### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs S ep te m be r 13, 200 5
STATE OF TENNESS EE v . JERO ME BO ND

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 03-06593 Ar thur T. Benn ett , Judge

No. W2004-02557-C CA-R 3-CD - F iled Dece m ber 8, 2005

T h e d e f e n d a n t , J e r o m e B o n d , w a s c o n v i c t e d o f f e l o n y m u r d e r

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. See Te nn. Code Ann. §§ 39-13- 202, -403. Th e t ri al court imposed a life sente nce f or the fe lony murder a nd a sente nce of twenty -f i v e y ea rs for the espec ially ag g ravated robbe ry

and orde red the sentenc es to be ser ved conse cutively

. I n this appeal, the de fenda nt asserts that the tria l court er red by (1) a dmitti ng into evidence a photog raph of him taken by police; (2) de ny ing his motion to modify Tenne ssee Pattern J ury

I nstruction 43.04; (3) deny i n g h i s re quest to instruct the jury on the lesser included off

enses of espec ially

ag g ravated robbe ry ; and (4) ord er i ng his sentence s to be serve d
consec utively . The judg ments of the trial c ourt are aff irmed.
Tenn. R. App . P . 3; Judgme nts of the Trial Court Affi rm ed

G AR Y R. W ADE , P.J ., delivere d the opinion of the court, in which D AVI D G. H AYES and T H O M A S T. W O O D A LL , J J ., joined.

J ames E. Thoma s, Memphis, Tennessee , for the a ppellant, J erome Bond.
Paul G. Summers, Attorney Gene ral & Reporter ; Rachel E. Willis , Assistant Attorney Gene ral; and L ee Coff ee a nd Stacy

McEndre e, Assistant District Attorney s Gene ral, for the appe llee, State of Tenne ssee.
OP IN ION At approximately

8:30 a.m. on Marc h 19, 2003, the victim, Dennis Be ll, lef t his residence with the intention of driving to his g randmother ' s house to visit friends. L ater , Patrol Of fice rs Jer e my Wel ls a nd Se a n Sa nd e rs of the Me mph is Pol ic e De pa rt me nt re sp on de d to a n " arm e d- pa rt y call" at the L aPaloma Apa rtments. The c aller reported that there wer e three arme d men at the sc ene. When they

arrived, the off

icer s saw the defe ndant and J erry Mason flee from the pa rking lot. The office rs ultimately

found the two men hiding underne ath a vehicle and took the m into custody . At that po int , th e of

fi c e rs turne d the ir a tte nti on to a pa rk e d c ar o c c up ie d b y

the vic tim

a ndJohn Da vis Str e e te r. Str e e te r, wh o wa s on the g ro un d ne ar the pa sse ng e r s ide of the ve hic le , h a d b e e n s ho t in-2-

the shoulder. The victim, who was found slumped in the open window on the driver ' s side of the c ar, had suff ere d a fatal g unshot wound to the left side of his face . After calling for a ssistance, Of fice r Wells found a .22 caliber

long rifle whe re he had first see n the def endant. Of

fice r Sander s found a .380 caliber

pistol and a bag of coc aine whe re the men wer e hidin g j u st before their ar rest. Other office rs found a

bag of coc aine in the victim' s car an d a

. 3 8 0 ca l i b er she ll casing at the sce ne. At trial, Streeter

testifi ed t h at t he victim, who had be en a f riend since childhood, picked him up at
app ro xima te ly

10 p. m. on the nig ht of the sh oo tin g a nd the n dro ve int o the L a Pa lom a pa rking lot

. He r eca lled that the defendant approac hed their vehicle a nd informed the vic tim that som eone w as looking f or him. Streeter

testified that he then he ard two gun s h o t s

. S h o rt ly there afte r, he sa w a police ca r, which w as trave ling towa rds their ve hicle, make a u-turn. He stated that the victim, who had blood " shooting out" of his head, dr ove in the direc tion of the police c ar be fore the vehicle was broug ht to a halt. Streeter insisted that he was not intox icated at the time of the off ense a nd that he had neve r known the vic tim to deal in drug s.
Annette B ell, the wife of t he victim , testified that the victim had bee n convicted of possession of marijuana

in 1994 and 1996. She also cla imed that the v ictim had never sold ill eg al drug s and had neve r bee n char g ed with that offe nse.

