### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs O ct obe r 6, 200 9
STA TE OF TEN NES SEE v. PIER RE TER RY , aka P IERR E WA LKER

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 08-01148 W. Otis Higgs, Jr., Judge

No. W2009-00169-C CA-R 3-CD - Filed Dece mber 8, 2009

Th e de fe nd ant, Pie rr e Te rr y , a lso kn ow n a s Pie rr e W alk e r, wa s c on vic te d b y a She lby County Criminal Court jury of attempted voluntary manslaug hter, a

Class D felony ; ag g ravated robbe ry , a Class B fe lony ; and eva ding a rre st, a Class A misdemeanor. H e wa s sentence d to three y ear s, ten y ear s, and ele ven months, twenty -nine da y s, respe ctively . The court order ed that the f elony sentenc es be se rved c onsecutively to eac h other a

nd t h e misdemeanor se ntence be ser ved
concur rently for a n eff ective te rm of thirtee n y ear s as a Rang e I offe nder. On appe al, the def endant challeng es the sente nces imposed by the trial cour

t on his felony

convictions. Af

t er re v i ew, we modify the def endant’ s sentence for a g g ravated robbe ry to eig ht y ear s and af

firm the sen t ence s imposed by

the trial cour

t in all other respe cts. Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Cr iminal Cou rt A ffirm ed as Modified

A LA N E. G LE NN , J., delivere d the opinion of the court, in w hich D. K EL LY T HOMAS , J R . and C AM I LLE R. M C M ULLEN , JJ., joined.
Robert Wilson Jones, District Public Defe nder; Har ry E. Sayle, III (on appea l), Robert Felkner a nd Kindle Nanc e (at t ri al ), Assistant Publ ic Def ender s, for the a

ppellant, Pierre Terry, aka Pier re Walke r.
Rob e rt E

. C o o p e r , J r

. , A tt o rn e y Ge ne ra l a ndRe po rt e r; Da vidH. Fin dle y, As sis ta nt A tto rn e y G e ne ra l; William L . Gibbons, District Attorney Ge nera l; and Pam Fleming, Assi stant District Attorney Gene ral, for

the appe llee, State of Te nnessee

. OP IN ION

F AC TS

T h is case a

rises out of the r obbery

of a L ittle Caesar’ s Piz za on October 18, 2007, and the de fe nd ant’ s subs e qu e nt phy sic a l stru g g le wi th an d fli g ht fr om a pol ic e of fi c e r. F or his inv olv e me nt,-2-

the def endant wa s indicted in count one of attempted first deg ree murder, in count t wo of a g g ravated robber y , and in count thre e of e vading arr est. A trial wa s conducte d in October 2008.

Acc ording to the State’s proof at trial, Keith Copeland, mana g er of L ittle Caesar’ s Piz za, saw the def endant two times pr ior to the defe ndant’s robbing the store on October 18. Both times, the defe ndant came into the store re questing a job application, t h e second time be ing w hen the store op e ne d th e mor

nin g of the ro bb e ry . A ft e r C op e land tol d th e de fe nd ant h e wa s o ut o f a pp lic a tio ns , the def endant lef t the store and stood towa rd t h e s i d e of the store front. While the defe ndant was standing outside, one or two c ustomers came and lef t, an d t h en t h e d efe ndant walke d back in the sto re we ari nga

hat and da rk g la sse s. As he a

pp ro a c he d th e c ounte r, the de fe nd ant s a id, “ [D]r op it off bigbrother” and re veale d a g un tucked in his waistband. Copeland saw that the defe ndant was strug g ling to re move his g un beca use of a backpa ck
acr oss his chest, so Copeland remove d the re g ister till from the draw er, la id it on the counter, a nd ran out the ba ck door w hile y elling f or the other

employ ee to follow him. C opeland c alled 911 fr om his cell phone. When he returne d to the store, Copeland sa w that the for

ty to fifty dollars that had been in the till was gone

. After war d, Copeland reviewed the store’s surveillance video and sawthe defe ndant take the money from the till.

