IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
DECEMBER 1994 SESSION
FILED June 26, 1997
D Cecil Crowson, Jr. 5 Appellate C ourt Clerk STATE OF TENNESSEE, 5 No. 03C01-9402-CR-00069 Appellee 5 5 JEFFERSON COUNTY vs. K 5 Hon. Rex Henry Ogle, Judge 5 J.Y. SEPULVEDA, 5 (First Degree Murder, Esp. Appellant 5 Agg. Burglary & Theft) E
FOR THE APPELLANT: FOR THE APPELLEE:
David B. Hill Charles W. Burson Attorney at Law Attorney General & Reporter 301 E. Broadway Newport, TN 37821 Sharon S. Selby Assistant Attorney General R.J. Tucker Criminal Justice Division Attorney at Law 450 James Robertson Parkway 317 East Main St. Nashville, TN 37243-0493 Newport, TN 37821 Alfred C. Schmutzer, Jr. District Attorney General
James Gass Asst Dist. Attorney General Sevier County Courthouse Sevierville, TN 37801
OPINION FILED: _______________________
AFFIRMED IN PART; MODIFIED IN PART Robert E. Burch Special Judge OPINION
Following a jury trial, Appellant was found guilty of
Felony Murder, Especially Aggravated Burglary and Theft of less
than five hundred ($500)Dollars. The jury sentenced Appellant to
life for the murder and the trial court sentenced him to ten
years for the burglary and eleven months twenty-nine days for the
theft. The trial court ruled that the burglary sentence be
served consecutively to the murder sentence, while the theft
sentence be served concurrently therewith. He appeals of right
to this Court assigning four issues for review:
1). Whether the trial court erred in failing to
suppress the statement made by Appellant on the day of his arrest
because said statement was obtained in violation of the
appellant’s Fifth and Sixth Amendment rights under the
Constitution of the United States.
2). Whether Appellant’s subsequent statements should
have been suppressed because he did not receive effective
assistance of counsel in connection therewith.
3). Whether the evidence in the record in this case was
sufficient to convict the appellant of murder in that it was not
established beyond a reasonable doubt that the death of the
deceased was a consequence of the beating inflicted upon her by
Appellant.
4). Whether the trial court erred in sentencing the
appellant to consecutive sentences in light of the facts of this
case.
We find that none of these issues constitute error and
affirm the felony murder and theft convictions. The conviction
for especially aggravated burglary must be modified to aggravated
burglary and the sentence is modified for that offense.
FACTS
2 On August 6,1991, friends of ninety-five year old Mrs. Cora
Nicholson noticed a broken window at her residence and stopped to
investigate. They noticed Appellant, his wife and his mother
standing in the driveway of the house next door where Appellant
and his wife lived. When Mrs. Nicholson did not answer their
knock on the door, the police were called. When the police
arrived, Mrs. Nicholson was found lying injured on the floor of
her home, apparently the victim of a beating. At the time she
was found, the victim was conscious and asked to speak to her
friends who were standing on the porch. The victim was
transported to a local hospital.
As the police investigated, they noticed blood on the broken
window and inside the house. They also noticed that Appellant
had an apparently fresh cut on his hand. Upon inquiry, Appellant
stated that he had cut his hand trying unsuccessfully to get into
the house to aid the victim. Appellant was advised of his rights
at the scene and was requested to come to the police station for
questioning. He was given the option of having his wife drive
him to the police station or accompanying the officers.
Appellant chose to accompany the officers in the patrol car. As
they prepared to leave, Officer McCarter and Chief Deputy Shaw
overheard Appellant tell a family member to call Richard Talley,
a Dandridge attorney.
After arriving at the police station, Appellant waited in
the lobby of the jail for his attorney. He was later joined
there by his wife. Appellant waited for over an hour and a half
in the lobby, but his attorney never appeared. It does not
appear in the record that Mr. Talley was ever contacted.
Although Appellant testified that Officer McCarter came out
several times and angrily inquired whether Appellant would talk
to him, all of the other witnesses who testified stated that no
one approached Appellant nor did anyone ask him anything during
his wait in the lobby. After nearly two hours, Appellant
3 approached Officer Denton’s duty station and asked to speak with
Officer McCarter. After signing a waiver of having his attorney
present, Appellant was advised of his rights, signed a waiver of
these rights and gave a statement to Officer McCarter. In this
statement, Appellant admitted breaking into the house with one
David Johnson, Appellant’s brother-in-law, but insisted that
Johnson had inflicted the wounds to the victim and that Appellant
had only acted to prevent further injury to her. Appellant was
then arrested for the burglary.
