### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE May 15, 2001 Ses sion

STATE OF TENNESSEE v. MICHAEL BLACKBURN

Direct Appeal from the Circuit Court for Franklin County

No. 11,223-B J. Curtis Smith, Judge

No. M2000-01202-CCA-R3-CD - Filed October 19, 2001

The defendant appeals his convictions for first degree premeditated murder, first deg ree f elo ny murder, and aggrava

ted robbery . He contends that (1) insufficient

evidence exists to s

upport his convictions;(2) the trial court erred by not allowing into evidence the g ui lty plea of co-defendant Dickerson; (3) the trial court erred by n

ot allowing into ev

idence statemen

ts made by co-defendant Dickerson; and (4) the trial court erred in ordering consecutive sentences. After review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OHN E VERETT W ILLI AMS , J., delivered the o pi nion of the court, in which J ERRY L. S MITH and N ORMA M C G EE O GLE , JJ., joined.

Robert S. Peters, Winchester, Tennessee, for the appellant, Michael Blackburn.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; James Michael Taylor, District Attorney Ge neral; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Michael Blackburn, was indicted by the Fr anklin County Grand

Jury on one count of first degree premeditated murder, one count of first degree fe lony murder, and on one count of aggravated robbery. Afte r a jury trial, the defend

ant was fou nd guilty on all three counts. The trial court merged the two murder convictions and sentenced the defendan t to li fe imprisonment. On February 9, 1999, the trial court conducted a sentencing hearing for the aggravated robbery conviction. At the conclusion of the hearing, the trial court sentenced the defendant to twenty years in the Department of Correction consecutive to the life sentence for first degree murde r.

The defendant now appeals and contends that (1) insufficient evidence exists to s

upport his convictions;(2) the tri al c our t er red b y not all owi ng in to e vid ence the guil ty plea of co-defendant-2-

Dickerson; (3) the trial court erred by not allowing into evidence statements made by co-defendant Dickerson; and (4) the trial court erred in ordering consecutive sentences. After review, w e affirm the judgment of the trial court.

Facts

At trial, the State called Coffee County Sheriff’s Deputy Brian Allen. On August 14, 1996, Deputy Allen was working

the midnight shift w

hen the defenda

nt came in around 1 2:15 a.m. to report a drowning at the Turkey Creek boatramp. The defendant reported to him that he, codefendant Tommy Dicke

rson, and vic

ti m David Si nger were at th e boat ramp t hat evening. According to the defendant, co-defendant Dickerson and the victim started arguing and co-defe ndant Dickersonhit the victim in the face, which knocked the victim into the water. He told Deputy Allen that he tried to help the

victim, but that co-

defendant Dicke

rso n ordere d him back into the truck, threatening him thathe would be next if he did not comply. He said that the victim never resurfaced. He told Deputy Allen that they then took the victim’s truck to Tullahoma. Because the Turkey Creek boat ramp is in Franklin County, Deputy Allen notified the authorities there

.

The State calledDeputy Ear l Morse of the Fra

nklin County Sheriff’s Department, who was dispatchedto meet the defendant at the boat ramp, to testify. Deputy Morse observed an article of clothing in the water. He t estified that the d

efendant told him th

at h e, Dickers on, and the victim

were hanging o ut around the boat dock when the victim went down on the dock. The defendant claimed that he tol

d Dickerson that h

e needed to go h

ome because he had t

o be up early

for work. According to the def

endant , Dickerson then went onto the dock and began “messing” with the victim. The two began arguing and the defendant sai d he saw “a m otion come around,” heard a “smack,” and something then hit the water. The defendant said he then turne d on the truc k headlights.

The defendant further told Deputy Morse that Dickerson said, “He ain’t come up yet,” and then, “Let’s go, he’s dead. Get in the truck.” The defenda nt said that when he tried to go in after the victim, Dic kerson told him to get in the truck or he would be next. The two then got into the truck andwent to Tullahoma. According to the defendant, he jumped out of the truck at a red light andDickerson tried t

o run over him. He s

aid that once he g

ot to his father’s house, he told him what had happened and his father told him to go to the police.

