FILED

April 23, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9604-CR-00162

)

Appellee, )

)

) DAVIDSON COUNTY

VS. )

) HON. J. RANDALL WYATT, JR.

JASPER D. LEWIS, ) JUDGE

)

Appellant. ) (Direct Appeal; First Degree Murder

) and One Count of Robbery)

FOR THE APPELLANT: FOR THE APPELLEE:

JEFFREY A. DEVASHER JOHN KNOX WALKUP

Assistant Public Defender Attorney General and Reporter

(On Appeal)

KAREN M. YACUZZO

DAVID BAKER Assistant Attorney General

Assistant Public Defender 425 5th Avenue N.

(At Trial) Nashville, TN 37243

JEFFERSON T. DORSEY VICTOR S. JOHNSON

Assistant Public Defender District Attorney General

(At Trial)

1202 Stahlman Building KATRIN MILLER

Nashville, TN 37201 Assistant District Attorney

222 Second Avenue, North

Suite 500

Nashville, TN 37201

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
-2-

OPINION

On September 14, 1995, a Davidson County jury convicted Appellant

Jasper D. Lewis of one count of first degree murder and one count of robbery.

The trial court subsequently sentenced Appellant as a Range I standard offender

to consecutive terms of life imprisonment for the first degree murder conviction

and five years for the robbery conviction. Appellant challenges both his

convictions and his sentences, raising the following issues:

1) whether the evidence is sufficient to support Appellant’s convictions for

first degree murder and robbery;

2) whether the trial court should have suppressed a statement that

Appellant made to police;

3) whether the trial court should have suppressed the pre-trial identification

of Appellant by one of the State’s witnesses;

4) whether the trial court erred when it instructed the jury about the

minimum number of years that Appellant would have to serve for each

offense before he would become eligible for parole; 

5) whether the trial court imposed an excessive sentence for the robbery

conviction; and

6) whether the trial court erred when it ordered the sentences to be served

consecutively.

After a review of the record, we affirm the judgment of the trial court.

I. FACTS

Daniel McKell testified that on October 28, 1994, he and Fernando

Johnson were sitting in front of an apartm ent building on Buchanan Street in

Nashville, Tennessee, with some other individuals. Johnson eventually left this

group and joined Appellant and Sam Hall in a dice game about thirty to forty feet

away from McKell. Appellant was wearing dark clothing and he had black and

white beads in his hair.
-3-

McKell testified that while he was talking to some other individuals, he

heard some gunshots. When McKell looked in the direction of the dice game, he

saw Appellant shoot Johnson, who was on his knees shooting dice. McKell

heard a total of four or five shots. At this point, McKell ran to the other side of the

apartment building. 

McKell testified that later that night, he gave the police a description of

Appellant. A few days later, McKell identified the photographs of Appellant and

Hall out of two groups of photographs that were shown to him by the police.

McKell also testified that he could not remember whether he had seen

Appellant’s photograph on television before he identified the photograph of

Appellant shown to him by the police. 

Robert Davidson, Jr., testified that he was about twenty feet away from the

dice game when the shooting occurred. Davidson estimated that Johnson had

been playing dice for thirty to forty-five minutes before he was shot. 

Samuel Hall testified that he and Appellant drove to the apartments on

Buchanan Street at some time around 9:30 p.m. on the night of the shooting.

Hall, Appellant, Johnson, and Quenton Carrethers eventually began playing a

game of dice. During the dice game, Johnson won some money from Appellant.

Hall testified that Johnson and Appellant were engaging in “regular trash talk”

during the dice game. 

Hall testified that while Johnson was on his knees picking up the money on

the ground in front of him, Appellant shot Johnson in the head. Appellant then
-4-

shot Johnson four times in the back and then took money that was in Johnson’s

hand. At this point, Hall ran back to the car that he had driven to the apartment

building. After Hall had driven about three blocks from the scene of the shooting,

he saw Appellant. Appellant then got in the car and Hall drove to Appellant’s

girlfriend’s residence. Hall testified that when he stated that Appellant had killed

Johnson, Appellant replied, “I ain’t worried about it. That’s just one less nigger

I have to worry about.” 

Hall testified that when he and Appellant arrived at Appellant’s girlfriend’s

residence, Appellant changed his clothes, took the beads out of his hair, and then

washed his gun and the money that he had taken from Johnson. After Appellant

reloaded his gun, Hall and Johnson went to another friend’s house where

Appellant asked someone to call his grandmother. Appellant and Hall then went

back to Appellant’s girlfriend’s residence where Appellant met his mother and his

mother drove him away in her car. 

