### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jun e 5, 200 7

ST A TE OF TE N N ES SE E v

. JA R V IS HA R R IS

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty Nos. 03-00441, 03-00442 A rthur T. Bennett, Judge

No. W2006-02234-C CA-R 3-CD - F iled Augu st 24, 2007

Th e de fe nd a nt, Jar

vis Ha rr is, wa s c on vic te d o f f

ir st d e g re e pr e me dit a te d mu rd e r a nd a tte mpt e d f

ir st deg ree murder a

nd sentenc ed to conc urre nt terms o f l ife imprisonment and e ighte en y ear s. On

a pp e a l, he argue s: (1 ) the tr ia l c ourt e rr e d in de nying his mot ion in l imi ne to e xclu de re fe re nc e s to g angaff iliation and the State made improper comments about g angmembership duringopening and closing statements; (2) the tr ial court e rre d in denying his motion to s uppress his statements; and ( 3) the trial cour

t imposed an excessive sen t en ce. Ba sed on our r eview, w e af firm the judg ments of conviction but rema

nd for a ppropriate rese ntencing for the attempted first deg ree murder c onviction.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt s o f the Cr im ina l C our t A ffirm e d and Re m ande d for Re se nt e nc ing

A L AN E. G L EN N , J ., delivere d the opinion of the court, in which J OHN E VE R E TT W I L L I AMS and J.C. M C L IN , J J ., joined.

Jame s O. Mart

y (o n a pp e a l) a nd

Joshu a B . Sp ic kle r ( a t tr ia l) , M e mph is, Te nn e sse e , f or the a pp e lla nt, Jar vis Ha rr is.

Rob e rt E. Coo pe r, Jr., Attor ne y Ge ne ra l and Re po rt e r; Sop hia S. L e e , A ssi sta

nt A tto rn e y

Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and Pau l Hage rman a nd Ray L epone, A ssistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

The de fenda

nt and two c o d e f

e n d a nts , Maurice Thomas and Tha ddeus Johns on, wer e indicted for the f irst deg ree preme ditated murder o f M o n t re l l Graha m and for the attempted first de g ree
mur de r o f M a

ur ic e Woo te n. Th e de fe nd ant su bs e qu e ntl y fi le d a mot ion to su pp re ss h is s ta te me nts to the police and a motion in limine to exclude any ref ere nces to g ang aff

iliation, both of which we reA t t ria l, E ric C o o p e r te stif ie d tha t his n ic k n a m e w a s “L itt le E .” 1

A t t ria l, E ric C o o p e r te stif ie d tha t co d e fen d a n t T h a d d e u s J o h n so n w a s k n o w n a s “R e ll. ” 2

-2- denied by the trial court. Following a jury trial in D ece mber 2005, the def endant wa s convicted of the indicted cha

rg es.
Suppr e ssi on H e ar ing

L ie ute na nt A nth on y

Cr a ig of the Me mph is Po lic e De pa rtme nt t e sti fi e d th a t he wa s the c a se
c oo rd inator

fo r t he inv e sti g a tio n o f t

he Ap ri l 11 , 2 00 2, mur de r o f M on tr e ll G ra ham. Th ro ug h h is investigation, he lear

ned that the de fenda

nt’s vehicle ha d been se en in the ar ea of the shooting f

ive minutes prior to the murder . Following the def endant’ s arr est, L ieutenant Cra i g and Serg eant Fitzpatrick took a stateme nt from the def endant on Apr i l 1 4 , 2 0 0 2

. L ieutenant Cra ig a dvised the defe ndan t o f h is r ig h ts , an d th e d e f e n d an t s ign e d an a d v ic e o f r ig h ts f o r m a t 6 :1 3 p.m. The defe ndant’s intervie w beg an at a pproxi mately

10:00 p.m. and ended at 12:25 a.m. th e following morning , at wh i ch ti me the def endant sig ned his statement. L ieutenant Cra ig sa id that the defe ndant’s intervie w was not re corde d or videotape d. He state d that the d ef en d an t k new he was being held on a homicide char g e, was cooper ative during the interview, and never asked f or a la wy er or to talk to his family

. The de fenda nt initi ally

denied a ny involvement in the murder, sa y ing that he had taken his g irlfriend to a doctor’s a

ppointment at the time of the shooting. H oweve r, the de fe nd ant l a te r a dmi tte d th a t he wa s in th e are a of the sh oo tin gwi th “ L itt le E. ” Th e de fe nd ant a lso 1 tol d L ie ute na

nt C ra ig a

bo ut a n a lte rc a tio n th a t oc c ur

re d d uri ng a dice g a me on

Ap ri l 5, 20 02 , in wh ic h M a

ur ic e Woo te n w a s a c c us e d o f h a vin g sto le n s om e mar iju ana . T he de fe nd ant t old L ieutenant Cra ig that, as a re sult, a contrac t with the Vice L ords was ma de on Wooten’s life.

After interviewing Eric Cooper and Maurice Wooten, L ieutenant Craig interv i ew ed t he defe ndant ag ain on April 16, 2002, beca use Cooper ha d g iven him additional information reg arding the defendant’s pa

rticipation. The de fenda

nt was ag ain advised of

his rights a

nd then g ave a

nother statement in which he explained his invol vement in the murde r:

Thursday eveningIwas in t he Oakshire Apa rtments, me and some pa

rtners

an d L i l E

. R el l wa s ca l l i n g m y p h o n e se v er al t i m es t o co m e pi ckh i mu p an d t o go 2 g et his chec k. . . .

I took Re ll out to the Olive Gar den to g et his chec k. Whil e he w as in there g etting his c heck, me and L il E was still in the car

. . . . So I left the Olive G arde n and took him to Fastchec k on Winchester nea r Perkins. . . . So I was int ending to drop him back off back home but he wanted t o g o kick it with me, smoke some wee d. He said come on let’ s g o to the hood and g et some we ed but we ne ver did find no we ed.

