### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE June 21, 200 5 Session

STATE OF TENN ESSEE v. MORRIS LA MONTE MARSH
Direct Appeal from the Criminal Court for Davidson County No. 2001-B-934 Cheryl Blackburn, Judge

No. M2004-00854-CCA-R3-CD _ Filed August 15, 2005

The defendant, Morris Lamonte Ma rsh, was convicted

of four counts of first degree f elony murder, two counts of second degree murder, two counts of attempted second degree murde r, and one count of aggravated assa

ult. After merging two of the first degree felony murder convictions and

the two second degree murder convictions into the first two felony murde r convi ctions and merging the aggravated

assault conviction into one of the attempted second degree murder c onvictions, the trial court ordere d the def

endant to serve a total eff ective s entence

of two lif e senten ces plus f orty ye ars. Onappeal, the defendant raises the following issues: (1) whether the evidence w as suffic ient to support his convictions; (2) whether the trial court erred in instructing the jury on the law governing criminal responsi

bility ; and (3) wh ether the trial court erred in sentencing the defendant. Upon review, we affirm the judgments of the tria l court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J.C. M C L IN , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OSEPH M. T IPTON , J., joined. David A. Collins, Nashville, Tennessee, for the appellant, Morris Marsh.

Paul G. Summers, Attorney Gene ral and Rep orter; Preston Shipp, Ass istant Attorney Gene ral; Victor S. Jo hn so n, III, Di st ri ct At to rn ey G en er al ; B re tt Gu nn an d R og er Mo or e, As si st an t D is tr ic t A tt or ne ys General, for the appellee, State of Te nnessee.
OPINION

I. Facts During the evening hours of May 17, 2000, several masked men broke into the hom e of Robert Harris, located on Flora

Maxwell Road in Nashville, Tennessee. At the time of entry, Rober

t Harris, Tracy

Perkins and her t

hree ch ildren, E vita Hall , Sedrick

Jones, and T avares

Jones were

in-2-

the home. Both Mr. Harris and Ms. Hall were shot and killed. Sedrick and Tavares Jones were shot and wounded.

Ms. Perkins testified that she was Mr. Harris’ girlfriend. She a nd her three childr en li ved withMr. Har

ris at 224 Flora Maxwell Road. Around 11:30 p.m., she went to bed but awoke to a loud bumping noise coming from the living room. She opened her bedroom door to investigate the noise and saw her boyfriend and another man “scuffling .” Ms. Perkins could not see the man’s face butsaw that he had a g

un with a long barrel. Ms. Perkins went to the living room and saw a ma sked
manarmed wi

t h a gun. The masked man ordered her to ge t down on the floor. However, she ignored the order, walked into the kitchen, and hid in the laundry room. While hiding in the laundry room, she heard a shot. Ms. Perkins then ran out the back door of the house. While running, she heard more gunshots. She also saw a dark Cadillac with its engine running about “four houses up” fromher house. While hiding outside, she saw the dark Cadillac back down the stre et then lat er come back up the street and turn the corner. Af ter the police arrived, Ms. Perkins returned to the house and saw that the closetswere emptied and the drawers pulled out. Ms. Perkins discovere d that a couple of rings and a shotgun we re missing from the house.

The for mer re corded t

estimony of Sedric k Jones, who

was unav ailable a

t the time o f trial,
was read into the record at trial. Sedrick Jones had previously testified at a suppression hearing and his testimony

was subje ct to cro ss-examina tion by the defe nse coun sel. Prior

to the introduction of Sedrick Jones’ former testimony, the trial court a dvised the jury

that Sedr ick Jones wa s unavail able due to the fact that he had an arrest warr ant pendingagainst him as a result of a probation violation
onan attempted

aggravated robbe

ry char ge. The trial court indicated that the jury could consider

this information when assessing the credibility of Sedrick Jones’ former testimony.

Sedrick Jones testified that on May 18, 2000 , he was shot at 224 Flora Maxwell Road. According

to Sedrick Jones, he opened the door of Mr. Harris’ house and was about to leave when three men with guns appeared at the front door. The men had bandanas over their face s. With a gun to his s tomach, Sedrick Jones was ordered back inside the house. Sedrick Jones testified that th e masked men were there to

rob them, asking, “[w]here the money ’s at?” One

of the me n reached into Sedrick Jones’ pock

et and took seven h

undred d ollars fr om him.

