### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs F

ebruary 6, 2001 STATE OF TENNESSEE v. SHERMAN SHAW Direct Appeal from the Criminal Court for Shelby County No. 99-00712 Carolyn Wade Blackett, Judge

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

A Shelby County jury

convicted the defendant of aggravated robbery . The trial court

sentenced him to 15 years asa Range II multiple offender. In this appeal, the defendant alleges (1) the trial court erroneously

admitted the defe

ndant's custodia

l statement; (2) the evidence wa s insufficient to su

stain the defendant's conviction; (3) the cumulative effect of the trial court’s er

rors requires a

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

tence imposed by

the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J ERRY S MITH , JJ., joined. Michael E. Scholl, Memphis, Tennessee, for the appellant, Sherman Shaw. Paul G. Summers, Attorney General and Reporter; Laura E. McM

ullen, Assistant Att

orney Gene

ral; Wi lliam L. Gibbons, Dis trict Attorney

General; and Gle

n C. Baity, A

ssistant District Attorne y General, for the appellee, State of Tennessee.

OPINION The defendant was convicted of aggravated robbery and received

a 15-year sentence. I

n this appeal, the defendan t alleges (1) the trial co urt erroneo usly admitted the defendan t's c ustodial statement; (2) the evidence was insufficient

to sustain the defendant's conviction; (3) the cumulative effect of the trial court’s error s requires a new trial; and (4) the defendant's sentence is excessive. Upon our review o

f the record, we

affirm the judg

ment and sentence

imposed by the

trial court.-2- I. FACTS On September 10, 1998 , shortly after 10:00 p.m., the defendant and his accomplice, Corey Dean, entered a convenience store. The defendant and Dean approac hed the clerk, Mohammad Alia, who knew both the defendant and Dean as they had been in the store on prior oc casions. Neither

the defe ndant norDean was wearing a mask. The defendant asked if Alia had seen a ny police in the neighborhood. When Alia replied “no,” Dean pointed a weapon at him, and

the defendant ordered Alia to open the re gister. The defendant then removed money from the re gister and took a pistol which was hidden near

the money. After

retrieving the money and weapon, the defendant instructe d Deanto “shoot the mother f- --er.” A custome r entered the store, and the two men fled the scene. Alia phoned the police and provided a description of the assailants,and the police were on the scene within minutes. The police located th

e defendant with

in one block of the scene, and although the defendant initially fled, he wa s apprehended. The defendant stated that he ran from the officers because he possessed a small bag of

marijuana which he threw down during the officer’s pursuit; however, no marijuana was found in the area. Alia identified the defendant near the location of his apprehension. Dean was not located until several days later. Investigator

Michael Clark testified that he a nd Se rgeant St

an Bowles interviewed the defendant on September 11th at approximately 1:30 p.m. Clark further testified that the defendant himself read his Miranda

rights aloud and signed a waiver, and Clark informed the defendant of the factual basis of his investigation. The defendant denied ever being inside the convenience store and stated he ran because he possessed a small bag of marijuana. Cory Dean was arrested on Septe mber 13th

and inculpated the defendant in his st atement to police. Dean also took the authorities back to the area of the defendant’s arrest and led them to the weaponused in the robbery. Clark re-interviewed the defendant on September

14th . Clark informed the defendant of Dean’s arrest, and tha t Dean inc ulpated him. Thereafter, the defendant signed a type d co nfes sio n ad mit tin g to h is p art ici pat ion in t he ro bbe ry. Corey Dean testified that it was the defendant’s idea to rob the store. He stated that after they entered the store, the

defendant handed him a pistol; the defendant took the money and a pistol fro m be hin d th e cou nte r; a nd a fte r th ey fl ed, the y spl it t he m one y. The defendant testif

ied that on Septembe

r 10th , he was visiting hi s g irlfriend’s apartment and he decided to purchase some drinks. He left the apartment and while walking to the store, he met Corey Dean who accomp

anied him to the stor

e. The defenda

nt further testif

ied th at after they entered the store, Dean p

ointed a weapon a

t hi m and Alia and ordered the defendant to take the money from the register. The defendant explained that he left the store with Dean because he was fearful that if he failed to leave with Dean, then he and Alia would be killed.-3-

The defendant furth

er testified that on September 11th when he was questioned, he refused to provide Dean’s name because he feared Dean’s ga ng’s r etaliation. The defendant testified that on September14 th, when he was again interviewed, an unknown man entered the room and threatened him wi

th a club. He said h

e signed a fabr

icated statement

due to the threats

. The state rebutted the

defendant’s t

estim ony with the testimony of Dean and I nvestigator Clark. Dean stated that he was not a gang memb er and never poi

nted a weapon at t

he defendant. Investigator

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

persons in the room; nobody else entered the room; and no night sticks or batons were ever inside the room.

