W e u til iz e th e sp e lli n g o f th e d e fe n d a n t’s n a m e a s it a p p e a rs in th e in d ic tm e n t. 1 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs S ep te mb er 9, 200 8

STA TE OF TEN NES SEE v. CE AS AR JOHNS ON

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 06-03240 Chris B. Craf t, Judge

No. W2008-00111-C CA-R 3-CD - Filed Janu ary 8, 2009

A Shelby County Criminal Court jury convicted the defe ndant, Ceasar J ohnson, of two counts of 1

vo lun tary mans la ug hte r a nd on e c ount o f atte mpt e d v olu nta ry mans la ug hte r. He wa s se nte nc e d to four a nd a half y ear s on eac h of the voluntary manslaug hter co n victions and three y ear s on the attempted voluntary

manslaug hter c onviction to be served consecutively in the county workhouse, for a n eff ective te rm of twelve y ear s. On appe al, the def endant ar gu es t h at: (1) the e vidence was insufficient to support hi s convictions; (2) the tria l court er red in de ny ing judicia l diversion, probation, or other

alter n at i ve sente nce; a

nd (3) the tr ial court e rre d in imposi ng consec utive
sentenc es. F ollowing our review of the re cord a

nd the par

ties’ brief s, we a ffirm the judg ments of the trial cour

t.

Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Cr iminal Cou rt A ffirm ed

A LA N E. G LE NN , J., delivere d the opinion of the court, in which N OR MA M C G EE O GLE and C AM I LLE R. M C M ULLEN , JJ., joined.

Marvin E. Ballin, Memphis, Tennesse e, for the appe llant, Ceasar

Johnson.

Robert E. Cooper, Jr ., Attorney Ge nera l and Reporter ; M ar y W. Franç ois, Assistant Attorney Gene ral; William L. Gibbons, District Attorney Ge nera l; and R ache l Newton and Damon Gr iffin, Assistant District Attorneys Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

This case arises out of a

J anuar y 9, 2006, shooting that resulted in the deaths of Mark Collins

and Ce dr ic Stanle y

and the se ri ou s in

jur y of Ed wa rd Stanle y , Jr. On

that date , th e se ve nte e n- y e a r- oldBecaus e s om e of t he vi ct i m s and w i t nes s es s hare t he s am e l as t nam e, w e have el ect ed t o ut i l i ze f i r s t nam es 2

a s n e e d e d fo r th e p u rp o se o f b re v ity . W e in te n d n o d isre sp e c t t o th e se in d iv id u a ls.

-2- de fe nd ant s ho t in to a

c ar o c c up ie d b y

the thr e e vic tim s and , a s a re su lt, wa s in dic te d on tw o c ounts of sec ond deg ree murder a nd one count of attempted se cond deg ree murder. Atrial was c onducted

on the ma tte r i n A ugus t 20 07 . T he de fe nd ant d id n ot c on te st hi s res po ns ibi lity fo r t he sh oo tin g s, only his deg ree of culpa

bility

.

State’ s P roof

Rosalee Stanley
, the mother of Cedr ic and Edw ard Stanley
, testified that Edwa rd owne d a 2 red, f our-door Cadillac in J anuar

y 2006. She rec alled that duringthat time period, Edwa rd worke d fo r a te mp o r ar y e mp lo y me n t a g e n c y

ta k in g v ar io u s a s s ig n me n ts a t w ar e h o u s e s an d d istribution

ce n t ers, and he lived with his g irlfriend a bout a ten or f

ifteen minute drive from the sc ene of the shooting on Mende nhall Road.

Susan Colli ns Quar

terman, Mark Colli ns’ mother, testified that she last saw he r son alive the afte rnoon of January

6, 2006. Co l l i n s h ad spent the holiday s with Quarter man in J acksonville, Florida , and he le ft that afte rnoon on a f light bac k to Memphis. She rece ived a c all the follo wi ng Monday afte rnoon fr om Coll ins’ fathe r, informing her tha t C o llins had been shot. Quar terman trave led to Memphis the next m orning , and Collins died in the hospit al later that day

.

Susan Wi lliams testified that on J anuar y 9, 2006, around 4:15 p.m., she a nd her husba

nd wer e driving south on Mendenhall Road whe n she noticed a red, four- door car parke d in the drivewa y of a house a nd hear d g unshots. She elaborated:

As we a pproac hed the c ar[,] I was in the pa sseng er se at just kind of looking around a nd I noticed the car sitti ng there with two men standing outside talking to the
pe op le in t

he c ar. As we ’r e a lmo st on the c ar, Ihe ard sh ots and Itur ne d a nd saw h im shooting into the ca

r. An d Itold my

husband to g et us out of there that he wa s sho o ti n g an d th e n a s h e

- - th e y s ta rte d

- - th e y r an ar o u n d th e e n d o f th e c ar, and I turned a nd looked at them and w atche d them as they ran.

Wil liams noted that the g unman was standing on the passeng er side of the car when he fired the shots, and h e co n t i n u ed firingas he move d awa y from the c ar. She sa id that the g unman ra n

aro un d th e ba c k o f t

he c ar a nd awa y fr om t he sc e ne wh ile “ c up pin g [the g un ] in h is h and .” She did

no t se e a ba se ba ll c a

p in the g un man’ s h and . Wil liams a nd he r h us ba nd c a lle d 9 11 , d

ro ve “ a c ou ple houses down,” the n turned the car around a nd parke d close to the sce ne. She said that no one g ot out of the vehic le and none of the c ar door s wer e open. Willi ams estimated that, in total, her e y es

we re of f t he sc e ne of

the sh oo tin g fo r “ [a] mi nu te or tw o. ” She a g re e d th a t th e c ar w a s p ull e d in to the drivew ay

in a way that would hinder pe destrian tra ffic on the sidewalk.-3-

J essica G riffin, a

resident of Florida
, testified that she was in Memphis on J anuar y 9, 2006, to attend her aunt’s fune ral. Gr iffin, her stepmother, an a

unt, and ex-g irlfriend w ere driving “down the str e e t” in a re sid e nti a l are a wh e n sh e he ard g un sh ots

. Gr if fi n c ou ld no t se e wh o fi re d th e sh ots , but she noticed that two men w ho had bee n standing on the passeng er side of a red ca r ra n around the bac k of the c ar a

nd awa y from the sc ene.
Approxim ately two houses down, the Griff in ve hicle made a “U- turn” and pulled up near the

car wher e the shooting occur red. G riffin “

jumped out” of their ve hicle and went to the driver ’s side of the other car wher e she saw a y oung man in the passeng er’ s side backse at who “w as lea ned over
to t he sid e lik e he fe ll to the le ft .” She sa w a no the r youngman in

the fr on t pa sse ng e r s e a t w ith“ his tongue . . . hang ing out his mouth” in an e ffor t to breathe. She rec alled that the dr iver wa s awake and talking. She reme mbere d that her stepmother was standingnext t o her, a nd her a unt was ar ound the bac k of the ca

r ca lling 911. Gr iffin did not see a ny wea pons in the red c ar. G riffin wa s shown a photog raph of the re d car with the driver’ s door slightly ajar but said she did not remembe r whe ther the do or wa s o pe n. She sa id t

hat sh e did

no t to uc h th e c ar. Gr if

fi n d id n ot k

no w w he the r t

he g la ss in the driver’ s side window was shattered, but she sa id she was a ble to talk to the driver.

Offic er Timothy

Steele of the Memphis Poli ce D epar tment testified that he re sponded to the

scene of a shooting at 3425 Mende nhall Road on J anuar y 9, 2006, around 4:00 p.m. At the sce ne, Offic er Steele saw a maroon Cadillac with, to the best of his know ledg e, the front driver’ s side and
passeng er’ s side windows brok en o u t

. T he ca r conta ined three occupa

nts. The passeng ers we re unresponsive, ha

ving “ obviously ” bee n shot and “e x trem el y cr i t ical.” H oweve r, the drive r wa s responsive a

nd able to re lay

wh at had ha

ppened. O ffice r Steele sa id that all four of the car doors

wer e close d when he arr ived. He note d that sever al witnesses wer e standing around the scene when he ar rived, but he did not see a ny one touch the c ar or

remove any

thing. Of fice r Steele r eca lled that

emer g ency

medical pe rsonnel remove d the backse at passeng er from the car upon their arr ival “to do lif e savin g te c hn iqu e s. ” He sa id t hat e ve ntu a lly

a ll of the oc c up ants we re re mov e d f ro m th e c a r t o obtain medical tre atment.

L ieutenant Grego ry

Quinn of the Memphis Police De partment Motorc y cle Squad testified that he wa s c a lle d to a

sc e ne a t 34 25 Me nd e nh a ll Road on J anu ary 9, 20 06 . U po n h is a rr iva l, L ieutenant Quinn sa

w a bur g undy

Cadillac par

ked in the drive way

with the driver still sitti ng in the

car , having suffe red a

g unshot wound. He re membere d that two other pa sseng ers ha d alre ady been taken out of the car

in order to r ece ive medica l as s istance. A s the scene supervisor, L ieutenant Quinn had his office rs gather witnesses and secur e the immediate perimeter of the shooting. The y also g ather ed shell ca sings, whic h we re stored in a rubbe r g love for later a naly sis. Asked if the dr ive r’ s si de do or

of th e Ca dilla c wa s o pe n w he n h e arr ive d a s sh ow n in on e of the e xhibi ts, L ieutenant Quinn said that the driver was sti ll inside with the car i n drive and his foot on the brake. He e x plained that bef

ore the y could g et the drive r out, they had to re ach in, put the car in park, and turn off the ignition. He sa id they did not shut t he door onc e they g ot the driver out of

the ca r beca use they did not want to “c o n t inually touch[] and mess[] with the vehicle.” Other tha n the
para medics, L ieutenant Quinn did not see any one else touch the Cadillac.-4-

Ed wa rd Stanle y , Jr. , th e surv ivi ngvic tim , te sti fi e d that he wa s vis iti ng a t his pa re nts ’ h ou se the af ternoon of January

9, 2006, around 3:30 or 3:45 p.m. His brother , Cedric, wa s also at the house, but he lef

t about five or te n minutes later, say ing he had to g o down the stree t but would be rig ht back. Shortl y there afte r, C edric called Edward and s aid he had jus t been robbed. I n response , Ed wa rd and Mark Col lin s “ g ot i n [th e ] ca

r a nd ro de do wn

the str e e t and

pic ke d h im u

p. ” Ce dr ic tol d Edwar d “that the guy s [who] had just robbe d him .