At the crime scene

, the defendant id

entified a pair o

f shoes f o und in the parking lot as belonging to the victim. He also said that Dickersonwas his cousin, but he had only met the victim

a few days e

arlier. He furt

her informed the

deputy that D

ickerson and the

victim had run away from

a rehab center in

Shelbyville. A search of the boat dock revealed a shirt about four feet from the dock, a pair of blue jeans about ten feet from the end of the dock, and the victim’s body 15’7” from the end of the dock. The victim’s feet were tied with a blanket and his jeans had been pulled down over the blanket. The victim had scratches and abrasions on his face and head.-3-

The autopsy revealed multiple superficial lace rat ions on the victim’s forehead, linear abrasions on his right shoulde r, a bruise on his r

ight wrist, and sc

rapes on his knees and right forearm. The victim had a blood alcohol level of .19%. The medical examiner determined drowning was the cause of the victim’s death.

The State also called Franklin County Sheriff’s Deputy Danny Warren, who took a statement from the defendant in theearly

morning hours of August 14, 1996, to testify. The defendant said that Dickersonand the victim had run away

from a rehab ce

nter on August

12 th and had been drinking all day. The defendant met up with Dickerson and the victim around 9 :00 p.m. t he next eve ning, August 13, to go to a part

y at the Tra

veler’s Inn

in Manchester . He said that Dickerson and the victim had again been dri nking.

The defendant said

that when they left, they went to Turkey Creek. Upon arrival, around 9:45 p.m., the victim got out of the truck and went onto the boat dock. The defendant said that he
t old Dickerson that he needed to get home because he had to be up early for work. He said that Dickersonthen got something out of the back of the tr

uck and went onto

the dock and told th

e victim
to get up. Hesaid that the two began arguing and then he heard a “smack” a nd something hit the water. He then turned on the truck headlights and asked Dickerson what was going on. Dickerson repliedthat

the victim was messing around and jumped into the water. He told Deputy Warren that he did notthink much of it until Dickerson said that the victim was not coming up. The defendant said that when he offe

red to jump

in after the victi

m, Dickerson thre

atened to kill

him if he did. He claimed that he wa

s afraid of Dicke

rson because Dic

kerson was bigg

er than him.

According to the defendant, they left Turkey Creek in the victim’s truck. He then reiterated his story about stopping at a red light, Dickerson trying to run over him, and ge tting to his father’s house. When questioned about the victim’s legs being tied, the defendant claimed he did not know how that happened. He told Deputy Warren that Dickerson and

the victim had been arguing earlier because the victim wanted to go home to his family, but Dickerson did not want him to go.

Sho rtly thereafter, the defendant gave a second statement to Deputy Warren. He told the deputy that Dickerson threatened him if he did not help. So, he tied a blanket around the victim’s feet. He said that the victim was conscious, but did not resist them. The defendant claimed that he then blacked out.

Approximately

an hour later, the defendant again summoned Deputy Warren with additional facts about the victim’s death. He said that wh en the three wer e on their way to the boat dock, Dickersontold the defendan t that he was goin

g to rob the victim

and kill him. The defendant said that when he objected, Dickerson threatened to kill him. He said that when they arrived, Dickerson ordered him to get

a blanket and a pair of pants out of the trunk. The defendant then tied the victim’s hands together with the pants and tied his feet together with the blanket. According to the defendant, Dickersontied the blanket tighter, took $15.00 out of the victim’s pocket, and then pickedthe victim up and threw him off the dock. When again questioned about the victim’s pants bein

g around his ankles, the defendant persisted that he did not know.-4-

A couple of days later, on August 16, the defendant gave a nother statement to Depu t y Warren. He said that after they arrived at Turkey Creek, the victim got out of the truck and leaned up against it. Dickerson got out, smiled real big, and

hit the victim. After the victim hit the ground, Dicker son got on top of him and started beating him saying, “You want to fig ht? You want t o figh t?” Although the victim never said a word, he was awake. At one point though , the victim

did ask Dickerson why he was doing this. Dickerson just beat him more.

