### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
STATE OF TENNESSEE v. DAM ION CARRICK
Direct Appeal from the Criminal Court for Shelby County No. 98-09360 W. Fred Axley, Trial Judge

No. w1998-00655-CCA-R3-CD - Decided May 16, 2000

The defendant appeals his jury convictions of two counts of Especially Aggravated Robbery and his twenty-five year

sentences. Theevidence is sufficient to support a conviction, the photographic line up not und uly suggestive, and the length of sentence appropriate. However, the testimony concerning the defendant “ being develo

ped as a suspect” was improperly admitted, but the error har m less. Further, plain error requires merging the two convictions of Especially Aggravated Robbery into one conviction and modification of the defendant’s sentence but not its length.

Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Criminal Court Affirmed as Modified

W ILLIAM S , J. delivered the opinion of the court, in which T IPTONand W ITT , JJ. joined. Brett B. Stein, Memphis, Tennessee, for the appellant, Damion Carrick.

Paul G. Summers, Attorne y General & Repor

ter, Patricia C.

Kussman, Assistant

Attorney Genera

l, WilliamL. Gibbons, Distric t Attorney Gener

al, and Rosemary Su

e Andrews, Assistant District Attorney, for the appellee, State of Tennessee.

OPINION
The defendant,

Damion Carrick, a

ppeals from his co

nvictions by a

Shelby County

jury of two counts of Especia

lly Aggravated

Robbery, class A felonies. See Tenn. Code Ann. § 39-13-403. The defendant

was sentenced, a

s a Range I offender, to the Department of Correction for twe nty-five yearson each count, the

se sentences to

run concurrently. On this appeal, the defendant challenges his convictions and

sentences on the

following grou

nds: (1) The trial court erre

d in denyin

g the def

endant’s motion to suppress the photographic

identification of

the defendant on

the basis o f undu e suggestivene

ss; (2) The trial court erred in admitting certain testimony; and (3) The trial court erred in imposing an excessive sentence. After careful review of the briefs, the record and the applicable law, we f ind plain error in the judgment from the trial court. We find that the evidence does not support two separate counts of especially aggravated

robbery; a

ccordingly

, we merge the t

wo counts into one c

ount of esp eciall y-2-

aggravated

robbery and modify the

sentence imposed. In all other respects, we affirm the judgment from the trial cou

rt.

BACKGROUND

On the morning of Ap

ril 22, 1997, the vic

tim, a ninety-one

year old wo

man, came back in

to her house after planting flowers in her backyard. The victim lived alone. Moments later, when the victim saw unexplained movement in her living room, she exclai med, “Oh my Lord! I know
someone is in there.” The defendant, hiding inside, ran over to the victim, took a pillow off the sofa andforced it over her

face and mouth. As the victim struggled, the defendant choked the victim by putting bothof his hands around her neck. She pulled at his hands to free herself. The defendant pushed back with such force that the defendant broke two of the victim’s fingers. The defendant, then pulle d a shinymetal object out of his back pocket a

nd hit her in the che

st four to five time

s, knocking her

to the floor. Bef

ore leaving the

house, the defen

dant then stole

money from the victim’s pur se an d an umb rel la f rom her c los et; it w as a r ain y day.

Soon afterw ards, the police arrived on the scene. The victim provided a statement to the police which related her description of the assailant: A young, slender black man approximately five feet nine inches tall, weighing approximately 160 pounds, wearing a striped shirt and a baseball hat.

Six months later, the defendant was picked out of a photo array by the victim. He was then indicted for two cou nts of es peci all y aggr avat ed ro bbe ry: one alleging the attack with the pillow and the other alleging the attack with the “shiny metal object.” At a jury trial in Shelby County, the defendant was c

onvicted of both c

ounts; from these c

onvictions, he now a

ppeals.

ANALYSIS
In-Court Identification and Photo Array

Before trial, the defense counsel filed a motion seeking the suppression of the victim’s incourt identification of the defendant. He argued that the victim’s identification was tainted in that it was based uponan earlier unduly suggestive photo array . The trial court, however, found that the photo array was “in no

way suggestive” and denied the defe ndant’s motion to suppress. Appealing this ruling, the defendant has th e burden of showin

g that the eviden

ce prepondera

tes against

the trial court’s ruling. See State v. Tate , 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981).

The defendant’s principal contention is that in the photo array only he is pictured we aring
a striped shirt. He argues that this peculiarity is significant and unduly suggestive becaus e th e victim, on the scene, identified her assailant as wearing a striped shirt. To the co ntr ary, the state argues that this peculiarity does not taint the identification. We agree with the state.

