### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Februar y 25, 2 003 Session

STATE OF TENNESSEE v. DEBIAS I SIRNARD KING

Direct Appeal from the Criminal Court for Ham ilton County No. 207729 Douglas A. Meyer, Judge

No. E2002-00634-CCA-R3-CD June 2, 2003

The defendant

was convicted by

a jury of sec ond degree murder and wa s sentenced to twenty -two yearsin the Ten

nessee D epartme

nt of Corr ection. T he defe ndant brings this a

ppeal and con tends the fo llow ing: (1) The participation of a special prosecu tor, hir ed by the victim ’s family , is a violation o f the def

endant’ s constitut

ional rig hts; (2) The tria

l court e rroneou sly

denied de

fense c ounsel the

opportuni

ty tocrossexamine the

driver o f the veh

icle con taining the victim , Ferna

ndo Hawk

ins; (3) The trial court failed t o give a curative instruction after Detective Ha wkins stated tha

t he obtained a wa

rrant fo r first de gree m

urder of the defe ndant; (4) The trial court failed to charge the jury on the l e sser included offense of facilitation of second degree murde r; and (5) The tria

l court e rroneou sly

sente nc ed the defendant to twenty -two year s in the Tennessee Department of Correction. We conclude the trial court did not err and affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J OHN E VERE TT W ILLI AMS , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and R OBER T W. W EDEMEYER , JJ., joined.

John Allen Brooks , Chat tanoo ga, Tenn essee, for th e appel lant, Debia si Si rnard K ing.

Paul G. Summers, Attorney Genera l and Repo

rter; Ka thy D. Asling er, Assis tant Attor ney Genera l; William H. Cox, III , District Attorney Gene ral; andRodney

C. Strong, Assistant District Attorney General, for the appellee, State of Te nnessee.-2- OPINION

On June 25, 1995, the victim, Fernando Hawkins, was ki lled after being shot by the defenda nt, Debiasi Sirnard King. The shooting incident occurred after gang signs were exchanged betweenthe victim and his two compan ions an d the defendant and his two co-defendants. The defenda nts waited on the side of a street and fired shots at the victim’s car a s he and his two passengers passed. The defendant’s gun fired a shot which en tered the car in

which the victim rode, fatally wounding

the victim.

On October 11, 1995, the defendant and his co-defendants wer e indicted for

the offense of first degree murder. Af

ter ajury trial, the defe

ndant was convicted of second degr ee murder. On appeal, this Court reversed the defendant’s conviction and rema nded it for

a new trial. See State v. Debiasi Sirnard King and Deway ne King , No. 03C01-9801-CR-00015, 1999 Tenn. Crim. A pp. LEXIS 42 0 (Tenn. Crim. App. April 30, 1999, at Knoxville). The State of Tennessee applied for pe rmis sion to appea

l to the Supr

eme Court , which wa s grant ed, and o n January

19, 2001, w

hile reversing in part this Court, the Supreme Court granted the defendants a ne w trial. See State v. Tennessee v. Debiasi Sirnard King and De wayne K ing , 40 S.W.3d 442 (Tenn. 2001).

The defendant was convicted by a jury of sec ond degree murder and wa s sentenced to tw en tytwo years in the Te

nnessee Department of Correction. The def endant appeals, c onte nding the follo wing: (1) The participation of a spe cial pro secutor , hired by the victim ’s family , is a violation o f the def

endant’ s constitut

ional rig hts; (2) The tria

l court e rroneou sly

denied de

fense c ounsel the

opportuni

ty tocrossexamine the

driver o f the veh

icle con taining the victim , Ferna

ndo Hawk

ins; (3) The trial c ourt failed to give a curative instruction after Detective Hawkins testified he obtained the origina l arres t warra

nt against the defendant

for firs t degree murder

of the defendant ; ( 4) The trial court failed to charge the jury on the lesser- included offense of facilitation of second degree murde r; and (5) The trial court erroneously sentenced the defendant to twenty -two year s in the Tennessee Department of Correction.

