IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 27, 2010 at Knoxville

STATE OF TENNESSEE v. BRODERICK JOSEPH SMITH

Appeal from the Criminal Court for Davidson County

No. 2009-A-501 J. Randall Wyatt, Judge

No. M2009-01427-CCA-R3-CD - Filed January 14, 2011

The Defendant, Broderick Joseph Smith, was convicted of two counts of carjacking, a Class

B felony; three counts of attempted robbery, a Class D felony; one count of assault, a Class

A misdemeanor; one count of aggravated robbery, a Class B felony; and one count of

attempted carjacking, a Class C felony. The trial court sentenced the Defendant to 20 years

on each of the carjacking convictions, eight years for each of the attempted robbery

convictions, 11 months and 29 days for the assault conviction, 15 years for the aggravated

robbery conviction, and ten years for the attempted carjacking conviction. The trial court

ruled that the sentences for all but the assault conviction should run consecutively for an

effective sentence of 89 years. The trial court also ruled that the sentence should run

consecutively to the Defendant’s sentence in federal court for two related armed bank

robbery convictions. In this appeal as of right, the Defendant contends that (1) the trial court

erred in denying his motion to dismiss on the ground that his right to a speedy trial had been

violated; (2) that the trial court erred in denying his motion to sever the aggravated robbery

count from the remainder of the indictment; (3) that the trial court erred in allowing the State

to present evidence that the Defendant committed the two related armed bank robberies; and

(4) that the trial court erred by imposing excessive sentences and by imposing consecutive

sentences. Following our review, we affirm the judgments of the trial court.

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

Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., J., joined. JOSEPH M. TIPTON, P.J., filed a separate concurring opinion.
Carol Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant Public

Defender (on appeal); and Joseph Michael Engle, Assistant Public Defender (at trial),

attorneys for the appellant, Broderick Joseph Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant

Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Hunter

Eisenbeck and Robert Homlar, Assistant District Attorneys General, attorneys for the

appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

The Defendant, according to his statement to the police, needed money to buy a

handgun because he was planning to kill his ex-girlfriend and her new boyfriend. The

Defendant told the interviewing officers that “I knew in order for me to do it, I had to get

some money, I had to get out of town [and] regroup, then I was going to come back.” Once

the Defendant returned to Nashville, he was going to go to the hospital where his exgirlfriend and her boyfriend worked and “kill them mother f-----s” along with “who ever got

in my way . . . .” The Defendant, in order to get the money he needed, robbed a gas station

and two banks on June 24 and 25, 2007. In addition to the robberies, the Defendant

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committed two carjackings, attempted a third carjacking, attempted to take the vehicles of

three other people, and assaulted a man who tried to help one of the victims.

The Defendant was arrested on June 25, 2007, and indicted on October 26, 2007. A

superseding indictment was issued on February 27, 2009. In between the original indictment

and the superseding indictment, the Defendant pled guilty in federal court to two counts of

armed bank robbery and had begun to serve his sentence. On March 2, 2009, the Defendant

filed a motion to sever the aggravated robbery count from the remainder of the indictment.

That same day, the State filed a notice of intent to use prior bad acts pursuant to Tennessee

Rule of Evidence 404(b), specifically the Defendant’s convictions for armed bank robbery

in federal court. On March 4, 2009, the trial court issued an order denying the Defendant’s

motion to sever and allowing the State to present evidence of the Defendant’s armed bank

robbery convictions. However, the trial court ordered that any reference to the Defendant’s

attempts to obtain a handgun or his plan to murder his ex-girlfriend and her new boyfriend

should be redacted from the Defendant’s statement. Instead, the State was only permitted

The Defendant subsequently pled guilty to two counts of armed bank robbery in the United States District

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Court for the Middle District of Tennessee and was sentenced to a term of 235 months in federal prison. The

Defendant is currently serving his federal sentence.

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to show that the Defendant committed the bank robberies in order to obtain money to

purchase an item, but the State could not inform the jury what the item was. On March 6,

2009, the Defendant filed a motion to dismiss for lack of a speedy trial and the trial court

denied the motion on March 9, 2009. The Defendant was tried on March 9 and 10, 2009, and

was convicted by a jury of all counts.

At trial, the State presented evidence that the Defendant began his crime spree at the

Adcock Shell station in Madison, Tennessee. The store clerk, Hyeju Sung, testified that the

Defendant entered the gas station at approximately 2:00 p.m. on June 24, 2007. The

Defendant walked around the store until all of the other customers left and then came to the

cash register to buy a beer. When Ms. Sung opened the cash register, the Defendant grabbed

her by her neck, put a pair of scissors up to her neck, and demanded money. Ms. Sung

testified that she gave the Defendant all the money in the cash register, approximately $400,

and he then left the gas station. Ms. Sung identified the Defendant as the robber and testified

that she knew the Defendant because he had been a regular customer at the gas station for

approximately one year. In addition to Ms. Sung’s testimony, the State also introduced

surveillance video taken from the gasstation showing the Defendant committing the robbery.

That same evening around 10:00 p.m., Kathleen Runder stopped with her two

children at a Shell gas station near Vanderbilt University. Ms. Runder testified that she and

her family are from Little Rock, Arkansas and that they were visiting Nashville that day to

celebrate her mother-in-law’s birthday. Ms. Runder was driving her mother-in-law’s

minivan when she and her children stopped at the Shell station to buy snacks and drinks. Ms.

Runder’s children had gotten back into the minivan and Ms. Runder was sitting in the

driver’s seat with the door open when the Defendant approached her with a knife. Ms.