. . [were] two, three houses rig ht dow n the stree t.”

Edwar d rec alled that they turned onto Me ndenhall Road and initially passed two other

y oung men, both wea

ring black, befor e they encounte red a y oung man wea ring a re d shirt, later identified as the de fenda

nt, and his c ompanion, who was wea ring a brown c oat. Edwa rd pulled his car

over to t he si de of th e str e e t ne xt to the de fe nd ant a nd his c omp anio n, and

the de fe nd ant a

nd Ce dr ic started arg uing. After a few m inutes, Edwar d pulled his car into a nearby drivewa y beca use there

wa s h e a vy

tr a ff ic on the str e e t. H e a c kn ow le dg e d th a t hi s c ar b loc ke d th e sid e wa lk b ut s a id t hat a pedestria n could still get a

round it.

Edwar d testified that Collins was sit ting in the f ront passeng er se at and Cedr ic was sitting in the backse at behind Collins. The defenda nt was standing at the back window where Cedr ic was sitti ng , and his companion was on the driver’ s side, approximately five or ten fee t a way from the c ar. Edwar d rec alled that the two windows on the driver’ s side wer e up, and t h e t wo windows on the
pa sse ng e r’ s sid e we re “ a ll the wa y do wn .” Ed

wa rd and Col lin s did no t g e t inv olv e d in the argume nt, but the argument appea

red to be over the defe ndant having robbe d Cedric of some marijuana

. Ed wa rd a dmi tte d th a t Ce dr ic wa s se lli ng mari jua na aro un d th a t ti me pe ri od bu t sa id C oll ins wa s n ot. He r eca lled that “the [defe ndant] was saying that he didn’t do it[ ,] t hat somebody else done it and had wa lked the other

way

. [C edric ] was telli ng him, No, i t wasn’t nobody else, it was him .” Edward said that the defe ndant had a bag of marijuana in his hands and was “say ing something a b o u t he don’t have to rob my

brother be cause that’s petty , whateve r. He doing his own little thing.”

As ke d o n c ro ss- e xami natio n if he re me mbe re d tel lin g the po lic e wh a t w a s st ole n f ro m hi s brother, Edwar d said, “I told them I wasn’t for sure. I t w as either a bout some drug s or some money .” He acknow ledg ed that in a prior state ment to police, he sa id that Cedric did not say what had be en take n f ro m hi m. H e a lso a c kn ow le dg e d that, in his state me nt, he tol d the de fe nd ant to g ive Ce dr ic b a c k h is mo n e y

. E dw ar d e xp la in e d th e in c o n s is te n c ie s in h is s tate me n ts an d h is te s ti mo n y , “ [A ]s Ithought a

bout it and jus t sat down and reme mbere d ever y thing that went on, now I

know for sur e it a i n ’ t n o f

i l l i n t h e b l an k s

. E v e r

y t h i n g i s f i l l e d i n

. I kn o w w h a t [t

h e r o b b e r y ] w a s a ndwh a t it wasn’t [about,]” and “[i] t was [about] marijuana .”

Edwar d testified that af

ter the a rg ument h ad been g oing on f or aw hile, the def

endant’ s companion walked over to the defe ndant, mumbled some thing indiscernible, and the de fe ndant started shooting . After he heard the g unshots, Edwar d saw that Colli ns’ “he ad wa s leane d over[,]

. . . bloo d [wa s] run nin g [,]

. . . [a]nd he jus t mad e a lit tle moa nin g , g ro wl ingso un d. ” Ed wa rd tol d Ce dr ic t o c a l l t h e p o l i c e b e c a u s e h e c o u l d

n o tm o v e f

r o m h i s w a i s td o w n

. C e dr i c p i c k e d u p h is
p h o n e a n d

o p en edi t , b u tt h en “h i s ey es ro l l edb ac k i nt h e b ac k

o f h i s h ea d an d h e s t ar t eds h ak i n g.-5-

Then he just . . . fell over to the lef t in the car .” Edwa

rd saw the defe ndant and his compa nion run do wn Me nd e nh a ll t ow ard

so me a pa rtme nts

.

Edwar d stated that the first person to a pproac h the car afte r the shooting was a police off

icer
, and he did not re call anyone else approa ching the car until the para medics and a

n ambulance arr ived a fe w minutes later. Edwar d said he was in the hos pital for about two and a ha lf months. He lear ned of Cedric ’s and Collins’ deaths af ter thre e or f

our day s. Edwar d denied that he, Cedric, or Colli ns had any wea pons the day

of the shooting

. Edwar d identified the defe ndant from a photospre ad on J anuar y 12, 2006.

A g e n tS t e v e S c o t to f

t h e T e n n e s s e e B u r e a u o f I n v e s t i g a t i o n( “ T B I” ) C r i m e L a b o r a t o r y,

acc epted a s an expe rt in the field of f irea rms identification, testified c oncer ning the evidenc e he

re c e ive d f or e xami natio n. He re c e ive d a B e re tta nin e -m ill ime te r fi re arm , a ma g a zine fo r t he fi re a rm , four Reming ton nine-millim eter car tridg es, four

Winchester nine- milli meter ca rtridg es, and f ive Winchester nine- mil li me te r c a r trid g e s ma n u f a c tu r e d u n d e r d if f e r e nt specifications, all retrieve d from

a r e s i d e n c e a t5 2 0 5 O g u n d qu i tL an e ; a p r o j e c t i l e r e t r i e v e d

f r o m C e dr i c ’ s s h o u l d e r d

u r i n g a u t o p s y;

a p ro j ec t i l e re t ri ev ed fr o m E dwa rd ’s b o dy at t h e R egi o n al M ed i ca l C en t er ; an d fo u r f i re d ca rt ri d ge

case s retrie ved fr om the scene of the shooting. Ag ent Scott perfor med tests on the two projec tiles

and fo ur fi re d c art ri dg e c a se s and

de te rm ine d th a t no ne of

the ite ms h a d b e e n f

ir e d f ro m th e B e re tta firea rm. Ag ent Scott also examined the two projectiles to dete rmine whe ther they h ad bee n fired from the same w eapon. H e conc luded that the bullets could have been f ired fr om the same g

un but

s a i d h e c o u l d n o t “ c o n c l u s i v e l y s ay t h a tt h o s e t w o b u l l e t s c a m e f r o mo n e g u nan d

o n e g u no n l y” beca use the bullets wer e made of diffe rent meta ls and would “pic k u p marks fr om the g un differ ently .” He also noted that when a bullet pa sses throug h a hard substance, such as t h e s h eet metal of a car , a metal or

wood door, or bone , it is t y pical for some of the mar

kings to be smeare d or wiped a

way

.

A g e n tO a k l e y

M c K i n n e y , a

f o r e n s i c s c i e n t i s t an d l a t e n t f i n g e r p r i n t s p e c i a l i s tw i t h t h e T B I,

was acc e p te d

b y th e c o u rt a s ane xp e rt i nth e f ie ld o f f in g e r p r in t i d e n ti f

ic a ti o n

. A g e n t Mc Kinney testified that he e x amined the Ber etta firear m rec overe d from 5205 Ogundquit L ane a nd did not find

any la te nt p ri nts . H e state d th a t th e fi re arm ha d a du ll o r m a tte fi nis h, wh ic h ma de it l e ss l ike ly to ho ld a fi ng e rp ri nt, a

nd that it wa s “ no t un c omm on

to p ro cess a wea

po n s uc h a s th is a

nd no t g e t a latent print.” He sai d that the lack of latent prints did not mean the g un was not handle d. Ag ent McKinney

rec alled that he wa s g iven a known f inge rprint impression for Cedr ic Stanley ; however
, he did not conduct a

ny compar isons because , as alre ady noted, no latent prints were develope d off the fire arm.

Ag ent J ames Russell Davis, I I , a fore nsic scientist a ssigne d to the microana ly sis se ction of the TBI Crime L aboratory , was a cce pted by the cour t as an e x pert in the fie ld of g unshot residue a nd microana ly sis. Ag ent Davis testified that he analy zed a g unshot r esidue kit perfor med on the hands of Cedric Stanley

and sent to him by

the Memphis Police Depa rtment

. T h e re s u lts were inconclusive, meaning he could not e liminate the possibili ty that Cedric fired, handled, or was ne ar a g un when it was f

ired. He said that it w as very common to ge t inconclusive re sults on shoot ing-6-

victims because “g ases with this microscopic soo t wi t h in it, is made to push the bullet down the barr el and if someone is hit by that bullet, that me ans the materia l be hind it is coming towa rds them . . . [and,] g ener ally , people’ s hands ar e not g oing to be in their pocke ts all the time.”

Ag ent Davis testified that he also re ceive d a “SEM tab” from the medic al examiner’s off ice. He e x plained that “SEM” stood for scanningelec tron microscope and wa s t h e way of ana ly zing inanimate objec ts for the microsc opic soot particles that make u p g unshot residue. He elabor ated that a disc with double-side d sticky tape is moved a cross the obje ct and then he che cks the disc f or soot particles. His ana ly sis “did not revea l the prese nce of particle s of g unshot primer re sidue.” He could not comment on the normalcy of t he results beca use he did not know ex actly what item was sampled or how f

ar the item was fr om where the wea pon discharg ed. He noted that the desc riptive

ma te ri a l se nt wi th the sampl e sa id it c a me fr om the sh ou lde r o f a ja c ke t but di d n ot i nd ic a te wh os e jacke t or which shoulder

.