Analysis

A. Special Prosecutor

The def endant c ontends th at it is a violation of his due processrights u

nder the Fourtee nth Amendment

to the United States Constitution and Article I, Section 8 of the Tennessee Constitution to allow the

particip ation of a

special prose cutor representing a victim or a fa mily member of a victim in the prosecution of a criminal case. On August 1, 2001, during the defe ndant’s s econd tr

ial, Assistant District A

ttorney Lee Davis, who tried the

defenda nt in his fir st trial a

nd who is now i n private practice, filed a Notice of Appe arance as a special prosec utor. The record reveals that Mr.-3-

Davis was retained

by the victim’s family for one dollar ($1.00). Upon Mr. Davis’ filing with the court, the defendant filed

an objection to the employment of the f ormer Assistant

Di st ri ct At to rn ey. The trial court overruled the defendant’s objection to Mr. Davis’ serving as a special prosec utor.

Pursuant to Tennessee Code Annotated section 8-7-401(a), a “victim of crime or the famil y members of a victim of crime may employ private legal counsel to act as co-c ounsel with the district attorney gener al or the district a

ttorney gener al’s deputies in tr

yin g case s, with

t he extent of participation of such pr

ivately employ ed couns el being

at the disc

retion of the dis trict attorney general.” The appointment of a special prosecutor does not violate either the United States Consti tution o r the Tennessee Constitution. See State v. B ennett , 798 S.W.2d 7 83 (Tenn . Crim. App. 1990). There is no requirement that a district attorney gener al show c ause

for the participation of a special prosecutor. Stat e v. El dridge , 951 S.W.2d 775, 781 (Tenn. Crim. App. 1997); State v. Voltz , 626 S.W.2d 291 (Tenn. Crim. App. 1981).

The record

reveal s that Mr. D avis did notrepresent the victim’s family in any civil matters and that his on

ly r ole would be to assist th

e distric t attorne

y’ s office in prosec uting the case sho uld the case g o to trial. From the record, it is also apparent that Assistant District Attorney Rodney Strong led the pr

osecutio n, questio ned eig ht of the tw elve witnesses p re sented a t trial, crossexamined all five d

efense witnesse s, and mad

e the fin al closing

argume nt. There is no evidence that the defendant’s due process rights were compromised by Mr. Davis’ participation. We conclude that the defendant’s constitutional rights were not denied by the involvement

of Mr. Davis as a special prosecutor.
B. Cross Examination of Greg Kelsey

The defenda

nt contends that the

trial cou rt erron eously lim ited his cross-examination of Greg Kelse y, a witness, regarding whe ther he was on bond at the time of the shooting. The defendan t contends that it wa s rele vant to establ ish a reason to stop and clean out the car before taking the victim to the hospital. The defendant contends the time between the shooting and the arrival of the victim at th

e hospita l is cruci al. The te stimony is as follo ws: Q: Do y ou know wh at time y ou got to t

he hospita

l? A: No, sir. Q: But ten, fifteen

minutes af

ter that? A: However

lo ng it take to get from Greenwood to Erlang er the r

outeI explained. Q: And y ou went str

aight do wn Gree

nwood, hit

Tunnel B oule - – I

mean, not Tunnel - - hit Wilcox, turned right, went through the tunnels. Did y ou run the red lights and all? A: Yes, I think so. Q: Okay. And y

ou went down to Holzclaw? A: Yes. Q: Turned left, went to 3 rd Street, tu rned rig ht? A: Yes.-4-

Q: And then w ent to Erl anger emerg ency

room? A: Yes. Q: Okay . How, we

re y ou speed

ing? Were y

ou going fast? A: As fast as I could g o besides the traffic. Q: An d yo u d id n’ t s to p a nyp la ce al on g t he wa y? A: No, sir. Q: Did you have a

ny of that marijuana

still on you? A: I’m not sure. Can’t remember

. Q: You don’t know? A: No. Q: But you had it the nig ht before? A: Yes. Q: Did you smoke it all up? A: I’m not sure. Can’t remember

. Q: No w, you we re ou t o n b on d a t t he ti me of th is ro bb er y? At this time, the prosecution objectedto the relevance of the question. The defense stated to the trial court that if the witness was facing charg es and was in possession of an illegal substanc e at the time of the incident, there would have been a reaso n to place him into custody. The trial c ourt sustained the objection, findi ng the question was not relevant since the witness had admitted to being convicted.

