### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs F eb ru ar y 7, 200 6



### STAT E O F T EN NE SSEE v. LA RRY PA YNE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. 04-01217 Joseph B. Dailey, Jud ge

No. W2005-00679-C CA-R 3-CD - F iled Jun e 1, 2006

A Shelby CountyCriminal Court juryconvicted the appellant of four c ounts of ag g ravated robbe ry
a g a ins t tw o v ic tim s, a ndthe app e lla nt r e c e ive d a n e ff e c tiv e thi rt y -s ix-y e ar s e nte nc e . I n th is a pp e a l, the appe llant claims (1) that the e vidence is insuff icient to support the convictions; (2) that the tria l
court e rre d by

requiring Detention R esponse Team personnel to sit next to him in the courtroom and while he testified; and (3) that his sentenc es ar e excessive. Af ter a thoroug h revie w of the r ecor d,

we c on c lud e that th e fo ur c on vi c tio ns sh ou ld b e me rg e d in to t wo c on vic tio ns a ndthat th e c a se should be rema nded for

entry of cor rec ted judg ments consistent with th i s o p i n i on. I n all other respe cts, the judg ments of the trial c ourt are aff irmed.

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

the Cr im inal Cou rt ar e Affi rm ed as M odi fie d and C as e Re m ande d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which D AVI D H. W ELLES and J ERRY L. S MI TH , J J
., joined.

Gar land Erg uden and Robe rt Wil son J ones (on appea l) and J ennife r J ohnson and Tre nt Hall (at trial)
, Memphis, Tennesse e, for the appe llant, L arry

Pay ne.

Paul G. Summers, Attorney Gene ral a nd Reporter ; L eslie Price, A ssistan t A tt o rn ey Gene ral; Will iam L . Gibbons, District Attorney Gene ral; and G reg Gilbert, Assistant District Attorney Gene ral, for

the appellee , State of Tenne ssee.

OP IN ION

I. F ac tu al B ac kgr ound

On the nig ht o f O c tob e r 2 4, 20 03 , E mma B ro wn wa s wor

kin g a t M & T Ba

ke ry in M e mph is. At trial, Br own testified that business wa s slow and t hat s he and sever al friends wer e play ing c ards in the bakery ’s bac k room. The ba kery was ope n twenty -four

hours p er d ay , but the doors wer e loc ke d a t ni g ht. Ab ou t midn ig ht, a ma n na me d Da vidc a me to the fr on t do or a ndra ng the do or

be ll.-2-

Br own knew D avid’s aunt, De borah G riffin, and had seen David in the s tore about one we ek ea rlier. B ro wn we nt t o th e fr on t do or a nd op e ne d it. As Da vid c a me int o th e bake ry , a ma n w ith a

g un c a me from ar ound the side of the building . Br own tried to close the door , but David pushed he r aside, a nd the g unman ca me into the store. Br own stated that the g unman was wea ring a bandana acr oss the bottom of his face but that she could see his face “fr om ey es up.” She sa id that the g unman’s “he ad was kind of lar g e,” that he had a low-cut Af

ro hairsty le, and that she had neve r see n him before

.

Br own testified that the g unman put the g un to her he ad, dema nded money , and pulled her hair. Da vid took Brown’ s purse off a table a nd g ot money

out of it, and the gunman got money out of B rown’s c oat pocke t. The g unman aske d who owned the Dodg e Dur ang o parke d outside and demande d the key s or he “ was g oing to kill this bitch.” Marvin Qualls, who had been pla y ing c ards with Brow n, g ave the g unman the key s. The gunman a lso demanded Q ualls’ wallet. A third ma n ran into the store briefly

but ran out, and the g unman and David ran out of the store. Br own stated that the robbe ry

lasted ten to fifte en minutes and that she w aited a few minutes before telephoning the police.

Br own testified that she g ave a statement to Serg eant Joshua Clay of the Memphis Police Depa rtment. On Nove mber 1, 2003, Serg eant Clay showed Brown a photog raphic arr ay , and B rown picked out Da vid Hicks’ photog raph. She pic ked out the appe llant’s photogr aph from a sec ond arr ay and identified him as the maske d g unman. B rown said that she picked out the a ppellant’s photogr aph “[b]ecause of t he way his fore head w as made on the picture s, I could re cog nize – that’s what I was g oing by .” She said she a lso identifi ed the appe llant from a lineup at the preliminary hearing in g ener al sessions court. At the conc lusion of her dire ct testimony , Br own identified the appellant in court as the g unman.

On cr oss-examination, Brown testified that she gave the police a description of the g unman and that the g unman was a bout five fe et, six inches tall; weig hed about one hundred thirty -five pounds; and had a m ed i um build. S he said she did not re member te lling Serg eant Clay that she could not rec og nize the gunma n beca use he w as we aring a banda na. She ac knowledg ed that whe n the g unman first came i nto the s tore, she was only able to look at him for five to ten se conds. She said that no surveillanc e ca mera s were in the bakery but that she was certain the appe llant was the g unman.
Marvin Qua lls testified that on the night of the robbery , he and some other pe ople wer e play ing c ards a t the bakery

