### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs N ove mb er 6, 200 7

ST A TE OF TE N N ES SE E v

. GE OR GE F R A N KL IN

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty Nos. 02-08108 & 02- 08109 Chris Craft , Judge

No. W2006-01204-C CA-R 3-CD - Filed October 15, 2008

Following a jury trial Defe ndant, Geor ge Franklin, wa s convicted of the sec ond degre e murde r of three -yea r-old Jessica

Borner a nd the attempted murde r of nine othe r people . De fe n d ant was convicted unde r the theory of criminal responsibilit y for the conduct of anothe r. It is undisputed that Def endant did not fire the shot that killed Jessica. Def endant wa s sentence d to twenty-five ye ars at one-hundr ed perce nt for second degree murder and twelve ye ars at thirty perce nt for ea ch count of attempted murde r. The trial court order ed the sentenc es to be served conse cutively for an eff ective
sentenc e of

o n e

- hundred a nd thirty-three year s. On appe al, Def endant c hallenges: (1) the suffic iency of the e vidence to sustain convictions of second degre e murder and nine counts of attempted se cond degre e murde r; (2) w hether the trial court properly r efused to grant a mistrial whe n the assistant district attorney ge n er al re fer ence d the statement of a co-de fenda nt; (3) whethe r the trial c ourt pr op e rl y p ro hib ite d th e de fe ns e a tto rn e y fr om e lic iti ng inf orma tio n a

bo ut the a lle ge d d a ng e ro us ne ss of the house; ( 4) whe th er t he trial c ourt properly excluded c erta in prior bad a cts of witnesses; (5) whether the t rial court proper ly applied enhance ment fac tors in sentenc ing; and (6) whether the trial court prope rly imposed consec utive sentenc es. Afte r a thorough revie w of the r ecor d, we a ffirm the judgements of the trial court exce pt the sentenc ing. Because of the improper use of e nhance ment fac tors in sentencing, we modify Defe ndant’s sente nce from twenty- five ye ars to twenty- one yea rs for se cond degree murder and from twe lve yea rs to nine yea

rs for e ach of

the nine convic tions for attempted sec ond degre e murde r. Other wise the judgments ar e af firmed.

Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Cr iminal Cou rt A ffirm ed in Part and Modified i n Part

T H O M A S T. W OOD ALL , J., delivere d the opi nion of t he court, in which J A M ES C UR W OOD W I TT , J R ., a ndJ. C. M C L IN , JJ., joined.

Paul K. Guibao, Memphis, Tenne ssee, ( on appea l); Gera ld Skahan, Memphis, Tenne ssee; and Ja ke Erwin, Memphis, Tenne ssee, ( at trial) a nd for the a ppellant, Geor ge Franklin.

Robert J. Cooper, Attorne y Gene ral a nd Reporter ; Lacy W ilber, Assistant A tt o rn e y G e n e r a l; W il lia m L. Gibbons, District Attorney Genera l; and R obert Carter, Assis tant District Attorney Ge nera l, for the appe llee, State of Te nnessee

.-2- OP IN ION

I. Bac kgr ound

The events surrounding the death of Jessica a nd the injury to the other victims occ urre d on June 12, 2002 at 3448 Rosamond in Memphis. The incident wa s the result of a drug tran s action. Th a t day s e ve ra l pe op le we re “ ha ng ing ou t” in the fr on t yar d o f the ho us e . So me tim e in the e arl y afte rnoon , C h ri s B u rn ett , who was in the ya rd, dec ided he wanted to buy a bag of marijuana

. Another p erson pr esent in the ya rd, Antonio Haw thorne, kne w Def endant de alt drugs and c alled Def endant f or Mr. Burnett. Def

endant came to the home on Rosamond and sold a ten dollar bag of

mari jua na to Mr

. Burne tt so me tim e in the e arl y a ft e rn oo n h ou rs . D e fe nd a nt the n le ft the pr e mis e s. About ten minutes later, t h e g roup of a dults in t he yar d determined that the marijuana was “ no go od ,” a ndDe fe nd a nt w a s c a lle d to re turn a nd giv e Mr

. Burne tt his mon e y ba c k. De fe nd a nt c a me ba c k to the ho us e a ndtoo k th e mari juana a ndre turne d M r. Burne tt’ s te n d oll ars

.

There was diff

ering testimony as to what oc curr ed whe n Def endant r eturne d to give the

mon e y ba c k. Ac c or din g to the Sta te ’s wi tne sse s, De fe nd a nt wa s a ng ry a nd ye lli ng ob sc e nit ie s. Ms. Helen H obbs, who lived at 3448 Rosamond, testified that she told Tyrone Taylor who wa s prese nt in the ya rd a nd De fe nd a nt to “ ge t ou t of my y ardwi th the arg uin g. ” Ms. Ho bb s te sti fi e d th a t sh e did

no t he ar a ny mor e sh ou tin g a ft e r s he sa id this . D e nn is T a ylo r t e sti fi e d th a t D e fe nd a nt r e turne d w ith “an attitude.” Mr. Calvin Reed, who wa s also prese nt in the yard, testified that Tyrone T aylor a nd De fe nd a nt g ot i nto a

“ big arg ume nt. ” De fe nd a nt t e sti fi e d th a t h e wa s n ot ang ry that Mr . Bu rn e tt wanted his mon ey b ac k b ut that Tyrone Taylor still acted aggr essively towar ds him. Defenda nt stated that Tyrone Taylor yelled at hi m even after he walked away. Tyrone T aylor testified tha t he hear d Def endant sa y he would re turn to the house whe n he was lea ving. Dere k Borner, the eleve nyear -old brother

of Jessica , testified that h e h ea rd T yrone Taylor, Chris Burnett, and Def endant arguing in the front yard. Mr. Borner testified that he told Ms. Hobbs about the a rgument and the n stood be hind he r in the doorwa y. The argume nt c ontinued and Mr. Borner saw Tyr one Ta ylor take off his shirt like “he was ge tting ready to fight.” De fenda n t t h en s ai d h e was lea ving but that he would come ba ck.

