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

Briefs February

4, 2003 STATE OF TENN ESSEE v. WILLIAM WILSON Direct Appeal from the Criminal Court for Shelby County No. 00-05479, -05480 Joseph B. Dailey, Judge

No. W2001-02601-CCA-R3-CD - Filed October 22, 2003

On May 19, 2001, a jury in Memph is convict ed the defendant, William Wilson, of aggravated robbery and first degree felony

murder. The tri al court sente nced him as a Range I Standard Offender to life in prison for the first degree fe lony murder conviction and to eight (8) y ears for the aggravated

robbery to be

served consecutively

. The def endant a ppeals theseconvictions. He argues four issues on appeal: (1) He was not criminally responsible for his co-de fend ant’s actions, and therefore, not guilty of first deg ree murder; (2) the evidence wa s insuffici ent to support hi s conv ict ions for ag grava

ted robbe ry and firs t degree murder ; (3) the t rial cou rt erred by

failing to charge the aff

irmative defense of dures s; and (4) the trial court erred by sentencing him to eight (8) yearsconsecu

tive to his l

ife sente nce wit h t he possibility of parole. We aff irm the trial court’s actions with reg ard to the se issues

. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Tri al Court is

Affirme d.
J E RR Y L. S MITH , J., delivered the opinion of the court, in which D AVID H. W ELLES and N ORMA M C G EE O GLE , JJ., joined. Juni S. Ganguli, Memphis, Tennessee, for the appellant, William Wilson.
Paul G. Summers , Att orney General & Reporter; Helena Walton Yarbr ough, Assistant Attorney Genera l; William L . Gibbons, District A ttorney Genera l; Jennifer Nichols and Glen Baity , Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

.

OPINION
Factua l Background
Hubert Benson arrived at

the Ebony

and L ace str

ip club ar ound 1:00 a .m. His wife worked at the club, so he wasknown to the bounce rs and se curity

guard s at t

he club . His wife was not working that

night, but the bouncers told him about a dice game that wa s in progress onthe side of the club. Mr. Benson o ften ga mbled the re. The particip ants at the

dice ga me were, Mr. Benson, two-2-

security guards, the bouncer and Chico McCrac ken, the co-defendant. Mr. Benson was winning as the game progressed. The re was $160 in the pot, when Mr. Benson’s roll, which was in his favor, hit someone’s hand or

foot. Mr. McCracken became very upset and told Mr. Benson that he did not lose that way. Dur

ing this exchange, the security guards and

the bouncer returned to the club. At this point, William Wilson, the defendant and Mr. McCracken’s half-brother , walked out of the club and wander

ed around the par

king lot near the

dice ga me. Mr. Mc Cracke

n ordered the def

endant to go get the car. At this point, Mr. McCracken and Mr. B enson were alone at the side of the club. Mr. McCrackenthen pulled out a gun and pointed it at Mr. Benson. He told Mr. Benson t o give u p his mo ne y. He then fired a shot in the air. Mr. Benson threw down what he had in his hands, including his winning s. Mr. McCr

acken to ld him to give him the rest of his money . Mr. Benson had $1200- $1300 in his pocket to pay his rent and c ar note for themo nth. When Mr. Benson refused, Mr. McCrackenshot between his feet. Mr. Benson then threw down the r est of his money. The defendant had arrive d with the car about this time. While holding the gun on Mr. Benson, Mr. McCracken ordered the

defendant to get out of

the car and pick u

p the mone

y. T he defe ndant did as he was to ld and retu

rned to the car. Mr. McCracken jumped in the car, a nd the two men drove off.
Mr. Benson then asked for help fro m the security

guard s and bouncers. Whe n they told him they could not help, he jumped in his car to follow the defendant and co-def endant. He was able to catchup to them and called 911 to report the robbery and where t

he defe ndants were. The defenda nts turned off their lights and led Mr. Benson on a c hase which reached speeds of up to 90 miles an hour. Mr. Benson remained on the line with the 911 operator continually giving them the location of the defendants. Officer John Robinson was the first Memphis police officer to catch up to the chase. He was soon joined by Officer Rob ert Wilkie

in his patrol car. The officers all had their lights and sirens on. Although the defendants slowed down to around 50 or 60 miles an hour, they did not stop for the police. Officer David Roy al andOfficer John Chevalier, who were riding in a two-man c ar, joine d the cha se from their precinct when they heard on the police radio that the defenda nts had pointed a gun a t Officer Robinson. Officer Robinson was directly behind the defendants followed by

Officer Wilkie and Officers Roy al and Chevalier in that order.
While the defendants were in the left-hand lane , Officer Robinson attempted to pas s th em in the right-hand lane. Officer W ilkie remained behind the defendants and Office rs Royal and Chevalier were behind