II. SUPPRESSION M OTION The defendant contends his confession should have been s uppresse d. Specifically, the defend ant contends (1) there was unnecessary delay in taking him before a magistrate; (2 ) hi s confession was in

voluntary; a

nd (3) he was den

ied his right to co

unsel. A. Suppression Hearing
At the suppres sion h earing, Investigator Clark testified that the defendant was a rrested on Thu rsd ay, Se ptembe r 10 , 19 98, at 1 0:1 8 p. m., and he fi rst int ervi ewed the defe nda nt o n Fri day, September

11th, at a

pproxim ately 1:30 p.m. Before the in terview, Clark g

ave the defenda

nt a Miranda rights form,

and the defendant read it aloud and stated that he understood his rights. The defendant then signed the Miranda waiver and indicated he wished to talk with Clark. During the interrogation, the d efendant d enied any involvement in the robbery, de nied ever being inside the store, stated he ran from the officers becaus e he possessed a small amount of marijuana, and instructed Clark to re-interview him if “anything change d” in the case. On September

13th, Cor ey Dean was arrested and inculpated the defendant. Due to the defendant’s request for a re-inter view if “anything changed” in the case , Clark re-interviewed the defendant on September 1 4th and inf ormed him of Dean ’s statement. The defendant quick

ly admitted his involvement in the robbery. A

dditionally,

Clark testified tha

t t h e defendant never requested to speak with an attorney. The defendant, on the other hand, testified that he had requested an

attorney f

rom Clark in bothinterviews, but Clark denied his request. The defendant further testified that during the second interview on September 14th, he was left alone in ther oom; an unknown person entered and threatened him with a club; and due to his threats, the defendant signed a fabricated confession. The trial court found that the defenda nt was duly advised

of his Miranda

rights and voluntarily

decided t o give the s tatement. The trial court expressly found defendant’s testimony lacking in credibility and

concluded defendant was not threatened or coerced. View

ing “the totality-4-

of the circumstances,” the trial court found defendant’s all

egations to be wi

thout merit

and denied the motion to suppress. B. Standard of Review The findings of fact made by the trial court at the hearing on a motion to suppress are binding upon this Court unless the evidence contained in the record pr eponderates a

gainst them. State v. England , 19 S.W.3d 762, 766 (Te nn. 2000). The tria

l court, as the trie

r of fact, is able to assess the credibility

of the witnesses, determine the weight and value to be afforded the evidence and resolves any conflicts in the evidence. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). However, this Court is not bound by the trial court’s conclusions of law. State v. Simpson , 968 S.W.2d 776, 779 (Tenn. 1998). The application of the law to the facts found by the trial court are q

uestions of law tha

t this court reviews de novo

. State v. Daniel , 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the burden of establishing tha

t the evidence co

ntained in the record p reponderat es against t he findings of fact made by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975). C. Delay in Appearance Before a Magistrate The Fourth Amendment requ ires t hat a judicial determination of probable cause be issued pro mpt ly. Gerstein v. Pugh , 420 U.S. 103, 125, 95 S. Ct. 854, 43 L. Ed. 2d 54 (Tenn. 1975). When a pers on subjected to a warrantless arrest confesses after being detained for more tha n 48 hours withouta judicial determination of pr obable cause, the confession should be excluded unless the prosecution establishes that the confession was sufficiently an act of free w

ill to purge the primary taintof the unlawful invasion. State v. Huddleston , 924 S. W.2d 666, 674 (Tenn. 1996) (citing Brownv. Illinois , 422 U.S. 590, 5 98, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)). However, the issuance of a valid arrest warrant satisfies the requirement that there be a judicial determination of probable cause. State v. Carter , 16 S.W.3d 762, 766 (Tenn. 2000) (cit ing Baker v. McCollan , 443 U.S. 137, 143, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979)). Although it is unclear from the record exact

ly when an a

rrest warrant was issued, Investigator Clark testified that “formal charges” were brought on the evening of September 12 th. If s o, this satisfied the Gernstein

requirement.
T enn. R. Crim . P. 5(a) requires that one “arrested . . . be taken without unnecessary delay before the nearest

appropriate mag

istrate.” The “i

ntimidating envir

onment” is exacerbated when the detainee is not properly brought before the mag istrate. Huddleston , 924 S.W.2d at 670. Regardless of whether there was a Gernstein

and/or a Rule 5(a) violation, we conclude the defendant is notentitled to relief. If there is a Gernstein violation, a court