Chris Burne tt testified that Def endant wa s “cool” to him and was not angry w hen he r eturne d to give back the money. Mr. Burnett stated that Tyrone Taylor was angry and that both me n wer e

“ ta lki ng sh it” to e a c h o the r. Mr . Bur ne tt tes tif ie d tha t he did no t see De fe nd a nt s ho ot w he n h e c a me to the ho us e the thi rdtim e be c a us e he wa s on the gr ou nd tr yin g to avo id the sh oo tin g. Mr . Bu rn e tt fu rthe r s ta te d th a t D e fe nd a nt n e ve r thr e a te ne d h im.

Def endant testified that afte r he left the house, he rec eived a “fe w” phone ca lls from Tyrone Ta ylo r. De fe nd a nt s ta te d th a t T yr on e Taylo r w a s th re a te nin g h im a ndthat he hu ng up on him

. Shortly thereaf

ter, De fenda nt rec eived a phone ca ll from a friend, Rico. Rico told Defe ndant that Tyrone T aylor wa nted to “talk” a nd that Def endant should go back to the house. De fenda nt testified that he fe are d what Tyrone Taylor would do to him if they ra n into each othe r on the stre ets so he decide d to go talk to him. As Def endant drove around the neighborhood, he noticed his c ousin’s

car . Def endant testified that he got into the car with his cousin, Le slie Franklin, and Mack Jone s and that th e y s mok e d f

or a sh ort pe ri odof

tim e

. De fe nd a nt a nd his tw o frie nd s the n d ro ve to the ho us e-3-

on Ros a mon d in Mr . Fr a nk lin ’s c ar. W he n th e y a rrive d, the y d id n ot p ark

in f ro nt o f the ho us e wher e the dr

ug transac tion had occur

red e arlier beca use De fenda nt knew that house was a “hot” spot that the police watched.

Acc ording to the State’s witnesses, Def endant, Leslie Franklin, and Mr . Jones got out of the

car with their guns draw n. Def endant had in his possession a nine milli meter handgun and his two friends e ach ha d an assault rifle. Tyrone Taylor testified that he aske d Def endant what he was going to do and that De fenda nt “started shooting.” Tyr one Ta ylor stated that De fenda nt aimed at him and

wa s th e fi rs t of

the thr e e me n to sta

rt sh oo tin g. Ty ro ne Taylo r w a s sh ot i n th e arm

.

Def endant admitted that he wanted hi s cousin and Mr. Jone s to acc ompany him because he did n o t f e e l s a f e g o in g b a c k to Ro s a mo n d a lo n e

. D e f e n d a n t s tate d th a t th is w a s b e c a u s e he knew that Tyrone T aylor, Antonio Ha wthorne, Calvin Ree d, and De nnis Taylor we re members of the gang known as the Crips. De fenda nt testified that afte r Tyrone Taylor thre atene d him he was sca red, but he fe are d running into him on t he stree t more than if he went to the house to talk to him.

Def endant testified that when he a rrived at Rosamond he parke d down the stree t and exited the car

. Tyrone T aylor wa s walking towards him and the y exchanged “w hat’s up.” T hen, ac cording to Defe ndant, Tyrone Taylor rea ched for his gun and pointed it at D efe ndant. Def endant state d that while he a nd Tyrone T aylor we re gr eeting ea ch other he hea rd the other

car doors open a nd he assumed Mr. Jone s and Leslie Franklin had exited the car . Tyrone T aylor fir ed a shot a nd Def endant

sa id h e “ wa s d uc kin g. ” Af te r tha t sh ot w a s f

ir e d, De fe nd a nt t e sti fi e d th e re we re “ sh ots c omi ng in front of me and behind me [ from Mr. Jone s and Leslie Fra nklin].” Although Def endant testified that he a lw a ys c arrie s a

gu n a ndon that day w a s c arryin g a nin e mi ll imete r, he sa id h e ne ve r dre w h is gun. Despite the f

act that De fenda n t testified that he ne ver dr ew his gun, seve ral of the state’s witnesses testified that they sa w that he wa s ca rr y ing a nine millimeter handgun. Tyr one Ta ylor testified that Def

endant shot him in the arm. However , the crime scene investigator, Ricky Davison, testified that no nine millimeter ca sings were found at the sc ene.
Tyrone T aylor testified tha t Defe ndant, Leslie Fra nkl i n , and Mr. Jones “started shooting straight in the house.” Def endant de nied that he e ver f ired his wea

pon. Def endant a lso stated that he did not kno w t h er e we re children in the house . There wer e, howe ver, se vera l children in the ho us e that da y. Th e re we re thr e e -y e ar- old Je ssi c a , fo ur -y e ar- old Ll oy d Ba nk s, Jr
., te n- ye ar- old Mic ha e l O we ns , e le ve n- ye ar- oldDe re k Bo rn e r, a ndte e na ge rs Ne qu e sh i a H ob bs , Sh a qu e sh a

Ho bb s, and S herry Hobbs. Lloyd was shot in the shoulder. A bullet gr aze d Michae l’s shoulder. De rek w as not injured in the incident. Ne queshia wa s shot in the finger, Shaque sha in the leg, a nd Sherry wa s shot in the right breast.