Sedrick Jones testified that atsome point all three of the armed men took their masks off and he saw their faces. According to Sedrick Jones, the def endant took his cousin, Mr. Harris, into a roomand killed him. The defendant then shot Tavares Jones. Sedrick Jones explained that as the
menleft the house, the

y shot him in the arm and leg and shot and killed a woman named Evita. Sedrick Jones stated that he believed the defendant to be the one who shot and killed Mr. Harris and who shot his brother because he recog nized the “gold in his mouth.” Sedrick Jones further stated that he laterviewed a

photogr aph of the

defenda nt and ide

ntified hi m as the ma

n who shot h

is brother.

Oncros s-exa

mina tion, Sedrick Jones claimed that he saw the word “CRIP” etc hed in the defendant’s gold tee

th. He als o stated that he saw the defendant’s face as he was moving from

room-3-

to room in the house. Sedrick Jones denied using cocaine the evening he was shot. However, per stipulation, it was established that Sedrick Jones told police at the hospital that he had been drinking alcoh ol and usin g cocain e earli er that eveni ng.
Tavares Jones, Sedrick

Jones’ brother, testified that he was visiting at Mr. Harris’ house the evening of May

18, 2000. As he was about to leave the house, two armed men enter ed the house. The men told e

very one to lie down onthe living room floor. While lying on the floor, Tavares Jones heard “scuff ling” a nd sever al gunsh ots. As the

mask e d men walked over him, they shot him four times. After being shot, Tavares Jones heard Evita Hall pra ying, a nd then he heard the men shoot her. Accord

ing to Tavares Jones, he could not identify the men beca use they wer

e wearing bandanas
over their faces. On cross-e xami nation, Tavares Jones admitted to drinking and doing cocaine earli er that eveni ng.
Several police officers testified that th ey responde d to the sho oting at 224 Flor a Maxwell Road around 4:00 a.m. and began an investiga tion of the crime s cene. At the c rime scene, the officers interviewed Ms. Perkins, who explained her escape. Tavare s Jones, Sedr ick Jones, and Ms. Hallwere tran spor ted by ambulance to the local hospital. Mr. Harris was determined to be dead. The officers observed

blood stains on the floor, detected evidence of a struggle, and determined that the house had been ransacked. From the c rime scene, the officers retrieved a total of twenty -three sp ent she ll casings and eight bullet projectiles. The office rs documented the crime scene by checking for fingerprints, takin g pictures and measurements, drawing diag rams, and collecting evidence.

Police Officer Florentino Santana testified that around 4:45 p.m. on May 19, 2000, he was
onpatrol when he heard “very loud music” coming from a gray Cadillac driven by the defend ant. As Officer San

tana proceeded to follow the Cadillac, he observed the Cadillac run a stop sign. Officer Santana a

ctivated his blue lig

hts as the defendant was making a left turn. While making the turn, Officer Santana observed the def endant throw a pistol out the window of the Cadillac. Officer David Goodwin, another

office r followi ng the d efenda nt, recovered the pistol, a

loaded Glock ninemillimeter. A short distance later, the defendant stopped th

e Cadilla c and wa s placed

under ar rest. Officer Santana testified that after the defendant was a rrested and booked, a pair of pants, a hat, a shirt, and a black bandana were collec ted from the defendant’s person.