Joyce Baker, Appellant’s mother, testified that on the night of the shooting,

she took a gun away from Appellant. Baker threw the gun in a dumpster the next

day, but she eventually contacted the police and assisted them in recovering the

gun. Baker also testified that on the night of the shooting, she advised Appellant

to travel to Indiana to stay with his father. When Baker later learned that a

warrant had been issued for Appellant’s arrest, she called Appellant and told him

to come back to Nashville. After Appellant returned to Nashville, Baker took him

to police headquarters. 
-5-

Detective Brad Putnam of the Metro Police Department testified that he

was present when police officers recovered a .380 automatic handgun from a

dumpster on October 30, 1994. 

Agent Tomm y Heflin of the Tennessee Bureau of Investigation testified that

he had compared the shell casings and bullets found at the scene of the shooting

and the bullets recovered from the body of Johnson with the .380 automatic

handgun. Agent Heflin concluded that the bullets and casings were fired from the

gun. 

Detective Mike Smith of the Metro Police Department testified that on

October 30, 1994, Appellant’s mother brought Appellant to police headquarters.

Smith then advised Appellant of his constitutional rights and Appellant agreed to

waive his rights and make a statement. 

In the statement that he gave to police, Appellant initially claimed that

someone else had killed Johnson after Appellant quit playing dice and walked

away. However, Appellant eventually admitted that he shot Johnson with a .380

autom atic handgun. Appellant also admitted that after he shot Johnson, he took

Johnson’s money that was on the ground. Appellant stated that although he and

Johnson called each other names, Johnson never threatened him. Appellant also

stated that although he accused Johnson of cheating during the dice game, that

was not why he shot Johnson. Appellant stated that he did not know why he shot

Johnson. 
-6-

II. SUFFICIENCY OF THE EVIDENCE

Appellant contends that evidence is insufficient to support his convictions

for first degree murder and robbery. We disagree.

When an appellant challenges the sufficiency of the evidence, this Court

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s witnesses and resolves all conflicts 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 presumption 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 Appellant to

demonstrate the insufficiency of the convicting evidence. Id. On appeal, “the

[S]tate is entitled to the strongest legitimate view of the evidence as well as all

reasonable and legitimate inferences that may be drawn therefrom.” Id. Where

the sufficiency of the evidence is contested on appeal, the relevant question for

the reviewing court is whether any rational trier of fact 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. 2781, 2789, 61 L. Ed. 2d 560

(1979). In conducting our evaluation of the convicting evidence, this Court is

precluded from reweighing or reconsidering the evidence. State v. Morgan, 929

S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, this Court may not

substitute its own inferences “for those drawn by the trier of fact from

circumstantial evidence.” State v. Matthews 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Finally, Rule 13(e) of the Tennessee Rules of Appellate Procedure
1A 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) (“First degree murder is: A premeditated and intentional killing

of another.”).

-7-

provides, “findings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier

of fact beyond a reasonable doubt.”

A. First Degree Murder Conviction

Appellant contends that the evidence is insufficient to support his

conviction for first degree murder because the State failed to establish that he

killed Johnson with premeditation and deliberation. 

When Johnson was killed in 1994, Tennessee’s first degree murder statute

provided that “[f]irst degree murder is: [a]n intentional, premeditated and

deliberate killing of another.” Tenn. Code Ann. § 39-13-202 (1994). 1

Premeditation requires a showing of a previously formed design or intent to kill.

State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). Deliberation requires that the

offense be committed with cool purpose, free of the passions of the moment. Id.

Although premeditation “may be formed in an instant, deliberation requires some

period of reflection, during which the mind is ‘free from the influence of

excitement, or passion.’” State v. Brown, 836 S.W.2d 530, 538 (Tenn. 1992)

(citation omitted). While it remains true that no specific length of time is required

for the formation of a cool, dispassionate intent to kill, more than a “split-second”

of reflection is required in order to satisfy the elements of premeditation and

deliberation. Id. at 543. 
-8-

The elements of premeditation and deliberation are questions for the jury

which may be established by proof of the circumstances surrounding the killing.

State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Bordis, 905 S.W.2d

214, 222 (Tenn. Crim. App. 1995). Tennessee courts have delineated several

circumstances that may be indicative of premeditation and deliberation, including

the use of a deadly weapon upon an unarmed victim, Brown, 836 S.W.2d at 841;

facts from which motive may be inferred, Bordis, 905 S.W .2d at 222; and

calmness imm ediately after the killing, Bland, 958 S.W .2d at 660. 