must look to

the following four factors to d

etermine if the c

onfession is admissi

ble:-5- (1) the presence or absence of Miranda warnings; (2) the temporal p

roximity of the

arrest and the c

onfession; (3) the presence of intervening circumstances; and finally , of particular significance, (4) the purpose and flagrancy of the off icial misconduct. Huddle ston , 924 S.W.2 d at 674-75 (citing Brown , 422 U.S. at 603-04). A confession obtained during a period of “unreasonable delay” i n violation of Rule 5(a) is still admissible, provided the totality of the circumstances reveal it was voluntarily given. Carter , 16 S.W.3d at 769; Huddleston , 924 S.W.2d at 670. The evidence clearly establishes that the defendant rec eived and unde rstood the Miranda warnings prior to giving his statement. This factor favors admission of the confession. Next, we consider the t

emporal proximity

of the defendant’s confession to his arrest. The defendant was arrested at approximately 10:30 p.m. on September 10th,and his written confession was obtained shortly

after noon on Sept

ember 14th, appr

oximately 85 ho

urs after his arr

est. Accordingly, this factor weighs in favor of suppre ssion. The third factor we must consider is whether an intervening circumstance occurred that purged the taint of the defendant’s illegal detention. Clark testified that during the de fenda nt’s September

11th interview, the defendant specifically requested that Clark re- interview him if an y circumstances changed. The defendant’s signed confession corroborates this testimony. Dean was arrested on Septem ber 13th and provided i ncriminating ev

idence implicatin

g the defendan

t. This information was conveyed by Clark to the def endant on September 14th, sho rtl y before h is confession. We find that the defendant’s specific request to be re-interviewed by Clark and the discovery of further incriminating evidence are intervening circumstances that favor admission of the defendant’s confession. The fourth factor we consider is the purpose and f

lagran cy of th e offi cial m iscon duct. In Huddleston , an officer testified that the defendant “was detained so that the police could continue the investigation and develop additional evidence.” 924 S.W.2d at 676. In the case at bar, the defendan twas not held for th e purpose of ga

thering eviden

ce to establish pr

obable cause . Th e defendant was arrested minutes after the robbery wi

thin one block of the

crime scene, an

d the victim positively identified the defendant at the time of the defendant’s arrest. The officer clearly had sufficient probable cause

to secure an arr

est warrant at the ti

me of the arrest.

The arrest was around 10:30 p.m. on Thursday the 10th; the defendant denied involvement

in his 1:30 p.m. statement on Friday the 11th; “formal charges” were initiated on the evening of Saturday the 12th; the defendant confessed shortly after noon

on Monday the 14th; and defendant was taken before a magistrate that sam e Mo nda y. This factor favors admission of the confession.
Fu rthermore, the totality of the circumstances reveals the confession was volunt ary. Th e evidence supports the trial c ourt’s findin

g tha t the statement was not the product of coercion or-6-

threats. There is nothing else in the record suggesting an involuntary state ment. See Huddleston , 924 S.W.2d at 670 (listing the various factors to cons id er in determining whether a confe

ssion is involuntary in light of a Rule 5(a) violation). After consideration of th e aforementioned factors, we conclude that the defendant’s confession was properly

admitted, rega

rdless of whethe

r or not t her e was a Fourth Amendment violation and/or a

Rule 5(a) violatio

n. This issue is withou

t merit. C. Involuntary State

ment The defendant

contends his written statement was invo luntary, thu

s in violation of the F

ifth Amendmen

t. We recognize that therelinquishment of Miranda rights must be voluntary and may notbe the product of intimidation or coercion. State v. Blackstock , 19 S.W.3d 200, 207-08 (Tenn. 2000) (citing State v. Stephenson , 878 S.W.2d 530, 544-45 (Tenn. 1994)). However, in light of the factual findings by

the trial court which are supported by the record as discussed above , there was no intimidation or coercion. Thus, this issue is without merit. D. Right to Counsel The defe ndant con tends he requested counsel, and his requests were ignored. Once an accused requests counsel, the interrogation m ust cease. Edwards v. Arizona , 451 U.S. 477, 482, 1015 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). Any subsequent statement by the accused as a result of police-initiated interrogation must be suppressed. Id. at 484-85. Implicit in the factual fin

dings by the

trial court was th

at the defendan

t d id not reques t counsel. The evid

ence does not pre

ponderate aga

inst this finding. T

his issue is without me

rit.