Many of the adults testified t o the chaos during the i ncident and damage that occur red to the house. De nnis Taylor testified that he hear d more than f orty shots fired in t h e house. Mr

. Hawthorne said he heard “many shots.” Sandra H awthorne testified that she he ard “ a whole lot of shots” and w a s s h o t in th e b a c k

. M s

. H o b b s te s ti f ie d s h e to ld th e c h il d r e n to “ lay d o wn . . . someone’s shooting.” Ms. Hobbs was shot in her arm, chest, knee , toe, and thre e plac es on her side. Severa l police offic ers testified that the damage to the hous e and the crime scene in gener al was one of the wor st they had eve r see n.-4-

J.C. Fair, w ho was prese nt at the house that day, testified for the defe nse. Mr. Fair testified that when De fenda nt returne d to give back the money he wa s ca l m an d t h at Tyrone Taylor wa s aggre ssive. Mr. Fair also testified that Tyr one Ta ylor had a gun in h i s wa i s t b and on the da y the incident occ urre d.

Dr. O’ Brian Smith t estified that Jessica died as a result of a high ve locity gun shot wound to the chest a nd abdomen. He further testified that a high veloc ity gun is a gun like an assault rifle
, while a low ve locity gun is a gun like a nine-millimeter.

The jury convicted Def

endant of the sec ond degre e murde r of Je ssica and attempted second de gr e e mur de r o f C hr is B ur ne tt, Ty ro ne Ta ylo r, Ll oy d Ba nk s, Mic ha e l O wens, She rry H ob bs
, Neque sh i a Hobbs, Sandra Hawthorne, He len Hobbs, and Shaque sha Hobbs. Af ter a sentenc ing he ari ng , th e tr ia l c ou rt

se nte nc e d D e fe nd a nt t o th e ma ximum o f t we nty -f ive ye ars fo r Je ssi c a ’s de a th and to twelve ye ars on each attempted m urder conviction. The trial court f ound Def endant to be a danger ous offe nder a nd order ed that the sentenc es be run consec utively. This c reated an e ffe ctive

se nte nc e of

13 3 y e ars

.

II. Ana lys is

On appe al, De fe n d ant cha llenges the suff iciency of the evidenc e to sustain convictions of second de gree murder a nd nine counts of attempted second de greemurder, whether the trial court proper ly refuse d to grant a mistrial whe n the assistant district attorney ge neral refe renc ed the
sta t ement of a

co-de fenda nt, whether

the trial court properly pr ohibited the defe nse attorne y from

e lic iti ng inf

or ma tio n abo ut the a lle ge d da ng e ro us ne ss of the ho us e , wh e the r the tr ia l c ou rt pr op e rl y exclude d certain prior bad a cts of witnesses, whether the t rial court proper ly applied enha nceme nt fa c tor s in se nte nc ing , a ndwh e the r the tr ia l c ou rt pr op e rl y impo se d c on se c uti ve se nte nc e s.

A. Sufficienc y of the Evidenc e

When an acc used cha llenges the suff iciency of

the evidenc e, this Court m u s t review the

rec ord to de termine if the evidenc e adduce d during the trial was sufficie nt “ to support the finding by the tr ie r o f f

a c t of gu ilt be yo nda

re a so na ble do ub t.” Ten n. R. App

. P

. 13 (e ). Th is r ule is applicable to findings of guilt predicated upon d i re ct evidenc e, cir cumstantial evidenc e or a combination of direc t and circ umstantial evidence

. State v. Brewe r , 9 32 S.W .2 d 1 ,1 8 ( Te nn . Crim. App. 1996).

In dete rmining the sufficienc y of the e vidence , this Court does not reweigh or r eeva luate the evidenc e. State v. Cabbage , 5 71 S.W .2 d 8 32 , 8 35 (T e nn . 1 97 8) . N or ma y th is C ou rt

su bs titute its infere nces f

or those dr aw n b y t h e trier of fac t from circ umstantial evidence

. Lia k as v . S tat e , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contra ry, this Court is required to af ford the
state the str on ge st l e git imate vie w o f the e vid e nc e c on ta ine d in the re c or d a s we ll a s a ll r e a so na ble and legitimate infe renc es which ma y be drawn from the evidence. Sta te v . Tu ttl e , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995)

.-5-

Th e tr ie r o f f

a c t, n o t th i s C ou rt , r e so lve s q ue sti on s c on c e rn ing the c re dib ili ty o f the wi tne sse s, the weight and va lue to b e given the e vidence as we ll as all fac tual issues raised by the evidenc e. Id. In State v. Grac e , the Tennessee Supreme C ourt stated, “[ a] guilty verdic t by the jury, approve d by the tr ia l judg e , ac c re dit s the te sti mon y o f the wi tne sse s f or the Sta te a ndre so lve s a ll c on fl ic ts i n favor of the theory of the State.” 493 S.W.2d 474, 476 (Tenn. 1973)

.

Becaus e a v er d ict of guilt removes the pr esumption of innocenc e and r eplac es it with a pr e su mpt ion of

gu ilt , th e a c c us e d h a s th e bu rden in th is co urt of ill us tr a tin g w hy the e vid e nc e is insufficient to support the ve rdict re turned by the trie r of f act. Sta te v . Tu gg le , 639 S.W.2d 913, 914 (T e nn . 1 98 2) ; Grace , 493 S.W.2d at 476.

At the time of the off

ense, the second degree murder was defined as “the knowing kill ing of another .” T.C.A. § 39-13- 201(1) ( 2003). Tenne ssee Code A nnotated section 39-11- 302(b) de fines “knowing” a s ref

erring “to a per son who ac ts knowingly with respect to t he conduc t or circ umstances surr ounding the conduct whe n the per son is a war e of the nature of the conduc t or that the circ umstances e xist. A person ac ts knowingly with respect to a result when the pe rson is awa re that the conduc t is reasona bly certain to cause the re sult.”