Runder’s children were able to get out of the minivan and run into the gas station. The

Defendant pressed the knife against Ms. Runder’s thigh and demanded that she give him the

keys to the minivan. Ms. Runder agreed, and as she got out of the car, the Defendant

grabbed her purse, got into the minivan, and drove away. Ms. Runder picked the

Defendant’s picture out of a photographic line-up and was able to identify the Defendant at

trial as the person who carjacked her.

The next day at approximately 2:00 p.m., the Defendant drove the minivan he had

taken from Ms. Runder to 525 Donelson Pike, Nashville where he proceeded to rob the FifthThird Bank. Within 20 minutes of this robbery the Defendant then drove the minivan to

1712 West End Avenue and robbed the Wachovia Bank located there. The Defendant then

parked and abandoned Ms. Runder’s minivan in the Baptist Hospital parking garage. Around

2:30 p.m., Anna Lisa Barnett entered the Baptist Hospital parking garage. She had just come

from a doctor’s appointment where she had been given a cortisone shot to her knee when the

Defendant walked past her. Ms. Barnett testified that she turned around and saw the

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Defendant coming back towards her and demanding her car keys. Ms. Barnett then

“hobbled” towards her minivan, but when she got to the driver’s side door, the Defendant

had caught up to her and pulled out a knife. The Defendant again demanded her keys, and

Ms. Barnett gave them to him. Ms. Barnett testified that the Defendant shouted “no, no, no”

when he looked at Ms. Barnett’s minivan and that it was nearly identical to the one he had

taken from Ms. Runder. The Defendant tried to grab Ms. Barnett, and she began to crawl

over the front of cars to get away from the Defendant.

The Defendant continued to chase Ms. Barnett until he saw Cecil Greene backing his

truck into a parking space. Mr. Greene testified that after he had parked his truck, the

driver’s side door opened and the Defendant grabbed him by the left arm. The Defendant

had his knife drawn back and demanded Mr. Greene’s truck. Mr. Greene informed the

Defendant he could not have the truck. Mr. Greene then asked his wife, who was seated in

the passenger seat, to hand him his gun. The Defendant then ran back to Ms. Barnett’s

minivan and drove away. Mr. Greene testified at trial that he did not actually have a gun in

his truck that day. Mr. Greene identified the Defendant as the man who attempted to carjack

him. Ms. Barnett picked the Defendant’s picture out of a photographic line-up, and

identified him at trial as the person who stole her minivan.

The Defendant abandoned Ms. Barnett’s minivan a few blocks away from the Baptist

Hospital parking garage. The Defendant ran into an alley where he threw his pants, now

covered in red dye from a dye pack in the money he had stolen from the banks, into a truck

owned by James Reeves. Mr. Reeves testified at trial that he found pants in the back of his

truck and when he moved them, he found a knife and a chain as well. After discarding his

pants and his knife, the Defendant entered a FedEx delivery truck stopped in front of 2010

23rd Avenue North. The driver, Uere Hobson, testified that she was in the back of the truck

when she felt someone enter the truck. She turned around, and the Defendant demanded that

she give him the keys to the truck. Ms. Hobson demanded that the defendant get out of the

truck. The Defendant then began to push Ms. Hobson towards the back of the truck. The

Defendant looked away for a moment, and Ms. Hobson was able to get past him and out of

the truck. Ms. Hobson ran towards the Lentz Health Center parking lot because she knew

there would be other people there. The Defendant chased Ms. Hobson, and she called 911

on her cell phone. Ms. Hobson proceeded to run through the Lentz parking lot yelling for

help and warning others to lock their doors.

Once in the Lentz Health Center parking lot, the Defendant jumped into the passenger

side of Jostin Lear’s car and demanded the keys. Mr. Lear tried to push the Defendant out

of the car and refused to give him his keys. The Defendant then grabbed for Mr. Lear’s keys,

but Mr. Lear was able to hold onto the ignition key. Mr. Lear got out of his car and began

to walk around to the passenger side of the car. At about the same time Mr. Lear got out of

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his car, Dan Hedger, whose niece was parked next to Mr. Lear, came to assist Mr. Lear. The

Defendant got out of Mr. Lear’s car and punched Mr. Hedger in the face opening a cut over

Mr. Hedger’s eye. Mr. Hedger’s niece, Bianca Tarantola, who was eight months pregnant

at the time, had just secured her other child in a car seat when the Defendant got into the

driver’s seat of her car. Ms. Tarantola quickly unbuckled her child and ran with her car keys.

The Defendant chased after her, slammed her into a wall, and pinned her against the wall as

he grabbed for her car keys. The Defendant was eventually pulled off of Ms. Tarantola, and

he began to walk away from the parking lot.

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Officer Ronnie Brock of the Metro Nashville Police Department was at the health

center undergoing his yearly physical when he was alerted by employees that something was

going on outside. When Officer Brock stepped outside, he saw several people asking for

help and pointing at the Defendant. Officer Brock described the Defendant as appearing

bloody and sweaty. Officer Brock also testified that when he stepped outside of the center,

the Defendant was walking away from the parking lot. Officer Brock approached the

Defendant and detained him after several witnesses stated that the Defendant had tried to rob

them. When Officer Brock arrested the Defendant, the Defendant was carrying a duffle bag

containing a large amount of cash. The Defendant was taken to General Hospital where he

was read his Miranda rights, signed a rights waiver form, and gave a statement to the police.

The Defendant presented no evidence and did not testify.