Considering the proof in the record in the light most favorable to the State,

as we are required to do, we hold that the evidence is sufficient to establish

premeditation and deliberation. First, the record indicates that Johnson was

unarmed when Appellant shot him with an automatic handgun. In addition,

McKell and Hall both testified that Johnson was on his knees when Appellant

shot him. Further, the record indicates that Appellant placed his gun either

against or very near Johnson’s head when he shot him. Second, the State

introduced evidence from which a jury could infer that Appellant had a motive for

killing Johnson. The record indicates that during the thirty to forty-five minute

dice game, Johnson won most of the bets and took money from several people,

including Appellant. In addition, Hall testified that after Appellant shot Johnson,

Appellant took Johnson’s m oney that was on the ground. In fact, Appellant

admitted in his statem ent to the police that after he shot Johnson, he took

Johnson’s money that was on the ground. A rational jury could infer from these

facts that Appellant had killed Johnson in order to take his money. Third, the

record indicates that immediately after the killing, Appellant was calm. Indeed,

Hall testified that when he picked up Appellant shortly after the killing and told
-9-

Appellant that Johnson was dead, Appellant replied, “I ain’t worried about it.

That’s just one less nigger I have to worry about.” Shortly thereafter, Appellant

went to his girlfriend’s residence, changed his clothes, took the beads out of his

hair, washed the blood off his gun and the money that he had taken from

Johnson, and then went with Hall to the residence of another friend. In short, a

rational jury could conclude from these circumstances that Appellant decided to

kill Johnson and then reflected on that decision with cool purpose for some period

that was at least more than a “split-second” before he shot and killed Johnson.

This issue has no merit.

B. Robbery Conviction

Appellant contends that the evidence is insufficient to support his

conviction for robbery. Under Tennessee Code Annotated section 39-13-401(a),

“[r]obbery is the intentional or knowing theft of property from the person of

another by violence or putting the person in fear.” Tenn. Code. Ann. § 39-13-

401(a) (1994). Appellant claims that the evidence is insufficient to convict him

under this statute because the only evidence that he had taken anything from

Johnson came from the testimony of Hall, and this testimony was contradicted

by Hall’s previous statement to police.

The general rule in Tennessee is that “contradictory statements by a

witness in connection with the same fact cancel each other.” State v. Matthews,

888 S.W.2d 446, 450 (Tenn. Crim. App. 1993) (citations omitted). However,

“[t]his rule of cancellation applies only when inconsistency in a witness’ testimony
-10-

is unexplained and when neither version of his testimony is corroborated by other

evidence.” Id. (citation omitted).

Initially, we note that it is not clear that Hall’s testimony at trial and his pretrial statement to police were contradictory. The record indicates that during

Hall’s direct examination, the following colloquy occurred:

A: He went into the bedroom. When he went to the bedroom, he

went to go get some clothes, to change his clothes. Then he went into the

bathroom to wash his gun and wash the money.

Q: Washing the gun and washing the money?

A: Yes, sir.

Q: What money are you talking about?

A: The money that he took from Fernando Johnson.

Q: When did he do that?

A: When he was—when he shot him in the head, he shot him like

four more times in the back. He flipped him over and went inside his

pockets.

Q: And was there money in Fernando’s pockets?

A: Yes, sir.

Q: How did you see that?

A: Because when he was pulling it out, the only thing I seen was,

you know, there was some money in front of him, the money he was

counting. Then he had some money in his pocket. So I seen him when he

grabbed the money in his hand. Then I seen him when he was going

through his pockets. 

The record also indicates that the following colloquy occurred during the crossexamination of Detective Smith:

Q: So Sam Hall told you that he did not see—if you remember back

and think about it, he told you that he did not see Jasper Lewis take

anything or go through the victim’s pockets.

A: I’m sorry. I stand to be corrected, sir. You confused me. I

thought Hall himself said he didn’t rummage through the pockets, but he

said that—he said that Jasper rolled Fernando over and went through his

pockets.

Q: It’s true, is it not, Detective, that in that taped statement, Sam Hall

told you he did not see Jasper Lewis take any money from Fernando

Johnson.

A: You know, I haven’t listened to that taped statement in a while.

This is a summary. Now, as far as the money, I don’t know. Going

through his pocket, I’m—I’m sure I’m correct by my transcripts here. So

if—if the answer is I don’t have any indication here of money being taken.