Police Detective Brad Putnam testified that he learned of the defendant’s ar rest and sought to interview him regarding the murders and attempted murders that occurred on F lora Maxwell Road the night before. Prior to the interview, Detective Putnam advised t he defe ndant of h

is Miranda rights, and the defendant signed a waiver of rights form. During the interview, the defenda nt told Detective Putnam tha

t he had me

t three o ther men

in the Edg ehillarea. He and the other men talked about robbing a house where there was supposed to be $250,000 stashed in a closet and five kilos of cocaine buried under a doghouse in the backya

rd. The defendant drove the men to Flora Ma

xwell inhis Cadillac because he did not let any body drive his car . After parking up the street, the defendant loaned ou

t his nine- milli meter Glock b ecause “one of the guy s needed a gun.” The defendant then told Detective Putnam that the Glock was one of

the murder weapons. The defendant-4-

also explained

that the th

ree men who went i

nside the house we re all armed and

wearing bandanas – one man had a chrome gun, the other ha d a long gun, and the other one had his Gloc k. According to Detective Putnam’s testimony , the defendant admitted that he was expecting to get some of the proceeds from the r ob be ry b ut claimed that his job was to drive the car. The defe ndant insisted that he stayed in the c ar during the robbery and did not go into the house. Nonethe less, the defendant stated that

the men told him that Mr. Harris was shot because he gra bbed for one of the guns, and Ms. Hall was shot because she would not stop singing “church songs.” The defend ant also a dmitted that he advised the men to shout “ATF Metro police” when enter ing the house. Detecti

ve Putnam t

estif ied t hat the defendant changed the na mes of the men during the interview, but later

told Dete ct ive Putnam’s partner the real names of the men involved in the
ro bb er y.
Detect ive Putnam testified that at some point during the middle of the interview he discovered

that the interview wa s not being taped. Detective Putnam stopped the interview and turned on the audio/video recorder and continued the interview. Detective Putnam explained that the videotape contained only part of the interview. The videotape was play ed before the jury and admitted as an exhibit in the case.

Detective Putnam testified that after the interview, the defendant agreed to show him wher e the guns used during the robbery were hidden. Under

police escort, the defendant directed Dete ctive Putnam to his girlfriend’s house. However, the g uns were not at the house but were later recovered froma neighbor’s house close by. De tective Putnam identified the recovered guns as a Cobray ninemillmeter submachine gun, a .223 caliber Ruge r Mini 14, and a .45 cal ib er C om man do M ark III
s ubmachine gun. All of the guns were loaded. D etective Putnam testified that the defendan t indicated that the Cobray , Ruger Mini, and his Glock were the guns used in the r obbery.

Detective Putnam testified that the next day he showed Sedrick Jones a

photographic lineup that contained the defendant’s picture. Looki ng at that lineup, Sedrick Jones was unable to make
anidentification. However, upon viewing additional photogra phs, Sedric k Jones saw

a profile picture of the defendant

and identified the defendant as the man who shot his brother. Sedrick Jones told Detecti ve Putnam t

hat he re cognize d the def endant a s the shoot e r because of the defendant’s prominent chin.

Oncross-examination, Detective Putnam reiterated that Sed ri ck Jones mentioned the defendant’s chin as the means of i dent ification and stated that he did not recall if Sedrick Jones mentioned

the defendant’s gold teeth. Detective Putnam also admitted that another suspect had gol d teeth in his mouth. Detecti

ve Putnam f

urther a dmitted tha

t Sedrick Jones did not specify

which man he saw take the bandana off. There fore, Detective Putnam stated that it was unclear whethe r Sedrick Jones saw the defendant’s chin with t he ba ndana off or noticed the defendant’s c hin under the bandana.-5-

Detective Roy Dunaway

testified that he was also present during the defendant’s interview. Detective Du na wa y st at ed th at he an d D et ec ti ve Pu tn am pr ov id ed so me de ta il s a bo ut th e r ob be ry at Flora Maxwell Road, such as the street layout, and the def

endant responded with details regarding where he parked his Cadillac an d where he drove after the robbe ry. Acc ording to Detective Du na wa y, the defendant’s description of his driving

corres ponded to the lay out of the Flora Ma xwell neig hborhoo d

. Detective Dunaway also testified that the defendant gave him some rea l names of people involved in the robbery. On cross-examination, Detective Dunaway reiterated the fact that only part of the de fendant’s statement was taped. Detective Dunaway also acknowledged the fact that the defendant consistently denied going into the house on Flora Maxwell Road.

