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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 19, 2016 Session

STATE OF TENNESSEE v. WILLIE LEE HUGHES, JR.

Appeal from the Circuit Court for Williamson County

No. I-CR105947 Michael Binkley, Judge

No. I-CR126935 Joseph Woodruff, Judge

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No. M2015-01688-CCA-R3-CD

No. M2015-01207-CCA-R3-CD – Filed November 29, 2016

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The defendant, Willie Lee Hughes, Jr., appeals both his Williamson County Circuit Court

jury conviction of aggravated robbery and his guilty-pleaded conviction of failure to 

appear, claiming that the trial court erred by failing to exclude his statements to law 

enforcement officers on the basis that the statements were made during the course of plea 

negotiations and that the trial court erred by classifying him as a persistent offender. 

Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

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

THOMAS, JR., J., joined. TIMOTHY L. EASTER,J., not participating.

Matthew J. Crigger, Brentwood, Tennessee, for the appellant, Willie Lee Hughes, Jr.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Assistant 

Attorney General; Kim R. Helper, District Attorney General; and Mary Katharine White, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

In October 2011, the Williamson County Grand Jury charged the defendant 

with one count of aggravated robbery in case number I-CR105947. The defendant‟s case 

was scheduled for trial on October 10, 2012, but the defendant failed to appear. The 

defendant was later charged with failure to appear in case number I-CR126935, and he 

pleaded guilty to that charge with the sentence to be determined by the trial court at a 

hearing.
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The defendant‟s aggravated robbery case proceeded to trial in May 2014. 

The State‟s proof at trial established that, at approximately 6:00 a.m. on August 18, 2011, 

Maria Jaimes was drinking coffee outside her place of employment, Brentwood Magic 

Cleaners, when a black male accosted her with a large knife. The assailant placed the 

knife against Ms. Jaimes‟s stomach and demanded that she “give [him] everything” 

before taking her iPod, cellular telephone, and handbag. The assailant then ran to a lightcolored Chevrolet Blazer parked in front of a nearby hotel and fled the scene; a white 

shirt concealed the vehicle‟s license plate. Ms. Jaimes reported the robbery to her 

manager, who in turn called the police. 

Brentwood Police Department (“BPD”) Officer Stanley Boyd responded to 

the scene and spoke with Ms. Jaimes, who provided a description of the assailant and his 

vehicle. Upon learning that the assailant had stolen Ms. Jaimes‟s cellular telephone, 

Officer Boyd requested that the cellular carrier “ping” the telephone‟s location. The 

“ping” returned a location in north Nashville, and Officer Boyd advised officers with the 

Metropolitan Nashville Police Department (“Metro”), who responded to the location. 

Metro Officers Kevin Cooley and Andrew Johnson arrived at the location 

at approximately 7:30 a.m., and about 30 minutes later, they observed a grey Blazer pull 

into the driveway of 1806 Elizabeth Road. The officers approached the driver of the 

vehicle, who identified herself as Lynne Edmonds. While the officers were speaking 

with Ms. Edmonds, the defendant walked out of the house and identified himself to the 

officers. The defendant admitted to Officer Cooley that he had been driving the Blazer 

earlier that morning. Ms. Edmonds gave officers consent to search the Blazer, and 

Officer Johnson discovered a large folding knife in the rear of the vehicle. At that point, 

Metro officers contacted BPD detectives and informed them that “we may have got your 

guy.”

Shortly thereafter, BPD Detective James Colvin arrived at the scene and 

spoke with the defendant. After Detective Colvin provided the defendant with his 

Miranda warnings, the defendant stated that he had been at the Elizabeth Road residence 

“[a]ll morning” and adamantly denied any involvement in the robbery. Eventually, the 

defendant admitted that someone named “K.C.” was driving the Blazer that morning, that 

K.C. had parked in front of the hotel, and that K.C. returned to the Blazer holding a 

woman‟s handbag. The defendant insisted that he had never gotten out of the Blazer. 

Detective Colvin attempted to locate K.C. without any success, and in his 

subsequent interview with Ms. Jaimes, she stated that the defendant was the only person 

she saw in the Blazer. 