So I pu lle d up in the c ut i n th e Oa ks hir e and

saw M a ur ic e and Tr a il, Me lvi n sittin g on the g re e n b ox. I

tr ie d to re ve rs e ba c k o ut a nd the n Re ll s a id g o ba c k in soT h e d e fen d a n t l a te r id e n tif ie d “B ” a s B ra n d o n , a m e m b e r o f t h e T ra v e ling V ic e L o rd s. 3

-3- ever y body could see he wa s with me so Icould be his alibi. So I pulled back out a nd g o to the nex t cut on the lef t of the building. So then we g et out, we just chilling rig ht now. . . . So Rell asked to use my phone, he w as ca lling B ookie first. He had called B ookie and a sked B ookie for a 9mm. Bookie ha d t o l d him y es, it’s at the house. So then Rell had g ot on the phone with Ma urice and aske d wher e he’ s at and

a ll that and

he sa id h e wa s at th e Ma ll.
So he kept on rushing M au ri ce t o come on to the hood sa y ing it’s time,

sever al times. Rell said it’s “21 bricks execution,” it’s time, this was Traveling ViceL ord stuff. The n Rell said “it’s g ot to be done, it’s g ot to be done, it’s a hit. Ican’ t le t it g o no lon g e r, it’ s g ot t o b e do ne ton ig ht. ” So a ft e r t hat Re ll tri e d to c a ll B oo kie ag ain, he c alled him about four or five times but Bookie didn’t answer

. . . . We had left the ba ck apa

rtments in the Oakshire , then w e h ad went to t he fr ont of the apar tments where the big loop at and then Rell wa s saying just drop me of f over Maurice ’s house.

But be fore Icould drop him off at Maur ice’ s house, Mauric e wa s in the front of the apar

tments a lrea dy

. So we g o to the front but on the backside of the fr ont and park. Me , Maurice and Rell talking
, he saying he need some “blac k stuff.” So, me, Maurice and L il E went to Maurice ’s house to ge t s o m e ski masks, some g loves[,]

so me sh oe s and so me bla c k jog g ing pa nts , bla c k sk i ma sk and a g old sk i ma sk . So by the time we g et ar ou n d t h e ap ar tments in front, I ’m thinking I ’m fixi ng to ge t

rea dy to drop Mauric e off

. So Rell j umped and g rabbe d one of my phones, then I

had said “what y ou doing w ith that phone? ” Isay “g ive me my

phone bac k,” he sa id he

wa s g oin g to u se thi s p ho ne to g e t in tou c h w ithme

. S o aft er th ey c ha ng e d th e ir clothes, M auric e had a lrea dy chang ed at the house , he had on bla ck. Rell cha ng ed clothes, putting his ora

ng e shoes a

nd orang e shi rt in my

back se at of my

car . Then he g ave me his money

and stuff . . . .

And Mauric e[’s] cell phone and C hicag o bulls cap, leather
, it was on my back seat. So then me, L il E and L il B jumped in my car . Rell and Mauric e wa s walking 3 of f t ow ard s th e fi e ld. I tol d Rel l not to lose my ph on e ; it wo uld le a d b a c k to me . So

a ft e r I dr op pe d B of

f, me , L il E ri de s aro un d th e Whit e have n V ie w A pa rtme nts . So I ’m thi nk ingthe sh oo tin g fi xing to g o o n b ut i t di dn ’t . So Re ll cal led me on my phone te l l i n g m e h e don’t see him or nothing . So he told me to come bac k to the

a pa rtme nts , n owwe on

the la st c ut o n th e ri g ht.

Ipulled up and see them standing out; they g ot their all black on a

nd two caps on, so Ipulled up in the cut and g [o] t out.

. . . That’s when I said Iwant that “br ight bitch twin de ad” beca

use he w alked up be hind me when I walking off like he wanted to s ho ot m e in my

ba c k a nd stu ff

. So now I ’m le a vin g ba c k out a nd Re ll c a lle d me-4-

and sa id p ull up in t

he c ut t o s e e wh e re the y

a t. S o I pu lle d u p in the c ut, he sa id t e ll

me wh e re the y

a t. S o I sa id t he y tuc k b a c k in

the c ut, a ll the wa

y in the c ut. Isa id bo th o f t he m is

.

B y the n I pu lle d ou t the c ut, so I sto pp e d by Citg o to g e t me so met hi ng to drink. Iwent bac k to the W hitehaven View Apa rtments now. Me a

nd L il E parked, Itol d L il E t o s it r ig ht h e re in my c ar a nd tol d h im t o lo c k my

do or s. Af

te r t hat I jumped back in the c ar , Ipulled around to the othe r side of the Whit ehave n View beca use Rell suppose to had come over the re after the s hooting. I pulled to the other sid e that’ s wh e n I he ard nin e sh ots ; it so un de d lik e nin e sh ots be c a us e of the e c ho in the a pa rtme nts . I ’m

ri din g ba c k r e a l fa st ove r the sp e e d b ump s. So Re ll c a lle d me on the phone r

unning thr oug h the field talking abo u t p i ck m e up behind Granny ’s Mark e t.

Ipulled out the apar

tments , me and L il E and the lig ht was re d so Ishot throug h Citgo wa

y throug h Fr eezewa

y . They was behind Gra

nny ’s alre ady

waiting

o n m e. S o instead of me g oing be hind Granny ’s cut, I just pull ed up rig ht behind J oey ’s cut; it’s like a poolhall b ar . So then they jump in behind J oey ’s so nobody wouldn’t see them g etting in my car

. So Rell talking about let’s g o g et some we ed

and stu ff

. I dr op pe d Mau

ri c e of f at the ho us e

. Ma

ur ic e sa id h is gun

wa s mi ssi ng , it

wa sn ’t sh oo tin g

. Re ll ha d sa id “ I sh ot that bit c h, that bit c h dr op pe d, Ish ot h im s ome more.” So I said which one y ou have shot? So he said the brig ht twin, the one I wanted dead. . . . B ookie ca lled me, I told Rell be quiet so Bookie wouldn’t he ar him. Bookie ha d said, “y ou know Tr ai l d ea d mane,” so Isaid for r eal, what ha pp e n[e d]? The n B oo kie a sk e d w he re Re ll at, I sa id h e a in’ t w ithme tho ug h. So Ihungup and the n I sa id to Re ll “ y ou sh ot t he on e wi th t

he fr e c kle fa c e wi th t

he g old te e th, ” and

Iwa s r e a l ma d. An d we wa s c us sin g e a c h oth e r ou t. Iwa s sa y ingto R e ll y ou shot the wrongperson, you shot an innocent pe rson, has never done nothing

. . . to nobody . So I ca m e b ac k an d said had y ou even shot the br ight twin and the n that’s when he ca m e o n an d told the truth, he said naw. Re ll was saying f uck that sh it. So b y

the tim e we le ft Joey ’s , I dr op pe d Ma ur ic e ri g ht of

f, he a sk e d if he c ou ld borrow $10.00.