Just going through his pockets.
-11-

Q: All right. Well, I believe what—what Sam Hall told you, isn’t it

correct, that—that Jasper, according to Sam, rolled 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 assertion, this evidence merely establishes that

Hall’s testimony at trial was somewhat inconsistent with Detective Smith’s written

summary of Hall’s pre-trial statement, not that Hall actually made a contradictory

statement. When Sm ith testified, he did not have Hall’s actual statement and

thus, Smith could only testify that the summary did not contain “any indication .

. . of money being taken.” Further, when Hall was asked about his pre-trial

statement during cross-examination, he denied telling the police that Appellant

did not take any money from Johnson.

Further, even if this evidence had established that Hall had made two

contradictory statements, the statements would not cancel each other out

because Hall’s testimony that he saw Appellant take Johnson’s money that was

on the ground was corroborated by other evidence. See id. Indeed, Appellant

admitted to police in his pre-trial statement that after he shot Johnson, he took

Johnson’s money that was on the ground. 

Finally, Appellant contends that the evidence is insufficient because Hall’s

testimony was contradicted by other witnesses who testified that they saw Hall,

and not Appellant, rummaging through Johnson’s pockets. However, “[t]he

credibility of the witnesses, the weight to be given their testimony, and the

reconciliation of conflicts in the evidence are matters entrusted exclusively to the
-12-

jury as the triers of fact.” State v. Cribbs, 967 S.W.2d 773, 793 (Tenn. 1998).

The jury obviously believed Hall. This issue has no merit.

III. APPELLANT’S PRE-TRIAL STATEMENT

Appellant contends that the trial court erred when it denied his motion to

suppress the pre-trial statement that he made to police. Specifically, Appellant

claims that his statement was inadmissible under the Fifth Amendment to the

United States Constitution and Article I, Section 9 of the Tennessee Constitution

because the statement was given involuntarily. We disagree.

The Fifth Amendment to the United States Constitution provides in part that

“no person . . . shall be compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. Similarly, Article I, Section 9 of the Tennessee

Constitution states that “in all criminal prosecutions, the accused . . . shall not be

compelled to give evidence against himself.” Tenn. Const. art. I, § 9. However,

an accused m ay waive this right against self-incrimination. Miranda v. Arizona,

384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). In Miranda, the

United States Supreme Court held that a suspect

must be warned prior to any questioning that he has the right to rem ain

silent, that anything he says can be used against him in a court of law, that

he has the right to the presence of an attorney, and that if he cannot afford

an attorney one will be appointed for him prior to any questioning if he so

desires. 

384 U.S. at 479, 86 S.Ct. at 1630. The Supreme Court held that a suspect may

knowingly and intelligently waive the right against self-incrimination only after

being apprised of these rights. Id. Accordingly, a constitutional waiver of the

right against self-incrimination requires the accused to make an intelligent,
-13-

knowing, and voluntary waiver of the rights afforded by Miranda. Id. 384 U.S. at

444, 86 S.Ct. at 1612. A court may conclude that a defendant voluntarily waived

his rights if, under the totality of the circumstances, the court determines that the

waiver was uncoerced and that the defendant understood the consequences of

waiver. State v. Stephenson, 878 S.W.2d 530, 545 (Tenn. 1994) (citations

omitted).

At the suppression hearing, Detective Smith testified that before Appellant

made his statement, Smith read Appellant’s constitutional rights to him. Smith

testified that Appellant then stated that he understood his rights and he signed

a waiver of rights form. Appellant testified that Smith read his constitutional rights

to him, but he claimed that he did not understand his rights. 

Appellant claims that his statement was involuntary because he was under

the influence of marijuana when he gave the statement. Although Appellant

testified that he had used marijuana at 6:00 or 7:00 a.m. on the day that he made

the statement, he admitted that he never told Smith about this drug use when he

made his statement at 4:40 p.m. When asked whether he was still intoxicated

when he made the statement, Appellant replied that he still had “some

symptoms” and he was depressed. However, Smith testified that Appellant

stated that he was not under the influence of drugs and he did not appear to be

under the influence of alcohol or drugs when he made the statement. After

listening to this testimony, the trial court stated that even if it was true that

Appellant had smoked marijuana at 7:00 a.m. on the day that he made the

statement, there was no basis for finding that Appellant was still under the

influence of marijuana when he made the statement. 
-14-

Appellant also claims that his statement was involuntary because it was

coerced. Appellant testified that Detective Smith told him that if he did not give

the police something to help their case, they would charge Appellant’s mother as

an accessory to murder. Appellant also testified that during a five minute break

that was not recorded, Smith reminded him that murder carried a possible penalty

of death. However, Smith testified that there was never an unrecorded five

minute break in the interview and he denied even mentioning the death penalty.