Office r Robinson . When Off

icer Robinson was a

lmost past t

he defe ndants’ car, they suddenly swerve d to the right and hit the left rear of Office r Robinson’s car with the right front of their c ar. The defendants’ car hit the g uardrail twice before coming to a stop. Officer Robinson’s pa tr ol ca r s ta rt ed go in g s id ew ays and spun out of control. The car went off of the road and hit two or three trees before it came to rest. When the officers reached Off

icer Robinson’s car, he was pinne d in the ca

r, gasp ing for

breath, with his ey es w ide open and unresponsive. He was taken to the hospital where he died. The defenda nt and co-defendant were ar rested at the scene.
The Sh el by County

tr ial cour t tried the defenda nt and co- defenda

nt from Ma

y 14 , 2001 to May 19, 2001. After

deliberating for an hour and forty -five minutes, the jury convicted both men of aggravated robbe

ry and first de gree fel ony murder . The trial court sentenced each one to life-3-

imprisonme

nt, as requi

red by state law , for the

first deg ree felony murder c onviction s. At a la ter sentencing hearing on August 23, 2001, the trial court sentenc ed the de

fendant to eight (8) y ears to run consecu

tive to his life sentence and Mr. McCracken to twelve (12) y ears to r un conse cutive to his life s enten ce bot h as Ra nge I offenders. The defendant now appeals his conviction and sentence to this Cour

t. Sufficiency of the Evidence
When a defendant challenges the suf ficiency of

the evidence, this Court is obliged to review that claim ac cording

to certa in well-s ettled pr

inciples. A v erdict of guilty , rendered by a jury and “approved

by t he trial j udge, a

ccredits the test

imony of the” St

ate’s witn esses and re solves all conflic ts in the testimony in favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Statev. Harr

is , 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked witha presum

ption of in

nocenc e, the jur

y ve rdict of g uilty removes this presumption “and replaces it with one of guilt.” State v. Tug gle , 639 S .W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The rele

vant ques tion the re

viewing court mus t answer

is whethe r any rationa l trier of fact could have found the accused guilty of every element of the offense bey ond a reasonable doubt. See Tenn. R. App. P. 13( e); Harris , 839 S.W.2d at 75. In making this decision, we are to a ccord the State “the stronge st legitimate view of the evidence as we ll as all reasonable and

legitimate inferences that may be drawn therefrom.” See Tu ggle , 639 S .W.2d at 914. As such, this Court is precluded from reweighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan , 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); Statev. Matthews , 805 S.W.2d 7 76, 779 (Tenn. Crim. App. 1990). Mo

reover , we may

not substitu

te our own “inferences for those dra wn by the trier of fact from circumstantial evidence.” Matthews , 805 S.W.2d at 779.
Sufficiency-Aggravated Robbery
The defendant first argues that he should not have been held c riminally responsi ble for the actions of Mr. McCracken leading to a conviction of aggravated robbe ry and, subseque

ntly , fir st degree felony murder . This issue is essentially a c hall enge o f the suf ficienc y of

the evide

nce to convict the defendant of agg

ravated robbery , so we address it with the defendant’s challeng e of the su ff ic ie nc y of th e e vi de nc e t o s up po rt hi s c on vi ct io n f or ag gr av at ed ro bb er y. Pursuant to Tennessee Code Annotated section 39-13-401, robbery is defined as “the intentional or knowing theft of property from the person of another by

violence or putting the person in fear. Aggravated

r obbery is r obbery that is “a

ccomplished with a deadly weapon or by

display of any article used or fashioned to lead thevictim to reasonably believe it to be a deadly we apon.” Tenn. Code An n. § 3 9- 13 -4 02 . A n i nd iv id ua l c an be he ld cr im in al ly r esponsible an d charged with the commission of an off

ense “if the offense is committed by the person’s own conduct, by the conduct-4-

of another for

which the person is criminally r esponsible, or by both.” Tenn. Code Ann. § 39-11- 401. There are several ways an individual can be found to be criminally responsible: (1) Acting

withculpability required

for the offense, the person causes or aids an innocent or

irresponsible personto engage in conduct prohibited by the definition of the offense; (2) Acting with intentto promote or assist the commission of the offense, or to benef it in the pr

oceeds o r resultsof the of

fense, t he perso n solicits, directs, aids, or attempts to aid another person to commit the offense; or (3) Having a duty

imposed by law or voluntarily undertake n to prevent commission of the offense and acting with in

tent to be nefit in the proc eeds or r

esults of the offense, or to p romote or assist its commission, the person fails to make a reasonable effort to prevent commission of the offe nse. Tenn. Code Ann. § 39-11-402.
The undispute d factsat trial, testified to by Mr. B enson, were that the defendant appea redat the beginning of the arg

ument between Mr. Benson and Mr. McCracke n. Mr. McCracken told the defendant to go get the car. When the def endant returned with the car, Mr. McCrac ken was pointing a g un at Mr. Benson and money lay on the g

round. Mr. McCracken told the defendant to pick up the money that Mr. Be

nson had thrown on the ground. The defendant g ot out of the car, picked up the money, and re

