### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ugus t 16
, 200 5 S es sio n

ST A TE OF TE N N ES SE E v

. EDD IE ELV ETON RO BINS ON GAS TON

Direc t Appeal from the Cr im inal Cou rt for K nox Coun ty Nos. 73803, 73804 Mar y Beth Leibow itz, Judge

No. E2004-01450-CC A-R3- CD F iled Janu ary 13, 2006

The De fenda nt, Eddie Gaston, wa s convicted of preme dita t ed fi rst deg ree murder, two c ounts of

a t t e m p t e d f

i r s td e g r e e m u r d e r , e s p e c i a l l y a g g r a v a t e d k i d n ap p i n g , a n d e s p e c i a l l y a g g r a v a t e d r o b b e r y. The trial c ourt sentenc ed the Def endant to life i n prison for the first deg ree murder c onviction and
to twe nty -five y ear s for eac h of the other convictions, and it order ed that all the se ntence s be ser ved

consec utively . On appe al, the De fenda nt contends that: (1) the evidenc e is insufficient to sust ain any of his convictions; (2) the tria l court erred when i t ruled on sever al di ffe rent evidentiary issues; and (3) the tr ial court c ommitt ed sente ncing err ors. Finding that t h er e ex ists no reversible e rror , we

a ff ir m th e jud g me nts of

the tr ia l c ou rt

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

the Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J
., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J
., and J OS EP H M. T I PTON , J ., joined.

Br uce E . Poston, Knox ville, Tennesse e, for the appe llant, Eddie Elveton Robinson Gaston.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt er; John E. B le ds oe , A ssi sta nt A tto rn e y Ge ne ra l; Randall E. Nichols, District Attorney Gene ral; and L eslie Nassios and Paula Ha m, Assistant District Attorney s Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION I. F acts A. F acts at

Trial

These c ases a

rise fr om the Def

endant’ s convictions for the mur der, t h e att empted murde r,

a ndthe kid na

pp ing a ndro bb e ry

of thr e e vic tim s du ri ng tw o se pa rate inc ide nts . F or

the fi rs t in c ide nt, which involved the r obbery of a Pilot ga s station and the s hooting of J oshua Rey nolds, the Defe ndant was indicted b y a Knox Count y Gra nd J ury , in case number 73803, for attempted first de g ree murder, espec ially ag g ravated kidnapping
, and espec ially ag g ravated robbery

. For t h e s ec ond-2-

incident, the same g rand jury indicted the De fen d an t for the premeditate d first deg ree murder of Christopher B urton and the attempted first deg ree murder of Darian Sparks and D aniel Tims. The Def endant moved to c onsolid at e t hese indictments for trial based on the defe nse theory that he int e nd e d to pr e se nt. He a sse rt e d th a t it wa s n e c e ssa

ry a ndimp e rativ e to h is d e fe ns e to h a ve the tr ia ls toge ther, a nd the trial court gr anted the D efe ndant’s motion.

Th e fo llo wi ng e vid e nc e wa s pr e se nte d a t the De fe nd a nt’ s tr ia l on bo th o f the se ind ic tme nts : J ames Wy coff

testified that, on Octobe r 8, 2001, at 4: 30 a.m., he pulled into a Pilot st ation to deliver bis c uit s, a ndhe sa w a ne w sto re c le rk a nd wh a t he tho ug ht wa s a sma ll ch ild , n oti ng that th e c hil d

was we aring a blac k hood. Wy coff attempted to enter the s tation, but the door was locked. Wy coff said that the cle rk used a m i cr ophone that could be hear d from the pa rking lot to tell W y coff

that there had bee n a chem i ca l s p i l l s o t he cle rk could not let Wy coff in the station. At first, Wy coff believed the cashie r, and he started to lea ve, but, af ter thinking more about it, Wy coff determined that th e c le rk

c ou ld n ot b e ri g ht, a nd he we nt ba c k up to the wi nd ow . T he re , th e c le rk tol d h im t o g o around to the ba ck, side door, and the cle rk would let him in. W y coff went to the door a nd waited for a few minutes, and then the clerk c ame a round the c orner

of the store followed by

a blac k man. The blac k man indicated tha t the cler k would be right bac k. Wy coff said that the cle rk and the man

wa lke d a c ro ss the str e e t an d arou nd a bu ild ing , a ndthe n Wy c of f h e ardwh a t he tho ug ht w a s a g un sh ot. Wy c of

f t e sti fi e d th a t, at tha t time , he g ot in his ca r an d dro ve to wh e re he ha d p re vio us ly

seen a police off

icer , and Wy coff

and the of

fice r re turned to the Pilot station.

Wy coff said that, later that evening
, h e we n t t o t he Sheriff ’s Depa rtment to view a photogr aphi c li n e u p o f s u s p e c ts

. H e r e me mb e r e d th a t, a t f ir s t, th e p o li c e s h o w e d h im b la c k and white picture s of a “ bunch” of suspects, and he picked out two picture s that looked simil ar t o the man he s a w a t th e Pi lo t s tati o n

. T h e p o li c e th e n s h o w e d h im e ig h t to te n c o lo r p h o tog raphs of suspects, and W y co ff p o s itively identified the De fenda nt’s picture a s being of the man w ho committed this crime. Wy coff said that he a lso identified the Def endant in a lineup.

On cr oss-examination, Wy coff testified t hat, on the nig ht of this incident, he neve r saw the cler k and the De fenda nt exi t the station, and he sa w them when he was on the side of the building wher e it was a

“little darke r.” When Wy coff saw the D efe ndant outside the building the Def endant was no longer wea

ring a hood, but he was car ry ing a bag that had something g lowing on it. Wy coff de sc ri be d th e De fe nd a nt a s h a vin g ve ry sh ort ha ir and bei ng cle a n s ha ve n o n th e nig ht o f this incident, and he said that he only saw him clea rly for thre e or f

our sec onds. Wy coff

never saw a car leave the g as station, and he did not see anything sticking out of the bag

. The De fenda nt’s counsel showed Wy co ff a v ideotape of the lineup, and Wy coff

admitted that, in the lineup, the Def endant didno t lo ok

c le a n s ha ve n. Wy c of

f sa id that the De fe nd a nt spo ke to him , an d the y ma de e y e c on ta c t, and, bec ause of this, he remembere d what the Def endant looked like. Wy coff conce ded that, at the preliminary

hearing, hetestified that the De fenda nt had a hood on the e ntire time.

Fr ank Carr aher , a police of fice r for t h e Kn ox ville Poli ce D epartment, testified that, in the

ear ly mo r n in g h o u r s o f O c to b e r 8
, 2 0 0 1
, h e r e c e iv e d a c a ll ab o u t a r o b b e r y a t a Pi lo t station on Northshore Drive. H e said that, as he pulled into the Pilot ’s parking lot, he was met by a delivery-3-

man, who told him that he saw a black man walk with the s tore clerk ac ross the stree t. The off icer said that he secured the crime scene and t hen we nt acr oss the street whe re he found the store cler k ly ing in a

puddle of blood. T h e officer g ot assistance f

rom another

office r, and he called a n ambulance for the vic tim. On cross -e x am i n at ion, the office r conc eded that it was dark whe re he fo un d th e vic tim

.

Russell W hitfield, an off icer with the Knoxvi l l e P o l i ce D epartment, testified that he wa s called to inve stiga te the crime scene in this case

. He sa id that, when he r esponded to this call, he sa w three or four

police ca rs at the c rime sce ne, along with other off icer s. He took g ener al crime scene photogr aphs of the Pilot station, and then he took pho t o gra p h s o f the sce ne ac ross the stree t on B e ard e n Ro a d, wh e re the c le rk wa s f ou nd , a ndhe sa w a

po ol o f b loo d, a

c ou pl e of sh ir ts, a

sh e ll casing
, and some ey eg lasses. Offic er Whit field said that, at the Be arde n crime scene , there was a n office complex. The office r identified the .380 shell casing that he collec ted and some c ash re g ister

rec eipts that showed that the c ash re g ister was ope ned at 4:19 a.m., 4:29 a.m., a nd 4 : 3 0 a.m. The office r testified that he retrie ved the bullet that doctors re cover ed fr om the victim’s head. The office r said that none of the fing erprints that he collecte d from the c rime sce ne matche d the Def endant. On

cross-e x amination he st ated that the V CR and videotape missing f rom the Pilot st ation had not bee n

rec overe d.

Mike J enning s testified that he is the st o re m an ager for a Pilot station, and, on Octobe r 8, 2001, he dete rmined that $366 had be en stolen fr om his P i l o t s t at i o n during a robbe ry . On

cross-e x amination, he said that $235 in rolled c hang e wa s stolen and $ 1 3 1 from the cash dra wer

. He a lso said a VCR was stolen along with a sec urity tape.

J oshua Richa rd R ey n o l ds testified that, on Octobe r 8, 2001, he w as working his third
g ra ve y ardsh ir t, w hic h w a s f ro m 11 :00 p. m. t o 7:0 0 a .m. , a s a c le rk a t a Pilo t st a tio n. Re y no lds sa id that both the inside and outside of the Pilot station were brightly lit. R ey nolds testified that, on Oc tob e r 8 , 2 00 1, a t so me po int be fo re 4:3 0 a .m. , a ma n, wh om h e ide nti fi e d a s th e De fe nd a nt, c a me in a nd walked around for a littl e bit. The Def endant picked up a few items a fter which R ey nolds
rang him up as he wo u l d h av e an y other c ustomer. Rey nolds said that, when he w ent to g ive the Def endant his cha ng e, the De fenda nt pointed a gun at him, told him not to press the a larm button, and motioned to wher e the button was located. Rey nolds said that the Def endant c ame to the ba ck of the c ounter a nd told Rey nolds to lock the store door a nd empty the ca sh reg i s ters. Ne x t, the Def endant r equeste d that Rey nolds open the safe
, and R ey nolds complied with this request, but he could only

open the lowe r portion wher e the c hang e wa s located. Rey nolds said that the Def endant
g a ve him a ba g , a ndRe y no lds pu t th e mon e y in the ba g . Re y no lds ha d to te ll m ult ipl e c us tom e rs to leave and not pump g as, and he told the customers that there had bee n a tox ic spill inside the store. Du ri ng thi s ti me , th e De fe nd a nt w a s c ro uc he d b e hin d th e re g ist e r w ith a g un po int e d a t Re y no lds

.

Re y no lds sa id that, ne xt, the De fe nd a nt t oldhim to g e t th e se c ur ity

tape , a ndRe y no lds tol d the Def endant that he could not g et t he tape without the key , which he did not have . The De fenda nt told Rey nolds to ge t the key or he w ould shoot Rey nol d s. Rey nolds panicked, a nd he “ripped the whole VCR down and started unplug g ing a ll the wires.” Rey nolds said that the Def endant put the-4-

VC R in the ba g a ndso me of the VC R w a s st ic kin g ou t of the ba g

. Re y no lds te sti fi e d th a t th e bis c uit delivery man ca me to deliver the biscuits, and Rey nolds trie d to g et him to leave by telling him there

was a tox ic s pill. The delivery man would not leave , so Rey nolds told hi m to go to the ba ck door, thinking that the Def

endant could leave from the front door. Rey nolds said that, after the delivery man went to the back, the Def endant stood up from behind the c ounter, saw that no one wa s there, and then he pulled Rey nolds towa rd the front door. As the two we re w alking out the front door, the Def endant told him to look for war d, and Rey nolds sa w the delivery man out of the c orner

of his ey e. Rey nolds said that he hea rd the De fe n d an t, who was rig ht behind him, say that “[w]e’ll be rig ht back.”

Rey nolds said that the two walked a cross the stre et to a dar k spot besid e a buil ding, a nd Rey n o ld s f

e lt th e D e f

e n d a n t p u t th e g u n o n th e b a c k o f h is n e c k a n d h e a d

. H e s a id he saw the Def endant’ s vehicle, w hich was a hunter g ree n For d Ex plorer, a nd he thoug ht he was g oing to ha ve to g et i nto the vehicle. Rey nolds ex plained that the De fenda nt’s car was ne ar a n office building, and the ar ea by

the offic e building was i l l u m i n at ed well enoug h that he could se e the c olor of the De fe nd a nt’ s c ar. Re y no lds sai d tha t th e ro bb e r the n s ho t hi m, a ndhe e sti ma te d th a t th is w ho le incident lasted be tween f ifteen a nd twenty

minutes. The next thi ng that Rey nolds s ai d t h at he

reme mbere d was fla shing lig hts and people standing around him. Then, he reme mbere d being topless and havi n g his pants removed w hile a medica l technician told him to not try to talk. Re y no lds ne xt me mory wa s of wa kin g up in the ho sp ita l. He sa id tha t, w hil e he wa s a t th e ho sp ita l, the police showe d him a videotape, and Rey nolds identified t he De fenda nt as the man who r obbed

a ndsh ot h im. Re y no lds sa id tha t, o n th e nig ht of thi s cr ime , the De fe nd a nt h a d a g oa te e . A s a

re su lt of the g unshot, Rey nolds has suffe red f rom an inability

to remembe r ce rtain words.

On cr oss-examination, Rey nolds said that, prior to trial, he revie wed his te stimonyfrom the preliminary hearing and his state ment to police. I n his statement to police, Rey nolds said that the Def endant’ s car

was “some kind of gre en color” and described a Sports UtilityVehicle (“SUV” ), but Rey nolds did not use the wor d SUV, and he e x plained that the inability to remembe r some wor ds is a re sid ua l e ff

e c t of his be ing sh ot i n th e he a d. He sa id tha t, at th e tim e of the int e rv ie w, he c ou ld not remembe r the word SUV. Rey nolds admitted that at t he preliminary hearing he testified that the De fe nd a nt w a s d ri vin g a F or d Exc ur sio n, a nd no t E xplor e r, bu t he sa id tha t he so te sti fi e d b e c a us e he could not re member the word Explorer. Rey nolds said that the Def endant’ s shirt had a hood, but he could not re member if the hood was e ver ove r the De fenda nt’s head. Rey nolds sa id tha t he was

scar ed whe n the Def

endant thre atene d h i m wi t h a g un. He sa id that, when he w as shot, he wa s fac ing the Ex plorer w ith the building behind him. Rey nolds cou l d n o t re call how many men he vie we d in the vid e o li ne up wh e n h e ide nti fi e d th e De fe nd a nt.

On re direc t examination, R ey nolds said that, when he vie wed th e v i d eo li neup, he imm e diate ly

ide nti fi e d th e De fe nd a nt. He te sti fi e d th a t, wh ile he wa s sc are d w he n th re a te ne d w ith the g un, he thoug ht that the Def endant would r ob the store, but not hurt him. Rey nolds describe d the Def endant a s “ca lm” during the robbe ry . On recross-e x amination, Rey nolds said that he did not

reme mber what the Def

endant wa s wea

ring on the nig ht of the robbe ry

.-5-

Wil liam E. Sny der, J r., M.D., testified t hat he tre ated Joshua Rey nolds, who had bee n shot in the le ft te mpo ra l r e g ion in fr on t of his le ft e ar. He sa id tha t, o n O c tob e r 8 , 2 00 1, he wa s o n c a ll when Reynolds was broug ht to the emerg ency room. The doc tor said that he an d o ther doc tors perf ormed surg ery on Rey nolds to remove the bullet f rag ments that wer e left in his he ad, and, a fter
surg ery , Rey nolds suffer ed fa cial we akness on the le ft side and he aring loss.

