver. He admitted that he had an opportunity to read the waiver be fore he s igned it, bu t stated tha t he did no t because he was “too busy” and “thinking about the threats [Carroll] made and thinking about [his] mama and [his] sisters.” Finally, Defendant acknowledged that he stated on the tape recording that he understood his rights, waived his right to a lawyer, and waived h is right to rem ain silent.

The juvenile court judge ruled in favor of the State, denying D efend ant’s motion to suppress. She stated that she did not find evidence of coercion and force so as to render the waiver of rights involuntary. Furthermore, she stated,

I think there is a logical time frame laid out in this that supports the testimony of the offic er and [is] also supportive of the testimony of these paren ts over here. . . . I d on’t find anythin g inconsistent with the State’s testimony and I find nothing offered by the defen dants on this through their witnesses to believe that these were anything other than voluntarily obtained by the o fficers in the co urse o f this investigatio n that nigh t.

Criminal Court Hearing

After Defendant was tran sferred to the Ham ilton Cou nty Crimina l Court to be tried as an adult, that court held another suppression hearing, in which the juvenile hearing transcript was entered into evidence. Detective Carroll and Defendant testified consistently with the prior hearing. Defendant’s mother, Ms. Blocker, reiterated her previous testim ony bu t adde d that D etective Carro ll told her at least three times tha t “they were going to try to have [D efenda nt]

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electrocu ted.” At the same time, she testified that Carroll told Defendant, “[I]f you tell me what I want to know, I’ll go to the Judge and I’ll talk to the Judge and te ll him that you coope rated and I’ll do . . . what I can for you.” In addition, she testified that her son could read only at a third-grade level—not well enough to understand the Miranda waiver form— and th at he h ad alre ady told officers his story twice before ever being read those rights (during the tape recorded portion of the state ment).

The trial court denied the motion to suppress, making several findings: (1)

the defendants were properly arrested; (2) the requests made of the parents and guardians to be present were proper; (3) statements made to Ms. Blocker regarding her possible knowledge of the facts were not coercive in nature; (4) the procedure in the interview room and police se rvice center hallways was extre mely reasonable, timely, and no t coercive; (5 ) no que stioning to ok place prior to proper admonitions under Miranda; (6) the time s equen ce betw een the rights offerings and the actual taping of the statements was extremely reasonable; (7) the interviewing between individuals was rea sonable an d very understandable; and (8) the officers were not required to inform the parents of their function to advise their children during the interviewing process.

Our supreme court very recently discussed the manner of analysis for waiver of constitution al rights by ju venile crim inal defen dants. See State v. Callahan, 979 S.W.2d 577 (Tenn. 1998). In Callahan, the court h eld,

[J]uven ile waivers shall be analyzed under a totality-of-thecircumstances test that requires consideration of the following factors:

(1) consideration of all circumstances surrounding the interrogation including the juve nile’s age, experience, education, and intelligence;

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(2) the juvenile’s capacity to understand the Miranda warnings and the consequences of the waiver;

(3) the juvenile’s familiarity with Miranda warning s or the ab ility to read and write in the langua ge use d to give the warning s;

(4) any intoxica tion;

(5) any mental disease, disorder, or retardation; and (6) the pre sence of a pare nt, guard ian, or intere sted ad ult.

Id. at 583.

Regarding appellate review of a trial court’s denial of motions to suppress evidence, our supreme court advised,

Questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entruste d to the trial judge as the trier of fact. The party prevailing in the trial c ourt is e ntitled to the strongest legitimate view of the evidence addu ced a t the su ppres sion h earing as we ll as all reaso nable and legitimate inferences that may be drawn from that evidence. So long as the greater weight of the evide nce su pports the trial cou rt's findin gs, tho se find ings shall be upheld. In other words, a trial court's findings of fact in a suppression hearing will be uphe ld unless th e eviden ce prep ondera tes other wise. . . .

Hereafter, the prop er standard to be applied in reviewing suppression issues is the “preponderance of the evidence”

standard.

State v. Odom, 928 S.W .2d 18, 23 (Tenn . 1996). F rom the above re citation of the facts, we find that the trial court properly considered the totality of the circumstances surrounding the interrogation when making the decision to deny Defe ndan t’s motion to suppr ess. Fur thermo re, we co nclude that the evidence does not preponderate against the trial court’s denial. Where the trial judge found c onflicts among the statements by Detective Carroll, Defendant, and Ms. Blocker, he appeared to resolve them in favor of Detective Carroll, which was reaso nable and n ot imp roper in his role as the trier of fact. This issue lack s merit.