At the sentencing hearing, Ms. Runder testified that the Defendant had taken away her

and her children’s sense of safety. She also testified that since the carjacking, both of her

children had experienced anxiety and fear and that she and her children continued to go to

counseling as a result of the carjacking. Ms. Barnett testified that she had trouble going

places by herself or with her children and that she had become paranoid about being in public

since the carjacking. She also testified that at the trial the Defendant waved at her, smiled

at her, and taunted her. The State argued that the following statutory enhancement factors

applied to the Defendant:

(1) the Defendant has a lengthy criminal history in addition to

the prior convictions required to establish him as a Range II

offender; (3) the offense involved more than one victim; (4) a

victim of the offense was particularly vulnerable because of age

or physical disability; (9) the Defendant employed a deadly

weapon during the commission of the offense; (10) the

Exactly how the Defendant was subdued is not clear from the testimony at trial. Several of the witnesses

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claimed to have subdued the Defendant by themselves or that they detained the Defendant with the help of

others until Officer Ronnie Brock arrived.

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Defendant had no hesitation about committing a crime when the

risk to human life was high; and (11) the felony involved the

threat of death or serious bodily injury and the Defendant had

previously been convicted of a felony that resulted in death or

serious bodily injury.

Tenn. Code Ann. § 40-35-114. The State also requested consecutive sentences for the

Defendant because

(1) the Defendant is a professional criminal; (2) the Defendant

has an extensive history of criminal activity; and (4) the

Defendant is a dangerous offender.

Tenn. Code Ann. § 40-35-115.

The Defendant responded to the State by suggesting that several mitigating factors

applied to his case. The Defendant contended that he was acting under strong provocation

because his relationship with his ex-girlfriend had just ended. The Defendant also contended

that the “emotional trauma” from the end of his relationship coupled with a previous

diagnosis of manic-depressive disorder reduced his culpability for the offenses. The

Defendant also cited his medical history of heart disease, high blood pressure, and a bad back

as a factor significantly reducing his culpability for the offenses. As an additional mitigating

factor, the Defendant suggested that his actions at the Lentz Health Center were committed

under such unusual circumstances that it was unlikely that an intent to violate the law

motivated his conduct. Instead, the Defendant suggested that his “attempts to obtain

transportation” were caused by his panic instead of an intent to commit the specific offenses.

The Defendant also contended that his sentence in federal court reflected a significant

enhancement based upon the actions that he was convicted for in state court and that the

Defendant precipitated his own prosecution in state court by “demanding” that a detainer be

filed. The Defendant also cited “new self-insight into his criminality” and explained his

previous criminal history was caused by “a lack of marketable skills,” his substance abuse,

and the disruption of his life that his “cycles of incarceration” caused.

The trial court found that all of the enhancement factors offered by the State were

applicable to the Defendant’s case but decided to enhance the Defendant’s sentence based

solely on his “immense prior criminal history.” The trial court gave no weight to any of the

suggested mitigating factors offered by the Defendant. Based on this analysis, the trial court

sentenced the Defendant to the maximum sentence for all of the convictions except for the

aggravated robbery count. As for the manner of service, the trial court ordered the

Defendant’s sentences to run consecutively based upon his extensive criminal record and his

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disregard for human life. The trial courtsentenced the Defendant to a total effective sentence

of 89 years and ordered his state sentence to run consecutively to his sentence in federal court

for the two armed bank robberies.

ANALYSIS

I. Right to Speedy Trial

The Defendant contends that the trial court erred in denying his motion to dismiss for

lack of a speedy trial. The Defendant contends that the 17-month delay between his

indictment and his trial was caused by the State’s bureaucratic negligence and that he timely

asserted his right to a speedy trial when his counsel on the federal charges contacted the

District Attorney General’s office requesting “a prompt disposition” of the Defendant’s state

charges. Furthermore, the Defendant contends that he was prejudiced by this delay because

he lost the opportunity to resolve this case in conjunction with the federal charges and that

his mental condition had degraded while in federal prison. The State responds that the delay

in this case was minimal and not unreasonable when compared to the period of delay in other

cases. The State also responds that the Defendant did not assert his right to a speedy trial

until March 6, 2009, three days before his trial. The State also argues that there is no

evidence that the Defendant’s mental condition had worsened during the delay and that the

Defendant offered no proof as to how his defense was impaired by the delay.

Once the State initiates criminal proceedings, the right to a speedy trial is implicated

pursuant to the Sixth Amendment to the United States Constitution and to article 1, section

9 of the Tennessee Constitution. See Tenn. Code Ann. § 40-14-101 (2006); Tenn. R. Crim.

P. 48(b). The right is meant to protect the defendant “against oppressive pre-trial

incarceration, the anxiety and concern due to unresolved criminal charges, and the risk that

evidence will be lost or memories diminished.” State v. Utley, 956 S.W.2d 489, 492 (Tenn.

1997). In Barker v. Wingo, 407 U.S. 514, 530 (1972), the Supreme Court devised a

balancing test to determine speedy trial issues and identified the following factors for

consideration:

(a) The length of delay;

(b) The reason for the delay;

(c) The defendant’s assertion of his right to a speedy trial; and

(d) The prejudice to the defendant.

See also State v. Bishop, 493 S.W.2d 81, 84-85 (Tenn. 1973) (implicitly adopting the Barker

balancing test for our State’s constitutional and statutory right to a speedy trial). The

balancing test adopted in Barker “necessarily compels courts to approach speedy trial cases

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on an ad hoc basis.” Barker, 407 U.S. at 530. The remedy for the denial of a speedy trial is

dismissal of the charges. Strunk v. United States, 412 U.S. 434, 439 (1973).