Dr. Ke nneth Snell, former Deputy Chief Medica l Ex aminer f or Shelby County and an expert in f or e ns ic patho log y , te sti fi e d th a t he pe rf or me d th e a uto ps ie s of Ced

ri c Sta nle y and Ma rk Col lin s. Dr. Snell noted that Cedric suffe red a g unshot wound to the back side of his r ight uppe r ar m and that
t h e b u l l e tw e n to u tan d

b a c k i n t o h i s ar

m b e f o r e e n t e r i n g h i s c h e s t c a v i t y. O n c e i nt h e c h e s tc a v i t y, the bullet “g ot the right lung, severe d blood vessels i n the upper chest and neck are a,” a nd lodge d in the left shoulder are a wher e a medium ca liber projec tile was re cover ed. The external wound had no soot or stippli ng around it, mea ning the g un was a distance from the body or some sort of c lothing
preve nted soot from landing on the wound. Dr

. S n el l also did not see any powder or soot on Ce dr ic ’s c lot

hin g

. Gi ve n the c a lib e r of the pr oje c til e and the la c k of so ot or sti pp lin g , Dr. Sne ll estimated that the gun was a minimum of six inches a way when f ired.

Dr. Snell test i fi ed t hat Collins s uffe red a g unshot wound to the rig ht side of his head that

e xite d o ut t

he le ft sid e on “ a sli g ht dow nw ard ang le .” He no te d th e re wa s n o s oo t or po wd e r s tip ple associate d with the wound, meaningthe shot came from an inde terminable r ang e.

Of fi c e r H op e Smith, a

c ri me sc e ne inv e sti g ato r wi th t he Me mph is Po lic e De pa rtme nt, testified that she wa s called to the sc ene of a shooting at 3425 South Mendenhall Road on January 9, 20 06 . O ff

ic e r S mith p ho tog ra

ph e d th e sc e ne , ma

rk e d the e vi den ce, and

a ssi ste d h e r p art

ne r i n taking measure ments. At trial, Offic er S m i t h identified var ious photogra phs and evide nce taken from the sc ene. I

n particula

r, she noted a

larg e “ba g g ie” that c ontained thre e “ba g g ies” of w hat
appea red to be marijuana

and a sma ll sil ver sc ale lying a pproxi mately t en fe et fr o m the Cadillac; spent bullet casing s; and live nine- milli meter bullets. Of fice r Smith observed fr om photogr aphs of the scene that the Cadillac appea red to bloc k pedestria

n traff ic on the sidewalk. After looking at her

c ri me sc e ne re po rt , O ff

ic e r S mith r e c a lle d th a t th e dr ive r’ s si de wi nd owof the c ar w a s c omp le te ly broken out a

nd said she would have noted if other windows wer e broken out. Offic er Smith stated that there was a seconda

ry crime scene approximately one stree t west of the sc ene of the shooting wher e off icer s rec overe d sever al “c lear plastic bag g ies containing what appe are d to be tobacc o” and two other c lear

plastic “ba g g ies” a g ainst a fe nce. O fficer Smith said that there wa s an apa rtment complex on the other side of the f ence from the se condar

y crime sc ene.T h e d e fe n d a n t l a te r te stifie d a t t ria l t h a t T o n e ’s n a m e is M a rv e l C o o k ; t h e re fo re , w e w ill h e re in a fte r re fe r to 3

h im a s C o o k

.
-7- Se rg e ant A nth on y Mu lli ns of the Me mph is Poli c e De pa rtme nt te sti fi e d th a t he re sp on de d to

a s cene at 3425 South Mendenhall Road on January 9, 2006. Serg eant Mullins noted that the

so u th b o u n d la n e s o f th e r o a d w e r e b lo c k e d w it h e me r g e n c y v e h ic le s , a r e d o r b u r g u n dy colore d Cadillac wa s in the drivewa y , and a body was ly ing on the g round outside the Cadillac. Aperimete r around the crime sc ene w as alre ady secur ed whe n he ar

rived. T h e C ad i llac wa s later take n to the crime sc ene of

fice for f urther pr ocessing , during whi ch, amongother thing s, rods wer e plac ed throug h bullet holes in the i nterior of the car t o deter mine the t raje ctory

of the gunshots. Serg eant Mullins not ed that a shot a ppear ed to have “com[e] from outside the rig ht r ear door inside the ca r.” He a lso noted that the driver’ s side window was shattere d, and both windows on the pa sseng er’ s side

wer e rolled dow n. Serg eant Mullins said that no wea pons were found in the ca r.

Serg eant Mullins testified that the def endant’ s name did not surfa ce a s a suspect until two or three day s into the investigation. He said that they chec ked Cedric’ s cell phone f or incoming and outgoingcalls and de veloped pe rsons of intere st ba sed on those ca lls. Upon finding the de fenda nt’s number in Cedric ’s ca ll log, the of fice rs put the def

endant’ s photogr aph in an a rra y , from which Edwar d identified the de fenda nt as the g unman. Based on Edwar d’s identification, Serg eant Mullins and s ev er al ot her of

fice rs went to the de fenda nt’s residenc e at 5205 Ogundquit L ane to a rre st the defe ndant the eve ning of

J anuar y 12, 2006. A conse nsual sear ch of the re sidence reve aled aninemilli meter B ere tta handg un with rounds in the mag azine belong ing to the husband of the de fenda nt’s sister, who told Ser g eant Mullins that he had a wea pon in the house and that it c ou l d b e f ound “inside a la

undry basket with some clothing on top and ar ound it.”

Serg eant Mullins testified that the defe ndant was taken into c ustody around 7:30 p.m., a nd, in the prese nce of

the def endant’ s father
, q uestioning star ted appr ox imately

three hours later

. Offic ers que stioned t h e d efe ndant for two hour s and the ty ping of his statement took another two hours. Serg eant Mullins char acte rized the amount of t ime the defendant spent in the homicide offic e as “a vera g e.” I

n h i s s t at em en t , the def

endant a dmitted that he was re sponsible for the de aths of Ce dr ic and

Col lin s, that he us e d a bla c k and sil ve r nin e -m ill ime te r ha nd g un , that he fi re d f

ive sh ots , and that no on e e lse fi re d a

ny sh ots . He c la ime d he did no t kn ow wh e re the gun

wa s, sa y inghe mus t have lost it when he was running . He state d that a y o u n g m an n am ed “T one” was with him and 3 descr ibed him as “brig ht and about six fee t or five e leven or something like that. He ha d a little fro

on his he a d. ” I n h is s ta te me nt, the de fe nd ant e xpla ine d th a t:

Ce dr ic c a lle d me and

a sk e d me did

Ihave an o un c e of

mari jua na and Itol d him y e s. An d h e a sk e d me c ou ld I me e t hi m somew here so he c ou ld g e t it . I tol d him I didn’t know bec ause I was dropping off m y applications t rying to g et a job. A couple minutes later

Icalled Ce dric ba ck and told him y es, I could meet him. Me and [C o o k ] w a s w a l k i n g u

p M e n d e n h a l l s o Ic o u l d

t a k e m y a p p l i c a t i o nu

p t o R a lly ’s

. Th a t is wh e n [Cook ] sa id le t’ s tur n ar ound so that I

c an g o g e t me so me mor e sh oe s.-8-

So we turned a

ro u n d

. As we turne d around, that’s when Cedr ic and the othe r two g uy s p ull e d u

p in the c ar. Th e y sta

rt e d re a c hin g fo r the ir g un s. I se e n Ce dr ic tr y to open the door

with a g un in his rig ht ha

nd. I seen the g uy

in the front passe ng er se at pull a g un from un d er t h e s ea t

. Iseen the driver pull a gun out of his pants and I fea red f or my life so I started shooting

.

Fur ther re citing the contents of the defe ndant’s statement, Serg eant Mullins stated that the defe ndant said he ran to a g as station dow n the street and then we nt home afte r the shooting . The defe ndant stated that prior to Cedric’s c alling and asking hi m for marijuana, he had no other contac t with him that day . He sa id he had sold Cedric mariju an a o n one prior oc casion, but they did not
consummate a

sale that da

y . The de fenda

nt did not know wher e Cook w as during the shooting a nd said their only

contac t since the shooting was whe n Coo k ca m e to his house to borrow a compac t disc and a h a t. H e r e c a ll e d th a t h e an d Co o k d is c u s s e d c a ll in g th e p o li c e b u t “ th o u g h t th a t they would look at [t hem] as the bad people .”

Serg ea n t M u l l i ns acknow ledg ed that, ea rly in the interview, the defe ndant claimed the victims had pis t o l s an d that his actions wer e in self- defe nse; howeve r, he a cknowledg ed that the

wo rd s “ se lf

-d e fe ns e ” we re no t in the de fe nd ant’ s ty pe d s ta te me nt. As ke d if

he tol d th e de fe nd a nt, “[Y]ou could have killed them beca use they had cell phones,” Serg eant Mullins said he may have

s ai d s o m et h i n g ab o u tc e l l p h o n e s b u td i d n o t“r em em b er

gi v i n g [ t h e d ef

en d an t ] an o u tb y

s ay i n g, [‘] May be y ou killed them beca

use they had ce ll phones.[’] ” Serg eant Mullins said that during the

course of the interview, he probably told the defe ndant what kind of sentenc e he fac ed. S erg eant Mullins s tated that the de fenda nt initi ally

did not want to “g ive up” Cook.