turned to the car. Mr. McCracken then jumped in the car, and the defendant drove out of the parking lot. Mr. B enson g ot in his car and began to pursue them. The defendant turned off his headlights and led Mr. Benson on a hig h-speed chase through the stree ts of Memphis.
The bouncer corroborated some of Mr. Benson’ s testimony . He testi fied tha t there w as a

dice game and that a dispute occurred between Mr. B enson and Mr. McCracken. He returned to the club and paged

the defe ndant. He

stated wh

en he re turned to the door o f the clu

b, he hea rd two sho ts coming from the direction of Mr. Benson and Mr. McCrac ken. Then he saw the defendant picking up mon ey

off of the ground. Afte r the def endant r eturned to the ca

r, the bou

ncer sa w Mr

. Mc Cr ac ke n g et in th e c ar , a nd th ey d ro ve aw ay. The de fe nd an t a rg ue s t ha t h e c an no t b e h el d c ri mi na ll y respon sible for co-defendant’s actions, and therefore, guilty of aggr avated r obbery . He base s these

arguments on the facts that he did not know that Mr. McCracken was planning to rob Mr. Be nson, he was not present during the gambling between Mr. Benson and Mr. McCracke n, and that the only reason he picked up the money is because Mr. McCracken told him to do so. However, as stated above, the state can prove that the def endant was crim

inally responsi ble despite these

facts. We

have sta ted that to

prove cr im ina l re sp on si bi li ty:
It is necessa

ry that the def

endant “in some way

associate himself with the venture, act with knowledge that an offen se is to be committed, and share in the criminal intent of the principal in the first degree.” Hembree v. State, 546 S.W.2d 235, 239-5-

(Tenn. Crim. App. 1976). The defendant must “knowingly , voluntarily and wi t h common intent unit

e with the principal offenders in the commission of the crime.” State v. Foster , 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988).
Statev. Maxey , 898 S.W.2d 756, 757 ( Tenn. Crim. App. 199 4). I n addition , our Supr

emeCourt has held that the criminal respon sibility statute is derived from common law principles including that of aiders and abettors. State v. Carson , 950 S.W.2d 951, 954 (Tenn. 1997). In State v. Hembree , 644 S.W.2d 425, 428-29 (Tenn. Crim. App. 1982), we stated:
The presence of on e at the commission of a felony by another is evide

nce to be considered in determining wheth er or no t he is guilt y of aidin g and ab etti ng; and it has also been held that presence, companionship, and cond u ct before and after the offense are circumstances from which one’s pa rticipation in the criminal intent may be inferred. 22 C.J.S. Criminal Law § 88(2) pag es 266-267.
It is clear that the

defendant’s conduct meets the requirements of c riminal intent as set out above. The defendant saw Mr. McCracken pointing a gun at Mr. Benson. He picked up the money Mr

. Benson threw on the gro und and g ot into the c ar. I n addition , the def

endant dr ove the c ar in which they fled the sc e ne, evading both Mr. Benson and the police. He clearly a cted “with intent to promote or assist the commission of the offense” and aided in the completion of the aggra vated robbery by c ol le ct in g t he mo ne y an d d ri vi ng th e c ar . It is in di sp ut ab le th at he “k no wi ng ly, voluntar ily and with common inte

nt unite[d] wi

th the principal offenders in the commission of the crime.” Also, he was present during the commission of the offense a nd drove the car to evade capture. Under Hembree , his intent to join in the offense c an be inf erred f rom these

actions. Therefore, he is criminally responsible for the acts of Mr. McCracken.
The defenda

nt also que stions whe

ther the re was sufficien

t evidenc e to convi ct him of aggravated

robbe ry. We h ave alr

eady decided the evide nce wasadequa

te to hold h

im crimina

lly responsi ble due to his assistance to Mr. McCracken during the robbe ry. We now turn to whether th er e w as su ff

ic ie nt ev id en ce to pr ov e a ggr av at ed ro bb er y. As stated above, Mr. Benson’s testimony is undisputed. Mr. McCra cken pointed a gun at

Mr. Benson and dema

nded his mo ney . Mr. Be

nson threw his money on the g round, andthe defendant picked it up, got in the car, and he drove the de fendant from the scene.
These facts clearly

meet the requirements to prove agg ravated robbery

. The defendant and Mr. McCracken took the money by putting Mr. B enson in fear by using a deadly

weapon, the gun.
We conclude that the evidence when viewed in the light most favora ble to the state i s sufficient for a rational jury

to find that an aggravated robbe ry occur red and that

the defendant was criminally

responsi ble for th e agg ravate d robber

y be yond a reas onable

doubt. Therefore, this issue is without me

rit.-6- Sufficiency-First Degree Murder
The defe ndant’s s econd iss ue is that t he evide nce wasinsuffic ient to co nvict him of first degree murder. Under Tennessee Code Annotated § 39- 13-202(a)(2), first degree murder is defined as “a killing of another committed in the perpetration of or attempt to perpetrate any . . . robbery

.