On August 22, 2011, the defendant requested to speak with Detective 

Colvin at the Brentwood Police Department. Detective Colvin again administered 
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Miranda warnings to the defendant, and the defendant signed a waiver of his rights.

Initially, the defendant maintained that the robbery had been K.C.‟s idea and that he had 

remained in the Blazer while K.C. committed the robbery. Upon further questioning by 

Detective Colvin, the defendant eventually admitted, “It was me, me by myself.” The 

defendant confessed that Ms. Jaimes‟s cellular telephone and iPod were at the Elizabeth 

Road residence. Although he was unable to find Ms. Jaimes‟s handbag, which the 

defendant stated he had thrown out of the Blazer following the robbery, Detective Colvin 

recovered the telephone and iPod from the Elizabeth Road residence and returned the 

items to Ms. Jaimes. 

With this evidence, the State rested. Following a Momon colloquy, the 

defendant elected not to testify and chose not to present any proof. Based on the 

evidence presented, the jury convicted the defendant as charged of aggravated robbery.

Following a sentencing hearing, the trial court sentenced the defendant as a 

Range III, persistent offender to a term of 25 years‟ incarceration. A few months later, 

the trial court conducted a sentencing hearing on the defendant‟s failure to appear 

conviction. The court again sentenced the defendant as a Range III, persistent offender 

and imposed a sentence of four years‟ incarceration, to be served consecutively to the 

defendant‟s 25-year sentence.

Following the denial of the defendant‟s motion for new trial in the 

aggravated robbery case, the defendant filed a timely notice of appeal in both cases, 

which appeals were consolidated by this court. In this appeal, the defendant argues that 

the trial court erred by failing to exclude from his aggravated robbery trial his statements 

to Detective Colvin because they were made during the course of plea negotiations and 

that the sentences imposed in both cases were excessive. 

I. Defendant’s Statements

The defendant first contends that the trial court erred by failing to exclude 

from evidence during his aggravated robbery trial the statements he made to Detective 

Colvin, claiming that both statements were made during the course of plea negotiations

and were therefore inadmissible under Tennessee Rule of Evidence 410. We disagree.

Tennessee Rule of Evidence 410 provides, in pertinent part, as follows:

Except as otherwise provided in this rule, evidence of the 

following is not, in any civil or criminal proceeding, 

admissible against the party who made the plea or was a 

participant in the plea discussions:
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. . . .

(4) any statement made in the course of plea discussions with 

an attorney for the prosecuting authority which do not result 

in a plea of guilty or which result in a plea of guilty later 

withdrawn. . . .

Tenn. R. Evid. 410(4). 

The seminal case in Tennessee regarding the exclusion of statements made 

during the course of plea negotiations is State v. Hinton, 42 S.W.3d 113 (Tenn. Crim. 

App. 2000), in which this court employed a two-prong test for determining whether a 

statement should be excluded under Rule 410. Id. at 121-123. First, the court must 

“consider the totality of the circumstances and determine whether the defendant exhibited 

an actual subjective expectation to negotiate a plea at the time of the discussion and 

whether the expectation was reasonable.” Id. at 122 (citing United States v. Robertson, 

582 F.2d 1356, 1366 (5th Cir. 1978)). Second, the court must decide “whether the 

statement was made in the course of plea discussions „with an attorney for the 

prosecuting authority,‟” which includes a law enforcement officer acting “under the 

express authorization of the prosecuting attorney.” Hinton, 42 S.W.3d at 122-23 (quoting 

Tenn. R. Evid. 410(4)). The state of the law is quite clear, however, that the protections 

of Rule 410 “do not encompass statements made during the preliminary investigation 

process.” Hinton, 42 S.W.3d at 121 (citing State v. James Wayne Butler, No. 01C01-

9301-CR-00023, slip op. at 6-7 (Tenn. Crim. App., Nashville, Sept. 9, 1993) (holding that 

statements made by defendant prior to being charged did not fall under the ambit of Rule 

410)); see also Neil P. Cohen, et al., Tennessee Law of Evidence § 4.10[6][c] (6th ed. 