No bo dy ha d n o c ha

ng e a t the tim e so I dr op pe d him o ff . We pu lle d o ut h is dr ive way goin g o n to the She lby I nn . So Re ll w a s ta lki nga bo ut w e ne e d to g e t a

ro om to smo ke so me we e d.

. . . We’ re sti ll c us sin g and arguin ge a c h o the r o ut. So he cha ng ed clothes in the r oom. I said “mane y ou shot the wrongone, y ou fucke d off the mis sio n. ” So h e te lli ngme fu c k th a t sh it .

. . he c ha ng ingc lot

he s.

Re ll s ay Ig ot t o b ur

n th e se c lot

he s sh oe s e ve ry

thi ng

. So w e le ft

ou t th e ro om, they we n t o u t to th e b a c k w h e r e my c ar w a s p ar k e d an d I w e n t to th e f

r o n t. So I walked ba ck to the bac k and R ell had his clothes in a plastic ba g , Iopened my trunk to g et s ome power steering fluid and he had put it on the clothes. He had burnt the-5-

clothes slowly , then we just sat there fo r about five minut es. I told E make sure

n o b o dy ai n ’t co m i n g wh i l e t h e c l o t h es we re b u rn i n g.
We g e t b a c k i n t h e c ar an d p u l l o u t an d t o o k R e l l h o m e

. W e w a s st ill arguing, he said “fuc k that shit, I don’t want to hear no more a bout it, the shitdone now.” So I

take him home. L ieutenant Craig said the def endant made sever al cor

rec tions to hi s second state ment and initialed

eac h pag e.

L ieutenant Cra ig a cknowledg ed that he knew Offic er Eddie Ba ss but denied that B ass was prese nt during the def

endant’ s interview. He said that Off icer Ba ss was a uniformed patrol office r
a t the tim e and

wo uld no t ha ve ha d a c c e ss t o h omi c ide c a se s b e c a us e of fi c e rs fr om o the r d e pa

rtme nts

are not allowed to speak to a suspect unless a pproval is obtained from a supervisor. He testified that Se rg e ant R e g ina ld M or g an w a s r e la te d to the de fe nd ant a nd wa s r e mov e d f

ro m th e c a se a s a

re su lt. He de nied that Morg an wa s prese nt during the def endant’ s intervi ew s and said ther e wa s no way B a ss o r M or g an c ou ld h a ve ta lk ed to th e de fe nd ant w ith ou t hi s k no wl e dg e be c a

us e , a s th e c a se coordinator, he wa s g iven notification of a ny one desiringto speak to the de fend an t

. He said the de fe nd ant w a s o ff

e re d f oo d a nd dr ink and an o pp or tun ity to u se the re str oo m.

Th e de fe nd ant te sti fi e d that he wa s a hig h s c ho ol g ra du a te and

c ou ld r e a d a

nd wr ite . H e sa id that he wa s arr ested at about 3:45 p.m. on April 14, 2002, and taken to the homicide office wher e he wa s handcuf

fed to a chair for six t o eigh t h o u rs

. He sa id L ieutenant Cra ig a nd Serg eant Fitzpatrick showed him a photog raph of Montrell Gra ham and rea d him his rig hts. He sa id he aske d fo r a lawy e r f our o r f ive tim e s b ut l a te r s ig ne d a wa ive r o f r ig hts fo rm

sa y inghe did

no t w a nt a lawy er. A f

te r a b o u t t w o h o u r s , h is c o u s in
, E d d ie B a s s , Jr

. , a d e te c ti v e w it

h th e M e mp h is Po li ce Depa rtment, came to se e him while he was still in the larg e ar ea r oom of the homicide off ice. He told Bass, who w as dre ssed in plain clothes, that he wanted an attorne y , but Ba ss told him that he did not need one a

nd that he should tell the offic ers e very thing he knew and not go to the pe nitentiary for s o me o n e e ls e

. T h e d e f e n d an t s a id

th a t B a s s an d

Re g in a ld M o r g anlate r

to ld h im th e y w e re “g oing to wor

k ever y thing out.” H e denie d that the offic ers ev er gav e h i m any food or dr ink or

a llo we d h im t o u se the re str oo m. He sa id t hat a ft e r s itt ingha

nd c uf fe d in a c ha ir fo r a bo ut s ix hou

rs , he wa s moved to another ro o m wh er e his statement wa s ty ped by a tra nscriptionist. He acknow ledg ed that his statement re flec ted what he had said that nig ht and t hat he initialed and sig ned it, e x p l ai n i ng that he did so bec ause B ass “c ame in and unde rmined [him] .” He said the off icer s
never asked him if he be longe d to a g ang

.
The de fenda

nt admitted that he “lef

t something out” in his first statement. He said that he was inca rce rate d betwee n April 14 and Apr il 16 and was take n to the homicide office ag ain ar ound 7:00 a .m. on April 16. He wa s interviewe d by L ieutenant Cra ig a

nd another

office r for

six or seve n hours. He said that he asked for an attorne y but was not asked to sig n a wa iver of r ights for m at the time of his second stateme nt. Howeve r, he a dmitted that he knew he had a rig ht to a lawy er w hen he re a d th e fi rs t w a ive r. He a c kn ow le dg e d th a t he ma de c or re c tio ns to h is s e c on d s ta te me nt, a s w e ll

a s in iti a le d e a c h p a g e and sig ne d it

.Ac c or di n g t o Co op e r , M a u r i c e W oo t e n w a s t h e i n t e n de d v i c t i m. 4

-6- At the conc lusion of the hear ing, the trial court found that the defe ndant had g iven both of his statements fre ely

and voluntarily

and denie d the motion to suppress.