. . .” We have

alr eady he

ld above that there is sufficient evidence to find that the defe ndant was criminally

responsible for Mr. McCracken’s ag gravated robbery of Mr. Benson. We do not need to find that the d

efenda nt intende d to kill Office r Robinson to uphold his conviction for first degree murder. Tennessee Code Annotated section 39-13-202(b) states, “n o culpabl e mental s tate is required for conviction under (a)(2)

. . .except th e intent to commit the

enumera ted offe nses or a cts

. . . .” Therefore, if there is sufficient evide nce to prove that the death of Officer Robinson occurred during the perpetration of the robbery , the defendant can also be convicted for

first degree murder.
The facts in State v. Lee , 969 S.W.2d 414 (Tenn. Crim. App. 1997), are very similar to the facts in the case sub judice . In Lee , the defendant robbed a pharmacy of various narcotics. He left the pharmacy in

a white tr

uck. The driver o f the truc

k then let the defe ndant out in a parkin g lo t where he got in a brown Ford. The police obtained the description of the brown Ford from the driver of the white truck. Twenty -five minutes later, the police saw the brown Ford. A h

igh speed chase ensued. The def

endant st ruck a po lice ca

r, erra tically cut in front of other motorist and slammed on his brakes c ausing a

n office r to run in

to the bac k of him. The chase ende d when the defendant swerved into the oncoming lane of traffic and ran he ad-on into an on coming vehicle. The driver of the vehicle and the defendant’s passeng er were both killed as a result of the acc ident

. Lee , 969 S.W.2d at 416. The defendant in Lee argued that he did not kill the victim during the perpetra tion of the robbery . This Court held that the killing happened during the perpetration of the robbery

. Id. The Court stated:
We find that a rational trier of fact could find, and indeed did find, that the homicide o ccurred in furtherance of the robbery . Nothing in the record indicates that the appellant had reached a

place of tempora ry safety . The homicide was c learly a result of the high-speed chase nece ssitated by the appellant’s attempt to flee the area of the crime. It is a legitimate and logical assumption t hat one who plans a robbery and carries it out has a

lso planned to escape from the scene of the c rime. His flight is an integral part of the crime. Since asportation is an element of robbe ry , the fel ony

is still in progress while the defendant is fl eeing from the scene with the stolen pr op er ty. Id. at 416-17.
Our supreme court has held that the temporary safety test is one of the

most important factors when deciding whether a death has oc curred during the perpetra tion of a felony

. Statev. Pierce , 23 S.W.3d 289, 295 (Tenn. 2000). The supreme court stated:-7-

One of the mos t importan t factor s to consid

er in determining whether there has been a break in the cha

in of events that would preclude application of the felony murder ruleis whether the felon has reached a pla ce of temporary

safety. Se e LaFave & Scot t , Substantive Criminal Law , § 7.5(f)(1). If the felon has gained a place of temporary

safety after commission of the felony and be fore the killing, the felony mu rd er ru le ge ne ra ll y do es no t a pp ly.
Id.
There w as a gr

eat d eal of te stimony

concer ning the afterma th of the r

obbery . The State presented the owner of

the car, Mr. Benson, many dispatchers from

the Memph

is police d epartme nt, the police offic ers th at were invo lved i n the c hase, vario us officers in cha rge of collecting evidence, an ac ci de nt re co ns tr uc ti on is t a nd th e m ed ic al ex am in er fo r S he lb y Co un ty. The first person to testify was the owner of the car. She stated that Mr. McCracke n had driven her to work that

day. After

dropping her off, he was to take the c ar to the shop because the car pulled to the left. However, she did not have any problems keeping control of the car. B ut, as the car went faster, the pulling would g et worse. The night of the incident, she had gotten her car from the shop, but returned it and left the key unde r the mat. T

hat is the l ast time she saw it un til after the defendants were involved in the c rash.
Mr. Be nson t estified th at aft er the r obber y, he asked the bo uncers and se curit y gu ards fo r help. When they

told him the

y w ere una

ble to hel p him, he jump ed into his car and began to follow the defenda

nts. He c alled 911 and repo rted the robbery . He cont

inued tofollow the defendants, who had now turned off their lights, while remaining on the phone with the police dispatchers to report the defendants’ location. The chase rea ched speeds of up to 90 m iles an hour. At some

point, Mr. Benson saw an officer coming towards him and f lagged him down. That officer made a u-turn and began to follow the defendants. The officer was Of ficer Robinson. Mr. Benson continued to follow behind all the police officers. He followed them until all the cars came to a stop. He did not see the wreck.
Th e dispatche rs all testified that they received a call concerning a robbery a

nd a fleeing suspect. They cor

roborated Mr. Benson’s testimony that he was fo llowing the defendants and relaying their location . There

were se veral di spatche

rs involve d becau se the dispatchers each cover a ce rt ai n t er ri to ry, and the chase occurred in more than one territory. One

of the dispatchers testified Officer Robinson reported that the defendants pointed a g un at him during the chase.
Officer Robert Wilkie testified that the dispatcher p u t out a ca ll about a robbery victim chasing a ro bber y su spect. H e caug ht up with th

e chase after O fficer

Robinson wa s alrea

dy in pursuit. Officer Robinson was one or two car leng ths behind the defe

ndants, w ho did not ha

ve their lights on, and Officer Wilkie was one or two car leng ths behind Officer Robinson. He estimated the defendants’ speed at around 60 miles an hour. He sa id that Officer