Smith also denied that he ever threatened to charge Appellant’s mother as an

accessory. After listening to this testimony, the trial court found that Sm ith had

never mentioned the death penalty or threatened to charge Appellant’s mother.

Thus, the trial court found that under the totality of the circumstances, Appellant’s

statement was voluntarily made after a valid waiver of his rights. 

“[A] trial court’s findings of fact in a suppression hearing will be upheld

unless the evidence preponderates otherwise.” State v. Odom, 928 S.W.2d 18,

23 (Tenn. 1996). The evidence in this case does not preponderate against the

trial court’s findings. This issue has no merit.

IV. PRE-TRIAL IDENTIFICATION OF APPELLANT BY A STATE WITNESS

Appellant contends that the trial court erred when it denied his motion to

suppress the pre-trial identification of Appellant by McKell. Specifically, Appellant

claims that the identification was inadmissible because the identification

procedures used by the police were unduly suggestive. We disagree.
-15-

 The United States Supreme Court has stated that due process is violated

if an identification procedure was so suggestive as to give rise to “a very

substantial likelihood of irreparable m isidentification.” Simmons v. United States,

390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). However, the

Supreme Court has also stated that even when pre-trial identification procedures

are found to be suggestive, out-of-court and in-court identifications may still be

admissible if the identification was reliable. Neil v. Biggers, 409 U.S. 188, 199,

93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). It is the likelihood of misidentification

that violates due process and renders the identification inadm issible. Id. In Neil,

the Supreme Court listed the factors to be considered in determining whether the

identification was too unreliable to be admitted into evidence:

1. the opportunity of the witness to view the criminal at the time of the

crime;

2. the witness’ degree of attention at the time of the crime;

3. the accuracy of the witness’ prior description;

4. the level of certainty demonstrated at the confrontation;

5. the length of time between the crime and the confrontation.

409 U.S. at 199–200, 93 S.Ct. at 382.

 Initially, Appellant argues that the photographic line-up used by McKell to

identify Appellant was improperly suggestive because the photograph of

Appellant is the only one in which the subject is wearing a red shirt. We cannot

agree that the photographic line-up was unduly suggestive merely because

Appellant was the only subject wearing a red shirt. We have reviewed the

photographic array shown to McKell, and although Appellant is the only man

wearing a red shirt, we note that no one color predominates. Indeed, the

photographic line-up consists of three men wearing navy blue or black shirts, two

men wearing white shirts, and one man wearing a red shirt. In addition, all six
-16-

men are African-American, appear to be of the same age, and have similar facial

features. Thus, we agree with the trial court that although it may have been

preferable if all six men had been wearing the same color shirt, the fact that they

were not does not mean that the line-up was unduly suggestive. See State v.

Edwards, 868 S.W.2d 682, 694 (Tenn. Crim. App. 1993) (stating that “a lineup

would be considered unduly suggestive only when the other participants were

grossly dissimilar” to the defendant) (citation om itted).

Appellant also argues that the photographic line-up was unduly suggestive

because it contained the same photograph of Appellant that McKell had seen on

television before he was shown the line-up. However, the record indicates that

although Appellant introduced evidence at the suppression hearing that a

photograph of Appellant was shown on television, Appellant failed to introduce

evidence at the hearing showing that it was the same photograph that was used

in the line-up. Although Appellant introduced evidence at trial that it was the

same photograph, the trial court accredited McKell’s testimony that he had not

seen the photograph on television, even though McKell’s mother testified that she

believed that he had seen it. 

Even if the photographic line-up could be considered improperly

suggestive, evidence of the identification by McKell would still be admissible

under the test set forth by the Supreme Court in Neil. First, the record indicates

that McKell had a good opportunity to view Appellant at the time of the shooting.

McKell testified that he initially observed Appellant for fifteen to thirty minutes and

he then periodically observed Appellant for another hour while Appellant was

playing dice. McKell also testified that although it was night, there was a bright
-17-

light in the area. Second, the record indicates that McKell was paying attention

to Appellant on the night of the shooting. Although McKell admitted that he had

no real reason to pay attention to Appellant before the shooting occurred, McKell

denied that he never got a good look at Appellant. Third, the record indicates

that McKell had given an accurate description of Appellant. Indeed, the record

indicates that on the night of the shooting, McKell told the police that the shooter

had braids with beads in them, was wearing dark clothes, and had darker skin

than the other man he was with. The record also indicates that McKell gave this

description before Appellant’s photograph was shown on television. Fourth, the

record indicates that McKell identified Appellant’s photograph as soon as the lineup was shown to him. Finally, the record indicates that the identification was

reliable because it took place only five days after the shooting. See, e.g., State

v. Strickland, 885 S.W.2d 85, 88 (Tenn. Crim. App. 1993 ) (holding that

identification that took place one week after the crime was reliable). In short, we

hold that the photographic line-up was not so suggestive that introduction of

evidence about McKell’s identification of Appellant’s photograph and McKell’s

subsequent in-court identification of Appellant violated due process. This issue

has no merit.