. A man named David ra ng the doorbe ll, and Emma Br own unlocked the do or . Q ua lls ha d s e e n Da vid in the sto re be fo re . B ro wn op e ne d th e do or , anda se c on d ma n w ith a handg un “bum-rushe d” her . The g unman was wea ring a bandana acr oss his fa ce; ha d a medium build; was five fe et, six inches to five f eet, e ight inche s tall; weig hed one hundred thi rty -five to one hundred f ifty pounds; and had a

medium complexi on. The g un man pointed the g un at B rown; g rabbe d her by the hair; and said, “B itch, y ou know what I came for. Give me that money , Bitch, or else I ’m g oing to blow y our damn brains out.” Br own was c ry ing a nd scre aming . The g unman
c a l l e d o u tQ u a l l s ’ f

i r s t n a m e , b u t Q u a l l s d i d n o t k n o w t h e g u n m a n

. T h e g u n m a n d e m a n d e d t h e k e ys to the Du ra ng o p ark e d outs ide , an d Qua lls g a ve the m to him . T he g un ma n a lso de ma nd e d Q ua lls ’-3-

money , and Qua lls g ave the g unman his wallet and the money he had in his pocke t. Qualls said that Br own was ly ing on t h e fl oor, that the g unman was standing over he r, and tha t he believe d the g unman would have shot her if he had not g iven t he g unman the key s to the Durang o. The g unman said, “Any

body come through this door in the ne x t five/ten minutes, y ou’re g oing to g et killed.” David and the g unman left the ba kery , and Qua lls heard the D urang o pull away

. Q u a l l s t e s t i f

i e d t h a th e g a v e a

s t a t e m e n tt o S e r g e a n t C l a y a n d l o o k e d a t a p h o t o g r ap h i c arr a y. He picke d out David Hicks’ photog raph, but c ould not identify the g unman. Qualls re cog nized the appellant a s the g unman during the pre liminary hearing in g ener al sessions court. He said that the appellant wa s sitti ng with some other inmates a t the hearing a nd that “[h] is ey es and his, y ou know, was kind of puf

fy around h er e, an d t h e p i cture [i n the ar ray ] di dn’t show that.” He said that the

ap p e l l a n t ’ s “ f

a te ye b r o w s ” w e r e a d i s t i n g u i s h ab l e f e a t u r e

. A tt h e c o n c l u s i o n o f h i s d i r e c tt e s t i m o n y, Qualls identified the a

ppellant in court a s the g unman.

On c ro ss- e xami na tio n, Qua lls te sti fi e d th a t w he n D a vidHi c ks ra ng the do or be ll, Qu a lls walked to the front of the store with Br own. Afte r the g unman ra n into the store, Qualls ra n into the ba c k r oo m, a nd the app e lla nt dr a g g e d B ro wn by he r ha ir int o the ro om. Th e app e lla nt d id n ot t e ll him to li e down. Howeve r, Qua lls acknowledg ed g iving a statement to police on Oc tober 27, 2003, in w hic h h e sa id the g un ma n to ld e ve ry on e to lie on the fl oo r. He de nie d tel lin g po lic e that he did
not s ee the g unman’s fa ce but a cknowledg ed that he w as unable to identify the g unman from the photogr aphic a

rra y . He sa id that he was not in the c ourtroom during Emma Br own’s testimony at the pre liminary

hearing a nd t h at he did not see Br own identify the appe llant at the hea

ring . He estimated that the rob b ery lasted three to five minutes and ac knowledg ed that he a nd Br own discussed the fa cts of the c ase.
Serg eant Joshua Clay

of the Memphis Police De partment’s r obbery bureau testified that he investigated the robbe ries. Emma B rown tol d Serg eant Clay that she let Da vid into the store and g ave Ser g eant Clay

the name of

David’s aunt, Deborah Griff in. Ser g eant Clay talked with Griff in, and Griffin g ave Serg eant Cl ay the names of David Hicks and Hicks’ two half-br others, the a ppellant and D’Andr e Scott, who “mig ht ha ve put [Hicks] up to thi s.” Grif fin also told Serg eant Clay that the appe llant and Scott lived at the Watkins Manor apa rtment complex.

Serg eant Clay

testi fi ed t h at as a result of an a nony mous telephone c all, he lea rned tha t Qualls’ Dur ang o was a t 864 North Second S tree t and that the “people who wer e re sponsible” wer e sitti ng in the Dura ng o and play ing loud music. S erg eant Cl ay and his partne r went to the scene a nd saw the D u ra n go, which wa s about to back out of the parking lot. The appe llant was driving the vehicle, a nd six teen- y ear -old Michae l Coll ins was hi s passeng er. A patrol car stopped the Dura ng o, and t h e ap p e ll a n t t o ldSe r g e a n t C lay th a t h e h a d ju s t p ic k e d u p Co ll in s a n d Co ll in s ’ f a mi ly from churc h. Serg eant Clay

later le arne d that the appe llant had taken the Colli ns family to churc h and that Colli ns was not involved in the robbe ries. The appellant told Serg ean t C l ay t h at he f ound the Dura ng o with the doors open and the key in the i g nition at t he W atkins Manor a partment c omplex and that he took the vehi cl e j o y ri ding. Ser g eant Clay said that Emma B rown c ame to the police-4-

de pa rt me nt a nd se le c te d the app e lla nt’ s pho tog ra ph fr om a p ho tog ra

ph ic arr a y . M arv in Q ua lls a lso looked at a photog raphic arr ay but only selec ted David Hic ks’ photog raph.

