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

Briefs N ovember 7, 2001 STATE OF TENNESSEE v. RAYFIELD BRI CE Direct Appeal from the Criminal Court for Shelby County No. 00-03596 Carolyn Wade Blackett, Judge

No. W2000-02601-CCA-R3-CD - Filed Decem ber 18, 2001

A jury convicted the defendant of aggrava ted robbery, and the trial judge sentenced him to 12 years incarceration

as a Range I standard offender. I n this appeal, the defendant contends: (1) the evidence was insuffic ient to sust

ain his conviction; (2) his custodial statement should have been suppressed; (3) a juror failed to respond to a voir dire question concer ning prior involveme

nt in the le gal syste

m, thereby deprivin g the def

endant of a fair and impartial jury; (4) the trial court erroneously disallowed admission of a cri me scene report; and (5) his sentence wa s excessive. After a thorough review of the record, we affirm the judgment of the trial cour t. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t Affir med
J OE G. R ILEY , J., delivered the opinion of the cour t, in which G ARY R. W ADE , P.J., and T HOM AS T. W OODALL , J., joined. Robert B. Gaia, Memphis, Tennessee, for the appellant, Rayfield Brice

. Paul G. Su mmers, Attorney General and Reporter; Elizabe th B. Marney, Assistant Attor ney General ; William L. Gibbons , Distric t Attorne y Gener al; and Gl en C. Baity , Ass istant Dis trict Attorney General, for the appellee, State of Te nnessee.

OPINION Seessel’s grocery store was robbed at gunpoint on May 16, 1998, by two per petrato rs. Remeus Johnson, one of the perpetr ators, pl ed guilty to

aggrava ted robbe ry prior to defenda

nt’s tria l. Defendant was convicted of aggra vated robbery at his trial by jury.

TRIAL TESTIMONY-2-

Vera B obbitt test

ified she was work

ing as hea

d cashie r at Sees sel's on U

nion Aven

ue in Memphis on May 16, 1998. At approximately midnight, she entered the store’s business office and felt someone come from behind her. That person brandishe d a gun and ord ered her and another employee on the floor. Another person entered t he office and assis ted in tak ing appro ximately $45,000 from the safe. They ordered her to count to 100 and fled. Bobbitt identified the defendant at trial as the first person who entered the office, brandished the weapon, and ordered her on the ground. Ad di tionally, Bobbitt had identified the defendant through a photo lineup prior to trial. Officer Cham Payne

of the cr ime scene unit testified officers recovered a blue sports bag and a bundle of currency in a residential ar ea near the grocery store.
Remeus Johnson pled guilty to this aggravated robbery for an agreed e ight-year sentence and testi fied at the defendant’s trial. He testified he was ar rested within six hours of the robbery and gave a sta tement o n May 18, 1998, where he inculpated the defenda nt and himself. Specifically, Johnson stated he and

the defendant

went inside the store and stood in the checkout line until they saw Bobbitt open the office door. The defe ndant wen t in behind her, and Johnson followed approximatelyone minute later. T hey fille d the bag with money, exited the office, and were cha sed by security guards. Oncross-examination, Johnson conceded his fingerprints were lifted from a beer can he left at the checkout counter, and he plac ed the money in the residential area while fleeing. Sgt. Reginald M organ te stified he first met with the defendant the day following defendant’s arrest. He testified the defendant ex ecuted a writte n waiver

of his Miranda

rights and gave a statement admitting his involvement in the armed robbery. For the defense, Kimberly Smith testified she was the defendant’s girlfriend

in May 1998. She further testified the defendant was at he r apart ment on Ma

y 16, 1998, and they p

ut their child to bed at approximately 8:00 p.m. She stated they then watche d televisi on; they w ent to bed between 8:00 p.m. and midnight; and the defendant was present when she awakened the following morning. On cross-examination, she conceded it was possible the defendant left the apartment while she slept and returned prior to her awakening.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends the ev i dence was insufficient to sustain his conviction. We respectfully disagree.