The defendant claim

ed that Dickerso

n got a blanket and a pair of pants out of the truck, and made the victim walk down the boat dock. Again, the defendant in sisted that he did no t want to participate, but thatDickerson threatened him with death if he did not. Per Dickerson’s orders, the defendant tied the victim’s hands and feet. Then Dickerson smiled big again and p

ushed the victim off the end of

the dock. The defe

ndant told

Deputy Wa rren that the vict im came up a couple of times, but that Dick

erson would not let

him go in to help the

victim.

The two returned to Tullaho ma and drove t o the Traveler’s Inn in Manchester. There the defendant met up with his girlfriend Cha rity Austin a

nd told her that Dic

kerson killed the v

ictim. She and the defendant left Manchester, dro

ve to his father’ s house, and then w ent to the sheriff. The defendant also told Deputy Warren that Dickerson said the victim was rich and that Dickerson told his sister Rhonda that he was about to rob someone, get some money, and leave town.

The State’s final witness was Rhonda Smith, the defendant’s first cousin and Dickerson’s sister. She testified that on August 12 th , the defendant, Dickerson, and Charity Austin came to her house around 11:00 p.m. According to Smith, Dickerson had been drinking, but the defendant had
not. The defendant told her that he needed money. When she said she did not hav e any, he told her he was going to g

et some money

one way or a

nother, even if h

e had to kill so

meone . In her presence, the defendant

asked Dickerson how much money the victim had, and Dickerson told him that he was about to receive $400. The defendant said he would kill the victim for that money. He claimedit would be easy

to tie some blocks a

round his feet and

throw him off into th

e water. While
at the Smith’s house, the defendant also approached Robert Smith about borrowing a shotgun. He told Smith that he needed to make some money. However, Smith told him that he did not loan out his guns. This concluded the State’s proof.

The first witness on behalf of the defendant was James Parker, a.k.a. Poncho. He stated that in August 1996, he lived with the de fend ant’s father, Alfred Blackburn. On August 13 th , the defendant,

Dickerson and t

he victim were at Parker’s house. Evidently, the victim had spent the night at his house, and wa s going to turn hi

mself in that mornin

g. However, the

victim gav e Dickerson $40 and they proceeded to drink all day long.

Around5:00 p.m., Parker kicked everyone out of his house because they were drinking and he did not want to get in trouble with h is landlord. Lat er, around 9:00 p.m., the defendant and Dickersonreturned to Parke r’s house, but the v

ictim was not w

ith them . They talked with the defendant’s father and then they left. When Dickers on and the defendant later returned, Janice-5-

Brownand Charity Au st in were with them. The defendant told his father and Parker what had happened, and the defendant and his father then left to go to the police.

The defense also

called Janice Brown to testify. She testified that when the defendant arrived
at the Traveler’s Inn, he seemed scared. He told her that the vic tim was at the lake. He said he hopedthat the victim was just passedout. However, he also told her that h

e jumped in the wate

r to help the victim and that Dickerson performed CPR, but then pushed the victim back in. After that, she, Charity and the defendant drove out to the landing, called for the victim, and then returne

d to Parker’s to talk with the defendant’s father.

Alfred Blackburn, the d

efendant’s fat

her, also tes tified on behalf of the defendant. He testified that Dickerson and the victim had been drinking all day on August 13 th . Dickerson and the victim had argued several times and Dickerson swung a 2

x4 piece of lumber at Blackburn when he would not take them to Georgia . Around 11:15 p.m.,

the defendant c

ame to the house

and told him that Dickerson had killed the victim. They then went to the police.

Fin all y, the defendant testified on his own behalf. At trial, he stated that he didnot initially
te ll police the t rue story of what happened at the dock because he w as afraid his parole would be revoked. He testified that when he, Dickerson and the victim left Poncho’s on August 13 th , he was dr iving the vic tim’s truc k. They stoppe d at a market , and Dicker son wanted t o drive. Th ough Dickersonwas drunk, and the defendant did not

want him to, Dic kers on e nde d up dri vin g anyw ay. Dickersonindicated that he wanted to go for a swim, so

they headed to Turkey Cre ek. On the way there, Dickerson told him tha t he was going to kill the v ictim. Although the

victim was sitting i

n between Dicker

son and the defen

dant, he had no re

action to this state

ment.