Def endant wa s also convicted of nine counts of attempted second degre e murder. Tenne ssee Cod e An no ta te d s e c tio n 3 9- 12 -1 01 de fi ne s c ri min a l a tte mpt a s:

(a ) A pe rs on c omm its c ri min a l a tte mpt wh o, a c tin g w ith the kin d o f c ulp abil ity otherwise r equire d for the of fense :

(1) I ntentionally engage s in action or ca uses a r esult that would constitute an offe nse, if the circ umstances surr ounding the conduct wer e as the person believes them to be;

(2) Ac ts with int ent to c ause a result that is a n element of the offe nse, and be lieves the conduc t will cause the r esult without further c onduct on the per son’s part; or

(3 ) Act s wi th int e nt t o c omp le te a c ou rs e of

a c tio n o r c a us e a

re su lt that w ou ld constitute the offe nse, under the circ umstances surr ounding the conduct a s the person believes the m to be, and the c onduct constitutes a s u bstantial step toward the commission of the offe nse.

(b) Conduct doe s not c onstitut e a substantial step under subdivision (a)( 3), unless the person’ s entire course of action is c orrobor ative of the intent to commit the of fense

. (c) It is no defe nse t o prosec ution for criminal attempt that the offense attempted was
actua lly committ ed.

De fe nd a nt w a s c on vic te d u nd e r the c ri min a l r e sp on sib ili ty s ta tut e . A pe rs on is c ri min a lly responsible for

an off ense c ommitt ed by the c onduct of a nother if:-6-

(1) Ac ting with the culpability required f or the off ense, the person causes or aids an innocent or irresponsible person t o engage in conduct prohibited by the de finition of the offe nse;

(2 ) A c tin g w ith int e nt t o p ro mot e or a ssi st the c omm issio n o f the of fe ns e , o r t o benef it in the procee ds or results of t he offense, the person soli cits, direc ts, aids, or attempts to aid another pe rson to commit the offense ; or

(3) Ha ving a duty imposed by law or voluntarily undertaken to preve nt commission of th e o ff en s e and acting with intent to benefit in the proc eeds or results of the of fe ns e , o r t o p ro mot e or

a ssi st its co mmi ssi on , the pe rs on fails to ma ke a re a so na ble eff ort to preve nt commission of the offense

.
T.C.A. § 39-11-402. This statute c o d ifies the longstanding common law theories of “a cce ssories befor e the fac t and aider s and abe ttors.” Id
., Sentencing C ommissi on Comments. Howeve r, criminal responsibility is not itself a sepa rate crime; rather, it is “solely a theory by which the State may pr ove the defendant’s guilt of the a lleged off ense . . . ba sed upon the c onduct of a nother pe rson.” State v. L emac ks
, 9 9 6 S. W

. 2 d 1 6 6
, 1 7 0 ( T e n n

. 1 9 9 9 )

. U n d e r a th e o r y o f c r im in a l r e s p o n s ib ility, a defe ndant’s pre sence and compa nionship with t he per p et rator of a fe lony before and af ter the

c omm iss ion of

the of fe ns e are c ir c ums ta nc e s fr om wh ic h th e de fe nd a nt’ s p art ic ipatio n in the c ri me may be infe rre d. Sta te v . B all , 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). No particula r ac t need be sh ow n, a ndthe de fe nd ant ne e d n ot h a ve playe d a ph ys ic a l r ole in the c ri me in o rd e r t o b e he ld criminally responsible f

or the c rime. Sta te v . Ca ldw e ll , 80 S.W.3d 31, 38 (Tenn. Crim. App. 2002). Ra the r, to b e he ld c ri min a lly re sp on sib le fo r the a c ts of a no the r, the de fe nd a nt n e e d o nly “ ‘a sso c ia te himself with the venture , act with knowledge that the offense is to be commit ted, and share in the criminal intent of the principle in the first degre e.’” Id . (quoting State v. Max ey , 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994) ).

In the ins ta nt c a se , D e fe nd ant a dmi tte d th a t he wa nte d M a c k J on e s a ndLe sli e Fr a nk lin to

acc ompany him to the house on Rosamond. De fe n d an t stated that this was bec ause he thought “something could happen.” Def endant also stated t hat i f he had not returne d to the house then no

on e wo uldha ve be e n in

jur e d or kil le d that da y. De fe nd a nt kne w M a c k J on e s a ndLe sli e Fr a nk lin

wer e in possession of assault rifl es , an d h e ad mitted he was in possession of a nine -millim eter handgun. De fenda nt stated that he thought ther e was a possibility t hat Tyrone Taylor would wa nt to fight and that Def

endant was willing to get it over w ith “right there.” From the Defe ndant’s testimony alone, there is ample evidence t o support his convictions under the the ory of c riminal responsibility for the conduc t of another person.

In a dd iti on to D e fe nd a nt’ s te sti mon y, Ty ro ne Taylo r t e sti fi e d th a t he tr ied to tal k to Def endant a nd Defendant re sponded that he did not wa nt to talk. Tyrone Ta ylor testified that Def endant wa s t h e fi rs t to shoot his gun. Dennis Taylor testified to similar happenings that day. De nn is T a ylo r s ta te d th a t T yr on e Taylo r t ri e d to ta lk t o D e fe nd a nt b ut that D e fe nd a nt w ou ld n ot t a lk
to him and “just started shooti ng.” Because a rea sonable trier of fa ct could have found De fenda nt guil ty o f o n e c o u n t o f

s e c o n d d e g r e e mu r d e r

u n d e r th e th e o r y o f

c r im in a l r e s p o n s ib il it y a n d n ine counts of attempted se cond degr ee mur der, D efe ndant is not entitled to relief a s to this i ssue.-7-

B. The Denia l of the Motion for Mistrial

Def endant c ontends that the trial court erre d when it re fused to gran t a mistrial after the

a ssi sta nt d ist

ri c t a tto rn e y r e fe re nc e d a c omm e nt m a deby Defen dant’ s c o- de fe nd a nts du ri ng his

cross-e xamination of De fenda nt. T he co-de fenda nts w ere not a vailable to te stify. The statement at iss ue oc c ur

re d a s f oll ow s:

[A S S I S TANT D I S TR I CT A TTORNEY ]: But y’al l h ad t o g o to another location to get the wea pon.