V. JURY INSTRUCTIONS

Appellant contends that the trial court erred when it instructed the jury

pursuant to Tennessee Code Annotated section 40-35-201 about the time period

that Appellant would be required to serve before he would be eligible for parole.

Specifically, Appellant claims that section 40-35-201 is unconstitutional. We

disagree.
-18-

The record indicates that before trial, Appellant filed several motions

requesting jury instructions about the possible range of punishment for each of

the charged offenses as well as all lesser included offenses. At the same time

Appellant filed these motions, Appellant also filed a motion stating that the trial

court should not instruct the jury about parole eligibility pursuant to section 40-35-

201 because that section was unconstitutional. In response to Appellant’s

motion, the trial court cautioned Appellant that the requested instructions about

range of punishment would require the court to comply with section 40-35-201

and also instruct the jury about parole eligibility. At the close of trial, the court

instructed the jury about both the possible range of punishment and parole

eligibility for the various offenses. 

When Johnson was killed in 1994, Tennessee Code Annotated section 40-

35-201 provided, in relevant part:

(b)(1) In all contested criminal cases, except for capital crimes which are

governed by the procedures contained in §§ 39-13-204 and 39-13-205,

upon the motion of either party, filed with the court prior to the selection of

the jury, the court shall charge the possible penalties for the offense

charged and all lesser included offenses.

(2)(A)(i) When a charge as to possible penalties has been requested

pursuant to subdivision (b)(1), the judge shall also include in the

instructions for the jury to weigh and consider the meaning of a

sentence of imprisonment for the offense charged and any lesser

included offenses. Such instruction shall include an approximate

calculation of the minimum number of years a person sentenced to

imprisonment for the offense charged and lesser included offenses

must serve before reaching such person’s earliest release eligibility

date. Such calculation shall include such factors as the release

eligibility percentage established by § 40-35-501, maximum and

minimum sentence reduction credits authorized by § 41-21-236 and

the governor’s power to reduce prison overcrowding pursuant to title

41, chapter 1, part 5, if applicable.

(ii) Such instructions to the jury shall also include a statement

that whether a defendant is actually released from

incarceration on the date when such defendant is first eligible

for release is a discretionary decision made by the board of

paroles based upon many factors, and that such board has
2A 1998 amendment rewrote subsection (b) to provide:

In all contested criminal cases, except for capital crimes which are governed by the procedures

contained in §§ 39-13-204 and 39-13-205, and as necessary to comply with the Constitution of

Ten nes see, article VI, se ction 14, and § 4 0-35 -301 , the ju dge shall n ot ins truct the ju ry, nor shall

the attorneys be permitted to comment at any time to the jury, on possible penalties for the

offense charged nor all lesser included offenses.

 Tenn. Code An n. § 40-35-201(b) (Supp. 1998 ).

-19-

the authority to require the defendant to serve the entire

sentence imposed by the court.

(B) On an annual basis, the department of correction shall provide

each judge exercising criminal trial court jurisdiction with the

approximate calculation required in subdivision (2)(A). Such

calculation shall be broken down to show the effect of each factor

used in making such calculation. If the calculation provided by the

department to the judges changes because of a change in the law

or correctional policy, court intervention, the governor's prison

overcrowding policy or any other such circumstance, the department

shall send a revised calculation to the judges as such changes

occur.

Tenn. Code Ann. § 40-35-201 (1994). 2 Appellant contends that this statute is

unconstitutional because it is unconstitutionally vague, it violates due process, it

deprives defendants of impartial juries, and it constitutes an unconstitutional

attempt by the legislature to exercise judicial powers. However, the Tennessee

Supreme Court has previously analyzed and rejected identical arguments. See

State v. King, 973 S.W.2d 586 (Tenn. 1998). Indeed, the suprem e court

specifically held that this statute was not unconstitutionally vague, id. at 590; that

an instruction under this statute did not violate due process by misleading the

jury, id. at 592; that an instruction under this statute did not violate due process

by depriving the defendant of an impartial jury, id. at 588 n.4; and that this statute

does not violate the Separation of Powers Clause of the Tennessee Constitution,

id. at 592. This issue has no merit. 