When they arrived at the dock,Dickerson and the victim got out of the truck and leaned up against it. According to

the defendant, D

ickerson told the d

efendant to

get out or he wou

ld do to him what he was going to do to the victim. The defendant no ticed a boat in the

water and y

elled out to it, hoping to d issuade Di ckerson, ev en though he really did not believe Dicker

son was serious. B

ut, the boat dro ve off. Then Di ckerson smiled real big, and hit the victim. After the victim hit the ground, Dickerson got on top of him and started beating him saying, “You w ant to fight? You want to fig ht?”

Dickersongot the blanket a nd pants out of the tr

uck. He took the vic

tim down tothe dock, told him to lie on his stomac h and then ordere

d the defendant to

tie the v ictim’s hands and f eet. Again, the defendant maintained that he tried to resist, but Dickerson threa

tened him with deat

h if he did not hel p him. The v ictim aske d Dickerson what he was d oing, and Dickerson tol d him he was about to die. Dickerson then pushed the victim off the end of the dock. The defendant

testified that he started to go in after the victim, but that Dickerson again threatened him with death if he did.

They left in the victim’s truck and drove back to Par

ker’s, where his father was still located. He did not say an

ything to his

father then abou

t what happened b

ecause he was scared of

Dickerson. He and D ickerson then drove to Manchester and met up with Charity and Janice. After h e tol d-6-

Charity what had happened, he, Charity and Jan ice went b ack out to the boat dock to look for the victim. When he did not answe r their calls, the

y drove bac

k to his father’s house. He then went to the pol ice wit h hi s st ory.

After hear ing a ll t he ev ide nce a nd c los ing a rgum ent s, t he j ury r eturne d guilty verdicts for first degree preme

ditate d m urder, first degree felony murder committed in the per petration of aggrava ted rob bery, and aggravated robbery. The trial court merged the two first degree murder convictions into one single conviction and ordered that the defendant serve a life sentence for that conviction. Add iti ona lly, the trial court se ntenced the def

endant to twenty

years in the Department of Correction to be served consecutive to the life sentence for first degree murde r.
Analysis

We review challenges to sufficiency of the evidence according to well-settled principles. A guilty verdict by

the jury, approved by the trial judge, accredits the testimony of the State’s witnesses andresolves all conflicts in the testimonyin favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). Alth ough an accused is originally cloaked with a pre sumption of innocence, a jury verdict removes this

presumption and replaces it with one of guilt. State v. Tuggle
, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the insuffic iency of the convicting evidence. Tuggle , 639 S.W.2d at 914. On appeal, “the [S]tate

is entitled to the strongest l e g itimate view of the

evidence as wel

l as all reasonab

le and legitimate inferences that may be drawn the refrom.” Id. Where sufficiency of the evidence is contested on appeal, the relevant

question for

the reviewing court is whether any rational trier of f act could have found the accused guilty of every element of the offense beyond a reasonable doubt. Jackson v. Virginia
, 443 U.S. 307, 319, 99 S. Ct. 27 81, 2789, 61 L. Ed. 2d 560 (1979). This court may not substitute its own inferences “for those drawn by the trier of fa ct from circumstantial evidence.” Statev. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). In concluding our evaluation of the c onvicting evidence, this court is precluded from reweighing or reconsidering the evidence

. Stat e

v. Morga n , 9 29 S.W.2d 380, 383 (Tenn. Crim. App. 1996). We also will not reweigh a jury’s rejection of a particular defense asserted by a def endant to excuse hi s co nduct. See, e.g.
, State v. Cabbage , 571 S.W.2d 832, 835 (Tenn.1978).

