### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE D ec em be r 18, 200 7 S es sio n

ST A TE OF TE N N ES SE E v

. D OM IN IC LA M A R BL A IR

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 2006-C- 2164 Cheryl Blackbu rn, Judge

No. M2007- 00484-CCA -R3-C D - F iled May 30, 2008

Th e de fe nd ant, Do min ic L ama r B la ir , p le d guil ty to a tte mpt e d s e c on d d e g re e mur de r, a Cla ss B felony , and attempted a g g ravated robbe ry , a Class C felony . He wa s sentence d as a Range I , standard offe nder to c onsecutive te rms of twelve y ear s and five y ear s, for an ef fec tive sentenc e of se ventee n y ear s in the Depa

rtment of Corre ction. On appe al, he a rg ues that t he trial c ourt imposed an excessive

s en t en ce b y

n o tap p l y i n g ce rt ai nm i t i gat i n g fa ct o rs an d b y o rd er i n g co n s e c u t i v e s en t en ci n g. F oll ow ingour r e vie w, we a ff ir m th e jud g me nts of

the tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

A L AN E. G L EN N , J ., delivere d the opi nion of the cour t, in which J A M ES C UR WO OD W I TT , J R . and D. K EL L Y T HOMAS , J R ., J J ., joined.

F. Michie Gibson, J r., Na shville, Tennessee , for the a ppellant, Dominic L amar Bla ir.

Robert E. Cooper, Jr., Attorney Gene ral a

nd Reporter ; Eliz abet h B. M arne y , Assistant Attorney Gene ral; Vi ct o r S

. J o h n s o n , I I I , Di s t ri ct At t o rn ey Ge n er al ; an d

J ef f B u rk s , As s i s t an tDi s t rict Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS
At the g uilty

plea he aring , the prosec utor set out th e facts surrounding the def endant’ s
c on vic tio ns :
[T] he proof

would be ther e we re a

number of inci d ents in this area – this is 342 Hickory Hollow Terr ace – wher e var ious . . . pizz a deliver y persons ha d been r obbed. Sometimes it was by

g unpoint and sometimes just by a g roup of pe ople who cr owded around a nd robbed in a

strong -ar m sense the pizza delivery person.-2- Due to this series of

incidents the pi zz a deliver y people – Domino’s, I

believe – called . .

. t h e p o l ice de partment a nd told them about this. Detective [David] A c h o r d w e n t o nJa n u ar

y 1 6 th
, 2 0 0 6 , to 3 4 2 H ic k o r y H o ll o w T e r

r a c e p o s e d

a s a p iz za delivery man. He a

ttempted to deliver a

pizz a to that location. And when he did, he

was c onfronted by

a black male suspect with a handgun who demande d the pizz a and the money . Detec tive Achor d put the pizz a down, iden t i fi ed h i mself as a police office r, and dr ew his we apon on the suspect

. T h e suspec t was ar med. This was Dominic Bla ir [the de fenda nt] . [The defe ndant] fired seve ral times at De tective Achor d who re turned fir e. [The def endant] was hit in the leg and admitted on the

s ce n e t o planning to rob . . . whoeve r ca me with the pizz a. He also admitted in an interview that he nee ded the money and that he c alled in the orde r and w aited for the delivery and then attempted to rob Dete ctive Ac hord.

At the sentenc ing he aring , Detec tive David Ac hord of the Me tropolitan Nashvil l e P olice De pa rtme nt t e sti fi e d th a t on

Janu ary 16 , 2 00 6, he po se d a s a pizza de liv e ry man in re sp on se to a

c a ll from a pizza delivery

man who suspec ted he wa s being set up to b e ro b b ed

. Detec tive Achor d

conce aled his we apon u n d er t h e insulated pizz a box as he asce nded the stairs at the apar tment

co mp le x to ma

k e th e d e li v e r

y

. A s h e e n te r e d th e b r e e ze w ay , D e te c ti v e A c h o r d e n c ountere d the de fe nd ant, arm e d w itha

re vo lve r, and tw o accomplic e s. Al l th re e we re we ari ngbla c k b and a na s. De te c tiv e Ac ho rd sa id he re me mbe re d dr op pin g the pizza bo x b ut c ou ld n ot r e c a ll w ho fi re d th e fi rs t shot. He said he f

ired “ at the very most four rounds,” and the defe ndant returne d fire. T he def endant then fe ll backwa

rd to a sitting position, causingDete ct i v e Ac hord to believe he wa s injured. Detec tive Achor d turned around to a scer tain the location of the two acc omplices and to look for the backup of fice rs. While Detective Achor d’s back was turned to the defe ndant, the def endant be g an shooting at him ag ain, and Achor d returne d fire. The defenda nt only cea sed shoot ing when he r an out of bullets. Detec tive Achor d said he wa s not injured in the incident.