II. HABIT TESTIMONY

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Defe ndan t’s second assignment of error involves the testimony at trial by the victim’s niece, Terry Smith . Smith , a sub stitute w itness who a ppare ntly provided substantially the same testimony as the anticipated witness, another member of the victim’s family, responded to direct examination as follows:

Q. How well did you know your uncle?

A. Very w ell.

Q. Prior to Octobe r 8, 1995, how often would you see your uncle?

A. Everyday.

Q. Are you familiar with items that he may have c arried on his person?

A. Yes, sir.

Q. Wo uld he ev er carry a w allet?

A. Yes, sir.

Q. Did you often see that wallet?

A. Yes, sir.

Q. Wh at type of w allet was it?

A. It was a brown trifold.

Q. Wh at did he h ave in tha t wallet?

A. He would carry picture s and large— his larg e bills he would keep in h is wallet.

Smith also testified that, to her knowledge, members of her family had not received this wallet from the hospital, the police, or the Mercury Cab Co mpany, the victim’s emplo yer. Upo n cross- exam ination, Sm ith testified that sh e hers elf had not been the recipient of her uncle’s personal items returned from the hosp ital, police, and cab company. In addition, she confirmed that some other items, such as a shoe and sock, were never recovered.

Defendant charge s, in esse nce, that S mith’s sta temen ts should have been excluded because the testimony is so speculative that it lacks relevance to the issue of whether the victim carried the wallet on the day of his death. The issue

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is significant because no other evidence of theft exists in the reco rd to sup port a conviction for espe cially aggravated rob bery. 2

The State responds by arguing that Smith’s testimony was admissible as evidence that the victim h ad a h abit of carry ing a wallet, introduced for the purpose of inferring conduct in conformity therewith on the day at issue—in other words, that because the victim had been seen carrying a wallet in the p ast, and because no wallet had been returned to the victim’s family, Defendant or one of his co-pe rpetrators must h ave take n the wa llet.

Tennessee Rule of Evidence 406 states:

(a) Evidence of the habit of a person, an animal, or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye-witnes ses, is relevant to prove that the conduct of the person, animal, or organization on a particular occasion was in conformity with the habit or routine practice.

(b) A habit is a regular respo nse to a repe ated s pecific situation. A routine practice is a regular course of conduct of an organization.

Hab it evidence must be distinguished from character evidence governed by Tennessee Rule of Eviden ce 404. W hereas un der Rule 40 4(b), evidence of prior acts may not be introdu ced “to prove the character of a person in order to show action in conformity with the c haracter trait,” there is no such limitation on evidence not introduced to prove a trait of character. One commentator has remarked, “Since Rule 406 adm its evidence that would probably be admitted anyway unde r the ge neral re levanc e princ iples e mbra ced in Rule 4 01, it is

2 See supra Part III.

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argua ble that Rule 406 adds little new to modern evidence law.” Neil P. Cohen et al., Tennessee Law of Evidence 200 (3d ed. 199 5).

W e agree with Defendant that the State did not demonstrate through witness Terry Smith that the victim habitu ally carried a wallet, as a regular response to a repe ated specific situa tion. How ever, bec ause th e tende ncy to carry a wallet daily cannot be construed as proof of the “character of a person in order to show action in conformity with a ch aracter trait,” there are no limitations placed by Rule 404(b) on the admissibility of the evidence. Therefore, so long as the testimony was “relevant” within the meaning of Rule 401,3 it need not rise to the level of habit evidence under R ule 406 —to be evid ence of hab it would only supple ment its a dmiss ibility.

Accord ing to Te nness ee Ru le of Evide nce 10 3,

[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . .

[i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection if the specific ground was not apparent from the context. 4

Tenn. R. Evid. 103(a)(1). Furthermore, the general “standard of review where the decis ion of the trial judge is based on the relevanc e of the proffered e vidence under Rules 401 a nd 40 2 is abuse of disc retion.” State v. DuBose, 953 S.W.2d 649, 652 (Tenn . 1997); State v. West, 737 S.W.2d 790, 793-94 (Tenn. Crim. App.

3 “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence.” Tenn. R. Evid. 401.