The jury convicted the defenda nt of first degree premeditated murder, first degree felony murder committed during the perpetration of a robbery, and

aggravated

robbery. I

n Tennessee, fir

st degree premeditated murder is defined as a “premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). Intentional is defined as the “conscious objective or desire to engage in the conduct or cause the result.” Tenn. Code Ann. § 39-11-106(a)(18). Premeditation is defined

as “an act done after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202 (d)

. A showing of premeditation also requires that the intent to kill be formed prior to the act of killing. Id. However, there is no requirement that a purpose to ki

ll pre-exist in the mind of an accused for any definite period of time. Id.-7-

The elements of premeditation and intent may be established by proof of the circumstances surrounding the killing. See State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997). Several factors that tend to support the existence of these elements include: an unarmed victim; the particular cruelty of the killing; and calmness imme diately after the killing. See State v. Pike , 978 S.W.2d 904, 914 (Tenn. 1998); Blan d
, 958 S.W.2d at 660; State v. Brown , 836 S.W.2d 530, 541-42 (Tenn. 1992); Statev. West , 844 S.W.2d 144, 148 (Tenn. 1992). Existence of these elements

are questions to be resolved by the trier of fact. See Bland , 958 S.W.2d at 660.

In this case, the jury wasalso allowed to use the theory of criminal responsibility. A per son is criminally

responsible for t

he conduct of ano

ther when, “[a]cti

ng with intent to promote or

assist the commission of the of fense, or to b enefit in the proceeds or results of the offense, the person solicits, directs, aids , or attempts to aid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2).

The evidence, viewe

d in a light most

favorable to the State, showed that the defendant had previously

discussed taking the victim’ s life in order to get some money from the victim. Rhonda Smithtestified that the

day befor

e the victim ’s death, the defendant told he r that he needed

some money and was going to g e t some even if he had to kill someone. Furthermore, the defendant unsuccessfully tried to procure a weapon from Rhonda Smith’s husband.

In his statements to police and during his testimony at trial, the defendant admitted that after Dickersonbeat up on the unarmed and intoxicated victim, he and Dick erson bound the vic

tim’s arms andlegs and threw h

im into the lake. He also

said that he watch

ed the victim

come up twice for air, flailing his arms. The defendant then fled the scene in the victim’s truck. The defendant and Dickersonthen drove to the defend ant’s father ’s house, where they told no one about what had happened. The two then drove to a party, where the defendant finally told his girlfriend what happen ed. Fina lly, the def endant drove bac

k to his father’s h

ouse before go

ing to the authori

ties. This clearly showed existence of calmness after this k illing. When viewed in a lig ht most favorable
to the State, this

evidence was clearly sufficient for a rational trier

of fact to find the

defendant guil

ty of first deg ree pre med ita ted mur der e ith er di rect ly or thr ough the use of cr imi nal res pon sib ili ty. Although the defendant

maintains that he was not guilty because he was forced to participate in t

hese crimes because of co-defendant Dickerson’s threats on the defend a nt’s life, the defendant gave several inconsistent versions of the events that led to the victim’s dea th. Given the defendant’s inconsistencies,

the jury discredited his testimony and rejected his claim that he was t

hreatened with death if he did not p

articipate in the

crimes. Rejectio

n of such a claim

is a question of fact for the jury that this court will not reweigh. See, e.g.

, Statev. Cabbage , 571 S.W.2d 832, 835 (Tenn.1978).

The evidence was also sufficient for a rational trier

of fact to find the defendant guilty bey ond

a reasonable doubt of aggravated robbery. The statutory definition of aggravated robber y is set out in Tennessee Code

Annotated sectio

n 39-13-402 as fol

lows: (a) Aggravated robbery

is robbery as defined in § 39-13-401:

. . . (2) Whe re t he v ict im s uff ers ser iou s bo dil y inj ury.-8-

Robbery as defined in section 39-13-401 is “the intentional or knowing theft of property from the person of another by violence or putting the person in fear.”

When viewed in a light most favorable to the State, the evidence at trial showe d that the defendant previously spoke of his need for money and th

at he believed the

victim had som e mo ney. The defendant also told someone that he would do anything to get some mo ney. The defendant testifi ed at trial that after the victim was beaten, co-defendant Dickerson took money from the victim’s pocket. Also, the defendant and co-defendant Dickerson then fled the scene in the victim’s truck. During the process of this robbery, the defendant and c o-defendant beat the victim and inflicted the most serious bod ily injury upon him – death. This evidence was clearly sufficient for

a jury to find

the defendant guilty beyond a reasonable doubt of aggravated robbery either directly or by way of criminal respo

nsibility for

the acts of his co-

defendant.