Da ri c e Hi c ks on te sti fi e d that, in Oc tob e r of 20 01
, he r br oth e r, Da ri a n Sp ark s, liv e d o n O ld Guinn Road with his wife, two childre n, and a f riend na med Chris Burton. On October 8, 2001, at

aro un d 3 :0 0 p. m. , sh e we nt t o Sp ark s’ ho us e wi th h e r b oy frie nd , D a nie l T ims , to vis it Sp ark s. Hickson said that, whe n they arrived at Sparks’ house, Sparks was in his y ard pla y ing w ith his t wo child re n , an d T i m s g ot out of the ca r to g o and spea

k to him. During tha t conver sation, Sparks mentioned that a friend na med “Vito” w as coming to the house. Hickson sa id that, while every one

wa s st a nd ing in the y ard , a F or d E xplor e r, wh ic h w a s e ith e r n a vy or hu nte r g re e n, pu lle d d ow n in to the drivew ay

and onto the g rass, and then it ba cked down the driveway

. She said that the De fenda nt

e x it ed th e Ex pl or e r a ndg re e te d h e r b ro the r, wh o th e n in tr od uc e d h e r a ndTi ms t o th e De fe nd a nt. The De fenda nt said that he wa s hung ry and aske d Sparks if Sparks ha d any food.

Hickson testified that Sparks a nd the Def endant went into the hous e, and she followed a fter about ten minutes to tell Sparks that she and Tims had to lea ve. She said that she sat down on the couch, a nd she woke up Burton, who was sle ep i n g on the couc h. When Burton a woke, he lit her cig are tte, and then we nt into the kitchen to help prepa re spa g hetti. Hickson said that, while t his was happening , the Def

endant wa s standing in the living r oom/dining room ar ea. Shortly there afte r, the Def endant went outside and picked up Hickson’s niece and put her on his shoulders. He then went to his car, a nd, when he came back into the hous e, set down her niece
, who gra bbed a Michig an hat off of his head. The Def

endant sa id, “Oh, ca n’t mess with the Michig an.”

Hickson said that she looked down at her niece and nephew , and then she hear d a pop sound. When she looked up, she sa w t he Defenda nt’s arm ex tended in Burton’s dire ction, and the De fenda nt ha d a g un in h is h a nd

. Hi c ks on sa id tha t Sp ark s mo ve d to wa rdhis be dr oo m, a ndthe De fe nd a nt s a id to Sparks, “Don’ t think about it.” Hickson said that the Def en dant followed Spar

ks back towa

rd Sparks’ be droom, and she ran out the front door. She hear d another g unshot as she wa s leaving , and,

a s sh e wa s run ni ng, sh e fel l. Wh e n s he g ot b a c k u p, sh e c on tin ue d r un nin g a ndsh e he ardtw o to three more g unshots. Then, she hear d a car leaving
, and she saw the D efe ndant leaving in the car

. Hickson estimated that the Def endant was at Sparks’ house for approximately fiftee n minutes before he sh ot B urton . H ic ks on sa id tha t sh e we nt t o a ne ig hb or ’s ho us e a ndc a lle d 9 -1 -1 . H ic ks on sa id that, w he n sh e he ard the a uth or iti e s a rrive a t Sp ark s’ ho us e , s he we nt b a c k to the ho us e , a ndTi ms

came from behind the house. Hickson said that Sparks’ children wer e on the floor whe n the shooting

occur red. She sa id that she di d not see a ny marijuana

or money exchang ed during this ti me, and she also did not see Sparks or Burton threate n the Def

endant with a g un.

On c r o s s

- e xa mi n a ti o n , H ic k s o n a g r e e d th a t o n th e 9

- 1

- 1 ta p e r e c o r d in g o f h e r c a ll, she ref err ed to the Defenda nt’s SUV as dark g ree n, and, during her di rec t testimony , she desc ribed the SUV as hunter g ree n. Hickson said that, on the 9- 1-1 tape
, she re peate dly expressed conc ern f

or her-6-

boy friend, T ims, but she di d not express conce rn for her niece or nephew . She explained that she did not believe that the Defe ndant would shoot two small children. Hickson de nied that she kne w the childre n wer e saf

e bec ause Spark s and Tim s were “g ang ing” the Def endant, f orcing the Def endant to def

end himself. Hickson c oncede d that, in the statement s he g ave to police , she ref err ed to the De fend an t ’s SUV as e ither dar k blue or da

rk g ree n, but she explained that she was
pa nic ke d a t th e tim e . She a lso a g re e d tha t she or ig ina lly tol d poli c e that eve ry on e we nt i nto Spa rk s’ house tog ether

when she first arrived, which wa s inacc urate . Hickson re iterate d that she did not see Burton fall afte r he w as shot, b ut she conc eded tha t, in her statement to police, she told them otherwise. H ickson estimated that she w as inside Sparks’ house for a pproxi mat elyfive minutes befor e the shooting occur red.

Hickson testified that, afte r the Def endant shot B urton, Sparks ra n to his bedroom, and she assumed that he went to r etrieve a g un. She knew that he owned a .22 caliber

rifle, but she ne ver sa w him with a pistol . Hickson conf irmed that she wa s the only one who r an out of the front door of the house af ter the shooting occur

red. Hickson said that, at the time that the shooting oc curr ed, Sparks ha d r e c e ntl y

qu it h is j ob a s th e ma na g e r o f a Wal -M art , a ndhe wa s d oin g so me wo rk a s a me c ha nic and some landsc aping

.

Da nie l T ims te st if

ied tha t H ic ks on is h is g ir lf ri e nda ndthe mothe r o f h is c hil d. Ti ms s a id that, on October

8, 2001, he went to Sparks’ house at approxim ately 2:45 p.m. W hen he a

rrived, he talked with Sparks for

a short while outside, and then the Def endant arrived. Tims remember ed that the Def endant dr ove up in a g ree n For d Ex plorer, a nd he backe d down the drivew ay . Tims said that Sparks introduce d him to the Defe ndant, and the D efe ndant said that he ha d just gotten into town,

a ndhe wa s h un g ry . T he thr e e me n th e n w e nt i ns ide , a nd Spa rk s start e d p re pa

ri ng sp a g he tti . T ims d e s c r i b e d t h e m o o d a s f r i e n d l y, a n d h e t h o u g h tt h a t , s i n c e t h e D e f e n d a n tw a s i n t h e A r m y, “eve rything wa s [alright].” Tims said that Hickson came i nto the hous e approx imately two to three min ute s late r. Ti ms e xpla ine d th a t th e De fe nd a nt the n s a id tha t he wa s g oin g to h is c ar a ndwo uld be rig ht back, a nd Sparks’ daug hter said that she wanted to g o with the Def endant, a nd the Def

endant said that was f

ine. The D efe ndant ca me bac k i n t o t h e h o u se, he se t Sparks’ daug hter down a nd

wa lke d into the kit c he n whe re he pu lle d o ut a g un a ndsh ot B urton . T ims sa id the De fe nd a nt s a id nothing be fore he shot Burton, and, prior to being shot, B urton, who had just woken up, w as stirring
sp a g he tti . T ims sa id tha t B urton didno t ha ve a g un wh e n h e wa s sh ot.

Tims testified that, after Burton was shot, Sparks ran to his bedroom, and the Def endant sa id,

“ Do n’ t e ve n try

it, mothe r f* ** ** .” Tims te sti fi e d th a t he sa w the De fe nd a nt p oin t hi s g un int o Sparks’ be droom at Sparks, a nd then Tims r an out of the back door. Tims sa id that the Def endant then c a me o u ts id e a n d f

ir e d tw o s h o ts a t T im s a s T im s w a s ru n n in g a w a y

. T im s s a id th a t h e ran down a hill to a neig hbor’s house, a nd he ca lled 9-1-1. Tims said that he w as panic ked, and he then

ra n to thr e e ot her hous e s, on e of wh ic h w a s o wn e d b y

Spa rk s’ c ou sin , w ho too k T ims ba c k u p to Sparks’ house. T here , Tims saw that the police a nd an ambulance had arrived. Tims sa id that the police took him to the Sheriff’s D epartment where he identified the Def endant in a lineup.

On cr oss-examination, Tims said that when he made the 9-1-1 call he e x presse d conce rn for-7-

Burton, whom he ca lled his “boy [] ,” and f or Hickson, but he d i d n o t m en t ion that there w ere two

sma l l ch i l d re n in the house. He explained that he was pa nicked, a nd he denie d that he did not mention the children beca use he knew they wer e not in dang er since the Def endant wa s defe nding himself. Tims remember ed that, bef ore the Def

endant a rrived, Spar

ks was talking on his cell phone
g ivi ng dir e c tio ns to s ome on e , a ndhe a ssu me d that he wa s g ivi ng dir e c tio ns to the De fe nd a nt. Ti ms

conce ded that, at the prelimi nary hearing, he t estified that the Def endant’ s SUV was either

dark blue or dar k g ree n. Tims said that Sparks owned a nine mil limeter g un, .22 caliber handg un, and a .22 caliber rifle. Tims ag ree d that he testified at the preliminary hearing that the Def endant’ s g un looked like “a .380” and that it was blac k. He a lso ag ree d that he testified that B urton was f acing awa y

from the Def endant, shutting the re frig erator, when he was shot. Tims said that, after the D efe ndant shot at Tims, Tims fell to the ground and prete nded that he had been shot, and then he jumped up and ra n to a neig hbor’s house. Tims said that he wa s unemploy ed at the time of this incident, and he de nied that he wa s dealing drug s to sustain him self. Tims e stimated that the shooting oc curr ed at 3:15 p.m., and then he listened to the 9-1-1 ta pe that indicate d that he ca lled 9-1-1 a t 3:02 p.m.

Darian Sparks testified that, in October of 2001, he wa s living with his wife, two c hildren, and Chris Burton, and, at that ti me, he was using the drug ecsta sy . Sparks said that, on Oc tober 8, 20 01 , th e De fe nd a nt c a lle d h im a ndsa id that he wa s c omi ng ba c k in to t ow n a nda sk e d if he c ou ld

come ove r to discuss something. Spar ks assumed that the De fenda nt w as intere sted in a drug deal involving ecsta sy

. Sparks said that he knew the Def endant beca

use they wer e both involved in the “club sc ene” toge ther. S parks testified that, when the Def endant a rrived, B urton was a sleep on the couch inside the house, and Spar ks’ childre n wer e also inside. He wa s outside with Hickson and Ti ms, a ndthe y

sa w the De fe nd a nt b a c k hi s green Expl or e r d ow n th e dr ive way . Sp ark s sa id tha t, wh e n th e De fe nd a nt a

rrive d, he se e me d n e rv ou s a nda nts y , b ut h e wa s a c tin g frie nd ly tow ardSpa

rk s’ children.

Sparks testified that, at some point, they went inside the house, a nd he starte d making
spag hetti f

or the children. Burton took over making the spag hetti, and the De fenda nt was play ing with the children. Sparks t estified that the Defe ndant went out to his truck with Sparks’ da ug hter,

a ndthe n h e c a me ba c k in, se t his daug hte r do wn , a ndpu lle d o ut a g un a ndsh ot B urton , s ho t Sp ark s, and then lef

t. Sparks said that, afte r he w as shot, he we nt to his bedroom to ge t a gun and def end him s el f. S parks sa id that he was a ble to g et his g un, but he could not put a bullet in the cha mber beca use the De fenda nt had shot him in his a rm, rende ring his a

rm unusable. Sparks sa id that, when he wa s attempting to loa d his g un, he hear d the Def endant fire two or three more shots from the bac k porch, a nd Spark s h i d i n h i s walk-in c loset. Sparks said that he then he ard tire s spin out of the drivewa y , so he went out to chec k on his c hildren who wer e cry ing ne ar B urton and saying, “ Don’t let my daddy die. Don’t let [Burton] die . . . .”

Sparks said that he c hecke d Burton for a pulse , and, fe eling none, he then walked out to the ba c k o f the ho us e to s e e if Hi c ks on or

Ti ms w a s sh ot. Spa

rk s sa id tha t he we nt ba c k to the c los e t, his daug hter ha nded him a phone, a nd he ca lled 9-1-1. The next t hing he reme mbere d was wa king
up wh e n th e po lic e we re the re . Sp ark s sa id tha t he ha d a dr ug pr ob le m a t the tim e of thi s in c ide nt,

a nd , w hil e he sti ll ha d a

dr ug pr ob le m a t th e tim e of the tr ia l, i t w a s n o lo ng e r a s b a d. Spa rk s sa id-8-

that, at the time of the shooting, he was car ry ing $300 in c ash, and he had more money hidden under the floor mat of

his car, w hich was in his drivew ay . Sparks said that the Def endant kne w that he ha d
money on him be cause he counted the money in f ront of the De fenda nt. Sparks admitted that he had previously

been c onvicted of attempting to sell ec stasy in 2002 and of robbe ry

.

On cr oss-examination, S parks sa id that he was se dated a t the time that he g ave his stateme nt to police, and he did not remember what he said to the m. Spar ks said that he wa s never

g iven a c opy of this stateme nt, a nd he did not rea d it in preparation for trial. Sparks a dmitted that, at the time of this incident, he was be ing sue d by Children’s Hospital, and he said that he k ep t m o n eyin the floorboar d of his car

beca use he had previously had a safe stolen from his home. Sparks denied that he hid money , drug s, and VCR s, afte r t he shoot ing but before the police a rrived. H e conc eded that he didno t r e me mbe r e ve rythi ng that he dida ft e r h e wa s sh ot. He a g re e d th a t hi s b loo d w a s o n h is
sta ir s o n his ba c k po rc h a nd in his c ar b ut d id n ot r e me mbe r w hy he we nt d ow n th e sta ir s o r t o h is

car , and he e x plained that he was blee ding ve ry badly from being shot and was ther efor e dizz y and felt fa int. Sparks s aid t hat he had two wea pons in his house, a .22 c aliber Smith & Wesson targ et pistol and a Cobra Mac 11, which is a nine milli meter ha ndg un. Sparks said that neither Burton nor Tims had a wea

pon at the time of the shooting. Sparks identified a pic ture fr om a trash c an that had the c ov e r o f a

bo x of .3 80 a uto ma tic F e de ra l a mmu nit ion , b ut h e de nie d o wn ing a g un that us e d th is type of a mmuniti on. Sparks conc eded that he had told police that he was shot bef ore B urton, but he said that he wa s mistaken and that B urton was a ctually shot first.

Sparks said that he reme mbere d the pol ice asking him wher e the VCR was, a nd he told them that it was in his living room a ttached to the te levision. He said that, at that time, he did not know that th e De fe nd a nt h a d r ob be d a Pilot statio n. Spa rk s re a d his sta te me nt t o p oli c e , in wh ic h h e tol d them that he had thr ee V CRs i n hi s h o u s e. Sparks said that he kne w both Tate Shaf fer and Christopher Pear s o n , an d they wer e both frie nds of his and had lived w ith him at one time. He explained that Pearson’s wa llet was in his house, along with some other it ems, bec ause Pea rson had
g one to jail, and Sparks wa s keeping his things until he returne d.

Sparks denied that any harsh words wer e spoken by any one before the shooting. He said that he did not reme mber if, a fter B urton awoke , Burton gr eete d the Def endant in any

way , but he was sure they did not ex chang e harsh words. Sparks s aid t hat he counted out his money in front of the Def endant be cause he “mig ht ha ve” been considering buy ing some thing. Spar ks then said that they

wer e, at that time, discussing ecsta sy pills. H e s ai d t h at the Def endant a sked him if he had a ny

ec s ta c y p il ls
, a n d th e n h e c o u n te d h is mo n e y to s e e if h e w o u ld h a v e to b o rr o w mo neyto ge t the De fe nd a nt the pil ls. Spa

rk s sai d tha t he ha d be tw e e n $ 16 00 a nd$1 70 0 h idd e n in his c ar at th e tim e of this incident. He e x plained that he ha d just cashed i n s o m e o f his stock purcha ses, and he was ho p i n g t o p a y o f

f C h i l d r e n ’ s H o s p i t a l w i t h t h e m o n e y

. S p ark s c o n c e d e d t h a t h e h a d p re vio us ly stated that he tried to hide his mone y from the De fenda nt after the Def endant shot him and that he
g ot this m oney

from doing odd jobs, and not from cashing his stock purcha ses. Sparks said that he didno t hav e tr a sh pic ku p at his ho us e , an d he did no t re me mbe r the la st t ime that he too k h is t ra sh to the dump.-9-

Terry L ee, a lieutenant with the Knox Count y Sheriff’ s Offic e, testified that he is the supervisor of

the fore nsics service s division within the sheriff ’s office

. He said that, on Octobe r 8, 2001, he responde d to a ca ll on Old Guinn Road where he took photog raphs a nd made ske tches of the crime scene

. The li eutena nt said that, at t he crime scene , he saw that someone ha d rec ently been

co o k i n g spag hetti. L ieutenant L ee a lso noted that the crime sc ene w as re latively neat, whic h indicated to him that there was not a st rug g le before the shooting. The lieutenant said that he saw,

a ndph oto g ra

ph e d, a F e de ra l .3 80 c a lib e r s he ll c a sin g , a ndhe sa id tha t th is c a sin g c ou ld h a ve c ome from someone shooting that ty pe of g un or it could have been transfe rre d by office rs g oing in a nd clea ring the ar ea. In the closet of the master bedroom, the lieutenant f ound an M-11 nine millimeter

wea pon and anothe r F eder al ca liber ca sing. H e also found a bag that contained a

.22 caliber handg un, a box that would hold ammunition, and money in the amount of $380 that wa s spattere d with blood. The office r also found seve ral other shell casing s, and he te stified that he did not attempt to determine w hether

the shells wer e fire d.