Th e the n tw e nty -f

ou r- y e ar- oldapp e llant testif ie d th a t E mma

B ro wn kn e w s ome of

his rela tives and used t o b u y cr ac kcoca ine from him. About two wee ks befor e the r obberie s, the

app e lla nt a ndHi c ks so ld c oc a ine to B ro wn

. Du ri ng the sa le , Br ow n told the app e lla nt tha t he r b os s, who owned the bakery , was “ messing a round with her mone y ” and tha t she wante d to set up a

ro bb e ry

. Th e app e lla nt tol d B ro wn that “ I do n’ t do thi ng s li ke that ju st f or fr e e ” a ndthat he ha d to ha ve the mon e y

in a dv a nc e . B ro wn tol d th e app e lla nt tha t sh e did no t hav e the mon e y to p a y him
, a ndthe app e lla nt r e fu se d to c omm it the ro bb e ry . O n O c tober 24 , 200 3, the app e lla nt w e nt t o Debor ah Griffin’s house. D avid Hicks wa s there but left with some men. About 11:30 p.m., Hicks and a ma n named Ni ck returne d with the Dura ng o. Nick had pr eviously boug ht coca ine from the appellant, a nd the appe llant thought Nick ow ned the Dura ng o. The next day , the appe llant used the Dura ng o to take the Collins family to c hurch. After a police car stopped the appe llant, the appellant denied knowing anything about the robberies. He said that at t he ti me of the stop, he w as re turning the Dura ng o to Nick. He acknowledg ed having prior convictions for ag g ravated burglary and fe lony the ft

.

On cr oss-examination, the appellant ac knowledg ed that he was a cra ck coca ine dea ler a nd that he had been selling cra ck since he was twelve or thirteen y ear s old. He sa id that Nick swappe d the Dura ng o for cra ck but that he was planning to return the D urang o to Nick. The a ppellant denied telling a pol i ce o ffice r that a ma n named I saac robbed the bakery with David Hicks a nd D’Andr e Scott. He said that he ne ver g ave a s tatement to S erg eant Clay and that he ne ver told Clay he found
t h e D u ra n go

. He s ai dt h at wh en h e s aw t h e p o l i ce ca r f o l l o wi n g h i m , h e fi gu re d o u t t h at t h e D u ra n go was stolen. He said that he ha d never been to the ba

kery befor e and tha t he did not know if Hicks and Nick pa

rticipated in the r obberie s. When asked if he knew who committed the robberies, the appellant sa id, “I

just heard r

umors.” The jury convicted the appellant of two counts of ag g ravated

ro bb e ry , a

Cla ss B fe lon y , a g a ins t E mma B ro wn a ndtw o c ou nts of a g g ra vated rob bery a g a ins t Ma rv in Q ua lls

.

II. Ana lys is

A. Sufficienc y

of the Evidenc e

The a ppellant claims that the evidenc e is insuff icient to support the convictions bec ause no proof other than the ey ewitnesses’ identifications place him at the scene of the crimes. He notes that no co-de fenda nts testified ag ainst him, that no finge rprints wer e found on the bakery doors, and that none of the stolen property was re cover ed fr om him. He contends that his convictions rest sol ely on Br own’s and Q ualls’ identifica tions and that a note se nt by the jury to the trial court dur ing de lib e rati on s “re fl e c ts the e sse nti a l la c k o f c on fi de nc e wh ic h c a n b e pla c e d in the vic tim s’ identifications.” While the appe llant conce des that he w as found with Qualls’ stolen vehicle afte r the ro bb e ri e s, he arg ue s th a t “ dr ug ‘p a wn s’ fo r v e hic le s a

re a c omm on oc c ur

re nc e .” Th e Sta te c la ims that the evidenc e is sufficie nt. We ag ree with the State.-5-

When an appe llant challeng es the suff iciency of t h e convic ting e vidence , the standar d for

re vie w b y a n a pp e lla te c ou rt is “w he the r, a ft e r vie wi ng the e vid e nc e in the lig ht m os t f a vo ra ble to the prosec ution, any

rational trier

of fa ct could have found the e ssential elements of the crime be y ond

a re a so na ble do ub t.” Jac ks on v. Vi rg ini a , 443 U. S. 307 , 319 , 9 9 S. Ct. 27 81 , 2 78 9 ( 19 79 ); Te nn . R. Ap p. P. 1 3( e ). Th e 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 evi den ce an d a ll

rea sonable or le g itimate infere nces w hich may be drawn t here from. State v. Cabba g e, 571 S.W.2d 832, 835 (Tenn. 1978)

. Questions conce rning the cr edibilityof witnesses a nd the weig ht and value
to be afforde d the evidence, as well as all fac tual issues raised by the evidence, a re r esolved by

the trier of fac t. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). T his court will not rewe igh or

ree valuate the evidenc e, nor will this court subst itute its infere nces drawn f rom the circ umstantial evidenc e for

those i n fe re nces dr awn by the jury . I d. Be cause a jury conviction re moves the presumption of innocenc e with w hich a defe ndant is init ially cloake d at trial and r eplac es it on appea l with one of g uilt, a convicted de fenda nt has the burde n of demonstra ting to this court that the evidenc e is insufficient. State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982).