Defense P roof

Earline Fitzger ald, resident of 3395 South Mendenha ll Road, testified that when she a rrived ho me aro un d 4:00 or 4:3 0 p.m. on Janu ary 6, 20 06 , she sa w a y oung man run by

he r, imm e diate ly followed b y

another y oung man who wa s walking quickly . She said that the sec ond y oung man appea red to be tired and scar ed, and she asked him if he was all rig ht. She reme mbere d that he wa s

wea ring khaki pants, a r ed shirt, and a cap but did not g et a g ood look at his face an d d i d not

rec og nize him t o b e an y one in the cour troom. Fitzge rald re called that the y oung man re sponded, “No, ma’ am. Some g uy s down there [are] try ing to shoot me.” I n response , Fitzge rald we nt inside her house and ca lled 911, during which she he ard thre e g unshots. Fitzger ald later g ave a statement to the police.

Asked a bout her stateme nt, Fitzger ald re called that she told t h e police she he ard thre e g unshots while on the phone with the 911 oper ator. She a lso r eca lled telling the police that when she we nt to the scene , she saw a y oung man beingtaken a way on a st retc her and he looked like the
y oungman w ho ha d to ld h e r s ome on e wa s tr y ingto s ho ot him

. She c lari fi e d, ho we ve r, that sh e did not see the f

ace of the y oung man on the stretc her, only that he appe are d to be wea ring red.-9-

The de fenda

nt’s fathe r, Ceasa

r Johns on, I I , testified that he lived in Mississi ppi in J anuar y 2006, while the def

endant lived with one of

his sist ers in Memphis. J ohnson was at his daug hter’s house whe n the police arre sted the defendant on J anuar y 12, 2006. J ohnson said the police a rrived around 9:00 p.m. and “ handled [the defe ndant] a litt le roug h” even t h o u gh h e had a lrea dy

surre ndere d. The police kept J ohnson at his da ug hter’s house while they conducte d a sear ch of the residenc e, then took him to the police station. J ohnson stated that he and the def endant sig ned an advisement of r ights for

m afte r being at the pol ice station for “[a] long while.” Johnson recalled that they wer e take n into an interrog ation room, and initially the def endant wa s questioned by Serg eant Mullins and then late r by an Af rica n-Amer ican f

emale of fice r. He reme mbere d they wer e in the interrog ation room for “ a g ood while,” a nd there was a board on the wall that Serg eant Mullins used to write the amount of time the defe ndant fa ced if found g uilty

.

J ohnson testified that they subsequently

went to another

room wher e a woman was to ty pe the de fe nd ant’ s state me nt. As ke d to de sc ri be ho w the state me nt w a s ta ke n, John so n s ta te d, “ Pr e tty much it was take n the way they wanted to take it. They didn’t want to let nothing he w as say ing.” He e x plained that questions were asked “[ m] any times” and the woma n did not appear

to ty pe eve ry question and answe r. Johns on said he did not object to what was g oing on beca use he was af

raid. He re c a lle d it

wa s “ la te ” wh e n th e y

fi nis he d ty

pin g the sta

te me nt.

Marc o Parrot testified that h e knew Cedric a nd Colli ns from school and “ the stree ts in the neig hborhood.” H e sawthem afte r school, ar ound 3:00 or 4:00 p.m., on J anuar y 9, 2006, when they stopped by his house t o buy drug s. When shown photogr aphs of Cedric and Colli ns, Parrot said he called the m “Kinfolk,” a

g ang -re lated ter

m use d by the Gang ster Disciples, and did not know either of them by

name. He identified Colli ns as the one who boug ht the drug s and said that “he boug ht

. . . an ounce and then he hopped in the ca r, hopped out a

nd boug ht another ounc e.”

Parrot stated that Coll ins told hi m that he had a “couple of people lined up . . . [t o] pop cone on” later that day . Parrot explained that “pop c one” me ans to “get o v er i n mind[ ,] l ike playing
g ames,” as in che at, or “ if that [does not] work, y our next option is robbing.” He a cknowledg ed that in his statement to police, he starte d talking a bout “popping cone” rig ht after he wa s asked a

bout the la st t ime he saw C e dr ic Stanle y pr io r to hi s death . H ow e ve r, Parr ot i de nti fi e d a mis take in h is statement whe re it said that Cedric asked f or two pounds of marijuana beca use he a ctually

asked f or two ounces . He c oncede d that he sig ned the state ment, saying it wa s true and correc t, but said he did no t re a d it in its e nti re ty be c a us e he wa s la te fo r wo rk

. Parr ot a dmi tte d that he was curre ntl y incar cer ated be cause he “g ot a subpoena to c ourt and

. . . missed it” a nd that he had pr eviously

pled
g uilty to theft of prope rty

and ag g ravated assault.

Serg eant Car oline Mason of the Memphis Police Depa rtment testified that she pa rticipated in the questioning of

the def endant on January

13, 2006, and wa s prese nt when he sig ned the advice of rig hts form. She did not reca ll speaking with him for any leng th of time b ef

o re he sig ned the fo r m. Se r g e an t M a s o ne xp la in e d th a t s tate me n ts ar e ta

k e nin th e s qu a d

r o o m, n o t t

h e in te r v ie w room, and that Serg eant Mullins woul d h av e asked the questions and she would have ty ped the
qu e sti on s and

the de fe nd ant’ s ans we rs

. She sa id that eve ry qu e sti on and ans we r r e la te d to the c a seT he defe nd ant w as as ked abo ut event s occurr i ng on Ja nu ar y 6t h, but

, agai n, i t w ou l d app ear f r om al l t he ot her 4

e v id e n c e a t t ria l t h a t d e fe n se c o u n se l m e a n t t o sa y th e 9 th

.
-10- are supposed to be included in the ty pewr iting, and ha d the def endant wa

nted any thing about selfdefe nse or other

matters included i n h is statement, she would have ty ped it. Serg eant Ma son acknow ledg ed that Mar co Parr ot’s statement of simil ar le ng th took only an hour, but the de fenda

nt’s statement took two hours. She explained that Parrot’s w as only a witness st atement and that the nee d to verba lly

discuss the Miranda

rig hts with a defe ndant s o m et imes makes the pr ocess take longe r than with a w it

n e s s

. H o w e v e r , s h e a c kn o w le d g e d th a t th e y w o u ld h a v e a lr e a dy d is c u s s ed the defe ndant’s rig hts prior to the interview pr ocess.

The de fenda

nt testified that, in January 2006, he was living with his sister on Ogundquit L ane in M e mph is a

nd wa s sel lin g mari

jua na a t th a t ti me . H e a c kn ow le dg e d th a t Ce dr ic Stanle y c a lle d h im on J anuar y 6, 2006, asking to buy

marijuana , but he tol d Cedric that he “w as out looking f or a job 4

a t the tim e .” Th e de fe nd ant sa id that Ma rv e l Coo k, wh o wa s a lso kn ow n a s “ To ne ,” wa s w ithhim and that he w as spec ifically looking fo r employ

ment at Rally ’s, a f

ast food re staurant. B efor e the de fe nd ant w e nt t o Ra lly ’s , h e c a lle d Ce dr ic ba c k and tol d him he wo uld br ing the mari jua na to h im. He planne d to se ll Cedr ic an ounce of marijuana

for $75 but had “ a quar

ter pound” in a Z iplock bag

o n h i s p e r s o n

. T h e d e f

e n d an te x p l a i n e d

t h a th e k e p tt h e a d d i t i o n a l m a r i j u an a , a s w e l l a s h i s m o n e y, in a pair of

pants that he wa s wea

ring underne ath his outer pants.

The de fenda

nt testified that he and Cook we re w alking on Men d en h al l Road near a fire station w hen Cedric , Edwar d, and Collins drove up next t o him and said, “Dr op it off,” mea ning “ it’s a robbe ry .” The defe ndant “thre w [his] hands up,” but “Cedric pull ed [ a] g un.” The defenda nt and C o o k ra n d own Mende nhall Road for a bout fifteen to se ventee n fee t, until t he def endant sa w a woman whom he asked to call the police “beca use som e boy s had jus t pulled a g un on [hi m] .” The defe ndant said he w as sca red a nd in fea r for his life. The def

endant state d that he tried to g et awa y bu t w a s “ c ut o ff

” by the vic tim s’ c ar. He e xpla ine d tha t th e c ar p ull e d in to a

dr ive wa y , b loc kin g his path, and the vic tims d em an d ed t h at h e “g ive them what [he] had, which wa s . . . money and . . . drug s.”

The de fenda

nt said that the driver

of the c ar, Edw ard Stanley , threatened to kill him, and he could see that all three men had guns. He noted that Cedric ha d a b l ac kand silver pistol, and Edwar d an d

Co ll in s b o th

h a d s il v e r p is to ls

. H e o f

f e r e d to g iv e th e m h is dr

u g s an d mo n e y , a nd Edwar d told Cedric to “g et out and g et it”and the defe ndant “hande d off the drug s.” The de fenda nt

rec alled, “Ce dric Stanley

was g etting out of

the ca r with the g un in his hand and I snatche d the g un from him and Edwa

rd Stanley

said shoot. That’s whe n Ilet o ff fi re beca use I was sca red.” The d e f e n d an t s tate d th a t h e h a d n o in te n ti o n o f k il li n g an y o n e b e f o r e h e g r a b b e d th e g un awa y

from Cedric a nd that he did not have a

g un on him that day

.

Th e de fe nd ant t e sti fi e d th a t he fi re d the g un fi ve tim e s and the n ra n tow ard so me a

pa rtme nts

. He ac kn o wl ed gedt h at h e w as ab l e t o s h o o tal l t h re e v i ct i m s wi t h o u t t h em fi ri n g a s h o t , ev en t h o u gh-11-

the y we re a lle g e dly

arm e d. Th e de fe nd ant t hr e w t he g un awa y , ran to a ga s st a tio n to c a tc h h is breath, and then ra

n home. He a sked his sister to call the police and said she did so that nig ht.