L ieutenant L ee ide ntified a photog raph tha t he took of Bur ton’s body

. He said that Burton

was we aring athletic shorts and a T-shirt and Burton’s body was ly ing f

ace -down with his left hand underne ath him, his left leg bent, and his rig ht l eg s t ra ight. He said that, from the body , he d et er m i n ed t h at Bu rt o n wa s s h o t i n t h e ba ck o f t h e h ea d

. T h e l i eu t en an tal s o n o t i ce d s o m e d ro p p i n gs of blood on the body that indicated that perha ps someone who was blee ding w alked by the body , and he saw what looked like a tooth near the kitchen. Lieutenant L ee a lso participated in the se arc h of the Def endant’ s car , a F ord Explorer, from which the police r ecove red se vera l rolls of chang e in the
cente r console a nd a g un under the driver’ s seat. The lieutenant also found a base ball cap w ith an “M” on it, which is the r eg istered tra demar k for Michig an.

On cr oss-examination, the lieutenant testified that the bag that he found in the c loset of the master be droom was r ed and blue and wa s striped. L ieutenant L ee sa id that he also found two live .22 caliber

rounds on the front porch, and, in a trash can outside the r esidenc e, the lieutena nt found spent .380 ca liber shell casings a nd .12 g aug e shotg un shells. L ieutenant L ee f ound .380 caliber shell c a s in g s a n d a n e mp ty b o x o f th is ty p e o f a mm u n it io n , b u t h e d id n o t r e c o v e r a g u n from the house that used this c aliber of shell. The lieutenant testified that, in a F ord Aspire that was pa rked in Sparks’ drivew ay , he found$1690.07 unde rneath th e fl oor mat of the pa sseng er’ s side and a “g ree n, leaf

y substance” underne ath the driver ’s side floor ma t. The lieutena nt found a wa llet that

c on ta ine d Christ op he r Pe ars on ’s dr ive r’ s lic e ns e , a nd se ve ra l oth e r c ard s r e g ist e re d in thi s n a me , in the e nte rt a inm e nt c e nte r i n the liv ing ro om. L ie ute na nt L e e fo un d a wa lle t w ith the dr ive r’ s li c e ns e of Tate Shaffe r underne ath the couc h in the living room. Lieutenant L ee ide ntified a picture that he took of the laundry

room, which had a pile of clothes in it, and he conce ded that some of the clothes might have been black. The lieutenant noted that ther e wa s blood in the laundry room, indicating that someone who w as bl eeding had been i n that room. The lieutena nt said that he also found a nd photogr aphed b l o o d i n t h e bathroom, bedroom, and living room. L ieutenant L ee f ound a re d and blue bag in the closet of t he master bedroom that c ontained a .22 c aliber se miautomatic handg un and
money . The lieutena nt noted that the money appea red to be stained with blood.

The lieutena nt testified that he wa s prese nt wh e nth e police se arc hed the De fenda nt’s vehicle.-10-

He a dmi tte d th a t th e of

fi c e rs didno t f

inda bla c k s we a tsh irt w ith a ho od , an y oth e r cl oth e s, a VC R, a VHS tape , or a r ed and blue bag in t he De fenda nt’s car . The lieutena nt testified that the Def endant’ s Ford E x plorer looke d bluish gre en or a qua in some of the pic tur es

. On re direc t examination, the lieutenant testified that the blood-stained money that he found in a

bag in the closet of the master

bedroom c onsisted of two $100 bills and nine $20 bills.

Sandra Elkins, M.D., testified that she is an Ass o ci at e P rofessor of Patholog y at the University

of Tenne ssee a nd she ser ves as the Knox County Medica l Ex aminer, a nd, afte r hea ring h e r q u a l i f i c a t i o n s , t h e t r i a l c o u r tr e c o g n i z e d h e r a s a n e x p e r ti n a n a t o m i c a l a n d f o r e n s i c p a t h o l o g y. Dr. Elkins testified that, around October 8, 2001, she per formed a n autopsy on Christopher B urton, who was se venty

inches tall, and she found that the cause of death was a g unshot w ound to the rig ht
up pe r b a c k of his ne c k. She sa id that Bu rt on wa s sh ot f ro m a dis ta nc e of

mor e tha n tw o to thr e e fe e t,

a ndhe wo uld hav e di ed at a ma ximum

of te n to fi ft e e n mi nu te s a ft e r b e ing sh ot. On c ro ssexamination, the doctor testified that the bullet tr avele d throug h Burton in a downwar d d i re ct i o n, entering at six ty -three inches a bove h is heel and e x iting at sixt y -one inc hes above his heel. On redire ct examination, the doctor cla rified that a

two-inch tra

jectory could have been c reated by the shooter shooting straig ht at Burton while Burton’s head w as slightly tilted.

Shelly Be tts, an ag ent with the Tennes s ee Bu re au of I nvestig ation (“TB I ”) a ssigne d to the firea rms identification unit at the cr i m e l aboratory in Nashville, testified, as a n expert, that she investigated the fire arm that wa s found in the Def endant’ s vehicle. She sa id that she determined that it was in normal working condition, and she fired and recover ed bull ets and ca sings f rom this gun. She compar ed the f

ired c artridg e ca sing f

ound at th e s ce n e o f t he Pilot st ation robbery with the

cartridg e ca sing tha t she rec overe d from the g un in the Def endant’ s vehicle, a nd she dete rmined that the t wo cas in g s h a d b e e n f ir e d f r o m th e s a me g u n

. O n c r o s s

- e xa mi n a ti o n , th e a g e n t s a idth a t the empty box of amm u n i t i o n t h at was found in Spar ks’ trash c an wa s never

submitt ed to her

for analy sis.

Detec tive Tom Cox
, an officer with the Knox C ounty Sheriff’ s Offic e, testified that he was assig ned to assist in the investigation of the shooting at Sparks’ house

. He said that severa l other office rs wer e ther e whe n he ar rived a t the scene , and, af

ter doing a brief assessment of the sce ne, he interviewe d Tims. He des cribed both Tims and Hickson as “ve ry upset.” He said that, when he

arrived, he sa w B urton’ s body on the g round, and he saw that a pot of spag hetti had boiled over on the stove. De tective Cox said that he had bee n told by Tims that, shortlybefor e the shooting , Burton had been ly ing on the couch in the living room, and, when the detec tive went into the living r oom he noticed that there w as a de pression and some bed d i n g o n t h e couch. H e also notice d a lig hter ly ing on the floor close to the couc h, which wa s consistent with Hickson’s statement that B urton had lit her cig are tte. Detec tive Cox said that he did not see a ny thing that would ha ve bee n consistent with a strug g le or a ltercation; there wa s no evidenc e of phy sical ac tivityor disturbanc e. The detec tive said that he intervie wed Spar ks while Sparks wa s hospitaliz ed. De t ec t i v e C ox said that he wa s p re se nt i n th e ho sp ita l w ithJoshu a Re y no lds wh e n Re y no lds vie we d a vid e o li ne up . H e sa id that Rey nolds had “a

bsolutely no hesitation” when he identified the Defenda nt as t he man who ha d shot him after the Pilot station robbery

.-11-

Th e de te c tiv e sa id tha t a s a re su lt o f a n a le rt

th e Defend a nt w a s a

rr e ste d in Kn ox Cou nty whi l e driving a g ree n For d Ex plorer. D etec tive Cox said that the amount of money found in the Def endant’ s car

was c onsistent with the amount that was taken f rom the Pilot s tation. The dete ctive

a lso sa id tha t th e ve hic le that th e De fe nd a nt w a s d ri vin g wa s th e sa me a s th e ve hic le inv olv e d in bo th crimes.

The de tective testified that he ran the serial number and “desc riptors” of the g un found in the Def endant’ s car to determine whether it had been s tolen. He said that the che ck ca me bac k neg ative, meaning that the g un had not be en reported stolen. Detec tive Cox said that the g un ’s re g istration

was c hecke d by Captain J ohnson almost imm ediately afte r the we apon wa s taken into custody . He

sa id tha t th e g un wa s p ur c ha se d in Ap ri l of 20 01 by a ma n n a me d D e L ou who th en res ide d in Sevierville.

On c ro ss- e xami nat io n, the d e te c tiv e sa id t ha t he wa s a ssi g ne d to the sh oo tin g a t Sp ark s’ house, but the Pilot st ation robbery was not his case

. He said that he, there fore
, did not look for the VCR taken from the Pilot sta tion or a black hooded swe atshirt in Sparks’ house. He also conc eded that, while t he evide nce a ppare ntly supported the state ments g iven to him by Hickson and Tims, he found it difficult to understand w hy the Def endant started shooting f or see mingly n o rea son. Detec tive Cox ag ree d that he was disturbed by the i nconsistencies betwee n Sparks’ statement that he g ave to the detec tive shortly afte r this c rime and Sparks’ trial testimony

. The de tective sa id that he did not rec over a

VCR or a VHS tape from the De fenda nt’s car , and he did not re cover any clothing othe r t han what the Defenda nt was wearing

. Detec tive Cox testified t hat he se nt the clothes that the Def

endant wa s wea

ring , including his shoes, f or testing and no blood was f ound on any

of the articles of clothing

.

Detec tive Cox testified that th e report about the re g istration of the g un found in the Def endant’ s car

was re quested on De cembe r 9, 2003, and it wa s sent bac k on Dec ember 24, 2003. He sa id that the report indicated that the person to whom the gun was reg istered was born on January 4, 1974. The de tective sa id that, to his k n o wl ed ge, n o one fr om the sheriff ’s depa rtment had attempted to contac t the reg istered owner of this gun. De tective Cox said that S parks sa id that he

was une mploy ed, and, in Spar ks’ statement, he did not mention any stocks or bonds. Sparks told the detec tive that he g ot money from doing odd jobs. The detec tive conce ded that he neve r we nt back to Sparks’ house to look for a VCR or clothing.

I n his own defe nse, the De fenda nt called Kimber ly Moore, who te stified that she met the Def endant whe n he took her

daug hter to Na shville. Moor e explained that the De fenda nt took her daug hter to school at around 10:00 p.m. on Sunday night, a nd, the following Monday , she hea rd that the Def endant ha d been arre sted for robbing a Pilot station. She said that he looked diffe rent in court than he ha d the nig ht he took her daug hter to school, and she rec alled that he was bald and had littl e, if any fac ial hair, a nd he looked in court like he had g ained a little weig ht. On cross-e x amination, Mo or e te sti fi e d th a t K no xvill e is a bo ut 1 77 mil e s f

ro m he r d a ug ht er’s sc ho ol, Te nn e sse e Sta te University

(“TSU” ), i n Nashville. Moore admitted that she did not know what time her daug hter a nd the Def endant g ot to TSU, and she did not know what time the De fenda nt returne d to Knox ville.-12-

Destiny Moore testified tha t, in Oc tober of 2001, the Def endant drove her to sc hool at TSU. She said that, the next day
, her mother called he r and told her that the Def

endant ha d been a ccuse d of shooting someone at a Pilot station a nd shooting someone in a home. She said that the D efe ndant picked he r up at a

round 10:00 p.m. on a Sunday night, and it take s three or three and one half hours to g e t to he r sc ho ol, in Na sh vil le

. Mo or e sa id that it wa s at lea st midn ig ht wh e n the y arrive d b e c a us e she re membere d that the De fe n d an t wa s n ot allowed on her floor, and no me n are allowed on he r floor af ter midnig ht. She said that she t alked to the Defenda nt for about thirtyminutes, said goodby e, and the Def

endant left. On cr oss-examination, Moore admitted that she had pr eviously said that the Defendant picked her up betwee n 9:00 p.m. and 10:00 p.m., and she conc eded that she neve r went to the police w ith this information.

The De fenda nt testified that he was born in Mic higa n, raised in Knox ville, a nd he g raduated from hig h school and started his first y ear of colleg e. The Def

en d ant s aid that he f

lunked out of

c oll e g e a ndthe n jo ine d the mil ita ry

. I n the mil ita

ry , the De fe nd a nt wa s in Op e ratio n D e se rt Sto rm , and he g ot a bronze star f or his eff orts there . The De fenda nt said that, when he returne d from the

wa r, he wo rk e d a s a

c oo k f or a y e ar o r t wo , a ndthe n h e le ft a ndob ta ine d e mpl oy me nt w ith Knoxvi lle Parks and Rec reation as an athletic c o ordinator, a nd this is where he was e mploy ed on October 8, 2001. The De fenda nt said t h at h e d i d not rob the Pilot st ation, and he did not shoot Rey nolds. He admitted that he w as a t Sparks’ house, a nd he admitted that he shot B urton. The Def endant c laimed that he shot B urton to protect himself.

The De fenda nt said that, on October 7, 2001, he we nt to Destiny Moore’ s house to pick her up and take her to school in Na shville. He said that he got to Moore ’s house a t around 10:00 p.m., and he e stimated that it took them three hours and fiftee n minutes to ge t to Nashville. The De fenda nt

sa id tha t th e y

sto pp e d fo r g a s, a nd the n he a ssi ste d M oo re wi th h e r b a g s a ndwa lke d to he r d or m w ith her. H e said that he was not allowed to go pa st the g uard, a nd he re membere d that it was around 1:00 a.m. He sa id that Moore we nt upstairs with her bag s, and then she c ame ba ck down a nd they talked for a little bit be fo re h e h ea d ed bac k to Knox ville. He estimated tha t he left Na shville at around 2:00 a .m. The Defenda nt said that, on his way back to Knoxvi lle, he did not stop at the Pilot on Northshore wher e the r obbery occur red, but he went home a nd went to bed.