Offic er N ikolas Kollias with the Memphis Police Depa rtment was patrolling the a rea around L ittle Caesar’ s when he hear d the radio call about the robbe ry and spotted the de fenda

nt with what appea red to be a pis tol tucked in his waistband. Offic er Kollias stopped the def endant a nd order ed him to the gr ound. Wit h his knee on the defendant’s back, Office r Koll ias remove d the pistol from the de fe nd ant’ s w a ist

ba nd and no tic e d th a t it

wa s o nly a B B g un . A s O ff

ice r Kol li as pre pa

re d to handcuf f the de fenda

nt, the defe ndant rolled ove r and stood up, leaving O ffice r Kollias on the g round. The de fenda

nt did not run away

but, instead, knocke d Offic er K ollias over so that he w as fac edown. The defe ndant struck Of fice r Kollias ea ch time he attempted to ge t up. Finally , Offic er Kollias g rabbe d the defendant’s knees, but he felt the defe ndant pulling on his holster. Of

fi cer Kollias y elled for

help to a nea

rby by stander a

nd rele ased his hold of the defe ndant’s knee s so he could put his hands over his holster. Offic er K ollias realized that his g un was not in the holster and sa w it in the defe ndant’s rig ht hand, coming toward his hea d. Offic er Kollias instinctively

slapped the gun awa

y from the de fenda

nt’s hand and the n jumped on it to keep it from the defe ndant. The defe ndant hit Of fice r Kollias in the bac k of the he ad seve n or eig ht times befor e fina lly

running awa

y

. The defenda

nt lost a shoe during the s trug g le, and he was soon af ter appre hended by

other off icer s.

Har old Scott had just arr ived hom e with his mother when he saw a strug g le betwe en a police of fi c e r a nd the de fe nd ant. Sc ott

wi tne sse d th e de fe nd ant h it a nd kic k th e of

fi c e r, and he wa s a fr a id the def endant wa s g oing to g et the off icer ’s g un. Scott got involved i n t h e s t ru ggle, and the defe ndant eve ntually

fled.-3-

Offic er Thoma s Be rry

hill with t he Memphis Police De p ar t m ent ar rived on the sc ene a s ano the r o ff

ic e r w a s takin g the de fe nd ant int o c us tod y . O ff ic e r B e rr y hil l to ok the de fe nd ant b a c k to L ittle Caesar’ s where the witnesses identified him as the robber

. Of fi c e rs Da vid Ga llo wa y and L a ve rn Jone s w iththe Me mph is Po lic e Dep art ment Cr ime Scene Division processed the scene at L ittle Caesar’ s and the sce ne of the alterc ation betwee n Of fi c e r K oll ia s and

the de fe nd ant. Of

fi c e r G a llo wa

y re c ov e re d a

bla c k carr

y ba g fr om L itt le Caesar ’s, and Of

fice r Jones recove red a

black B B pistol, a blac k baseba ll cap, sung l as s es , and an athletic shoe f

rom the sec ondary

scene

. Serg eant James T ay lor with the Memphis Poli ce D epar tment took a statement fr om the defe ndant in which he a dmitted robbing the L ittle Caesar ’s but said he did so only beca use he w as forc ed to by

a man known a s “J R ock.” T he defe ndant admitted strug g ling with a police office r but denied try ing to take control of the of fice r’s we apon. Following the conc lusion of the proof, the jury convicted the defe ndant of attempted voluntary manslaug hter as i n cluded in count one , ag g rava ted robbe ry

in count two, and eva ding
arr est in count three

. AN AL YSI S

The de fenda

nt challeng es t he sentences imposed by the trial cour

t. Specifica lly , he ar g ues that the cour

t erre d in its ap p l i ca t ion of enha nceme nt fac tors and imposition of consecutive sentenc es. At the sentencing hear ing, the defe ndant admit ted that he r obbed the store but stated that he wa s forc ed to do it. H e apolog ized f or his a ctions but sa id that “ [he] rea lly just didn’t do nothi ng that rea lly -- Just as far a s like injuring a ny body [.] ”

When an ac cused c halleng es the leng th and manner of ser vice of a sente nce, it is the duty of t h i s court to conduc t a de novo r e v ie w o nth e r e c o r d “ w it h a p r e s u mp ti o nth a t t

h e d e te rminations made by the cour t fr o m wh i ch the appe al is taken a re c orre ct.” Te nn. Code Ann. § 40-35- 401(d) (2006). This pre sumption i s “conditioned upon the af firmative showingin the rec ord that the trial
c o u rtc o n s i d e r e d

t h e s e n t e n c i n g p r i n c i p l e s an d a l l r e l e v an t f a c t s an d c i r c u m s t an c e s

. ” S t a t e v

. A s h b y, 823 S.W .2d 166, 169 (Tenn. 1991)

. T h e p re s umption does not apply to the leg al conc lusions
rea ched by

the trial court in se ntencing the ac cused or to the deter

minations made by

the trial cour

t wh ic h a re pr e dic ate d u

po n unc on tr ov e rt e d f

a c ts. State v. B utl e r, 90 0 S. W.2 d 30 5, 31 1 ( Te nn . Cr im. App. 1994); State v. Smit h, 891 S.W .2d 922, 929 (Tenn. Crim. App. 1994) ; State v. Bone stel, 871 S.W .2d 163, 166 (Tenn. Crim. App. 1993) , overr uled on o t h er gro unds by State v. Hooper , 29 S.W .3d 1, 9 (Tenn. 2000)