J erry Mason, who had been char g ed with a g g ravated robbery and fa cilitation of a fe lony as a re sult of this i ncident, testified f o r the state. H e cla imed that he purc hased ma rijuana f rom the defe ndant on a reg ular basis and on the ni g ht of t he offense ag ree d to "w atch [his] back" while he made a n illega l drug purcha se. Ac cording t o M ason, a third individual, who he kne w only as "Pee wee ," dr ove the two men to the L aPaloma Apa rtments. He testified that the d ef endant, who possessed a sma ll, black automatic pistol, provided him with a rifle. Ma son stated that he hid behind a building a s the defe ndant appr oache d the vehicle dri v en b y t h e victim. He c ontended that a fter about twenty

seconds, he hear d a g unshot and, thinking that the defendant had been shot, responded by firing a shot at the victim' s vehicle. Mason t estified that it was only when he saw the de fenda nt running in his direction that he re alized the defe ndant had shot t h e v i ct i m

. He c laimed that he dropped his rifle and fle d but was quickly appre hended by

the police.

De te c tiv e Ma

rc us Ber ryma n o f the Me mph is Po lic e De pa rt me nt C ri me Re sp on se Un it, questioned the de fenda nt. At trial, he prese nted a written statement from the defe ndant wher ein the defe ndant ac k n o wl edg ed his plan to rob the victim. I n the statement, the de fenda nt admitted sh oo tin g bo th the vic tim

a nd Str e e te r bu t ins ist e d that it wa s a c c ide nta l. Ac c or din g to the state me nt, Mason had pr ovided the def endant with a load ed p i s t o l and the third individual involved in the incident went by

the name " ToJ o". The defenda nt confirme d that he had ta ken seve nty -five dollar s from the victim, all of whic h was re cover ed by the police.

Detec tive Be rryman produc ed a photogr aph of the def endant holding the bills he had take n from the victim, some of whic h appea r t o b e s m ea re d with blood. The detec tive explained that beca use there was no c amer a in the intervie w room, an office r found a camera and the de fenda nt was asked to hold the c ash and pose for a photogr aph.-3-

Steve Scott, a fore nsic scientist w i th the Tenne ssee B ureau of I nvestig ation, examined the .3 80 c a lib e r p ist ol a ndthe .2 2 c a lib e r rif le that w e re fo un d at th e sc e ne. He s ta te d th a t th e pis tol , wh ic h w a s in op e ratin g c on dit ion , inc lud e d a sa fe ty fe a tur e a nd de te rm ine d that a " tr ig g e r- pu ll t e st" did not indicate any

likelihood of a misfire. Ag ent Scott confirmed that the .380 caliber shell casing fo un d at th e sc e ne wa s f

ir e d f ro m th e pis tol

.
I.

I nitially , the def

endant c halleng es t he admissi bilityof the photog raph showing him holding money taken f rom the vi ctim. He arg ues t hat t he photogra ph was stag ed and that any probative va lue
wa s su bs ta nti a lly

ou tw e ig he d b y

the da ng e r o f u nf

a ir pr e jud ic e a g a ins t th e de fe nd a nt.

Th e a dmi ssi bil ity

of ph oto g ra ph s is g ov e rn e d by Te nn e sse e Rul e of Ev ide nc e 40 3. Se e Sta te
v. B a nk s, 56 4 S. W.2 d 9 47 (T e nn . 1 97 8)

. Th e e vid e nc e mus t be re le va nt andits pr ob a tiv e va lue mus t outweig h any

unfair prejudicia l e ffe ct. Tenn. R. Evid. 403; B anks, 564 S.W .2d at 950-51. Whether to admit the photogr aphs re sts within the sound discre tion of the trial court and will not be reve rsed absent a clea r showing of an a

buse of that discr etion. State v. Dicker son, 885 S.W .2d 90, 92 (Tenn. Crim. App. 1993); State v. Allen, 692 S.W .2d 651, 654 (Tenn. Crim. App. 1985)

. The photog raph w as take n by police af ter the de fenda nt was take n into custody . When he was intervie wed by

police, the de fenda nt admitted that the money in his possession wa s that taken from the victim. There wer e three t wenty dollar bi lls and one ten dollar bill. Some of the bills had been sta ined with the blood of the victim. The phot o gra p h wa s stag ed only in the sense that the office rs re -ena cted f

or the c amer a what Detec tive Be rryman had a lrea dy seen f irsthand.