Th e De fe nd a nt s a id that, o n th e mornin g of Oc tob e r 8 , 2 00 1, he a wo ke be tw e e n 1 1:3 0 a .m. and 12:30 p.m., and he r ece ived a phone call fr om Sparks say ing “I g ot the money

all toge ther” for

some mar ij u a n a th a t th e tw o h a d p r e v io u s ly s p o k e n ab o u t. T h e D e f e n d a n t a d mi tt e d th a t he supplemented his income by s ell ing ma rijuana, a nd he sold marijuana in quantities of one quarter pound or mo r e

. T h e D e f e n d a n t s a id th a t h e me t Sp ark s a n d B u r to n a t a n ig h t c lu b
, a n d h e had known them for a couple of m onths. He estimated that he had sold marijuana to Sparks and B urton on three or four

occa sions before October 8, 2001, and they

would meet at a

g as station every

time. He sa id that he would g et to the g as station approximately fiftee n minutes before they conducte d the
transac tion to ensure that ther e we re no police prese nt. Then, Sparks a nd Bur t o n woul d arrive by

car and pull up beside him. They would both ge t out and g et in his truck and that wa s where they

wo ulde xch a ng e the mon e y fo r drug s. Th e De fe nd a nt sa id that the tw o w e re a lw a y s a rm e d. He sa id that they “ra ved” a

bout their g uns and that they loved their g uns.-13-

Th e De fe nd a nt t e sti fi e d th a t O c tob e r 8 , 2 00 1, wa s th e fi rs t ti me that he ha d e ve r b e e n to Spa rk s’ ho us e . H e sa id tha t, a we e k b e fo re , h e ha d ta lke d w ith Spa rks abo ut S par

ks ’ i nte re st i n pu rc ha sin g on e po un d of

mari jua na fo r $ 10 00 . Wh e n Sp ark s c a lle d h im o n O c tob e r 8 , 2 00 1, he tol d the Def endant that he did not want to meet at a g as station be cause he had his c hildren, and one of them was a

littl e si ck. He asked the Def endant to bring the marijuana to his house, and the De fe nd a nt a g re e d. Th e De fe nd a nt s a id tha t he did no t know wh e re Spa rk s live d, a ndSpa

rk s h a d to
g ive him directions. He sa id that he orig inally passed Sparks’ driveway , so he bac ked up and ba cked down the drive way . He sa id tha t , wh en h e go t there , he saw Sparks, two other w hite g uy s, and a white female. He said that he was introduced to the m en, one of whom was Tims and the other was Tate Shaf fer . The De fenda nt said that there w ere no kids outside, and Burton was not outside.

The De fenda nt said that he had the pound of marijuana with him when he g ot to the house, bu t he didno t g e t it ou t of the c ar wi th him
, a nd he le ft it o n th e fl oo rb oa

rdof his pa sse ng e r’ s se a t. He de scribed the scene as “okay ,” but he said that it was a little suspicious becauseSparks had not told him t hat there wer e other men there with him. The Defe ndant said that, next, every one wa lked ins ide , a nd , w he n h e g ot i ns ide , h e sa w t wo c hil dr e n a ndB urton , w ho wa s a wa ke . T he n, Spa

rk s sa id that he had to go to the restroom, and the Defe ndant play ed in the living r oom with the children for

a littl e while. I t oc curr ed to the Def endant that neither one of the children w as sick, but he sa id that he wa s not nervous at that point. Fr om his vantag e point in the l iving room, the Defenda nt saw an M-11 sitting on the corner of the bed in Sparks’ bedr oom. The De fenda nt said that Sparks ca me out of the restroom and asked the Def endant if he was rea dy to ma ke the de al, to which the De fenda nt responde d aff

irmatively . The De fenda nt said he asked Sparks if Sparks ha d the $1000, and Spar ks said y es, an d h e p ointed to the counter and said that the mone y

was “ rig ht there.” The De fenda nt said that he g ave Spar

ks a sar castic look be cause the money was a ll in chang e and dollar bills, and Sparks said, “Well, it all spends the same.”

The De fenda nt said that, as he was g oing out to his car to g et the marijuana, Sparks’ daug hter tugg ed at his pa nt le g and asked if she could ha ve a pig g y -bac k ride outside. He ag ree d and took the
g irl to the car with him and retrie ved the marijuana
, which was in a brown pa per ba g . The De fenda nt

sa id tha t he didno t ha ve a ny we apo ns wi th h im tha t day . O nc e he g ot b a c k ins ide , h e pu lle d Sp ark s’ daug hte r o ff

of his sh ou lde rs a ndse t th e mar ij uana o n th e c ou nte r, a ndSpa rk s to ok the dr ug s. Sparks told the Def

endant to g et his money , and, as the Def endant wa s t ak i n g the money , Sparks

sa id, “ Th is d oe sn ’t

fe e l li ke a

po un d o f w e e d. ” Th e De fe nd a nt tol d Sp ark s th a t he ha d w e ig he d it himself, but Sparks did not believe him. The De fenda nt said that Tate a nd Tims started y elling at him , a ndthe n B urton tol d h im tha t th e we e d d id n ot e ve n lo ok g oo d a ny wa y . The De fe nd a nt s a id that they then g ot into a heated a

rg ument about the quality and the qua ntityof the marijuana.

The De fenda nt said that he saw B u rt on pull up his shi rt and re ach f or a g un, and the Def endant tac kled him, and g ot the g un out of his hands. Once he g rabbe d the gun, B urton said, “Shoot him, y ou all; shoot his a**.” The De fenda nt said that he expected to be shot at any second,

a nd , a s h e a ndB urtonwe re sta nd ing ba c k u p, he sh ot the g un a nd the n ba c ke d int o th e liv ing ro om. The De fenda nt saw Tate g rabbing for a g un, and he sa w Sparks r u n n i n g into his room. The Def endant sa id that he told Spar ks, “Don’ t try

it, mother f*****,” mea ning do not try to gr ab a g un,-14-

but Spar ks went for his g un any way , so the Def endant shot him. The Def endant said that he we nt to the back to se e whe re the other men w ere , and h e saw Tims and Tate running awa y from the house, and Tate still had a g un in his hand. He fired his g un twice into the air to run them off. The Def endant sa id that he then saw the childre n scre aming in the living room, a nd he g ot into his car and quickly

drove a way . The De fenda nt said that he did not think to call the police because he wa s

nervous a bout what had ha

ppened at Sparks’ house. The Def endant went to a park, wher e the police

came and ar

rested him. The Defe ndant said that the g un that he wa s found with belong ed to B urton,

a nd he wa s ne ve r a t the Pilo t statio n. He sa id tha t he sh ot B urton a ndSpa rk s b e c a us e he wa s a fr a id for his life.

On c ro ss- e xami na tio n, the De fe nd a nt a dmi tte d that he wa s a t Sp ark s’ ho us e fo r the pu rp os e of conduc ting a

drug deal. He ag ree d that he shot and killed B urton, h e s h o t S p arks, and, on the outside porch, he shot at least two times. The g un that he shot was a .380 handg un, which he took with him and placed unde rneath the front driver’ s side of his truck. The Def endant a g ree d that he

wa s w e ari ng a bla c k ha t that ha d a n “ M” on it f or Mic hig a n. Th e De fe nd a nt c on c e de d th a t th e sh e ll casing found at the Pilot station matched the g un found in h i s p o s s ession. He a lso conce ded that Wy coff and Rey nolds identified him as the man involved in the Pilot st ation robbery

.

Th e De fe nd a nt a g re e d th a t he wa s e mpl oy e d w or kin g wi th c hildren at th e tim e of the se crimes, a nd he said that no one knew, at the time, that he was a drug deale r. He said that he had bee n a drug deale r for

a little over one y ear , and he c oncede d that he was, in essence , living a double life. The De fenda nt could not expl ain why , since he wre stled Burton in the ki tchen, the kitche n stool was not knocked over. He said that they did not wrestle, but he tac kled B urton and knoc ked him straig ht ba c kw ard . H e sa id tha t he is a n a thl e te , a ndhe c a n “f or m tac kle e xce lle ntl y ,” wh ic h wa s why he did not knock over

the stool.

The De fenda nt then conce ded that he w as convic ted in New York i n 1994 for f elony wea pons possession, and h e s ai d that he lied to the Ne w York c ourt, telling it that his name wa s Marc us Br own. He sa id that, in 1996, he was c onvicted of a nother fe lony wea pons possession charg e. The Def endant a g ain denied tha t he had a wea pon with him on October 8, 2001, and he re iterate d that he took B urton’s g un awa y from him.

The De fenda nt admitted that, when he was arre sted, the pol ice took a cell phone from his car. He sa id that, at around 2:48 p.m. on Oc tober 8, 2001, be fore he we nt to Sparks’ house he r ece ived
a messag e fr om someone that he ha d listed as “White Boy ,” which w as Sparks. He said that he ne ver chec ked his me ssag es. The Def endant also admitted that, at 2:28 p.m., he rec eived a messag e fr om “Dr ay ,” and he said that he knows se vera l “Dray s,” none of whom are cra ck dea lers.

Over the Def endant’ s objection, the trial court allowed the State to offer some rebuttal pr oof. Re y no lds , th e vic tim

a t th e Pilo t st a tio n, wa s r e c a lle d, a ndhe loo ke d a t th e pic tur e of B urton a ndsa id that th e re wa s n o w a y

that B urton wa s th e ma n wh o ro bb e d him a t the Pilo t statio n. He sa id tha t hi s hair a nd his facia l hair we re diff ere nt from the robbe r’s ha ir and fa cial hair. Reynolds also said that he re c og nize d th e De fe nd a nt’ s v oic e a s th e sa me a s th e vo ic e of the ma n w ho ro bb e d him. On c ro ss--15-

examination, R ey nolds admitted that he had he ard a ll the testimonyin this case, and he hear d the Def endant’ s defe nse that B urton committed this crime.

Ba sed upon this ev i dence , the jury convicted the Def

endant in ca se number 73803 of one count of a ttempted first deg ree murder, one count of e specia lly ag g r a v ate d

kid napping , and one c ount of espe cially

ag g ravated robbe ry

for his ac tions at the Pil ot station. I n case number 73804, the jury

c on vic te d h im o f the fi rs t de g re e mur de r of B urton a nd the a tte mpt e d fi rs t de g re e mur de r o f S pa rk s. The De fenda nt was automatica lly g iven a se ntence of life imprisonment f or the first deg ree murder conviction.

B. Sentencing Hearing

At the sentenc ing he aring
, afte r arg uments of counse l, Rey nolds testified about the extent of his injury from being shot in the head by the Def endant. He sa id that he has ha d brain surg ery and he has r esidual problems, including heada ches, being deaf
, and problems with his jaw. He sa id that he su ff e rs so me me mory

imp a ir me nt a nd ha s g a ine d w e ig ht a s a re su lt o f the me dic a tio ns that he is

now re quired to take . He sa id that he and his fa milyhave e motionallysuffe red f rom this event.

Debbie Mic kens, B urton’s mother, testified that, as a re sult of her son’s mu rder she has suffe red f rom depre ssion. She also said that Burton’s murder ha s emotionally aff ecte d his eig hteeny ear -old brother . She asked the trial court to impose the maximum sentenc e.

B a se d u po n th is e vid e nc e , the arg ume nts of c ou ns e l, a nd the De fe nd a nt’ s p re se nte nc e re po rt , the trial court found that the De fenda nt was a Rang e I , standard of fende r, and that the r ang e of
pu nis hme nt f

or e a c h o f the Cla ss A fe lon ie s wa s fi ft e e n to tw e nty -f ive y e ars

. Th e tr ia l c ou rt , in c a se

nu mbe r 7 38 03 , me rg e d th e De fe nd a nt’ s e sp e c ia lly a g g ra va te d r ob be ry

c on vic t i o n w ith his e sp e c ia lly

a g g r a v a t e d k i d n ap p i n g c o n v i c t i o n , a n d t h e n i t s e n t e n c e dt h e D e f e n d a n tt o t w o c o n s e c u t i v e t w e n t yfive y ear terms for his a ttempted first deg ree murder a nd espec ially aggravated kidna

pping convictions. I n case number 73804, the t rial court sentence d the Def endant to twenty -five y ear s for the a tte mpt e d f

ir st d e g re e mur de r o f S pa rk s, a ndit o rd e re d th a t thi s se nte nc e ru n c on se c uti ve ly to the Def endant’ s life sentenc e for the first deg ree preme ditated murder of Burton. The trial court then order ed that the sentenc es in c ase number 73803 run consec utively to the sentenc es in ca se number 73804, for a n eff

ective se ntence of life plus seve nty -five y ear s.

II. Ana lys is

On app e a l, the De fe nd a nt c on te nd s th a t: ( 1) the e vid e nc e is ins uf fi c ie nt t o s us ta in a ny

of his convictions; (2) the tria l court er red w hen it ruled on seve ral differe nt evidentiary issues; and (3) the trial court e rre d when it sentenc ed him.

A. Suf fi ciency of the Evidence

Th e De fe nd a nt f

ir st c on te nd s th a t th e evide nc e is i ns uf fi c ie nt t o s us ta in a ny

of his-16-

convictions. When the s ufficie ncy of the e vidence is challeng ed, the standa rd of r eview is whe ther,

c on sid e ri ng the e vid e nc e in the lig ht mos t fa vo ra ble to the pr os e c uti on , a ny ratio na l trie r o f f a c t c ou ld have f ound the essential e lements of the c rime bey ond a re asonable doubt. Tenn. R. App. P. 13(e); J ackson v. V irg inia, 443 U.S. 307, 319 (1979); Stat e v

. L ea ch
, 1 4 8 S.W .3d 42, 53 (Tenn. 2004) ; State v. Re id, 91 S.W. 3d24 7, 27 6 ( Te nn . 2 00 2) . T he Sta te is e nti tle d to the str on g e st l e g iti ma te vie w o f the e vid e nc e a nda ll r e a so na ble inf e re nc e s whi c h may be dr a wn fr om tha t e vid e nc e . St a te

v. Da vid so n, 12 1 S.W. 3d60 0, 61 4 ( Te nn . 2 00 3) . Q ue sti on s r e g ard ing the c re dib ili ty of wi tne sse s, the weig ht and value of t he evidence, and any fac tual issues raised by the evidenc e ar e re solved by the trier of

fac t. I d. When a def

endant c halleng es the suff iciency of the e vidence , this Court does
not rewe igh or

ree valuate the evidenc e. State v. Vaug hn, 2 9 S

. W

. 3 d 3 3
, 39 (Tenn. Crim. App. 1998). Be ca u se a ve rdict of g uilt aga inst a defe ndant re moves the pre sumption of innocence and raises a presumption of g uilt, the convicted criminal defenda nt bear s the burden of showing that the evidenc e wa s leg ally

insufficient to sustain a g uilty verdic t. See State v. Carruthe rs, 35 S.W .3d 516, 557-58 (Te nn. 2000).

1. Ca se Num be r 73 80 3 – Espe c ial ly A gg r av at e d Ro bbe r y, Espe c ial ly A gg r av at e d Kidnapp ing, an d Attem pted F irst De gree Murder

Reg arding his convictions in case number 73803, the Defenda nt contends that the evidence is insufficient to sustain his convictions for espe cially ag g ravated robb er y , espec ially ag g ravated kidnapping , and the attempte d fi rs t deg ree murder of Rey nolds. The Def

endant a sserts that no rational juror

could have found him g uiltybey ond a re as o n ab l e doubt because he w as convic ted primarily based upon the conflicting ey ewitness testimony of Rey nolds and Wy coff . He doe s not arg ue that the State did not prov e t h e el em en t s of these c rimes, but, rathe r, he a sserts that the evidenc e did not establish his iden tityas the pe rpetrator of these crimes a nd that there was unexplained evidence that proved the Def endant’ s theory

that Burton committed these crimes. H e

asserts that Rey nolds testimony is particular ly

“suspec t” bec ause he was shot in the h ead a nd suffe red me mory

loss. The State counter s that the witnesses’ testimonydid not conflict, and ther e

was a dditional evidence that led to the Def endant’ s conviction.

As previously

stated, the De fenda nt contends that the State pre sented insuffic ient proof of his ide nti ty

a s th e pe rp e tr a tor . The Sta te mus t pr ov e be y on d a re a so na ble do ub t th a t th e a c c us e d is the per son who committed the offe nse. See State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App. 1995). I dentity of t he accuse d may be accomplished by either direct or circ umstantial evidence , or both. S t at e v. Thompson, 519 S .W.2d 789, 793 (Tenn. 1975); State v. Ke ith Salter, No. W2004- 01255-CCA-R3-CD, 2005 WL 1353293, at *3 (Te nn. Crim. App.
, at J ac k son, J une 7, 2005), no Tenn. R. App. P. 11 application filed . The de termination of i dentity is a question of f act f or the jury afte r a consideration of all competent evidence

. See S tate v. Strickland, 885 S.W .2d 85, 87 (Tenn. Cr im. Ap p. 19 93 ). Th e c re dib le te sti mon y of on e ide nti fi c a tio n w itn e ss i s su ff ic ie nt t o s up po rt

a conviction if the witness viewed the acc used under such circ umstances as would permit a positive identification to be made . State v. Radley , 29 S.W .3d 532, 536 (Tenn. Crim. App. 1999) (citing Strickland, 885 S.W .2d at 87-88). I nconsistency
, inacc urac y , and omissions in the description of a defe ndant by

a witness who is ot herw ise able to positively identify the def endant a re que stions for-17-

t h e j u ryt o co n s i d er

i n d et er m i n i n g t h e w ei gh tt o b e gi v en t h e t es t i m o n y

. I d

. Fu rt h er , al t h o u gh inconsistencies or ina ccur acie s may make a witness less cre dible, the j u ry ’s v er dict will not be dis tur be d u nle ss the ina c c ur a c ie s o r i nc on sis te nc ie s a re so imp ro ba

ble or unsat isfa c tory

so a s to

cre ate a rea sonable doubt of the de fenda nt’s g uilt. I d.