The jury also co

nvic t ed the defendant of first degree felony mur der committed in the perpetrationof a robbery. Although the tri al court merge

d this c on viction with the defendant’s conviction for first degree premeditated murder, we conc lude tha t the jury also had sufficient evidence to convict the def endant of first de

gree felony

murder. Under Te

nness ee law , felony murder is “[a] killing of another committed in the perpetration of o r attempt to perpetrate any . . . robbery.” Tenn. Code Ann. § 39-13-202(a)(2). As previously discussed, the ev

idence was clea

rly sufficient to find that the def

endant killed, or w

as criminally

responsible

for killing the victim in the perpetration of a robbery.

Next, the defendant contends that the trial court

erred by not allowing into evidence the fact that co-defendant Dickerson pled guilty to second de gree murder . The defendant a ttempted to i ntroduce the co-defendant’s judgment of conviction. The defendant’s contention is based up o n the argument that by

the jury not k

nowing about the

co-defendant’ s guilty

plea, they were left to infer that the co-defendant

was found guilty of first degree murder, and, thus, the defendant here

should also be found guilty. We disagree.

When reviewing a claim involvingthe trial court’s exclusion of eviden

ce, we will

not disturb the decision of the trial court absent an a buseof discretion. See State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978). Under Rule 403 of the T ennessee Rules of Evidence, a trial court may exclude evidence “if its probative v alue is subs tantially outweighed by the dang er of unfair prejudice, confusion of the issues, or misleading the jury, or by considera tions of undue delay, waste of time, or needless presentation of cumulative evidence.”

Evidence of a co-defendant’s guilty plea, no matter the form, must be re levant and pass the Tennessee Rules of Evi dence 403 ba lanci ng tes t. In the instant case, wefind that the evidence is not relevant and also, Rule 403 of the Tennessee Rules of Evidence requires its exclusion.

A panel of this court was confronted with a similar issue in State v. Eric Chambers , No. W1998-00618- CCA- R3-CD, 2000 WL 279645 (Tenn. Crim. App., filed March 6, 2000, at Jackson). In Cha mbers , the defendant, relying upon State v. Spurlock , 874 S.W.2d 602 (Tenn. Crim . App

.-9-

1993), contended that the trialcourt abused its discretion by not allowing the defendant to present proof of the co-defendant’s guilty plea as evidence supporting his defense. He contended that the evidence should have been admissible to show another’s mot ive to commit the offense, or that another committed the offense. Chambers , 2000 WL 279645, at *4. However, the trial court ruled that such evidence w as inadmissib le because it was “irrelevant” and “misleading.” Id. at *5. In addition, the trial court noted that the defendant had every opportunity t o present witnesse

s to

s upport his theory of the case and could have called the co-def endant to testify. Id. Like the defendant in Chambers , the defendant here was not deniedthe right to pres ent evidence es sential to a def ens e and cou ld a lso hav e cal led the co-d efen dan t to tes tif y.

Next, the defe ndant contend s that the trial cou rt abused its discr

etion by ref

using to admit evidence of co-defenda

nt Dickerson’s sta

tement to James “Poncho” Parker. At trial, the defendant sought to admit Parker’s testimony that co-defendant Dickerson told

Parker: “Poncho,

I killed him.

. . . I killed him, Po

ncho. I killed

him.” He argue

d that this statemen

t was admissible und

er Rule 803(3) of the Tennessee Rules of Evidence. Rule 803(3) allows admission of “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition.” The trial court disagreed with the defendant and excluded the statement.