III. SUFFICIENCY OF THE EVIDENCE The defendant conte

nds that the eviden

ce was insu

fficie nt to sustain his conviction for aggravated robbery. We disag ree. A. Standard of Review When a n accu sed challenges the sufficiency of the evidenc e, this court must review the record to determine if the evidence adduced during the trial was suffici ent "to supp ort the fin dings by the trier of fact of guilt beyond a reasonable doubt ." Te nn. R. App. P. 13(e) . This rule is applicable

t o findings of guilt predicated upon direct evidence, circumstantial evidence or a combination of direct

and circumstantial evidence. Statev. Brewer , 932 S.W.2d 1,18 (Ten n. Crim. App.1996). The trier of fact, not this court, resolves questions concerning the credibility of the witnesses, the weight and value to be given the evidence as well as all factual issues raised by the evidence. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. Ap p. 1995). Becau

se a verdict of g

uilt-7-

removes the presumption of innocenceandreplaces it with a presumption of guilt, the accused has the burden in this court

of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 198 2); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). B. Analysis The evidence was more thansufficient to sustain the defendant’s conviction. The defendant was located minutes after the robbery within one block of the convenience store; the store’s clerk, previously

acquainted with th

e defendant,

identified him at the scene, at a hearing, and at trial; Dean testified that the defenda

nt was his accomplice; and the defendant confessed to the crime. This issue is without merit.

IV. CUMULATIVE ERR OR The defendant alleges the cumulative effect of trial errors require s that the defendant be granted a new

trial. Since we ha

ve found no error

s, this issue is withou

t merit.

V. SENTENCING The defendant alleges that the trial court erroneously sentenced the defendant to an enhanced sentence as a Range II of

fender and improperly applied enhancement factor s. We disagree. A. Standard of Review This Court’s review of the sentence imposed by the trial c

ourt is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judge considered the sentencing principles and al

l relevant facts and circumstances. State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails t o comply with the statutory directives, there is no presumption of cor rectness and our review is de novo

. State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997).
If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40-35- 210(c) provides that the p resump tiv e sentence for most offenses shall be the minimum sentence within the applicable range. State v. Lavender , 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher , 805 S.W.2d 785, 788 (T e nn. Crim. App. 1991). However, if such factors do exist, a trial court should start at the minimum sentence, enh ance the minimum sentence within the range for enhancement

factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each factor is prescr ibed by the statute, as the weight given to each factor is left to the discretion of the trial court as long as the trial court complies withthe purposes and principles of the sentencing act and its findings are supported by the

record.-8-

Statev. Moss , 727 S.W.2d 229, 238 (T enn. 1986); State v. Leggs , 955 S.W.2d 845, 848 (T enn. Crim. App. 1997); see Tenn. Code Ann. § 40-35-210 SentencingCommission Comments. Nevertheless, should there be no mitig

ating factors,

but enhancement

factors are pr

esent, a trial court may set the sentence above the minimum within the ra nge. Tenn. Code

Ann. § 40-35-210(

d); Lavender , 967 S.W.2d at 806; Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994). B. Analysis The trial judge entered excellent findings and first determined the de fendant had prior convictions for

aggravated burglary

and robbery, thereby ma

king him a Range II offender

. The trial judge then applied

sentencing enhancement factors (1) (a previous history of criminal convic tions or criminal behavior in addition to those necessary to establish the appropriate range ) and (10) (no hesitation about commi

tting a crime when the risk to human life was high), and mitigating factor (12) (the defendant acted under duress or under the domination of another person). See Tenn. Code Ann. §§ 40-35-114(1) and (10), -113(12). The trial judge s entenced the de

fendant to 15 years in the Department of Correction. The defendant had two pr ior felony

convictions consisting of aggravated burglary and rob bery, bothClass C felonies. The defendant was properly classified as a Rang e II offender. See Tenn. Code Ann. § 40-35-106(a)(1). The defendant also had a prior conviction for misdemeanor larceny. The trial court pr operly used this misdemeanor conviction under enhancement factor (1 ), although it is e ntitled to little weight.
As for enhancement factor (10), the evidence clearly supports its application. The evidence revealed tha t a c ust ome r cam e in the sto re du rin g the rob bery. Thus, this factor was properly applied since one other than the

victim was in

the area and sub jec t to inj ury. State v. Sims , 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). The defendant faced a range of punishment of 12 to 20 y ears as a Range II off

ender

. Se e Tenn. Code Ann. § 40-35 -112(b)(2) . Considering the enhancement factors and mitigating factor appliedby the trial court , the 15-y ear sentence, which was less than mid-range, was appropriate. This issue is without merit.-9- CONCLUSION Based upon the foregoing, we conclude (1) the trial court properly admitted the defendant’s inculpatory

stat emen t; (2) the evidence was sufficient to sustain the defendant's conviction for aggravated robbery; (3)

there were no cumulative errors; and (4) the trial court properly sentenced the defendant. Thus, the judgment of the trial court is affirmed.

___________________________________ JOE G. RILEY, JUDGE