I n the ca se under

submissi on, we c onclude that the e vidence was suff icient to prove the De fe nd a nt’ s id e nti ty

a s the pe rp e tr a tor of

the se c ri me s. Ag a in, on app e a l w e vie w the e vid e nc e in the light most favor able to the State. In that vein, the evide nce pr oved that, on Oc tober 8, 2001, Rey nolds saw the De fenda nt enter the Pilot sation, and, af ter purc hasing some items, the Def endant pointed a g un at Rey nolds a nd demande d money . The De fenda nt took the money , much of whic h was rolled c hang e, and the security tape f rom the Pilot, and, Wy coff saw the Def endant exit the store walking behind R ey nolds. The Defenda nt forc ed R ey nolds acr oss the s tree t by holding him at g un po int , a ndthe n h e sh ot h im i n th e ba c k of the he a d. Re y no lds sa id h e c le arl y sa w the De fe nd a nt i n the well-lit Pilot station, and he a lso recog nized the Defe ndant’s voice
, an d he identified the De fe nd a nt’ s c ar a s a

g re e n F or d Expl or e r. Wy c of f sa id that he ma de e y e c on ta c t wi th the De fe nd a nt, who spoke to him, and he w as sure that the per petra tor of t his robbery

was the D efe ndant. The De fe n d an twa s ar re s t ed wh i l e i n a gr ee n Fo rd E x p l o re r, an d h e wa s i n p o s s es s i o n o f r o l l ed ch an ge and the g un that was prove d to be the same as the g un that shot Rey nolds. W hile the Def endant offe red some e x planation, the jury did not acce pt that expl an at ion. The positive identification testimonyof the witnesses, Rey nolds and W y coff
, along with the other e vidence ty ing the Def endant
to the c ri me , s uf

fi c ie ntl y su pp orts the De fe nd a nt’ s c on vic tio ns

.

2. Ca se Num be r 73 80 4 – F ir st De gr e e P r e m e dit at e d M ur de r and Atte m pted F irst De gree P rem editated Murder

I n c a se nu mbe r 73 80 4, the De fe nd a nt c on te nd s that the e vid e nc e is ins uf fi c ie nt to su sta in h is convictions for pr emeditated f irst deg ree murder a nd attempted first de g ree murder be cause there was no proof

of pre meditation. The State counte rs that the ey ewitnesses to these crimes provided

a mpl e te sti mon y

to p ro ve pr e me dit a tio n, a ndthe jury a c c re dit e d th is t e sti mon y , w hic h is wi thi n it s province . Acc ording ly , the State asserts, the evidenc e is sufficie nt.

First deg ree murder inc ludes a “ preme ditated and intentional kil li n g o f an o th er.” Tenn. Code An n. § 39 -1 3- 20 2( a )( 1) (2 00 3)

. Cr imi na l a tte mpt re qu ir e s that on e a c t “ wi th the kin d o f c ulp abil ity otherwi s e r e q u ir e d f

o r th e o f f e n s e

. . . [a n d ] w ith in te n t to c a u s e a r e s u lt th a t is a n element of the offe nse, and be lieves the c onduct will cause the result without further conduct on the pe rson’s part.” Te nn . Co de An n. § 3 9- 12 -1 01 (a )( 2) (2 00 3) . Pr e me dit a tio n is de fi ne d a s f oll ow s:

As u s ed i n subdivision (a)(1) “ preme ditation” is an ac t done af ter the e x erc ise of ref l ection and judg ment. “Preme ditation” means that the intent to kill must have be e n f or me d p ri or

to the a c t it se lf . It is no t ne c e ssa ry that the pu rp os e to kill pr e -e xist in the mind of t h e ac cu s ed for any definite pe riod of time. The me ntal state of the

acc used at the time the a ccuse d alleg edly decide d to kill m ust be car efully considere d in order to de termine whe ther the a ccuse d was suff iciently fre e fr om e x citement and-18-

passion as to be c apable of pre meditation.

Tenn. Code Ann. § 39- 13-202(d)

.

Premedit at i o n may

be esta blished by

any evidenc e fr om which a r ational trier of fac t may infer t h at t h e k i lling wa s done “a fter the exercise of ref lection and judg ment” as r equire d by Te nn e sse e Cod e An no ta te d s e c tio n 3 9- 13 -2 02 (d ). Da vid so n, 12 1 S. W.3 d a t 61 5. Pr e me dit a tio n is the proc ess of thinking about a pr oposed killing before eng ag ing in the homicida l conduct. State v. Br own, 836 S.W.2d 530, 540-41 (Tenn. 1992). The exis tence of premeditation is a question of fact fo r the jury

to d e te rm ine a nd ma y

be inf e rr e d f ro m th e c ir c ums ta nc e s su rr ou nd ing the of fe ns e . St a te v. Rosa, 9 9 6 S. W. 2 d 8 3 3
, 8 3 7 ( T e n n

. Crim

. A p p

. 1 9 9 9 ) ( c it in g B r o w n , 8 3 6 S. W. 2 d a t 539). The Tenne ssee Supreme Court previously identified t he following circumstance s as supporting a finding of pre meditation: the u s e o f a d ea d l ywea pon upon an unarmed victim; the particular crue lty of a killing; the def

endant’ s threa t s or dec lara tions of intent to kil l; the defe ndant’s proc ureme nt of a

wea pon; any prepa rations to conce al the crime undertaken bef ore the crime is c o mmit

te d ; de struction

or sec retion of e vidence of the killing; and a defe ndant’s calmness afte r a killing. See State v. B land, 958 S.W .2d 651, 660 (Tenn. 1997) . Howeve r, these f actor s ar e n o t exhaustive. Davidson, 121 S.W .3d at 615; se e State v. Nesbit, 978 S.W .2d 872, 898 (Tenn. 1998) (holding that establishment of a motive for

the killing is a fac tor from which the jury may infer preme ditation); State v. B ush, 94 2 S. W.2 d 4 89 , 501 -0 2 (T e nn . 199 7) (h old ing that pre me dit a tio n als o may be inf e rr e d f ro m th e us e of mult i p l e we apons in succe ssion); see also State v. Sims, 45 S.W .3d 1, 8 (Tenn. 2001) (finding evidenc e of r epeated blows is releva nt to e stablish pr emeditation, althoug h this e vidence alone is not sufficie nt to establish premeditation).

We conclude that the evidenc e, when e x amined in the lig ht most favorable to the State, was sufficie nt to support the j ury ’s findi ng that the Defenda nt acte d with preme ditation when he shot and kil le d B urton . T he e vid e nc e pr ov e d th a t the De fe nd a nt ca me int o Sp ark s’ ho me a ndthe n le ft a g a in

car ry ing Spar

ks’ daug hter. The Def

endant we nt to the car , retrie ved a g un, came back into the home, set Sparks’ daug hter down, a nd then he shot B urton. The ey ewitnesses to this shoot ing te stified that the Def endant wa s calm prior to the shooting, and B urton was una rmed whe n the Def

endant shot him. After the Def

endant left Sparks’ house, he did not call poli ce, and he drove to a pa rk whe re he sat in his car a nd waited f or police, indicating that h e wa s ca l m after the murde r. This evidenc e sufficie ntly supports the jury ’s finding that the Def endant acte d with pr emeditation. Althoug h the Def endant c ontends that the j u ry ’s verdic t is not rational because there wer e numer ous inconsistencies be tween a nd within the acc ounts of the various witnes s es , t h i s C o urt does not re

weig h or re evalua te the evide nce on a ppeal. As noted above, the weig ht and value to be g iven to the evidenc e, and the cre dibilit y to be g iven to witnesses, is left to the jury . Davidson

, 121 S.W .3d 614.

Simi larly , we co n cl u d e t h at the evide nce is suff icient to sustain the jury ’s finding that the Def endant a cted with pre meditation when he shot Sparks. Tw o of the factors that the Tennesse e Supreme Court has a

rticulated a s co n s i d erations in t his reg ard a re: the de fenda nt’s threa ts or decla rations of int ent t o kill and the defe ndant’s calmness afte r a killing. The Defe ndant admitted, and all the witnesse s ag ree d, that prior to s h o o t i n g Sparks the De fenda nt said, “Don’t e ven think-19-

about it mother f*****.” He then followed Sparks into Spar ks’ bedroom and shot him. Further, a s we pr eviously

stated, there wer e indications that the Def endant was calm afte r this shooti ng . I n light of thi s e vid e nc e , th e e vid e nc e is su ff ic ie nt to su sta in the De fe nd a nt’ s c on vic tio n f or a tte mpt e d f

ir st deg ree murder. H e is, there fore , not entitled to relief on this issue.

B. Evid entiary Issues

Th e 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 wh e n it ru le d o n s e ve ra l e vid e nti ary iss ue s. He state s th a t the tr ia l cou rt e rr e d w he n it : ( 1) a llo we d th e Sta te to i mpe a c h th e De fe nd a nt w ith his two prior fe lony

wea pons possession c onvictions; (2) did not allow the Def endant to cr oss-examine Spa rk s a bo ut the de ta ils su rr ou nd ing his a g g ra va te d rob be ry c on vic tio n; (3 ) did no t allo w Sp ark s’ probation off

icer t o t es t i fy ; (4) allowe d Rey nolds to testifyas a r ebuttal witness; (5) de nied the Def endant’ s req u es t fo r ear ly J encks ma terial; and ( 6) ruled that the Def endant’ s counsel had imp ro pe rl y

c ro ss- e xami ne d D e te c tiv e L e e . T he Sta te c ou nte rs that the tr ia l c ou rt did no t abu se its discretion in any

of evide ntiary

ruling s, and, eve n if it had, any abuse w as harmless.

1. P r ior F e lon y C onv ic ti ons

Th e De fe nd a nt a sse rt s th a t th e tr ia l co urt er re d w he n it

a llo we d th e Sta te to i mpe a c h h im

us ing his tw o p ri or

c on vic tio ns fo r f

e lon y po sse ssi on of a weap on . “Whe n a rrivi ng a t a determination to admit or ex clude even that evidenc e which is considere d rele vant t rial courts are
g e ne ra lly a c c or de d a

wi de de g re e of

la titud e a ndwi ll o nly

be ov e rtur ne d o n a

pp e a l w he re the re is a showing of abuse of discre tion.” Otis v. Cambridge Mut. Fire Ins. Co., 850 S

. W

. 2 d 4 3 9, 442 (Tenn. 1992)

.

Pursuant to Rule 609, Tennesse e Rules of Evidenc e, the c redibility of the de fenda nt may

be

a tta c ke d b y

pr e se nti ng e vid e nc e of

pr ior c on vic tio ns if

c e rt a in c on dit ion s a

re me t. F ir st, the Sta te must give r easona

ble pre trial notice of the impeaching convictio ns. Tenn. R. Evid. 609(a) (3). Second, the c onvictions must be punishable by death or imprisonment over one y ear or must involve

a c ri me of dis ho ne sty

or fa lse state me nt. Te nn . R. Ev id. 60 9( a )( 2) . T hir d, le ss tha n te n y e ars mus t have e la p s e d b e tw e e n th e d e f

e n d a n t’ s r e le a s e f

r o m c o n f in e me n t o n th e p r io r

c o n v ic ti o n a n d the

commence ment of the instant prosec ution. Tenn. R. Evid. 6 09(b). F inally , the impeac hing conviction’s probative value on c redi b i l i ty must outweigh its unfa ir prejudice . Tenn. R. Evid. 609(a) (3). I n deter mining whe ther the p ro b ative value of a prior conviction on the issue of

c re dib ili ty

ou tw e ig hs its un fa ir

pr e jud ic ia l e ff

e c t on the su bs ta nti ve iss ue s, a tr ia l c ou rt

sh ou ld consider the simil arity

betwee n the crime in que stion and the underlying impea ching conviction, as well as the rele vance of t he im peac hing c onviction with respec t to credibility . State v. Waller, 118 S.W. 3d36 8, 37 1 ( Te nn . 2 00 3) . The fa c t tha t a prio r co nv ic tio n invo lve s the sa me or sim ila r c ri me for whic h the defe ndant is be ing tried does not automatica lly require its ex clusion. State v. Ba ker, 956 S.W .2d 8, 15 (Tenn. Crim. App. 1997) ; State v. Mill er, 737 S.W.2d 556, 560 ( Tenn. Crim. App. 19 87 ). Ho we ve r, if

“ the prior

c on vic tio n a ndins ta nt o ff e ns e are sim ila

r i n n a tur e the po ssi ble prejudicia l e ffe ct incre ases g reatly and should be more car efully scrutinized.” L ong v. State
, 6 07 S.W .2d 482, 486 (Tenn. Crim. App. 1980). A t rial court should first analy ze whether the impeac hing-20-

conviction is releva nt to the issue of cre dibil i t y

. Waller, 118 S.W .3d at 371. Rule 609 of the Tenne ssee Rules of Evide nce sug g ests that the commission of a ny felony is “g ener ally

probative” of a c riminal defe ndant’s cr edibility . I d. Howeve r, t he Tennessee Supreme Court has r ejec ted a pe r se rule that permits impeachment by any and all fe lony

convictions. State v. Mix on, 983 S.W .2d 66 1, 67 4 ( Te nn . 1 99 9) . A pr ior fe lon y c on vic tio n still mus t be an a ly zed to de te rm ine wh e the r i t is sufficie ntly

probative o f cr edibility

to outweig h any

unfair pr ejudicial ef

fec t it may

have on the substantive issues of the ca se. Waller, 118 S.W.3d at 371. To determine how pr obati ve a f elony

c on vic tio n is to the iss ue of c re dib ili ty , the tr ia l c ou rt mus t a sse ss wh e the r the fel on yoff e ns e involves dishonesty

or fa lse statement. I d.

A trial court’s ruling under Rule 609 will not be reve rsed absent an abus e o f d i s cr eti on. J ohnson v. State, 596 S.W .2d 97, 104 (Tenn. Crim. App. 1979). A trial court a buses its discretion in this re g ardon ly

wh e n it “ ‘a pp lie [s] a n inc or

re c t leg a l sta nd ard , or re a c he [s] a de c isi on wh ic h is
aga i n s t l og ic or re asoning that cause [s] an injustice to the party complaining .’” State v. Shirley , 6 S.W .3d 243, 247 (Tenn. 1999) (quoting State v. Shuck, 953 S.W .2d 662, 669 (Tenn. 1997) ).

a. 1994 F elony Weapons Con viction

Th e De fe nd a nt c on te nd s tha t the tr ia l cou rt abu se d its disc re tio n whe n it a llo we d the Sta te to cross-e x am i n e h im about his felony wea pons conviction in New Y ork fr om 1994. The Def endan t ’s counsel filed a

motion in l imine reg arding this conviction. The Def endant’ s counsel tol d th e c ou rt

that he wa s c on c e rn e d a bo ut the Sta te re fe rring to the c ha rg e a s b e ing a “fe lon in possession of a ha ndg un,” and he was conce rned that the State would introduce evidenc e that prove d that t h e gu n t h at the Def endant possesse d was late r linked to a diff ere nt homicide that was committed in Tennessee . The De fenda nt was tried f or that homicide, and the jury was hung , and he

was ne ver c onvicted of tha t crime. The State ag ree d that it would not mention t he other homicide, and then the f

ollowing oc curr ed:

[S tate]: Your Honor, we can r efe r to [ the 1994 conviction] as a we apons convic tion. A fe lony wea pons – a we apons convic tion. [Defenda nt’s Counsel] : That would be fine . That’s fine

. [S tate]: Not a felon in possession of a w eapon. [Defenda nt’s Counsel] : That’s why I was be ing mor e spec ific.