Several State witnesses testified regarding the phy sical evidence recove red during the investig ati on. No fin ge rprin ts wer e recov ered fr om th e guns u sed in the cri me. Al thou gh finger prin ts w ere tak

en from the defen

dant’s Ca dillac, none wer

e matche d to the de fendant

. However, a fingerprint was matched to another suspe ct who was being investigated. An autopsy of both Mr. Harris and Ms. Hall revealed that Mr. Har ris and Ms. H all died from multiple gunshot wounds. The autopsy also re vealed the presence of

alcohol and cocaine in Ms. Hall’s system and the presence of cocaine in Mr. Harris’ sy stem. It was determined that one of the projectiles and two of the shell casings recovered from Mr. Harris at the crime scene had be en fired from defendant’s Glock. It wa s also determined that ten projectiles and twenty -one shell casings recovere d from the crime scene had been fired fr om the Cobray. Following the close of the State’s proof, the defendant re called Detective P utnam to th e witness stand. Detective Putnam testified that he in terviewed another suspect in the case name d Ronald Dodson. Detective Putnam stated that although Dodson denied involvement, he admitted that he was the owner

of the .223 Ruger and knew how many rounds were left in the gun. Detective Putnam also stated

that Dodson told him

that the d

efenda nt’s Cadil lac mig

ht have hi s finge

rprints in it . T he de fe nd an t d id no t t es ti fy.

Based uponthe evidence presented, the jury found the defenda

nt guilty of four c ounts of f

irst degreefelony

murder; t wo counts

of second degree murder ; two counts of attempted second degree murder; and one count of aggra vated assault. The trial court merged two of the first degree felony murder convictions and

the two second degree murder convictions into the first two felony murder convicti ons. The tri a l court imposed a life sentence for each f elony murder c onviction. The trial court merged the agg

ravated assault conviction into one of the attempted se cond degree murder convi ctions, a nd imposed twenty y ear sentences for each of

the attempted second degree murde r convicti ons. The tria

l court the n ordere d all of the defenda nt’s sente nces to be served c onsecuti

vely for a tota l agg regat e senten ce of two life sent ences pl us forty ye ars. II. Analysis A. Sufficiency of the Evidence-6-

The defendant first argues that the evide nce was insuff

icient to s

upport his

convicti ons. Sp ec if ic al ly, the defendant asserts that the evidence wa s insufficient because: (1 ) n o physical evidence was found

implicating him in the crimes that took place on 224 Flora Maxwell Road ; and (2) the former testimony of Sedr ick Jones identifying the def endant as a participant in the crimes was riddled with inconsistency and wa s not credible.

Our review begins with the well-established rule that once a ju ry finds a de fendant

guilty, his
or her pre sumption of

innocenc e is remov ed and re pla ced wi th a presumption of guilt. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appea l, the convicted defendant has the burden of demonstrating to this Court why the e vidence will not support the jury' s verdict. State v. Carruthers , 35 S. W.3 d 516, 557- 58 (Tenn . 2000); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden, the defendant must establish that no “rational trier of fact” c ould have found the esse ntial ele ments of the cr

ime beyond a re asonable doubt. Jackson v. V irginia , 443 U.S. 307, 319 (1979); State v. Evans , 10 8 S .W .3d 231 , 23 6 (T enn . 20 03) ; Te nn. R. App . P . 13 (e) . In contras t, the jur

y's verd ict approved by the trial judge accredits the State’s witnesses and re solves all conflicts in favor of the State. State v. H arris , 839 S.W.2d 54, 75 (Tenn. 1992) . The State is entitled to the strongest legitimate view of the evidence and all reasonable inferences whic h may be drawn from that evidence. Carruthers , 35 S.W.3d at 558. Questions concerning the credibility of the witnesses, conflicts in trial testimony, the wei ght and value t o be giv en the ev idence, and all f actual issues raised by the e vidence are resolved by

the trier of fact and not this Court. State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997). We do not at tem pt to re-weigh or re-evalua te the evidence. State v. Re id , 91 S.W.3d 247, 277 (Tenn. 2002). Likewise, we do not replac e the j ury's inferences drawn from the circ umstantial evidence with our own inferences. Id.