Trial

Lucille Neve ls testified that Montrell Graha m was her

nephew and that he w as twenty -two y e ars old wh e n h e wa s k ill e d. Ms. Ne ve ls e xp la ine d th a t sh e wa s te sti fy inga s th e fa

mil y repr esentative beca

use Gra ham’s mother die d thirteen da y s after he did.
Eric Cooper testified that his nic kname was “ L ittle E” and that he had known the de fenda nt for a bout two y ear s. He said that the de fenda nt, Thaddeus Johnson, and Maurice Thomas wer e members of the Vice L ords. He said he wa s riding a round with the def

endant smoking marijuana on April 11, 2002, when Johnson, also known as “Rell,” called the defe ndant. The de fenda nt picked up J ohnson at his house
, and the three men then picked up and ca shed Johns on’s paychec k befor e g oing to the Oakshire Apar tments to buy more marijuana

. When the y arr ived at the apa rtments, the defe ndant told J ohnson that Maurice Wooten was “still out ther e.” T hey then drove around to the front of the apa rt m en t s where the de fenda nt and J ohnson g ot out of the ca r and ta lked to Maurice Thomas while Cooper rema ined in the ca r. The de fenda

nt, Cooper, J ohnson, and Thomas then w ent to Thomas’ house whe re Thoma s retrie ved some da rk-c olored c lothing.

C o o p er t es tified that the four men re turned to the Oa

kshire Apa

rtments, and Johnson and Th oma s c ha

ng e d in to t

he da rk c lot he s. Th e de fe nd ant g a ve John so n one of his c e ll pho ne s a nd tol d J ohnson to call him when he w as “throug h.” Cooper a nd the def

endant then went to another apar tment complex down the street “to post up,” or “sit and wait.” A short time later, Cooper hear d g unshots and the def

endant then r ecei v ed a phone c all from Johnson. The defenda nt and Cooper drove to Gr ann y ’s M ar k et acr oss the street f rom the Oakshire Apa

rtments. J ohnson and Thomas

came up to the defe ndant’s car, and J ohnson said, “I shot that Bitch.” T he def endant dr ove Thomas to his mot her’ s h o use, and Cooper , J ohnson, and the de fenda nt went to a hotel on Shelby Drive wher e the de fenda

nt told J ohnson that he shot the wrong person. J ohnson chang ed his clothes and 4 burned the dark c lothing behind the hote l.

Coo p e r te s ti f

ie d th a t h e s u

b s e qu e n tl y g a v e a s tate me n t to th e p o li c e an d id e n ti f ied the defe ndant from a

photogr aphic lineup. He said he did not know t hat the def endant ha d a proble m with Maurice Wooten until after the shooting when the de fenda nt told him that he had a

problem wi t h W o o t en

. C o o p er

ac kn o wl ed gedt h at h e d i d n o th ea r t h e de fe n d an t t el l an y o n e to d o an y t h i n g.

Maurice Wooten testified t hat M ontrell Gra ham was his best friend and t hat he had known the def endant since elementa

ry school. He sa id the defe ndant and other members of the Vic e L ords

acc used him of stealing some marijuana at a dice g ame on Apr il 5, 2002, six day s befor e the murde r of Gra ham. Wooten said that on April 11, 2002, he, Gra ham, Melvin Stuckey , and Antonio Tay lorFro m pho t o graphs of t he ap art m ent co m p l ex ad m i t t ed i nt o evi d ence, “t he cut ” ap p ears t o be an op eni ng 5
b e tw e e n two a p a rtm e n t b u ild ing s w ith a c h a in-link fen c e se p a ra ting the c o m p le x fro m a sc h o o l.

-7- wer e socia liz ing “in the cut” of t he Oakshire Apa rtments when the de fenda nt, Thaddeus Johnson, 5 and on e o r two other men dr ove up in the def endant’ s g ray

Crown Victoria

automobile. He descr ibed what ha

ppened ne x t: “And all of a sudden they

pulled out the cut and r olled off. Te n minutes later ther e we nt a g u n s h ot. We heard shots. And me a nd my Bo, B o, me, Melvin and Antonio, we runningfor our lives.” Wooten said one of th e m en ch as ed and shot at him and Stuckey , and he he ard another g un being fired near by

. He said he ran to his mother’s house, and he and his brother

later r eturned t o the Oakshire Apar tments and saw the police and an a mbulance. Wooten said he also saw the defe ndant at the a partments af

ter the shooting . Wooten ex plained that he knew the defendant was a member of t he Vice L ords because the defe ndant “was steadily telling [hi m] and throwing

. . . signs up.” He said the defe ndant previously had tried to re cruit his brother in the Vice L ords.

Offic er Fra

nkie M uhammad of the Memphis Police Depa rtment testified that he r esponded to t he sc e ne of

the c ri me wh e re he fo un d t he vic tim ly ing on the g round betwe en two apa rtment build i n gs b y

a g ree n utilit y

box . He sa id the victim had a bullet wound to his head a nd was pronounce d dead on a

rrival by emer g ency

medical pe rsonnel.

Ser g e an t Sh an T r a c y o f th e M e mp h is Po li c e D e p artm e n t te s ti f ie d th a t h e r e s p o n d e d to the

c ri me sc e ne wh ic h wa s nea r Oaks hir e El e me nta

ry Sc ho ol. He de sc ri be d the loc a tio n of t he c ri me
a s “ kin d o f a

wa lkw ay or a g ra ssy are a be tw e e n tw o

. . . a

pa rtme nt b uil din g s. An d th e n to the no rt h there was a fe n ce an d a gate in the f ence wher e y ou could g o to the school.” Serg eant Tr acy and another office r pre pare d a sketc h of the crime s cene , which was admitted into evidenc e. Blood was found on the gr ee n el ec trical tra nsformer box , and a spe nt bullet was rec overe d from the victim’s broken c ell phone found in his pants pocket. Serg eant Tracy said the vi ctim appea red to have seve ral g unshot wounds.