Robinson pulled into the right hand lane while the defendants were in the lef t hand lane. Office

r Wilkie sa

id that the d

efenda nts-8-

sudd enly braked and immediately jerked to the right, hitting Officer Robinson’s car

. Office r Robinson’s car went to the right, then the left, then spun out of control. Officer Robinson’s car went off the road and hit som

e treesbefore

coming t o rest. The defendants’ car hit the left guardrail and came to a stop. Officer Wilkie immediately a rrested the driver

of the car, the defendant. He testified that there was money

all over the floorboard of the defendants’ c ar. Officers David Royal and John Chevalier wer e in a two man car the night Officer Robinson died. They both testified at trial. The y were just finishing some paperwork at the precinct at the end of their shift when they he ard Officer Robinson on theradio . Officer Robinson said he was following the suspectsfrom a robbery . When they heard O fficer Robinson say the defendants had pointed a gunat him, they decide d to join the chase because the cars wer e near the precinct. Office r Chevalier threw the key s to Officer Roya l who drove the car. They caught up to the chase and got behind the second police car driven by Office Wilkie. Officer Chevalier testified that the y were going between 50 and 60 miles an hour and that the officers all had on their lights and sirens. When Officer Robinson got into right lane , Off icers Royal and Che

valier got behind him. Both officers saw the defendants swerve into Officer Robinson’s ca r. The swerv e appea

red to be intentiona

l. There was no evidence that the defendants wer e having trouble controlling the ca r up until the swerve. Officer Robinson’s car went out of control and off of the road. The defendants hit the left guard railand came

to a stop. Officer Chevalier threw the shotgun to Of ficer Roya

l who ran toward the defendants’ car and held the g un on the passenger, Mr. McCracke n. Officer Roy al ran to

Office r Robinson ’s c a r. He wa s the firs t office r to the c ar. He s aid Officer Ro binso n’s car buckled around a tree. The driver’s side of the car was pushed in and the window was broken. The car had collapsed around O fficer

Robinson. O fficer

Chevalie r could te ll that Officer Robinson’s situation was very grave because his head w as rolled back, his arm was broken, his eyes wer

e rolled back in his head and he was gasping f or breath. Officer Robinson’s body had movem

ent in it, bu

t he was u

nrespons ive. Afte

r other o fficer s had take

n the def endants into cu st od y, Officer Roy al went to Officer Robinson’s car. Office r Royal attempted to ge

t Officer Robinson’s seatbelt off to help him breathe. He testifiedthat Officer Robinson was in bad condition and was n ot consci ous. Officer Kenneth Frazier

also participated in chase. He was behind the other officers and was unable to get to the crash scen e because of the other police cars and the debris. He reported that there was an officer trappe d and called for an ambulance.
Other officers and police department employ ees testified

about ta king photographs of the crash scene and gathering

evidence. Officer Daniel Parris testifiedthat he collected $636 from the floorboard

on the driver’s side, $ 2 20 from the floorboard on the passenger ’s side and $877 in the passenger’s seat, but

could not locate a weapon. Officer Da na Stine accompanied Mr. Benson to the Ebony and L ace clu

b and collected f

ive rec ent spent

shell ca sings an

d 3 handg un cartr idges.
Officer Robin Bea

ch of the Michiga n State Poli ce also

testified at trial. The Memphis Police Department

called h im to do an a

ccident reconst ruction. During

his rese arch and testi ng , he-9-

concluded

that the d efenda

nts did not have their lights on at the time of the accident. Also, the physical evidence on the left rear of the police car and the right front of the def endant’s car indicated a purposeful right turn by the defendants into Officer Robinson’s car.
The defendants were still committing the agg ravated robbery

when Officer Robinson’s car ran off the road. The defendants had not reached a place of temporary

safety. The

y were still in the midst o f f leeing the robbery . Immediately after they

robbed Mr. Benson, he began to c hase them throu gh the streets of Memphis. They tur ne d of f th eir li ght s an d dr ove up t o 90 mi les an h our . It can be inferred fr om these actions that they be lieved they we

re being pursued. The office rs then joined the chase. The officers’ sirens a nd lights were runningthe entire time, but the defendant s still didnot pull over. The defendants did not stop until they ra n into Office r R obinson and hit the guard rail. There was not a break in the chain of e vents between the robbery and the incident that led to Officer Robinson’s death. The defendan ts neve r reached a place of tempor ary saf ety. The defendants killed Officer Robinson while perpetrating the aggravated r