Ini ti al ly, we note that

the defendant does not argue that the e vidence was insufficient to prove the offenses for which he was convicted; but ra ther, the defendant maintains that the evidence was insuff icient to establish his identity as a participant in the off enses for which he was convicted. However, the proof at trial established that the defendant was an active particip ant in the

offense s.
The proof at

trial established that a dark-colored Cadillac was par ked outside the house on 224 Flora Maxw ell Road . The n ext d ay, when t he defe ndant was arr ested , he was drivi ng a gr a y Cadillac. Sedrick Jones, one of the victims, identified the defendant as the man who killed Robert Harrisand shot

Tavare s Jones. The

defenda nt was obs erved th

rowing his Glock nine-millimeter out of his Cadillac while beingfollowed by police. One projectile bullet and

two shell casings recovered fromthe body of Mr. Ha

rris and the crime scene were f ired from a Glock

nine-millimeter. The men who shotthe victims were described as wearing bandanas. A black bandana was collec ted from the defendant’s person.

The defenda

nt’s own statement s to police placed him at the crime scene. The defe ndant admitted that he and

three men drove to a house on Flora Maxwell Road in order to steal an allege d hiddenstash of cocaine and cash. The defe ndant further admitted

that he expected

to share in the proceeds of the robbery

and told the other men to shout “ATF Metro police” when they entered the house. The defendant indicated that he knew the men we re armed and wearing ba

nanas and was-7-

aware that two of the victims were shot and killed. The defendant identified his Glock as a murder weapon and told police that he loaned his Glock to one of the men. After ma king the se statements, the defendant led the police to the other guns used in the shooting s.

Inthis case , the jury

was instr

ucted on t

he law of criminal responsi bility and found the defendant guilty of the a

forementioned crimes. With respect to the defendant’s argument regarding the la ck of

cr ed ib il it y an d i nc on si st en cy of Sedrick J ones’ te stimony , we note that Sedr ick Jones’ inconsistentstatements and credibility issues we re either brought out on cross-examination or presented by stipulation. The weig ht and credibility of the testimony of a witness and the reconciliation

of conflicts in testimony, if any , are matters entrusted exclusively to the jury. Viewing the evidence in a light

most favorable to the State, we conclude that a rational trier of fact could find beyond a reasonable dou

bt that the

defenda nt active ly p articipa

ted in the crimes for

which he was convicte d. Accor

dingly , the def endant’ s suffici ency

argume nts are w ithout mer

it.
B. Jury Instruction : Criminal Responsibility

T he defendant argues that the trial cour t erred by twice instructing the jury on the law o f criminal responsibility thereby giving undue em

phas is to t

his portion

of the instr uction. We disagree.

Under the United States and Tennessee Constitutions, a defendant has a right to tr ia l b y ju ry. State v. Garrison , 40 S.W.3d 42 6, 432 (Te nn. 2000) . A defe

ndant als o has a rig

ht to a correct and complete charge of the law, so that eac h issue of fact raised by

the evidence will be submitted to the jury on pr oper inst

ructi ons. Id

. In evaluating c laims of error in the jury charge, this Court

must review the charge in its entirety

and read it as a whole. State v. L e ach , 148 S.W.3d 42, 58 (Tenn. 2004). A charg e shall be

consider ed preju dicially errone ous if it fa

ils to submit t

he lega l issues fa irly
orif it misl eads the jury a s to the applicable law. State v. Hodges , 944 S.W.2d 346, 352 (Tenn

. 1997)

. Prior

to readi ng the ju ry charg e, the tr

ial cour t made some

“prelimi nary observa tions”about the charge to the jury . The trial court stated: [T]his is a very long

charge. . . . [M]y pr

eliminary rema

rk s are notmeant to emph asize

any part of th is charg e. I

want to ma

ke sure t hat that is important ; by

my trying to explain a couple of things, I don’t want to emphasize any par t of the charge over any other pa rt. They are all e qually

important

.

. . . . [T]here are some things that we didn’t d iscuss or whatever. Some terms that are goingto change or that y

ouare going to notice

as you rea

d through the charge. One
we talked a

bout, and that is the

criminal responsi b ility for conduct of anothe r, and basical ly a defendant is criminally responsible for an offense committed b y the-8-

conduct of anothe r if a cting with the intent to promote or assist the commission of offense or to bene fit in

the proceeds or resul

ts of an of

fense, t he defe ndant soli cits, aids, directs, aids or attempts to aid another person to commit the offense.