The e vidence was c umulative in that it confirmed his testimony . The trial c ourt found that the photog raph w as not inflammatory and rule d that t h e probative value of the photog raph outweig hed any unfair prejudice to the defendant. Be cause the probative value of the photog raph
was mer ely cumulative to police testi mony and any prejudicia l effe ct was minimal, it is our view that any err or would have qualified a s harmless. See T enn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

II.

The de fenda nt next contends t h at the trial court erre d by its refusal to modify

Tenne ssee Pa tte rn Jury

I ns truc tio n 4 3. 04 . H e a sk e d th a t th e fi rs t se nte nc e be de le te d be c a us e it c on fl ic te d w ith oth e r p a tte rn ins truc tio ns . T he pa tte rn ins truc tio n at is su e pr ov ide s a s f oll ow s:

You ca n have no pr ejudice or sy mpathy , o r al l o w any thing but the law and the
e vid e nc e to h a ve a ny inf

lue nc e up on y ou r ve rd ic t. Yo u mus t r e nd e r y ou r v e rd ic t w ith absolute fa irness and impartialityas y ou think just ice a nd truth dictate.

Tenne ssee Pattern J ury

I nstructions, Criminal 43.04.-4-

The de fenda nt sugg ests that the jury should not have bee n instructed to be unsympathetic and that othe r p a tte rn ins truc tio ns are c on tr ary to Ins truc tio n 43 .0 4. Spe c if ic a lly , th e de fe nd a nt p oin ts to the fo llo wi ng ins truc tio ns , in pe rt ine nt p art :

1. 02 : T he la w a

pp lic able to thi s ca se is sta te d in the se ins truc tio ns , a ndit i s y ou r d uty to c are fu lly

c on sid e r a ll o f the m. 1.06: Neither by

. . . these inst ructions nor any rema rks which I

have ma de do I mean to indicate any

opinion as to the fac ts or as to what y our ver dict should be. 1.08: You are the exclusive judge s of t he facts i n this case. Also, y ou are the
ex cl usive judg es of the la w under the direc tion of the court. You should a pply the law to the fa cts in deciding the ca se.
Under the United States and Te nnessee Constit utions, a defe ndant has a constitutional right to a trial by

jury . U.S. Const. amend VI ; Tenn. Const. art. 1, § 6; se e State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991) ; Wi llard v. State, 174 Tenn. 642, 130 S.W.2d 99 (1939). This rig ht encompasse s the def endant’ s rig ht to a correc t and complete c harg e of the law. State v. Te el, 793 S.W.2d 236, 249 (Tenn. 1990) . I n conseque nce, the trial court ha s a d u t y “t o g ive a c omplete cha rg e of the law
app lic able to the fa c ts o f a c a se .” Sta te v. Ha

rb iso n, 70 4 S.W. 2d 31 4, 31 9 ( Te nn . 1 98 6) ; se e Sta te
v. F or be s, 79 3 S. W.2 d 2 36 , 2 49 (T e nn . 1 99 0) ; se e a lso Te nn . R. Cr im. P. 3 0. Jury ins truc tio ns mus t, howeve r, be revie wed in the contex t of t he overall cha rg e rather than in isolation. See Sandstrom
v. Mo ntana , 4 42 U. S. 5 10 , 5 19 (1 97 9) ; see a lso Sta te v. Phi pp s, 88 3 S.W.2 d 138 , 142 (T e nn . Crim. App. 1994). A c harg e is prejudicia l error “if it fails to fairly

submit t he leg al issues or if it misleads the jury as to the applica

ble law.” State v. Hodg es, 944 S.W.2d 346, 352 (Tenn. 1997).
Although the defe ndant may reque s t s p ec i al i nstructions, jury instructions are suf

ficient wher e they

adequately

state the law. See, e.g., State v. Ty son, 603 S.W .2d 748 (Tenn. Crim. App. 1980). When a trial c ourt' s char g e to the j u ry i s complete, it nee d not give additional specia l instructions requeste d by

the def endant. See State v. Story , 608 S.W .2d 599, 603 (Tenn. Crim. App. 1980).