obbery of Mr . Benson.
For these reason s, we co nclud e that the ev idenc e when v iewed in th e ligh t most fa vorable to the State is sufficient for a rational jury to find the defendant guilty of first degree

felony murder

. Theref ore, thisissue is without meri t.
Duress De

fense
The defendant’s next issue is that the trial court erred when it failed to include t

he defe nse of dures s in the jury instruction. The defe ndant argues that he was under dure ss because if he had notfollowed Mr. McCracken’s orders either he or Mr. Benson would have been harmed. The State argues that there was no evidence to support this instruction. The trial court has a dut y to “give a complete charge of the law applica ble to the facts of a

case.” State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1 986); see also Tenn. R. Crim. P. 30. “ [The] defendant has a constitutional right to a correct and complete charge of the la w.” State v. Teel , 793 S.W.2d 23 6, 249 (Tenn. 1990). Ho wever, the jury instruction must be reviewed in the context of the overall charge rather than i n isolation. See Sandstrom v. Montana , 442 U.S. 5 10, 99 S. Ct. 2 450 (1979 ); see also Statev. Phipps , 883 S.W.2d 138, 142 (Tenn. Crim. A p p. 1994). Erroneo us jury instructi ons requi

re a reversal, unless the error is harmless bey ond a reasonable doubt. See Welch v. Sta te , 836 S.W.2d 586 ( Tenn. Crim. App. 1992).
The standardto allow inclusion of a statutory defe nse in the jury

instructi ons is found in both caselaw and the statutes. The tes t to determine whether a trial court should have given a special instruction is whether “there is any evidence which reasonable minds could ac cept” to support such an instruction. Johnson v. Sta te , 531 S.W.2d 558, 559 (Tenn. 1975). Under Tenn essee Cod e Annotatedsection 39-11-203(c), the existence of the defense must be fairly raised by the pr

oof if the defense is to be submitted to the jury. For a statutory defense to be fairly

raisedby the proof “ a

court must, in effect, consider the evidence in the light most favorable to the defendant, including drawing all reasonable inferences flowing from that evidence,” because the tria l courts and appe

llate cou rts-10-

must avoid judging the credibility of the witnesses when making this determination. State v. Shropshire , 874 S.W.2d 634 (Tenn. Crim. App. 1994). The trial court stated the following with rega rd to instructing on a duress defense: [A]s I recall t he proof , at leas t, Mr. Be

nson said that Mr. Wilson had left to get the car before Mr. McCracken pulled the g un out, which would suggest that he didn’t real izethat there was robbery going on until he had gotten back a round with the car. Ce rt ai nl y, at that point, he realized it. T he re’s his half brother, Mr. McCrackenstanding the re wit h a gun pointed at Mr. Benson and money on the ground that wasn’t there before - - a lot of m oney on the g round that wasn’t there before. And then he’s told to pick up the money, a nd he gets out and picks up the money and gets back in the car befor e McCra cken get s back in the car and does nothing - - I

don’t remember any

proof to suggest that Mr. Wilson was under any duress - - felt that he was under any duress - - made any

effort to extricate himsel f from the scene or from the

situation - - to step on the accelerator when he g otback in the car, knowing that Mr. McCracken ha dn’t yet g otten into the car. In fact, wh en the ca

r was ultimately

stopped by

that gua rdrail in North Memphis, the r e was money on both sides - - both floorboards. The police found money on both flo orboard s. It wasn’t as though he

then had handed it all over to McCracken. Every thing points to a joint effort from the point that the car was brought around to the point that the car was ultimately

stopped. And the suggestion that he was so concerned about Mr. Benson t

hat he - - that the d

uress would app ly

to the third person, Mr. Benson -

- that he wa s doing th at only to save Mr. Benson’s neck, I think, is really a stretch a

nd unsuppor ted by any proof at all. I just don’t t

hink that th

ere’s a ny e vidence , at all, th at w ould support the charge of duress in this case given the pr oof that’s be en prese

nted. I mean I guess there are a lot of ways that it could have been developed, through cr oss examination, had Mr. Bensonsaid something differently ; or through defense proof, there ha d been proof to present to support a suggestion that Mr. Wilson was acting under d u ress. Ce rt ai nl y, there c ould have been a lot of scen arios dev eloped that would have warranted the char ging o f duress , but I

just don’t t hink I’ve heard a

ny in the proof this week that would warrant the charg e of duress. So, no, I’m not go ing to charge that.