4 This matter was addressed by counsel for Defendant in a jury-out hearing prior to the witness’s testimony.

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1987) (citing Strickland v. City of Lawrence burg, 611 S.W .2d 832 , 835 (T enn. C t. App. 19 80)).

In this case, we find both (1) that no substantial right has been affected within the meaning of Rule 103, and (2) that the trial court did not abuse discretion by adm itting the testim ony of T erry Sm ith. This issu e lacks m erit.

III. MOTION FOR ACQUITTAL/SUFFICIENCY OF EVIDENCE At the conclusion of the State’s proof, Defendant moved for judgment of acquittal on the basis of the sufficiency of the proo f, and his motion was denied. He argues now be fore this C ourt that the evidenc e was ins ufficient to susta in his convictions. We conclud e that the e vidence was insu fficient to supp ort his conviction for especially aggravated robbery and that this conviction should be modified to attempted especially aggra vated robbe ry. However, despite this lack of eviden ce, De fenda nt’s felo ny mu rder co nviction is well supported by proof that he committed an attempted especially aggra vated robbe ry. We the refore affirm his conviction for first degree felony murde r.

Tennessee Rule of App ellate Procedu re 13(e) presc ribes that “[f]indings of guilt in criminal actions wh ether by the trial court or jury shall be set aside if the evidence is insufficient to support the finding by the trier of fact beyond a reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence was insu fficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.

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Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329, 331 (T enn. 19 77)); State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Holt v. State, 357 S.W .2d 57, 61 (T enn. 1962 ).

In its review of the eviden ce, an appe llate court must afford the State “the strongest legitim ate view of the e videnc e as w ell as all reasonable and legitimate inferences that may be drawn the refrom.” Tug gle, 639 S.W.2d at 914 (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re- weigh or re-evaluate the evidence” in the reco rd below . Evans, 838 S.W.2d at 191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court find particular conflicts in the trial testimony, the court must resolve them in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.

The offens e of es pecia lly aggrava ted robbery is “robbery as defined in § 39-13-4 01 . . . [a]ccomplished with a deadly weapon . . . [and w ]here th e victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-403. Tennessee Code Annotated § 39-13-401 defines robbery as “the intentional or knowing theft of property from the person of ano ther by violenc e or pu tting the perso n in fear.” Id. § 39-13-4 01. Fina lly, “[a] person com mits theft o f property if, with intent to deprive the owner of property, the person knowingly obtains or exercises control over the prope rty without the owne r’s effective consent.” Id. § 39-14-103.

As noted above in Part II, the on ly evidenc e in the rec ord tend ing to show that the victim carried a wallet a t the tim e of his death cons isted o f Terry Smith ’s one-word affirmations in response to “Would he ever carry a wallet?” and “D id you often see that wallet?” In addition, the only proof that the victim carried

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money on the night of his death was Smith’s statement that he sometimes carried large bills in his wallet. 5 No other p roof of a theft of p roper ty is con tained in this record.

W e find Sm ith’s testimony, and the statements by Smith and an investigative officer that no wallet was recovered during the investigation, to be insufficient to permit the jury to find a theft had occurred. To hold otherwise, this Court would have to determine that the jury properly inferred one of two scenarios. First, because the victim drove a taxicab, he must have possessed more money at the time of his death than was returned to his fa mily, an d this money must have been taken by the p erpetr ators. S econ d, bec ause the victim ’s niece had often seen him carry a wallet, he must have carried one that night (even though Smith never stated ho w often sh e had s een the wallet, nor did she testify to a time frame prior to the murder during which she saw it); and because no wallet was recove red, the perpe trators must have taken the wallet. We reject both scenarios as impermissible leaps of faith for the jury. Therefore, we must modify Defen dant’s co nviction for especially aggravated robbery to one for attemp ted esp ecially agg ravated ro bbery.

Conviction by a jury for the greate r offens e nec essa rily includes a finding of guilt on eac h elem ent of a les ser includ ed offen se. Even though we mo dify Defe ndan t’s conviction for especially aggravated robbe ry to atte mpte d esp ecially aggravated robbery, we nevertheless uphold his conviction for first degree felony murder by finding that the evidence was more than sufficient to find that the

5 Although the State introduced proof that the victim had been paid approximately two dollars for his last fare before his death, the record reflects that the hospital returned “small bills” to the deceased’s family.