[D EF EN DANT ]: No sir.

[A S S I S TANT D I S TR I CT A TTORNEY ] : Yo u kn ow tha t’ s w ha t th e y [ c o- de fe nd a nts ] said.

[D EF ENS E C OUN S EL ]: Objection.

. . .
[D EF ENS E C OUN S EL ]: If we could appr oach, Judge ?

[T HE C O U RT ]: Ye s.

. . .
[D EF ENS E C OUN S EL ]: Judge, if I understand him, he ’s talking about what Le slie and Mac k said?

[A S S I S TANT D I S TR I CT A TTORNEY ]: Rig ht.

[D EF ENS E C OUN S EL ] : Th ey’r e not go ing to b e a ble to be c ro ssexamined.

[A S S I S TANT D I S TR I CT A TTORNEY ] : It’s not b e in g offe red f or the truth of the
matter.

[D EF ENS E C OUN S EL ] : But he’s talking ab o u t c o mm e nts and statements that co-defe ndants made a nd asking questions about th at . Judge, I think that’s highly improper.

T HE C O U RT : I d o n ’ t th in k y o u should do that, [Assistant District Attorney], be cause unless you are going to p u t t h em on and call them as witnes s es , you can’ t - I mea n, that’s what-8- Bruton is a ll ab o u t, y o u k n o w , n o t a ll o w ing statements in.

. . .

T HE C O U RT : I’m going to give a c urative instruc tion.

[D EF ENS E C OUN S EL ]: Ok, thank you.

T HE C O U RT : Lad i es an d Ge n t l em en , at t o rn ey s [s i c]
state me nts a

r e n ’ t e v i d e nc e . W hat othe r p e op le said or didn’t say or

what people suggest they mig ht h a ve sa id a

re no t e vid e nc e a t a ll u nle ss they ar e her e, ca l l ed as a witness by either side, and they c an be c ross-examined, so I’m goin g t o ask you just to strike that question fr om y ou r min ds be c aus e it’ s jus t no t - a t th is point, pe ople could ask, “We ll isn’t it true that President B ush said you did this and that,” and it’s just not evidenc e, so I’ m going to ask you to strike it.”

The de termination of whe ther to gra nt a mi strial rests wit hin the s ound discretion of the trial
court. Sta te v . Smi th , 871 S.W.2d 667, 672 (Tenn. 1994). The re viewing court should not overturn that decision absent a n abuse of discretion. Sta te v . B ro wn , 53 S.W.3d 264, 284 (Tenn. Crim. App. 2000). The burden of establishing the necessity for mis trial lies with the party see king it. State v. Williams , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996) . No abstra ct formula should be

me c ha nic a lly app lie d in making th is de te rm inatio n, a nda ll c ir c ums ta nc e s sh ou ld b e take n in to

acc ount. State v. Mounc e , 859 S.W.2d 319, 322 (Tenn. 1993)

.

Def endant’ s counsel prope rl y o b j ec ted, and the trial court issued a curative instruction; there fore , we must determine if the trial court abused it s discretion by not granting a mistrial. In the instant c ase, the ref

ere nce ma de by the a ssistant dist rict attorne y rega rding the statement made by the co- d e f

e n d a n ts w a s b r ie f a n d v a g u e

. A f te r th e o b je c ti o n th e tria l c o u r t in f

o r me d th e jur y that statements or que stions asked by attorneys are not evidenc e and should not be considered by them in determining their ver dict. This instruction was repe ated in the or al and written jury char ge as well. Ther efor e, we conclude that the cur ative instruction was sufficie nt to clarify to the jury what the y co uld c on sid e r in de te rm ini ng De fe nd a nt’ s g uil t or inn oc e nc e . A c c or din gly , th e tr ia l c ou rt did not abuse its discretion, and D efe ndant is not entitled to relief a s to this i ssue.

C. T he Ex c lus ion of

Ev ide nc e of

the Al le ge d D a ng e ro us ne ss o f the Ho us e

Def endant c ontends that the trial court e rre d in r efusing to allow him to int roduce evidenc e of the a lle ge d d a ng e ro us ne ss of the ho us e in or de r to ex plain wh y De fe nd a nt we nt ba c k to the ho me

arm e d a ndwi th t wo a

rm e d f ri e nd s. In the jury- ou t off e r of pr oo f as to thi s issu e , De fe nd a nt c ro ss--9-

examined G era ldine Borner, Je ssica B orner ’s m other. Defense counsel a sked Ms. Borner, w ho lived

a t 34 48 Ros a mon d, if sh e wa s a wa re of se ve ra l ins ta nc e s inv olv ing vio le nc e a t th e re sid e nc e . M s. Borne r r e sp on de d th a t sh e wa s u na wa re of a ny of the vi ol ent in st anc e s a sk e d a bo ut b y d e fe ns e counsel. This cr oss-exa mination was the only evidenc e pre sented in the off er of proof by the defe nse. Beca

use Ms. Borner de nied any knowle dge of the alleged danger ousness of t he house a nd beca use no other e vidence was pre sented a s to the relevancy of the issue, the t rial court did not err when it re fused to allow Defe ndant t o introduce evidence or cr oss-exa mine witnesses on this issue.