A defenda

nt has a c onstitution al righ t to confr ont witnes ses, but the defendant’s righ t to confrontation “does not

preclude a trial court from imposinglimits upon cross-examination which take into accoun t such fa ctors asharassm

ent, pre judice, i ssue conf

usion, witn

ess safe ty, or merely repetitive or marginally

relevant interrogation.” State v. Re id , 882 S.W.2d 423, 430 (Tenn. Crim. App. 1994). Relevant evidence is “evidence having any

tendency to make

the existence of any

fact that is of consequence to the determination of the action more probable

or less pr obable th an it would be without the evi dence.” Tenn. R. Evid. 401. “The propriety , scope, manner, and control of the cross-examination of witnesses, however, rests within thesound discretion of the trial court.” State v. Dishman , 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995).

The record reveals that on the day the incident

took place, the victim and his two companions drank beer and consume d illega l drugs w hile in Kelsey ’s car. Defens e counse l e stablishe d in his questioning that the witness had been convicted. The defendant contends that this w itness should have been cross-examined vigorously to establish that there were no beer bottles found in th e vehicl e and that the witness must have stopped to clean out his car. This is speculative. However, the jury heard testimony from the witness in which he admitted smoking marijuana on the night before the incident an d that no beer bottles or contraband were found in the c ar, which was searched at th e hospital. Without fur

ther que stioning , a reas onable ju ry could ea sily

“read between the lines,” given the lapse of time between the shooting and Kelsey ’s arriv al at the hospital. To establish that the witness was on bond at the time of the instant offense was irrelevant, and we conclude the trial court did not abuse its discretion in its limitation of cross-examination.-5-

C. Curative Instruction

The defenda

nt contends the tria

l court fa iled to g ive a cur

ative inst ruction a fter De tecti v e Tim Carroll stated that he obtained a warr ant charging the defe ndant with first degree murder. The defendant contendsthat the d

etective was ref erring to the original charge of

first degree murder and that because he had been acquitted of f irst degree murder at the orig inal trial, the

jurors in t

his case

were informed

that the d

efenda nt was ch arged

with seco nd degr

ee murde r. The de

fendant is referring to the following exchang e: Q: On the - - after, after y ou o bs erved the crime scene and af ter you observed the crime scene and after y ou h ad done t he thing s at that lo cation, a t some point did you develop an idea tha t the Kings were suspects in this case? A: Yes, I did. I

t was after we conducted int erviews, w e were

able toidentify Debiasi King through a photographic lineup, and I

obtained an arre st warrant for first degree murder c

harging Debiasi King with the murder of Fernando Hawkins. At this point, the prosecution askedtwo more questions before defense counsel asked to approach the bench to address the aforementioned exchang e. The prosecution admitted that it had made a mi stake by asking the

question and stated that further questioning would not involve the original

warran t. The trial court judge addressed this issue by stating: “That’s all right. I don’t think

the jury caught it. And I think if I instructed them, that it would be – but you can bring out that the grand jury

or something.” The trial court stated that the jury would be instructed on second degree murde r and that would take care of the problem with the question. The defenda nt contends that it

was prejudicial to introduce evidence

that a first degree murder wa rrant had been issued for his arrest and demands a new trial.

There are three non-exclusive factors which trial cour ts have applied in determining whether

a mi st ri al wa s n ec es sa ry a ft er im pr op er te st im on y wa s p re se nt ed to th e j ur y: (1) whether the State elicited the testimony; (2) whether the trial court gave a curative instruction; and (3) the relative strength or weakness of the State’s proof. State v. Demetrius Holmes , No. E2000-02263-CCA-R3- CD, 2001 Tenn. Crim. App. LEXI S 923, at *11 (Tenn. Crim. App. Nov. 30, 2001
, at Knoxville), perm. to app. denied

(Tenn. 2 002). How ever, a defenda nt is not en

titled to r elie f when he or s he “failed to take whatever action was reasonably available to prevent or nullify the harmful effect of

an error.” Tenn. R. App. P. 36(a). The defe ndant did not ask the trial court for a curative instruction. When a defendant fails to request a cura tive instruction, he waives the issue on appeal. See State v. Jones , 733 S.W.2d 517, 522 (Tenn. Crim. App. 1987).