Serg eant Da

nny J ames of the M emphis Police Depa rtment testified t hat on April 16, 2002, he re sponded to a c all about some burnt clothing at the Shelby I nn o n S h el by

Drive. H e took photogr aphs of the bur

nt clothing a

nd collecte d some of it as evide nce.

L i eu t en an tAn t h o n y

C ra i g re i t er at edm u ch o f h i s t es t i m o n y f r o m t h e s u

p p re s s i o nh ea ri n g. He sa id that when he inter viewed the defe ndant on April 14, 2002, the def endant initially

denied that he wa s at the sce ne of the shooting a nd said that he ha d taken his gi rl fr i end to a doctor’s appointment. Howeve r, whe n L ieutenant Cra ig c ontacted the defe ndant’s g irlfriend, she denied that the def endant wa s with her that day . L ieutenant Cra ig said the defendant did not appea r t o be under the inf lue nc e of a lc oh ol or dr

ug s. Af te r ta lki ngto E ri c Coo pe r o n Apr il 1 5, 20 02 , L ie ute na nt C ra ig ag ain i n te r

v ie w e d th e d e f e n d an t o nA p r il 1 6 , 2 0 0 2

. H e s a id th a t t h e d e f e n d an t’ s s tate me n t w as reduc ed to writing
, and the defe ndant i nitialed eac h pag e and c orre cted se vera l ty pog raphic al er

rors throug hout the statement bef ore sig ning it. At the reque st of the State, L ieutenant Cra ig r ead the-8-

de fe nd ant’ s st a te me nts to t he jur y . B oth state me nts we re mark e d a s e xhibi ts and a dmi tte d in to evidenc e.

On cr oss-examination, L ieutena n t C ra i g testified that, ac cordingto the arr est ticket, the defe ndant was a

rre sted at 3:40 p.m. on April 14, 2002. When the defendant arrived at the homicide of fi c e , h e wa s p la c e d in

an in te rv ie w r oo m. H e sa id t hat th e de fe nd ant’ s in iti a l or al st a te me nt, in which he de nied any involvement in the homicide, was not re duced to wr iting and that the defe ndant g a ve the or a l st a te me nt b e fo re he e xec ute d th e a dv ic e of ri g hts fo rm

a t 6: 13 p. m.

Clara B enson testified that in 2002 she wa s a transc riptionist fo r the Memphis Police Depa rtment Homicide B urea

u. She identified t he defenda nt’s April 16, 2002, statement as one she had ty ped and sa id she ty

ped o n l y what the de fenda

nt said. She said she worke d with L ieutenant Craig , Serg eant F itz patrick, a nd other off

icer s, and the office rs alway s treated suspects “ve ry nice” and fur nished them food if they

wer e hung ry

.
Dr. Te resa

Campbell, a for ensic pathologist, testified that she perfor med an a utopsy on the victim on Apr il 12, 2002, a nd deter mined the ca

use of de ath to be multiple gunshot wounds. She said that the def

endant ha d a gunshot wound t o the l eft temporal are a, which penetrated the bra in, and one to the back upper part of the right thigh, which struck the femur bone and lace rate d a bra nch of the fe moral ar

tery . The bullets from both wounds we re r ecove red a nd collecte d as evide nce.

The de fenda

nt did not present any

proof.

Se nt e nc ing He ar ing

The de fenda

nt’s mother, Caroly

n Har ris, testified at the F ebrua ry 23, 2006, sentenc ing hear ing that the defe ndant was twe nty -four y ear s old and that she and the defe ndant’s father ha d been marrie d for twe nt y -t wo y ea rs

. She said that the def endant ha d g rown up in Memphis, completed high sc hool, and been employ ed at UPS and as a part- time lifeg uard at the local YMCA. She stated that the def

endant ha d been in a

major fig ht in high school, whic h had re sulted in his transfer to a differ ent school, but other than that had neve r ca used her any problems. On cr oss-examination, she d en i edan y

kn o wl ed ge o f t h e d ef

en d an t ’s m em b er s h i p i na ga n g.

At the conc lusion of the hear ing, the trial court found enhanc ement factors (3), (4), a nd (11) applicable based on the defe ndant’s role in setting up the m urder and the f act that individuals besides the named vic tims were pr esent in the a rea at the time of the shooting . See Te nn. Code Ann. § 40- 35-114(3) , (4), ( 11) (2003) . The de fenda nt did not propose any

mitigating fac tors and the tria l court appar ently

found none a

pplicable, as it did not mention any at the sente ncing hear ing. T he trial court, there fore
, sentenc ed the defe ndant as a Rang e I , violent of fende r to e ighte en y ear s for the attempted murde r convic tion, to be served c oncurr ently with his li fe se ntence for murde r.-9- AN AL YSI S

I. Refere nces to G ang Af fi liation

A. De nia l of M ot ion in Li m ine

The de fenda

nt contends t hat t he trial court erre d in denying his motion in lim ine to exclude ref ere nces to g angaff

iliation, arg uing that such ref ere nces “ unduly

excite d the emotions and prejudice of the j u ry t o deny [t he def endant] a fa ir and impartial tria l.” The State a rg ues that the g angref ere nces w ere rele vant to show the motive and inten t b eh i n d t he shooting and we re not of fe re d to pr ov e tha

t the de fe nd ant wa s a ga

ngme mbe r o r t o s ho w that he a c te d in c on fo rm ity

wi th the cha rac ter tra it of a g angmember.