Detec tive Michae l Donaldson of the Metropolitan Police Depa rtment testified that whe n he

arr ived at the sc ene of

the robbe ry , the def

endant wa s in custody

and told him that Detective A chord had shot him after

he point ed his g un at hi m. Detec tive Donaldson later interviewe d the def

endant at Vande rbilt Hospital after a dvising him of his Mira nda rig hts. The defe ndant told him that he had

wa ite d b e hin d th e sta ir s for the pizza de liv e ry man an d tha t the de liv e ry man s ho t a t hi m be c a us e he pointed his g un at him first. The def endant sa id he had fired his gun nine times but had “shot up in th e ai r.” The def

endant sa id that his codefe ndant, Carlon Menife e, had pr ovided him with the

wea pon at a planningmeeting prior to the robber y

. The de fenda

nt said that it was his turn to use the g un be c a us e he wa s tr

y ing to joi n Me nif

e e ’s g ang

. Th e de fe nd ant a lso a dmi tte d h is i nv olv e me nt i n
a prior ATM robber

y wher e the victim wa s shot at be cause he sped awa y and anothe r robbe ry

wher e a B B gun was used.

Anita B lair, the defe ndant’s mother, testified that she lived with he r sister, Netty Bla ir, and that the def

endant c ould live wi t h t h em i f released. She a cknowledg ed that the de fenda nt had a sh op lif tin g c ha rg e wh e n h e wa s th ir

te e n y e ars old , f

or wh ic h h e ha d to “ se e a c ouns e lor .” Ms. B la irT he d efen d an t wa s f o urtee n yea rs o l d at t he t i m e o f t he o f f en ses. 1

-3- d en i edt h at t h e d ef

en d an twa s i n v o l v edi na ga n g b u t ac kn o wl ed ged t h at M en i fe e b el o n ged t o a ga n g.

Th e fi ft e e n- y e ar- old de fe nd ant te sti fi e d tha t he wa s invo lve d in a pr ior AT M r ob be ry

wi th 1 Carlon Menife e and Ma

rcus Gour ley . He sa id tha t Menifee supplied the g un used in the ATM robber y and that the same g un was used in the piz za robbery . He sa id that Menifee belong ed to a g ang an d h ad en co u rage d him to joi n it. The defe ndant said that he, Tr eon Ha rvell, and Ma

rcus Gourley participated in the pizz a robber y at the dire ction of Menife e. He denied that he participated in the robber

y in order to join the g ang

. Menifee told him it wa s his turn to c arr y the g un and g ave him the gun a

bout thirty

to forty -five minutes prior to the robber y . He a dmitted pointi ng the g un at Detec tive Achor d and said Ac hord shot him in the leg, a fter w hich he f ell down and he and De tective Achor d exchang ed fire . The defenda nt admitted that, prior to the robbery
, he had smoked marijuana and take n an Ec stasy

pill, which were provided by Menifee . He a cknowledged h e h ad a prior shoplifting cha

rg e for which he w ent “downtown a nd talked to a lady .” The defe ndant said he wa s in the seventh g rade at the time of the r obbery but should have bee n in the ninth.

At the conc lusion of the hear ing, the t ri al cour t, apply ing thr ee e nhance ment fac tors and finding that the def

endant wa s a dang erous of fende r, sentenc ed him to consec utive terms of twe lve y ear s for the attempted second de g ree murder c onviction and five y ear s for the attempted ag g ravated

ro bb e ry c on vic tio n, fo r a

n e ff e c tiv e se nte nc e of

se ve nte e n y e ars

.

