# FILED
July 9, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE JUNE 1999 SESSIO N

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9809-CR-00374

) ) Davidson County v. ) ) Honorable Cheryl Blac kburn, Judge ) ERVIN LEE HAYES, ) (Attempted first degree murder, two counts) ) Appellant. )
For the Appellant : For the Appellee : J. Michael Engle Paul G. Summers Assistant Public Defender Attorney General of Tennessee 1202 Stahlman Building and Nashville, TN 37201 Clinton J. Morgan (AT TRIAL) Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Jeffrey A. DeVasher Assistant Public Defender Victor S. Johnson, III 1202 Stahlman Building District Attorney General Nashville, TN 37201 and (ON APPEAL) Dan Hamm Assistant District A

ttorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 and Sharon Brox Assistant District A

ttorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Ervin Lee Hayes, appeals as of right from his c onvictions by a jury in the Da

vidson County Cri minal Court for two counts of attempted first degree murder, a Class A f elony. He wa s senten ced as a Ra nge II, mu ltiple of fender to thirtyfive years confinement in the custody of the Department of Corr ection for each count to be served consecutive ly. The defendant contends that (1) the evidence is insufficient to support his convictions, and (2) the trial court erred by imposing an excessive sentence and by ordering consecutive sentences. We affirm the judgments of conv iction.

At trial, Tawanda Parker testified that she lived w ith her boyfriend, Andreal McLemore, in a duplex in Nashville. She testified that after midnight on December 12, 1996, the defendant and his girlfri end knocked on her door. She test ified that she knew the defendant and that he had previousl y been to her apartment. She tes tified that the defendant entered and asked if he could borr ow her car, to whi ch she replied that the car was not worki ng because the tailpipe had fall en off. She said the defendant responded, “[D]o you mean to tell me that damn car ain’t working?” She said she told the defendant that it was not, then the defendant pulled out a handgun from his pocket and shot Mr. McLemore. She s aid the defendant then shot her in the l eft jaw, walked toward her and shot her ag ain in the neck. She testified that before the defendant shot her and Mr. McLemore, she and the defendant had not been arguing but had been talking in a normal tone. She said the defendant did no t say anything immediately before or after

he shot them.
Ms. Parker testified that she and Mr. McLemore lay still until they heard the defendant leave. She said she c rawled to the telephone to di al 9-1-1 but could not dial the numbers. She said she thought she was dialin g 9-1-1, but an operator k ept3

coming on the line tellin g her to hang up and try again. She said she pray ed and went to sleep. She said she awo ke several times and tr ied to dial 9-1-1 but w

as unsuccessful. She said the nex t time she awoke, it w

as daylight. She state

d that the telephone then rang, and she w as able to answer it. She said it was a friend, and she told him to call the police because she had been shot. Ms. Parker testified that the police arrived shor

tly thereafter and that she tol d them that the defendant had shot them. She testified that a detectiv e later showed her tw

o photograph lineups. She testified that she did not see the defen dant in the first lineup but that she identified him in the second one. She stated that s he has been confined to a wheelchai r since the shooting.

On cross-examination, M s. Parker testified that she had known the defendant for about three mon ths before the shooting. She stated that he lived with his mother down the street from her.She said that he had been at her hous e a couple of times on the day of the shooting to use her telephone. She testified that the defendant had previously boug ht a car and furniture from her. S he said she had borrowed money from the def endant in the p ast but had always p aid it back. She d enied mentio ning a robbery to one of the responding officers. She said that when the defendant was at her apartment, no one was angry , upset or yelling. She said she did not know why the defendant shot her.

Andreal McLemore testified that he had known the defendant about three months before the shooting and that the de fendant had previously been in his and Ms. Parker’s apartment. He sai d he was friendly w ith the defendant and never had any problems with him. He said that he was lying in bed when the defendant came to their apartment at about 12:30 a.m. on December 12. He said the defendant wanted to borrow Ms. Parker’s car but could not do so because the tailpipe had fallen of f. He said he heard the defendant and Ms. Parker talking but could no t hear what they were4

saying. He testified that he was sitting upright on the bed when the defendant shot him from about eight feet away. He said he had no conversation with the defen dant before he was shot. He said the bullet struck his upper left neck, and he fell to the f loor. He said that after he was shot, he heard two more shots, and M s. Parker fell on top of him. He said that after the defendant lef t, Ms. Parker crawled to get the telephone but could not use it. He said they were not discover

ed until 1:30 p.m. the followi ng day, and he said he was awake the entire time and was unable t o move his lower body . He testified that he has been confined to a wheel chair since the shooting and that he has to live in a nursing ho me facil ity.