2011) (“To be excluded, the statements or conduct must have been given as part of plea 

negotiations rather than during the preliminary investigatory process. For example, if a 

prosecutor participates in a custodial interrogation at a police station and the accused 

confesses during the questioning, Rule 410 would probably not bar the confession.”); 

State v. Calvin Person, No. W2011-02682-CCA-R3-CD, slip op. at 19 (Tenn. Crim. 

App., Jackson, Oct. 31, 2013) (holding that Rule 410 did not apply to defendant‟s 

statement to law enforcement officer when it was given prior to indictment), perm. app. 

denied (Tenn. Mar. 5, 2014); State v. Charles Vantilburg, III, No. W2006-02475-CCAR3-CD, slip op. at 7-8 (Tenn. Crim. App., Jackson, Feb. 12, 2008) (holding that 

defendant who entered into memorandum of understanding with law enforcement officers 

prior to his being charged with any crime did not afford him the protections offered by 

Rule 410), perm. app. denied (Tenn. Aug. 25, 2008).

In the instant case, the defendant‟s initial statements to Detective Colvin 

were made during the preliminary investigation, only hours after the commission of the 

armed robbery. Throughout that interview, the defendant maintained his innocence. 
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Although Detective Colvin made several statements about his ability to speak with the 

district attorney and make recommendations to assist the defendant, Detective Colvin 

also made it very clear that he was not making any guarantees or promises to the 

defendant. In the defendant‟s second interview with Detective Colvin, during which he 

eventually confessed to the robbery, the detective never mentioned the district attorney‟s 

office and instead informed the defendant that he had sufficient evidence to convict him. 

Significantly, the defendant was not charged with aggravated robbery until October 2011, 

nearly two months after his interviews with Detective Colvin. Without question, the 

defendant‟s statements to the detective were made during the initial investigatory process, 

well before charges were filed, and Rule 410 is simply inapplicable. 

The defendant urges this court to extend the holding in Hinton to include 

apparent authority. In support of his position, he relies upon United States v. Swidan, 

689 F.Supp. 726 (E.D. Mich. 1988), for the proposition that the inquiry under Rule 410 

should be whether the officer made statements that could have led the defendant

reasonably to believe that the officer had authority to enter plea negotiations. Id. at 728. 

Because we believe the analysis in Hinton to be a correct and complete statement of 

Tennessee law, we decline the defendant‟s invitation to extend it based upon Swidan, 

which was decided before Hinton.

II. Sentencing

The defendant also contends that the trial court erred by classifying him as 

a Range III, persistent offender for sentencing purposes for both his aggravated robbery 

conviction and his conviction for failure to appear. Again, we disagree. 

Our supreme court has adopted an abuse of discretion standard of review 

for sentencing and has prescribed “a presumption of reasonableness to within-range 

sentencing decisions that reflect a proper application of the purposes and principles of our 

Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012) (stating that “although 

the statutory language continues to describe appellate review as de novo with a 

presumption of correctness,” the 2005 revisions to the Sentencing Act “effectively 

abrogated the de novo standard of appellate review”). The application of the purposes 

and principles of sentencing involves a consideration of “[t]he potential or lack of 

potential for the rehabilitation or treatment of the defendant . . . in determining the 

sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). The 

supreme court cautioned that, despite the wide discretion afforded the trial court under 

the revised Sentencing Act, trial courts are “still required under the 2005 amendments to 

„place on the record, either orally or in writing, what enhancement or mitigating factors 

were considered, if any, as well as the reasons for the sentence, in order to ensure fair and 

consistent sentencing.‟” Bise, 380 S.W.3d at 706 n.41 (quoting T.C.A. § 40-35-210(e)). 

Under the holding in Bise, “[a] sentence should be upheld so long as it is within the 
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appropriate range and the record demonstrates that the sentence is otherwise in 

compliance with the purposes and principles listed by statute.” Id. at 709.