A. Standard of Review-3-

When an ac cused challenges the sufficiency of the evidenc e, this court must review the record to determine if the evide nce add uced d uring t he tri al was suffi cient "to su pport the fi ndin gs by the trier of fact of guilt bey ond a reasonable doubt." Tenn. R. App. P. 13(e). In deter mining the sufficiency

of the evidence, this court does not reweigh or r eevaluate the evidence. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn.197 8). To the contrary , this court is required to afford the state the stronge st legitimate view of the evidence contained in the r ecord as well as al l reasonable and legitima te inferences which

may be dra

wn from the evidence. State v. Tu ttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). B. Analysis
Vera Bobbitt identified the defendant as a perpetrator of the a rmed robbery. Whi le the defendant present ed alibi te stimony, it w as within the jury’s prerogative to reject his alibi defense. See State v. Underwood , 669 S.W.2d 700, 703 (Tenn. Crim. App. 1984). Bobbitt’s testimony alone was sufficient to support the defendant’s conviction. See State v. Radley , 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999). Furthermore, the defendant confessed to the crime. This issue is without merit. II. CUSTODIAL STATEMENT The defendant challenges his cus todial s tatement made to Sgt. Morgan. The defendant contends his statement should have been s uppr essed because it was in response to a promise of benefits, thus making it involuntary. We respectfully disagree. A. Suppress ion Hearing Testimony Sgt. Reginald Morgan testified at the suppression hearing that he talked with the defendant on May 19, 19 98. Morga n stated th

e defendant exe cuted a w

ritten wa iver of h is Miranda

rights; no promises or threats were made; and the de f endant confessed. On cross-examination, Morgan conceded he talked wi

th the def endant f or appro ximately

20 minutes “about li fe” and the benefits of having a “clear conscience.” Morgan further stated he did not give the defendant any indication he would receive leniency in exchange for his confession. The defendant testified at the suppression hearing that subsequent to his arrest, he was never given Miranda

warning s; the signature on the written advice of rights was not his; the statement was altered from the one he signed; and theofficer told him, “it’ll be beneficiary [sic]” to tell the truth.
At the conc lusion of th

e hearing, the tr

ial cour t found the

state m ent was knowingly and voluntarily given. The motion to suppress was denied.

B. Standard of Review-4-

The findings of fact made by the trial court at the hear ing on a motion to sup

press are binding upon this court unless the evidence contained in the r ecord preponderates against them. State v. Ross , 49 S.W.3d 833, 839 (Tenn

. 2001). The trial court, as the trier of fact, is able to a ssess the credibi lity

of the wit nesses, determine the weight and value to be af forded the evidence

and resolve any conflic ts in the evidence. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). However, this court is not bound by the trial court’sconclusions of law. State v. Simpson , 968 S.W.2d 776, 779 (Tenn. 1998). The application of the law to the facts found by the trial court arequestionsof law tha t this court re views de novo

. State v. Daniel , 12 S.W.3d 420, 423 (Tenn. 2000). C. Analysis The defendant

challen ges his co nfession , arguing it was invo luntary b ecause it was induced by a promise

of lenie ncy. The

testimony a

t the suppr

ession he aring es t ablished Sgt. Morgan informedthe defendant he needed to have a “clea r consci ence,”and it

would be “

benefic ial” for

him to tell the truth. In order

to be considered voluntary, a statement must not be extracted by any direct or implied promises, nor by the exertion of any improper influence. State v. Smith , 42 S.W.3d 101, 109 (Tenn. Crim. App. 2000). However, coercive police activity is a prerequ isite to fin ding a confession involuntary. State v. Phillips , 30 S.W.3d 372, 377 (Tenn. Crim. App. 2000) (citing State v. Brimmer , 876 S.W.2d 75, 79 (Tenn. 1994)). An officer’s promise of leniency does not render a subsequent

confession involuntary per se , for “[t]he critical question is ‘whether the beha vior of the state's law enforcement officials was such as to overbe ar petitioner's will to resist and bring about confessions not freely self-determined. . . .’” State v. Smith , 933 S.W.2d 450, 455-56 (Tenn. 1996) (citations omitted). Accordingly, we must determine whether the defe ndant’s statement was “compelled” by a promise of leniency, and we must view all the facts and circumstances surrounding the taking of the statement. Id . at 455. The crucial issue is one of credibility. The trial court implicitly a ccr edited the officer’s testimony and rejected defendant’s asser tions. T he e vidence

does not pr

eponder ate aga inst those findings. We, thus, ar e u nable to find coercive police activity, and we conc lude the defendant’s statement was not compelled by promises of leniency. This issue is without merit.