The defe ndant testified that he stay ed in his house until the police arr ested him on J anuar y 12, 2006. He said he went outside one day during the interim, but “somebody . . . rode dow n talking about what they ’ll do to me. So I went bac k in the house and stay ed in the house.” The defe ndant

rec alled t h at o n t h e d ay

he wa s arr ested he was at home with his niece, sister, a nd fathe r. He

reme mbere d that the police a rrived a round 7:00 p.m. and t ook him to an interrog ation room at the
po lic e de pa

rtme nt w he re he wa s sh a c kle d to a ta ble . He was in the r oo m f or “ a c ou ple of ho ur s” with Serg eant Mullins, Serg eant Mason, and his f ather . The de fenda

nt said there w as a bla ckboar d

on the wa ll o n w hic h Se rg e ant Mu lli ns wr ote do wn “ ho w muc h tim e Ic an g e t if Iwo uld n’ t te ll h im what happe ned. And he had thre e stick men on the board. Two dea d and one in c ritical condition.”

The de fenda

nt testified that he tol d Serg eant Mull ins that the shooting wa s in self-def ense, but Serg eant Mullins was ang ry and tol d him to “[s] top ly ing.” He r eca lled that Serg eant Mullins told him “[ he] probably

shot as s u m i n g that [t he victims] probably just had cell phones,” and S e r g e an t M u l l i n s a s k e d

h i m , “ I s i tp o s s i b l e t h a t y o u s h o t s o m e b o dy b e c a u s e t h e y h a d a

c e l l p h o n e ?” Th e de fe nd a nt e xpla ine d that he wa nte d to g ive a state me nt and c oo pe ra te wi th t he po lic e be c a

us e he “thoug ht may

be they would have some slack on [him] if [he] told them what rea lly happene d.” The de fenda

nt stated that he was not a ble to reviewhis statement befor e he sig ned it, and once he did reviewit, he noticed that Serg eant Ma son had not i n cluded e very thing he had told her. Specifica lly
, he tol d the officers he had two run-ins wit h the vi ctims that day
, the first being whe n they tried to rob him and he ran awa y

. Howeve r, Serg eant Ma son did not put i t in his st atement. He asked Ser g eant Ma son if she wa s g oing to rety pe his statement, and she told him no. The defe ndant acknow ledg ed that the idea he ac ted in self-de fense wa s i n his statement even if the ac tual words

wer e not. The de fenda

nt rec alled that they

did not take any brea

ks during the ty

ping of the statement and that Serg eants Mullins and Mason took only a two- to thre e-m i n u t e bre ak duringthe interrog ation.

Following the conc lusion of the proof, the jur y convicted the defe ndant of two counts of the lesser- included off

ense of voluntary

manslaug hter a

nd one count of the lesser- included off ense of attempted voluntary

manslaug hter.

AN AL YSI S

I. Su ff iciency of the Evid ence

The de fenda

nt first argues that the e vidence was insuff icient to convict him of voluntary

mans la ug hte r a nd a tte mpt e d v olu

nta ry mans la ug hte r be c a

us e the pr oo f s ho we d h is a c tio ns we re in self-de fense . When the sufficie ncy of the convicting evidenc e is challeng ed on appe al, the re levant
qu e sti on of the re vie wi ngc ourt

is “ wh e the r, a ft e r v ie wi ngthe e vid e nc e in the lig ht mos t f a vo ra ble to the prosec ution, any ratio na l tr ie r of fa c t c ou ld have fo un d the e sse nti a l e le me nts of the cri me bey ond a re asonable doubt.” J ackson v. V irg inia, 443 U.S. 307, 319, 99 S. Ct . 2781, 2789 (1979);-12-

see a lso Tenn. R. App. P

. 13(e) (“F indings of g uilt in criminal actions whether by the t rial cour t or jur y sh a ll b e se t a sid e if

the e vid e nc e is i ns uf

fi c ie nt t o s up po rt

the fi nd ing s by the tr ie r of fa c t of g uil t bey ond a re asonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1 9 9 2 ); S t ate v. An de rs on , 8 35 S.W. 2d

60 0, 60 4 (T e nn . Crim . App . 199 2)

. Al l qu e sti on s in vo lvi ngthe c re dib ili ty of witnesses, the weig ht a

nd value to be g iven the evidenc e, and all fac tual issues are resolved by the trier of fac t. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “ A g uilty verdic t by t h e jury , approve d by

the trial judg e, ac cre dits the testimony of the witnesse s for the State a nd resolves all conflicts in favor of t he theory of t he S tate.” State v. Grac e, 493 S.W.2d 474, 476 (Tenn. 1973). Our supr eme c ourt stated the r ationale f or this rule:

This well-settled rule rests on a sound f oundation. The trial judg e and the jury see the witnesses fa ce to f

ace , hear their testimony

and obser

ve their de meanor

on the
sta nd . T hu s th e tr ia l judg e and jur y are the pr ima

ry ins tr ume nta lity

of jus tic e to deter mine the weight and cre dibilit y to be given to the testim ony of witnesses. In the trial forum a lone is there huma n atmosphere and the totality of the evidenc e ca nnot be re pr od uc e d w itha

wr itt e n r e c or d in

thi s Co ur t.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W .2d 768, 771 (1966) ( citing Ca rroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1 9 6 3)). A jur y conviction re moves the pre sumption of innocence with which a defe ndant is initi ally

cloake d and re place s it with one of g uilt, so t hat on appeal, a convicted defe ndant has the bur den of de monstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

.

T h e d e f e n d an t w a s c h ar g e d w it

h s e c o n d d e g r e e mu

r d e r , w h ic h is a kn o w in g killing of another , see Te nn. Code Ann. § 39-13-210 (2006), and attempted second deg ree murder. H oweve r, the jury found him g uilty

of the lesser- included offe nses of voluntary manslaug hter a

nd attempted voluntary manslaug hter. Voluntar

y manslaug hter is def

ined as “the intentional or knowing killing of ano the r i n a

state of pa ssi on

pr od uc e d b y a de qu a te pr ov oc a tio n s uf fi c ie nt t o le a d a

re a so na ble person to ac t in an irrational manner .” I d. § 39-13-211( a). Aperson c ommits criminal attempt whe n the per son, acting with the kind of culpability otherwise r equire d for the of fense :
(1) Intentionally

eng ag es in ac tion or cause s a result that would constitute an off ense, if the circ umstances surrounding the conduct wer e as the pe rson believe s them to be;

(2) Ac ts with int ent to c ause a result that is a n element of

the offe nse, and be lieves the conduc t will cause the r esult without further c onduct on the per son’s part; or

(3 ) A c ts w ithint e nt t o c omp le te a c ours e of

a c tio n o r c a

us e a res ul t that w ou ld constitute the offe nse, under the circ umstances surrounding the conduc t as the per son believes the m to be, and the c onduct co n stitut es a substantial step towa rd the commission of the offe nse.

I d. § 39-12-101( a).-13-

The de fenda

nt argues that the proof

was insuffic ient to support his convictions beca use he

was a cting out of a we ll-founded fear of death or g reat bodily

injury when he shot the victims. He is corre ct that a pe rson who has r easona ble fe ar of imminent dange r, death, or serious bodily injury is justified in using forc e in se lf-def ense to the de g ree nece ssary to protect a g ainst the other pe rson’s

us e of un lawf ul f or c e . Se e Te nn . Code Ann. § 39- 11 -6 11 (2 00 6)

. Whe n the de fe ns e of se lf -d e fe ns e is fairly raised by the evidenc e, the State c arr ies the burde n of proof to neg ate the d efe nse beyond

a re a so na ble do ub t. S e e id. § 3 9- 11 -2 01 (a )( 3) ; State v. B e lse r, 94 5 S. W.2 d 7 76 , 7 82 (T e nn . Cr im. Ap p. 19 96 ). Ho we ve r, wh e the r a de fe nd ant ac te d in sel f- de fe ns e is a que sti on of fa c t f or the jur y to deter mine. See State v. Goode , 956 S.W .2d 521, 527 (Tenn. Crim. App. 1997) ; State v. I vy , 868 S.W .2d 724, 727 (Tenn. Crim. App. 1993)

.

Ex amining the evidenc e in the l ight most favor able to the State, we conclude the evidenc e is s uf fi c ie nt t o s up po rt th e de fe nd ant’ s c on vic tio ns . T he de fe nd ant a dmi tte d th a t he fi re d in to Edwar d Stanley ’s ca

r, killing Mar

k Colli ns and Cedric Stanley , and ser i o usly injuring Edw ard Stanley . Howeve r, the de fenda nt presente d evidenc e at tria l to sugg est his actions wer e in selfde fe ns e . H e te sti fi e d th a t he wa s wa lki ng on a sid e wa lk wh e n the thr e e vic tim s dr ov e up ne xt t o h im and tried to rob him. He said that all three victims had g uns and that Cedric , specific ally , “pulled [a] g un” on him, at w hich point he ran awa y

. He stated that the victims c hased him in their ve hicle, finally blocking his path at a drivewa y

. The defenda

nt said that Cedric started t o g et out of the c ar

w i t h a g u ni nh i s h an d
, s o h e g r a b b e d t h e g u nf r o m C e dr i c an d t h e n h e ar d E dw ar d s ay “ s h o o t

. ” It was then, a ccor ding to the de fenda nt, that he started shooting. The de fenda nt also offe red te stimony from Ea rline F itz g era ld that a y oung man ra n by her a nd told he r that some other young men wer e trying to shoot him. Howeve r, Fitz g era ld said that she di d not g et a g ood look at the y oung man’s fac e and did not re cog nize him t o be anyone in the cour troom.