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murder was com mitted during the pe rpetra tion of a ttemp ted es pecia lly aggrava ted robb ery.

For the indicted count of felony murder, the jury was charged in part as follows:

For you to find the defendant guilty of murder in the first degree under this count of the indictmen t, the State mus t have proven beyond a reasonable doubt the following:

1. Th e defe ndan t unlaw fully killed the victim ;

2. The de fendant acted recklessly; 6 3. The killing was committed in the perpetration of or the attempted [sic] to perpetrate the allegedly especially aggravated robbery. That is that the killing was closely connected to the alleged espe cially aggravated robbery and was not a separate, distinct and indepe ndent e vent;

And 4. That the defendant intended to commit the alleged especially aggra vated robbe ry.

Furtherm ore, Te nness ee Co de Ann otated § 39-12-1 01 states :

A person commits criminal attempt who, acting with the kind of culpab ility otherwise required for the offense . . . [a]cts with inte nt to comp lete a course of action o r cause a result tha t would co nstitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substa ntial step tow ard the c omm ission of the offense.

Tenn. C ode Ann . § 39-12-101 (a)(3).

Defe ndan t’s own statement to police contains sufficient evidence to convict him of felony murder based upon attempted especially aggravated robbery. The group of men, who had been out walking throughout the evening, called a taxicab and requested to b e taken a distan ce of appro ximately one-half mile. As Defendant told police, “I get [sic] out of the car to go and knock on the door cause

6 Although this jury instruction was erroneous—a reckless mental state was no longer required for the offense of felony murder at the time this crime occurred—we find that such error was harmless because it heightened rather than lowered the level of proof necessary for the jury to convict Defendant. Furthermore, the error was not preserved for review.

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I was going over to a friend [sic] house and by th at time I he ard Ca lvin, I turned around and heard Calvin asking the cab driver for money, say did he have any mone y.” Then , “Cab driver s tarted d igging in the side of his seat then I ran over there, put the gun to his he ad.” D efend ant’s s tatem ent late r reflects this exchange:

Carroll: And what did you tell him.

D. Blocker: Told him to start reaching.

Carro ll: Get his hands up.

D. Blocker: No. Just . . He was reaching through his head and I say start reaching between, you know what I’m saying, I was saying just start reaching.

Defendant then admitted that he shot the vic tim and ran from the scen e. W e conclude that the evidence was sufficient to permit the jury to find Defendant guilty of first degree murder committed during the attempt to perpetrate an especially aggra vated robbe ry.

Because the jury con victed De fendan t of killing the victim during an espe cially aggravated robbery (though no t supported by th e proof), we be lieve its verdict c learly inc orpor ated a ll the ele men ts of a killing during an attempted especially aggravated robbery, which the proof supports.

IV. MODIFICATION OF SENTENCE Following Defenda nt’s sentencing for first degree felony m urder, the trial court held a sentencing hearing for Defendant’s conviction for especially aggravated robbery and sentenced him to twenty-two years as a Range I offender, to be served cons ecutive to his sentence of life imprisonment without the pos sibility of parole .

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When an accused challenges the length, range, o r mann er of service of a sentence, this Court has a duty to conduct a de novo review of the sen tence w ith a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirm ative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn . 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arg umen ts as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement made by the defendant regarding sentencing; and (g) the potential or lack of potential for rehab ilitation or treatm ent. State v. S mith, 735 S.W.2d 859, 863 (Tenn. Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210. We use the same criteria to determine the appropriate modification of Defendant’s sentence in conjunction with our modification of his conviction from especially aggravated robbery to attem pted espec ially aggravated rob bery.

In this case, the trial court found that the range for especially aggravated robbery was fifteen to twenty-five years, and that sentencing considerations for this offense should begin at the mid-po int of the ran ge, twen ty years. See Tenn. Code Ann. § 40-35-210(c). In addition, the trial judge first found that enhancement factor one—that “[t]he defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the

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approp riate range”— was ap plicable. See Tenn. C ode Ann . § 40-35-114 (1). Although he did not consider Defendant’s prior crimes to be “major offenses,” he found that the crimes were concentrated in a very short period of time—between the ages of fourteen and eighteen. He therefore increased Defendant’s sentence from the twenty-yea r mid-po int to twenty-tw o years.