Appellant remained in jail and, in subsequent weeks, gave
two additional statements to the police which were essentially
the same as the first statement.
Subsequent to these statements, the police arrested David
Johnson. Due to conflict in the statements of the two suspects,
the police requested each to take a polygraph test. Appellant
agreed. While the T.B.I. agent was preparing to give the
polygraph test to Appellant, he explained the operation of the
machine to Appellant and asked Appellant several preparatory
questions. While answering these questions, Appellant suddenly
confessed that it was he who had beaten the victim.
In the ensuing weeks after her injury, the victim’s
condition continued to deteriorate. She was subsequently
transferred from the hospital to a nursing home. After nearly
twelve weeks and the day before Appellant’s third statement, Mrs.
Nicholson died due to medical conditions brought on by her
injuries.
STATEMENTS OF THE APPELLANT
(FIRST AND SECOND ISSUES)
Appellant gave a total of four statements to the police
prior to the trial of this case. The first statement was given
on the date of the arrest of Appellant (issue #1) and the other
three were given on subsequent days after counsel had been
4 appointed for Appellant (issue #2). He insists that the trial
court was in error in refusing to suppress all of these
statements. Since the standard of review is essentially the same
in both of these issues, we shall initially treat them together
then analyze them separately.
Standard of review
A determination by the trial court that a confession has
been given voluntarily and without coercion is binding upon the
appellate court in the absence of a showing that the evidence
preponderates against the ruling. Lowe v. State 584 S.W.2d 239
(Tenn. Crim. App. 1979). On appeal, the appellant has the burden
of showing that the evidence preponderates against the findings
of the trial court. Braziel v. State 529 S.W.2d 501(Tenn. Crim.
App. 1975). A trial court's determination at a suppression
hearing is presumptively correct on appeal. This presumption of
correctness may only be overcome on appeal if the evidence in the
record preponderates against the trial court's findings. State v.
Kelly 603 S.W.2d 726, 729 (Tenn. 1980). The appellate courts of
this state are bound to accept that determination by the trial
court that a confession was freely and voluntarily given unless
the evidence in the record preponderates against that finding.
State v. Adams 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992).
Findings of fact made by the trial judge after an evidentiary
hearing of a motion to suppress are afforded the weight of a jury
verdict, and an appellate court will not set aside the trial
court's judgment unless the evidence contained in the record
preponderates against the findings of the trial court. State v.
Odom 928 S.W.2d 18 (Tenn. 1996).
The determination of whether a confession has been obtained
improperly, by coercive or improper inducement, can only be made
by examining all the surrounding circumstances involving the
interrogation leading to the confession. Monts v State 400 S.W.2d
5 722(Tenn. 1966). The question in each case is whether the
conduct of the law enforcement officers was such to undermine the
accused's free will and critically impair his capacity for
self-determination so as to bring about an involuntary
confession. Columbe v. Connecticut 367 U.S. 568, 602, 81 S. Ct.
1860, 1879, 6 L Ed. 2d 1037, 1057-58 (1961); State v. Kelly 603
S.W.2d 726, 728(Tenn. 1980).
With respect to the statement made on the day of his arrest,
Appellant, in addition to his allegations of involuntariness and
non-waiver of his Miranda rights, submits that his request for
counsel was not honored and that he was subsequently coerced into
giving an uncounselled statement.
Appellant insists that, as to the remaining three
statements, his appointed counsel was ineffective in allowing the
police to speak with him in the absence of counsel.
Findings of fact made by a trial court on issues surrounding
the giving of a custodial statement are binding upon appellate
review if there is any evidence to support them. State v. O'Guinn
709 S.W.2d 561, 566 (Tenn. 1986); State v. Chandler 547 S.W.2d
918, 923 (Tenn. 1977). This includes the waiver of the right to
counsel. State v. Van Tran 864 S.W.2d 465, 473 (Tenn. 1993).
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.