In the instant case, the jury convicted the defendant of aggravated robbery, 

a Class B felony. The presentence investigation report established that the defendant had 

five prior Class C felony convictions, including two convictions for facilitation of 

aggravated robbery, and four prior misdemeanor convictions. Tennessee Code Annotated 

section 40-35-107 provides that a persistent offender includes a defendant “who has 

received . . . [a]ny combination of five (5) or more prior felony convictions within the 

conviction class or higher or within the next two (2) lower felony classes, where 

applicable.” T.C.A. § 40-35-107(a)(1). In determining prior convictions, “convictions 

for multiple felonies committed within the same twenty-four-hour period constitute one 

(1) conviction” unless those convictions include the statutory elements of “serious bodily 

injury, bodily injury, threatened serious bodily injury or threatened bodily injury to the 

victim or victims.” T.C.A. § 40-35-107(b)(4).

The defendant does not dispute that he has five prior Class C felony 

convictions; rather, he argues that his two prior convictions of facilitation of aggravated 

robbery, both of which occurred on October 5, 2005, did not include the elements of 

actual or threatened bodily injury or serious bodily injury and, thus, should count as a 

single conviction pursuant to the 24-hour merger rule.

This court has previously held that robbery, and by extension aggravated 

robbery, see T.C.A. § 39-13-402(a)(1)-(2) (“Aggravated robbery is robbery as defined in 

§ 39-13-401 . . . [a]ccomplished with a deadly weapon or by display of any article used or 

fashioned to lead the victim to reasonably believe it to be a deadly weapon” or “[w]here 

the victim suffers serious bodily injury”), contains an element that the defendant cause or 

threaten to cause bodily injury. See State v. Jamie Lynn Middlebrook, No. M2009-

02276-CCA-R3-CD, slip op. at 8 (Tenn. Crim. App., Nashville, Jan. 11, 2011) 

(concluding “that the statutory elements of robbery include a threat of bodily injury when 

the State is required to prove that the defendant committed the act through violence or by 

putting the person in fear”), perm. app. denied (Tenn. May 26, 2011); see also, e.g., State 

v. Iwanda Anita Buchanan, No. M2007-02870-CCA-R3-CD, slip op. at 7 (Tenn. Crim. 

App., Nashville, Oct. 6, 2008) (“Both robbery and aggravated assault contain elements 

that the defendant cause or threaten to cause bodily injury.”); State v. Robert Lee Bailey, 

Jr., No. 01C01-9507-CR-00220 (Tenn. Crim. App., Nashville, May 9, 1996) (concluding 

that convictions of attempted aggravated robbery “threatened bodily injury to the 

victims” for purposes of the 24-hour merger rule).

That the facilitation statute itself does not contain an element of actual or 

threatened bodily injury or serious bodily injury matters not because the State “must 

prove the commission of a specified felony” in order to establish the facilitation of a 
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felony. State v. Parker, 932 S.W.2d 945, 951 (Tenn. Crim. App. 1996) (emphasis 

added); see T.C.A. § 39-11-403(a) (“A person is criminally responsible for the 

facilitation of a felony, if, knowing that another intends to commit a specific felony, but 

without the intent required for criminal responsibility under § 39-11-402(2), the person 

knowingly furnishes substantial assistance in the commission of the felony.”). Because 

aggravated robbery includes, at a minimum, an element of threatened bodily injury, 

facilitation of aggravated robbery necessarily includes such an element, and, as such, this 

element prevents the merger of the defendant‟s two prior facilitation of aggravated 

robbery convictions. Cf. State v. Michael Anthony Lewis, No. M2005-02279-CCA-R3-

CD, slip op. at 9 (Tenn. Crim. App., Nashville, Sept. 26, 2006) (stating that “the merger 

rule should not apply” to convictions of facilitation of felony murder and attempted 

especially aggravated robbery), perm. app. denied (Tenn. Jan. 29, 2007). Consequently, 

the trial court did not err by finding the defendant to be a persistent offender. Moreover, 

because the trial court considered all relevant principles associated with sentencing, no 

error attends the imposition of these within-range sentences.

III. Conclusion

Based upon the foregoing analysis, we affirm the judgments of the trial 

court.

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JAMES CURWOOD WITT, JR., JUDGE