In the instant case, the def endant did not request a curative instruction. Furthermore , the defendant has failed

to show an

y pr ejudice . The def

endant’ s guilt of

first degree murder was ne

ver
an issue at tr

ial. Foll owing the proof, the trial court ins tructe d t he jurors to consider whether the defendant wa s g ui lt y o f seco nd degree murder or the lesse r-included offenses of voluntary manslaughter, reckless homici de, or crimin ally neglig ent homic ide. The defenda nt has fa iled to demonstrate how this issue affected the outcome of his trial.-6-

D. Facilitation of Second Degree Murder

The defendant con tends tha t the trial court failed to charge the jury with the offense of facilitation of second degree mur der as a lesser included offense of second de gree murder. The record indicates the trial court instructed the jury on second degree murder, voluntary manslaughter, reckle ss homicide, and criminally neg ligent homicide. The defendant contends that the trial court’s error is not harmless and is grounds for reve rsal of the verdict and a new trial.

A trial court’s decision

regar ding whe ther a le sser inc luded off

ense shou ld be submitted to the ju r y is a mixed question of law and fact. State v. Bowles , 52 S.W.3d 69, 74 (Tenn. 2001). Tennessee Code Anno tated se ction 40- 18-110(a ) mandat es that a trial cou rt must charge the jury

as to the law of each offense which is “included” in an indictment, namely the cha rged offense and any lesser inc luded of

fenses, regardless of a de fendant’s request for such an instruction. “I n applying the lesser included offense doctrine, three que stions arise: (1) whether an offense is a lesser included offense; (2) whe

ther the evidenc e support s a

lesser included offense instruction; and (3) whether an instructional error is harmless.” State v. Allen , 69 S.W.3d 181, 187 (Tenn. 2002). State v. Burns
, 6 S.W.3d 453, 466-67 (Tenn. 1999 ) outlines th e test for determining when an offe nse may be considered a lesser included offense of an indicted offense.

A person is guilty of f

acilitation of a felony “i f, knowin g that a nother in tends to c ommit a specific felony, but without the intent required f or criminal res ponsi bility under Tennessee Code Annotated section 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony.” Tenn. Code Ann. § 39-11-403(a). Facilitation of second deg ree murder is a lesser included offense of second de gree murder under par t (c) of t he te st set forth by the supreme court in Burns , 6 S.W.3d at 467. Facilitati on of a felony is a lesser degree of criminal responsibility for the conduct of another. Burns at 470.

However, facilitation is a separate and distinct theory of liability from that of a principa l offender. State of Tennesse e v. Jared Michael Christein , N o. E20 01-01856-CCA-R3-CD, 2003 Tenn. Crim. App . LEX IS 189, at *25 (Tenn. Crim. App. Mar. 4, 2003, at Knoxville). In the instant

c ase, the defe

ndant wa s not convi cted of s econd de gree m urder ba sed upon a

theory of crimin a l

re sp on si bi li ty. The record reveals that the defe nda nt admit

ted to fir ing the s emi-auto matic rif le which held the bullet that killed t he v ictim. The proof established that the defendant was the principal offender and was solely responsible f

or the death of

the victim. For these reasons, we conclude that the tri al court did not err in excluding facilitation of second deg ree murder in the instructions to the jury.