2d 694(1966), renders inadmissible as evidence-in-chief
incriminating statements obtained as the result of custodial
interrogation prior to the accused being advised that he has the
right to remain silent and the right to counsel. The Court in
Miranda found custodial interrogation to be inherently coercive
and declared the right to counsel to be a necessary procedural
safeguard to protect the privilege against self-incrimination. An
accused's asserted "right to cut off questioning" must be
scrupulously honored," but may be waived. Michigan v. Mosley, 423
U.S. 96, 104, 96 S.Ct. 321, 326 (1975). When an accused invokes
6 his right to counsel, all "interrogation must cease until an
attorney is present." Miranda, 384 U.S. at 474. Repeating the
Miranda warning and obtaining a waiver is not compliance. Edwards
v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981). However, the
right to counsel must be claimed. See State v. Claybrook, 736
S.W.2d 95 (Tenn. 1987). A confession made after a request for
counsel is admissible only if the accused initiates further
discussion with the police and knowingly and voluntarily waives
his Miranda rights. Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct.
2830 (1983); State v. Claybrook, supra. Whether the appellant
did or did not make an equivocal or unequivocal request for an
attorney is a question of fact. State v. Farmer 927 S.W.2d 582
(Tenn. Crim. App. 1996).
Analysis - Statement on day of Crime (Issue #1)
Appellant’s account of the facts surrounding the first
statement (August 8, 1991) differs dramatically from those
testified to by the police officers. The trial court accredited
the version given by the police officers. We agree.
Appellant testified at the hearing of the motion to suppress
that he told Officer McCarter of his desire to speak to a lawyer;
that while Appellant sat in the lobby of the jail waiting for his
lawyer, Officer McCarter came out into the lobby three times
asking if Appellant would talk to him and seemed angry when
Appellant stated that he desired to wait for his lawyer; that the
female officers came out “once or twice” and asked if Appellant
would talk to Officer McCarter; that Appellant was never advised
of his rights prior to giving the statement; that he signed the
waivers at the same time that he signed the statement itself;
that Officers McCarter and Shaw threatened him and promised that
Appellant would not be prosecuted for breaking into his uncle’s
garage if he would “cooperate”, causing him to give the
statement.
7 On the other hand, the officers testified that Appellant
never told them that he desired to talk to a lawyer but that
Officers Shaw and McCarter overheard Appellant tell a family
member to call Richard Talley, a Dandridge attorney. Because
they had heard that communication, the officers told Appellant to
sit in the lobby of the jail to await his lawyer. No officer
spoke to Appellant during his one to two hour wait. Finally,
Appellant himself contacted Officer Denton and requested to talk
to Officer McCarter, stating, “... I’m ready to talk without a
lawyer. I’m tired of waiting.” Even then Officer McCarter
refused to talk to Appellant until he had executed a written
waiver of counsel. Appellant dictated a simple waiver to Officer
Denton and signed the same in her presence. Once again,
Appellant was advised of his rights. He then signed a waiver and
gave police the statement complained of. At no time was
Appellant threatened nor was he made any promises.
The import of Appellant’s original statement was that David
Johnson (Appellant’s brother-in-law) was the one who actually
beat the victim and that Appellant was present and pulled Johnson
away from the victim.
The exhibits establish that Appellant signed his statement
that he would talk to Officer McCarter without Richard Talley
being present at 12:45 p.m. and that he signed a waiver of his
rights at the same time before Officers Denton and Feisko. An
additional waiver was signed by Appellant at 1:12 p.m.
Appellant’s statement was signed by him at 1:57 p.m.
Appellant’s recitation of the facts surrounding his first
statement paint a picture of unprofessionalism, ineptness,
malevolence and outright stupidity on the part of the police. If
Appellant was telling the truth, the police violated his
constitutional rights in every conceivable manner.
The trial judge accredited the facts given by the police
officers. Appellant often contradicted himself within a few
8 sentences and told a story which was simply too farfetched to
believe. The various officers’ testimony supported each other
and was supported by the exhibits, which Appellant himself
signed. Thus, the facts testified to by the officers are the
facts by which the statement is tested.
The State insists, perhaps correctly, that none of the
rights which Appellant complains were violated had attached
because the interrogation was not a custodial one. We will
assume ab arguendo, however, that the interrogation was custodial
in order to reach Appellant’s complaints.