This Court recognizes that a due process violation may occur in a suggestive identification procedureeven in the earliest stages of a criminal investigation. In deciding whether a violation has-3-

occurred, the court must view the “totality of the circumstances.” See Stovall v. Denno , 388 U.S. 293, 302 (1967); State v. Beal , 614 S.W.2d 77, 82 (Te nn. Crim. App. 1981) . A photographic identification is admissible unless, based on the totality of the circ umstances, the confrontation conducted

was so unnecessarily suggestive and conducive to mistaken identif ication that the accused
was deni ed due pro cess. In Neil v. Biggers , 409 U.S. 188, 199 (1972), the court set forth a fivefactor analysis for determining whether an identification tainted by suggestion

may nonetheless be admitted into evidence: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention at the time of the crime; (3) the accura

cy of the wi

tness’s prior des

cription of the cr

iminal; (4) the level of certainty demonstrated by the witness at the confrontation; (5) the length of time between the crime and confrontation. See also State v. Philpott

, 882 S.W. 2d 394, 400 (Tenn. Crim. App. 1994).

The photo array shown to the victim included six picturesof relatively similar individuals;
acco rdi ngly, there is no argument that any “gross dissimilarity ” in appe aran ce t ain ted the pho to a rray. See United States v. Wad e , 388 U.S. 218, 233 (1967). However, the defendant is the only one pictured in the array

wearing a strip

ed shirt; again,

the same typ

e of shirt the victi

m testified to seeing.

A jur y-ou t he ari ng wa s he ld o n th e adm iss ibi lit y of t he v ict im’ s id ent ifi cat ion tes tim ony. At the conclusion of the hearing, the trial court held that the testimony was admissible. In support of this conclusion, the trial court stated: Anyway , the photo spread

that the victim

in this case identified the defendant from andis Exhibit Number 22 is not suggestive. Much has been made a bout a stripe d shirtand I think tha

t’s a valid argument. However, the photograph in Exhibit 22 was made at another time, either before or after this victim’s having seen him, and then we find that the striped shirt is not the one that he wore in the house. He may have
a thing about wearing striped shirts. I don’t know. But I can say into the record that police should not be forced or allowed to change the suspect’s appearance either in the defendant’s

favor or in the fa

vor of the victim.
Supporting the trial court’s conclusion, the court heard the testimony of Officer Blum, who explained the procedureand established there was no coaching during the photo identification, and the testimony of t

he victim, who rec

ounted her reco

llection of the ass

ailant’ s appe arance and her certainty in the identificat

ion of the defend

ant. Reviewing the trial court’s findings that the

photo array

was not sugges

tive and its concl usion that the testimony

is admissible, we no

te the following f

acts:1 The victim’s gla sses were knocke

d off during the

assault.

2 We do note that the identification occurred six months after the robbery, but we do not find this length of time dispositive.

-4- (1) The victim’s testimo

ny establish

ed that she could se

e without her gla

sses; 1 (2) Her tes tim ony e sta bli she d th at s he h ad t he o ppo rtu nit y to observe the defendant for some time; (3) Her testimony established that she has never wavered in the identification; (4) Officer

Blum’s testimony established that she showed no hesitation at the photo array; (5) She testified that she is certain in her identification of the defendant; and (6) Her description, while not overly detailed, corresponds accurately to the relevant characteristic

s of the defenda

nt.
Therefore, in accordance with the Biggersfactors, 2 we conclude that the photo array was not unduly suggestive, a

nd that the testimony

was admissible. While

peculiarities ma

y render a photo array violative of

due process, in this case, the peculiarity, the striped shirt, in no way orchestrated by the police, was not unduly sugg estive. Accordingly, we find no merit in this issue.

Motion in Limine to

Prohibit Certa

in Testimony

The defendant next contends that it was error for

the trial court to

deny his motion seeking the exclusion of testimony to the effect that the de fendant was “developed as a suspect.” This testimony, the

defendant

contends, is both irrelevant and inadmissible hearsay. This Court agrees that the testimony is irrelevant and was improperly admitted. The refore, we find error.

First this Court looks to Tenn. R. Evid. 401 and 403. Tenn. R. Evid. 401 define s relev ant evidence as: “Relevant evidence” means evidence having any te ndency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. But, for determi

ning admissibility

, Tenn. R. Evid. 403 c

ontinues: Although releva

nt, evidence may

be excluded if

its probative valu

e is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue dela y, waste of

time, or needless presentation of cumulative evidence.