That is what criminal responsibility for conduct of another. If

you notice, it requires the person act with the intent to promote o r ass ist the commission of the offense.

. . . .

. . . . Now you will note on y

our verdict form, as y

ou rea d th roug

h this[char

ge], that there is no specific check mark for someone being c riminally responsi ble for the conduct of another. If y

ou find that a person is criminally re sponsible for the conduct of another, they

are convicted as if they

were, it’s the main offense.

Th e trial court also briefly remarked upon the meaning of fa cilitation, provided some explanation regarding the definitions of certain culpable mental states, and briefly outlined the basic framework of the verdict forms. The trial court stated, “[A]gain, nothing by w hat I have said [is] . . . meant to emphasize anything a

t all. Also, I . . . have no opinion as to what y our verdict should be.”

The trial court

then read the entire charg e to the jury. Wi th re sp ec t t o c ri mi na l r es po ns ib il it y, the char ge rea d as follows:
The defenda

nt is criminal ly r

esponsibl e as a pa

rty to an off ense if the offen se was committed by the defenda nt’s own conduct, by the

conduct of another for

which the defendant is criminally r esponsible, or

by b oth. Each party

to the offense may

be charged with the commission of the offense.

The defenda

nt is crimi

na lly responsible for an of fense committed by the conduct of another

if, acting with the intent

to promote or assist the commission of
anoffense, or to benefi t in the p roceeds or results of an offense, the de fendant solicits, directs, aids, or attempts to aid another person to commit the offense. Mere presence is not sufficie

nt to find a de fendant

guilty for bein g crimin ally responsi ble for an offense committed b y t he conduct of another. However, pre sence of the defendant is not required.

A defendant who is criminally responsible for

the commission

of an off ense is not only guilty

of that offe nse, but is also guilty of a

ny other offe

nse committed by the con duct of another which is a natural and probable c onsequence of the off ens e origina lly intended. The issue is to be decided in the light of all the circumstances surrounding the incid

ent. A “natural c onseque

nce” is one which

is within the normal1 Te nnesse e Ru le of Criminal Procedure 30( d)(2 ) states in re levant p art: “Jury in struction s on the app licable

law may be giv en before or aft er closing argument, in the court’ s discreti on. All or part of s uch instruct ions given before closing argum ent ma y be re pea ted afte r closing argum ent. . . .”
-9- range of outcomes that ma y be reasona bly expected to occur if nothing unusualhas intervened. “Probable” means likely to happen.

Be fore you

find a de fendant

guilty of being criminal ly r

esponsibl e for sa

i d offens e comm itte d by the co nduct of ano ther, you must find t he fol lowi ng: 1) that

all the essential elements of said offense have been proven by

the state be yon d a reas onable do

ubt; 2) that

the defe ndant wa s crimina

lly r esponsi bl e for the conduct of another.

Withregard to the off

e nse of Sec ond Deg

ree Mur der and A

ttempted F irst Degree Premeditated Murder , you must also find: 3) that the said offense that was commi

tted was a natural and prob able consequ ence of the cr

ime of rob

bery and burglary . The Cour t wil l define fo r yo u t he cr im e o f r ob be ry a nd bu rg la ry l ater in these instructions.
Uponreview, we note that the defendant does not explain how the trial court’s preliminary remarks prejudiced his trial other than his contention that the jury

places more weig

ht on state ments that come from a trial court. Furthermore, the de fendant does not c ite relevant authority in support of his contention. Also, w e note t hat th e crim inal r espon sibi lity por tion of the jury charge corresponds to Tennessee Jury Pattern I nstructions and closely follows the statutory definition set forth in Tenne ssee Code

Annotate d section

39-11-40 2. Looking at t he trial c ourt’s p re liminary comments, it is our view that the trial court was simply cla rifyi ng some difficult concepts and addressingpreliminary issues re garding the charg e. 1 The trial court ca refully explained

to the jury that th ese com men ts “we re n ot mea nt to emp has iz e an y par t o f [ th e ju ry] c har ge. ” It is good practice to make clear to the j ury that repe ated instruction should not be emphasized and should be considered

in context of the entire charge. State v. Chance , 778 S.W.2d 457, 461- 62 (Tenn . Crim. App. 1989). Finally, we note that the jury char

ge in this case fairly

defined the issue s of law a

nd did notmislead the jury. Accord ingly, we conclude that trial court did not err by commenting on criminal responsi

bility prior t o readin

g the jur y charge in its entir

ety . This issue

is without me

rit.