III. JUROR BIAS The defenda

nt contends a

juror neglected to respond to a question which deprived him of a fair and impartial jury. We disagree. A. Standard of Review When a juror's apparent misrepresentation or conce alment of i nformati o n during voir dire examination is challengedduring a h earing i ncident t

o the motion for a new trial, the accused, as the moving party, has the burden of showing he or she incurred a ctual bias or prejudice as a result of the failure to reveal the information. State v. Bigbee , 885 S.W .2d 797, 80 5 (Tenn. 1994); State v. Caughron , 855 S.W.2d 526, 539 (Tenn. 1993). If a juror intentionally fails to disclose information-5-

on voir dire which might indicate partiality, a presumption of prejudice arises. State v. Durham , 188 S.W.2d 555, 559 (Tenn. 1945). “ Silen ce on the juror’s p art when

asked a q

uestion r easonab ly calculated to produce an answer is tantamount to a ne gative answer.” State v. Akins , 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993). B. Analysis Su b sequent

to trial, the defendant learned a juror had pa rticipated in conducting church services at the Shelby County Jail once per month on Sunday evenings du ring 19 97 and 1998. During voir dire , the tria

l court a sked pros pective

jurors, “Is there anybody here . . . involved in the system in some lay form or fashion?” The defenda nt claims the juror’s failure to respond concerning his jail visits deprived him of a fair trial. In support of his position, the defendant filed an affidavit of the juror which state d: Prior to servic e on said j ury, I wa s involved in a volunt

e er pro gram through my church, which at thetime was known as Hickory Ridge Baptist Church. In this program, I , along with others in my church, would go to the Shelby County Jai l to condu ct a [S]unday night church service for inmates. This occurr ed about once per month.
We conclude the question asked by the tria

l court wo

uld not nec essarily

or reas onably ca

ll fora response

from the j uror. Ce

rtainly, t here is n o showing t

he juror intentiona

lly misled th e parties. Furthermore, there is no showing the juror had any contact with the defendant. There is no showing of bias or prejudice; thus, this issue lacks merit.

IV. CRIME SCENE REPORT The defendant contends the trial court erroneously disallowed him to admit a cr ime scene report, while allowing the state to admit similar evi dence. He contends the report established the absence of defendant’s fingerpr ints at the crime scene or in the getaway car . We find no error. The defenda

nt asked O fficer

Payne if he were aware a

beer can was seized at the groc ery, and the alleged getaway car remaine d on the scene. When Officer Payne

responded in the negative, the defendant sought toadmit a document prepar ed by ano ther off

icer. Th e repor t simply sta

ted “pri nts of unknown value were lifted” from the beer can and car. Of ficer Pa yne said h e did not prepare, nor had he ever seen, the

document. The trial court disallowed introduction of the report because Off icer Payne had no pe

rsonal kn owledge

of th e facts con tained in the document, and the evidence was confusing and not probative. The standard of review applicable to a decision to admit ev

idence i s abuse

of discretion. See State v. D ubose , 953 S.W.2d 649, 652 (Tenn. 1997).-6-

At trial the defendant argued the report was admissible as a busines s recor d under T enn. R. Evid. 803(6). I

n this court, just as in State v. Thompson , the defendant makes no acknowledgment of the gene ral inad missibility o f police

reports and make s no attempt to expla in how this r

eport fa lls outside the general rule o f exclus io n. 36 S.W.3d 102, 109 (Tenn. Crim. App. 2000) (citing McDonal d v. Onoh , 772 S.W.2d 913, 914 (Tenn. Crim. Ap p . 1989); Tenn. R. Evid. 803(8)). In Thompson , we considered the issue waived. Id . We further reject defendant’s “goose and gande r” contention that t