. . . .
[S t a t e ]: B u tw e w i l l r e f

e r t o i ta s a f e l o n y w e ap o n s c h ar g e

. O k a y ? N o ta f e l o n in possession of a we apon. We just need to establish that it’s a fe lony conviction. [The Court] : Right. Yes. I understand. [S tate]: And that he g ave a false na me. . . . [Defenda nt’s Counsel] : That’s fine.

Further, prior

to the Def

endant testify ing, the Def

endant’ s counsel stated, “ We both would ag ree that-21-

the New York conviction the State can use for impeachme nt.” During the t ri al
, t h e D efendant’s counsel ag ain told the court that the parties had ag ree d that this c onviction c ould b e u s ed for impeachme nt.

Te nn e sse e Rul e of

Ev ide nc e 10 3 p ro vid e s in pe rt ine nt p art :

(a) Effe ct of Er

roneous Ruling .--Er

ror may not be pre dicated upon a ruling which admits or excludes evidenc e unless a substantial right of the party is aff ecte d, and (1) Objection.-- I n case the ruling is one admitt ing e vidence , a timely objection or motion
to s tr ike app e ars of

recor d, statin g the sp e c if ic g ro un d o f o bje c tio n if

the sp e c if

ic
g round wa s not appare nt from the conte x t; . . . .

To pr e se rv e a n e vid e nti ary iss ue fo r a

pp e llate re vie w, a n a g g ri e ve d p art y mus t ma ke a n o bje c tio n to the offe r of the e vidence , thus affor ding the trial court t h e o p p ortunity to pass on the objection. Tenn. R. Evid 103(a) ; Tenn. R. App. P. 36(a); State v. Smith, 24 S.W .3d 274, 280 (Tenn. 2000)

.

I n the case under

submissi on, the Def

endant’ s counsel filed a

motion in l imine to ex clude a number of c onvictions. The rec ord reve als that he wa s particular ly conce rned w ith the fac t that the
g un that was the subjec t of this 1994 weapons possession conviction was la ter linked to a homicide in Tennesse e, a c rime for

which the De fenda nt was tried but not convicted. He ag ree d at the hea ring on the motion in limine to allow t he S tate to question the Defenda nt about t his conviction, and the State ag ree d to limi t its questioni ng . During trial, the Defenda nt’s counsel ag ain told the trial court that the parties had ag ree d that the State could impeac h the Def endant with this conviction. Under these c ircumstance s, where the Def endant f ailed to object to the e vidence about which he now

c omp la ins , w e c on c lud e that he wa ive d his ab ili ty to ar g ue on app e a l tha t th e tr ia l c ou rt abu se d it s discretion whe n it allowed the State to question him about this conviction. Theref ore, the Def

endant is not entitl ed to re lief on this issue.

b. 1 99 6 F e lon y W e apo ns C onv ic ti on

The De fenda nt next contends that the tria l court abuse d its discr et i o n wh en it allowed the State to question the Defe ndant about a 1996 felony wea pons conviction. He a sserts that he did not have rea sonable written notice of the impeaching conviction beca use the State did not file the notice

un t i l t h e m o r n i n g o f t r i a l a n d t h a t t h e p r o b a t i v e v a l u e o f t h i s e v i d e n c e w a s f ar o u t w e i g h e d byits
pr e jud ic ia l e ff

e c t. T he De fe nd a nt n ote s th a t, d ur ing c ro ss- e xami na tio n, the Sta te fi rs t a sk e d h im i f he had a g un with him on the day that he shot Burton, and the De fenda nt denied ag ain that he ha d

a g un with him. The State then asked if he had previously been convicted of felonywe apons possession in 1 9 9 4
, a n d th e D e f e n d a n t a d mi tt e dth a t h e h a d

. T h e St a te n e xt a s k e d if h e h a d been

c on vic te d o f f

e lon y we apo ns po sse ssi on in 19 96
, a nd the De fe nd a nt a dmi tte d th a t he ha d. Th e Sta te next s aid, “B ut on October 8th, 2001 while y ou’re making a drug deal o u t i n t h e co u n t ry with a bunch of w hite men, hum
, y ou didn’t fee l it nece ssary to take a g un with y ou . . . .” He asserts that his previous convictions wer e, therefor e, used inappropria tely beca use t hey wer e not used to attac k his credibility

but were used to show his proclivity to car ry a gun. The S tate counters t hat t his line-22-

of questio n in g w e nt directly to attack the D efe ndant’s truthfulness a bout whether

he wa s armed w hen he we nt to Sparks’ house. F urther, the State asserts that, if any err or exists , it is harmless.

At trial, befor e the Def

endant testified, the Defenda nt’s counsel requested that the trial court

a dd re ss wh e the r the Sta te c ou ld i mpe a c h th e De fe nd a nt w ith his 19 96 c on vic tio n, a sse rt ing , in pa rt , that it was filed late. T h e t ri al court noted that the Def endant did not see k a continuanc e. The Def endant’ s counsel conte nded that he did not think t hat he would be g rante d a continuanc e, and he fu rthe r c on te nd e d th a t th is c onvi ction “ do ub le d” the oth e r c on vic tio n a ndthat it didno t g o to truth fu lne ss. Th e Sta te tol d the tr ia l c ou rt that, w hil e it h a d n ot f

ile d n oti c e of

thi s c on vic tio n u nti l the mornin g of

tr ia l, the De fe ndant had notic e of thi s c on vic tio n f

ro m do c ume nts pr ov ide d h im during discovery

in his NCI C report. The trial court then sta ted:

I think that the – we have excluded a number of diffe rent thing s, and ce rtainly we . . . all have a g ree d that the ca se in New York County , New Y ork, does come in. Y ou

a l l h a d s o m e k n o w l e d g e o f t h i s p r i o r

c o n v i c t i o n , e v e n i f

i tw a s n o ta

f e l o n y. Certainly , every

body had knowledg e of it – at lea st y ou all d i d ; I didn’t – prior . . . to this t ime, and it was filed late. I am go i n g t o all ow the State to g et into that particula r convic tion.

At the motion for new trial, the trial court stated that this c onviction was “pr obative of the various issues in this case whe re [the Def endant] claims that he . . . didn’t do anything a nd it must have be en

so me bo dy

e lse in the fi rs t c ir c ums ta nc e .” Th e re fo re , it c on c lud e d th a t th e pr ob a tiv e va lue of thi s

e vid e nc e ou tw e ig he d it s p re jud ic ia l e ff

e c t.

The fe lony

wea pons possession ch a

rg e is clea rly one that is punishable by

imprisonment over
one y ear , and less than ten y ear s has elapsed between the Def endant’ s rele ase from confine ment on this conviction and the commence ment of t his prosec ution. There fore
, at i ssue, are whe ther he was g ive n r e a so na

ble pretri al notic e a ndwh e the r the pr ob a tiv e va lue of thi s c on vic tio n o utw e ig hs its prejudicia l effe ct.

As previously

stated
, t h e S tate must g ive the ac cused r easona ble written notice of the impeaching conviction bef ore trial. This me ans that the State must notify the def endant in wr iting that it intends to use a prior convic tion to im peac h the def endant at tri al

. S t at e v

. Fa rmer, 841 S.W .2d 837, 839 (Tenn. Crim. App. 1992) . This Court has pre v i o u s l y held that the State did not comply with the written notice r equire ment when it sent a dis covery response to defe nse counse l that outlined the defe ndant’s criminal rec ord but f ailed to inf

orm the def

endant of its int ention to use the prior convic tion for i mpeac hment. State v. Ba rnar d, 899 S.W .2d 617, 622 (Tenn. Crim. App. 1994)

. Howeve r, the B arna

rd Court found that the defe ndant was not unduly prejudice d, and the e rror was harmless.

I n the ca se under

submissi on, we c onclude that the D efe ndant re cei v ed adequate notice be c a us e the Sta te inf

or me d him

of its int e nti on to i mpe a c h h im w ith his pr ior c on vic tio ns pr ior

to trial, eve n though it was the morning of t he trial. The De fenda nt could have r equeste d a continuanc e-23-

based upon this new inf

ormation, but he did not. Furthe r, we co n cl u d e t h at eve n if the State’s notif ic a ti o n w a s n o t r e a s o n ab le d u e to it s late n e s s , a n y e rr o r is h ar ml e s s

. T h e St a te to ldth e tria l court, a nd the Def

endant a g ree d, that he re ceive d his NCI C report as part of discovery

. There fore
, he wa s o n n oti c e of th is prev io us c on vic tio n, e ve n if he wa s u na wa

re of the Sta te ’s int e nti on to impeach him with the convic tion. I n acc ordanc e with B arnard, the De fenda nt has failed to pr ove prejudice . We theref

ore turn to de cide whe ther the f ourth and final re quirement of Rule 609 w as

me t.

Wit h reg ard to the f ourth and fina l require ment, that t h e p ro b at i v e value of the c onviction

ou tw e ig hs its pr e

jud ic ia l e ffect, the Te nn e sse e Sup re me Cou rt re je c te d a pe r s e ru le that pe rm its impeachme nt with any

felony conviction. See Mix on, 983 S.W .2d at 674. Further, it has conc luded that the offe nses of possession of a controll ed s u b s t an ce o r sale of a contr olled substance do not comport with the pl ain m eaning of “dishonesty ,” stating , “The statutory elements of the se off

enses do not require that the controlled substanc e be sold or possessed in a manner that involves dece it or fraud.” Waller, 118 S.W.3d at 372. There fore , it concluded that the de fenda nt’s prior drug convictions used in Waller we re, “at be st,” only slightly probative of

the def endant’ s cre dibilit y . I d. at 373. Having so decide d, the Waller Court stated:

Once the trial court finds that the impeaching conviction has some rele vance to the issue of the de fenda nt’s cre dibilit y , it should next “asse ss the simil arity betwee n the crim e o n t ri al and the crime unde rly ing the impeaching conviction.” When an imp e a c hin g c on vic tio n is su bs ta nti a lly sim ila r to the c ha

rg e d of fe ns e , a da ng e r e xists that jurors will improperly consider the impeaching conviction as evidence of the propensity of the defe ndant to c ommit the crime. Acc ording ly
, the unfa ir prejudicia l eff ect of an impeac hing c onviction on the substantive issues g reatly incre ases if the conviction is substantiallysimil ar to the c harg ed off ense. H o we ver, e vidence of a
pr ior c on vic tion th at is su bs ta nti a lly sim ila r t o th e c ha

rg e d o ff e ns e is n ot p e r s e inadmissible for impeac hment purposes. Unde r these c ircumstan ce s , a trial c ourt sh ou ld c are fu lly

ba la nc e the imp e a c hin g c on vic tio n’ s r e le va nc e wi th r e g ardto

cre dibilit y

ag ainst its unfair pre

judicial eff

ect on substantive issues.

I d. (citations omitted).

I n the ca se under

submissi on, using the Waller dec ision as a g uide, we c onclude that felony

wea pons possession is not a n o ff en s e t h at re quires that the we apon be posse ssed in a manne r that inv olv e s d e c e it o r f

ra ud . T he re fo re, this p ri or we apo ns po sse ssi on c on vic tio n is , “ a t be st, ” on ly slightly probative of

the Def endant’ s cre dibilit y

.

Be cause we ha ve conc luded that there is some probati v e v al ue we must turn to decide whether this probative value i s outweig hed by the prejudicial eff ect, and we must look at whether felony wea pons possession is subst antially simil ar to fir st deg ree murder and attempted first deg ree murder. When a n impeaching conviction is substantially simil ar to the char g ed offe ns e, a d an g er

e xists that jur or s will imp ro pe rl y c on sid e r the imp e a c hin g c on vic tio n as ev ide nc e of the pr op e ns ity-24-

of the de fenda nt to commit the crime. Mix on, 983 S.W .2d at 674. At first look, a fe lony wea pons possession char g e does not see m substantially simil ar to attempted first deg ree murder or first deg ree

mur de r. Ho we ve r, e ve n if su bs ta nti a lly

sim ila r, that do e s n ot r e nd e r the of fe ns e pe r s e ina dmi ssi ble fo r i mpe a c hme nt purp os es if, a ft e r a c are fu l ba la nc e , th e imp e a c hin g c on vic tio n’ s r e le va nc e wi th regard t o cr edibi lityoutweig hs its unfair pre judicial eff

ect on substantive issues. Ga lmore, 994 S.W .2d 120, 122 (Tenn. 1999) ; Mix on, 983 S.W .2d at 674.

I n our deter mination of whether the probative value outweig hs the prejudicia l effe ct, we f ind h e lp f u l th is Co u r t’ s d e c is io n in St a te v

. Ja c k ie F

. Cu rr y , N o

. E 2 0 0 0

- 0 2 4 7 5

- CC A

- R3

- CD
, 2 0 0 1 WL 872789 (Tenn. Crim. App., a t Knox ville, Aug . 2, 2001), perm. app. de nied (Tenn . 2001). I n that

c a se , th e de fe nd a nt w a s trie d a nd c on vic te d of thr e e c ou nts of a g g ra va te d ra pe

. I d. a t *1

. Th e vic tim testified that the Def

endant pulled out a bag of coca ine, and, whe n the victim refuse d to snort it, he poured the coca ine into her mouth. I d. The de fenda nt testified t h at the victim consented to ha ve

se xua l r e la tio ns wi th h im, a ndhe didno t f or c e he r t o ta

ke the c oc a ine . I d. at *3 . T he tr ia l c ou rt , over t h e d ef

endant’s objection, allowed the State to impea ch the de fenda nt with his previous convictions for the sale of c ocaine . I d. at *5. On appe al, this Court held:

Her e, the pr obative value of the sale of coc aine c onvictions on the issue of the [d] efe ndant’s cr edibilitywas o v erw helming, g iven the victim’s contention that the Def endant pour ed coc aine down he r mouth. Further, the c onviction refle cted the Def endant’ s inabilityto abide by t h e l aw s o f this State. Moreover , beca use the convictions wer e for crimes substantially differ ent than ag g ravated ra pe, we find that
any resulting prejudice was minimal.

I d.

We fi n d o u r h o lding in Curry persua sive to our ana ly sis in the case unde r submission. At issue was whe ther the D efe ndant had a g un with him the day of t his crime. The witnesses said that the Def endant we nt to his car , retrie ved his g un, and then shot B urton and Sparks. The Def endant testified that he took B urton’s g un and shot Burton and shot Sparks with Burton’ s g un. There fore
, the De fe nd a nt’ s p re vio us c on vic tio ns fo r f e lon y we apo ns po sse ssi on on the iss ue of his c re dib ili ty is overwhe lming. Ac cording ly we c onclude that the pr obative value o f t h i s evidenc e outweig hed
any prejudicia l effe ct.

F urthe r, e ve n if

the re we re e rr or , w e mu st the n d e c ide wh e the r the e rr or in this c a se aff irmatively

or more pr obably

than not aff

ecte d t h e judgment to the Def endant’ s prejudice . See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b); Galmore
, 994 S.W .2d at 122. The D efe ndant is not entitled to relief if

he wa s not prejudiced by the er ror. St ate v. Tay lor, 993 S.W .2d 33, 35 (Tenn. 1999). The D efe ndant’s theory was that both e y ewitnesses to the Pilot station r obbery wer e mistaken when they

identified him as the per

petra tor in that criminal episode. The Def endant a sserts that he shot and killed Burton and Spar k s wi t h Bu rt on’s g un while def ending himself. The jury reje cted these a rg uments, believing the ey ewitnesses’ identification of the D efe ndant as the Pilot station robber and conc luding that the othe r evide nce linking the Def endant to this c rime, including his c ar-25-

an dth e e v id e n c e f

o u n d in h is c ar , p r o v e d h e c o mm it te d th e Pi lo t s tati o n r o b b e r y a n d shooting bey ond a re asonable doubt. I n the face of this overw helming and m ostlyuncontrove rted e vidence
, an d b ec au se the 1994 fe lony wea pons possession was prope rly admitted, we c onclude that the Def endant has failed to de monstrate that he was prejudice d by the trial court’s ruling , even if such ruling
, allowing the 1996 felony wea pon conviction t o be admitt ed for impeachme nt purposes, wa s

err oneous. We hold, theref ore, tha t even if the trial court erre d in ruling that the Def endant’ s prior 1996 felony wea

pons possession c onviction w as admissible f or impeachme nt purposes, such e rror was ha rmless.