The first Barker factor, length of delay, is a threshold factor, serving as the triggering

mechanism “that will necessitate the consideration of the other three factors.” State v. Wood,

924 S.W.2d 342, 346 (Tenn. 1996). Until the accused establishes a period of delay that is

“presumptively prejudicial,” there will be “no necessity for inquiry into the other factors that

go into the balance.” Barker, 407 U.S. at 530; see also State v. Easterly, 77 S.W.3d 226, 235-

36 (Tenn. Crim. App. 2001). Generally, “a delay must approach one year to trigger the

Barker v. Wingo analysis,” although “the line of demarcation depends on the nature of the

case.” State v. Utley, 956 S.W.2d 489, 494 (Tenn. 1997); see Doggett v. United States, 505

U.S. 647, 652 n.1 (1992). The delay of one year and five months between the Defendant’s

indictment and his trial is enough to require inquiry into all of the Barker factors. We review

a trial court’s determination regarding a claim of a violation of the defendant’s right to a

speedy trial for abuse of discretion. Easterly, 77 S.W.3d at 236.

A. Length of delay

The reasonableness of the length of the delay depends “upon the peculiar

circumstances of each case.” Easterly, 77 S.W.3d at 235. The delay “that can be tolerated

for ‘an ordinary street crime’ is generally much less than for a serious, complex felony

charge.” Id. (citing Barker, 407 U.S. at 530-31). However, “the presumption that [the] delay

has prejudiced the accused intensifies over time.” State v. Simmons, 54 S.W.3d 755, 759

(Tenn. 2001). While the approximate 17-month delay between the Defendant’s indictment

and his trial is sufficient to trigger the full Barker analysis, “this period of delay is not

necessarily unreasonable when compared to other cases.” Id. (delay of 23 months); see also

Doggett, 505 U.S. at 653 (delay of six years); Wood, 924 S.W.2d at 346 (delay of 13 years);

Easterly, 77 S.W.3d at 236 (delay of 20 months). Additionally, “the delay is not egregious,

given the fact” that the Defendant is charged with six felonies ranging from Class D to Class

B. Easterly, 77 S.W.3d at 236 (delay of 20 months not egregious given the fact the defendant

was charged with a Class A felony). Therefore, this factor weighs in favor of the State.

B. Reason for delay

The next Barker factor to be considered, reason for the delay, generally falls into one

of the following categories: “(1) intentional delay to gain a tactical advantage over the

defense or delay designed to harass the defendant; (2) bureaucratic indifference or

negligence; (3) delay necessary to the fair and effective prosecution of the case; and (4) delay

caused, or acquiesced in, by the defense.” Wood, 924 S.W.2d at 346-47. Intentional delay

is “weighted heavily” against the State while “negligence or oversight are considered against

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the [State] but afforded comparatively more neutral weight.” Easterly, 77 S.W.3d at 236

(citing Barker, 407 U.S. at 531). There is nothing in the record to suggest that the delay in

this case was intentionally caused by the State. Instead the trial court found that the delay

was caused “because the Defendant was in federal custody and the two sovereigns were

unable to facilitate his transfer to state custody.”

Even though the delay was not intentional, this factor still weighs against the State “to

some extent because a defendant has no duty to bring himself to trial.” Simmons, 54 S.W.3d

at 760 (quoting Barker, 407 U.S. at 527) (quotation marks omitted). While the factor weighs

against the state, when the delay results from bureaucratic indifference, “the weight to be

assigned this factor differs depending upon the length of the delay.” Id. The court’s

tolerance of a delay caused by bureaucratic indifference “varies inversely with its

protractedness and its consequent threat to the fairness of the accused’s trial.” Id. (quoting

Doggett, 505 U.S. at 656). The delay in this case was not substantial and “did not greatly

exceed the triggering threshold.” Id. Therefore, “this factor does not weigh heavily against

the State.” Id.; accord Easterly, 77 S.W.3d at 237.

C. Assertion of right

The third factor in the Barker analysis is “the defendant’s assertion or failure to assert

the right to a speedy trial.” Simmons, 54 S.W.3d at 760. A defendant’s assertion of the right

“is entitled to strong evidentiary weight in determining whether the right has been denied,

and failure to assert the right will make it difficult to prove it was denied.” Wood, 924

S.W.2d at 348. The defendant’s failure to assert the right “implies [the] defendant does not

actively seek a swift trial.” Id. The Defendant cites this court’s decision in Easterly for the

proposition that a communication which does not contain an express demand for a speedy

trial may nonetheless assert the right if “it is clear from the evidence that the tenor of [the]

communication . . . was to that effect.” Easterly, 77 S.W.3d at 237. While it is true that a

defendant may assert his right to a speedy trial without an explicit demand, the facts in

Easterly are markedly different from the facts of this case.

In Easterly, the defendant’s counsel specifically requested that a capias be served on

the defendant and “expressed concern [to the prosecutor] about prejudice as a result of the

delay.” 77 S.W.3d at 237. Here, the Defendant’s counsel for his federal case did contact the

prosecutor’s office, but only “to see if we can reach a global settlement on all charges.” The

trial court found that Defendant’s counsel never raised the importance of a speedy trial or

actually requested that state proceedings be commenced against the Defendant. Instead, the

communications were limited to requests for settlement negotiations and did not express a

desire to expedite the state proceedings. Additionally, the communications did not express

any concern for any possible prejudice that may have been caused by the delay. The

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Defendant did not formally assert his right to a speedy trial until he filed his motion to

dismiss on March 6, 2009, four days before trial. Therefore, this factor weighs in favor of

the State.