I n o ur

a sse ssm e nt, the tr ia l c ou rt g a ve a n a c c ur a te a ndc omp le te c ha rg e of the la w a pp lic able to the fac ts of this case. The pattern instruc tion at issue comp o rt s wi t h t h e l aw. The other instructions were not so contradictory as to have confuse d the jury or ot herw ise to have mitig ated t h eir func tion a s fac t-finder

. I n our view, the trial court did not err by ref using the de fe n d an t 's reque st to modi fy

the instruction.

III

. The de fenda nt also asserts that the trial court e rre d by deny ing his re quest to instruct the jury on attempted espe cially

ag g ravated robbe ry , attempted ag g ravated robbery , and attempted robbe ry as lesser included off

enses of espec ially ag g ravated robbery

. The state submits that the trial court pr op e rl y de nie d th e re qu e st.-5-

The que stion of whether a given offense should be subm itted to the j ury as a lesser included offe nse is a mix ed question of law and fac t. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001) ( citing State v. Smil ey , 38 S.W .3d 521 (Tenn. 2001)). The standard of revie w for mixed questions of law and fa ct is de novo with no presumption of correc tness. I d.; see also State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999)

. Our law require s that all of the ele ments of ea ch off ense be described and de fined in connec tion with that off ense. See State v. Cravens, 764 S.W .2d 754, 756 (Tenn. 1989) . When the e vid e nc e in the re cord fai rl y ra ise s o r s up po rt s th e e xiste nc e of a de fe ns e , th e tr ia l c ou rt

is compelled to instruct the jury on the issue. Manning v. State, 500 S.W .2d 913, 915-16 (Te nn. 1973);
see a lso Almonrode v. State, 567 S.W.2d 184, 187 (Tenn. 1978).

I n Burns, our supreme court adopted a modified version of the Model Penal Code in order to determine w hat constitutes a lesser included off

ense:
An offe nse is a lesser

included off

ense if: (a) all of its statutory

elements a

re inc l u d ed within the statutory elements of the offe nse cha

rg ed; or (b) it fai ls to m e e t th e de fi nit ion in p art (a ) o nly in the re sp e c t th a t it

c on ta ins a statutory element or

elements e stablishing (1) a differ ent mental state indicating a lesser kind of c ulpability ; and/or (2 ) a le ss se ri ou s ha

rm or ri sk of ha rm to the sa me pe rs on , p ro pe rt y or pu bli c int e re st,
or (c) it consists of (1) fa ci l i t at i on of the off ense c harg ed or of

an off ense tha t otherwise mee ts the definition of lesser

included off

ense in pa rt (a) or (b) ; or (2) a n attempt to commit the offense charg ed or an offense tha t otherwise mee ts the definition of lesser

included off

ense in pa rt (a) or (b) ; or (3) solicitation to commit the offe nse charg ed or an offe nse that otherw ise meets the definition of lesser

included off

ense in pa rt (a) or (b)

. 6 S.W .3d at 466-67.

The state a cknowledg es that attempted e specia lly ag g ravated robbe ry , attempted ag g ravated robbery , and attempted r obbery may be lesser included off

enses of espec ially

ag g ravated robbe ry un de r a B urns a na ly sis

. Th e state c on te nd s, ho we ve r, that th e " me re e xiste nc e of a le sse r o ff e ns e to a cha rg ed off ense is not sufficie nt a lone to w arr ant a char g e on that offe nse [and tha t] [w] hether or no t a pa rt ic ula r l e sse r- inc lud e d o ff

e ns e sh ou ld b e c ha

rg e d to the jury

de pe nd s o n w he the r p ro of in the re cord w ould support the l esser char g e." I d. at 468. I n Burns, our supreme court de veloped the fo llo wi ng tw o- pa

rt sta nd ardto d e te rm ine wh e the r a le sse r inc lud e d o ff

e ns e jury ins truc tio n s ho uld be g iven:

F ir st, the tr ia l c ou rt must d e te rm ine wh e the r any e vid e nc e e xists that r e a so na ble minds could acc ept as to the l esser -included offense

. I n making this determination, the trial court must vi ew the e vidence liberally in the light most favor able to the-6-

exi s te n c e o f

th e le s s e r

- in c lu d e d o f

f e n s e w ith o u t m ak in g a n y ju d g me n ts o n the
cre dibilit y of such evidenc e. S econd, the trial court must determine if the evide nce, viewed i n t his light, is leg ally sufficie nt to support a conviction for the lesserincluded off

ense.