As cha rg ed in the ind i ct ments, ag g ravated robbe ry is defined a s robbery

“[a]ccomplished with a dea dly

wea pon.” Te nn. Cod e An n

. § 3 9-13-402( a)( 1). Robbery “is the intentional or knowing theft of pr operty from the pe rson of a nother by violence or

putting the pe rson in fea r.” Tenn. Code Ann. § 39- 13-401.

I n the i n s t an t case, Emma B rown testified tha t she opene d the bake ry door for David, that David pushed he r, and tha t a g unman ra n into the store. The man put a g un to Brow n’s hea d, took

mon e y fr om h e r a nd Ma

rv in Qu a lls
, a nd le ft in Qu a lls ’ Do dg e Du ra ng o. Sho rt ly a ft e r the ro bb e ri e s, Br own p i ck ed t he appe llant’s photogr aph fr om a photog raphic arr ay . She also identified the appellant a t the preliminary hearin g an d at trial. Althoug h Marvin Qua lls did not selec t the appellant’ s photogr aph fr om a photog raphic arr ay , he identified the appellant at the preliminary hearing a nd at trial. The day afte r the robbe ries, Serg eant Clay found the appellant driving the stolen Dura ng o. The appellant admitted driving the Dura ng o but c laimed that he and a man named N ick swappe d the vehicle for dr ug s. We conclude that the appellant’s being found in possession of the Dura ng o, coupled with the witnesse s’ identifica tions of him as the g unman, provide suf ficient proof of his g uilt.

As the appe llant points out in his brief, the jury sent a note to the tria l court during jury deliberations that stated, “[H] ung on witness’ I D of arme d robber - is there a lesser

char g e - ma y

be

rec eiving stolen g oods - possession of stolen property ? ” The trial court responde d that the jury had

rec eived a ll the proof in the ca se and tha t it shoul d resume de liberations. As i t had in the orig inal char g e, the tria l court also stated, in pe rtinent part,

I f, upon all the proof

, y ou have a

rea s onable doubt of the defe ndant’s g uilt of the offe nses charg e[d] and included unde r the law define d and explained to y ou, it is y our duty to acquit him, and y our verdic t would be, “We, the jury , find the def endant not g uilty. . . .”-6-

Obviously , the jury

resolved its question re g arding the g unman’s identity in favor of the S tate. The jury , as wa s its prerog ative, chose to a ccr edit the victims’ identifications of the a ppellant as one of the ro bb e rs . We c on c lud e that th e e vid e nc e is s uf fi c ie nt t o s up po rt

the c on vic tio ns

. We note, howeve r, that the a ppellant’s dual c onvictions for ea ch victim cannot stand. Count one of the indictment alleg es, in pertinent pa rt, that the appe llant

did unla wfully
, knowing ly
, and violently
, by use of a deadly wea pon, to w it: handg uns, obtain from the person of EMMA BROWN: a sum of mon e y [,] pr op e r g oo ds a ndc ha tte ls o f EMMA BROWN, in violation of T.C.A. 39-13-402, ag ainst the peac e and dignityo f t he State of Tenne ssee.
Count two alleg es that the a ppellant

di d u n l a w f

u l l y a n d k n o w i n g l y , b y u s e o f a d e a d l y w e ap o n , to w it: handg un s , put EMMA BROWN in fea r and obta in from the per son of EMMA B ROWN: a sum of money [,] proper g oods and chattels of EMMA BROWN, in violation of T.C.A. 39-13-402, a g ai n s t t h e pea ce and dig nity

of the State of T ennesse e.

Counts three and f

our cha rg e the a ppellant with the ag g ravated robbe ries of Ma rvin Qualls. Other than the victims’ names, the wording in count three is identical to that in count one, and the wording in court four

is identical to that in count two. Howeve r, counts one and t wo allege the s ame of fense
, i.e., the ag g ravated robbe ry of Emma B rown, a nd counts three and four alleg e the same off

ense, i.e
., the a g g ra va te d r ob be ry

of Ma rv in Q ua lls . A c c or din g ly , th e c on vic tio ns fo r co un ts one a nd tw o mu st be mer g ed, and the convictions for c ounts three a nd four must be mer g ed.

B. D etention Response Te am
Next, the appellant claims t hat the trial c ourt err ed by requiring uniformed De tention Re sp on se Te a m ( DR T) pe rs on ne l to sit on e ith e r sid e of him in the c ou rt ro om a nd to sta ndne xt to him du ri ng his te sti mon y

. He c on te nd s that the ir pr e se nc e pr e jud ic e d the jury a g a ins t him . T he Sta te claims that the appe llant waived this issue for failing to object at trial and that, in any event, ther e is no evidence of pre

judice. We conc lude that the appe llant is not entit led to relief

.

B e fo re the Sta te c a lle d it s f ir st w itn e ss, the app e lla nt as ke d tha t the tr ia l c ou rt app oin t hi m
a new attorney

beca use “w e, y ou know, have a conf lict of interest.” The a

ppellant told the trial court that hi s a tto rn e y

ha d b e e n o n h is c a se fo r o nly on e we e k, that he wa s n ot g oin g to b e a llo we d to prese nt his alibi wit ness, that he kne w more a bout his c as e t h an h is attorney , and that “the re’ s no

u n d er s t an d i n g b etwee n us.” The a ppellant aske d for time to hire a n attorney , but the trial court ref used, noting that the ca se had be en pending for ove r a y ear and that the a ppellant’s counse l “is an outstanding attorney

. . . fully prepa red to g o forwa

rd with this c ase.” The following exchang e then-7-

occur red:

[Appellant] : I ’m not g oing to g o to tria l with her. I ’m not g oing to tria l with her.