C. Sentenc

ing

Inchallenging his sentences, the def endant argues that the trial court err ed in enhanc ing his convict ions for

attempted second degree murder by improperly

applying c ertain statutory-10-

enhancement

factors in violation of Blakely v. Washing ton , 542 U.S. 2 96, 124 S. Ct. 2531 (2004).

Before a trial court sentences a convicted defe ndant, it must consider (1) the evidence received at the trial and/or sentencing hearing ; (2) the presentence report; (3)the pri nciples of sente ncing; (4) the arguments of couns el relative to sentencing alternatives; (5) the na ture and characteristics of the criminal conduct involved; (6) any mitigating or enhancement factors; (7) any statemen ts made by the de fendant

in his or her own behalf; and (8) thedefendant's potential or lack of potentia l for rehabilitation or trea

tment. Tenn. Code Ann. §§ 40-35-103, -210; State v. I mfeld , 70 S.W.3d 698, 704 (Tenn. 2002). The trial court is also required to place on the record its rea sons for imposi ng t he specific sentence, including the identifica tion of the mitigating and enhancement factors found, the specific facts supporting each e nhancement factor found, and the method by which the mitigating and enhancement fac tors have been evaluated in determining the sentence. Imfe ld , 70 S.W.3d at 704-05. Appellat e review of a challenged se ntence is a de novo review of the record with a presumptionthat the trial court's determinations are corre ct. Tenn. Code Ann. § 40- 35-401(d ). This presumption of correctness is conditioned upon the affirmative showing in the record that the tria l court considered

the sente ncing principle s and all r

elevant facts a nd circu mstance s. State v. Pettus , 986 S.W.2d 540, 543-44 (Tenn. 1999). However, if the recor d shows tha

t the tria l court fa iled to consider the sentenci ng p rinciples and all relevant facts and circumstanc es, then review of the challenged

se nt en ce is pu re ly de novo without the presumption of correctness. State v. Ashby , 823 S.W.2d 166, 1 69 (Te nn. 19 91). O n appe al, th e defen dant h as the burde n of sh owing that th e sentence imposed by the trial court is improper. Te nn. Code Ann. § 4 0-35-4 01(d), Sentencing Commission Comments. According

to Tennessee sentencing statutes, the sentencing rang e for a Range I I offender w

ho commits a Class B felony is twelve to twen ty y

ears. Tenn . C ode Ann . § 4 0-3 5-1 12( b)( 2). In calculatingthe sentence for a Class B, C, D, or E felony convicti on, the pr

esumptive

sentenc e is the statutory minimum if there are no e nhancement

or mitiga ting fa ctors. Id. § 40-35-210(c). If there
are enhancement but no mitigating factors, the trial court may set

the sente nce abo ve the min

imum, butstill w ithin the range. Id. § 40-35-210(d). A sentence involving both enhance ment and mitigating factors requires an assignment of relative weight for the enhance ment factors as a means of increasing the sentence. Id. § 40-3 5- 210 (e). Th e sent ence mu st th en be re duced with in th e range by any weight assigned to the mitigating fa ctors present. Id.