In accord with these rules, w

e must review the t

rial court’s dec

ision to admit

the testimony at issue here. We review for an abu se o f di scr eti on. But fir st, we s et f ort h th e rel evan t te sti mon y: Prosecutor: And, Officer Blum, Sergean t Blum, when was the first time you-5-

developed Damion – Defense Counsel: Your Honor, can we approach the bench? The Court: Yes, come on up.
(A bench conference was held as follows.)

Defense Counsel: Even though your Honor’s ruled on it, I just want to be sure, because the Cou rt o f Ap peal s sa ys you have to make your objection in addition. So, again, I just renew m

y motion about the terminology, “developed a suspect” from t

his officer testifying and I just basica lly it’s renewal of the motion that I filed – The Court: Right. The s ame ruling. Defense Counsel: Very well, Your Honor. The Cou rt: Oka y. (Said bench conference was concluded.)

Prosecutor: Okay, Sergeant Blum, when or if, when did y ou first – whe n wer e you first able to deve

lop Damion Carric

k as a suspect? Officer Blum: In reference to [the victim’s] case it was the end of October

. Prosecutor: Okay. And once you developed him as a suspect, Sergeant Blum, how did you proceed? Officer Blum: I took his photograph and included it in a what we call a photo spread, which is a form with a total of six pictures. His was included wi th five o ther individuals. And I met with [the victim] and showed her that photo spread.

We believe whatever probative value is present, it is outweighed by the danger of prejudicial inferences.The question and answer invite the jury to infer that there were other cas

es in which this defendant was a suspect or t

hat the officer

had other eviden

ce, not admitted a

t trial, upon which t

o suspect the defendant. Either inference is impermissible and potentially prejudicial. There fore, we find that the tria

l court ab used its discretion and should have excluded the evidence under either Tenn. R. Evid. 401 or 403.

This finding, however, only begins our analy sis. Now, we must determine whether this error warrants a new trial or whether it is harmless. This Court will not set aside the jury verdict below unless, “considering th

e whole record,

error involving

a substantial rig

ht mo r e probably than not affected the judgment.” Tenn. R. App. P. 36(b).

Two factors, discernable upon an analysis of the

instant t estimony and i ts admiss ion, weigh in favor of finding the error harmless. First, a plain reading of the statement reveals that its actual language is rather uninteresting and facially innocuous. I t is, after all, axiomatic that the defendant, Carrick, was at one time in the police investigation “developed as a suspect.” Every criminal defendant was, at one time, before his trial “developed as a suspect.” Second, the prosecution made-6-

no real use of this

testimony, and therefore, rather than a dominant or even reoccurring prosecution theme, the testimony

, as outl ined above, wa s before the atte ntion of the jury

for only a br

ief time during Office

r Blum’s testimony

and a passing me

ntion at closing a

rgument.

Con vers ely, two factors weig h against such a

determi n ation. First, the testimony was not “blurtedout by the prosecution witness,” but rather, it was deliberately elicited. Second and more imp ort ant ly, all the evidence against Carric

k, while sufficient to support his conviction, was entirely composedof the testimony andidentification by

the victim. No other

real proof linkin

g Carrick to the crime was adduced.
Weighing these concerns, we cannot conclude that the error more probably than not affected the verdict. See Tenn. R. App. P. 36(b). The victim’s testimony was powerful and very credible. She was testedby defense counsel, yet she remained firm and very confident of her testimony and identification. Had she wavered and this Court thought that the prejudicial implication that Carrick
was a suspect in other

cases play

ed a role in

the verdict, our d

ecision would be ma

rkedly different.
Sentencing

The d efendant raises several issues regarding sentencing; howe ver, as we merge the defendant’s two convictions, we firs t modify his sentence. That is, the defendant received two concurrent

twenty-five year se

ntences; we now modify his sentence to one twenty -five year sen

tence

. Now, the defendant contends that this twenty-five y ea r se ntence, the maximum within the applicable range, is excessive. He argues that the trial court erred

in its finding and application of certain enhancement

factors as well a

s its consideration of certain mitigating factors. The trial court found the following enhancement factors as provided for in Tennessee Code Annotated section 40- 35-114: (1) the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (4) the particular v

ulnerability

of the victim; (5) the defendant tr

eated or allowe

d a victim to be trea

te d with exceptional crue lty during the commis sion of the offens e; (8) the defendant has a

previous history

of unwillingness to comply with the conditions of a sen

tence involving

release in the c

ommunity; (10) the defendant had no hesitation about committing a crime when the risk to human life was high; and (12) the defendant willfully inflicted bodily injury upon another person. The court found no

mitigating fac

tors. Considering and weighing t hese factors, th

e tr ia l court ordered the maximum within the applicable

range, twenty

-five yea rs. In this app

roach and resul

t, the defendant c

la i ms error; specifically

, he claims that:3 For class A felonies like the instant one, the trial court begins at the midpoint. See Tenn.