I d. at 469. Our court further explained in State v. Ely , 48 S.W .3d 710, 719 (Tenn. 2001) , that "[p]art (c) of the [Burns] test was meant to a pply to situations i n which a de fenda nt attempts to commit , or so lic its a no the r t o c omm it, e ith e r the c ri me c ha rg e d or a le sse r- inc lud e d o ff

e ns e , b ut n o p ro of

e xists of t he co mp let io n o f t he cr im e."

Her e, the state prese nted over whelming evidenc e that the of fense of espe cially

ag g ravated robbery had bee n completed. Detec tive Be rryman testified that the defe ndant admitted to ha ving ha d taken money

from the victim. During his police interview, the defe ndant produc ed the blood-staine d bills. Other office rs cor

roborated that fa ct. No evide nce was presented to show that the defenda nt had mer ely

attempted to commit a robbe ry

. The trial court ruled during a jury -out hea ring that a jury instruction on attempted espe cially ag g ravated robbery was not w arr anted beca use that offe nse wa s no t fa ir ly raise d b y

the pr oo f. Al tho ug h it

ma y be the be tte r p ra c tic e fo r t ri a l c ou rt s to ins truc t on a ll possible lesser include d offe nses, it is our view that the trial c ourt d i d not err in this particula r instance by ref

using to instruc t on attempt. See State v. Marc um, 109 S.W .3d 300, 304 (Tenn. 2003) (holding that an instruction on attempt wa s n o t wa rr anted be cause no evidenc e of attempt was prese nted at trial). E ven if there was a modi cum of evidenc e sugg esting that an attempt had take n place , it is our further vie w that i n t he conte x t of the entire rec ord, the e rror was ha rmless bey ond
a re asonable doubt. See State v. Richmond, 90 S.W .3d 648, 662-63 (Te nn. 2002).

I V.
As his final issue, the def

endant c ontends that the t rial court err ed byordering his sente nces to be serve d consec utively . The state submits that consec utive s entencing is prope r bec ause the defe ndant qualifies a s a dang erous of fende r. See Te nn. Code Ann. § 40-35- 114(b)( 4).

When there is a c halleng e to the leng th, r ang e, or manner of ser vice of

a sente nce, it is the duty of this court to conduc t a de novo revie w with a pre sumption t hat the dete rminations made by the tr ia l c ou r t ar e c o rr e c t

. T e n n

. C o d e A n n

. § 4 0

- 3 5

- 4 0 1 ( d ) ( 2 0 0 3 )

. T h i s p r e s u m p t i o n is "c onditioned upon the aff

irmative showing in the record that the trial court conside red the sentenc ing principles and a ll releva nt f acts and circ umstances." State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 19 91 ); se e Sta te v. Jone s, 88 3 S. W.2 d 5 97 , 6 00 (T e nn . 1 99 4) . " I f the tr ia l c ou rt app lie s in app ro pr ia te fac tors or otherw ise fails to follow the 1989 Sentenc ing A ct, the pre sumption of cor rec tness falls." State v. Shelton, 854 S.W .2d 116, 123 (Tenn. Crim. App. 1992). The Sente ncing Commi ssion Comments prov i d e t h at t h e burde n is on the defe ndant to show the impropriety of the sente nce. Te nn . Co de An n. § 4 0- 35 -4 01 (2 00 3) , Se nte nc ing Com mis sio n Co mme nts

. Our re view re quires an a naly sis of (1) the evidenc e, if any , rec eived at the trial and sente ncing hearing; ( 2) the pre sentenc e re port; (3) the principles of sente ncing and the ar gu m en t s of counse lT he f i rs t fo ur cr i t eri a are fo und in G ray

. A fi f t h c at ego ry in G ray , ba sed o n a s p eci f i c num b er of

pri o r f el o ny 1

con v i ct i on s , ma y e n h an ce t h e s en t en ce r an g e bu t i s n o l on g er a l i s t ed cr i t er i on

. Se e T en n

. Code An n

. § 40- 35

- 1 1 5, S en t en cing C o m m i ssi o n C o m m en t s.
-7- relative to sentenc ing alternatives; (4) the nature and cha rac teristics of the of

fense ; (5) any

mitigating or enha ncing fac tors; (6) any statements made by

the def endant in his own beha lf; and (7) the def e n d a n t' s p o te n ti a l f

o r r e h ab il it a ti o n o r tr e a tm e n t. T e n n

. Co d e A n n

. § § 4 0

- 3 5

- 1 0 2 , - 1 0 3 , -210 (2003); State v. Smith, 735 S .W.2d 859, 863 (Tenn. Crim. App. 1987).