This court has previously conclude d that “evide nce c oncer ning g angaff

iliation is char acte r evidenc e subjec t to Rul e 404(b) .” State v. Or lando Cray ton, No. W2000-00213-CCA-R3-CD, 2001 WL 720612, at *3 (Te nn. Crim. App. J une 2 7 , 2 0 0 1 ). Rule 404(b) of the Tenne ssee Rules of Ev ide nc e pr ov ide s a s f

oll ow s:
(b) Othe r Crimes, Wrong s, or Acts.– Evidenc e of other crimes, wr ong s, or
a c ts i s n ot a dmi ss ib le to prove the c ha ra c te r o f a

pe rs on or to s ho w a c tio n in confor mity with the char acte r trait. I t may , howeve r, b e admi ssible for other purposes. The conditions which must be satisfied be fore allowing such evide nce a re:
(1) The court upon re quest must hold a hear ing outside the jury ’s pre sence ;
(2) The court must deter

mine that a mater ial issue exis ts other than conduc t

con fo rm i n g wi th a cha

rac ter tra it and must upon request state on the r ecor d the materia l issue, the ruling , and the r easons f or admitting the evidenc e;
(3) The court must find proof of the other c rime, wrong , or ac t to be clea r and convincing ; and
(4) The court must exclude the evidenc e if its probative value is outweig hed by the dang er of

unfair pr ejudice.

Whil e evide nce of a prior crime, wrong , or act is not admissible to prove that a defe ndant had the prope nsity

or disposition t o commit the cr ime, it may be re levant and a dmissibl e to prove issues such as identity , intent, motive, opportunity , or abse nce o f m i s t ake or acc ident. See State v. Shr op sh ir e , 45 S .W .3 d 64, 75 (T e nn . Cr im. Ap p. 20 00 ). Whe n th e tr ia l c ourt ha s su bs tanti a lly complied with the require ments of Rule 404(b), this court re views its decision to admit or exclude evidenc e under

an abuse of discre tion standard. See State v. D uBose , 953 S.W .2d 649, 652 (Tenn. 1997).-10-

I n a pretrial hearing , defe nse counse l argued that the tria l court should exclude any ref ere nce to g ang s o r g ang a ff

ili a tio n be c a

us e the “ me re me nti on

of the wo rd s V ic e L or ds , G ang ste r D isc ipl e s, whateve r, Crips, Bloods, is so overly prejudicia l as . . . to o v er come the releva ncy that it might have.” Def

ense counsel a sserted that the defe ndant neve r admitted that he w as a g angmember a nd that any te sti mony

ide nti fy inghim a s such was hear say . In o ve rr uli ngthe de fe nd ant’ s mo tio n to exclude the evidenc e, th e t ri al court found that the defe ndant’s stateme nt that the motive for the sh oo tin g wa s a Vi c e L or ds hit wa s r e le va

nt e vid e nc e and

that de fe ns e c ouns e l w a s f re e to c ro ssexamine the witnesses about any ref ere nces to the de fenda

nt’s g angaff

iliation. I mplicit in t he trial court’s r u ling wa s the additional finding that the probative value of the evidenc e outweig hed the da ng e r o f u nf a ir pr e jud ic e to t

he de fe nd ant.

We f ind no a bu se of dis c re tio n in

the tr ia l c ourt ’s ru lin g in t his ma tte r. Th e re fe re nc e s to g angaff iliation and the fac t that the murder r esulted fr om a g ang “h i t ” we re relevant to show the motive and intent for the shooting . Fur thermore , in our view, the pr obative value of the e vidence outweig hed the da

ng er of unfair pr ejudice.

B. Im proper Com m ents by P rosec utor

Th e de fe nd ant a dd iti on a lly argue s th a t it

wa s p la in error f

or the pr os e c uto r t o me nti on his g anga ff ili a tio n d ur ingop e nin g and

c los ingstate me nts . D ur ingbo th o pe nin g and c los ingstate me nts , the prosec utor ref

err ed to the porti on of the de fenda nt’s statement in which he said that the shooting

wa s a Vi c e L or ds “ hit ,” in s up po rt of his argume nt t

hat th e mu rd e r w a s p re me dit a te d. De fe ns e counsel, in turn, ar g ued in closing that the defe ndant, althoug h prese nt, ha d no prior knowledg e that his companions wer e planningto shoot any one. In response , t h e p ro s ecutor made the f

ollowing

re mark s d ur ingre bu tta l:

I ’ll tell y ou one t h i n g that’s not simple about this case. And that is that on Ap ri l 11 th, 20 02 , M on tr e ll G ra ham w a s e xec ute d. Th a t’ s no t sim ple

. An d wh a t e lse is n o t s im

p le is V ic e L o r d

ju s ti c e

. B ecaus e o nA p r il 1 1 th
, 2 0 0 2 [th e d e f e n d an t] , Mau ric e Th oma s, and

Th a dd e us John so n, pla

nn e d, pr e pa

re d f or and a tte mpt e d to execute, had a

g et-a way , and a c over- up, to kill M auric e Wooten.

The State a

rg ues that the prosec utor’s comments wer e supported by the evidenc e at tria l and, thus, were not imprope r. We ag ree with the State. Counsel for both the State and the defe nse have traditionally

been pe rmitted wide latitude in arguing the ir ca ses to the jury and trial judg es af

forde d wide discre tion in their control of those ar g uments. See State v. Cauther n, 967 S.W .2d 726, 737 (Tenn. 1998); State v. Z irkle, 910 S.W .2d 874, 888 (Tenn. Crim. App. 1995) . Nonethele ss, a par ty ’s closing argument “must be t emper ate, pr edicated on evidenc e introduce d during the trial, re levant to t he iss ue s b e ingtr ie d, a

nd no t ot he rw ise imp ro pe r u

nd e r the fa c ts or law. ” State v. Mid dle br oo ks
, 995 S.W .2d 550, 557 (Tenn. 1999)

.
The five g ener ally

rec og nized area s of prose cutorial misconduct in closing argument occur when the pr osecutor intentionally misstates the evidenc e or misleads the jury on the infer ence s it may-11-

draw from the e vidence ; expresses his or her pers o n al o p i n i on on the evidenc e or the defe ndant’s g uilt; us es ar gu m en t s ca l culated to inflame the passions or pr ejudices of the jury ; diverts the jury from its duty

to decide the case on the evidenc e by injecting issues broade r than the guilt or innocenc e of the acc used under the controlling law or by making predic tions on the conse quence s of the jur y ’s ve rd ic t; a

nd int e nti on a lly

re fe rs to o r a

rgue s f a c ts o uts ide the re c or d, oth e r t ha n th os e which ar e matter s of common public knowledg e. State v. Goltz, 111 S.W .3d 1, 6 (Tenn. Crim. App. 2003).
We find nothing improper about the prosecutor’s comments in this case