On appeal, however, the defe ndant now contends that the statement should have been admitted under the excited utterance exception to the hearsay rule. SeeTenn. R. Evid. 803(2). A part y may not take one position regarding an issue in the trial court and then a dvocate a differen t position on appeal to this court. See State v. Dobbi ns , 754 S.W.2d 637, 641 (Tenn. Crim. App. 1988); State v. Brock , 678 S.W.2d 486, 489-90 (Tenn. Crim. App.1984); State v. Galloway , 696 S.W.2d 36 4, 368 (Tenn. Crim. App.1985); see also Tenn. R. App. P. 36(a). Thus, the different ground for admitting the evidence is waived.

Nevertheless,

we will address the defendant’s contention on appeal, that Dickerson’s
statement to “Poncho” Parke

r was an excited utt

erance, on its merit s. Rule 803(2) provides an exception to the hearsay

rule for stateme

nts “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the ev ent or condition.” Tenn. R. Evid. 803(2). In the jury-out hearing on the admissibility of the statement, Parker’s testimony went as follows: Q: What did Tommy Dickerson tell you? A: . . . I said, “Wher e’s D avid a

t Tomm y?” He said, “We left him at the game room shooting pool.” And I said, “As d runk a s he is ?” And he said, “Yeah. ” . . . And then Tommy , I was sitting

back in th

e loung e chair, and he said, “Ponch o, I know you don’t like to be hugged on a nd everything

,” but he said, “Yo

u might not ever se

e me again.” B

ut Tommy said shit like that all the time. When he whispered it in my ear, he reached down and hugged my neck [and] said, “Poncho” – Q: Well, by the way, when he re ached down, hugged your neck, was he emotional?-10-

A: No, . . . he whispered and he told me, he said, “Poncho, I killed him.” He said, “I killed him, Poncho. I killed him.”

Dickersonmade this statement to P arker after Dickerson and the defendant drove the victim’s truck back to town several miles from the location of the killing. As evidenced by Parker’s
tes tim ony, Dickerson was not in an excited state and even whispered the statements to Parker. Parker testified that Dickerson did not seem emotional, and there is nothing in dicating that Dickerson made the statement unde r th e stress of excitement caused by the killing. Thus, Dickerson’s
statement does not qualify as an excited utterance. See Tenn. R. Evid. 803(2). Furthermore, nothing in the statement related to the declarant’s then existing state of mind, emotion, sensation, or physical condition. See Tenn. R. Evid. 803(3). Therefore, the trial court properly denied Parker ’s testimony relating to Dick

erson’s statemen

ts.

Fin all y, the defendant contends that the trialcourt erred in ordering his twenty y ear sentence for aggravated robbery to be ser ved consecutive to his life sen tence for fi rst degree murder. Spe cif ica lly, he contends that the State failed to show t hat consec utive sentencing was needed to protect the public against further criminal ac tivit y by the defendant. This court’s re view of the
sentence imposed by

the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon anaffirmative showing in the record that the trial judge consider

ed the sentencin

g pr inciples and all relevant facts and circumstances. State v. Ashby
, 823 S.W.2d 166, 169 (Tenn. 1991). However, if the trial court fails to com ply wit h the statutory directives,

there is no presumption of correctness. State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997). In reviewing

the record befo

re us, the trial co

urt in this case cle

arly followed the appropriate sentencing procedure; therefore, we will review the defendan t’ s sentence with a presumption of
correctness.

The burden is upon the appealing p arty to show that the sentence is improper. Tenn. Code Ann. § 4 0-35- 401(d), Sentencing Commission Comments. In conducting our review, we are required, pursuant to Tennessee Code Annotated section 40-35-210, to c onsider the following factors in sentenci ng: ( 1) [t]he evidence, if any, received at the trial and the sentenc ing hearing; (2) [t]he presentencereport; (3) [t]he principles of sentencing and arguments as to sentencing alternatives;

(4) [t]he nature and characteristics of the criminal conduct involved; (5) [e]vidence and information offered by the parties on the enhancement andmitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to make in the defendant’s own behalf about sentencing.