Contrary to the defe ndant’s evidence of self-de fense
, howeve r, ot her evidence prese nted at trial indicated that the defe ndant was not in imminent dang er of death or g reat bodily

injury . Edwar d Stanley testified that none of

the victims wer e armed and there wer e no wea pons in the car. Serg eant Anthony Mullins t estified that a se arc h of the c ar r evea led no wea pons. J essica G riffin, a n ey ewitness, testified that she did not see any wea pons in the car

wh en s h e ar ri v ed at the car immediately

afte r the shooting

. I n addition, the re is evidence that neg ates the de fenda nt’s alleg ation that Cedric wa s in the proce ss of g etting out of the ca r – the a ction that alleg edly instigate d the defe ndant’s g rabbingthe g un. Susan Wi lliams, an ey ewitness, testified that a ll of the ca r doors wer e

c los e d w he n s he arr ive d at the c ar imm e diate ly a ft e r t he sh oo tin g . O ff

ic e r T imo thy

Ste e le , th e fi rs t police off icer on the sce ne, also testified that eac h of the c ar door s was close d when he arr ived.

The jury hear d all the evidenc e, asse ssed the cr edibi l i t y o f t h e witnesses, a nd rec eived a thoroug h instruction on the defe nse of self-de fense

. By its finding the defe ndant g uilty of voluntary manslaug hter and attempted voluntary manslaug hter, it obviously deter mined that the def

endant
acte d in a st ate of passion produce d by adequate provocation but reje cted his claim t hat he shot the vic tim s o ut o f “ a

we ll- fo un de d f

e ar o f d e a th o r g re a t bodi ly in ju ry .” I t is no t th e pr ov inc e of thi s court to sec ond-g uess fa ctual dete rminations made by t h e jury . There fore , we c onclude that the-14-

evidenc e wa s sufficient to convic t the defe ndant of voluntary manslaug hter and attempted voluntary manslaug hter.

II. Se nt e nc ing

The trial c ourt conduc ted a se ntencinghear ing in Oc tober 20 0 7
, d uring which Edwa rd Stanle y te sti fi e d a

bo ut h is i nju

ri e s and the imp a c t of wa tc hin g his br oth e r d ie . H e sa id t hat he did

n o ta g r e e “ a ta l l ” w i t h t h e d e f e n d an t ’ s b e i n g p l a c e d

o nd i v e r s i o no r

p r o b a t i o n

. R o s a l e e S t a n l e y, Edwar d and Cedric ’s m other, testified that “nothing ha [d] been the same since this incident.” She said i t would be an “ insult[ ]” and “unjust” for the def endant to be g rante d probation or plac ed on diversion.

The de fenda

nt’s fathe r testified that the defenda nt was a g ood child and did “pr etty fair” on his sc ho olw or

k. I n D e c e mbe r 2 00 4, the defe nd ant ’s mo the r d ie d, and the de fe nd ant m ov e d to Me mph is t o live wi th one of his sis te rs in or de r to “g e t aw ay .” He re c a lle d tha t the de fe nd a nt d id not attend school in Memphis, expl aining that the defe ndant “wa s on . . . a little break, he was g oing to go to J ob Corp.” He said that the defe ndant was raised in the c hurch a nd that this incident “was a shock to e very

body .” He maintained that the defe ndant shot the victims in s elf-de fense and wa s not a bad pe rson.

Th e de fe nd ant te sti fi e d tha t he dr op pe d out of sc ho ol in M iss iss ipp i to “ g e t awa y fr om [h is]
mot he r’ s d e a th a

nd sp e nd tim e wi th [h is] s ist e rs be fo re

. . . lea v[in g ] [to] g o to Job Co rp .” He sa id he wa s in the eleve nth gr ade g oing into the twe lfth when he dropped out, a nd his gr ades c onsisted of “B ’s, C’s eve ry

now and then.” He state d that he had be en close to his mot her a nd could not focus afte r her death.

Th e de fe nd ant a dmi tte d th a t he g ot i nv olv e d w iththe wr on g c ro wd wh e n h e mov e d to Memphis a

nd started selling drug s. He said he had ea rned “ improvement” c ertificates in jail and had participated in Bible studies a nd “chur ch ca ll.” He stated he had alway s been a relig ious person and had begun to “pre ach a

nd minist er the g ospel” since his inc arc eration. The defe ndant testified that once he returne d to society , he planne d to ge t a ministry license.

The State also introduced victim impact s tatements, and the defe ndant introduce d letters of support from fr iends, family , and school tea cher s.

At the conc lusion of the sentenc ing he aring , the trial cour t enhanc ed the de fenda

nt’s
sentenc ed base d on the def endant’ s “pre vious history of criminal behavior in that he was

. . . a drug deale r whe n this came about,” his use of a firear m during the commi ssion of t he offense, and having

no hesitation about committing a crime when the risk to huma n life was high. See Tenn. Code Ann. § 40-35-114( 1), (9) , (10) ( 2006). The co u rt fo und no mitigating fac tors. As such, the c ourt sentenc ed the de fenda

nt to four and a

half y ear s on eac h of t he volunt ary manslaug hter c onvictions and thre e y ear s on the att empted voluntary manslaug hter c onviction. The cour t denied judicial-15-

diversio n , p ro b at ion, or other a lternative se ntence and orde red that the sentenc es be se rved

consec utively

in the local wor

khouse, for

an ef fec tive term of twe lve y ear s.

When an accuse d challeng es t he leng th, rang e, or ma nner of service of a se ntence , it is t he d u t y of this court to conduc t a de novo r e v ie w o n th e r e c o r d w it h a p r e s u mp tion that “the deter minations made by

the cour t from which the a

ppeal is take n are corr ect.” Tenn. Code Ann. § 40-35-401( d) (2006). This pre sumption i s “conditioned upon the a ffirmative showing in the rec ord that the trial cour

t co n s i dere d the sentenc ing pr inciples and a ll releva nt fac ts and circ umstances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991) . The pre sumption does not a p p l y t o the leg al conclusions re ache d by

the trial court in se ntencing the acc used or to the deter minations made by

the trial court whic h are predic ated upon unc ontroverte d fa cts . State v. Butler , 900 S.W .2d 305, 311 (Tenn. Crim. App. 1994); State v. Smit h, 891 S.W .2d 922, 929 (Tenn. Crim. App. 1994) ; State v. Bone stel, 871 S.W .2d 163, 166 (Tenn. Crim. App. 1993) , overr uled on other g rounds by State v. Hooper , 29 S.W .3 d 1 , 9 (Tenn. 2000) . Howeve r, this court is require d to give g reat weig ht to the
tr i a l c o u rt ’ s d e t e r

m i n a t i o n o f c o n t r o v e rt e d f a c t s a s t h e t r i a l c o u rt ’ s d e t e r m i n a t i o n o f t h e se fa c ts i s p re d i ca t edu

p o nth e w i t n es s es ’ d em ea n o r a n d ap p ea ra n ce wh en t es t i fy i n g.

I n co nducting a de novo r e v ie w o f a s e n te n c e , th is c o u rt m

u s t c o n s id e r

( a ) an y e v idence

rec eived at the trial and/or se ntencinghear ing, ( b) the pre sentenc e re port, (c) the pri n ci p les of
sentenc ing, ( d) the a

rg uments of counse l relative to sente ncing alternatives, (e) the nature and char acte ristics of the offe nse, (f) any mitigating or enha

nceme nt fac tors, (g ) any

statements made by the ac cused in his own beha lf, and (h) the accused’ s potential or l ack of potential for r ehabilitation
or treatment. Tenn. Code Ann. §§ 40- 35-103, -210 ( 2006); State v. Taylor, 63 S

. W

. 3 d 400, 411 (Tenn. Crim. App. 2001)

. The pa rty challeng ing the sentenc e imposed by the trial court has the burden of establishing that the sentenc e is err oneous. Tenn. Code Ann. § 40-35-401, Sente ncing Commi ssion Cm ts.; Ashby , 823 S .W .2d at 169. I n this case, the de fenda nt has the burde n of illustrating the sentenc e imposed by the tr ia l c o u rt i s e r r o n e o u s

. I f

o u r r e v ie w r e f

le c ts th a t t

h e tr ia l c o u rt, f

o ll o w in g the statutory sentenc ing proce dure, imposed a lawful sentenc e, af ter having g iven due c onsideration and
proper weig ht to the fac tors and princ iples set out unde r the sentenc ing law and ma de finding s of fa ct that are a de qu a te ly

su pp or te d b y the re c or d, the n w e may

no t mo dif

y the se nte nc e e ve n if

we wo uld have pr efe rre d a diffe rent result. State v. Fletc her, 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991).

A. Manner of Service

The de fenda

nt argues th at the trial cour t erre d in denying judicia l diversion, probation, or some ty pe of a lternative se ntence . He submits that as a Rang e I offe nder, c onvicted of Class C and D f e l o n i e s , h e w a s a p r e s u m e d f a v o r a b l e c an d i d a t e f

o r a l t e r n a t i v e s e n t e n c i n g o p t i o n s

. S p e c i f i c a l l y, he ar g ues that “his y outh, lack of c riminal rec ord, and the mitigated n at u re a nd circ umstances surrounding the cr ime strong ly supported the a

ppropriate n e s s o f

p la c in g [h im ] on j udicial diversion,” or, alter natively , that he was a sui table candidate for full probation. The State a rg ues that the re cord-16-

supports the t rial court’s denial of an alternative sentence. As discussed below, we ag ree with the State.