T H E C O U R T : Yo u ar e g oin g t o t r i a l w i t h h e r , a n d I ’ l l j u st

say this: I f y ou act up, y o u ’l l be take n out of the c ou rt ro om, a ndy ou wo n’ t be in c ou rt

. [Appellant] : I

don’t ca re nothing about t h at, but I ’m not g oing to tria l with her.

. . . . [Appellant] : You’re g oing to f [***] me over

.

THE COURT: Okay

. I f y ou speak up or act up, y ou’re g oing

to be taken out of the courtr oom. We’re g oing to go f orwa rd with the trial this wee k.

. . . . [Appellant] : Do what y ou g ot - I don’t g ive a f [***] about what y o u go nna do. I ’m not g oing to tria l with her. She ’s be e n o n th is c a se fo r - c ome to see me a

wee k befor e I ’m set for trial and then tell me t his old bullshit these folks trying
to do to me , a nd no w sa y s sh e ’s tr y ing to h e lp

me - a in’t nothing she he lped me with. Get f[* ** ]edof

f l ike that - c ra zy

a s h e ll.

Th e app e lla nt tol d the tr ia l cou rt to “ [t]ak e me do wn sta ir s, ma n, ” a ndthe tr ia l c ou rt tol d s e c ur ity

to “assist Mr. Pay ne bac k to the lockup.” The trial court talke d briefly with the appellant’ s attorney about t h e ap p el lant’s alibi claim; asked tha t security bring the appe llant to the doorway of the

c ou rt ro om; a ndtol d th e app e lla nt, “ Mr . Pa y ne , w e do tr y to o pe rate in a civ ilizedma nn e r i n th is courtroom, a nd that’s why y ou’re g oing to sit bac k in loc kup while we try this case.” The trial c ourt tried to explain the situation reg arding the appellant’s alibi witness, but the appellant said, “ I don’t want to hea

r this shit, m an” a nd asked to be taken ba ck downstairs.

T h e trial court stated that bec ause of the appe llant’s “conduc t and his lang uag e, he ha s fo rf e ite d th e ri g ht t o r e ma in in the c ou rt ro om. I thi nk he ’s a se c ur ity thr e a t. I thi nk he ’s a thr e a t to [hi s attorney ] who has to sit rig ht in front of him.” The trial court determined that when the State’ s
w i t n e s s e s w a n t e d t o m ak e a n i n

- c o u r ti d e n t i f i c a t i o n o f t h e m a s k e d r o b b e r

d u r i n g t h e i r

t e s t i m o n y,-8-

se c ur ity c ou ld b ri ng the app e lla nt int o the c ou rt ro om a nd the n e sc ort hi m ou t a ft e r the ide nti fi c a tio ns

. When the jury enter ed the c ourtroom, the trial c ourt explained that the appe llant had bee n remove d fr om t he c o u r t r o o m d u e t o h i s c o n d u c t a n d t h a t t h e j u r y s h o u l d n o t h o l d h i s ab s e n c e a g a i n s t hi m. During Emma Br own’s testimony
, the State asked he r if she w ould rec og nize the gunma n if she saw him, and she said, “I

probably would.” The trial court a sked that the a ppel l an t step into the
courtr o o m , and a deputy

approa ched the bench a nd said, “He ’s re fusing to come in her e. We ca n dr a g him in h e re , b ut I

do n’ t kn ow . H e ma y

c a us e a ru c ku s. ” With ou t in c ide nt, the app e lla nt c a me into the courtroom, and B rown identified him a s the g unman. During Marvin Qua lls’ testimony , the State had sec urity

bring the appe llant back into t he courtroom, and Qualls’ also identified hi m as the g unman.

After the def ense c ross-examined Qualls, t h e appellant se nt word to his attorney that he would behave if allowed to re turn to the courtroom. The trial c ourt allowed the appellant to re turn but stated,

I

do fe e l, g ive n h is c on du c t a nd his de me a no r that he is a le g iti ma te and serious threat to people a round him if he’s not close ly g uarde d. For the re cord, just ironi ca l l y , this very wee k there ’s a tria l g oing on in Division X of these courts trying a man ac cu sed of murdering his attorney , Mr. Robert Free dman, a couple of y ear s ag o. And so these thre ats and this c onduct - this type of c onduct should be vie we d s e ri ou sly

by all . A ndle a st i f the app e llate c ou rt s, if thi s matter e ver g oes up on appea l, fee l that trial courts over rea ct and it’s too burdensome or too inc riminating to ha ve DRT people sitting on either side of

the def endant, I view these types of a cti o n s very seriously and view t h i s man as a

definite potential thre at to any one
around hi m. So, we wi ll b ri ng him in, a ndI wi ll h a ve the DR T pe op le sit tin g on e ith e r s ide of him

.

Al tho ug h n ot r e fl e c te d in the re c or d, the app e lla nt’ s bri e f cl a ims that unif or me d DRT pe rs on ne l a lso
sto odne xt to h im d ur ing his te sti mon y . He c on te nd s th a t a lth ou g h h e wa s n ot “ ‘s ha c kle d’ wi th ir on ,” the DR T p e rs on ne l w e re the e qu iva le nt o f s ha c kle s a nd“ po iso ne d” his ri g ht t o a fa ir tr ia l.