Next, the trial judge rejected enhancement factors two and eight—that “[t]he defendant was a leader in the commission of an offense involving two (2) or more criminal actors” and that “[t]he defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the comm unity,” respectively. See id. § 40-35-114(2), (8). The judge noted that he did not find “any significant basis” to support a determination that Defendant was the leader in commission of the robbery, despite the fact that Defendant shot the victim. Furthermore, he declined to find any significant history of unwillingness to comply with conditions of release because Defendant committed the offense as a juvenile, and all previous criminal conviction s were fro m the juv enile cou rt.

The trial judge then considered and rejected the three mitigating factors presented by Defe ndant. First, the judge found mitigating factor two—that “[t]he defendant acted unde r strong provo cation ”—in applic able b ecau se this case did not “involve a theft case where an individual is stealing food for his family,” and because he found no other proof of pr ovocatio n in the rec ord. See id. § 40-35- 113(2). Next, he rejected mitigating factor eight, that “[t]he defendant was suffering from a mental or physical condition that significantly reduced the defendant’s culpability for the offens e.” In supp ort, the trial judge noted that he found nothing in the expert testimony presented to indicate a disability within the

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meaning of this mitigating factor. Finally, although he noted that Defendant was seventeen years old at the time of the offense, he also found that the Defendant was “streetw ise,” an d there fore “co nside rably older” than seventeen. Thus, he rejected mitigating factor six, which states, “The defendant, because of youth or old age, lacked substantial judgment in committing the offense.” See id. 40-35- 113(6).

The range fo r a stand ard offen der con victed of atte mpted e spec ially aggravated robbery, a Class B felony, is betw een eig ht and tw elve years . See Tenn. Code Ann. §§ 39-12-107; 39-13-403. According to sentencing guidelines, consideration shou ld begin at th e minim um for th e range . See id. § 40-35-21 0(c), (d). W e therefore enhance Defendant’s sentence in accordance with the findings of the trial cour t, and we sentence Defendant to nine years as a standard range I offender for attem pted espec ially aggravated rob bery.

V. CONSECUTIVE SENTENCING After concluding that Defendant was a dangerous offender due to the number and in creas ing se verity of h is prior convictions, the type of offenses in the convictions at bar, the lack of indication that rehabilitation would be succe ssful, and the nee d for the pu blic to be protected from these type of offenses; the trial judge approved consecutive sentencing, with Defendant’s twenty-two year senten ce to be s erved co nsecu tive to his sentence of life without th e poss ibility of parole . See id. § 40-35 -115(a)( 4).

Defendant contends in this appeal that consecutive sentencing is improper because the proof does not support the trial court’s finding that he is a dangerous

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offender. We conclude that the trial court fulfilled its role in the sentencing process such that its findings concerning consecutive sentencing should be reviewed de novo with a pres umption of correctne ss. Afte r cond ucting this review, we conclude that the trial court did not err by finding Defendant to be a dange rous offe nder an d orderin g his sen tences served c onsec utively.

Tennessee Code Annotated § 40-35-115 pro vides that if the trial court finds a defendan t to be “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 huma n life is high,” it may order m ultiple sentences served cons ecutively. Id. § 40-35 -115( a)(4). O ur sup reme court h as exp lained , “‘Lack of hes itation’ is sem antica lly close to ‘reckless indifference’ and signifies a conscious lack of concern for foreseeable c onseque nces.” State v. Wilkerson, 905 S.W.2d 933, 937 (Ten n. 199 5). In ad dition, “[t]h e proo f mus t also esta blish that the terms imposed are reasonably related to the severity of the offenses comm itted and are necessa ry in order to protect the public from furth er crimina l acts by the offende r.” Id. at 938. Finally, the trial court must consider the general sentencing principles contained in Tennessee Code Annotated §§ 40-35-102(1), 40-35-103(1), and 40- 35-103 (2). Id.