. The prose cutor wa s
me re ly re lyingon

the de fe nd ant’ s st a te me nt, wh ic h w a s a dmi tte d in to e vid e nc e , in a dv anc inghis

ar g u me n t t

h a t t h e s h o o ti n g w a s a prem e d it a te d a c t i nw h ic h th e d e f

e n d an t h a d

p arti c ip a te d

. We conclude , there fore , that the def endant is not entitled to relief on the basis of this issue.

II. Denial of

Motion to Supp ress State m ents

Th e de fe nd ant n e xt co nte nd s tha t th e tr ia l c ourt e rr e d in de nyinghis mot ion

to s up pr e ss h is statements to the police, a rg uing, a mong othe r thing s, that “his confe ssion was t h e produc t of an illega l promise by Eddie B ass [and] S erg eant Morg an to ‘wor k ever y thing out.’” When this court revie ws a trial c ourt’s ruling on a motion to suppres s ev idence , “[q] uestions of cre dibilit y of the witnesses, the weig ht a

nd value of the evidenc e, and resolution of conflicts in th e e v i d en ce are matte r s e n tr

u s te d to th e tr ia l ju d g e a s th e tr ie r o f f a c t. ” St a te v

. O d o m, 9 2 8 S. W. 2 d 1 8 , 23 (Tenn. 19 96 ). Mo re ov e r, the pa

rt y pr e va ili nga t th e su

pp re ssi on he ari ng i s a f f o rd e d th e “ str on g e st l e g iti ma te view of the evidenc e and a ll reasona ble and leg itimate infere nces that may be d ra wn fr om that

e vid e nc e .” State v. Ke ith , 978 S.W. 2d 86 1, 86 4 (T e nn . 199 8)

. Thus , the fi nd ing s of a tri a l court in a suppre ssion hearing are upheld unl ess t he evidence preponde rate s ag ainst those finding s. See id. Ho we ve r, the a

pp lic a tio n o f t

he law t o th e fa c ts f

ound by the tr ia l c ourt

is a qu e sti on of law a nd is revie wed de novo . See State v. Ye arg an, 958 S.W.2d 626, 629 (Tenn. 1997).

Both th e Un i t ed States and Tenne ssee Constitutions protec t a def endant f rom being compelled to gi v e ev i d en ce ag ainst himself. See U.S. Const. Amend. V; Tenn. Const. art. I , § 9. Thus, to be admissible at trial, a c onfession made while under custodial interrog ation must be shown to have be en fr eely and volunt arily made after the defe ndant’s knowing wa iver of his c onstitut ional rig ht to remain silent and to have an attorne y prese nt during questioning. See Miranda v. A rizona, 3 8 4 U. S

. 4 3 6 , 4 4 4 , 8 6 S

. C t

. 1 6 0 2 , 1 6 1 2 (1 9 6 6 ). W h et h er t h e d ef en d an tm ad e av o l u n t ary , kn o wi n g, and intellige nt waiver

of those rig hts depends “‘ upon the par ti cular fac ts and circ umstances surrounding that case , including the backg round, experienc e, and c onduct of the a c c u sed.’” Edwar ds

v. Ar izon a , 45 1 U. S. 47 7, 48 2, 10 1 S. Ct. 18 80 , 18 84 (1 98 1) (q uo tin g John so n v. Z e rb st, 30 4 U .S. 458, 464, 58 S. Ct . 1019, 1023 (1938))

.

I n denying the defe ndant ’s m o t i on to suppress, the trial c ourt found that the de fenda nt’s state me nts we re fr e e ly

and vo lun tari ly

ma de and

we re no t th e pr od

uc t of c oe rc ion or pr omi se s:-12-

[T]he Court

fi nd s th a t bo th s ta te me nts we re fr e e ly and vo lun tari ly

g ive n b y thi s defe ndant. T h at n o coer cion . . . was br oug ht upon this defendant, no thre ats or promises. The de fenda

nt did not indi cate that th er e we re any threats or promises

ma de to h im. May

be he may

have sa id a

pr omi se wa s ma de that the y we re g oin g to tr y to ta ke c are of

him or so me thi ngto t

ha t e ff e c t, a nd his c ou sin

sa id s ome thi ng , I ’l l try to help y ou if y ou tell the truth. Something to that eff ect. But I have no indication that a c ou sin ta lke d to him . I have ind ic a tio n f ro m th e of

fi c e r t hat he ha dn ’t

se e n th is cousin that’s supposed to have been in ther e and – n o t wh i l e h e was ther e. The office r, L ieutenant Cra ig, indica ted that patrol office rs ar e not allowed to c ome in and start talking to people that they have f or homicid es u n l ess it goe s throug h the

c oo rd inatin g of

fi c e r. An d h e sa id h e ha d n o k no wl e dg e of

that.
The Court[’s] of the opinion that . . . these st atements we re f ree ly and

vo lun tari ly

given a nd c an b e a dmi tte d in to e vid e nc e a t th is t ime and wi ll o ve rr

ule y our Motion to Suppress these statements.