B oththe app e lla nt’ s and the Sta te ’s br ie fs c ite Ho lbr oo k v . F ly nn , 4 75 U. S. 5 60 , 1 06 S. Ct

. 13 40 (1 98 6) , in wh ic h th e Un ite d St a te s Su pr e me Cou rt he ld tha t a

pe tit ion e r w a s not inh e re ntl y pr e jud ic e d b y

the pr e se nc e of

fo ur un if or me d sta te tr oo pe rs du ri ng his a ndhis fi ve c o- de fe nd a nts ’ two-month trial for arme d robbery

. I n that case , the trial court ha d held that the off icer s’ pre sence
was ne cessa

ry beca use courtroom security

was ove rextended at the time. I d. at 563, 106 S. Ct at 1343. Howeve r, unlike the prese nt c ase, the office rs in Holbrook sat behind the de fenda nts and wer e separ ated from them by the “bar.” I d. at 562, 106 S. Ct. at 1342. The Supreme Court held that when

a courtroom security

arr ang ement is cha lleng ed as inhe rently prejudicia l, the question become s whether there is “an una cce ptable risk . .

. of impermissible f actor s coming into play .” I d. at 570, 106 S. Ct . at 1346-47. The Court expl ained,-9- We do not mini miz e the thre at that a r oomful of uniformed and armed policemen mig ht pose to a def end an t’s chanc es of

re c e ivi ng a

fa ir tr ia l. B ut we simply

c a nn ot f inda n u na c c e pta

ble ri sk of prejudice in the s pecta cle of four suc h office rs quietly sitti ng in the first row of a courtroom’ s specta tor section. Even had the juror s been

awa re that the deploy ment of troopers was not c ommon pr actice

. . . , w e c a nn ot b e lie ve that th e us e of the

. . . f ou r troo pe rs te nd e d to brand responde nt in their ey es “with an unmistakable mark of g uilt.” Four troopers a

re unlikely t o h av e been ta ken as a sign of anything other than a

normal off

icial concern f

or the saf ety and orde r of the proce eding s. I ndeed, any juror who f

or some other

rea son believed defe ndants particula

rly dang erou s might we ll have wonde red w hy the re we reon ly

fo ur arm e d tr oo pe rs fo r the six de fe nd a nts

.

I d. at 571, 106 S. Ct. at 1347 (citations omit ted).

The a ppellant and the State also cite Dec k v. Missouri, 544 U.S. 622, 125 S. Ct. 2007 (2005), a case that involved a defenda nt’s wea ring shackle s in the courtroom. The Supreme Court stated,

There will be case s, of cour se, whe re the se perils of shackling

are un a vo ida

ble . We do no t un de re sti mate th e ne e d to re str a in da ng e ro us de fe nd a nt s to pr e ve nt c ou rt ro om atta c ks , o r the ne e d to g ive tr ia l c ou rt s latitud e in m a kin g ind ivi du a lize d sec ur ity de te rm inatio ns . We are min df ul o f the tr a g e dy

that c a n r e su lt if judge s are not able to protec t themselves and their courtrooms. B ut g iven their pre

judicial eff

ect, due proce ss does not permit the use of visible restra i n t s i f t he trial c ourt has not taken a ccount of the circ umstances of

the particular c ase.

I d. a t 632, 12 5 S. Ct. a t 2014

. Th us , the Cou rt re c og nize d th a t da ng e ro us de fe nd a nts ma y ne e d to be re str a ine d. Ho we ve r, “ a ny su c h d e te rm inatio n mu st b e c a se sp e c if ic ; th a t is to say , it sho uld ref lect particular c oncerns, say specia l security

need s o r escape risks, related to the de fenda nt on trial.” I d. at 633, 125 S. Ct. at 2015. Moreove r, “give n their prejudicial eff ect, due proce ss does not permit the use of

visible r estraints if the trial court has not taken a ccount of the circ umstances of

the particula r ca se.” I d. at 63 2
, 1 2 5 S

. C t . at 2014. I n State v. Robert Hood, No. W2004-01678-CCA-R3-DD, 2005 Tenn. Crim. App. LEXI S 1008, at *51 (J ackson, Sept. 13, 2005), another case involving the use of uniforme d DRT personne l sitting on either side of the de fenda nt du ri ng tr ia l, a

pa ne l of thi s c ou rt c on c lud e d th a t “ the ho ldi ng in De c k v. Mis so ur i is a re a so na ble ru le that should be applied to any restra int impos ed on a c riminal defe ndant in the courtroom.”

Turning to the instant case, w e initially note t hat t he appellant failed to object to t he DRT’s prese nce at trial and t h at t h e fa i lure to make a conte mporane ous objection waive s the issue. See Tenn. R. App. P. 36(a) . I n any event, in lig ht of the particular c ircumstance s of t his case , we c annot-10-

c on c lud e that the tr ia l cou rt abu se d its d isc re tio n b y imp os ing the se a dd iti on a l se c ur ity me a su re s in the courtroom. The appe llant used obscene and inappr opriate la ng uag e wi t h t h e t rial court. The
transcript c onvey s that the appellant was hostile a nd disruptive, interrupting the trial court severa l times. The trial court stated t hat i n light of the appellant’s conduct and demea nor, i t was c oncerned for the de fense attorney ’s safe ty , espec ially beca use she had to sit in front of the appellant during the trial. Althoug h the appe llant contends that the trial c ourt’s re sponse to his a ctions was “ ill judged,” the trial court was in a be tter position than this court to observe the a ppellant’s demea nor and

a t t i t u d e , a n d w e w i l l n o t s e c o n d

- g u e s s i t s f i n d i n g th a tt h e ap p e l l a n tp o s e d a d a n g e r t o h i s a t t o r n e y. We n ote that dur ing the app e lla nt’ s cr os s- e xami na tio n, the Sta te a sk e d him a que sti on abo ut E mma Br own’s being drag g ed by her ha ir, and the a

ppellant aske d the State to repe at the question, say ing that he wa s not pay ing attention. The S tate aske d the appe llant what he wa s thinking about, a nd he stated, “I ’m thinking a

bout my attorney rig ht now,” an ominous re sponse. The a ppel lant cites nothing in the recor d to indicate that the DRT personnel c aused pr ejudice, a nd we c onclude that he is not entitl ed to re lief.

C. Ex cessive Sente nce
Finally , the appellant claims that his sentenc es are ex cessive. Specifica lly
, he conte nds that the tr ia l c ou rt

e rr e d b y se nte nc ing hi m to a lmo st the ma ximum pu nis hme nt w ith in the app lic able

ra nge an d b y

or de ri ng c on se c uti ve se nte nc ing . T he Sta te c la ims that th e tr ia l c ou rt pr op e rl y sentenc ed the a

ppellant. We conclude that the appe llant’s sentenc es ar e not excessive.

No wit nesses testified at t he sentencing hearing. Howeve r, t he trial court relied hea vily on the appellant’ s prese ntence report. Acc ording to the report, the then twenty -four -y ear -old appe llant was sing le, and both of his par ents wer e incarce rate d. The report shows that the appe llant gr aduate d fr om h ig h s c ho ol i n 1 99 8 a ndwo rk e d f or the Un ive rs ity

Clu b of Memp his fr om Ja nu ary 19 98 to De c e mbe r 2 00 0. I n th e re po rt , the app e lla nt sta te d tha t he w a s in g oo d me nta l a ndph y sic a l he a lth and that he did not use illeg al drug s or alcohol. The report shows that the appel l an t has one prior conviction for a g g ravated burg lary and one prior convic tion for theft of pr operty valued ove r $1,000 but less than $10,000. He a lso has misdemeanor c onvictions for di sorder ly conduct a nd solicitation
to c o mm it

a g g r a v a te d b u r g la

r y a n d w a s a d

ju d ic a te d d e li n q u e n t i n ju v e n il e c o u r t f o r a g g r a v a te d

a s s a u l t , u n g o v e r n ab l e b e h a v i o r , a n d t ru a n c y.

Th e tr ia l c ou rt

de te rm ine d th a t g ive n th e app e lla nt’ s two pr ior fe lon y c on vic tio ns , h e wa s a Rang e II offe nder. See Tenn. Code Ann. § 40- 35-106(a )(1) , (c) . The trial c ourt also applied enhanc ement factor (1), t hat t he appellant “has a previous history

of criminal convictions or criminal behavior in add i t i o n to those nece ssary to establish the appropriate ra ng e.” See Tenn. Code Ann. § 40-35-114( 1) (2005). The c ourt enha nced the appellant’ s sentence s by six y ear s, imposing an ei gh t ee n -y ea r s en t en ce fo r ea ch aggr av at ed ro b b er y co n v i ct i o n

. R ega rd i n g co n s ec u t i v e s en t en ci n g, the trial court f

o u n d t he appe llant to be a dang erous of fende r “w ithout a doubt.” The trial c ourt order ed that the a

ppellant s erve the s entenc es for the robberies of Marvin Qualls concur rently to eac h other but conse cutively

to the sentenc es for

the robbe ries of Emma Br own, for an ef fec tive sentenc e of thirty -six y ear s in the Depa rtment of Corre ction.-11-

Appellate r eview of

the leng th, range
, o r m an ner of service of a se ntence is de novo. See Tenn. Code Ann. § 40- 35-401(d) . I n conducting i t s d e n o v o revie w, this court consider s the following fac tors: (1) the evidenc e, if a ny , rec eived a t the trial and the se ntencing hearing; ( 2) the prese ntence report; (3) the princ iples of sentenc ing a nd arg uments as to sentenc ing a lternatives; (4) the nature and cha

rac teristics of the c riminal conduct involved; (5) evidenc e and information offe red by the parties on enhanc ement and mitigating fac tors; (6) any statement by the appe llant in his own behalf ; and (7) the potential for reha bilitation or trea tment. See Tenn. Code Ann. § 40-35-102, - 103, -210; see a lso St ate v. Ashby
, 823 S.W .2d 166, 168 (Tenn. 1991). The burden is on the a ppellant to demonstrate the impropriety of his sentenc es. See Te nn. Code Ann. § 40-35- 401, Sentencing Commi ssion Com ments. Moreove r, if the re cord r evea ls that the trial court a dequate ly considere d
sentenc ing principles and all rele vant facts and circumstance s, this court will acc ord the trial c ourt’s determinations a presumption of cor rec tness. I d. at (d); Ashby , 823 S.W .2d at 169.