VI. LENGTH OF SENTENCE
-20-

Appellant contends that the trial court erroneously sentenced him to a

longer term than he deserves for the robbery conviction. We disagree.

“When reviewing sentencing issues . . . including the granting or denial of

probation and the length of sentence, the appellate court shall conduct a de novo

review on the record of such issues. Such review shall be conducted with a

presumption that the determinations made by the court from which the appeal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, the

presum ption of correctness which accompanies the trial court’s action is

conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circum stances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must consider all the evidence, the presentence report, the sentencing principles,

the enhancing and mitigating factors, argum ents of counsel, the defendant’s

statements, the nature and character of the offense, and the defendant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169. “The defendant has the burden of

demonstrating that the sentence is improper.” Id. Because the record in this

case indicates that the trial court did not properly consider the sentencing

principles and all relevant facts and circumstances, our review is de novo without

a presumption of correctness.

Initially, we note that robbery is a Class C felony. See Tenn. Code Ann.

§ 39-17-401(b) (1997). The sentence for a Range I offender convicted of a Class

C felony is between three and six years. Tenn. Code Ann. § 40-35-112(a)(3)

(1997). When there are enhancement but no mitigating factors, the court may
-21-

set the sentence above the minimum within the applicable sentencing range.

Tenn. Code Ann. § 40-35-210(d) (1997). When both enhancement and

mitigating factors are applicable to a sentence, the court is directed to begin with

the minimum sentence, enhance the sentence within the range as appropriate for

the enhancement factors, and then reduce the sentence within the range as

appropriate for the m itigating factors. Tenn. Code Ann. § 40-35-210(e) (1997).

In sentencing Appellant to a term of five years for his robbery conviction,

the trial court determined that enhancement factor (1) applied because Appellant

had a previous history of criminal convictions or behavior in addition to those

necessary to establish the appropriate range, that enhancement factor (4) applied

because the victim of the offense was particularly vulnerable due to age, and that

enhancement factor (8) applied because Appellant had a previous history of

unwillingness to comply with the conditions of a sentence involving release into

the community. See Tenn. Code Ann. § 40-35-114(1), (4), & (8) (1997).

Although the record is not entirely clear, the trial court apparently determined that

none of the enumerated mitigating factors of Tennessee Code Annotated section

40-35-113 applied. 

Appellant does not challenge the application of enhancement factor (1),

and we conclude that it was correctly applied. Indeed, the record indicates that

Appellant has previous convictions for attempted burglary, driving on a revoked

license, reckless driving, a weapons offense, and two convictions for theft. We

conclude in our de novo review that this factor is entitled to significant weight.
-22-

Appellant similarly does not challenge the application of enhancement

factor (8), and we also agree that this factor was correctly applied. Indeed, the

record indicates that Appellant has previously violated the terms of probation and

that violation resulted in the revocation of his probation. 

Appellant does challenge the trialcourt’s application of enhancement factor

(4). Specifically, Appellant contends that this factor should not have been applied

because other than his age of fifteen years, there was no proof that Johnson had

any particular vulnerability. We conclude that the trial court erred when it applied

enhancement factor (4). As stated by this court in State v. Butler, 900 S.W.2d

305, 313 (Tenn. Crim. App. 1994), 

[A] victim is particularly vulnerable within the meaning of this enhancement

factor when the victim lacks the ability to resist the commission of the

crime due to age, a physical condition, or a mental condition. A victim is

also particularly vulnerable when his or her ability to summons assistance

is impaired; or the victim does not have the capacity to testify against the

perpetrator of the crime. However, a finding that one of these conditions

exists does not, as a matter of law, m ean that this factor is automatically

considered. The appellant must have taken advantage of one or more of

these conditions during the commission of the crime. The state had the

burden of establishing the limitations that render the victim “particularly

vulnerable.” The state also had the burden of establishing that the

condition which rendered the victim “particularly vulnerable” was a factor

in the commission of the offense.