E. Sentenc

ing

The defenda

nt conten ds that the trial cou rt imprope

rly sentenc ed him to tw enty -two y ears in the Tennessee Department of C orrect ion. Specifically, the def endant argues that because he was
c onvicted on June 25, 1995, before the change in the sentencing statute, he should n ot have bee n sentenced u nder the present guidelines. Further , the defendant contends that only the enhancing-7-

factors applicable p rior to July 1, 1995, should apply and that the trial court erred in apply ing enhancement

factors (1), (2), and (8). The de fendant does not challenge the trial court’s application of enhanc ement fa

ctor (9) . The def

endant c ontends th at t

he trial cour t should have applied mitigating factors (2), (3), (6) , a nd (13). The defendant requests that his sentence be reduced to a minimum of fifteen (15) ye ars.

When an accu sed challengesthe leng th and man

ner of se rvice of a sentence, ou r Court conductsa de novo

review o n the rec ord with a presumpt

ion that the

trial cou rt is correc t in its determin ations. Tenn. Code Ann. § 40-35-401(d). The presumption is conditioned upon the affirmative showing

in the re cord tha

t the tria l court c onsidered the sente ncing p rinciple s, as well as all facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1994).

In conducting a de novo review of a sentence, we must consider: (1) any e vidence received at the trial and/or sentencing hearing , (b) the presentence report , (c) t he pri ncipl es of s enten cing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and cha racteristics of

the offense, (f) any

mitigating or enhancing fa ctors, (g) any

statements made by

the accused in his own behalf, and (h) the accused’s potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103 and -210.

In calcula

ting th e sentence for a felony conviction committed before July 1, 1995, the presumptive sentenc e is the min imum within t

he rang e if ther

e are no enhanc ement o r mit iga ting fact ors. Tenn. Code Ann. § 40-35-210(c) (1990) (amended July 1, 1995, to provide that th e pre sum pt iv e se nt enc e fo r a C las s A f elo ny is th e mi dpo in t i n t he r ang e). If there areenhancement factor s, but no mitigating factors, the trial court may set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). Asentence involving both enhancement and mitigating factors requires

an assignment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-210. The sentence may then be reduced within the range by any weig ht assigned to the mitigating factors pre sent. Id.

Second d egree murder is a Class A felony and is subject to a sentence range of fifteen t o twenty-five

years f or a Range I

offender. See Tenn. Code Ann. § 40-35-112(a)(1). The trial court is to determine the appropriate sentence by beginning at the minimum sentence within the rang e, increasing the sentence within the range ac cording to enhancement fac tors present, and then decreasingthe sentence according to the pre sence of any mitigating factors. See Tenn. Code Ann. § 40-35-210(c)-(e) (1990); State v. Hampton , 24 S.W.3d 823, 831 (Tenn. Crim. App. 2000). Pr es en tl y, the presumpt

ive sente nce is the midpoint withinthe range. See Tenn. Code Ann § 40-35- 210(c). In the instant

case, the defendant was give n the benefit of the pre-1995 guidelines asthe trial court began its determinations at fifteen y ears, the minimum sentence within the range.

In the instant case, the trial court increased the def endant’s sentence upon the find ing of enhancement

factors (1), (2), ( 8), and (9). The trial court found that the enhance ment factors outweig hed any mitigating factors, des pite the f act that t he defe ndant see med remo

rseful.-8-

Enhancement Factor (1)

The defendant

contends that the trial court inappropriately a

pplied enhancement factor (1). In 1995, enhancement factor (1) w as used to enhance a sentence based upon a previous history of criminal convicti ons or cr iminal beh avior in a

ddition to those nece ssary to establi sh the appr

opriate range. See Tenn. Code Ann. § 40-35-114(1) (1990). The trial court applied enhancement factor (1) basedu pon the de fendant’s conviction for reckless endang erment, three juvenile convictions for felony theft, a

nd one adult misdemeanor assault conviction.

The defendant contends that enhancement factor (1) is inapplicable because he has only one adult misde

meanor c onviction

and his juvenile record cannot be used for this enhanc ement factor. The State argues that prior to the chang es in sentenci ng, juvenile adjudica tions wer e proper ly considered

to enhance a

sentence under factor (1). See State v. Jackson , 60 S.W.3d 738, 742 (Tenn. 2001); State v. A dams , 864 S.W.2d 31, 34 (Tenn. 1993).