Tennessee Code Annotated section 40-35-115(b) provides that a court may order sentences to run consecutively if the court finds by a pr eponderance of the evidence that (1) [t]he defendant is a professiona l criminal who has knowingly devoted such defendant’s life to criminal acts as a major source of livelihood; (2) [t]he defendant is an offender whose record of criminal activity is extensive;-11-

(3) [t] he defendant is a dangerous mentally abnormal person so de clared by a competent

psyc hiatri st who concludes a s a result of an inv

estigation prior

to sent e ncing tha t th e def end ant 's cr imi nal con duc t ha s be en ch arac ter ize d by a pattern of repetitive or c ompu lsive behavior wit h heedless indiff

erence to consequences; (4) [t]h e defendant is a dangerous offender whose behavior indicates little or n o regard for human life, and no hesitation about committing a crime in which the risk to human life is high; (5) [t]he defendant is convicted of two (2) or more statut oryoffenses involving sexual abuse of a minor with co nsidera tion of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the

sex ual acts an d the extent of the residual, physical and mental damage to the victim or victims; (6) [t]he defendant is sentenced for an offense committed while on probation; or (7) [t]he defendant is sentenced for criminal contempt. See also State v. Black , 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Furthermore, in the event the trial court finds that

the defendant is a “dangerous offender,” it must also determine whether the consecutive sentences (1) are reasonably related to the severity of the offenses committed; (2) serve
to protect the public

from fu rther criminal c

onduct by the

offender; and (

3) are congru

ent with general principles of sentencing. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995).

In ordering the se

ntences to run consecutively, the trial court first found that this defendant hadan extensive record of criminal activity. As the record indicates, wh en the defendant was eighteen years old he was convicted of assault, driving on a revo ked lic ens e, ag grav ate d bu rgla ry, andcriminal trespass. At age nineteen, he was convicted of driving on a suspe

nded license, pub

lic intoxication, and theft of property over $1,000. At age twenty -one, he was again convicted of theft of property over $1,000. Furthermore, he has violated his par ole num erous time s. Now, at age twenty-five, he has committedthe instant offen ses. The record clearly indicates that this defendant has a record of extensive criminal activity. See Tenn. Code Ann. § 40-35-115(b)(2).

The trial court also f

ound that the de fendant was a “dangerous offender” whose behavior indicatedlittle orno regard for human life and who had no hesitation about committing a crime when the risk to human life was high. See Tenn. Code Ann. § 40-35-115(b)(4). In applying the factors
set out in Wilkerson , 905 S.W.2d at 939, t he trial court found that a consecutive sentence was reasonably

related to the severity of the aggrava ted robbery. In so fi

nding, the trial court stated, “[W]e are talking abo ut a n agg rava ted rob bery, in which someone lost their life, was murdered. I think that does warrant an

extended sentenc

e, because it doe

s reasonably

relate to the severity of the offenses committed

. ” The trial court further found tha

t a consecutive se

ntence was nece

ssary to protect the public

from further ser

ious criminal cond

uct by the de

fendant. See id. In its finding s, the trial court stated, “I think given [the defen

dant’s extensive c

riminal history

] and the facts

of this
case, a consecutive se

ntence is necess

ary to prote

ct the public

from further serious criminal conduct by this defendant.” See id.-12-

Our review of the re

cord also indicat

es that such a sent

ence is clearly con gruent with the principles of sentenci ng. See id. Considering the trial court’s findings, and given the circumstances of this aggravated robbery and the def endant’s extensive prior criminal record, we agree w ith the trial court’s conclusion that this defendant was also a “dangerous offender” who had little or no regard for human life. Thus, because the defendant has an extensive prior criminal activity and qualifies

as a “dangerous offender,” the trial court did not err in ordering the def endant’s sentences to run

con secu tiv ely.

Conclusion

After thorough re view, we hold that sufficient evidence exists to support the defendant’s convictions for aggravated robbery a nd for first degree murder. Furthermore, we hold that the trial
court did not err in

refusing to allow into evidence the guilty p

lea of co-defe

ndant Dickerson a

nd in refusing to allow into evidence statements made by co-defendant Dickerson to “Poncho” Parker. Fin all y, we hold that the trial co urt did not er r in ordering the defendant’s sentences to run consecutively. Accordingly , we affirm the judgment of the trial court.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE