# FILED April 23, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9604- CR-00162 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDAL L WYATT, JR. JASPER D. LE WIS, ) JUDGE ) Appe llant. ) (Direct Appeal ; First Degree Murder ) and One Cou nt of Rob bery)

FOR THE APPELLANT : FOR THE APPELLEE : JEFFREY A. DEVA SHER JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter (On A ppea l) KAREN M. YACUZZO DAVID BAKER Assistant Attorney General Assistant Public Defender 425 5t h Aven ue N. (At Tr ial) Nashvill e, TN 37243 JEFFERSON T. DORSEY VICTOR S . JOHN SON Assistant Public Defender Distri ct Attorney General (At Tr ial) 1202 Stahlman Buildi ng KATRIN MILLE R Nashvill e, TN 37201 Assistant Distri ct Attorney 222 Se cond A venue, N orth Suite 500 Nashvill e, TN 37201
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

On September 14, 1995 , a Dav idson County j ury convi cted Appellan t Jasper D. Lewis of one count of fi rst degree murder and one count of r

obb ery . The trial court subsequently sentenced Appell ant as a Range I standar d offender to consecutive terms of l ife impri sonment for the fi rst degree murder convi ction and five years for t he ro bbery convic tion. Ap pellan t challe nges both h is convictions and his sentences, raising the fol lowing issues: 1) whether the ev idence is suf ficien t to support

Appellant’ s convict ions for first degree mu rder and robb ery; 2) whether the t rial cour t should have suppressed a statement tha t Appellant made to police; 3) whether the t rial court s hould have suppressed t he pre-tr ial i dentifi cation of Appellant by one of t he State’s witnesses; 4) whethe r th e trial c ourt erre d when it i nstructed t he jury about the minimum number of years t hat Appellant would ha ve to s erve for each offense before h e would becom e eligible for p arole; 5) whether t he trialcourt imposed an excessive sentence for the robbery convicti on; and 6) whether thetrialcourt err ed when it order

ed the sentences t

o be served consecu tively. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FA CTS

Daniel McK ell testif ied that on October 28, 1994, he and Fer nando Joh n son were s itting in fro nt of an apartm ent bu ilding o n Buc hana n Stre et in Nashvill e, Ten ness ee, with som e othe r individ u als. Jo hnso n even tually left th is group and joined Appellant and Sam Hall in a dicegame about thi rty to forty f eet away from M cKell. A ppellant was wearing dark c lothing and he had black and white beads in his hair.-3- McK ell testified that wh ile he w as talk in g t o some other indi viduals, he heard som e gun shots . Wh en Mc Kell looked in t he directi on of the di ce game, he
saw Appellant s hoot Johnson, who was o n his knee s sho oting d ice. Mc Kell heard a total o f four or five sho ts. At this point, McKel l ran to t he other si de of the apartm ent buildin g.

McK ell testifi ed that later t hat night, he gave the pol ice a descri ption of Appe llant. A few days later, McKell identified the photographs ofAppellant and Hall out of two gr

oups of photogr

aphs that were s hown to him by the police. McK ell also t est ified t hat he could not remember whether he had seen Appe llant’s photograph on te lev isio n before he i dentifi ed the photograph of Appe llant show n to him b y the police
.

Robert Davidson, Jr., testifi ed that he was about twenty feet away fr

om the dice game when the shooti ng occurred. Davidson esti mated that Johnson had been p laying dice for thirty to forty-five m inutes be fore he w as sho t.

Samuel Hall testified that he and Appellant dro ve to the apartments on Buc hanan Street at

some time around 9:30 p. m. on the night of the shooting
. Hall, Appe lla nt, Johnson, and Quenton Carr ethers event ually began pl aying a game of dice. During the di ce game, Johnson won some money from Ap pellant. Hall testified that Johnson and App ellant were eng aging in “re g ular trash tal k” during th e dice ga me.

Hall testified that whi le Johnson was on hi s knees picki ng up the money on the gro und i n fr

ont of h im, Appellant

shot Johnson in the head. Appell ant then-4-

shot Johnson four t imes in the back andthen to ok m oney th at was in Joh nson ’s hand. At this point, Hall ran backto the car that he had driven to the apar tment buildi ng. After Hallhad driven about three bloc ks from the scene of the shoot ing, he saw A ppella nt. App ellant th en go t in the c ar and Hall d rove to Appe llant’s girlfriend ’s residence. Hall test ified t hat when he stated t hat Appellant had kill ed Johnson, Appella nt replied, “I a in’t worried a bout it. Tha t’s just one l ess nigger I have to worry abo ut.”

Hall testified that when he and Appe llant arriv ed at A ppella nt’s girlfriend ’s residence, Appellant c hanged his clot hes, took t he beads out of his hai r, and then washed his gun and the money that he had taken from Johnson. Af ter Appell ant reloaded his gun, Halland Joh nson we nt to another friend’s h ouse whe re Appellant

aske d som eone to call his grand moth er. Ap pellan t and H all then went back to App ellant’s girlfriend’s residence where Appe llant m et his m other a nd his mothe r drove him away in h er car.
Joyce Baker, Appell ant’s mother, testified that o n the night of the shooti ng, she tooka gun away from Appellant. Bak er threw the gu n in a dum pster the next day, but she eventua lly contacted the police and assisted t hem in recoveri ng the gun. Bakeralso test ified t hat on the ni ght of the s hooting, she advised Appel lant to travel to Indian a to stay wi th his father. When Baker later learned that a warranthad been issued for Appe llant’s arrest, s he ca lled Ap pellan t and to ld him to come back to Nashvil le. After Appellant returned to Nashvill e, Bakertook h im to police h eadqu arters.-5- Detective Brad P utna m of t he Me tro Po lice Depart ment testi fied that he
was pre sen t wh en po li ce o ff ice rs r ecov ere d a . 380 a uto mati c ha ndgu n fr om a dump ster on O ctober 3 0, 1994
. Agent Tomm y Heflin of the Tenness ee Bureau of Investigati on testi fied that he had compared the shellcasings and bul lets fou nd at the scene of the shooti ng and the bull ets recover ed from the body of

Johnson with t he .38 0 automat ic handgun. Agent Hefli n concluded that the bull ets and casings were fir ed from the gun.

Detective Mike S mith o f the Me tro Po lice De partm ent tes tif ied that on October30, 19 94, Ap pellan t’s mother brought Appel lantto police headquarters. Smith then advised Appellant of his consti tutionalrights and Ap pellant ag reed to waive his rig hts and make a statem ent.

In the s tat ement that he gave to police, Appellant initi ally cl aimed that
someone else had ki lled Johnson af ter Appell ant quit p laying di ce and walked away. However, Appell ant eventual ly admitted that he shot Johnson wit h a .380 autom atic handgun. Appell ant also admit ted that af

ter he shot J ohnson, he took John son’s money that was on t he ground. Appell ant stated thatalthough he and Johnson called each other names, Johnson never threatened him. Appellant also stated that alt hough he accused Johnson of cheati ng during the dice game, that
was not why he shot Johnson. Appell ant stated th at he did not know why he shot Johns on.-6- II.SUFFICI ENCY OF THE EVI DENCE
Appellant

contends that

evidence i s insuff icient to support hi s convict ions for fi rst degree murder and robbery. We disagree.

When an appellant

challenges t he sufficie ncy of th e evide nce, th is Court is obliged to review that chal lenge according to certai n well-settl ed principles. A verdictof guil ty by th e jury, approved by t he trialjudge, accr edits th e testimony of the State’s w itnesses and res olves all co nflicts in the testimony in favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused is originally cloaked with a p resump tion of innocenc e, a jury verdictremo ves this presumption and replaces i t with oneof guilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, t he burden of proof re sts with Ap pellant to demo nstrate the insufficie ncy of the convicting evidenc e. Id
. On app eal, “t he [S]tate is entitled to th e strong est legiti mate v iew of th e evide nce a s well a s all
reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere the suffic iency of t he evidence i s contested on appeal, t he relevant question for the reviewi ng court is whethe r any ra tio nal tri er of fact could have found the accused guilty

of every e lemen t o f the offens e beyon d a reas onable doubt. Jackson v. Virgin ia , 443 U.S . 307, 319 , 99 S. C t. 2781, 2 789 , 61 L. Ed. 2d 56 0 (1979). In conducting o ur evaluation of the c onvicting evi den ce, this Cour t is precluded from reweighi ng orreconsideri ng the evide nce. State v. Morgan , 929 S.W.2d 380, 38 3 (Ten n. Crim. A pp. 1 996). More over, t his Court may not sub stitute its own infe rences “for those d rawn by the trier of fa ct fro m circumstant ial evidence.” State v . Matt hews 805 S.W.2d 776, 779 (Tenn. Cri m. App. 1990) . Finally, Rule 13(e) of the Tennessee Rules of Appellate Pro cedure1 A 1995 ame ndm ent elim inated de liberation as an elem ent of first de gree m urder. See Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 1998) (“Fi rst degree murder i s: A premeditated and intentional ki lli ng of another.”). -7- provides, “findi ngs of guil t in cri minal ac tions whe ther by the trial court or jury shall be set aside if the evidence is insuf ficien t to support

the findi ngs by the trier of fact beyo nd a rea sonab le doub t.”

A. Fi rst Degree Murder Convict ion
Appellant

co nten ds tha t the evid ence is insuffic ient to s uppo rt his convicti on for fi rst degre e murder because the State fail ed to establ ish that he killed John son with p remed itation and deliberatio n.

When John son was killed in 1994, T ennes see’s first de gree m urder sta tute provided that “[f]irst degree murd er is: [a]n intentional, pre medi tated and delib erate killing of another.” Ten n. Code A nn. § 39-13-2 02 (1994). 1 Premeditati on requires a s howing of a previously f ormed design or

intent to kill. State v. West , 844 S.W.2d 144, 147 (Tenn. 19 92). Deli beration r equires that

the offense be committed wit h cool purpose, free of the pass ions of the mom ent. Id. Although premeditati on “may be formed in an instant, del ibe rat ion req uir es s ome period of refl ection, during which the mind is ‘free fr om the influence of excitement , or passion.’” State v . Brown , 836 S.W.2d 530, 538 (Tenn. 19 9 2 ) (citat ion omitted). While it remains true that

no specifi c length of

time is r equired forthe formati on of a cool, dispassionate intent t o kill , more than a “sp lit- second” of reflectio n is req uired in order to satisfy th e elem ents o f prem edit a tion and deliberatio n. Id. at 543.-8- The eleme nts of premeditat ion and deli beration are questions for the jury which may be establi shed by proof of the circ umstances surroundi ng the kil ling. State v. Bland , 958 S.W.2d 651, 660 (Tenn . 1997); State v. Bord is , 905 S.W.2d 214, 222 (T enn. C rim
. App. 1995). Tennessee cour ts have deli neated several circumstancesthat may be in dicati ve of premeditation and deliberat ion, includi ng the use of a d eadly we apon u pon an unarm ed victim, Brown , 836 S.W.2d at 841; fact s from wh ich mo tive may b e inferred , Bord is , 905 S.W .2d at 222 ; an d calmn ess imm ediately afte r the killing, Bland , 958 S.W .2d at 660
. Considering the proof in the reco rd in the l ight most favorable to the State,
a s we are re quired to do, we hold that the evidence is suff icient to establish p reme dit ation and deliber ation. Fi rst, t he record indi cates that Johnson was unarmed when Appellant s hot him wit h an automatic handgun. In ad dition , McK ell and Hall both test ifi ed that Johnson was on his knees when Appell ant shot him. F urther , the rec ord ind icates that Ap pell ant pl aced his gun eit her against or very n ear Joh nson’s h ead wh en he s hot him . Secon d, the Sta te introducedevidence fr om which a jury could infer that Appell ant had a motive for kill ing Johnson. The r ecord ind icates tha t during the thirty to forty-five m inute dice game, Johnson won most of the bets and tookmoney from severalpeople, includi ng Appella nt. In add ition, Ha ll testified that after Appel lant shot Johnson, Appellant

took Joh nson’s m oney tha t was on the grou nd. I n fact, Appellant admitted in his statem ent to the p olice that a fter he sho t Johnson, he took John son’s money that was on the ground. A r ational jury coul d infer f rom these facts that Appellant had killed Johnson in order to take hi s money. Third, the record indi cates that

imme diately after th e killing, App ellant was calm. Indeed, Hall testified that when he picked up App ellant s hortly a fter the k illing an d told-9-

Appellant

that Jo hns on was dead, A ppellant re plied, “I ain’t wo rried abo ut it. That’s just one less nigger I have to worry about.” Shor tly t hereafter , Appellant went to his girlfriend ’s resid ence , chan ged h is clothe s, took the be ads o ut of his hair, washed the blood of f his gun and the money that he had taken from Johnson, and the n went w ith Hall to the residenc e of ano ther friend. In short, a rationaljury could conclude from these ci rcumstances that App ellant dec ided to kill Johnson and then ref lected on t hat decisi on with coolpurpose for s ome period thatwas at least

more than a “spl it-second” before he shot

and kill ed Johnson. This issu e has n o merit.
B. Robbery Convicti on
Appellant

conten ds that th e ev idenc e is insu fficient to supp ort his convicti on forrobbery. Under T ennesse e Code A nnotated se ction 39-13-40 1(a), “[r]obbery is the intentional or kno wing theft of prope rty f rom the p erson of
a nothe r by viol ence or putti ng the person i n fear.” Tenn. Code. Ann. § 39-13- 401(a) (1994). Appel lant cla ims th at the e videnc e is insu fficient to convic t him under this statute because t he only evi de nce tha t he had taken anyt hing from Johnson came from the testimony o f Hall, and this testimon y w as co ntradicted by Hall’ s previous statement to pol ice.

The g en eral rule in Tenn essee is that “co ntradictory statem ents by a witness in connection with t he same fact cancel each other.” State v . Matt hews , 888 S.W.2d 446, 450 (Tenn. Crim. App. 1993) (ci tations omitted). How ever , “[t]his rule of cancellat ion appli es only when inconsistency i n a witness’ testimony-10-

is unexplained a nd when neither v ersion of his test imony is cor roborated by other evidence.” Id. (citation omitted).
Initially, we no te that it is not clear that Hall ’s test imony attrialand his pretrialstatement to police were contradic tory. The record indi cates that during Hall’s di rect examinat ion, the f ollowing colloquy occurred: A: He went into t he bedroom. When he went to the bedr oom, he went to go getsom e cloth es, to c hang e his clothes. Then he went into t he bathroom to wash his gu n and was h the mon ey. Q: W ashing the gu n and was hing the mo ney? A: Yes, sir. Q: W hat mo ney are yo u talking a bout? A: The money that he took from Fernando Johnson. Q: W hen did he do tha t? A: Wh en he w as— when h e shot him in the hea d, he sho t h im like fourmore times in the b ack. H e flippe d him over an d wen t inside his pockets. Q: And was there money in Fernando’s pockets? A: Yes, sir. Q: How did you se e that? A: Because when he was pulli ng it ou t, the only t hing I seen was, you know, there was some money in front of him, the money he was counting. Then he h ad s ome money in his pocket . So I seen him when he grabbed the money in hi s hand. Then I seen hi m when he wa s goin g through his pock ets. The record also

indicates that the f

ollowing colloquy occurred duri ng the crossexamination of

Detective Smith: Q: So S am H all told yo u that h e did not see—if you remember back and think about

it, he told you t hat he did not see Jaspe r Lewis take anything or go through the vi ctim’s pockets. A: I’m sorry. I stand to be corre cted, sir. You confuse d me. I though t Hall himsel f said he di dn’t rummage through the pockets, but he said that—he said that Jasper roll ed Fernando overand w ent thro ugh h is pockets. Q: It’s true, i s it not , Detecti ve, that in th at tape d state men t, Sam Hall told you he did not

see Jas per Lewis take any money fr om Fernando Johnson. A: You kn ow, I ha ven’t liste ned to that tap ed sta teme nt in a w hile
. This is a sum mary. No w, as far as the money, I don’t know. Going through his

poc ket , I ’m—I ’m s ur e I’ m corre ct by my tra nscri pts he re. So if—if the answer

is I don’ t have any i ndicati on here ofmoney being taken. Just going through his pockets.-11- Q: All ri ght. Well, I be l ieve wh at— what S am H all told yo u, isn’t it correct, that—that Jasper , accordi ng to Sam, roll ed him over, but didn’t see him take any money out of the pockets? A: Apparently

so. Q: Okay. So the answer is yes. A: Yes. Contrary to Appellant’s assert ion, thi s evide nce m erely establishes t hat Hall’s testimon y at trial was s omew hat incon sistent with Dete ctive S mith’s written summ ary of Hall’s pr

e-tri al state ment, not that Hall actual ly made a contradictory statem ent. Wh en Sm ith testifie d, he d id not have Hall’s act ual statement and thus, Smith could only testify thatthe summary did not contain “a ny indicat ion .

. . of money bei ng taken.” Fur ther, when Hal l was as ked abo ut his pre-trial statementduring cros s-examinati on, he denied telling the police t hat Appellant did not ta ke any money from Johnson.
Further, even if th is evide nce h ad es tablish ed tha t Hall had made two contr ad ictory statements, the state ments would not canceleach other out because Hall’s testimony that he saw Appellant t

ake Johnson’s money that was
on the ground was cor roborated by other e vidence
. See id. Indeed, Appell ant admitted to poli ce in his pr e-tri al state ment that after he shot Johnson, he t ook Johns on’s m oney tha t was on the grou nd.
Finally, Appe llant co ntend s that th e evide nce is insuffici ent because Hall’s testimony

was c ontrad icted b y other witnes ses w ho tes tified tha t they sa w Ha ll, and not Appellant , rummaging through Johnson’ s poc kets. However, “[t] he cred ibility of the witness es, the wei ght to be gi ven their testimony, and the reconcil iation of conflicts in the evide nce are matters entruste d exclusive ly to the-12-

jury as the triers of fact.” State v. Cr ibbs , 967 S.W .2d 773, 793 (Tenn. 199 8). The jury obvious ly believed H all. This issu e has n o merit.

III . APP ELLANT’ S PRE-TRI AL STA TEMENT
Appellant

conte nds th at the tria l court e rred w hen it denied his motio n to suppre ss the pre -trial statem ent that he made to police. Specifically, Appellant cla imsthat his

statement was i nadmissible under the Fi fth Amendment to the United States Consti tution and Articl e I, Secti on 9 of the TennesseeConstitut ion because the statement was given i nvoluntar ily. We disagree.

The Fifth A mend ment to the Unite d States Constitu tion provide s in part tha t “no person . . . shallbe compelled in any criminal case to be a witness agains t himse lf.” U.S. Cons t. amend. V . Similarly, Article I, Section 9 of the Tennessee Constitut ion states t hat “in al l crimi nal prosecut ions, th e accused . . . shall not be compelled to give evidence against himself.” Tenn . Const. art. I, § 9. Howe ver, an accused m ay waive this ri ght against s elf-incrimin ation. Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 1 6 L.Ed.2 d 694 (1 966). In Miranda , the United States Supreme Court held that a suspect must be warn ed prior to a ny ques tioning th at he ha s the rig ht to rem ain silent, that anyt hing he says can be us ed against hi m in a court of law, that he has the ri ght to the prese nce of an attorney, and that if he cannot afford an attorney

one will be appointed for him prior t o any question ing if he so desires. 384 U.S. at 479, 86 S.Ct. at 1630. The Supreme Court held that a suspect may know ingly and intel ligently waive t he right agai nst self-incri mination onl y after being apprised of these rig hts. Id. Acco rdingly , a con stitution al w aiver of the right against self-incri min ation req uires the a ccused to mak e an intellige nt,-13-

knowing, and voluntar y waiver of the rights afforded b y Miranda
. Id. 384 U.S. at 444, 86 S.C t. at 161 2. A co urt ma y conc lude th at a de fenda nt volun tarily waived his rights if, unde r the totality of the circ umstances, the cour t determines that the waiver was uncoerced and that the defendantunderstood theconsequences of waiver. State v. Stephenson , 878 S.W.2d 530, 545 (Ten n. 1 994) (citations omitted).

At the suppres sion hearing, D etective Smith testified that before Appell ant
m ade his

stateme nt, Smit h re ad Ap pel lan t’ s co nst it uti onalri ghts to him . Smi t h testif ied that Appell ant then stated that he understood hi s rights and he signed
a waiver of right s form. Appell ant testified that Sm ith read his constitution al rights to him, bu t he claim ed that he did not un derstan d his rights
.
Appellant

claims that

his statement was involuntary because he wasunder the influence of marijua na whe n he ga ve the sta te me nt. Alt hough Appellant testif ied thathe had used marijuana at 6:00 or 7:00 a.m. on t he day that he made the statem ent, he adm itted tha t he ne ver told Smith aboutthis drug use when he made his statem ent at 4:40 p.m. When asked whether he was st ill intoxi cated when he made the statement, Appellant r ep li ed t hat

he s ti ll had “so me s ymptom s” and he was depressed. However, Smith testifi ed that Appell ant stated that he was not under the in fluence of drugs and he did not appear to be under the influ ence of alcoholor drugs when he made the statement. After listen ing to this

testimony, the tri al court stated th at even if it was t rue that Appellant

had smoked mar ijuana at 7:00 a.m. on t he day that he made t he statem ent, there was no basis for findingthat Appell ant was sti ll under t he influence of marijua na whe n he m ade the statem ent.-14- Appellant

also clai ms that his statement was invol untary because it was coerced. Appellant t

estifi ed that Detect ive Smith told him that if he di d not give the police somethi ng to help t heir case, theywould charge Appellant’ s mother as
an accessory to murder. Appell ant also testifi ed that duri ng a five minut e break thatwas not rec orded , Smith remin ded h im tha t murd er carr ied a p ossib le penalty of death. However, Smith testi fied that t here was never an unreco rded fiv e minute breakin the i ntervi ew and he denied e ven men tioning the death penalty. Smith also denied t hat he ever t hreatened to ch arge Appellant’ s mother as an accessory. After listenin g to this testim ony, the trial c ourt foun d that Sm ith had
nevermentio ned the death pena lty or thre atene d to ch arge A ppella nt’s mother. Thus, the trial c ourt fou nd tha t unde r the tota lity of the c ircum stanc es, Ap pellan t’s statem ent was voluntarily m ade afte r a valid waive r of his rights.
“[A]trial cou rt’s findin gs of f act in a supp ressio n hea ring will b e uph eld unless the evidence p repondera tes otherwise.” State v. Odom , 928 S.W.2d 18, 23 (T enn. 1 996). T he evid ence in this case does not preponder ate against

the trial court’s find ings. Th is issue ha s no m erit.

IV. PRE-

TRIAL I DENTIFICA

TION OF APPELLA NT BY A STATE WITNESS
Appellant

contends that the tri al court erred when it denied his motion to suppress the pre -tria l identifi cation of Appellant by

McKell. Speci fically, Appell ant cla imsthat the identi fication was i nadmiss ibl e because the ident ificat ion procedures used by the poli ce were unduly su ggestive. We disagree.-15- The United States Supreme Court has stated that due process is vi olated if an identi ficati on procedure was so suggestive as to give rise to “a very substanti al likelihood of irreparable m isidentification.” Simmons v. UnitedStates , 390 U.S. 37 7, 384, 8 8 S.Ct . 967, 971, 19 L.Ed.2d 1247 (1968) . However, t he Supr eme Court has also stated th at even when pre-tri al ident ificat ion procedures
a re found to be s ugge stive, ou t-of-co urt and in-cou rt identific ations may s till b e admis sible if the ide ntification wa s reliable. Neil v. Biggers , 409 U.S. 188, 199, 93 S.Ct. 375, 3 82, 34 L.Ed.2d 401 (1972). I t is t he likel ihood of misi dentifi cation thatviolates du e proce ss and renders the identifica tion inadm issible. Id. In Neil , the Supreme Court li sted the factors to be consider ed in determi ning whether t he identif icatio n was too unrel iable to be admitted i nto evidence: 1. the opportunity of t he witness to v iew the criminal at the ti me of the crime; 2. the wit ness’ degree of attenti on at the ti me of the cri me; 3. the accur

acy of the witness’ pr ior descri ption; 4. the lev

el of cert

ainty demonstr

ated at the confrontat ion; 5. the len gth of ti me between the cri me and the confrontation. 409 U.S. at 199–200, 93 S.Ct. at 382.
Initially, Appellant ar

gues that the ph otograp hic line-up used b y McKe ll to identify Appellant was improper ly s uggestive because the photogr aph of Appellant

is the on ly one in which the subj ect is wear ing a red shi rt. We cannot agree that the ph otographic l ine-up was undul y sugges t ive merely because Appellant

was the only subject weari ng a red shirt . We ha ve r eviewed the photo graph ic array sho wn to M cKell, and although Appella nt is the o nly man wearing a red shirt, we note t hat no one co lor p redominates. Indeed, the photo graph ic line-upconsists of three men wearing na vy blue or

black sh irts , two
men wearing white shirts, and one man wearing a red sh irt. In add ition, all six-16-

men are African-A merica n, appe ar to be of the same age, and have simil ar facial features. Thus, we agree wit h the tri al court t hat although i t may h ave been prefer able if al l six men had been wearing the same color shirt, the fact that they
were not does not mean that the l ine -up was unduly su ggestive
. See State v. Edwards , 868 S.W.2d 682, 694 (Tenn. Cri m. App. 1993) (stating that “a lineup
wou ld be considered unduly suggestiv e only when the ot her parti cipants were grossly dissimilar” to the d efendant) (citation om itted).
Appellant

also argues th at the photogra phic line-up was unduly sugg estive because it contained t he same photograph of Appellant t hat McKell had see n on televi sion before h e was shown the li ne-up. However, the record indi cates that although Appellant i ntroduced evi dence at the su ppress ion hea ring that a photograph of Appellant was shown on t elevision, Appell ant failed to introduce evidence at the heari ng showing that it was t he same photograph that was used i n the line-up. Although Appell ant intr oduced evidence at

trialthat it

was the
s ame photograph, t he trialcourt accre dited McKell ’s test imony that he hadnot
seen the photograph o n te levisi on, even though McKel l’s mother testified that s he believed that he ha d seen it.

Even if the photographic line-up could be consider ed i mpro perly suggestive, evidence of the identificati on by McKell woul d stil l be adm i ssible under thetest set fort h by theSupr

eme Cour t in Neil . First , the recor d indicates thatMcKell had a good oppor tunity to view Appellant at

the time of

the shooting. McK ell testified that h e initi ally obser ved Appellant f

or fifteen to thi rty minutes and he then periodi cally obs erved App ellant f or another hour

while Appell ant was playing di ce. McKell al so testi fied that although i t was night, there was a bright-17-

light in the area
. Second, the recor d indicates that McKellwas paying attenti on to Appellant on the night of the shooting. Although McKelladmitted t hat he had
no real reason t

o pay attent ion to Appell ant before theshoo ting oc curred , McK ell denied that he never g ot a good look at Appel lant. Thi rd, the r ecord indi cates that M cKell had give n an ac curate d escription of Appe llant. Indeed, the rec ord indicates that on thenightof the shooting, McKelltold the poli ce that the s hooter had braids with be ads in them , was w earing dark c lothes , and h ad da rker sk in than the other m an he w as with. The record also ind icates that Mc Kell ga ve this descripti on before Ap pellan t’s ph otograph was shown on televi sion. Fourt h, the record indicates that McKellident ifiedAppellant’ s photograph as soon as the li neup was show n tohim
. Finally , the recor d indicates that th e identi ficati on was reliable because it took place only

five day s after the shoo ting. See, e.g. , State
v. Strickl and , 885 S .W .2d 85 , 88 (T enn. C rim. A pp. 19 93 ) (ho ldin g t hat identif icatio n that took place one week after the crime w as reliable ). In short, we hold that the ph otographic l ine-up was not so sugges tive t ha t intr oduction of evidence about McKell’ s identi ficati on of Appellant’s photograph and McK ell’ s subsequent in-court

identificatio n of Appe llant viola ted du e proc ess. T his issue has no merit.

V. JURY I NSTRUCTIONS
Appellant

contends tha t the trial court erre d when it instructed the jury pursuantto Tennessee Code Annotated sec tion 40-35-201 about t he time period thatAppellant woul d be required t o serve befor

e he would be eli gible fo r parole. Specifically, Appellant c laims that section 40- 35 - 201 is un constitution al. W e disagree.-18- The record indi cates that before trial, Appel lant fi led severalmotions requestingjury i nstructi ons about the possibl e range ofpunishment for each of the charged offens es as well as al l lesser included offenses. At t he s ame t ime Appellant

filed these motions, Appellant also filed a motion stat ing that t he trial court shou ld not inst ruct the j ury about par ole eli gibility pursuant to secti on 40-35- 201 becau se that se ction was uncon sti tutiona l. In resp onse to App ellant’s motion, the trialcourt caut ioned Appella nt that t he requested i nstructi ons about range of punishment woul d require t he court to comply with sec tion 40-35-201 and also instru ct the jury ab out paro le eligibility. At the close o f trial, the court instructed the jury

about both t he possible r ange of punishment and parole eligibility for the va rious offen ses.

When John son w as killed in 1994, Tennessee Code Annotated sect ion 40- 35-201 provided , in relevant p art: (b)(1) I n all contested cri minal cases, ex cept for ca pital crimes which are governed by the procedur es contained i n §§ 39-13-204 and 39-13-205, upon the motion o f either party, filed with the court pri or to the sel ection of the jury, the court s hall charge t he possible penalties for the offense charged and all lesser incl uded offenses. (2)(A) (i) When a charge as to possibl e penalti es has been requ est ed pursuantto sub division (b)(1), th e judg e sha ll a lso include i n the instruct ions for the j ury to wei gh an d conside r the me aning o f a sentence of impris on ment fo r the offense charged and any l esser included offens es. Su ch inst ruction shall i nclude an app roximate calculat ion of the mini mum number of years a per son senten ced to imprisonmentforthe offens e charged and lesser i ncluded offenses must serve before reach ing su ch pe rson’s earliest rele ase eligib ility date. Such calculation shallinclude such factors as t he release eligibility percentage established by § 40-35-501, maxi mum and minimum sentence reduct ion credits authorized by § 41-21-236 and the governo r’s powe r to reduce prison overcr owdin g purs uant to title 41, chapter 1, part 5, if applicable. (ii) Such instruction s to the jury shall also incl ude a statement thatwhether a defendant is a ct ually r eleased from incarcerat ion on the date w hen s uch d efend ant is first eligible for release is a discre tionary decision m ade by the bo ard o f parol e s based upon many factor s, and that

such board has2 A 1998 amendment rewrote subsecti on (b) to pr ovide: In allcontested cri minal cases, except for capit

al crimes which are governed by the procedures contained i n §§ 39-13-204 and 39- 13-205, and as necessar y to comply

with t he Constitution of Ten nes see , article VI, se ction 14, a nd § 4 0-35 -301 , the ju dge shall n ot ins truct the ju ry, nor shall the attor

neys be permitt

ed to comment at any ti me to the jury , on possibl e penalti es for the offense charged nor

all l esser incl uded offenses. Tenn. Code An n. § 40-35-201(b) (Supp. 1998 ). -19-

the authority to re quire th e defend ant to serve the en tire senten ce imp osed b y the cou rt. (B) O n an a nnua l basis, th e dep artme nt of co rrection shall provide each judge exercis ing crim inal trial co urt jurisdict ion with t he app rox ima te calculation requi red in subdivisi on (2)(A). Such calculat ion shall be b roken d own to s how the effect of each fa cto r used in makin g such calculation
. If the calculat ion provided by the department to t he judges changes because of a change in the l aw or correcti onal poli cy, court intervention, t he governor' s prison overcrowdi ng policy or any other such ci rcumstance, t he department shall send a revised calculat ion to thejudges as such changes occur. Tenn. Code A nn. § 40-35-2 01 (1994). 2 Ap pella nt con tends that this statute is unconstit utional because it is unco nstitutio nally va gue, it vio lates d ue pro cess , it deprivesdefendants of impartialjuries, an d it co nstitutes an unconstit utional attemptby the legislature to exerci se judici al powers. However, the Tennessee Supr eme Court has previ ously analy zed and rejected identi cal arguments. See State v. King , 9 73 S.W .2d 586 (Te nn. 1998). Inde ed, the suprem e court spec ifically held that

this statute was not unco nstitutiona lly vague, id. at 590; that
an instruct ion unde r this s tatute di d not viol ate due process by misleading t he jury, id. at 592; that an inst ruction under this statute did not violate due process by depriving the defen dant of an impartial jur y, id. at 588 n.4; and that this statu te does not violate the Separati on of Powers Clause of the Tennessee Constitut ion, id. at 592. T his issue has no merit.

VI. LENGTH OF SENTEN CE-20- Appellant

contends tha t the tri al court err oneously sentenced him to a longer term than he deserves for the robber y convict ion. We disagree.

“When reviewing senten cing issu es . . . incl uding the grant ing or deni al of probation and the lengt h of sentence, the appellate cou rt shall conduc t a de novo review on the record of such issues. Such revi ew shall be conduct ed with a presumption that the determinati ons made by the co urt from which the ap peal is taken are corre ct.” T enn. Code Ann. § 40-35- 401(d) (1997). “However, t he presum pti on o f correc tness which acco mpa nies th e trial co urt’s ac tion is cond itio ned u pon the affirma tive showing in the re cord that the trial court considered the sentencing principl es and all rele vant facts a nd circum stance s.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conduct ing our review, we must cons id er all the evidence, the presentence report , the sentencing pri nciples, the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s statements, the nature and cha racter of the offens e, and the defendant’s potential forrehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210( b) (1997 & Supp. 1998); Ashby , 823 S.W.2d at 169 . “The d efendant has t he burden of demonstratingthat th e sentence i s imprope r.” Id. Beca use th e reco rd in this
case indicates that the trial court did n ot properly cons id er the sentenc ing principl es and all releva nt facts and c ircum stanc es, ou r review is de novo without a presumption of correctness.

Initia lly, we note that robb ery is a Cla ss C felo ny. See Tenn . C ode Ann
. § 39-17-401(b) (1997). The sentence for a Range I offender convicted of a Class C felony i s between three a nd six year s. Tenn. Code Ann. § 40 -35-112(a)(3) (1997). When there are enhancement but n o mi tigati ng factors, the court may-21-

set the sentence above the minimum withi n the appli cabl e senten cing range. Tenn. Code Ann. § 40-35-210(d)(1997). When both en hancement and mitigati ng factors ar

e applicabl e to a sentence, the cour t is directed to begin w ith the minimum sentence, enhance t he sentence wit hin the rangeas appropriate for the enhancement factor s, and then reduce the sentence within the range as approp riate for the m itigating facto rs. Tenn . Code Ann. § 40-35-210(e) (1997).

In sentenci ng Appellant to a term of fiv e years for

his robbery

convicti on, the trialcourt determined that enhancement factor ( 1) applied because Appellant had a pre vious hist ory of criminal convictions or behavi or in addition t o those
necessa ry to establish the app ropriate ra nge, tha t enhan ceme nt f actor (4) applie d because the victim of the off ense was parti cularly

vulnerabl e due to age, and t hat
en hancement factor (8) applied be cause Ap pellant had a p revious history o f unwillingnessto com ply with thecondition s of a sen tence invo lving releas e into the commu nity. See Tenn. C ode Ann . § 40-35-114 (1), (4), & (8) (1997). Although the rec ord is not en tirely clear, t he trialcourt apparent ly determined that
none of the enumeratedmitigati ng factors of Tennessee Code Annotated section 40-35-1 13 app lied.
Appellant

does not chall en ge the application of enh ancem ent factor (1), and we co nclud e that it w as co rrectly applied. Indeed , the record indicates that Appellant

has previous convicti ons for attempted burglary , driv ing on a revoked license, reckl ess drivi ng, a weapons offense, and two con victions for th eft. W e conclude in o ur de novo review tha t this factor is e ntitled to sign ificant weig ht.-22- Appellant

similar ly does not challenge t he applicat ion of enha nce ment factor (8), and we also agree t hat this factor was correctl y applied. Indeed, the record indicates thatAppellant has previously viol ated the terms of probati on and that violation resulted in the revoc ation of his probatio n.
Appellant

does challe nge the trial court’s applicat ion o f enhancement factor (4). Specifically, Appellant contends that this factor shoul d not have been appli ed because other th an his age of fifteen years, t here was no proof t hat Johnson had any particular vulnerability. We conc lude th at the tria l court e rred w hen it applied enha ncem e nt fact or (4). As stated by t his court in State v. Butler , 900 S.W.2d 305, 31 3 (Ten n. Crim. A pp. 199 4), [A] victim is particu larly vulner able w ithin the mea ning o f this enhancement factor when the victim la cks the abil ity to resist the commission of the c ri me due to age, a physic al con dition, o r a me ntal co ndition . A victim is also particu larly vulnerab le when his or her a bility to summons assistance is impaired; or the victi m does not have the capacity to test ify against the perpetrator of the c rime. Howe ver, a findi ng that one of these condi tions exists does n ot, as a m atter of law, m ean tha t t hi s facto r is auto matic ally considered. The appellant must have taken advantage of one or more of these condition s during th e com mission of th e crime . T he state had t he burden of establish ing the lim itations tha t r ender th e victim “particu larly vulnerabl e.” Th e state al so had the burden of establi shing that

the conditi on which rende red the victim “p articula rly vulnerabl e” was a factor in the commissi on of the of fense. Here, the state fa iled to meet its bur den. There is no pr

oof in therecord that John son’s age h ad an y effect o n his abili ty to resist commissi on of the robbery, on his abil ity to summon help, orhis ability to testif y against Appel lant if

he had not been k illed. Fur ther, t here is no pro of that Appel lant took advantage of John son’s age or any other conditi on when he shot him in t he head and to ok his money. See, e.g. , id. (hol ding that enhancement factor (4) did not appl y in a murder case because the vi ctim’s age had not hing t o do with resi sting th e unexpecte d firing of a gun).-23- Appellant

also challenges the tria l court’ s fail ure to apply any mitigat ing factors to his sentence. Specif icall y, Appell ant contendsthat miti gating factor (6) applied in that

Appe llant lac ked s ubsta ntial jud gme nt bec ause of his youth. See Tenn. Code Ann. § 4 0-35-11 3(6) (199 7). Wh en de termin ing the appli cabili ty of this mitigati ng factor, the sentencing c ourt should consider “the defendant’s age, education, maturity , experi ence, mental capacity or development, and any other pertinent

circums tance ten ding to demonstrate thedefendant’s abili ty or

inability to appreciate the nature of his con duct.” State v . Ad ams , 86 4 S.W.2d 31, 33 (Tenn. 1993). In support of h is content ion, Appell ant merely states that he was twenty years old at the time of the robbery. Appellant h as fail ed to indi cate how his age or anything elseaffected his judgm ent when h e comm itted the robbery. Indeed, the record indicates t hat Appellant is acquainted with the criminal justice system and further, that he had t he presence of mindto attem pt to co ver up his involvement in the crime by altering his appearance, washi ng the money and the gun, and reloadi ng the gun to make it appear as thou gh it had not been fi red. Thus, mitigat ing factor (6) was not applicabl e.

The State conte nds th at the tria l court s hould have applied enhancement factor (6) because t he inju ries to t he victi m were particul arly gre at and enhancement factor

(9) because Appell ant used a firearm in the commission of the robbery. See Tenn. Code Ann. § 4 0-35-11 4(6), (9) (19 97). W e agree . It goes without

saying that de ath is a “particularly great” perso nal injury and further, it is undisputed that Appell ant used a gun when he committed the ro bbery. Neither one of these factors is an element of or

is inherent in thecrime of robb ery. See Tenn. C ode Ann . § 40-35-401 (a) (1997) (“Ro bbery is th e intenti onal or know ing theft of property fr om the person of another by violenceor-24-

putting the pe rson in fear.”). Thus, we co nclude that the trial cou rt should have applied enh ancem ent factors (6) and (9) to Appellant’s sen tence for robbe ry.

In our de novo rev iew, we concl ude that four en hancem ent and no mitigati ng factors apply to Appe llant’s se ntenc e for rob bery. T hus, w e hold that
a sentence of f ive years is enti rely ap propr iate in this case. This issue has no merit.

VII.CONSECUTIVESENTENCING
Appellant

contends that

the tri al court erred when it or dered his sentences to run consecut ively . We disagree.

Consec utive sentencing is g overned by T enne ssee Code Annotated section 40-35-115. The t rial cour t has the di scretion t o ord er consecu tive sentencing if it

finds t hat one or more of the requ ired statuto ry criteria exist. State
v. Black , 924 S.W .2d 912, 91 7 (Te nn. C rim. A pp. 19 95). Fu rther, th e cou rt is required to determine whether the c onsecutive se ntences (1) a re rea sona bly related to the severity of the offens es committed; (2) serve to protec t the pu blic from further

criminal conduct by t he offende r; and (3) are congruent with gene ral principl es of senten cing. State v. Wilkerson , 905 S.W .2d 933, 939 (Tenn. 199 5).

In imposing consecutive sentences, the tri al court found that Appell ant was
a dangerous offe nder whose behavior indicates little or no regard for hum an life and who has no hesitation in comm itting a crime in which th e risk to hu man life-25-

is high. See Tenn. C ode Ann . § 40-35-115 (4) (1997). Specifically, the trial court stated that [T]he act t hat was committed[, ] that t he Jury accepte d and return ed the ir verdicton[,] has got to be one that would be done by a person whose behavior

indicates lit

tle or noregard for human li fe and no hesitation about committing a cr ime in which the ri sk to human lif e is high. . . . [ I]f a young man , kneeling down, rolli ng dice is shot one time i n the head a nd fou r times in the backand le ft to die in a totally sens eless, cr uel[,]outrageous way, the person whodoes tha t[,] that this Jury fo und do es that[,] ha s to be a person who consider s very l ittl e regard in co nnection wi th their behavior for hum an life.
We agree that t his brutalmurder of a young man who was merely engaged in pl aying a game of di ce demonstrates t hat Appellant is a dangerous of

fen de r who has lit

tle or no r

egard for

human life and has no hesitat ion about committ ing
a crime in which the ri sk to human life is high. Indeed, the record i ndicates t hat Appellant

pl aced hi s gun on or very near the top of Johnson’s head when Johnson was kneeling on t he ground and then s hot Johnson once in th e head and four ti mes in the back. Further, al though the trialcourt made no express finding, we conclud e in our denov oreview that conse cutive sentence s are necessa ry to protectthe publi c from futur e criminal conduct of

Appellant. Indeed, Appe llant’s criminal record indi cates that his cri minal conduct has beco me m ore and more serious over time. I n additi on, his cal lous comment that Jo hnson was “justone less nigger

[he had] to worry about” indicates that he poses acontinui ng threat to the p ublic. F inally , the cru el and sens eless nature of App ellant’s conduct indica tes tha t cons ecutiv e sentences are r easonably rel ated to the severity of the off

enses and are congruent with generalprincipl es of sentenci ng. This issu e has n o merit.

According ly, the j udgment of t he trial cour

t is AFFIRMED
.-26- ____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ WILLI AM M. B ARKER, SPECI AL JUDGE