D. Prejudice

The final Barker factor is whether the accused suffered any prejudice as a result of the

delay. Simmons, 54 S.W.3d at 760. This factor is the most important factor in the analysis

and seeks to protect the following specific interests of the defendant: “(1) preventing

oppressive pretrial incarceration; (2) minimizing the accused’s anxiety and concern; and (3)

limiting the possibility of impairment to preparation of the defense.” Easterly, 77 S.W.3d at

237. Regarding the first interest, the trial court correctly found that there was no oppressive

pretrial incarceration because during the delay, the Defendant wasincarcerated for hisfederal

armed robbery convictions and that he would have remained in federal custody even if there

had been no state charges pending against him. Additionally, to the extent the Defendant

claims that the delay prevented him from obtaining a plea bargain resolving both his state and

federal charges, the mere possibility of obtaining a more favorable sentence “is notsufficient

prejudice to establish a speedy trial violation . . . .” Simmons, 54 S.W.3d at 761. As for the

Defendant’s anxiety and concern, the Defendant presented no evidence in his motion to

dismiss that the delay had increased his anxiety or concern. The Defendant did assert that the

preparation of his defense was impaired by the delay. The Defendant claimed that the delay

prevented him from preparing a mental health defense and hiring an expert on the issue.

However, the trial court correctly found that the Defendant was aware of the state charges

since his indictment in October 2007 and had nearly a year and half to prepare a mental

health defense. Additionally, the Defendant presented no evidence that his mental condition

had worsened during the delay. Because there is no evidence of any actual prejudice to the

Defendant caused by the delay, this factor weighs in favor of the State.

E. Balance of factors

The delay of 17 months between the Defendant’s indictment and his trial was lengthy

enough to trigger a Barker inquiry, but it was not unreasonable in view of the complexity of

the case and the number of felony charges faced by the Defendant. There is nothing in the

record to suggest that the delay was caused by anything other than bureaucratic indifference.

Because the length of the delay was not protracted, this factor does not weigh heavily against

the State. Additionally, we conclude that the Defendant did not timely assert his right to a

speedy trial, and, most importantly, was not prejudiced by the delay. Accordingly, we hold

that the trial court did not abuse its discretion in denying the Defendant’s motion to dismiss

for lack of a speedy trial.

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II. Severance of Offenses

The Defendant contends that the trial court erred in denying his motion to sever the

aggravated robbery count for the robbery of the gas station from the remainder of the

indictment. The Defendant argues that the aggravated robbery offense was not part of a

common scheme or plan related to the other charges in the indictment and that the evidence

of the aggravated robbery would not be admissible at trial for the remaining counts of the

indictment. The State responds that the aggravated robbery was part of a continuing plan by

the Defendant to obtain the money needed to purchase a handgun. Alternatively, the State

responds, even if the trial court erred in denying the motion to sever, the error was harmless.

The standard of review of a trial court’s decision to consolidate or sever offenses is

an abuse of discretion. State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). An appellate court

will not interfere with the exercise of this discretion unless it appears on the face of the

record that the accused was prejudiced by the court’s ruling. State v. Wiseman, 643 S.W.2d

354, 362 (Tenn. Crim. App. 1982). The decision to grant or deny a severance “depends upon

the facts and circumstances involved in the various crimes that are charged.” State v. Morris,

788 S.W.2d 820, 822 (Tenn. Crim. App. 1990).

Rule 8(b) of the Tennessee Rules of Criminal Procedure allows for the permissive

joinder of offenses and states that “[t]wo or more offenses may be joined in the same

indictment, presentment, or information, with each offense stated in a separate count, or

consolidated pursuant to Rule 13 if the offenses constitute parts of a common scheme or plan

or if they are of the same or similar character.” Tenn. R. Crim. P. 8(b). However, Rule 14

of the Tennessee Rules of Criminal Procedure states that “[i]f two or more offenses have

been joined or consolidated for trial . . . , the defendant shall have a right to a severance of

the offenses unless the offenses are part of a common scheme or plan and the evidence of one

would be admissible upon the trial of the others.” Tenn. R. Crim. P. 14(b)(1) (emphasis

added). Therefore, in order to deny a motion for severance the trial court must be satisfied

in two findings: a common scheme or plan and the admissibility of evidence of one offense

in a separate trial for the others. See State v. Hallock, 875 S.W.2d 285, 289 (Tenn. Crim.

App. 1993); see also State v. Tolivar, 117 S.W.3d 216, 227-31 (Tenn. 2003).

The first prong of Rule 14(b)(1) of the Tennessee Rules of Criminal Procedure

requires the trial court to find a common scheme or plan. In Tennessee, there are three

categories of common scheme or plan evidence: (1) evidence showing a distinctive design

or signature crime; (2) evidence demonstrating a larger, continuing plan or conspiracy; and

(3) evidence that the offenses are part of the same transaction. State v. Moore, 6 S.W.3d 235,

240 (Tenn. 1999). For offenses to be considered part of a continuing plan or conspiracy, the

crimes must be directed toward a “common goal or purpose.” State v. Denton, 149 S.W.3d

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1, 15 (Tenn. 2004) (quoting State v. Hoyt, 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995))

(quotation marks omitted). Furthermore, this category “requires proof of ‘a working plan,

operating towards the future with such force as to make probable the crime for which the

defendant is on trial.’” State v. Allen Prentice Blye, No. E2001-01375-CCA-R3-CD, 2002