On cross-examination, M r. McLemore admitted that he had s erved a three-year sentence for possession of cocaine in 1993. He said that neither he nor Ms. Parker had any dispute w ith the defendant.
Sergeant Gary Young

testified that he was dispa tched to the scene and discovered that the victims had been shot inside their apartment. He said he aske d Ms. Parker who shot her, and she responded, “Ervin di d it.” On cross-ex amination, he testified that he did not know if the case was origi nally handled by a robbery unit, but he had called for a homicide unit.

Detective Frank Pier

ce testified that he works for the Homicide Unit and that when he arrived a

t the scene at about 1:30 p.m., the v ictims had already been transported

to the hospit

al. He said

he learned fr

om another det

ective tha

t the vict ims said that a man named Ervin had s hot them. He said that Detecti ve Dean Haney prepared a photograph lineup that did not contain the defendant’s photograph. He said he showed the lineup to the v ictims, and they could not identify the defendant in the lineup. He said he prepared a second lineup containing the defendant’s picture, and the victim s were able to identi fy the de fendan t immedi ately.5 On cross-e xaminati on, Dete ctive Pierc e testif ied that he did not preserve the first lineup. He said the photographs in the first l ineup were selected by a computer based upon the information from the vi ctims. He said he did not bel ieve any writt en description of the defendant by the v ictims existed. On r

edirect examination, he testified that although he show ed the first lineup to the vi ctims, it was prepare d by Detective Haney. H e said that as far as he knew , the only information prov ided by the victims was the defendant’ s name.

Officer William Merrill of the Identificati on Division of the Metro politan Police Department testified that he was in the area of the v ictims’ apartment on December 12 and saw ambulances and police cars. He said that when he went insi de the apartment, Ms. Parker w as being treated and was unresponsive. He testified that Mr. McLemore was able to speak. He said he asked M r. McLemore who shot him, and Mr. McLemore responded, “E rvin.” Officer Merr ill testified that he found blood i n several areas, including on the bed, but that he did not find any shel l casings, bullet hole s or weapons at the scene.

Detective Dean Haney

of the Armed Robbery Unit tes tified that he was dispatched to the scene on the repo rt of a potential armed robbery . He said he arrived at about 2:00 p.m. He said that the Armed Robbery Unit was dispatched beca use Ms. Parker had men tioned robbery to an officer on the scene. He said he looked throu gh the apartment, but it did not look as if anything had been taken. He said a billfold and pocketbook were still

in the apartment. He testified that he saw Mr. McLemore at the hospital the next day and that he asked Mr. McLemore if he had been robbed. He said that Mr. McLemore was unable to speak but that he shook his head to indica te “no.” He said Mr. McLemore shook i s head to indicate “yes” when he asked if Ervin had shot him. Detective Haney

testified that the case was then turned over to the Homi cide Unit. He testified that he assisted Detective Pierce by generating a computer li neup based6

upon the name “Ervin.” H e said he did not know w hether the defendant was in the lineup, and he gave his paperwork to Detectiv e Pierce. The jury conv icted the defendant upon the foregoing eviden ce.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence is insufficient to support his convictions. He arg ues that no evidence exi sts to support a finding of premedi tation necessary for an attempted first degree murder conviction. The state contends that the evidence is sufficient.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is “whether, after viewing the ev

idence in the light most fav orable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that w e do not reweigh the ev idence but presume that the jury has resolv

ed all conflicts in the test imony and drawn all r easonable inferences from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

A person commits the offense of criminal attempt when, “acting w ith the kind of culpability otherwise required for the offense [the person ] . . . [i]ntentionally engages in action or ca uses a result that woul d constitute an offense if the circumstances surrounding the conduct were as the per son believes them to be[.]” Tenn. Code Ann. § 39-12-101. Fir st degree murder is the “premeditated and intentional killing of another[.]” Tenn. Code Ann. § 39-13-202(a)(1).

A premeditated act is one “done after the exercise of reflection and judgment. ‘Premeditation’ mean s that the intent to kill mus t have been formed prior to7

the act itself. It is not nec essary that the purpose to kill pre-exist i n the mind of the accused for any definite period of time.” Tenn . Code Ann. § 39-13-202(d). Furthermore, the element of premeditat ion is a question for the j ury and may be established by proof of the cir cumstances surrounding the killing. State v. Bland , 958 S.W.2d 651, 660 (T enn. 1997). Our supreme court has delineated the f ollowing factors that demonstrate the existence of premeditation: the use of a deadly weapon upon an unarmed victim, the partic ular cruelty of the kil ling, declarations by the defendant of an intent to kill, eviden ce of procurement of a weapon, prepar ations before the killing for concealment of the crime, and calmness immediately after the kill ing. Id.