The a ppellant claims that t he trial c ourt err ed by sentenc ing him to the nea r maxim um punishment for a Range I I offe nder convicted of a C lass B felony

. Howeve r, t he appe llant makes no arg ument as to why

the trial court improperly enhanc ed his se ntence s and has waived the issue. See Tenn. Ct. Crim . App. R. 10(b) (pr oviding that “ [i ]ss ues which a re not supporte d by

arg ument

. . . w i l l b e t re at ed as wa i v ed i n t h i s co u rt ”)

. T u rn i n g t o t h e i s s u e o f c o n s ec u t i v e s en t en ci n g, Te nn e sse e Cod e An no ta te d sect ion 40 -3 5- 11 5( b) (4 ) p ro vid e s th a t a tr ia l c ou rt

ma y imp os e
consec utive sentenc es if the de fenda nt is convicted of more than one of fense and the tria l court finds by a pre pondera nce of

the evi d en ce t h at the def endant “ is a dang erous of fende r whose be havior indicates little or no re g ard f or human life, and no hesitation about commi tting a crime in which the ri sk to h uma n lif

e is hig h. ” I n Sta te v. Wilk e rs on , 9 05 S.W. 2d93 3, 93 8 ( Te nn . 1 99 5) , o ur su pr e me court he ld that sat isfy ing T ennesse e Code Annota ted sec tion 40-35-115(b)( 4), by itself, was not sufficie nt t o s u s t ai n consecutive sentenc es. I f the de fenda nt is found to be a dang erous of fende r
un de r the statut e , th e tr ia l c ou rt mus t a lso de te rm ine wh e the r the se nte nc e s impo se d a re re a so na

bly rela ted to the seve rity

of the off

enses a nd nece ssary

to protect the public f

rom furthe r crimin al

a c tiv ity by the de fe nd a nt, t he “ Wilk e rs on fa c tor s. ” I d. Mo re ov e r, tr ia l c ou rt s mu st m a ke sp e c if ic finding s reg arding these fa ctors bef ore imposing consec utive sentenc es. State v. L ane, 3 S.W .3d 456, 461 (Tenn. 1999)

.

I n ordering c onsecutive se ntencing , the t ri al co u rt stated that the f acts of this ca se we re “chilling ” and that the appellant “ terrorized” the victims. The court also said,

Un for tu natel y , th e app e llate jud g e s w e re no t a ble to s e e the vic tim s
on the stand, but their lives wer e for ever altere d by

having to endure this ordeal broug ht upon them by Mr. Pay ne and his c ohorts. And the cold, calc ulating manner in w hich he went in and put the g un to her h e a d a n d d e m a n d e d t h e k e ys f r o m h i m a n d c arr i e d o u tt h i s r o b b e r y, I t h i n k
, w o u l d c l e ar l y

e s t ab l i s h h i m a s a

d a n g e r o u s o f

f e n d e r

. . . . It would just not m ake a

lot of sense to allow t hese to be serve d

co n curr ently

beca use he c ould go in - if things like this wer e to be

serve d concur

rently , then i t wo uld encour ag e individuals like Mr.-12- Pay ne to identify

larg er numbe rs of pe o p l e and g et more pr ocee ds from their c onduct without any add i t i o nal conse quence . . . . So I think that as a matter of public policy
, in a ddition to the fa ct that he’ s a danger o u s o ff

ender . . . this would just about have to be serve d

consec utively

. . . .
The trial court’s statements demonstrate that it be lieved consec utive sentenc ing r easona bly rela ted to the severity

of th e offenses. How ever , the trial court did not make the appr opriate f inding that

consec utive sentenc ing w as nec es s ar y to protect the public f rom furthe r criminal activity by the appellant. I n any

event, c onsecutive se ntencing was a p p ro p riate in this case beca use the re cord demonstrates tha t the appellant ha s an extensive criminal history . See Te n n

. C o d e Ann. § 40-35- 11 5( b) (2 ). Th e app e lla nt’ s p re se nte nc e re po rt re fl e c ts tha t in a dd iti on to the c ur re nt v iol e nt o ff

e ns e s, he has two prior felony convictions, two misdemeanor convictions, and was adjudicate d delinquent in juvenile court. More over, the appellant ad m i t t ed having an extensive past in the drug trade
, se lli ng c oc a ine sin c e he wa s twe lve or thi rt e e n y e ars old . We c on c lud e that th is h ist ory is s uf fi c ie ntl y extensive to warra nt the imposit ion of consec utive sentenc ing. See State v. Adams, 973 S.W .2d 224, 231 (Tenn. Crim. App. 1997) (stati ng that an extensive criminal history alone will support

consec utive sentenc ing)

.
III. Conclusi on

Ba sed upon the re cord a nd the parties’ brief s, we c onclude that the a

ppellant’s ag gra v ated robbery convictions in counts one and two must be merg ed and that his convictions in counts three

a ndfo ur mus t be me rg e d. Th e jud g me nts of the tr ia l cou rt are oth e rw ise a ff ir me d, a nd thi s ca se is

rema nded for

the cor rec tion of the judg ments consistent with this opi nion.

___________________________________ NORMA McGEEOGLE, J UDGE