Prior to the enac tment o f t h e C ri minal Sentencing Reform Ac t of 1989, the limited classifications for the imposition of consecutive sentences were set out in Gray v. State, 538 S.W .2d 39 1, 39 3 ( Te nn . 1 97 6) . I n that c a se , ou r su pr e me c ou rt ru le d that a g g ra vatin g c ir c ums ta nc e s mu st be pre sent befor e plac ement in any one of the classifications. L ater , in State v. Tay lor, 739 S.W .2d 227 (Tenn. 1987) , our high court established an additional cate g ory for those defe ndants convicte d of two or more statutory

offe nses involving se x ual abuse of m inors. There wer e, however, a dditional words of c aution:
[C]ons e c uti ve se nte nc e s sh ou ld n ot r ou tin e ly be imp os e d .

. . a nd

. . . th e a g g re g a te maxi mum of consec utive terms must be rea sonably re lated to the seve rity

of the offe nses involved.
Tay lor, 739 S.W .2d at 230. The Sente ncing Commi ssion Com ments adopted t h e ca utionary la ng ua g e . T e nn . Co de An n. § 40- 35 -1 15 , Sen te nc ing Com mis sio n Comme nts

. Th e 19 89 Ac t is , in
essenc e, the codification of the hol dings in Gra y and Ta y lor; consec utive sentenc es may be imposed in the d i s cr et ion of the trial court only upon a dete rmination that one or more of the following
c ri te ri a e xist:

1
(1 ) T he de fe nd a nt i s a pr of e ssi on a l c ri min a l wh o ha s k no wi ng ly de vo te d h ims e lf

to criminal ac ts as a major sour ce of livelihood; (2) The defe ndant is an off ender whose re cord of

criminal ac tivityis ex tensive; ( 3 ) T h e d e f

e n d a n ti s a

d a n g e r o u s m e n t a l l y ab n o r m a l p e r s o n s o d e c l ar e d b y a c omp e tent ps y c hiatr ist

wh o c on c lud e s a s a

re su lt o f an in ve sti g a tio n p ri or to sentenc ing that the defendant' s criminal conduc t has bee n char acte rized by a pattern of re pe tit ive or

c omp uls ive be ha vio r w ith he e dle ss i nd if fe re nc e to c on se qu e nc e s; (4) The defe ndant is a dang erous of fe n d er wh ose beha vior indicates little or no
re g ardfo r h uma n lif

e , 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 high; (5) The defe ndant is convicted of two (2) or more statutory

offe nses involving se x ual abuse of a minor wi th consideration of the ag g ravating c ircumstance s arising from the re lationship between the def en d an t and victim or victims, the time span of defe ndant' s undetec ted sexual activity , the nature and scope of the sexual acts and the
e xten t of the re sid ua l, p hy sic a l a ndme nta l dama g e to the vic tim or vic tim s; (6) The defe ndant is sentence d for a n offe nse committed while on probation; or-8-

(7 ) T he de fe nd a nt i s se nte nc e d f or c ri min a l c on te mpt

. Tenn. Code Ann. § 40- 35-115(b) (2003).
The leng th of the sentenc e, whe n consec utive in nature, must be “ justlydeser ved in re lation to the seriousness of the o ff en s e,” T enn. Code Ann. § 40- 35-102(1) , and “no g reater than tha t deser ved” under the circ umstances, Tenn. Code Ann. § 40-35- 103(2); State v. L ane, 3 S.W.3d 456 (Tenn. 1999)

. Th e tr ia l c ou rt

or de re d c on se c uti ve se nte nc e s o n th e fo llo wi ng g ro un ds :
[T] his defe ndant .