The defendant contends that the evidence i s insufficient to support a finding of premeditation because no evidence o f reflection or judgment exists. He argues that the evidence shows that he pulled out the gun and shot the victims. He claims that the evidence onl y supports a convic

tion for attempted second degree murder. We disagree.

We believe that the facts in the light most favorable to the state support the jury’s finding of pr

emeditation. The defendant entered the vi ctims’ apartment armed with a loaded weapon. H e calmly took the weapon out of his pocket and, without warning or prov

ocation, shot Mr. McLemore, who was unarmed. He then turned the gun upon Ms. Parker, als o unarmed, and shot her without warning. He then w

alked toward Ms. Parker and shot her again. The defendant then left the apartment, without comment, leavi ng the i njured v ictims alone. The defenda nt’s adv ance pro curemen t of a weapon, his use of that weapon on two unarmed victims, his calmness immedia tely after the shooting, and the cruelty of leaving the injured victims to their fate suppo rts a finding of premeditation.8 II. SENTENCING The defendant contends that the trial court erred in sentencing. He argues that (1) his sentences are excessiv e because the trial court mi sapplied an enhancement factor, and (2) consecuti ve sentences are not wa rranted. The state contends that the defendant’s sentences are appropriate. We agree.

Appellate review of sentencing is de novo on the record with a presumption that the trial co urt's determinations are c orrect. Tenn. Code Ann. § 40-35- 401(d). As the Sentencing Commission Comments to this section n ote, the burden is now on the defendant to show that the sentence is improper. This means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in t he record, and gave due co nsideration and proper w eight to the factors and principles tha t are relevant to sentenci ng under the 1989 Sentencing Act, we may not distur

b the sentence even if a different res ult were preferred. State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).

However, “the pres umption of correctness whic h accompanies the trial court's action is condit ioned upon the affirmative showi ng in the record that the tr ial court considered the sentencing principles and all relevant facts and circumsta nces.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate review,

the trial court must place on the record its reasons for arriving at the final sentencing decision, identify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate h ow the mitigating and enha ncement factors have been evaluated and balanced in determining the sentence. T.C.A. § 40-35-2 10(f) (1990). State v. Jones , 883 S.W.2d 597, 59 9 (Tenn. 1995).

Also, in conducting a de novo review, we must consider (1) the evi dence, if any, received at the t rial and sentencing heari ng, (2) the presentence r eport, (3) the9

principles of sentencing and arguments as to sentencing alternatives, (4) the natu re and characteristics of the c riminal conduct, (5) any mitigating or statuto ry enhancement factors, (6) any statement t hat the defendant made on his own behalf and ( 7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40- 35-102, -103, -210;
see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

The sentence to be imposed by the trial court for a Class A felon y is presumptively the midpoi nt in the range when ther e are no enhancement or mitigati ng factors present. Tenn. Code Ann. § 40- 35-210(c). Procedurall y, the trial court i s to increase the sentence within the range based upon the ex istence of enhancement factors and then reduce the sentence a s appropriate for any miti gating factors. Tenn. Code Ann. § 40-35-210(d), (e) . The weight to be afforded an ex isting factor is left to th e trial court's discr

etion so long as it compli es with the purposes and pr inciples of the 1989 Sentencing Act and its findi ngs are adequately su pported by the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.

A presentence report was introduced at the sentencing hearing. It reflects that the defendant was twenty -seven years old at the time of sentencing and had no mental or physical healt h problems. It reflects that t he defendant has previous convictions for voluntary manslaughter and ag gravated assault in 199 3, possession of cocaine in 1992, and assault w ith the intent to commit armed ro bbery in 1990. The report shows that the defendant c ompleted no education beyond the sev enth grade and reported no emplo yment his tory.