Here, the state failed to meet its burden. There is no proof in the record that

Johnson’s age had any effect on his ability to resist commission of the robbery,

on his ability to summon help, or his ability to testify against Appellant if he had

not been killed. Further, there is no proof that Appellant took advantage of

Johnson’s age or any other condition when he shot him in the head and took his

money. See, e.g., id. (holding that enhancement factor (4) did not apply in a

murder case because the victim’s age had nothing to do with resisting the

unexpected firing of a gun).
-23-

Appellant also challenges the trial court’s failure to apply any mitigating

factors to his sentence. Specifically, Appellant contends that mitigating factor (6)

applied in that Appellant lacked substantial judgment because of his youth. See

Tenn. Code Ann. § 40-35-113(6) (1997). When determining the applicability of

this mitigating factor, the sentencing court should consider “the defendant’s age,

education, maturity, experience, mental capacity or development, and any other

pertinent circumstance tending to demonstrate the defendant’s ability or inability

to appreciate the nature of his conduct.” State v. Adams, 864 S.W.2d 31, 33

(Tenn. 1993). In support of his contention, Appellant merely states that he was

twenty years old at the time of the robbery. Appellant has failed to indicate how

his age or anything else affected his judgm ent when he comm itted the robbery.

Indeed, the record indicates that Appellant is acquainted with the criminal justice

system and further, that he had the presence of mind to attem pt to cover up his

involvement in the crime by altering his appearance, washing the money and the

gun, and reloading the gun to make it appear as though it had not been fired.

Thus, mitigating factor (6) was not applicable.

The State contends that the trial court should have applied enhancement

factor (6) because the injuries to the victim were particularly great and

enhancement factor (9) because Appellant used a firearm in the commission of

the robbery. See Tenn. Code Ann. § 40-35-114(6), (9) (1997). We agree. It

goes without saying that death is a “particularly great” personal injury and further,

it is undisputed that Appellant used a gun when he committed the robbery.

Neither one of these factors is an element of or is inherent in the crime of

robbery. See Tenn. Code Ann. § 40-35-401(a) (1997) (“Robbery is the

intentional or knowing theft of property from the person of another by violence or
-24-

putting the person in fear.”). Thus, we conclude that the trial court should have

applied enhancement factors (6) and (9) to Appellant’s sentence for robbery.

In our de novo review, we conclude that four enhancement and no

mitigating factors apply to Appellant’s sentence for robbery. Thus, we hold that

a sentence of five years is entirely appropriate in this case. This issue has no

merit.

VII. CONSECUTIVE SENTENCING

Appellant contends that the trial court erred when it ordered his sentences

to run consecutively. We disagree.

Consecutive sentencing is governed by Tennessee Code Annotated

section 40-35-115. The trial court has the discretion to order consecutive

sentencing if it finds that one or more of the required statutory criteria exist. State

v. Black, 924 S.W .2d 912, 917 (Tenn. Crim. App. 1995). Further, the court is

required to determine whether the consecutive sentences (1) are reasonably

related to the severity of the offenses committed; (2) serve to protect the public

from further criminal conduct by the offender; and (3) are congruent with general

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

In imposing consecutive sentences, the trial court found that Appellant was

a dangerous offender whose behavior indicates little or no regard for human life

and who has no hesitation in comm itting a crime in which the risk to human life
-25-

is high. See Tenn. Code Ann. § 40-35-115(4) (1997). Specifically, the trial court

stated that

[T]he act that was committed[,] that the Jury accepted and returned their

verdict on[,] has got to be one that would be done by a person whose

behavior indicates little or no regard for human life and no hesitation about

committing a crime in which the risk to human life is high. . . . [I]f a young

man, kneeling down, rolling dice is shot one time in the head and four

times in the back and left to die in a totally senseless, cruel[,] outrageous

way, the person who does that[,] that this Jury found does that[,] has to be

a person who considers very little regard in connection with their behavior

for human life. 

We agree that this brutal murder of a young man who was merely engaged

in playing a game of dice demonstrates that Appellant is a dangerous offender

who has little or no regard for human life and has no hesitation about committing

a crime in which the risk to human life is high. Indeed, the record indicates that

Appellant placed his gun on or very near the top of Johnson’s head when

Johnson was kneeling on the ground and then shot Johnson once in the head

and four times in the back. Further, although the trial court made no express

finding, we conclude in our de novo review that consecutive sentences are

necessary to protect the public from future criminal conduct of Appellant. Indeed,

Appellant’s criminal record indicates that his criminal conduct has become more

and more serious over time. In addition, his callous comment that Johnson was

“just one less nigger [he had] to worry about” indicates that he poses a continuing

threat to the public. Finally, the cruel and senseless nature of Appellant’s

conduct indicates that consecutive sentences are reasonably related to the

severity of the offenses and are congruent with general principles of sentencing.

This issue has no merit.

Accordingly, the judgment of the trial court is AFFIRMED.
-26-

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

WILLIAM M. BARKER, SPECIAL JUDGE