. . is a dange rous offender

. He se t this up . . . , t hey met with the other pe rson that was w ith him and asked him about g oing with him to this loca tion,
a ndhe plann e d th is h ims e lf . H e wa s th e le a de r .

. . a ndwh e n h e g ot the re , a pp are ntl y the other ma n might not have known what he was g o ing to do in terms of all the circ umstances, but he a ccoste d the victim in this c ase at the truck a nd started blasting him

. The victim had a

friend with him on the other side in the truc k . . . who was struck, and it [further] appears to me that this defe ndant is a dang erous of fende r ba se d o n .

. . his his tory

of ars on . A rs on is a

da sta rd ly of fe ns e that c ou ld not

on ly kil l persons whe re the fire is started but the whole community could be wipe d out by

an ars on ist

. . . . So the [c]o urt f in ds th at he is a

da ng e r t o th e c ommun ity a ndthat hi s actions indicate that he would be dang erous if he is out ag ain.

. . . . And the [c] ourt fee ls ba sed on this de fenda nt's actions[,] the dang erous nature
o f h i s ac t i v i t y

t h at k i l l ed o n e m an an d al m o s t k i l l ed an o t h er , t h e o t h erm an ca rr y [ i n g]
a bullet that's so close they can' t ta ke it out, [t he] f

act that he has a history

of violence . . . [and] arson[,] t he [c]ourt . . . will run [the sentence s] consecutive . . . .

I n Gra y , our supreme court ruled that "[t]he decision t o impose consec utive sentenc es whe n crimes inher ently

dang erous are involved should be based upon the prese nce of ag g ravating circ umstances." Gra y , 538 S.W .2d at 393. I n State v. Wil kerson, 905 S.W.2d 9 33, 938 (Tenn. 1995), our hig h court re aff irmed that principle, holding that consec utive s e n te n c e s c an n o t b erequire d of the da ng erous of

fende r " unless the terms re asonably relate[] to the severity

of the off

enses committed and ar e n ec essary in order to pr otect the public ( society ) fr om further criminal ac ts by those persons who resort to ag g ravated criminal conduct." The Wilkerson dec ision, which modified somewhat the stric t fac tual g uidelines for c onsecutive se ntencing adopted in State v. Woods, 814 S.W .2d 378, 380 (Tenn. Crim. App. 1991), desc ribed sente ncing as a " human proc ess that neither
can nor should be reduc ed to a se t of fixed and mecha nical rule s." 905 S.W.2d at 938.

I n determining that the defe ndant qualified for consec utive sentenc ing, the trial court f ound that a n e xten de d s e ntence rea so na bly re la te d to the se ve ri ty

of the of fe ns e s a ndwa s n e c e ssa

ry to protec t the public ag ainst further criminal cond u ct by

the def endant. F urthermor e, the r ecor d-9-

establis h es t h at consecutive sentenc ing is a ppropriate . As the trial court observed, the defe ndant p l a n n e d t h e r o b b e r y, r e c ru i t e d a c c o m p l i c e s , a n d w a s t h e l e a d e r i n t h e c o m m i s s i o n o f

t h e r o b b e r y. I n a populated a

rea , the def

endant shot and killed the vic tim from close ra ng e and a lso sho t the pa sse ng e r i n th e ve hic le

. Se e Ti mothy Al le n Mo or e , No

. M2 00 0- 02 93 3- CCA -R 3- CD (T e nn . Crim. Ap p. , at Nas hv ill e , Jan . 1 1, 20 02 ) ( " [Arme d r ob be ry ] is a ve ry se ri ou s c ri me , a g a ins t w hic h li ttl e pr ote c tio n is po ssi ble , a ndtho se wh o c omm it a rm e d r ob be ri e s u po n inno c e nt [vic tim s] ar e , a lmo st by definition, ' dang erous offe nders.' ")

. I n our view, the defe ndant' s behavior demonstrated little or no reg ard f

or human life a nd no hesitation about committing a c rime in which the risk to human life
wa s h ig h. Th e e ff

e c tiv e se nte nc e re a so na

bly re la te s to the se ri ou sn e ss o f the offe ns e s a ndis
ne c e ssa ry to p ro te c t th e pu bli c fr om the de fe nd a nt.

Acc ording ly , the judg ments of the trial c ourt areaff irmed.

___________________________________ GARY R. WADE, PRES I DING JUDGE