WL 31487524, at *5 (Tenn. Crim. App. Nov. 1, 2002) (quoting Hoyt, 928 S.W.2d at 943),

perm. app. denied (Tenn. March 10, 2003). The continuing plan or conspiracy category “has

typically been restricted to cases involving crime sprees, where the defendant commits

several crimes quite closely in time to one another.” Id. (citing State v. Hall, 976 S.W.2d

121, 146 (Tenn. 1998) (appendix)). See generally Hall, 976 S.W.2d 146 (appendix)

(concluding that joinder of trials for burglaries, larcenies, and murder proper where

defendants committed offenses following escape from prison; larger plan was to flee the

country and avoid capture); State v. William Arthur Shelton, No. E2005-02014-CCA-R3-CD,

2006 WL 3246100, at *4 (Tenn. Crim. App. Nov. 9, 2006) (concluding that joinder of

kidnapping, vandalism, and murder trials proper where defendant detained occupants of a

residence in an attempt to lure murder victim to the residence; defendant also vandalized car

to prevent kidnapping victims from escaping), perm. app. denied (Tenn. 2007); State v.

William Ramsey, No. M2001-02735-CCA-R3-CD, 2003 WL 21658589, at *9 (Tenn. Crim.

App. July 15, 2003) (concluding that joinder of aggravated robbery and theft offenses

occurring four months apart proper where defendant committed offenses in attempt to

retaliate against victim, who had abused former codefendant’s stepsister), perm. app. denied

(Tenn. Dec. 22, 2003); State v. Mario Antoine Leggs, No. M2002-01022-CCA-R3-CD, 2003

WL 21189783, at *5 (Tenn. Crim. App. May 21, 2003) (concluding that joinder of multiple

offenses including aggravated robbery, reckless aggravated assault, and theft proper where

defendant, over a three-week period, stole several women’s purses in the parking lot of a

particular store at a particular mall; “offenses were part of a larger, continuing plan to steal

women’s purses” at that particular location), perm. app. denied (Tenn. Oct. 6, 2003).

The trial court in this case found that the aggravated robbery charge and the remaining

charges in the indictment were part of the same common scheme or plan. The trial court,

relying on the Defendant’s statement to the police, found that all of the charges arose as part

of the Defendant’s plan to obtain money in order to purchase a handgun, “get out of town,”

and “regroup” before returning to Nashville to murder his ex-girlfriend, her new boyfriend,

and anyone else who got in his way. The trial court also noted that all of these crimes

occurred within a 25-hour time period, they were committed within a 15-mile radius of each

other, and the longest break between crimes was nine hours. We conclude that the trial court

did not abuse its discretion in finding that the aggravated robbery was part of a larger,

continuing plan by the Defendant to obtain the money he needed for his plan to kill his exgirlfriend and her new boyfriend.

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The second prong of Rule 14(b)(1) of the Tennessee Rules of Criminal Procedure is

what the Tennessee Supreme Court has deemed the “primary inquiry” in any severance case:

whether the evidence of one offense would be admissible in the trial of the other if the two

offenses remained severed. State v. Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984). Our

supreme court has stated that “‘[u]nless [it is] expressly tied to a relevant issue, evidence of

a common scheme or plan can only serve to encourage the jury to conclude that since the

defendant committed the other crime, he also committed the crime charged.’” Moore, 6

S.W.3d at 239 n.5 (quoting Hallock, 875 S.W.2d at 292). The court has also stated that “a

common scheme or plan for severance purposes is the same as a common scheme or plan for

evidentiary purposes.” Moore, 6 S.W.3d at 240 n.7. Therefore, Tennessee Rule of Evidence

404(b) is relevant to our analysis of this issue.

Rule 404(b) excludes evidence of “other crimes, wrongs, or acts” committed by the

defendant when offered only to show the defendant’s propensity to commit the crime

charged. See Tenn. R. Evid. 404(b). Generally, evidence that the accused committed crimes

independent of those for which he is on trial is inadmissible because such evidence lacks

relevance and invites the finder of fact to infer guilt from propensity. See Moore, 6 S.W.3d

at 239; see also Tenn. R. Evid. 404(b). Evidence of other crimes, wrongs, or acts, however,

may be admissible for other purposes, such as “‘to show identity, guilty knowledge, intent,

motive, to rebut a defense of mistake or accident, or to establish some other relevant issue.’”

Moore, 6 S.W.3d at 239 n. 5 (quoting Hallock, 875 S.W.2d at 292).

We agree with the trial court that evidence of the aggravated robbery would be

admissible in the trial of the other offenses even if they were severed. The trial court found

that evidence of the aggravated robbery would be important in establishing the Defendant’s

motive at a hypothetical separate trial for the remaining offenses. The trial court reasoned

that the Defendant’s motive for all of the charged crimes, to get money and leave town and

regroup so the Defendant could kill his ex-girlfriend, preexisted the aggravated robbery

charge and was the common thread running through the Defendant’s crime spree.

Additionally, we note, that evidence of the gas station robbery would be admissible in a

separate trial for the remaining offenses in order to provide contextual background. Without

evidence of the aggravated robbery, there would be no evidence that the Defendant tried to

obtain any money. Without evidence of the gas station robbery there would be a conceptual

3

void in the State’s case likely to result in significant jury confusion leaving the jury to

consider a “seemingly haphazard crime spree across the area” with no apparent motive.

The trial court was correct in analyzing whether evidence of the gas station robbery would be admissible

3

in a hypothetical separate trial for the other charges and then analyzing whether evidence of the bank

robberies would be admissible at trial for all of the charges. Therefore, the trial court could not assume that

the evidence of the bank robberies would be admitted at trial. 