Appellate complains that he was questioned in spite of the
fact that he had requested counsel. When a suspect invokes the
right to counsel, further questioning by the police in the
absence of an attorney is constitutionally prohibited. Edwards
v. Arizona, 451 U.S. 477, 485, 101 S. Ct. 1880, 1885 (1981). In
this case, under the facts found by the trial judge, although the
Appellant did not tell a police officer that he wanted to have
counsel present, the police overheard him request that a family
member call an attorney. As a result, the police declined to
question the Appellant until counsel was present, a restraint
that was appropriate under the circumstances. See United States
v. Porter, 764 F.2d 1, 6-7, cert. denied 481 U.S. 1048 (1987)
(Attempt to contact counsel by telephone in the presence of the
police constituted an exercise of right to counsel, even though
there was no express statement to the police that the defendant
wanted an attorney present.)
However, subsequent facts establish that the Appellant
waived his right to have counsel present when he reinitiated
contact with Officer McCarter. An accused having expressed his
desire to deal with police only through counsel is not subject to
further interrogation by the authorities until counsel has been
made available to him, unless the accused himself initiates
further communication, exchanges, or conversations with the
9 police. Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1885; see
State v. Goforth, 678 S.W.2d 477 (Tenn. Crim. App. 1984).
Appellant did just that. He went to the window of the counter
where Officer Denton was working and “pecked” on the glass to
attract her attention. Officer Denton then relayed Appellant’s
request to talk to Officer McCarter who refused to speak with him
until Appellant had signed a written waiver of the presence of
counsel. Appellant dictated a simple statement of his desire to
talk to Officer McCarter without the presence of his lawyer to
Officer Denton and signed the same before her. It is readily
apparent that Appellant initiated the contact with the police and
that the police scrupulously honored his indirect request for
counsel to be present until Appellant himself initiated further
contact. As the trial judge found, Officer McCarter did
everything except run away from the appellant.
Appellant was twice advised of his rights and twice waived
them in writing before being questioned by Officer McCarter. The
questioning was proper and nothing was done to render the
statement involuntary. On the contrary, in this matter and
throughout the entire investigation, these officers acted with a
high degree of integrity and professionalism.
Appellant’s allegations that he had been drinking and taking
pills that night are not supported by the testimony at the motion
to suppress. From our examination of the record, we find no
indication that Appellant was impaired in any manner.
In addition to the above Fifth Amendment rights, Appellant
insists that he was deprived of his Sixth Amendment right to
counsel. Appellant was not arrested until after he had given the
statement to the police. Prior to that time, he sat unguarded in
the lobby of the jail for nearly two hours. The Sixth Amendment
right to counsel attaches only when adversarial judicial
proceedings have been initiated by a formal charge. United States
v. Gouveia 467 U.S. 180, 104 S.Ct. 2292 (1984). Appellant’s
10 right to counsel under the Sixth Amendment had not yet attached.
Issue number one is found to be without merit.
Analysis - Subsequent Statements (Issue #2)
In an innovative and novel use of the Sixth Amendment right
to counsel, counsel for Appellant insists that his later
statements should have been suppressed in that he was denied his
right to the effective assistance of counsel before the trial
because Appellant’s counsel at that time allowed the police to
interview Appellant without counsel attending. From the first
two of these post-arrest interviews came statements of the
Appellant which were not much, if any, more incriminating than
Appellant’s first statement. In the final interview, Appellant
confessed for the first time that it was he who inflicted the
fatal blows upon the deceased. Present counsel for Appellant
insist that his counsel at the time should never have allowed
such questioning.
First, we have examined the circumstances of the three
statements and agree with the trial judge that Appellant’s rights
were properly protected by the police and that the statements
were voluntary. It is apparent from the record that the police
conducted these three subsequent interviews in the same manner in
which they conducted the initial interview.
We are left with Appellant’s claim of ineffective assistance
of counsel prior to the trial. Questions of this nature almost
always arise during the hearing of a post conviction relief
petition. Although the claim may be novel at this stage of the
proceedings, it may form the basis of relief in a proper case.
To prevail on an ineffective assistance of counsel claim,
the defendant must ultimately show that the adversarial process
failed to produce a reliable result. Cooper v. State, 849 S.W.2d
744, 747 (Tenn. 1993) [citing Strickland v. Washington, 466 U.S.
668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)]; Butler v. State,
789 S.W.2d 898, 899 (Tenn. 1990) [also citing Strickland v.
11 Washington, supra].
Proving failure of the adversarial process because of
ineffective assistance of counsel requires the defendant to
satisfy, by a preponderance of the evidence, both prongs of a
two-pronged test. See Butler, supra at 899. First, the defendant
must prove that counsel's performance was deficient in that it
failed to meet the threshold of competence demanded of attorneys
in criminal cases. Butler, supra at 899. Second, the defendant
must prove actual prejudice resulting from the deficient
performance. Cooper, supra 747 (citing Strickland, supra at 687).