AN AL YSI S

Th e de fe nd ant a

rgue s th a t th e tr ia l c ourt

e rr e d in no t a pp lyingc e rt a in m iti g ati ng fa c tor s to his se nte nc e , say ing that he and “ the oth e r tw o juv e nil e s inv olv e d in the se tw o c ri min a l in cid e nts

we re un de r t

he inf lue nc e of Carl on Me nif e e wh o w a s o lde r t

ha n th e juv e nil e s, wh o plie d th e m w ith dr ug s, pla nn e d th e ro bb e ri e s, su

pp lie d the we a

po n us e d in the ro bb e ri e s and tr ie d to e nti c e the m in to joining a g ang .” Specif

ically , he ar g ues that the trial c ourt should have a ppl i ed fa ct o rs (6), “[t] he defe ndant, beca

use of youth or old ag e, lac ked substantial judg ment in committi ng the offe nse” a nd (1 2 ), “[ t ] h e d ef

en d an tac t edu n d er

d u re s s o r u n d er

t h e d o m i n at i o no f a n o t h er p er s o n , ev en t h o u gh the dure ss or the domination of another person is not sufficie nt to constitute a defe nse to the crime.” Tenn. Code Ann. § 40- 35-113(6) , (12) ( 2006).

When an ac cused c halleng es the leng th a nd manner

of ser vice of a sente nce, it is the duty

of this co u rt t o co n duct a de novo revie w on the re cord w ith a presumption that “the de terminations made by the cour t from which the a

ppeal is t ak en ar e correct.” Tenn. Code Ann. § 40- 35-401(d) (2006). This pre sumption i s “conditioned upon the a ffirmative showing in the rec ord that the trial

c o u rtc o n s i d e r e d

t h e s e n t e n c i n g p r i n c i p l e s an d a l l r e l e v an t f a c t s an d c i r c u m s t an c e s

. ” S t a t e v

. A s h b y, 823 S. W. 2 d

1 6 6 , 1 6 9 ( T e n n

. 1 9 9 1 )

. T h e p r e s u mp ti o nd o e s n o t a p p ly to th e le g a l c onclusions

rea ched by

the t rial court in sentenc ing the acc used or to the determinations made by the trial cour t wh ic h a re pr e dic a te d u

po n unc on tr ov e rt e d f

a c ts. State v. B utl e r, 90 0 S. W.2 d 3 05 , 3 11 (T e nn . Cr im. App. 1994); State v. Smith, 891 S .W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bone stel, 871-4-

S.W .2d 163, 166 (Tenn. Crim. App. 19 9 3 ), o v er ruled on other g rounds by

State v. Hooper , 29 S.W .3d 1, 9 (Tenn. 2000) . Howeve r, this court i s require d to g ive gre at weight to the trial cour t’s deter mination of controver

ted fa cts as the trial court' s deter mination of these fac ts is pre dicated upon t h e w i t n es s es ’ d em ea n o r a n d ap p ea ra n ce wh en t es t i fy i n g.

I n conductinga de novo revie w of a sentenc e, this court mu s t co n s i der ( a) a ny evidenc e
rec eived at the trial and/or se ntencinghear i n g, (b) the pr esente nce r eport, (c ) the princ iples of sentenc in g , (d) the a

rg uments of counse l relative to sente ncing alternatives, (e) the nature and char acte ristics of the off

ense, (f) any mitigating or enhance ment fac tors, (g ) any statements made by the accused in his own beha lf, and (h) the ac cused’ s potential or lack of potential for r ehabilitation or treatment. Tenn. Code Ann. §§ 40- 35-103, -210; State v

. T ay l o r, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

The party challeng ing the sentenc e imposed by the trial court has the burde n of establishing that the sentenc e is err oneous. Tenn. Code Ann. § 40-35-401, Sentencing Commi ssion Cm ts.; Ashby , 823 S.W .2d at 169. In t h i s case, the def endant ha s the burden of

illust rating the sentenc e imp os e d b y

the tr ia l c ourt

is e rr on e ou s.

I n reje cting the mitigatingfac tors argued by the def endant, the tr ial court c oncluded:

So in order to look at t he factors, severa l of them the de fense has pointed out to me, I would have to disreg ard the fac t that there’ s been a n ear lier incident whe re the def endan t has used the we apon, that he’ s been involved in a n ATM robbe ry wh e re the vic tim wa s shot a t, the pla nn ingthat w e nt o n w iththi s. Al l of tha t to me indicates that ther e was no strong provocation, that even thoug h he is y oung and that it – it’s one of the trag edies of this ca se – he w as involved i n a l o t of diffe rent judgme nts and thoug ht out with reg ard to wha t t h ey wer e g oing to do. And the defe ndant say s or the alleg ation is that these wer e unusual c ircumstance s, that he’s unlikely to have a sustained intent to violate the law, howeve r, he’s done it befor e. He kn e w i t w a s h is t

ur n to c arr y the weap on

. S o that ’s no t bo rn e ou t by the fa c ts. An d t h i s issue about whethe r or not he w as under the domination of Mr. Menife e, Mr. Menife e wa s older and he was sti ll a juvenile himself. But the fac t of t he matter is the defe ndant was a clea r actor in this situation a

nd had on many

occa sions made judgme nt calls that involved his participation. So Ido not f ind that any

of the mitigating fac tors apply

that wer e cited.