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Following our review, we conclude that the trial court did not abuse its discretion in denying

the pretrial motion for severance. Accordingly, we affirm the trial court’s decision not to

sever the aggravated robbery count from the remainder of the indictment.

III. Evidence of Prior Bad Acts

The Defendant contends that the trial court erred by admitting evidence of the

Defendant’s federal convictions for two armed bank robberies. The Defendant argues that

the evidence of his federal convictions does not satisfy any of the exceptions to the general

rule that evidence of prior bad acts is inadmissible. The Defendant further contends that the

evidence of his armed bank robbery convictions is not admissible as contextual background

evidence because its absence would not have confused the jury or have created a

chronological or conceptual void in the State’s presentation of evidence. The State responds

that the trial court did not err in admitting the evidence of the Defendant’s federal

convictions. The State argues that the Defendant’s convictions were relevant to establish his

motive for most of the charged crimes.

When evidence is proffered pursuant to Tennessee Rule of Evidence 404(b) and the

record reflectsthat the trial court hassubstantially complied with the procedural requirements

of that rule, the trial court’s decision to admit or exclude evidence on the basis of Rule 404(b)

will only be reversed upon a showing of an abuse of discretion. See State v. DuBose, 953

S.W.2d 649, 652 (Tenn. 1997).

In State v. Gilliland, 22 S.W.3d 266 (Tenn. 2000), our supreme court discussed the

admissibility of background evidence containing proof of prior bad acts of a defendant. The

court noted that “in every case in which evidence of other crimes, wrongs, or acts is offered,

the trial judge should carefully scrutinize the relevance of the evidence and reasons for which

it is being offered.” Gilliland, 22 S.W.3d at 271. Additionally, the court noted that

evidence offered to show contextual background need not be

excluded simply for the reason that it involves evidence of prior

acts. If the contextual evidence is relevant to an issue other than

criminal propensity and its probative value is not outweighed by

the danger of unfair prejudice, then that evidence may be

properly admissible.

Id. However, the court also warned that “general background evidence used to relate the full

story of an offense is rarely probative of an actual issue at trial.” Id. The court further stated

that

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[a] general policy that bars background evidence merely because

it does not directly bear upon a material issue ignores the fact

that such evidence is often crucial to understanding the other

material evidence at trial, and the absence of background

evidence could have detrimental effects on the jury’s

comprehension of the offense in question. Events do not occur

in a vacuum, and in many cases, knowledge of the events

surrounding the commission of the crime may be necessary for

the jury to “realistically evaluate the evidence.”

Id. at 271-272 (emphasis added) (citations omitted). In summary, the supreme court held that

when the state seeks to offer evidence of other crimes, wrongs,

or acts that is relevant only to provide a contextual background

for the case, the state must establish, and the trial court must

find, that (1) the absence of the evidence would create a

chronological or conceptual void in the state’s presentation of its

case; (2) the void created would likely result in significant jury

confusion as to the material issues or evidence in the case; and

(3) the probative value of the evidence is not outweighed by the

danger of unfair prejudice.

Id. at 272.

Evidence of the two armed bank robberies committed by the Defendant provides a

significant contextual background for this case. The absence of this evidence would have

created a large void in the State’s presentation of its case and would have likely resulted in

significant jury confusion. Contrary to the Defendant’s contentions on appeal, the evidence

of his armed bank robbery convictions establishes a motive for all but one of the crimes he

was convicted of. The Defendant carjacked Ms. Runder in order to obtain a vehicle to use

in the bank robberies. Immediately following the bank robberies the Defendant carjacked

Ms. Barnett, attempted to carjack Mr. Greene, accosted three other individuals and attempted

to take their vehicles, and assaulted Mr. Hedger. All this was done in the Defendant’s

attempt to avoid arrest for the two armed bank robberies he had just committed. Without

evidence of the bank robberies, the Defendant’s actions would appear to be nothing more

than random mayhem. Furthermore, there would be no connection between the robbery of

the Shell gas station and the remaining charges of the indictment. Running through all of the

charged offenses was the Defendant’s plan to obtain the money he needed to make a

purchase. Withholding the evidence of the bank robberies would have created a significant

-15-
chronological and conceptual void in the State’s case resulting in significant jury confusion.

The probative value of this evidence outweighed the danger of unfair prejudice. The

trial court limited the evidence’s prejudicial effect by restricting the State to proving only that

the two bank robberies occurred and that the Defendant was convicted of the bank robberies

in federal court. The trial court did not allow the State to introduce the more prejudicial

evidence of the Defendant’s plan to kill his ex-girlfriend and her new boyfriend, or that the

Defendant was trying to obtain money to purchase a gun. Instead, the State was only allowed

to introduce to the jury the fact that the Defendant, in his statement to police, admitted to

committing the robberies because he needed money to make a purchase. Accordingly, we

conclude that the trial court did not err in admitting evidence of the Defendant’s two federal

convictions for armed robbery.

IV. Sentencing

The Defendant contends that the trial court erred in sentencing him to the maximum

sentence in all but one of his convictions. The Defendant asserts that the trial court erred by

failing to give any weight to the proposed mitigating factor that the Defendant’s actions

occurred “under such unusual circumstances” that an intent to violate the law did not

motivate his conduct. The Defendant also contends that because of his age, the effective

sentence of 89 years was not the least severe measure necessary to achieve the purposes of

the 1989 Sentencing Reform Act and is greater than what is deserved for the offenses

committed. Additionally, the Defendant contends that the trial court erred in imposing

consecutive sentences on all of his felony convictions and ordering that his sentences be

served consecutively to his current federal sentence. Again, the Defendant asserts that the

trial court’s sentence is greater than what is deserved for the offenses he committed. The

State responds that the record fully supports the trial court’s findings. The State notes that

the Defendant has an extensive criminal history, including several convictions for violent

offenses and that the trial court properly based the Defendant’s sentence on this enhancement

factor.