At th e se nt enc in g he ari ng, th e tr ial cou rt f oun d t hat th e de fen dan t q ual ifi ed a s a R ang e II, multiple offender, because he had two pr ior felony convictions. The trial court sentenced the defendant to two life sentences for his first deg ree felony murder convictions. With respe ct to the defendant’s two convi ctions fo r atte mpted second degree murder, the t rial court applied enhancement factors (2 ), th at th e d ef

en da nt ha d a pr ev io us hi st or y of crimina l convictions or criminal behavior inaddition to

those nec essary

to establish

the appr opriate range ; (3), the

defenda nt was a leader in the commission

of an off ense involving two or more criminal actors; (10), the defenda nt possessed
or employed a fir

earm during the commission of the offense; and (14), the defendant was on bail for-11-

anoffense for

which he was ultimately c onvicted. Id. § 40-35-114(2), (3), (10), and (14). The trial court also applied mitigating factor (10), the def endant assisted po lice officers in locating or recovering

any propert y or person in

volved in t

he crime , but ga

ve it little weight. Id. § 40-35- 113(10). Consequently, the trial court sente nced the defendant to the maximum sent ence of twenty years for each of his attempted second deg ree murder convictions and ordered these sentences to be served consecutively

.
In Blakely

, the United States Supreme Court held that the defendant’s Sixth Amen dmen t right to a jury

trial wa s violated

if a tria l judge i ncreas ed a def

endant' s sentence above the presumptive sentence based on facts not reflected in the jury ’s verdi ct or adm itted by the defe ndant. See Bl ak el y, 124 S. Ct. at 2537 . Howe ver, o ur sup reme co urt re centl y held tha t Tenn essee's sentencingscheme constitutes a non-mandat ory sche me which d oes not vio late the S ixth Amendment

right to a jury

trial as interpreted

by Blakely

. State v. Gomez , 163 S.W.3d 632, 658-62 (Tenn. 2 005). Acc ordingly, the de fendant's reliance upon Blakely is misplaced, and he is not entitled to relief on this issue.

The defendant also argues that the trial court

erred in imposing consecutive sentencing . The defendant argues that the trial

court did not find that

his sente nces re asonably

related to the sev erity of the offenses or that the lengthy incarceration was necessar y to protect the public from furthe r serious criminal conduct. The defendant contends that by v irtue of h is life se ntence a lone, he w

ill be in his eighties before reaching parole eligibility.

As a general

rule, a t rial cou rt may exercise its discre tion and imp ose consecutive sentencing after considering one or

more of the statutory c

riteria set forth in Tennessee Code Annotated section 40-35-115. Because these criter ia are stated in the alternative, the trial court nee d only find one of the criteri a prese

nt to suppor

t a deter mination of

consecu tive sente ncing. Howeve

r, if the trial court imposes consecutive sentencing based s o lely upon a finding that the defendant is a dangerous offender pursuant to Tennessee Code Annotated section 40-35-115(b)( 4), the cour t must also determine whether the sentences imposed are re asonably re lated to the severity of the offenses and necessary to protect the public from further criminal activity by t he defe ndant. State v. Wilkerson , 905 S.W.2d 93 3, 939 (Te nn. 1995) ; see also Imfe ld , 70 S.W.3d at 708.

The trial court imposed consecutive sentences based on Tennessee Code Annotated section 40-35-115(b)(4), the defendant is a dangerous offe nder whose behavior indicates little or no regard for human life, and no hesitation about committing a crime i n which th e risk tohuman life is high. In finding the defe

ndant to be a dangerous offende r, the trial court stated:

There were tw o people w ho were kill edand two people left for dead. . . . [T]he vic tim, Ms. Ha ll, was killed basically either be gging for life or be cause she was singingor beca use sh e was pr aying, one or the other. She was just shot in the head mainly because of that. . . . [T]his is a horrible crime. People in their homes, asleep, whatever reason, and to have this sort of home inva sion and then people killed or left for dea d under the circu

mstance s.-12-

Uponreview of the record, we dete rm ine that the trial court considered the sentencing principles and all relevant facts and circumstances attendant to finding that the defendant qualified
as a dangerous offender. While the Wilkerson factors were no t expressly stated by the trial court, the violence of

these offenses support a finding that the consec utive sentences imposed r easonab ly relate to these serious crimes and are ne cessary to protect

the public fr

om furthe r crimina l activity by t he defe ndant. See ge

nerally Tenn. Code Ann. § 40-35-102. Accordingly, the defendant is not entitled to relief on this issue.

III. Conclusion

Based u pon our re

view of the recor

d, we af firm the j udgmen

ts of the tr

ial cour t.

___________________________________ J.C. McLIN, JUDGE