Actual prejudice is established by demonstrating that, but for
his counsel's deficient performance, the results of his trial
would have been different and, thus, the adversarial process
failed to produce a reliable result. Best v. State, 708 S.W.2d
421, 422 (Tenn. Crim. App. 1985).
While the trial court found all statements were knowingly
and voluntarily made, it expressed concern with aspects of the
performance of defense counsel:
In all candor, the Court must say that he wished that [trial counsel] had inquired further of the facts and circumstances surrounding the investigation by the officers. He obviously has the right to rely upon what his client tells him. All of us who have represented people have that right, assuming it is reasonable.
This court does believe that the defendant's statements to [trial counsel] were consistent with that he had told on the August 6th statement. I have no reason to find otherwise. I must say, however, and it pains this Court to have to say this, that an attorney should not send their client off unattended time after time, especially to a critical proceeding like a polygraph exam. I've represent[ed] cooperating defendants; all of us have. But I don't think that it rises to the level expected of us under the sixth amendment to send our clients off unattended for polygraph examinations. ... I don't think that's proper.
A number of problems, however, often arise when a claim
12 of the denial of effective counsel is considered in a direct
appeal:
Raising issues pertaining to the ineffective assistance of counsel for the first time in the appellate court is a practice fraught with peril. The appellant runs the risk of having the issue denied due to a procedural default, or, in the alternative, having a panel of this Court consider the issue on the merits. The better practice is to not raise the issue on direct appeal .... The issue can be subsequently raised in a post-conviction proceeding if the appellant's direct appeal, as here, is not successful.
State v. Sluder, No. 1236, slip op. at 16 (Tenn. Crim. App., at
Knoxville, March 14, 1990).
This rationale applies to the circumstances in this
case. A claim of ineffective assistance of counsel at this time
is, in our view, premature. The record is simply not adequately
developed for a final disposition. Thus, we decline to consider
the second claim as it relates to the ineffective assistance of
counsel.
SUFFICIENCY OF THE EVIDENCE
In his third issue, Appellant challenges the sufficiency of
the evidence in the record of his trial to sustain a conviction
of murder in that the proof does not establish beyond a
reasonable doubt that the death of the deceased was the
consequence of the beating inflicted upon her by Appellant.
On appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate
inferences which may be drawn therefrom. State v. Cabbage 571
S.W.2d 832 (Tenn. 1978). A verdict of guilt, approved by the
trial judge, accredits the testimony of the State's witnesses and
13 resolves all conflicts in testimony in favor of the State. State
v. Townsend 525 S.W.2d 842 (Tenn. 1975). The presumption of
innocence is thereby removed and a presumption on guilt exists on
appeal. Anglin v. State 553 S.W.2d 616 (Tenn. Crim. App. 1977).
The defendant has the burden of overcoming this presumption.
State v. Brown 551 S.W.2d 329 (Tenn. 1977).
When the sufficiency of the evidence is challenged on
appeal, the test is whether, after reviewing the evidence in a
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt. State v. Duncan 698 S.W.2d 63 (Tenn. 1985);
Rule 13(e), T.R.A.P.
Analysis
The victim in this case was a 95 year old lady who lived
alone and was capable of caring for herself. The proof in the
case did not establish that she had any serious medical condition
prior to the beating of August 6, 1991. On said date, the facts
found by the jury and accredited by the trial judge establish
that Appellant entered the house of the victim, knocked her to
the floor, choked her and kicked her in the head. She was found
lying on the floor by friends. The victim was taken to a
hospital, thence to a nursing home. Her medical course was one
of steady decline until her death on October 27, 1991.
The expert forensic pathologist called by the state
testified that he performed an autopsy on the body of the
deceased. He determined that the cause of her death was
extensive subdural hemorrhage which was consistent with multiple
blunt trauma such as being hit in the head by fists or kicked in
the head. The final cause of Decedent’s death, he opined, was
the accumulation of fluid in her lungs while she was in a
weakened state due to the injuries mentioned above. There was no
evidence that the deceased had suffered a stroke.