Code Ann. § 40-35-210(c). -7- (1) the court imprope

rly enhanc

ed due to “partic

ular vulnerabilit

y;” (2) the court imprope

rly enhanc

ed due to “crimina

l history;” (3) the court failed to consider the defendant’s potential for rehabilitation; and (4) the court failed to properly weigh the mitigating factor of age.

This Court’s review of thesentence imposed by the trial court is de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d). This presumption is condi tioned upon an affirmative showing in the record that the t r ial judge conside

red the sentenci

ng principles an

d all relevant facts and circumstances. See State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directives, there is no presumption of co rrectness and our review is de novo. See State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997).

The burden is upon the a ppealing party

to show that th

e sent ence is improper. See Tenn. Code Ann. § 40-35-401(d) sentenc ing c omm’n comments. In conducting our review, we are required, pursuant to Ten nessee Co de Annotated section 40-35-210, to consider the following factors in s entencing: (1) [t]he evi dence, if any, re ceived at th e trial and t he sentenci ng hearing; (2) [t]he presentence

report; (3) [t]he principles of s

entencing and a

rguments as to se

ntencing alter

natives; (4) [t]he nature and characteristics of the criminal conduct involved; (5) [e]vid ence and information offered by the parties on the enhancement and mitigating factors in 40-35-113 and 40-35-114; and (6) [a]nystatement the def endant wishes to ma

ke in th e defe ndant’s own beha lf about sent encing.

If no mitigating or enhancement factors are present, Tennessee

Code Annotated section 40- 35-210 provides that the presumptive sentence shall be theminimum sentence w ithin the applicab

le range. 3 See State v. Lavender , 967 S.W.2d 803, 806 (Tenn. 199 8); State v. Fletcher , 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court

should start at the presumptive sentence, enhance the sentence within the range and then reduce the sentence within the range for the mitigating factors. See Tenn. Code Ann. § 40-35-210(e). No particular weight for eachfactor is prescribed by statute, as the weight given to each factor

is left to the discretion of the trial court as long as the trial court complies with the purposes and principles of the sentencing act andits findings are supported by the record. See State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986); Statev. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim. App. 1 997); State v. S antiago , 914 S.W.2d 116, 125 (Tenn. Crim. App. 1 995); see also Tenn. Code Ann. § 40-35-210 sentencing comm’n comments. Nevertheless,

should there be no mitigating factor, but enhancement factors are present, a trial court may set the sentence above the minimum within the range. See Tenn. Code Ann. § 40-35-210(d); Lavender , 967 S.W.2d at 806; Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).-8-

If o ur review refle

cts that the trial c

ourt followed the s

tatutory se

ntencing proce

dure, imp ose d
a lawful sentence after giving due consideration and proper weig ht to the factors and principles set outunder sentencing law, an d the trial co urt’s findings of fact are adequately supported by the record, then we may not modify the sentence e ven if we would have preferred a different resu

lt. See Fletcher , 805 S.W.2d at 789.
Having reviewed the record, this Court is of the opinion that the sentence is entitled to the presumption of correctness. Turning to the de fendant’s arg

uments, we find, f

irst, that the trial court properly e nhanc ed the sentence

due to the “partic

ular vulnerabilit

y” of the vic

tim. The record is clear that the elderly

victim’s phys

ical frailti

es and weakened condition were a factor in the commission of the offense. See State v. Poole , 945 S.W.2d 93, 96 (Te nn. 1997); Statev. Adams , 864 S.W.2d 31, 35 (Tenn. 1993). Her small frame, advanced osteoporosis and r

elative weakne

ss did notkeep her from fighting back; however, in the attack, t he defendant overcame her o n their account. In the end, while the defend ant robbed her, f

or a material time

she was phys

ically unable to get up after

having been knocked to the floor. Compare State v. Hayes , 899 S.W.2d 175 (Tenn. Crim. App. 1995).
Second, we address

the defendant’s argument that the “criminal history” enhanc ement factor
was improperly applied. See Tenn. Code Ann. § 40-35-114(1). The defendant does have a criminal his tor y, a prior convictio n for marijuana p

ossession and a non

-judicial ma

tter in vol vin g tru ancy. Sentenced

as a Range I offende

r, th ese offenses establish a criminal history in excess of that necessary to establish the appro priate range. Therefore, this argument is in error. Further, the defendant cites no legal authority in support of his argument to the contra ry.
As regards the defendant’s third argument that the trial court failed to properly consider the defendant’s potential for rehabilitation, we find that the trial court did note that