An appellate court’s review of sentencing is de novo on the record with a presumption

that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the

Sentencing Commission Comments to this section note, on appeal the burden is on the

Defendant to show that the sentence is improper. This means that if the trial court followed

the statutory sentencing procedure, made findings of fact that are adequately supported in the

record, and gave due consideration to the factors and principles that are relevant to

sentencing under the 1989 Sentencing Act, the court may not disturb the sentence even if a

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different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.

1991); see also State v. Carter, 254 S.W.3d 335 (Tenn. 2008).

However, “the presumption of correctness which accompanies the trial court’s action

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

sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate review,

[T]he trial court must place on the record its reasons for arriving at the final

sentencing decision, identify the mitigating and enhancement factors found,

state the specific facts supporting each enhancement factor found, and

articulate how the mitigating and enhancement factors have been evaluated

and balanced in determining the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994) (citation omitted); see Tenn. Code Ann.

§ 40-35-210(e).

Tennessee’s sentencing act provides:

(c) The court shall impose a sentence within the range of punishment,

determined by whether the defendant is a mitigated, standard, persistent,

career, or repeat violent offender. In imposing a specific sentence within the

range of punishment, the court shall consider, but is not bound by, the

following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the

sentence that should be imposed, because the general assembly

set the minimum length of sentence for each felony class to

reflect the relative seriousness of each criminal offense in the

felony classifications; and

(2) The sentence length within the range should be adjusted, as

appropriate, by the presence or absence of mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c)(1)-(2).

The weight to be afforded an enhancement or mitigating factor is left to the trial

court’s discretion so long as its use complies with the purposes and principles of the 1989

Sentencing Act and the court’s findings are adequately supported by the record. Id. § (d)-(f);

-17-
Carter, 254 S.W.3d at 342-43. Therefore, this court is “bound by a trial court’s decision as

to the length of the sentence imposed so long as it is imposed in a manner consistent with the

purposes and principles set out in . . . the Sentencing Act.” Carter, 254 S.W.3d at 346. As

explained by our supreme court in Carter, the 2005 amendments to the Sentencing Act now

afford the trial court such greater discretion that:

the trial court is free to select any sentence within the applicable range so long

as the length of the sentence is ‘consistent with the purposes and principles of

the [Sentencing Act].

Id. at 343 (citing Tenn. Code Ann. § 40-35-210(d)). Accordingly, on appeal we may only

review whether the enhancement and mitigating factors were supported by the record and

their application was not otherwise barred by statute. See id.

In conducting its de novo review, the appellate court must consider (1) the evidence,

if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the

principles of sentencing and arguments as to sentencing alternatives, (4) the nature and

characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors,

(6) any statement that the defendant made on his own behalf, (7) the defendant’s potential

for rehabilitation or treatment, and (8) any statistical information provided by the

Administrative Office of the Courts as to sentencing practices for similar offenses in

Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Ashby, 823 S.W.2d at 168;

State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

We conclude that the record supports the trial court’s sentencing decision. The trial

court considered the enhancement factors presented by the State and the mitigating factors

presented by the Defendant. The trial court chose to give great weight to the Defendant’s

“immense prior criminal history.” As previously explained, as long as the record reflects that

the trial court properly considered the principles of sentencing and facts and circumstances

of the offense in arriving at its determination, this court is bound by the weight afforded any

sentencing factors applicable to the offense. The Defendant contends he should not be

criminally responsible for several of his convictions arising from his attempt to flee the scene

of his two armed bank robberies. However, we note that the Defendant told police after his

arrest that his plan was to leave town and “regroup” so he could come back, find his exgirlfriend and her new boyfriend, and kill them. The Defendant’s own statement belies any

suggestion that his actions in the Baptist Hospital parking garage and the parking lot of the

Lentz Health Center were done without any criminal intent. As for whether the Defendant’s

sentence was greater than what is deserved for the offenses committed, we note that the

Defendant threatened serious bodily harm to several of his victims, that the Defendant

assaulted Mr. Hedger when he intervened in the Defendant’s attempt to take Mr. Lear’s car,

-18-
and that the Defendant’s entire course of action was motivated by his desire to murder two

people along with anyone else who got in his way. Accordingly, we conclude that the

sentences handed down by the trial court comply with the purposes and principles of the

Sentencing Act and are affirmed.

Relative to the trial court’s imposition of consecutive sentences, the trial court made

specific findings that the Defendant qualified as an offender with an extensive history of

criminal activity and as a dangerous offender. Tenn. Code Ann. § 40-35-115(b). The trial

court noted the Defendant’s extensive criminal history and his convictions for numerous

felonies and misdemeanors. The Defendant’s convictions include aggravated assault, rape,

theft, driving under the influence, aggravated kidnapping, and aggravated robbery, among

others. This court has consistently held that criminal history alone may serve as the basis for

findings regarding the length and manner of service. State v. Meeks, 867 S.W.2d 361, 377

(Tenn. Crim. App. 1993). Additionally, we conclude that the effective sentence length of 89

years complies with the purposes and principles of the Sentencing Act. Accordingly, we

affirm the trial court’s imposition of consecutive sentences and its order that the Defendant’s

sentences be served consecutively to his current federal sentence.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of the

trial court are affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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