L ooking a

t all the other fa ctors involved, I do not see that. His y out h – I mean, he is y oung , but this i s a situation where t h ey p u rposef ully set out to rob somebody

wi t h a gu n k n owing that the g un – what will happen. T hey shot at somebody

else at an ATM robber

y

. So I ’m not g oing to f

ind any mitigating fac tors apply

.-5-

The re cord c lear ly

shows that the trial cour t cons i d ered the mitigating f actor s which the defe n dant ar g ues on appe al wer e applica ble. Howe ver, the court c oncluded that, ba sed upon the fac ts of the case , the fac tors wer e not a pplicable. The rec ord supports this determination. State v. Fletc her, 805 S.W.2d 785,789 (Tenn. Crim. App. 1991).

Th e de fe nd ant a lso argue s o n a pp e a l th a t th e tr ia l c ourt

sh ou ld n ot h a ve or de re d th a t hi s sentenc es be se rved c onsecutively . I n impo s i n g co n secutive se ntencing , the trial cour t found that the de fe nd ant w a s a

“ da ng e ro us of

fe nd e r” :
Now, multiple convictions. There are no fac tors that would apply except for thi s o ne . A nd , th a t is , th a t he is a da ng e ro us of

fe nd e r wh os e be havio r ind ic a te s li ttl e
or no reg ard for hum an li fe and no hesitation about commi tting a crime in whic h the risk to human life is high. L ooking at that and the fac ts of this c ase the thing that’s most pe rsuasive to me is once he shot at Detec tive Achor d, he g ot shot. He was on his back. De tective Ac hord turns his back, a nd the def

endant shoots aga in until, as Detec tive Achor d testified, he e mptied his weapon a nd had no more . So there wa s a distinct series of

volley s, and then he shot ag ain after De tective Ac hord had turne d his back. That’s a dang erous of fender. An d t h e agg reg ate ter m require s that the

sever ity of these offe nses be serve d consec utively . And it’s nece ssary to protect the pu bli c fr om fu

rt he r se ri ou s c on du c t by the de fe nd ant. So the se of fe ns e s are g oin g to be ru nn ingc on se c uti ve to e a c h o the r. Th e y wi ll b e in t

he De pa rtme nt o f C or

re c tio ns

. An d h e wi ll b e g e tti nga ll o f his pr ior ja il c re dit . So that’ s my de c isi on on thi s. So five a nd twelve, a

total effe ctive sente n ce o f s eventeen y ear s in the Depa rtment of Cor re c tio ns

.

Tenne ssee Code A nnotated sec tion 40-35-115 provides that a trial court may in its di scre tion i m p o s e c o n s e c u t i v e s e n t e n c i n g w h e ni tf i n d s an y o n e o f

a n u mb e r o f d i f f e r e n tf a c t o r s b y a preponde ranc e of the evidenc e, including t hat t he defenda nt is a dang erous of

fende r whose be havior exhibi ts lit tle or no re g ard f or human li fe and no hesitation about committing a c rime in which the risk to huma

n life is hig h. Tenn. Code Ann. § 40- 35-115(b) (4). When a tr ial court ba ses conse cutive sentenc ing upon its cla ssification of the de fenda nt as a da ng erous of

fende r, it is required to make further finding s that the ag g reg ate leng th of the def endant’s sentence rea sonably relates to the

sever ity of his offe nses and is nec essar y to protect the public f

rom furthe r criminal conduct of the defe ndant. State v. L ane, 3 S.W .3d 456, 460-61 (Tenn. 1999); State v. Wil kerson, 905 S.W .2d 933, 937-38 (Te nn. 1995).

We conclude that the rec ord supports the finding s of t h e trial c ourt and the imposition of

co n s ec u t i v e s en t en ci n g.-6- CO NC LU SION

Ba sed upon the for eg oing a uthoritie s an d re as o ning, the judgme nts of the trial cour t are aff irmed.

___________________________________ AL AN E. GL ENN, JUDGE