The re cord suppor

ts the trial court’s finding s. The defe ndant asser ts that his cousin coerc ed him int o makin g the state me nt by his imp lie d pr omi se that the of fi c e rs wo uld “ wo rk

e ve ry thi ngou t” i f t h e d e f e n d an tt o l d

t h e m w h a th e kn e w o f

t h e c r i m e

. H o w e v e r , L i e u t e n a n tC r a i g ’ s t e s t i m o n y, which wa s acc redited by the trial cour

t, established that the def endant’ s cousin wa s n o t present during the interviews and could not ha ve g ained acc ess to the defe ndant without L ieutenant Cra ig’ s permission. L ieutenant Craig also testified t hat t he def endant wa s advised of his rig hts before g iving

e a c h s ta te me nt a

nd that he sig ne d the a dv ic e of ri g hts fo rm and ini tia le d and sig ne d th e state me nts

. The de fenda

nt himself testified t h at h e wa s a hig h school g raduate, could re ad and w rite, and ha d sig ne d th e a dv ic e of

ri g hts fo rm

and the state me nts . H e fu

rt he r a c kn ow le dg e d that he kn e w h e c ou ld have ha d a

lawy e r p re se nt dur ing qu e sti on ing if he ha d de sir e d one . In s um, the e vid e nc e su pp or ts the t r i a l c o u rt ’ s f

i n d i n g t h a tt h e d e f

e n d an tkn o w i n g l y , i n t e l l i g e n t l y , an d v o l u n t ar i l y

w a i v e d his Miranda rig hts. Acc ording ly
, we conclude that the trial court did not err in denying the defe ndant’s mot ion to s up pr e ss h is s ta te me nts

.

III . Se nt e nc ing

As his final issue, the defe ndant contends that the trial court imposed an e x cessive se ntence

. Specifica lly , he ar g ues that the trial c ourt err oneously applied enha

nceme nt fac tor (3), the defe ndant

was a leade r in the commission of an off ense involving two or more criminal ac tors; enhanc ement fac tor (4), the offe nse involved more tha n one victim; and enha

nceme nt fac tor (11), the defe ndant had no hesitation about c ommitt ing a crime w hen the r isk to human life wa s high, to his sentenc e for attempted murder. See Tenn. Code Ann. § 40- 35-114(3) , (4), (11) (2003). The State conc edes that enhanc ement fac tor (4) may have been improperly applied but a rg ues that th e m i s ap p l ication of this sing le enhanc ement fac tor does not warr ant a r eduction in the sente nce w hen the r emaining proper ly applied enha

nceme nt f actor s car ried g reat weig ht and there wer e no applica ble mitigating fac tors.As a Ran g e I of f en der c on v i ct ed of

a Cl as s A f

el on y , t h e d ef

end ant w as s u bj ec t t o a s en t en ce r an g i n g f r om 6
fif te e n to twe n ty-f

ive ye a rs . S e e T e n n . C o d e A n n . § 4 0 -3 5 -1 1 2 (a )( 1 ) (2 0 0 3 & 2 0 0 6 ). U n d e r t h e 1 9 8 9 S e n te n c ing A c t, t he sent ence t o be i m p o sed f o r a Clas s A f

el o ny i s p res um p t i vel y t he m i d p o i nt o f t he range unl ess t here are enhancem ent fac to rs p re se n t. T e n n . C o d e A n n

. § 4 0 -3 5 -2 1 0 (c ) (2 0 0 3 ). P ro c e d u ra lly, the trial c o u rt is to inc re a se the se n te n c e w ithin the r a n g e b a se d u p o n th e e x isten c e o f a n y a p p lica b le e n h a n c e m e n t fa c to rs a n d th e n r e d u c e th e s e n te n c e a s a p p ro p ria te bas ed on appl i cabl e mi t i gat i ng f act ors

. T enn

. Co de Ann. § 40- 35

- 21 0(d)
, ( e)

. T he 20 05 amendment t o t he act del et ed
t he l anguage m and at i ng that the s ent ence f o r Clas s A f

el o ni es begi n at t he m i d p o i nt of t he sent enci ng range. See T enn. C o d e A n n . § 4 0 -3 5 -2 1 0 (2 0 0 6 ).

-13- We no t e t h at t h e defenda nt was sentenc ed on F ebrua ry 23, 2006, for a

n offe nse that wa s
c omm itt e d in 20 02

. As su c h, he c ou ld h a ve e le c te d to be se nte nc e d und e r t he 20 05 a me ndme nt t o the se nte nc inga c t by

e xec uti nga

wr itt e n w a ive r o f h is ex pos t facto protec tions. S ee T enn. Code Ann. § 40-35-114, Compiler’ s Notes. However, although the trial court appare ntly applied the ne w law w he n s e nte nc ingthe de fe nd ant, we have be e n una ble to f ind the de fe nd ant’ s wr itt e n w a ive r i n 6 the technic al re cord.

We f urther note that rec ent developments in the law, which occur red afte r t h e d at e o f t he defe ndant’s sente ncing , make a ll three enhanc ement factors a pplied by the trial cour

t problematic. I n Cunningham v. California, 549 U.S. __, 127 S. Ct. 856 (2007), the United States Supreme Court

co n cl u d edt h at C al i fo rn i a’ s s en t en ci n g s ch em e wa s u n co n s t i tu t i o n al b ec au s e i tal l o we d a t ri al j u d ge to e n h an c e a d e f

e n d an t’ s s e n te n c e b a s e d o n f a c ts f o u n d b y th e ju d g e b y a p r e p o n d e ranc e of the evidenc e. I d. at 868. Subsequently , the Court vacated t he ruling in State v. Gomez, 163 S.W .3d 632 (T e nn . 2 00 5) , in wh ic h our su pr e me c ourt ha d c on c lud e d th a t T e nn e sse e ’s 19 89 se nte nc ingsc he me did not violate a def

endant’ s Six th Amendment rig ht to a jury trial, with di re ct ions that the court should reconside r its ruling in the light of Cunningham. See Gomez v. Tenne ssee, __ U.S. __ , 127 S. Ct . 1209 (200 7 ). Ac co rdi ng ly , we r emand this ca se to the trial cour t for the de fenda

nt to be appropr iately

rese ntence d either unde r the old law or , if the def endant h as ex ecuted the prope r written wa iver, unde r the 2005 amendment to the sentenc ing a ct.

CO NC LU SION

Ba sed on our r eview, w e af firm the judg ments of conviction but rema nd for the de fenda

nt to be appr opriately

rese ntence d for his attempted f irst deg ree murder c onviction.

___________________________________ AL AN E. GL ENN, JUDGE