The trial court found the following enhancement factors applicabl e, as listed in Tenn. Code Ann. § 40-35- 114:10 (1) The defendant has a previous history of criminal convictions

or criminal behavior

in addition to those necessary to establish the appropriate range; (5) The defendant treated or allowed t he victim to be treated with exceptional cruelty during thecommission of the offense; (6) The personal in j uries inflicted upon or the amount of damage to property sustained by or taken from the vic tim was particularly gr

eat; (8) The defendant has a previous histo ry of unwillingness to comply with t he conditions of a sentence involving release in the comm unity; (9) The defendant possesse d or emplo yed a fire arm, explo sive device or other deadly weapon during the comm ission of the offense; [and] (11) The felony resulted in death or bodily injury or

involved the threat of death or bodily injury

to another person and the defenda nt has previously been convicted of a felony that r esulted in death or bodily injury[.]
The trial court found no applicabl e mitigating factors and s entenced the defendant as a Range II, multiple o ffender to thirty-five y

ears for each conviction, to be served consecutivel

y. In ordering cons

ecutive sentences, the tr ial court found that the defendant has an extensive rec ord of criminal activity and is a dangerous offender whose behavior indic

ates little or no regar

d for human life and no hesitation about committing a crime in w hich the risk to human life is high. Tenn. Code Ann. § 40-35- 115(b)(2), (4). The trial court also determined that consecutive sentences reaso nably relate to the severity

of the offenses and are necessary to pr otect the public from further criminal activity

by the defendant. State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995).

A. LENGTH OF SENTENCE

First, the defendant contends that t he trial court erred by applying enhancement factor (5), that he treat ed or allowed the vi ctims to be treated with11

exceptional cruelty

during the commission of the offense. The trial court applied enhancement factor (5) based upon the cruelty of the unprovoked shooting and the fact that the defendant left the injured but con scious victims in their apartment, and they were not found until the nex t day. In applying factor (5) based upon the cruelt y of the unprovoked shooting, the t rial court relied upon this court’s opinion in State v. Terry Antonio Lawrence , No. 01C01-9603-CR-00122, Davidson County (Tenn. Crim. App. Sep. 19, 1997). In that case, a panel of this court held that factor ( 5) was applicable to enhance the defendant’s attempted first deg ree murder conviction. The panel concluded that “[t]he unarmed v ictim offered no resistance . . . . However, the defendant’s response to the vic tim’s compliance was to shoot him at close range i n the face. The trial court was correct in finding this to be an act of exceptional cruelty.” Terry Antonio Lawrence , slip op. at 7.

Initially, we note

that the application of factor (5) requires “excepti onal cruelty,” whic

h is usually found in cases of abuse or torture. See State v. Willia ms , 920 S.W.2d 247, 250 (Tenn. Crim. App. 1995). Our supr eme court has held that the facts must “support a finding of ‘exceptional cruelty’ that ‘demonstrates a culp ability distinct from and appreciably great er than that incident to’” the crime. State v. Poole , 945 S.W.2d 93, 98 (Tenn. 1997) (quoting State v. Jones , 883 S.W.2d 597, 601 (Tenn. 1994)).

In Poole , the supreme court concluded that knocking the victim unconscious and leaving her on the floor bleeding under circumstances m aking it unlikely that she w

ould soon be discovered or receive treatment demonstr ated a greater culpability than that needed for the commission of the especiall y aggravated rob bery for which the defendant was conv icted. 945 S.W.2d at 99. In this regard, though, a distinction exists in the present case because the offen se is the attempt to commit first degree murder. A rational argument can be made that a person who simply enters a12

victim’s home, shoots the victim with the i ntent to kill the victim, and then leaves the home does not necessarily ha ve greater culpabil ity through excepti onal cruelty if the victim survives, although left alone. In any event, we believe that the remaining factors adequately support the sent ences imposed.

B. MANNER OF SERVICE Next, the defendant contends that the trial court erred by imposing consecutive sentencing . He does not contest the tri al court’s findings w ith respect to Tenn. Code Ann. § 40-35-115 but asser ts that consecutive sentenc es do not reasonably relate to the s everity of the offenses and are not necessary to protect th e public. See Wilkerson , 905 S.W.2d at 938.

We conclude that the record supports the tri al court’s imposition of consecutive sentencing. The consecutive sentences in the present case rea sonably relate to the severity

of the offenses and are necessary to pr otect the public. The defendant, without provocation or warning and for no apparent reaso n, shot Mr. McLemore in the neck and shot M s. Parker twice in the jaw and neck, leav ing the unarmed and helpless victi ms lying on the floor. B oth victims suffered serious injuries and are confined to wheelchair s as a result of the shooting . Furthermore, the defendant’s criminal record r eflects three previous con victions involv

ing physical violence or death. These facts support consecutive sentenc ing.

In consideration of the foregoing and the record as a whole , we affirm the judgments of conviction.

__________________________ Joseph M. Tipto n, Judge13

CONCUR:

___________________________ Joe G. Riley, Judge

___________________________ Alan E. Glenn, J udge