D. The Exc lusion of Certain Prior Bad Ac ts of Witnesses

De fe nd a nt c on te nd s th a t th e tr ia l c ou rt e rr e d in re fu sin g to a llo w the def e ns e to e lic it information about prior ba d acts of witnesses other than Tyrone Ta ylor. The c ourt also held a juryout hearing to determine what prior bad a cts, if any, c ould be i nquired int o by the def ense. The trial
court determined that only the prior bad acts of Tyrone Taylor could be brought out by the defe nse. The trial c ourt determined that the jury could find tha t T y ro n e Taylor was the f irst aggre ssor. De fe nd a nt t e sti fi e d th a t hi s c o- de fe nd a nts be ga n s ho oti ng a ft e r T yr on e Taylo r pu lle d a gu n o n th e m. The c o u r t d e te r mi n e d th a t “ th e y w o u ld h a v e a r ig h t to p u t o n p r o o f o f T y r one Ta ylor’s aggre ssiveness, but not anyone e lse’s aggr essiveness or fights in the neighborhood . . .”

The rulings on admissibilit y of evide nce are large ly within the s ound discretion of the trial
court a nd will not be disturbed on revie w absent abuse of discretion. Sta te v . D uB os e , 953 S.W.2d 649, 652 (Tenn. 1997) . Abuse of disc retion is found whe n “it appea rs that the trial c ourt applied a n in co rr ect lega l standard, or rea ched a

decision which is against logi c or r easoning that c aused a n inj u s t i ce t o t h e party complaining.” State v. Stev ens , 78 S.W.3d 817, 832 (Tenn. 2002) (quoting State v. Shuck , 953 S.W.2d 662, 669 (Tenn. 1997)). In the instant case, the court he ld a jury-out he ari ng a ndde te rm ine d th a t on ly the prior ba d a c ts o f T yr on e Taylo r c ou ld b e a dmi tte d. De fe ns e counsel objec ted to the exclusion of t he other witnesses’ prior bad acts, but the trial court de termined that evi de nc e of pr ior ba d ac ts of the oth e rs pr e se nt i n th e ya rdwa s ir re le va nt. Spe c if

ic vio le nt a c ts of the victim are admissible to corrobor ate De fenda nt’s assertion that t he victim (Tyrone Taylor) was the first aggr essor. State v. Furlough , 797 S.W.2d 631, 649 (Tenn. Cr i m

. Ap p. 1990). Howe ver, those ac ts are not a dmissibl e to prove the victim (or witnesses) acte d in acc ordanc e with a c hara cter trait. Furlough , 797 S.W.2d at 649. While the trial court proper ly a llowed the def ense to pre sent

e vid e nc e of

Ty ro ne Taylo r’ s p ri or

ba d a c ts b e c a us e , u nd e r the de fe ns e ’s the ory, he wa s th e fi rs t aggre ssor, the other w itnesses’ or vic tims’ p ri or bad a cts wer e not admissible under Furlough or Te nn e sse e Rul e s o f E vid e nc e Rul e 40 4( b)

. Ac c or din gly
, De fe nd a nt is no t e nti tle d to r e lie f a s to thi s issue.

E. Sentencing Issue s

We note that the l eg i s l ature has re cently ame nded seve ral provisions of the Sente ncing Reform Act o f

1 9 8 9
, w h ic h b e c a me e f

f e c ti v e J u n e 7
, 2 0 0 5

. H o w e v e r , a lth o u g h D e f e n d a n t w as sentenc ed af

ter the e ffe ctive date of the a mended Ac t, D efe ndant’s crimes in this ca se occ urre d prior to June 7, 2005, and De fenda nt did not elect to be sente nced unde r the provisions of the a mended Act by exec uting a waiver of his e x post f acto protec tions. See 2005 Tenn. P ub. Acts ch. 353 § 18.-10-

There fore , this case is not aff ecte d by the 2005 amendments, and the statutes cited in this opinion

are those that wer e in ef

fec t at the time the instant crimes we re c ommitt ed.

Def endant wa s sentence d to twenty-five ye ars f or his se cond degre e murder c onviction and twelve ye ars f

or ea ch of the nine convictions of attempted second de gree murder a ll to be served

consec utively for a total e ffe ctive sente nce of 133 year s. A per s o n co nvicted of se cond degr ee murder, a Class A felony, fa ces f

ifteen to twe nty-five ye ars in prison. The statutory presumptive
sentenc e wa s twenty yea rs. T.C.A. §§ 39-13-210( c), - 40-35-112( a)( 1). A pers o n convicted of attempted sec ond degre e murde r, a Class B felony, f ace s eight to twelve years in prison. The statutory presumptive sente nce w as eight yea rs. T

. C

. A. §§ 39-12-107(a), - 39-13-210( c), - 40-35- 112(a) (2).

W he n a de fe nd a nt c ha lle ng e s the le ng th or the ma nn e r of se rv ic e of his or he r s e nte nc e , th is Court must conduc t a de novo revie w with a pre sumption t hat the dete rminations made by the tria l

c ou rt are c or re c t. T .C. A. § 4 0- 35 -4 01 (d ); Sta te v . I mf e ld , 7 0 S. W .3 d 6 98 , 7 04 (T e nn . 2 00 2) . T his presumption, howeve r, is contingent upon an a ffirma tive showing in the rec ord that the trial c ourt considere d the sentenc ing principles and a ll releva nt fac ts and ci rc u m stance s. State v. Pe ttus , 986 S.W.2d 540, 543-44 (Te nn. 1999).