The statutory defense

of duress is found at Tennessee Code Annotate d section 39-11-504. This sect ion states : (a) Duress isa

defense to prosec ution whe re the pe rson or a third per son is threatened withharm which is present, imminent , impending and of such a nature to induce a well-grounded

apprehensionof death or serious bodily injury if the act is not done. The threate

ned harm must be co ntinuous th

roughout the tim

e the act is being committed, and must be on e from wh ic h t he pe rs on ca nn ot wi th dr aw in sa fe ty.-11-

Further, the desirability and urg ency of a voiding the h arm must clearly outweig h, according to ordinary standar ds of reasonableness, the

harm sought to be prevented by t he law pr oscribin g the co nduct. Tenn. Code Ann. § 39-11-504(a).
In State v. Robinson , 622 S.W.2d 62 (Tenn. Crim. App. 1980), this court stated: [I]n order to constitute a

defense to the commission of other crimes the coercion or duress must not only be

present , imminent, a

nd impending, but a

lso the da nger mu st be continuous throughout the time the act is being committed and must be such that a defenda nt could not withdraw in safety. T he doctrine of coercion or duress cannot be invoked a s an excuse

by o ne who ha

d a reas onable

opportunity to avoid doing the act without und

ue exposur

e to deat h or seri ous bod ily harm and there must be no reasonable opportunity

to escape the compulsion without committing the crime.
State v. Robinson , 622 S.W.2d 62, 73 (Tenn. Crim. App. 1980).
Even when taking the evidence in a light most favor able to the defendant, we do not conclude that a reasonable mind could accept that the defe ndant was under duress. There was no evide nce at any time that M

r. McCra cken thr eatene d the def

endant. There were no statements in evidence such as, “Go get the car, or I

will shoot you,” or “Pick up the money , or I will shoot y ou.” There was no evidence that Mr. McCracken even poi nted t he gun at the defendant. There was no evidence that Mr. McCrackenthreatened to kill the defendant if he did not drive recklessly and refuse to stop for the police. The use of a gun in the commission of an offense does not automat ically make a n accomplice’s actions the result of duress.
In addit ion, we do not find any e vidence that the defendant acted to preve nt harm from coming to Mr. Benson. The defendant led Mr. Benson on a high speed c ar chas e throug h the streets of Memphis. At times, their speed reached up to 90 miles an hour. These ar e not the actions of someone trying

to prevent harm to a third person.
Becau se we cannot find evidence, even when taken in f avor of the defendant, to support an instructi on for dur

ess, we a ffirm the actions o f the tria

l court.
This issue

is without me

rit.
Consecut

ive Sente ncing
The defendant’s final issue is that he should not have been sentenced to eight (8) years f or aggravated

robbery consecu tive to his life se

ntence f or first degree felony

murder. “When reviewing sentencing issues . . . , the appellate court shall cond uct a de novo review on the record of such issues. Such review shall be conducted with a presumption t hat the determinations made by the1 The Tenness ee Legi sla tur e amende d Tenn. Code Ann. § 40-3 5-11 4 July 4, 2002 to add “(1) The of fense was an actof t errorism, or was rel ated to an act of terrori sm.” Therefore, the addition of t his subsecti on, bumps all the enhancement factor n umb ers up a num ber. Th erefo re, enhan cement fac tor ( 1), r efer

red t o by the t ria l cou rt, is now enhancement factor (2) and can be found at Tenn. Code Ann. § 40-35-114 (2).

2 For reas ons s tat ed in foot note 1, en hance ment factor (8) is now enhancement fact or (9) and can be found at Tenn. Cod e Ann. § 40-35-114 (9). -12- court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). “However, the presumption of co r rectness which accompanies the trial court’s a ction is conditioned upon the affirmative showing

in the re cord tha

t the tr ial court co nsidere d the sent encing principle s and all relevant facts and circumstances.” State v. A sh by , 82 3 S .W .2d 166 , 16 9 (T enn . 19 91) . In conducting our revi ew, we mu st conside r the def endant’ s potentia

l for reh abilitatio n, the trial and sentencing hearing evidence, the pre -sentence report, the senten cin g principles, sentencing alternative arguments, the nature and character of the

offense , the enha

ncing a nd mitiga ting fa ctors, and the defe

ndant’s s tatement s. Tenn. Co de Ann. §§ 40-35-10 3(5), -2 10(b); Ashby , 823 S.W.2d at 169. We are to also recognize that the defendant bear s “the burden of demonstrating that the sentence is improper.” Ashby , 823 S.W.2d at 169.
A trial court

may impose consec

utive sentencing upon a determination that one or more of the criteria set forth in Tennessee Code Annotated section 40-35-11 5(b) exists . This sec tion permi ts the trial court to impose consecutive sentences if the court finds, among other criteria, that “the defendant is a dangerous offe nder whose behavior

indicates little or no regard for human life, and no hesit ation about commi ttin g a crime in whichthe risk to human life is high.” Tenn. Code Ann. § 40-35-115(b)(4). However, befor e ordering the defendant to serve c onsecutive sentences on the basis that he is a

dange rous off ender, t he trial c ourt must f

ind that the resu lti ng sente nce is reasona bly related to the severi ty of the crimes, necessary to protect the public against further criminal conduct, and in accord with the gener al sentencing principles. See Sta te v. I mfeld , 70 S.W.3d 698, 7 08-09 (T enn. 2002 ); State v. Wilkerson , 905 S.W.2d 933, 938-39 (Tenn. 1995).
At the se ntenc ing hear ing, the trial court heard arg ument from counsel, but there was no te st im on y. The tria