14 Appellant’s own medical witness was the physician who cared
for the deceased from her injury until her death. He testified
that, to his knowledge, the deceased had received no trauma to
her head except that inflicted by the appellant.
The fact that nearly twelve weeks elapsed between injury and
death does not prevent Appellant’s actions from being the cause
of Decedent’s death. The proof establishes a direct connection
between Appellant’s actions and the death of the deceased. The
fact that the deceased may have actually expired due to secondary
causes brought on by the injuries inflicted by Appellant does not
allow him to escape responsibility for this homicide. Evans v.
State 557 S.W.2d 927(Tenn. Crim. App. 1977). The issue is
without merit as to the felony murder.
However, we note that a conviction for especially aggravated
burglary was inappropriate in this case. The especially
aggravated burglary statute provides as follows: “Acts which
constitute an offense under this section may be prosecuted under
this section or any other applicable section, but not both.”
Tenn. Code Ann. § 39-14-404(d). Courts have interpreted this
statute to mean that if the serious bodily injury element used to
establish the especially aggravated burglary offense is the same
injury that is an element of an accompanying offense, the
defendant may not be convicted of both the especially aggravated
burglary and the accompanying offense. See State v. Oller, 851
S.W.2d 841, 843 (Tenn. Crim. App. 1992); State v. Holland, 860
S.W. 2d 53, 60 (Tenn. Crim. App. 1993).
In a recent case similar to the present one, when the
defendant was convicted of both especially aggravated burglary
and first degree murder, this court stated that the especially
aggravated burglary conviction must be reduced to an aggravated
burglary conviction because the “act of killing the victim
constituted the ‘serious bodily injury’ that was used to enhance
the burglary offense to especially aggravated burglary.” State
15 v. Jehiel Fields, No. 03C01-9607-CC-00261, Bradley County, slip
op. at 12 (Tenn. Crim. App. Mar. 18, 1997). Thus, in order to do
substantial justice in this case, we believe that the conviction
for especially aggravated burglary constitutes plain error and we
modify the conviction to aggravated burglary. See Holland, 860
S.W.2d at 60. Furthermore, for the same reasons provided by the
trial court in sentencing the defendant to ten years for the
especially aggravated burglary, a Class B felony, we conclude
that a sentence of five years shall be imposed for the offense of
aggravated burglary, a Class C felony.
CONSECUTIVE SENTENCING
Lastly, Appellant contends that the trial court erred in
ordering his sentence for Especially Aggravated Burglary to run
consecutively to his life sentence for Felony Murder. We will
consider his claim as it relates to the five-year sentence we
have imposed for aggravated burglary.
The standard of review in sentencing in criminal cases is a
de novo review with a presumption that the sentence set by the
trial court is correct if the record shows that the trial court
followed the principles of the Sentencing Act of 1989, considered
the relevant factors and made proper findings of fact in the
record. State v. Fletcher 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). If this is done, then we must affirm even if we would
have preferred a different result. Id. The burden of showing
that the sentence is improper is upon the Appellant. Id.
A portion of the Sentencing Reform Act of 1989, codified at
T.C.A. § 40-35-210, established a number of specific procedures
to be followed in sentencing. This section mandates the court's
consideration of the following:
(1) The evidence, if any, received at the trial and the
16 sentencing hearing;
(2) the presentence report;
(3) the principles of sentencing and arguments as to
sentencing alternatives;
(4) the nature and characteristics of the criminal
conduct involved;
(5) evidence and information offered by the parties on
the enhancement and mitigating factors in §§
40-35-113 and 40-35-114; and
(6) any statement the defendant wishes to make in his
own behalf about sentencing.
The record before us indicates that the trial judge
considered all of the above factors which applied to this case.
We, therefore, must presume that the ruling of the trial court
was correct.
Prior to the enactment of the Criminal Sentencing Reform Act
of 1989 the limited classifications for the imposition of
consecutive sentences were set out in Gray v. State, 538 S.W.2d
391, 393 (Tenn. 1976). In that case, our supreme court ruled
that aggravating circumstances must be present before placement
in any one of the classifications. Later, in State v. Taylor,
739 S.W.2d 227 (Tenn. 1987), the court established an additional
category for those defendants convicted of two or more statutory
offenses involving sexual abuse of minors. There were, however,
additional words of caution:
[C]onsecutive sentences should not be routinely imposed ... and ... the aggregate maximum of consecutive terms must be reasonably related to the severity of the offenses involved.