In making i ts sentencing dete rminations the trial court ha d to consider: (1) the evidenc e prese nted at the se ntencing hea ring; (2) the pr e-se ntence report; (3) the principles of sentenc ing and

arg ume nts a s to se nte nc ing a lte rn a tiv e s; ( 4) the natur e a ndc ha ra c te ri sti c s o f the c ri min a l c on du c t; (5) a ny appropriate enha nceme nt and mitigating factors; (6) the def endant’ s pote n t i al or lac k of poten ti a l f

o r r e h ab il it a ti o n o r tr e a tm e n t; a n d ( 7 ) a n y s tate me n ts ma d e b y D e f e n d a n t in his own be ha lf . T .C. A. §§ 40 -3 5- 10 3 a nd-2 10 ; State v. Will iams , 9 20 S.W .2 d 2 47 , 2 58 (T e nn . Crim. App.1995). The defe ndant bea rs t h e b u rd en of showing that his sentence is improper . T.C.A. § 40 -3 5- 40 1( d), S enten c ing Com mis sio n Co mme nts ; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

1. Enhanc ement Factor s

Th e se nte nc ing he ari ng in this c a se wa s hel d on Mar c h 14, 20 06

. In Ap ri l 20 05 , o ur su pr e me

c ou rt c on c lud e d th a t the pr e -2 00 5 Se nte nc ing Re fo rm Ac t di d n ot v iol a te Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531 (2004). State v. Gome z , 163 S.W.3d 632, 661 (Tenn. 2005) ( Go me z I ). In Bl ake ly , the United States Supreme Court c oncluded that the “ ‘statut ory maximum’ for [s e nte nc ing ] p ur

po se s is the ma xim um s e nte nc e a jud ge ma y imp os e so le ly o n th e ba sis of the fa c ts ref lected in the jury verdic t or admitted by t he def endant.” Bl ake ly , 1 24 S.Ct . a t 25 36 ; ( quoting Apprendi v. New Je rsey , 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 ( 2000)). In Bl ake ly , the Court held that “‘ o]ther than the fact of a prior conviction, any f act that incr ease s the penalty for

a crime beyond the pr escribed statutory maximum must be submit t ed to a jury, a nd proved be yond a re asonable doubt.’” Id

. T he United States Supreme Court subsequently vacated

our supreme court’s ruli n g in Go me z I and re manded the c ase to the supr eme c ourt for a dditional consideration in light of t he C ourt’s opinion in Cun nin gh am v . Ca lif or nia , 5 49 U. S. , 12 7 S. Ct. 856, 166 L. Ed. 2d 856 (2007). I n Cunningham , the Supreme Court he ld “[b]e cause circ umstances in aggra vation are found by t he judge, not the j ury, and need only be established by a pr eponder ance-11-

of the e vid e nc e , n ot be yo nda re a so na ble do ub t . . . th e DSLvio la te s Apprendi’s bright-line rule: Exce pt f or a prior conviction, ‘any f act that incr ease s the pena lty for a c rime beyond the presc ribed statutory maximum must be submitted to a jury, and pr oved beyond a rea sonable doubt.’” Cunningham , 549 U.S. at

___, 127 S.Ct . 856. (citing Apprendi , 530 U.S. at 490, 120 S.Ct . at 2348).

Upon re consideration, our supreme c ourt in Gomez I I conclude d that other than a defe ndant’s previous history of c riminal convictions or other f acts a dmitted to by the defe ndant, the application of enha nceme nt fac tors which incr ease s the defe ndant’s sentenc e over the statutorily presumptive
sentenc e deprive s the defe ndant of his or he r Sixth Amendment right to have a jury determine whether those enhanc ement factors applied. State v. Gome z , 239 S.W.3d 733, 739-40 (Te nn. 2007) ( Gomez I I ) (c iting Cunningham , 127 S. Ct . at 860).

Al tho ug h D e fe nd a nt c ha lle ng e d the le ng th of his se nte nc e on app e a l, D e fe nd a nt d id n ot b a se his c la im o n Si xthAm e nd me nt p ri nc ipl e s b ut rathe r o n th e mis app lic a tio n o f e nh a nc e me nt f a c tor s. Def endant doe s have a

prior criminal r ecor d consisting of three misdemeanor c onvictions. The trial court during the sentencing he aring stated that it found, as an enhanceme nt fac tor for a ll the convictions, the fa ct that Def endant did have a prior criminal rec ord, but did not “give a good dea l of we ight to it” beca

use the convictions wer e misdemeanors. The court went on to f ind three more enhanc ement fa ctors. See T.C.A. 40-35-114( 3), (5), (10). The court stated t hat i t gave a “good dea l of we ight” to fac tor (2), that De fenda nt was the lea der in the c ommissi on of the off ense. The court also found that Jessica

was pa rticularly vulner able be cause of her age and that Def endant possesse d a fire arm during the offe nse. The court found no mitigating factors. W hen sente ncing Def endant f or the nine attempted se cond d egre e murde rs, the court found five e nhance ment fac tors. See T.C.A. 40-35-114 (2), (3), (10), (11), (17). The court stated t hat i t sentence d Def endant to twelve year s on

eac h attempted second degre e murder conviction beca use “there a

re just a whole lot of enhanc ement fac tors.”

I n Gomez I

I , our supre me court revie wed the defe ndants’ sentenc ing c laims unde r plain err or analysis. G o mez , 2 3 9 S

. W. 3 d at 737. Rule 52 of the Te nnessee Rules of Criminal Procedure provides that “[ w]he n nece ssary to do substantial justice, an appellate court may consider an er ror that has af fec ted the substantial rights of an a ccuse d at any time, eve n though the err or wa s not raised in a motion for new trial or assigned a s err or on appe al.” Relief is granted unde r plain er

ror r eview “only wher e five prer equisites are met: (1) the r ecor d clea rly establishes what occur red in the tria l court; (2) a cle ar a nd unequivoca l rule of law was bre ache d; (3) a substantial right of the ac cused w as adver sely aff

ecte d; (4) the a ccuse d did not waive the issue f or tac tical reasons; and (5) consideration of the e rror

is “nec essary to do substantial just ice.” Id . (quoting Sta te v . Smi th , 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adk isson , 899 S.W.2d 626, 641-42 (Te nn. Crim. App. 1994)).