l court fi r st applie d enhancement factors (1), the def endant has a history of previous criminal

convicti ons, 1 and (8), a pr evious his tory

of unwillingnessto comply with probation. 2 The trial court then found a

few mitigating factors and sentenc ed the defendant to eight (8) yea rs, the minimum sentence for aggra vated robbery

as a Range I

Standard Offender.
The trial court then stated the following in regard to consecutive sentencing of the defe ndant: [T]he most import

ant fac tor in both

of them, and the only factor as to Mr. Wilson, but the most important, clearly, for pur poses of my evalua

tion of the consecutive versus concurrent

issue is No. 4, and that is that the defendant is a dang erous of

fender whose behavior indicates little or no regard for human life and no he sitation about committing a crime in which the risk to huma n life is hi gh. Cer

tainly there wa s little or no regar d for h uman l ife and no hes itat ion ab out co mmit ting a crime to whichthe risk to human life was high.-13- First, with regard to the robbery , when a gun was placed in the fa ce of the victim

. . . Mr. Be

nson. He t

estified to that at s ome leng

th during the trial

. And [the defend a nt’s attorney] made the stateme nt that his client, Mr. Wilson, didn’t contemplate any

injury to any

one when he bent down to pick up themoney. But if you’re in the middle of an armed robbery , holding a man at gunpoin t, and you’re

[sic] partner has the gun, and y ou go get the car and swing around, and then y ou get out of th e c ar , a nd you le an do wn an d yo u p ic k u p t he mo ne y, and all of this is unfolding before you r eyes, first

of all, he ’s crimin ally

responsi ble for w hat occu rs. But secondly, it’s obvious that you’re pa rt and parcel of this entire event that is creatin g a tremendous risk to the life of Mr. Benson, the victim. And he didn’t stop it, and he didn’t tell his co-defendant, “Put the gun down. L et’s go.” He didn’t leave the money there . He didn’t toss the keys to his co -defen dant and say, “I ’m walking home, and

its all y ours. I ’m getting out of

here. I ’ve go t a

good job as a manager of a gas station. I don’ t need to be here robbing people.” He didn’t do any of that. He c ould have . It w ould ha ve been easy . Mr. Benson would have apprec iated it.

. . . . Byp articipa

ting in th is whole e

vent, he s howed ab solutely no hesita tion in committing this crime in which risk to human life was high.

. . . . [W]hen you ge

t to the issue of consecutive v. concurrent time, I think the mu

rder ca se comes i nto play

as well, a

nd Mr. Wilson

was the d

river. A nd the tes timo ny, as I recall, by the

experts and others was th at , i n t he ir ex pe rt op in io n, th is ca r a ct ua ll y - this car driven by

the defendants pulled o ver and b umped the office r’s car with sufficient force to cause it to swerve off the road and crash into the tree.

. . . . And I thin k it’s unfo rtunate that these two men will be as old as they are when they’r

e eligible for parole, but that’s - those were the choices they made, and these are the consequences of those choices. And I think that the law de mands that

any reasona ble application of No. 4 w ould requ ire cons ecutive

sentenc ing in

these cases as to both defenda nts.

We agree with the trial court’s assessment. Cl ea rl y, the defendant was an active participant in both the aggr

avated r obbery and the f irst deg ree felony murder. When he re

turned w ith the car to pick up Mr. McCracken, he saw the gun pointed at Mr. Benson and did nothing to prevent or stop the robbery. I

nstead, he helped rob Mr. Benson by pi ck in g u p t he mo ne y. Then, he drove the car to get away

from Mr. Benson.
His actions before the police arrived clea rly show that he has no r

egard for human

life. He drove without his lights on at speeds up to 90 miles an hour. This chas e occur red on pu blic stre ets where innocent people could be d riv ing. He

refuse d to stop when the pol ice wer e following him withtheir lights on and sirens on signaling him to stop. Most importantly, the off icers who saw the-14-

accident and the acc ident re constructionist tes tified tha t is appear

ed as if th e defendant deli

berately swerved into Officer Robinson’s car, causing him to run o ff the ro ad. The d efenda nt’s acti ons while driving clearly de

monstrate he has little reg ard for human life. Obviously, the public needs to be protected from such behavior.
We conclude that an e

ight-y ear sen tence c onsecuti ve to life

imprisonme

nt with a po ssibility of parole is reasonably

related to the severity

of aggravated robbery a n d the first degree felony murder of an officer of

the law w

hile on dut

y. T his sentence is necessary

to protect the public from the defendant’s dangerous beha vior. The trial court’s sentence is definitely in accord with the gener al sente ncing p rinciple s. There

fore, w e affir

m the acti ons of the

trial cou rt. This issue

is without me

rit.

Conclusion
For thes e reaso ns, we af

firm the j udgmen

t of the tr ial cour t.

___________________________________ JERRY L. SMITH, JUDGE