The presentence report indicates that the def endant engaged in chr

onic c riminal b ehavior from the age of fourteen to nineteen y ears old, at which time he committed the present offense. Ev idenc e present

ed at his s entenci

ng hea ring illu strated t

he defe ndant’s e xtensive inv olvement

in gang activity. Trial testimony indicated the defendant, as well his co-defendants, used illega l drugs, drank alcohol, and carried the defendant’ s loaded weapons in their vehicle befor e th e victim was shot. We conclude that the trial court’s decision to apply e nhancement factor

(1) to the defendant’s sentence was not in error, given the de fendant’s extensive criminal history a nd behavior.

Enhancement Factor (2)

The defendant contends the trialcourt er red in finding that he was a leader in the commission of the offense. See Tenn. Code Ann. § 40-35-114(2). The defendant contends the record doe s not demonstr atethat h e organized or l ed in the commission of this act. The record reflects that the defendant and his co-defendants engag ed in the altercation after exchanging “gang signs” a

nd then fired we apons at t

he car c arry

ing the v ictim. The rec ord reve als that the defendant was older than his co-defendants and furnished the weapons used in the offense. The defendant, alone, loa ded the weapons and placed them in t he vehicle before the incident took place. F or these reasons, we conclude that the trial court did not err in its application of enhanceme nt factor (2).

Enhancement Factor (8)

The defendant contends that the trial court inappropriately applied enhancement

factor (8). The trial court foundthat the d efenda nt had a pr

evious his tory

of unwillingnessto comply with the conditions of a sentence involving release int o the community. Tenn. Code Ann. § 40-35- 114(8). The record reveals the trial court bas ed its dec isi on to apply factor (8) on the information that the defendan tviol ated t he term s of hi s prob ation by commi ttin g new off enses and was , accor dingl y , taken into the custody of

the Department of Youth Services. The presentence report ref lects that the-9-

defenda nt, while a juvenile, violated the term s of his pr obation after committing theft over one thousand dollars ($1,000), the same offense for which he was originally

granted probation.

The defendant

contends that the trial court should not have based enhancement factor (8) on his juvenile record. Our supreme court has found that a juvenile probation violation may be used to enhance a defendant’s sentenc e under enhancement factor ( 8). See State v. Jackson
, 60 S.W.3d 73 8
, 743-44 (Tenn. 2001). Therefore, we find that the trial court did not err in its application of enhancement factor (8).

Mitigating Factors

The defendant contends that the trialcourt should have considered as mitiga ting fa ctors tha t: (1) he acted under strong provoca tion; (2) substantial grounds exist that tend e d to excuse his conduct; and (3) he lacked substantial judgment because of his age. See Tenn. Code Ann. § 40-35- 113 (2), (3), (6).

The trial court statedit did not find that the defendant acted under strong provoc ation and that “substantial grounds existed to tend to excuse or justify the def e nda nt’s c rimi nal co nduct throu gh failing to establish a defense.” The trial court found that mitigating factor (6) d

id not appl

y for the defendant or for his co-defendants simply because the defendant was under eighteen yearsof age at the time of the offense. The trial court addressed the defendant

and one of

his co-defendants by stating,

. . . the tria

l court - -and this is State v. Kel ly - - “tria l court pr operly decline d to apply mitigating factor 6 rega rdi ng d efendant’s y outh where a defendant was streetw ise and testified he had his gun with him the day of the shooting, because he knew he was going to be out on the street, a sta tement which reflects a calculated judgment about the prospects for violence in the situation in which defendant placed himself.” And they knew. They went bac k and arm ed themse

lves. SoI do not find number 6 for either of them. Alth ough the tri al c ourt noted that the defendant had improved himself while incarce rated, was educating himself, and seemed somewhat remorseful, the rec ord does not support the application of mitigating factors (2), (3), or (6).

Conclusion

Ac co rd in gl y, we affirm the jud gments of the trial court and the defendant’s sentence of twenty-two y

ears in the Tennessee Department of Corr ection.

____________ __________ _______ _ JOHN EVERETT WILL IAMS, JUDGE