In t he ca se sub judice
, t h e r e c o r d c l e ar l y e s t ab l i s h e s w h a t o c c u rr e d i n t h e tr i a l c ou rtin determining the length of Def endant’ s sentenc es, and thus the first prer equisite is me t. In Gomez I I
, our supre me court concluded that “the trial court’s application of t he two other enhance ment fac tors [n ot b a se d o n th e de fe nd a nts ’ p ri or c on vic tio ns ] b re a c he d a

c le ar andun e qu ivo c a l rule of la w” in light of Cunningham

. Gomez I I, 239 S.W.3d at 740-41. Further, the tria l court’s de termination that enhanc ement fa ctors (3) , (5), ( 10), (11)
, and (17) wer e applicable to incre ase D efe ndant’s sente nces deprive d him of the Sixth Amendment right to have a jury de termine whe ther those e nhance ment-12-

fac tors applied and, thus, a substantial right of the ac cused w as adve rsely af fec ted. Se e id

. At the time of Def

endant’ s sentenc in g h ea ri ng, Go me z I , which conc luded that Tenne ssee’ s sentencing
str uct ure di d no t vi olate Six th A me nd me nt p ri nc ipl e s, wa s c on tr oll ing pr e c e de nt. Th e re fo re , it cannot be said that Def

endant waived his Sixt h Amendment cl aim for tac tical re asons. Se e id

. Finally, although Defenda nt has a c riminal rec ord, the trial court admitt edly di d not give that much weight and e nhance d his sentence beca use of the ma ny other enhanc ements fac tors found. In light of Gomez I

I, w e c on c lud e that gr a nti ng De fe nd a nt r e lie f i s n e c e ssa ry to d o s ub sta nti a l ju sti c e in this

case . Acc ordingly, we re duce D efe ndant’s sente nce to twe nty-one ye ars f or t h e s ec o n d degre e murder co n v i cti on and to nine yea rs for e ach of

the nine convic tions for attempted sec ond degre e murder.

2. Consecutive Sentenc ing

Th is C ou rt

ha s c on sis te ntl y h e ld that Bl ake ly does not impact conse cutive sente ncing. See State v. William Shane Bright , No. E2006-01906-CCA-R3-CD, 2007 WL 1259176, a t *3 n.1 (Tenn. Crim. App., at Knoxville, April 30, 2007) perm. app. de nied (T e nn . J uly 6, 20 07 ); State v. Earice Ro be rts , No. W2003- 02668-CCA-R3-CD, 2004 WL 2715316 at *14-15 (T en n

. C ri m. App., at Jackson, Nov. 23, 2004) perm. app. de nied (T e nn . A pril 6 , 2 00 5) ; State v. Lawrence W arren Pierce
, No. M2003-01924-CCA-R3-CD, 2004 W L 2533794 at *16 (Tenn.Crim.App., Na shville, Nov. 9, 2004) perm. app. de nied

(Tenn. Ma

rch 15, 2005)

.

Under Tenne ssee Code A nnotated sec tion 40-35-115(b)( 4), a court m ay impose conse cutive
sentenc es whe n the def

endant is convic ted of more than one of fense and whe n the t rial court finds by a pre pondera nce of

the evidence t h at “the defe ndant is a dange rous offe nder w hose beha vior indicates little or no rega

rd for human l ife, a nd no hesitation about committing a crime in which the risk to human life is high.” “Proof that an offender ’s beha vior indicated little or no re gard f or human life and no he sitation about committ ing a crime in which the risk to huma n life was high, is proof that the offe nder is a dangerous of fende r.” State v. Wilke rson , 905 S.W.2d 933, 938 (Tenn. 1995)

. Once a court has determined that a def endant is a dan g er o u s o ff ender , it must also determine that an “e xtended se ntence i s nece ssary to protec t the public against further c riminal conduct by the defe ndant and that the c onsecutive se ntence s must reasonably r elate to the severity of the offe nses committed.” Wilkerson , 905 S.W.2d at 939.

In the instant ca se, the trial c ourt properl y determined that Def endant wa s a dange rous offe nder. The court stated, “[a ]nyone [sic] who would get two arme d men with a utomatic rifles a nd desce nd upon a per son’s house, af ter ha ving alrea dy left, and the n come ba ck, [w ith] fully loaded

wea pons

. . . has no rega

rd for human l ife and no hesitation about commi tting a crime in which the risk to human life is high.” The court then found that extende d confine ment was ne cessa ry to protec t t h e p u b l i c from Defenda nt’s “unwillingness to lead a pr oductive life, a nd his resort to criminal activity in further ance of an a nti-social lifestyle.” Las t l y, the court concluded that “with the devasta tion that he wrought on this community and these people, I find that that rea sonably relates to these off

enses.” Because the trial c ourt properly determined tha t Defe ndant was a danger ous offe nder a nd applied conse cutive sente ncing, Def endant is not entitled to relief as to this issue.

CO NC LU SION-13-

For the fo re go ing re a so ns , the jud gme nts of the tr ia l cou rt are a ff ir me d e xc e pt i n r e ga

rdto sentenc ing. In rega

rd to the issue of se ntencing we modify Def endant’ s sentenc e to t wenty-one year s for the c onviction of second degre e murder and to nine year s for e ach c onviction of attempted sec ond de gr e e mur de r, to b e se rv e d c on se c uti ve ly f or a tot a l e ff e c tiv e se nte nc e of

10 2 y e ars

.

___________________________________ THOMAS T. WO ODALL, JU DGE