The transcript o f Defend ant’s sen tencing h earing re flects that the trial court considered these general sentencing principles as well as the other factors enumerated above. Furthermore, we have reviewed the record and conclude that it supports the trial court’s decision. W ith regard to the factor of protecting society from further criminal acts by the offender, it has bee n posited that there can be no n ecessity to further protect so ciety from an offend er sente nced to life

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imprisonment without parole, and that consecutive sentencing would therefore never satisfy th is criteria in such a case . Wh ile this argume nt certainly bears logic,7 we note that our supreme court has d eclined to give the claim merit, denying permission to appeal in several cases in which an additional sentence has been ordered served consecutive to a sentence of life imprisonment without parole. See, e.g., State v. Robinson, 930 S.W.2d 78, 75 (Tenn. Crim. App. 1995), perm. to appeal denied (Tenn . 1996); State v. Leon Barnett Collier, No. 03C01-9602-CR-00072, 1997 WL 9722 (Tenn. Crim. App., Knoxville, Jan. 13, 1997), perm. to appeal denied (Tenn . 1997); State v. Sammie Lee Taylor, No. 02C01-9501-CR-00029, 1996 WL 580997 (Tenn. Crim. App., Jackson, Oct. 10, 1996), perm. to appeal denied (Tenn. 1997). Furthe rmore, the su preme co urt has upheld running a sentence consecutive to a sentence of death. State v. Black, 815 S.W.2d 166, 191 (Tenn. 1991). Rather than attempting further analysis, we defer to the guidance of our supreme court and to the discretion of the trial judge and order the modified sentence of nine years for attempted espe cially aggrava ted robb ery to be se rved co nsec utive to D efend ant’s sentence for felony murde r.

VI. LIFE WITHOUT PAROLE FOR JUVENILES Defendant next contends that the trial court erred by permitting the jury to sentence him to life imprisonment without parole when he committed these crimes as a juvenile. He argues that our legislature has prohibited sentencing a juvenile to death in order to g rant juven iles anoth er chan ce at life, see Tenn. Code Ann. § 37-1-134(a)(1); and he asserts that the same rationa le sho uld ap ply

7 The legislature has provided that a person sentenced to life without parole shall never be eligible to be released on parole. Tenn. Code Ann. § 40-35-501(h)(2).

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to a senten ce of life without parole. Furthermore, he suggests that while the statute authorizing the penalty of life witho ut paro le does not specifically exclude juvenile de fendan ts, neither d oes the statute de clare them eligible.

Tennessee Code Annotated § 37-1-134 provides in part, “The district attorney general may not seek, nor may any child transferred under the provisions of this section [from the juvenile court] receive, a sentence of death for the offense fo r which the child was transferre d.” Id. § 37-1-134(a)(1). We find that the more appropriate rule of statutory construction would be to assume the legislature would have also prohibited the penalty of life without parole in the same code section, had it so intended. Therefore, we decline to depart from our decision in State v. Antonio M . Byrd, No. 02C01-9508-CR-00232, 1997 WL 1235, at *20 (Tenn. Crim. App., Jackson, Dec. 30, 199 6), perm. to appeal denied (Tenn. 1997), in which this Court ob served,

The legislature has made a specific exception for the death pe nalty.

If a specific exception were als o intende d for the pe nalty of life without the possibility of parole, the legislature would have made an exception for that as well. Moreover, the statutes providing for the sentence of life with out the poss ibility of pa role provide no exception for juveniles.

Id. This issu e lacks m erit.

VII. FELONY MURDER AGGRAVATING FACTOR Finally, Defendant contends that the trial court erred by pe rmitting the jury to sentence him to life imprisonment without the possibility of parole based upon the single aggra vating facto r of felony m urder. See Tenn. Code Ann. § 39-13- 204(i)(7) (“The murder was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in comm itting or

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attempting to commit , or was fle eing a fter hav ing a s ubsta ntial role in committing or attemp ting to com mit, any . . . robbery . . . .”). This issue w as sq uarely resolved by our supreme court in State v. Butler, 980 S.W.2d 359 (Ten n. 1998), in which the cou rt stated, “The felon y murder ag gravator (i)(7) can be use d to enhance a sentence to life without the possibility of parole when the defendant is convicte d of felony m urder.” T herefore , this issue is w ithout me rit.

VIII. CONCLUSION

Because we conclud e that the evidenc e was insufficient to pe rmit the jury to conc lude D efend ant co mm itted an espe cially aggravated robbery, w e mod ify this conviction and re mand to th e trial court for an entry of conviction for attempted espe cially aggravated robbery. Having found no oth er error, we affirm Defenda nt’s conviction for first degree murder in perpetration of attempted especially aggra vated robbe ry.

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DAVID H. WELLES, JUDGE

CONCUR:

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JAMES CURWOOD WITT, JR., JUDGE

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L.T. LAFFERTY, SENIOR JUDGE