739 S.W.2d at 230. The Sentencing Commission Comments adopted
the cautionary language. Tenn. Code Ann. § 40-35-115. The 1989
act is, in essence, the codification of the holdings in Gray and
Taylor; consecutive sentenced may be imposed in the discretion of
the trial court only upon a determination that one or more of the
17 more of the following criteria1 exist:
(1) The defendant is a professional criminal who has knowingly devoted himself to criminal acts as a 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 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;
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
In Gray, our supreme court ruled that before
consecutive sentencing could be imposed upon the dangerous
offender, as now defined by subsection (b)(4) in the statute,
other conditions must be present: (a) that the crimes involved
aggravating circumstances; (b) that consecutive sentences are a
necessary means to protect the public from the defendant; and (c)
that the term reasonably relates to the severity of the offenses.
1 T h e f i r s t f o u r c r i t e r i a a r e f o u n d i n G r a y . A f i f t h c a t e g o r y i n G r a y , b a s e d o n a s p e c i f i c n u m b e r o f p r i o r f e l o n y c o n v i c t i o n s , m a y e n h a n c e t h e s e n t e n c e r a n g e b u t i s n o l o n g e r a l i s t e d c r i t e r i o n . S e e T e n n . C o d e A n n . § 4 0 - 3 5 - 1 1 5 , S e n t e n c i n g C o m m i s s i o n C o m m e n t s .
18 More recently, in State v. Wilkerson, 905 S.W.2d 933,
938 (Tenn. 1995), our high court reaffirmed those principles,
holding that consecutive sentences cannot be required of the
dangerous offender "unless the terms reasonably relate[] to the
severity of the offenses committed and are necessary in order to
protect the public (society) from further criminal acts by those
persons who resort to aggravated criminal conduct." The
Wilkerson decision, which modified somewhat the strict factual
guidelines for consecutive sentencing adopted in State v. Woods,
814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing
as a "human process that neither can nor should be reduced to a
set of fixed and mechanical rules." State v. Wilkerson, 905
S.W.2d at 938.
The trial court found that Appellant was a dangerous
offender in that his behavior indicated "little or no regard for
human life," and that he did not hesitate "about committing a
crime in which the risk to human life is high. The circumstances
surrounding the commission of the offense were found by the trial
court to have been aggravated. The trial court was impressed, as
are we, that Appellant broke into the house of a ninety-five year
old lady knowing her to be home, stole her medicine from her and
beat her and kicked her far beyond the extent necessary to
accomplish the theft of the drug. Appellant knew, or should have
known, that a person of this advanced age would be extremely
susceptible to injury and that even an injury which would not be
serious to a younger person could prove fatal to a person of
advanced age.
The trial court expressly found that confinement for an
extended period of time is necessary to protect society from
Appellant's unwillingness to lead a productive life and his
resort to criminal activity in furtherance of his anti-societal
19 lifestyle. Specifically, the trial court found that Appellant
have two juvenile burglary convictions in 1982 (just before he
turned eleven years old), a being under the influence of alcohol
juvenile conviction in 1989 and two months later a conviction for
driving under the influence of an intoxicant. This offence was
committed in August of 1991 when Appellant was nineteen years
old. The trial court recited it finding that, “...this
defendant, even at this young age, has already indicated his
unwillingness to lead a productive live, and has no hesitation
about resorting to criminal activity”. In fact, the court found
Appellant to be “totally out of control”.
Finally the trial court found that the aggregate length of
the sentences reasonably related to the offenses of which the
appellant was convicted. The actions of the appellant were
brutal and vicious. We do not find that the appellant possesses
the characteristics necessary to rehabilitate himself while
serving his life sentence. In fact, all of the facts which
appear in the record indicate that Appellant’s prospects for
rehabilitation are slight. Due to this fact, the seriousness of
the offenses involved, and the aggravated circumstances
surrounding those offenses, we conclude that the aggregate
sentence is consistent with the principles of sentencing.
The first degree murder judgment is affirmed. The
especially aggravated burglary conviction is modified to one for
aggravated burglary, a Class C felony, and a sentence of five
years in the Department of Correction is imposed, to be served
consecutively to the life sentence imposed for the first degree
murder.
_______________________________________ Robert E. Burch, Special Judge
20 CONCUR:
_________________________ Gary R. Wade, Judge
_________________________ Joseph M. Tipton, Judge