1. Judi cial Diversion

Tenne ssee Code Annotated section 40-35-313 provides that, following a deter mina t ion of
g uilt by plea or by trial, a trial c ourt may , in its di scre tion, d ef er fu rt h er p roce eding s and plac e a qualified de fenda

nt on probation without entering a judg ment of g uilt. Te n n

. C o de Ann. § 40-35-313( a)( 1)(A) (2006). A qua lified defe ndant is one who plea ds g uilty or is found g uilty of a mis de me ano r o r C la ss C , D , o r E fe lony ; ha s n ot b e e n p re vio us ly c on vic te d o f a

fe lony or a Cla ss A misdemeanor ; and is not seekingdefe rra l for a se x ual offe nse or a Class A or B felony . I d. § 40-35-313( a)( 1)(B ). I f t he defenda nt succe ssfully

completes the pe riod of probation, the trial court is r equire d to dismiss the proce eding s ag ainst him, a nd the defe ndant may have the rec ords o f t he
proce eding s expunged. I d. § 40-35-313(a) (2 ), (b ). The de cision to gr ant or de ny a qualifie d d ef en d an tj u d i ci al d i v er s i o nl i es wi t h i nt h e s o u n d d i s cr eti o no f t h e t ri al co u rt

. S t at e v

. E l ec t ro p l at i n g, I nc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); S tate v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997); Bone stel, 871 S.W .2d at 168. As such, it wil l not be disturbed on a ppeal a bsent an abuse of discre tion. St ate v. Turco, 108 S.W.3d 244, 246 n.5 (Tenn. 2003). To c onstitut e an abuse of discretion, the r ecor d must be devoid of any substantial evidence in support o f t he trial court’s decision. Cutshaw, 967 S.W .2d at 344; B onestel, 871 S.W .2d at 168; State v. Anderson, 857 S.W .2d 571, 572 (Tenn. Crim. App. 1992)

.

I n deter mining whe t h er t o g rant diver sion, the trial court c onsiders (a ) the de fenda nt’s

amena bility to corr ection, (b) the circ umstances of the offe nse, (c ) the de fenda nt’s criminal re cord, (d) the defe ndant’s social history
, (e) the defendant’s phy sical and mental hea lth, (f) the de terre nce

va lue to t he de fe nd ant a s we ll as oth e rs , an d (g ) wh e the r jud ic ia l dive rs ion wi ll se rv e the int e re sts of the public a s well as the defe ndant. Electroplating, 990 S.W .2d at 229; Bone stel, 871 S.W .2d at 16 8. A tri a l c ourt

sh ou ld n ot d e ny

jud ic ia l di ve rs ion wi tho ut e xpla ini ng the fa c tor s in s up po rt of its denial, and how

those fac tors outweig h other fa ctors in favor of diver sion. Electroplat ing, 990 S.W .2d at 229.

I n denying dive rsion, the trial cour t stated that the defendant’s amenability to corr ection wa s “just a big question mark” beca use he had never been e mploy ed, had dr opped out of school, a nd had

a dmi tte d s e lli ngdr

ug s. Th e c ourt

no te d th a t th e de fe nd ant w a s in g oo d p hy sic a l and

me nta l he a lth and had “ a horrible social history .” The court also noted that the circ umstances of the offe nse we re extremely aggr av at ed in that, with only “slig ht,” if any , provocation, the defe ndant killed two
teena g ers a

nd p artially

para ly zed a third. The c ourt deter mined that the deter

renc e value to the de fe nd ant a s w e ll a s oth e rs wo uld be se ve re ly

imp a ir e d b e c a

us e the c a se wa s h ig hly

pu bli c ize d in the community , and judicial diver sion “for this ty pe of . . . pur

poseful killing” would not serve the interest of the public.

Despite the de fe n d an t’s contention that seve ral fa ctors we ighe d in favor of diversion, the

rec ord shows that the trial court thoroughly considere d and weighe d the re levant fa ctors. The rec ord-17-

su pp or ts the c ourt ’s de c isi on ; th e re fo re , w e c on c lud e the tr ia l c ourt did no t a bu se i ts di scr etion in denying judicia l diversion.

2. Alter native Sentencing/Pr obation

As a sta nd ard of fe nd e r co nv ic te d of Cla ss C and D f e lon ie s, the de fe nd ant w a s p re su me d to be a favora

ble ca ndidate for

alternative sentenc ing in the a bsence of evide nce to the c ontrary . Tenn. Cod e Ann. § 4 0- 35 -1 02 (6 ) ( 20 06 ). Mo re ov e r, be c a us e he re c e ive d a

se nte nc e of

te n y e ars or

le ss, he wa s elig ible for pr obation, and the tria l court wa s require d to consider probation as a se ntencing option. I d. § 40-35-303( a), (b). Howeve r, althoug h the defe ndant was entitled to the presumption of alter native sente ncing , he wa s not automatically entitled to probation as a matter of law. See id. § 40-35-303( b). The bur den wa s upon the defe ndant to show he wa s a suitab l e ca n didate for probation. I d.; see a lso St ate v. Summers, 159 S.W.3d 586, 599 (Tenn. Crim. App. 2004) (c iting Ashby , 823 S.W .2d at 169); State v. Ba ker, 966 S.W .2d 429, 434 (Tenn. Crim. App. 1997) (stating that “[a] criminal defenda nt seeking full probation bea rs the bur d en o n ap p eal of showing the
sentenc e ac tually imposed is improper, a nd that full probation will be in both the best interest of the defe ndant and the public” ).

There is no br ight line rule for deter mining when a defe ndant should be g rante d probation. State v. Bing ham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overr uled on other g rounds by Ho op e r, 29 S.W. 3d

a t 9- 10 . E ve ry

se nte nc ingde c isi on

ne c e ssa ri ly re qu ir e s a

c a se -b y -c a se ana ly sis

. I d. Fa ctors to be c onsidered i n clude the c ircumstance s surrounding the offe nse, the de fenda nt’s criminal re cord, the defe ndant’ s s o ci al history and pre sent condition, the nee d for de terre nce, a nd the be st i nte re st o f t

he de fe nd ant a

nd the pu bli c

. Go od e , 956 S.W. 2d a t 52 7. An oth e r a pp ro pr ia te fac tor for a

trial court to conside r in det er mining whe ther to g rant probation is a defenda nt’s

c re dib ili ty

or la c k th e re of

, a s this re fl e c ts on the de fe nd ant’ s pote nti a l for re ha bil itatio n. I d. Al so rele vant is whether

a sente nce of

probation would unduly depre ciate the seriousness of the off ense. See State v. Davis, 940 S.W .2d 558, 559 (Tenn. 1997) ; Bing ham, 910 S.W.2d at 456.

Th e pr e su mpt ion

in fa vo r of a lte rn a tiv e se nte nc ing may be ov e rc ome by fa c ts c on ta ine d in the pr e se nte nc e re po rt , e vid e nc e pr e se nte d by the State , the te sti mony of the de fe nd ant o r a de fe ns e witness, or any

other sourc e, provide d it is m ade pa rt of the r ecor d. State v. Parker , 932 S.W .2d 945, 958 (Tenn. Crim. App. 1996) . A t ri al co urt may deny alternative sentenc ing a nd sentenc e a de fe nd ant t o c on fi ne me nt b a se d o n a ny on e of the fo llo wi ngc on sid e ratio ns :
(A) Confinement is ne cessa ry to pr otect society by restra ining a defe ndant who has

a lon g his tor

y of c ri min a l c on du c t;

(B ) Confinement is nece ssary to avoid depreciating the se riousness of the of fense or

c on fi ne me nt i s p art ic ula

rl y su ite d to p ro vid e an e ff

e c tiv e de te rr e nc e to o the rs lik e ly to commit si milar offe nses; or-18-

(C) Mea sures less re strictive t han conf inement have fre quently

or re cently

been applied unsucc essfully

to the defe ndant[.]

Tenn. Code Ann. § 40- 35-103(1) (2006).

I n denying pr obation and sente ncing the def endant to conf

inement, the trial c ourt stated:

[ T ] h e s am e s o ci al h i s t o ry wh er e [ t h e d ef

en d an ti s ] ap p ar en t l y

l i v i n g a l i fe o f d ru gs and g uns and did not avail himself for school or wor

k. The fa cts and c ircumstance s

surro u n d in g th e o f

f e n s e an d th e n a tu r e an d c ir c u ms ta

n c e s o f c r im in a l c o n duct involv[ ed] [ wer e] ex tremely ag g ravated. His lack of prior cr iminal convictions but havin g the his tor

y of se lli ng dr

ug s and tho se arr e sts I ’m no t g oin g to hol d ag a ins t him

.

So I find his previous action and cha rac ter have not bee n g ood. And that he’ s not been a

normal produc tive member of society

. I can’ t e x pect at this point that he

c anb e r e h a

b i l i t a t e d

. I d o n ’ tkn o w w h a t h i s p o t e n t i a l i s f r an k l y. A l t h o u g h h e s ays that he’s f ound J esus and a ll of that. Every body tells me that. . . . But they all meet h im th e r e in th e ja il

. A n d

Ic an n o t f

in d th a t h is te s ti mo n y

is

. . . c r e d ib l[ e ].

Whether it appea

rs that he’ ll abide by

the terms of pr obation, Idon’t know. J ust like so many

other y oung men in our city that choose violenc e and dr ug s rather than school and w ork, I

can’ t say that he would or w on’t, he’s just a question mark
to m e . I t’ s p os sib le that he c ou ld b ut p ro ba bly no t.

Ithi nk the int e re st o f s oc ie ty

be ingpr ote c ted fr om s ome on e wh o w ou ld ba sic a lly mow do wn te e na g e rs in a c ar he lpl e ss is hug e

. We’ ve no t a pp lie d a ny le ss restric tive measure s than confine ment to him. He was seve nteen, he ’s an unknown.

But I think a sentenc e of fu l l p ro bation would unduly depre ciate the

se ri ou sn e ss o f t

he of fe ns e and wou ld b e a

de te rr e nt a s w e ll. An d th a t th is w a s a particula rly enormous, g ross an d h ei n ous offe nse. F or that re ason I find that probation is not suitable. Ialso find that an a lternative se nt ence that the state ha s

ov e rc ome the pr e su mpt ion of an a lte rn a tiv e se nte nc e by jus t the sh e e r fa c ts and g a ll of thi s y oungman in

c omm itt ingthe se kil lin g s. Just a bs olute ly purp os e le ss k ill ing s.