he t rial cou

rt allowe d the off

icer to g ive hear say testim ony about other of ficers’ reports in stating the defendant was developed as a suspect, there by treating him unfair

ly in disallowing the admission of the report. Regardle ss, we conclude the trial court properl y excluded the report through the testimony of Officer Payne. The document simply stated “prints of unknown value were lif ted.” It said nothing about a

fingerprint analysis. As such, we agree with the trial cour t that the report had

little, if any, evidentiary value. We find no abuse of discr etion in this ruling. Furthermore, evidence concerning the geta

way vehi cle and co-perpetrator Johnson’s fingerprints on the beer can was later admitted through Johnson. Accordingly, even if the trial court were

in error, the defendant suffere d no prejudice. Tenn. R. App. P. 36(b).

IV. SENTENCING The defendant alleges his sentence was e xcessive. We respectfully disagree. A. Standard of Review This court’s review of the sentence imposed by t he trial c ourt is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This pre sumption is conditioned upon an a ffirmative showing

in the re cord tha

t the tria l judge c onsidere d the sent encing principle s and all relevant facts and circumst a nces. State v. Pettus , 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to c omply

with the st

atuto ry direc t ives, there is no presumption of correctness and our review i s de novo

. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997).
If no mitigating or enhancement factors for sentencing are prese nt, Tenn. Code Ann. § 40-35- 210(c) provides that the presumptive sentence fo r m ost offenses shall be the minimum sentence within the applicable range. State v. Lavender , 967 S.W.2d 8 03, 806 (T enn. 1998 ); State v. Fletcher , 805 S.W.2d 785, 788 (Tenn. Crim. App. 199 1 ). However, if such factors do exist, a trial court should enhance the minimum sentence within the range f or enhancement factors and then re duce the sentence within the range for the mitigati ng fac tors. Ten n. Code An

n. § 40-35 -210(e) ; State v. Arnett , 49 S.W.3d 250, 257 (Tenn. 2001). No partic ular wei ght for

each fa ctor is prescribed by

the statute, as the weight given to each f actor is left to the discretionof the trial court as long as the trial court complies with the purposes and principles of the sentencing act and its findings ar e supported by the rec ord. State v. Moss , 727 S.W.2d 229, 238 (Ten n. 1986); State v. Kelley , 34 S.W.3d 471, 479 (Tenn. Cr

im. App. 20 00); see Tenn. Code Ann. § 40-35-210 Sentencing Com missi on Comments.-7-

B. Analysis The Range I punishment

for aggr avated r obbery isf

rom eight to t welve years. See Tenn. Code Ann. § 40-35-112(a)(2). The trial court applied se ven enhancement factors. The trial cour t determinedno mitigating factors applied and sentenced the defendant to the maximum 12-year

term. On appeal, the defendant challenges only the applica bility of enhancement factor s (2) (defendant w as a leader) and (12) (the defendant willfully inflicted bodily injury upon another person, or the ac tions of the defendant resulted in the death of or

serious bodily injury to a victim or a person other than the intended victim). Bobbitt identifie d th e defendant as the person who arrive d at the office first, ordered her down on the floor, and brandished theweapon. Johnson corroborated that the defenda nt brandished the weapon. The trial court properly concluded the defenda nt was a le ader in

the commission of the offense. The record reveals that a security guar d was shot in the leg by one of the fleeing perpetr ators; howeve r, the rec ord does not establi sh that it w as the defendant who actu ally shot a

nd inflict e d bodily injury upon the security guard. Furthermore, there was not suffic ient proof that the victim’s gunshotinjury constituted “serious bodily injury.” Accordingly, we concur with the defenda nt that the trial court improperly applied factor 12. Regardle ss, the misapplication of this enhancement fac tor do es not nec essarily entitle defendant to a reduced sentence. See Lavender , 967 S.W.2d at 809. We conclude the record justifies the imposition of the 12-year sentence.

CONCLUSION Based on t

he afor ementioned, we a

ffirm the judgment o f the tria

l court.

___________________________________ JOE G. RILEY, JUDGE