2. Sparks ’ Ar rest for Aggravate d Robb ery

The De fenda nt next contends that the trial court abused i ts discretion when it refuse d to allow him to cross-examine Sparks about Sparks’ arr est for the ag g ravated robbery of a Te x aco g as station. The De fenda nt expl ains that Sparks used a g un in this robbery and wa s driving a

blue For d Br onco, wh ic h is sim ila

r t o th e De fe nd a nt’ s c ar. Th e De fe nd a nt a sse rt s th a t th e tr ia l c ou rt int e rf e re d w ith his ri g ht t o p re se nt a

de fe ns e be c aus e his the ory wa s th a t B urton , w ho loo ks sim ila r t o th e De fe nd a nt, committed the Pilot station robbery . Further, t he De fenda nt arg ues that the fa ct that Sparks, who lived with Burton, c ommitt ed a similar r obbery in a similar way

and in a similar ca

r wa s important to his theory

of def ense. The ref

ore, he asserts that he should have been pe rmitted to cross-e x amine Spa rk s abo ut the se fa c ts. Th e Sta te fi rs t a sse rt s th a t th e De fe nd a nt w a ive d th is i ssu e fo r f a ilu re to cite any authority
, and then asserts tha t, e ven if not w aived, the trial court did not abuse its discretion in this reg ard.

Prior to trial, the State moved to prohibit the De fe n d ant’s counsel from cr oss-examining Sparks about the f

acts a nd circ umst an ce s surrounding his arre st. The State conc eded that the Def endant c ould ask Sparks about the c onviction as an a ttack on Sparks’ cre dibilit y , but it requested that the Defenda nt be prohibit ed from questioning Sparks about t he details of t he convic tion. During the trial, the De fenda nt offer ed a pr offe r of e vidence , calling Offic er Frank Wol fe t o t est ify . The State objected, c ontending that any test i m o n yoffe red by

Offic er Wolfe wa s irrele vant. The tria l
court a llowed the prof

fer , and Of

fice Wolfe testified that on J u l y 2 7
, 2002, he participated in the robbery inves t i gation of a Te x aco F avorite Ma rket, a nd the two suspects we re driving a 1988 “bluish” F ord B ronco. The office r said that Sparks wa s ch ar ged wi t h ag g ravated robbe ry for that crime. The trial cour t ru l ed that this evidenc e wa s irrele vant, finding that Sparks is a white male
, this robbery

occur red te n months after the incidents for w hich the De fenda nt was cha rg ed, and ther e was no proof

that the Def

endant dr ove a blue Br onco. Ac cording ly , th e trial c ourt ruled that a ny pr ob a ti v e v a l u e o f t h i s e v i d e n c e w a s o u t w e i g h e d b y t h e p r e j u d i c i a l e f

f e c t , a n d
, o n t h a t b a sis , it ref used to allow the jury

to hear this evidence

. The trial court also found that the evidenc e that the Def endant’ s counsel wa s attempting to introduce was prohibited by Tenne ssee Rules of Evide nce 608 and 609.

I nitially , we note that the Def endant ha s risked wa iver of this issue by failing to refe renc e or cite any authority to support his contention i n his brief to this Court. Under Rule 10(b) of the Rules of the Cou rt

of Cr imi na l A pp e a ls, “ I ssu e s whi ch are not su pp orte d b y

arg ume nt, c itatio n to-26-

authorities, or a

ppropriate ref

ere nces to the r ecor d will be trea ted as wa i v ed in this court.” Acco rd i n g ly , while the De fenda nt has risked wa iver, we will nonetheless proc eed to a ddress the Def endant’ s claim on its merits.

As previously

stated, Rule 609 of the Tenne ssee Rules of Evidence allows the cre dibilit y of

a witn ess to be a tta c ke d b y pr e se nti ng e vid e nc e of

pr ior c on vic tio ns if

c e rt a in c on dit ion s a

re me t. Te nn . R. Ev id. 60 9( a ). A t ri a l c ou rt ’s ru li ng unde r R ule 60 9 w ill no t be re ve rs e d a bs e nt a n a

bu se of discre tion. J ohnson v. State, 596 S.W .2d 97, 104 (Tenn. Crim. App. 1979). A trial court abuses it s d is c r e ti o n in th is r e g ar d o n ly w h e n it “ ‘ ap p li e [s ] a n in c o rr e c t l e g a l s ta n d ar d
, or reac h e [s ] a decision which is a g ainst logic or rea soning that cause [s] an injusti ce to the p ar t yco m p l ai ning.’ ” Shi rl e y , 6 S.W. 3da t 24 7 ( qu oti ng Sta te v. Shu c k, 95 3 S.W. 2d 66 2, 66 9 (T e nn . 1 99 7) ). Pur su a nt t o Rule 609, evidence o f a wi t n es s’s prior c onviction must be “‘limited to the fac t of a former conviction and of

what crime, with the object only of af fec ting the cre dibilit y

of the witness . . . .’” State v. Tay lor, 993 S.W .2d 33, 34 (Tenn. 1999) (citing State v. Morgan, 541 S.W .2d 385, 389 (T e nn . 1 97 6) ). “ Th us , ‘ e vid e nc e ’ o f a pr ior c on vic tio n ad mis sib le un de r Rule 60 9( a ) i s li mit e d to the fact of a former

conviction and the c rime that wa s committed.” I d. Acc ording ly , we c onclude thatt h e f a c t s a n d c i r c u m s t a n c e s s u rr o u n d i n g S p ark s ’ r o b b e r y c o n v i c t i o n w e r e n o ta d m i s s i ble
pu rsu ant to Ru le 60 9, a ndwe turn to de c ide wh e the r the tr ia l c ou rt abu se d it s d isc re tio n w he n it determined that this evidence was not re levant and tha t any probative value i t had wa s outweig hed by its prejudice.

I n T e nn e sse e , the de te rm inatio n of w he the r p ro ff e re d e vid e nc e is r e le va nt i n a c c or da nc e wi th Tenne ssee Rule of E vidence 4 0 2 i s l eft to t he sound discre tion of the trial judg e, as is the determ i n at i on of whe ther the pr obative value of evide nce is substantially outweig hed by

the possibili ty

of prejudice pursuant to T ennesse e Rule of Evidence 403. State v. Kenne dy , 7 S.W .3d 58, 68 (Tenn. Crim. App. 1999) (citing State v. For bes, 918 S

. W

. 2d 431, 449 (Tenn. Crim. App. 19 95 ) ; S t a t e v

. B u r l i s o n , 8 6 8 S

. W

. 2 d 7 1 3
, 7 2 0

- 2 1 ( T e n n

. C r i m

. A p p

. 1 9 9 3 ) )

. I n m a k i n g the se de c isi on s, the tr ia l c ou rt

mus t c on side r the q ue sti on s o f f a c t th a t th e jury

wi ll h a ve to c on sid e r i n de te rm ini ng the a c c us e d’ s g uil t a s we ll as oth e r ev ide nc e that ha s b e e n in tr od uc e d d ur ing the c ou rs e of the trial. State v. Wil liamson, 919 S.W .2d 69, 78 (Tenn. Crim. App. 1995). We will onlydisturb an evide ntiary

ruling on appea l w hen it a ppear s that the trial court arbitra rily exercised its discre tion. State v. Ba

ker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989).

I nitial questions of admissibi lity of evide nce a re g overne d by

Tenne ssee Rules of Evide nce 401 and 403. The se rules r equire that the trial court must first det er m i n e wh et h er the proff ere d

e vid e nc e is re le va nt. Pur su a nt to Rul e 40 1, e vid e nc e is d e e me d r e le va nt i f i t ha s “ ‘a ny te nd e nc y to make the e x istence of

any fac t that is of conseque nce to t h e d etermination of the ac tion more probable or less proba

ble than it would be without the evidence.’ ” See Forbes, 918 S.W .2d at 449 (quoting Tenn. R. Evid. 401). I n other wor ds, “evide nce is re levant if it helps the trier of fa ct re solve an issue of f

act.” Neil P. Cohen, et al., Tenne ssee L aw of Evidence § 4.01[4] , at 4-8 (4th ed. 2000). After the trial court finds that the proff ere d evidenc e is rele vant, it then weig hs the probative va lue of that e vid e nc e a g a ins t th e ri sk that th e e vid e nc e wi ll u nf a ir ly pr e jud ic e the tr ia l. S ta te v. Jame s, 81 S.W. 3d75 1, 75 7 ( Te nn . 2 00 2) . I f the c ou rt fi nd s th a t th e pr ob a tiv e va lue is s ub sta nti a lly-27-

outweig hed by

its prejudicial ef

fec t, the evidenc e may

be exclu ded. Te nn. R. Evid. 403.

“ ‘[E ]xclu din g re le va nt e vid e nc e un de r [Te nn . R. Evid . 403 ] is a n e xtra or din ary re me dy that sh ou ld be used spa

ring ly and per sons seeking to exclude otherwise admissible and rele vant evidenc e have

a sig nif ic a nt b ur de n o f p e rs ua sio n. ’” Jame s, 81 S.W.3da t 75 7- 58 (q uo tin g Whit e v. Va nd e rb ilt Univ., 21 S.W .3d 215, 227 (Tenn. Ct. App. 1999) ( citations omitt ed))

.

Th e Te nn e sse e Sup re me Court has he ld tha t Ru le 40 4( b) do e s n ot b ar e vid e nc e of c ri me s, wrong s, or ac ts by

a per son other than the defe ndant. State v. Stevens, 78 S.W .3d 817, 837 (Tenn. 2002) (stating that 404(b) doe s not apply when a third party d ef

ense is at issue) ; State v. DuBose
, 953 S.W

. 2d 649, 653 (Tenn. 1997) . Moreove r, the Court has c oncluded that the a dmissibi lityof evidenc e that implicates a p er s o n other than the defe ndant for the crime is g overne d solely by the Rules of Evidence , not by a stricter standard. State v. P o wers, 101 S.W .3d 383, 394-95 (Te nn. 20 03 ). We v ie w this to m e a n th a t, a s f ar as re le va nc e is c on c e rn e d, e vid e nc e that ha s a te nd e nc y to

make the fact of ano ther

pe rp e tr a tor

mor e pr ob able tha n n ot w ou ld b e a dmi ssi ble . Se e Te nn . R. Evid. 401. Obviously
, the extent of its inconsist ency with the defe ndant’s g uilt would bear on the probative va lue of such e vidence
, which would be important when a trial court we ighs the probative value a g ainst the dang er of prejudice or confusion in or der to de termine a dmissibi lityunder Rule 403 of the Te nnessee Rules of Evidence

.

The r e f o r e , w e mu s t d e termine whe ther the tria l court abuse d its discretion when it determined that the evidenc e that Sparks c ommitt ed a robbery was inadmissible bec ause it wa s not releva nt. The De fe nd a nt s ou g ht t o qu e sti on Spa rk s abo ut the fa c ts s ur

ro un din g Spa

rk s’ ro bb e ry

c on vic tio n to e lic it the testimony

that Sparks robbe d a g as station using a g un and drove a blue For d Br onco. He wa nted
to the re by a tte mpt to s ho w tha t B urton , w ho loo ke d sim ila r to the De fe nd a nt a nd liv e d wi th S pa rk s, could have used the same For d Bro n co to commit the Pi lot station robbery . Essentially , the Def endant wa nted t h ro ug h this testim ony to cre ate r easona

ble doubt that he committed the Pilot

s t a t i o n r o b b e r y

. W e , h o w e v e r , c a n n o t c o n c l u d e t h a t t h e t r i a l c o u r t ab u s e d i t s d i s c r e t i o n w h e n it determined that evidenc e that Sparks committed a robber y in a For d Br onco did not have a tendenc y to make the f

act that B urton committed the Pilot station robbery more proba

ble than not. Had the Def endant sought t o prove tha t Sparks committed the Pilot station robbery this would be a closer call, but, as the facts are, the trial court did not err by finding that Sparks’ robbe ry , which occ urre d some ten months after

Burton’s death, wa s not releva nt to whether B urton comm i t t ed the Pilot station robbery , so as t o exculpate t he Defenda nt. We conclude that the trial court did not err whe n it c o n c lu d e d th a t th e e v id e n c e w a s n o t r e le v a n t. F u r th e r , e v e n if r e le v a n t, th e tria l c ourt did not abuse its discr etion when it de termined that any probative value that this e vidence h ad wa s far outweig hed by

its prejudicial ef

fec t. The De fenda nt is not entit led to relief on this iss ue.

3. Testim ony of

Sparks ’ P robation Of

fi cer

The De fenda nt ne x t a sserts that the trial court abused its discretion when it ref used to allow him to call Sparks’ probation office r, Debbie Martin, who would have testified that Sparks l ied on his probation application. The S tate aga in asserts that this issue is waived a nd, even if not waived, is w ith ou t me ri t.-28-

I n a prof fer of evide nce at trial, the Def endant’ s counsel called Debbie Martin, an e mploy ee of the boa rd of Proba tion a nd Parole, and she testified that she interviewe d Sparks when he applied for pr obation. Martin said that Sparks was involved in a robbery and wa s seeking probation, and,
as part of the application, he was instructed to list all char g es of his criminal hist ory . Martin testified that Sparks fa iled to disclose felony drug char g es that wer e pending ag ainst him. She said that he had bee n arr ested on these char g es si x day s befor e her interview w ith him. On cross-examination, Martin testified that Sparks wa s g iven t he form to fill out befor e he w as ar rested, a nd he said that he omi tte d th e dr

ug c ha rg e s b e c a us e the qu e sti on na ir e a sk e d f or his pa st h ist ory . Sh e sa id tha t he did not deny the cha rg es whe n she conf

ronted him about them. Sparks was denied pr obation. The trial

c ou rt ru le d th a t th is i nf

or ma tio n w a s n ot r e le va nt.

I nitially , we note tha t the Def endant ha s ris k ed waiver by failing to refe renc e or c ite any authority to support his contention in his brief to this C ourt. Under Rule 10(b) of the Rules of the Court of Criminal Appe als, “I ssues which are not supported by arg ument, citation to authorities, or
app ro p ri at e re fe renc es to the re cord w ill be treate d as waived in this court.” Eve n though the De fe nd a nt h a s r isk e d w a ive r, we wi ll n on e the le ss p ro c e e d to add re ss the De fe nd a nt’ s cla ims on the ir merits.

Pursuant to Rule 608 of the Tenne ssee Rules of Evidence
, the cre dibilit y of a witness may be attacke d by

specific instances of

conduct. Rule 608 states tha t these spec ific instance s of conduc t

“ ma y no t be pr ov e d b y

e xtri ns ic e vid e nc e .” I n th is c a se , th e e vid e nc e that the De fe nd a nt sou g ht t o

a dmi t w a s cle arl y e xtri ns ic e vid e nc e abo ut a spe c if ic ins ta nc e of

c on du c t me a nt t o a tta c k th e Spa rk s’

cre dibilit y . Be cause this evidence falls square ly under the evid en ce that Rule 608 makes inadmissi b le, we c onclude that the trial court did not abuse its discre tion when it refuse d to allow
t h e D e f e n d a n tt o c a l l M ar t i n t o t e s t i f y.