the defendant had previously

had his probation revoked; furthe r, as the defend

ant’s conviction i

s for a Cl ass A fel ony, he is not entitled to any alternative sentencing presumption. SeeTenn. Code Ann. § 40-35-102(6); Statev. Smith , 891 S.W.2d 922 (Tenn. Crim. App. 1994). Further, the defendant’s reliance on State
v. Adams , 864 S.W.2d 31 (Tenn. 1993), and State v. Melvin , 913 S.W.2d 195 (Tenn. Crim. App. 1995), is misplaced. Therefore, there is no merit in this argument.

Defendant’s final argument that the trial court failed to find his age a mitigating fac

tor is also in error. That is, w

hile age can su

pport mitigatio

n, age or youth is not a per se mitigation factor. Tennessee Cod e An not ate d se cti on 4 0-3 5-1 13( 6) p lai nly states as a mitigating factor: “The defendant,

because of y

outh or old

age, lacked

substantial judgment in committing the offense.” As the defendant po

ints to nothing in the

record to support any such finding of “youth” in connection withany lack of

“substantial judg

ment, ” there is no proper basis for questioning the trial court’s failure to apply this mitigating factor.
Therefore, this Court finds no re aso n t o disturb the trial court’s twenty-five yea r sentence.4 We note that the fact that the two sentences imposed w ere concurrent does not save the counts from impermissible multiplicity. S ee Sta te v. Barnes , 874 S.W.2d 73 (Tenn. Crim. App. -9- Against no mitigating factors are balanced several enhancing factors. Weig hing particularly strong in the judgment of this Court, and certainly the trial court’s judgment as well, is the afore mentioned enhancement

based on the “par

ticular vulnera

bility” of thi

s victim . Over ninet y years old, ailing from osteoporosis, this vict im was phy sically attacked in her own home; first with a pillow, the defendant tried to smother he

r as she fought,

and next with

a metal object he beat her to the ground where she was in pain and hapless. And then, he robbed her. We do not disturb the sentence of the trial court.

Plain Error

This Court generally reviews only issues presented. See

Tenn. R. App. P. 13(b). However, under limited circumstances this Court may consider an issue not formally presented. See id. ; see also Tenn. R. Crim. P. 52(b). Under th e applicable sta

ndard, the erro

r must constitute

“plain error,” affecting a “substantial right” of the accused. State v. Adkisson , 899 S.W.2d 626, 639 (T enn. Crim. App. 1994). The determinative factors as regards “plain error” ar e: (4) the record must c

learly esta

blish what occurr

ed in the trial cou

rt; (5) a clear and unequivocal rule of law must have been breached; (6) a substantial right of the accused must have been affected; (7) the accused did not waive the issue for tactical reasons; and (8) consideration of the error is “necessary to do substantial justice.” Id. at 641-642.

After careful analy

sis of the offense

s involved, the stat

utory defin

itions o f th e crimes, the legislative intent and the particular facts and circumstances of the instant crimes, we conclude that the evidence does not support two separate counts of especially aggr avated robbery. We find that the two offenses pla

inly arise o

ut of a single

criminal episode, plainly require the same evidentiary proof, andplainly over

lap factually. See State v. Alvarado , 961 S.W.2d 136 (Tenn. Crim. App. 1996); Sta te v . Pe layo , 881 S.W.2d 7, 10 (Tenn . Crim. App. 1994); see also State v. Black , 524 S.W.2d 913 (Tenn. 1975). The two counts allege the same offense, and proving the elements of the first count inherently

and necessarily

establish the elem

ents of the second. In essence, the state has proven only one offense, one especially aggravated robbery: the def endant entered the house of the victim and attacked

the victim with the intent to rob. While, indeed, during the att ack a nd r obb ery, the defendant used b

oth a pillow as a

deadly weapon and a “shiny metal object” as a deadly weapon, this fact does not establish the basis for finding two separate especially a ggravated robberies. As such, two separate

convictions are improper. See State v. Goins , 705 S.W.2d 648, 650 (Tenn. 1986). Accordingly, this Court merges the two separate convic tions into one conviction. 41993). -10- CONCLUSION

Acco rdi ngly, we find that the evidence does no t support convictio

n on two separate

counts of especially

aggravated

robbery; w

e merge the two

counts into one count of

especially aggravated robbery and modify the defendant’s sentence to one twenty -five year sentence instead of two concurrent sen

tences. In a

ll other respects , we affirm the ju dgment from the t

rial court.