The defenda

nt argues t hat t he court ignor ed the mitigating fac tors in denying his request for
pr ob a tio n. I n pa rt ic ula

r, he a sse rt s th a t th e c ir c ums tanc e s o f t he of fe ns e we re no t e xce ssi ve be c a us e he “w as in a heig htened emotional state when he rea cted to a f ear of death or g reat bodily

harm,” that he demonstrates g reat potential for re habi l i t at i on, that full probation would not depre ciate the seriousness of th e o f

f e n s e , an d th a t t h e r e w a s n o n e e d

f o r d e te r r e n c e b e y o n d

th e n e e d in e v e ry criminal ca se.-19-

Th e re c or d s ho ws tha

t th e c ourt did no t ig no re the mit ig a tin g fa c tor s bu t, i ns te a d, sim ply did not view them in the light the defe n d an t d es ired. Our revie w indicates that the trial court tho ug htf ull y c on sid e re d a ll r e lev ant fac ts, c ir c ums tanc e s, and se nte nc ingpr inc ipl e s; a

nd , th us , it s finding s as to the sentenc e ar e entitled to a pr esumption of corr ectne ss.

As s e t o u t a

b o v e , th e tr ia l c o u rt d e te r mi n e d
, a mo n g o th e r th in g s , th a t c o n f in e ment was

nece ssary to avoid depre ciating the seriousne ss of the off enses an d to serve a s a dete rre nt. The circ umstances of the offenses, as established at trial, wer e that the de fenda nt shot five times into a

car containing three occupa nts, k i l l i n g t wo of the young men and pa rtially para ly zing the third, duri ngthe c ours e of

a fa ile d d ru g de a l. T he c ourt

c ha ra c te ri zed the se c ir c ums tanc e s a s e xtre me ly
ag g ravated, “pa

rticularly enormous, g ross and heinous.” A cour t can de ny

an alter native sente nce based solely

upon the seriousne ss of the off ense if “ the circ umstances of the offe nse as c ommitt ed must be espec ially

violent, horrifying, shoc king, r epre hensible, off ensive, or othe rwise of

an excessive or exagg erated deg ree ,” and the nature of the off ense must outweig h all fac tors favor ing an alter native sente nce. State v. H artley
, 818 S.W .2d 370, 374-75 (Tenn. Crim. App. 1991) (interna l quotations omit ted); see also State v. Bla ckhurst, 70 S.W.3d 88, 98 (Tenn. Crim. App. 2001).

Wit h r e g ar d to d e te r

r e n c e , th e c o u rt n o te d th a t th is c a s e w a s h ig h ly p u b li c iz e d ; a fa ct evidenc ed by

discussions between c ounsel and the c ourt conc erningthe admissibilit y of portions of a national doc umentary

television show that chronic led t he case. More over, the rec ord indicate s the
pr e va lence of homic ide s in the jur isd ic tio n. I t w a s n ote d in the pr e se nte nc e re po rt

that Ce dr ic Stanle y and Mar k Co lli ns we re the sixthand se ve nth ho mic ide vic tim s, re sp e c tiv e ly , in Me mph is in 2 00 6, and thi s inc ide nt oc c ur re d on J anu ary 9, 20 06 . In H oo pe r, 29 S.W. 3d a t 10 , o ur

su pr e me

c ourt ou tli ne d a

no n- e xha

us tiv e lis t of

fa c tor s f or de te rm ini ngwh e the r a ne ed for de te rr e nc e is
prese nt and whethe r inca

rce ration i s “par

ticularly suited” t o achie ve that g oal. These fac tors include:

(1) Whether

other i n ci d en ts of the cha rg ed off ense a re inc rea singly

prese nt in the

c omm un ity , ju ri sd ic tio n, or

in t he state a s a

wh ole ;

(2 ) Whe the r the de fe nd ant’ s c ri me wa s th e re su lt o f i nte nti on a l, k no wi ng , o r r e c kle ss conduct or

was other

wise motivated by

a desire to p ro fi t o r gain from the criminal behavior ;

(3 ) Wh e the r t

he de fe nd ant’ s c ri me and c on vic tio n ha ve re c e ive d s ub sta nti a l pu bli c ity be y on d th a t no rm a lly

e xpe c te d in

the ty pic a l c a se ;

(4 ) Wh e the r t

he de fe nd ant w a s a

me mb er of a cri min a l e nte rp ri se , o r s ub sta nti a lly

encour ag ed or a ssisted others in achie ving the criminal objec tive; and

(5 ) w he the r t

he de fe nd ant h a s p re vio us ly e ng a g e d in

c ri min al c on du c t of

the same ty pe a s t h e o f

f e n s e i n qu e s t i o n , i r

r e s p e c t i v e o f w h e t h e r s u c h c o n d u c t r e s u l t e d in
pr e vio us arr e sts or

c on vic tio ns

.-20-

I d. at 10-12.

I n addition, testimony

conce rning the def

endant’ s social history

at the sente ncing hear ing showed that the de fenda

nt dropped out of sc hool in the eleve nth g rade and st arte d selling drug s. The
prese ntence repor

t indicated that the defendant had no documented work hi story , and the c ounselor at the def endant’ s high sc hool reporte d no rec ord of his having attended that school. Furthe rmore, the cour t did not find the defenda

nt’s testimony

cre dible as to his potential for r ehabilitation. I n light of the pre sumption of corre ctness attenda nt to the sentence imposed by the trial cour

t, we conc lude the evidenc e supports the trial c ourt’s denia l of probation or othe r alter native sente nce.

B. C ons e c ut ive Se nt e nc ing

The de fenda

nt argues that t he trial court e rre d in imposi ng consec utive sentenc es bec ause the

c ourt “ me re ly re c ite d” the Wilk e rs on fa c tor s in cla ssi fy ing him a s a da ng e ro us of

fe nd e r. Th e State

asser ts that the trial court made the re quisite findings.

Tenne ssee Code Annotated se ction 40-35-115( b) provides that it is within the trial court’s discretion to impose consec utive sentenc ing if it f inds by a preponde ranc e of the evidenc e that any

on e of a numbe r o f c ri te ri a

a pp lie s, inc lud ingthat “ [t]he de fe nd ant is a da ng e ro us of

fe nd e r w ho se be havio r ind ic a te s lit tle or no re g ard fo r h uma n li fe , a nd no he sit a tio n a

bo ut c omm itt inga

c ri me in which the r isk to human life is high.” Tenn. C o d e An n

. § 40-35-115( b)(4) (2006). When a tr ial court ba ses conse cutive sentenc ing upon its c lassification of the defe ndant as a dang erous of fende r, it is required to make further finding s that the ag g reg ate leng th of the def end an t ’s sentenc e

rea sonably

relates to the sever ity

of his offe nses and is ne cessa ry to pr otect the public from f urther cri mi n a l c o n d

u c t o f th e d e f

e n d an t. St a te v

. L an e , 3 S. W. 3 d 4 5 6
, 4 6 0

- 6 1 ( T e n n

. 1 9 9 9 ) ; State v. Wil kerson, 905 S.W.2d 933, 937-38 (Tenn. 1995)

.

He re , th e tr ia l c ourt ’s fi nd ing s w ithre g ard to c on se c uti ve se nte nc ingwe re a s f oll ow s:

L ooking a

t concur rent a nd consec utive fac tors[,] Ialso find from predominate ly

the nature of the off

ense a nd also the fact t hat [the defenda nt] is doing nothing with his life at a ll, had no intention of doing a ny thing with his life as far

as

we c an tell by

the proof. T hat t he cir cumstance s surrounding the commission of the offe nse ar e ag g ravated.

Ia lso fi nd that c on fi ne me nt f or [an ] exte nd e d p e ri od

of tim e is n e c e ssa

ry to protec t society

from his unwillingne ss to lead a pr oductive life- sty le. Rat h er choosing g uns and drugs and the stree t rather than work a

nd school. And his resor

t to criminal ac tivity

in further ance . . . of an an t i-societal life -sty le. And I also find that if I ran a ll of these conse cutively for a sentenc e of twe lve y ear s in the local

wo rk h ouse, not the depar tment of corr ection, that rea sonably relates to killin g a six teen a nd a seve nteen y ear

old and par

t[ ially ] paraly

zing another

one.-21- So f or that r e a so n[,] I fi nd the se se nte nc e s sh ou ld r un c on se c uti ve ly

be c a us e Ifind [the defenda

nt] is a dang er o u s offe nder w hose beha vior indicates little or no

re g ard fo r h uman li fe and that he ha d n o h e sit a tio n a bo ut c omm itt inga

c ri me in which [the] risk t o human life wa s high.

I n a dd iti on , th e c ourt

no te d th a t so c ie ty

ne e de d to be pr ote c te d fr om “ so me on e wh o wo uld ba sic a lly mow down teena g ers in a c ar he lpless.”

As observe d by

the trial cour

t, the defe ndant resor

ted to a life of g uns and drug s and, in the

course of a f

ailed drugdeal, shot into a car five times acting on what the court c onsidered “ slight,” if any , provocation. The defe ndant’s ac tions culminated in the deaths of two y oung men and pa rtial
p ar al y s i s o f a t h i rd

. Up o nre v i ew , we co n cl u d e t h e t ri al co u rt m ad e t h e d et ai l edfa ct u al fi n d i n gs mandated by Wil kerson, and the record supports its deter mination that consec utive sentenc ing w as appropr iate.

CO NC LU SION

B a se d o n th e fo re g oin g re a so nin g and a uth or iti e s, we a ff

ir m the jud g me nts of

the tr ia l c ourt

.

___________________________________ ALAN E. G LENN, JUD GE