4. Re yno lds a s a Re but ta l Wi tn e ss

Th e De fe nd a nt n e xt as se rt s th a t th e tr ia l c ou rt e rr e d w he n it

a llo we d th e S tate to c a ll Rey nolds as a re buttal witness. The Defenda nt asserts that Rey nolds was not sequestered pur suant to Tennesse e Rule of Evide nce 615, a nd, there fore
, he should not have been allowed to testify . The State co u n t er s t h at t he De fenda nt’s counsel did not object to Rey nolds attending all of the trial except for the te stimonyof Wy coff . There fore , the State asserts, he ca nnot now contend that the trial

c ou rt abu se d it s d isc re tio n b y a llo wi ng Re y no lds to be re c a lle d. F urthe r, the Sta te c on te nd s th a t Ru le 615 does not requir e exclusion of the victi m, Rey nolds, and there fore he prope rly testified on rebuttal.

T en n es s ee R u l e o f E v i d en ce 6 1 5 s t at es t h e f o l l o wi n g:

Exc lu si on of witn e sse s.

-- At the re qu e st o f a

pa rt y the c ou rt sh a ll o rd e r w itn e sse s, inc lud ing re bu tta l witn e sse s, e xclu de d at tri a l or oth e r ad jud ic a tory he ari ng

. . . . Th is rule doe s not authorize exclusi on of ( 1 ) a p ar t y who is a natura l person, or ( 2) a person de signated by

counsel for

a party that is not a natura l pe rson, or (3) a per son-29-

whose pre sence is shown by a party to be essential to the pr esenta tion of the party ’s

cause

.

Th e Te nn e sse e Sup re me Cou rt a dd re sse d w he the r the tr ia l c ou rt e rr e d w he n it

a llo we d a

vic tim to te sti fy a t a se nte nc ing he ari ng e ve n th ou g h s he ha d r e ma in ed in th e co urtr oo m a ft e r the de fe ns e invoked the rule of seque stration. The Court stated:

[W]e n ote that Ru le 61 5 d oe s n ot m a nd a te ex clu si on of all p e rs on s a ndpe rm its counsel for

a party that is not a natura l pe rson to de signate a person to remain in the

c ou rt ro om. Th e 19 97 Ad vis ory Com mis sio n Co mme nts to R ule 61 5 s pe c if ic a lly explain that thi s provision pe rmits the prosec uting attorney for the State of Te nnessee to d esi gnate a

c ri me vic tim

a s th e pe rs on to r e ma in i n th e c ou rt ro om d e sp ite invocation of the r

ule of seque stration.

Sta te v. El kin s, 83 S.W. 3d70 6, 71 3 ( Te nn . 2 00 2) . T he Cou rt we nt on to sa y

that th e Sta te c ou ld desig nate the victim as a person to rema in in the courtroom, imply ing that she could ag ain testify at both the trial and the se ntencing hearing. I d.

I n the ca se under submissi on, the State did not have the opportunity to desig nate Reynolds
as a pe rson to rema in in the courtroom beca use t he Defenda nt’s counsel a g ree d to allow Rey nolds to remain in the c ourtroom. Therefor e, we conclude that the Def endant c annot now complain that Rey nolds bein g called a s a re buttal witnesses violated the De fenda nt’s rig ht to have witnesses sequester ed. F urther, on r ebuttal, Rey nolds ex amin ed a picture of Burton and stated that he was

certain that Burton did not commit the robbery
, and he stated t hat he had hea rd the De fenda nt’s voice while the De fenda nt was testify ing a nd rec og nized it as belonging to the man who robbed him. The victim’s testimony that Burton was not the m an who committed these crimes was only made r eleva nt when the D efe ndant pre sented his theory that he took B urton’s g un and that it must have, the ref ore, been B urton who robbe d the Pilot s tation. Accor dingly , we c onclud e t h at t h e trial court did not abuse its discre tion when it allowed the State to call Rey nolds as a re buttal witness. Furthe r, eve n if we we re to concl ud e oth e rw ise , a ny e rr or wa s h arm le ss. Se e Te nn . R. Cr im. P. 5 2( a ); Te nn . R. App. P. 36(b).

5. “Early” Jencks Mate rial

The Def endant asserts tha t the trial court abused its discr etion when it denied the De fenda nt’s motion in l imine that reque sted that the De fenda nt be g iven “e arly ” Jencks materia l. Furthe r, the De fe nd a nt c on te nd s th a t th e tr ia l c ou rt sh ou ld ha ve ins truc te d the jury abo ut wh e n the Sta te ha s to produce J encks ma terial. The Def endant conce des that Tenne ssee Rule of Criminal Proc edure 26.2

ma nd a te s th a t th e Sta te do e s n ot h a ve to p ro du c e a wi tne ss’ s st a te me nt u nti l a ft e r he or sh e te sti fi e s. He then asks t his Court “not t o chang e rule 26.2, but to provide trial courts with langua g e which ma y g ive su bs ta nc e to the lof

ty bu t emp ty wo rd s enc ou ra g ing e arl y Jenc ks .” We co nc lud e that th is r ule comports with both State and Fe dera l la w, and we, ther efor e, hold that the De fenda nt is not entit led
to r e lie f o n th is i ssu e . F urthe r, we c on c lud e that the tr ia l cou rt did no t abu se its dis c re tio n whe n it-30-

ref used to provide a n instruction t o t h e j u ry ab out when the State wa s require d to provide Jencks materia l. The trial court c hose, as wa s within it s province, to pr ovide the De fenda nt’s counsel bre aks to review the J encks ma terial. Ac cording ly , the Def endant is not entitled to relief on this iss ue.

6. Cross-Exam ination of L ieutenant Lee

The De fenda nt next asserts that the trial court e rre d when it ruled t h at t h e De fenda nt’s

counse l i m proper ly

cross-e x amined Lieutenant L ee. T he De fenda nt sought to cr oss-examine L ee about w h y h e h a d n o t in v e s ti g a te d th e r e g is tr a ti o n n u mb e r o n th e g u n th a t w a s found in the Def endant’ s possession. The offic er a dmitted that he did not know whether the re g istration number h a d b e e n i n v e s t i g a t e d

. T h e t r i a l c o u r tp e r m i t t e d t h i s q u e s t i o n i n g , b u t , o u t o f t h e p r e s e n c e o f t h e j u r y, informed the D efe ndant’s counse l that he should g o no farther in this line of questioning, a nd the State told the Defe ndant’s counse l it would call someone to testify who had that information.

The De fenda nt ag ain has risked waiver byfailing to refe renc e or c ite any authority to support his contention in his brief t o t h i s C ourt. Under Rule 10(b) of the Rules of the Court of Criminal Ap pe a ls, “ I ssu e s w hich a re no t su pp orte d b y arg ume nt, c itatio n to a uth or iti e s, or app ro pr ia te ref ere nces to the r ecor d will be trea ted as wa ived in this court.” Ac co rd i n gly , the Def endant ha s waived his c laim for re lief by failing to provide any

citations to any

authority . Furt h er, he has provided no e vidence that he wa s prejudice d. He e licited the testimony that he soug ht from the

o f f i c e r , a n d
, w h i l e h e w a s a d m o n i s h e d b y t h e t r i a l c o u r t , i tw a s o u t s i d e t h e p r e s e n c e o f t h e j u r y. Further, a witness later te stified that the gun’s re g istration number wa s run, and the w itness testified abo u t th e n a me o f th e r e g is te r e d o w n e r

. U n d e r th e s e c ir c u ms ta n c e s , w e c a n n o t c o n c lu d e th a t the Def endant met his burde n of showing that the trial court abused its discretion or that he showe d he was, in any

way , prejudice d.

C. Se nt e nc ing

Th e De fe nd a nt n e xt as se rt s th a t th e tr ia l c ou rt e rr e d wh e n se nte nc ing him . F ir st, he a sse rt s that the trial court improperly order ed that his se ntence s run consec utively based upon the finding that he wa s a dang erous of fende r and had an extensive c riminal history

. Second, he a sserts that the
tr ia l c ou rt imp ro pe rl y

app lie d e nh a nc e me nt f

a c tor s in violatio n of B lake ly v. Was hin g ton , 542 U. S. 296 (2004). The State counter s that the trial court pr operly imposed consec utive sentenc es and tha t Blakely does not apply

to Tennesse e’s se ntencing scheme acc ording to State v. Gomez, 163 S.W .3d 632 (Tenn. 2005)

.

Whe n th e tr ia l c ou rt

se nte nc e d th e De fe nd a nt, it f ou nd , in pe rt ine nt p art :

No w, a s to 40 -3 5- 11 5, I

thi nk that the c ri te ri a inv olv e d the fo llo wi ng thi ng s. That the [D]efendant is an of fende r whose r ecor d of cri m i n al ac t ivityis ex tensive. T h a td o e s n o t n e c e s s ar i l y m e a n c r i m i n a l c o n v i c t i o n s , b u tc e r t a i n c r i m i n a l a c t i v i t y. Whether or not the [D]efenda nt is a d anger ous offe nder w hose beha vior indicates li t t l e o r n o r e g ar d f

o r h u m a n l i f

e a n d n o h e s i t a t i o n

. A n d w h e t h e r o r n o t th e se-31-

se nte nc e s in vo lve da ng e r t o th e c omm un ity or the ne e d to pr ote c t th e c omm un ity from dang er. . . .

Th e Cou rt

fi nd s th a t un de r al l cir c ums ta nc e s, th[o se are ] the e nh a nc e [me nt] fa c tor s th a t ha ve be e n s e t o ut a nddis c us se d, that th e re are no mit ig a tin g fa c tor s in thi s situa tio n. An d that in fa c t [the De fe nd a nt] is ind e e d a da ng e ro us of fe nd e r w ho se criminal ac tivityis significa nt. His past history is significa nt. He had no he sitation in these eve nts. He had no reg ard for the risk to human life. T hat society is obligate d to protect themselve s.

When a def

endant c halleng es the leng th or manner of ser vice of a sentenc e, it is the duty of
t his Court to conduct a de novo r eview of the re cord w ith a presumption that “the de terminations made by the court from which the appea l is taken are corr ect.” Tenn. Code Ann. § 4 0 -3 5 -4 0 1(d) (2003). This pre sumption i s “‘c onditioned upon the aff irmative showing in the rec ord that the trial

c ou rt c on sid e re d th e se nte nc ing pr inc ipl e s a nda ll re le va nt fa c ts a nd c ir c ums ta nc e s. ’” Sta te v. Ros s, 49 S.W. 3d 83 3, 84 7 (T e nn . 200 1) (q uo tin g Sta te v. Pe ttu s, 98 6 S. W.2 d 5 40 , 5 43 (T e nn . 1 99 9) ; State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991) ). The pr esumption does n o t ap p l y to the leg al conclusions re ache d by

the trial court in se ntencing a defe ndant or to the determinations made by the trial court whic h are predic ated upo n u n controve rted fa cts. State v. Dea n, 76 S.W .3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler , 900 S.W .2d 305, 311 (Tenn. Crim. App. 1994) ; State v. Smit h, 891 S.W .2d 922, 929 (Tenn. Crim. App. 199 4 ). I n conducting a de novo r eview of a sentenc e, we must consider: (a) any evidenc e re ceive d at the trial and/or se ntencing hearing; ( b) the
pr e se nte nc e re po rt ; ( c ) the pr inc ipl es of sen tenci ng ; ( d) the arg ume nts of c ou ns e l r e la tiv e to sentenc ing a lternatives; (e ) the n at u re an d char acte ristics of the off ense; (f ) any mitigating or statutory enhanc ement fa ctors; (g ) any statements made by

the def endant on his or he r own be half; and (h) the def

endant’ s potential or lack of potential for reha bilitation or tre atment. Tenn. Code A nn. § 40 -3 5- 21 0 (2 00 3) ; Sta te v. Ta y lor
, 63 S.W. 3d 40 0, 41 1 (T e nn

. Cr im. Ap p. 20 01 ). Th e pa rt y

c ha lle ng ing a

se nte nc e imp os e d b y

the tr ia l c ou rt

ha s th e bu rd e n o f e sta

bli sh ing that th e se nte nc e is

e rr on e ou s. Te nn . Co de An n. § 4 0- 35 -4 01 (d ), Se nte nc ing Com m’ n Cm ts.

I n the ca se u n d er submis sion, we conc lude that there is ample evidenc e that the tria l court considere d the sentenc ing principles and a ll releva nt fac ts and circ umstances. The ref ore, we re view its de cision de novo with a presumption of corr ectne ss. Acc ording ly
, so long as t h e t ri al co urt complied with the purposes a n d p ro ce d ures of the 1989 Sentencing Act and its finding s are supported by

the fa ctual re cord, this Court may not disturb this sentenc e eve n if we would have pref err ed a dif

fer ent re sult. S ee T enn. Code Ann. § 40- 35-210, Sentenc ing Comm’n Cmts; S tate v. Fletc her, 805 S.W.2d 78 5
, 789 (Tenn. Crim. App. 1991) . We note that the def endant be ars the burden of showing that the sentenc e is improper. Te nn

. C o d e An n . § 40-35-401, Sentenc ing Comm’n Cm ts.; Ashby , 823 S.W .2d at 169.

1. Consecutive Sente nces

Pursuant to Tennesse e C ode Annotated section 40-35-115(a)
, if a defenda nt is convicted of-32-

more than one criminal o ff en s e, the court shall order the sentenc es to run either consec utively

or

c o n c u rr e n t l y

. T h e t r i a l c o u r t m a y o r d e r s e n t e n c e s t o ru n c o n s e c u t i v e l y i f t h e c o u r t f i n d s b y a preponde ranc e of the evidenc e ce rtain criteria e numera ted in T ennesse e Code Annotated se ction 40- 35-115(b) (1)- (7). Te nnessee Code Annotated section 40-35-115( b) provides that a trial court may fi ndthat c on se c uti ve se nte nc ing is p ro pe r w he re :

(2 ) T he de fe nd a nt i s a n o ff e nd e r w ho se re c or d o f c ri min a l a c tiv ity is e xten siv e ;

. . . . [or]

(4) The defe ndant is a dang erous offe nder whose behavior indicates littl e or no reg ard fo r h uma n li fe , a ndno he sit a tio n a bo ut c omm itt ing a c ri me in w hic h th e ri sk to human life is hig h.

Tenn. Code Ann. § 40- 35-115(b) (2) & (4 ). W e conc lude, as did the trial c ourt, that the re cord

s u p p o r t s th e a p p l i c a b i l i ty o f b o thth e a f

o r e m e n t i o n e d f

a c t o r s f o r c o n s e c u t i v e s e n t e n c e s

. A c c o r d i n g l y, the tria l c o u r t d idn o t a b u s e it s d is c r e ti o n b y

o r d e r in g th a t th e D e f

e n d a n t’ s s e n te n c e s run

c on se c uti ve ly . T his iss ue is w ith ou t me ri t.

2. Blak ely v. Washin gton

The De fenda nt contends that his sentenc e s h o u ld be re duced to the sta tutory minimum beca use the e nhance ment fac tors must be either a dmitted by the Def enda n t o r fo u nd by

a jury determination bey ond a re asonable doubt in light of Blake ly v. Washington, 542 U.S. 296 (2004). Rece ntly
, the Tenne ssee Supreme Court c oncluded that Blakely does not a pply t o T en n es see’ s sentenc ing scheme beca

use “the Tenne ssee Criminal Sentenc ing Reform Act does not authorize a
sentenc ing pr ocedur e which violate s the Six th Amendment rig ht to jury trial.” State v. Gomez, 163 S.W .3d 632, 651 (Tenn. 2005) . Thus, Blakely v. Washington does no t b ar t h e t ri al court from enhanc ing the Def

endant’ s sentencepursuant to Tenne ssee Code A nnotated sec tion 40-35-114, and the Def endant is not entitled to relief on this iss ue.

III. Conclusi on

I n acc ordanc e with t he for eg oing a uthorities and re asoning , we a ffirm the judg ments of the
tr ia l c ou rt

.

_______________________________ ROBERT W. WEDEMEYER, J UDGE