.
I n conductinga de novo revie w of a sentenc e, this court must consid er (a ) an y evidenc e rec eived at the trial and/or se ntencin g h earing , (b) the pr esente nce r eport, (c ) the princ iples of sentenc ing, ( d) the a

rg uments of counse l relative to sente ncing alternatives, (e) the nature and char acte ristics of the off ense, ( f) a

ny mitigati n g o r enha

nceme nt fac tors, (g ) any statistical-4-

information provided by

the administrative off

ice of the courts as to Tenne ssee se ntencingprac tices for similar offe nses; (h) any statements made by the acc used in his own behalf ; a nd (i) the a ccuse d’s potential or lack of potential for reha bilitation or treatment. Tenn. Code A nn. §§ 40-35-103, - 210 (2006); State v. Ta

y lor, 63 S.W .3d 4 0 0 , 4 1 1 (Tenn. Crim. App. 2001) . The pa rty challeng ing the
se nt ence impos e d b y

the tr ia l c ourt

ha s th e burd e n o f e sta

bli sh ingthat th e se nte nc e is e rr on e ou s. Tenn. Code Ann. § 40-35-401 (2006), S entenc ing Comm ission Cmts.; Ashby , 823 S.W .2d at 169.

I n imposing a specific sentence within a rang e, a trial court “sha ll consider, but is not bound b y ” c er t ai nad v i s o ry

s en t en ci n g gu i d el i n es , i n cl u d i n g t h at t h e “m i n i m u m s en t en ce wi t h i nt h e r an ge of punishment is the sentence that should be imposed” an d that “[t] he sente nce le ng th within the rang e should be a djusted, as appr opriate, by the presence or absence of mitigating and enha

nceme nt fa ct o rs [

. ] ” Tenn. Code Ann. § 40- 35-210(c )(1) , (2). The weig hing of the var ious mit iga

ting a nd enhanc ement fa ctors is “lef t to the trial court’s sound discretion.” State v. Carter , 254 S.W .3d 335, 345 (Tenn. 2008)

. As a Rang e I

standard offe nder, the defe ndant fac ed a potential sentenc e of eig ht to twelve y ear s o nth e a g g r a v a te d

r o b b e r y c o n v ic ti o nan d

tw o to f o u r y e ar s o nth e a tt e mp te d

v o lu n ta ry manslaug hter c onviction. Tenn. Code Ann. § 40- 35-112(a )(2) , (4). The t ri al co urt enha nced the defe ndant’s sentences based on a finding t hat he possessed or employ ed a deadly wea pon during the
co m m i s s i o no f t h e a t t em p t edv o l u n t ary m an s l au gh t er

an d h adn o h es i t at i o nab o u tco m m i t t i n g a crim e w h e n th e r is k to h u ma n li f e w a s h ig h

. I d

. § 4 0

- 3 5

- 1 1 4 ( 9 ) , ( 1 0 )

. T h e c o u rt reje cted the mitigating fac tors asser

ted by the def endant but aw arde d some mitigat i o n b as ed on his lack of a criminal re cord. The court imposed mi d-ra ng e sente nces of

ten y ear s on the ag g ravated robbe ry conviction and three y ear s on the attempted voluntar y manslaug hter c onviction, and a se ntence of eleve n months, twe nty -nine day s on the evading arr est conviction. The court order ed that the fe lony sentenc es be se rved c onsecutively , appar ently acc rediting the State’s ar g u ment that the def endant
was a dang erou s offe nder, id. § 40-35- 115(b)( 4), and the misdemeanor se ntence be ser ved
c on c ur re ntl y fo r a n e ff e c tiv e te rm

of thi rt e e n y e ars

. The de fenda

nt argues that the trial c ourt err ed in enh an ci n g h i s sentence for a g g ravated
ro bb e ry . H e a sse rt s th a t be c a us e the we a

po n disp lay e d w a s a

B B g un , it

wa s n ot a fi re arm or de a dly
wea pon as re quired unde r sec tion 40-35-114(9), a nd as such posed no risk to human life as r equire d
u n d er s ec t i o n4 0 -3 5 -1 1 4 (1 0 ). W e f i rs tn o t e t h at i t i s cl ea r fr o m t h e S t at e’ s ar gu m en tat s en t en ci n g, and the tria l court’s stateme nts, that the court did not use t he defenda nt’s possession or employ ment of a de adly

wea pon to enhanc e his sentenc e for ag g ravated robbe ry

. Reg arding

the tri al co u rt ’s en h an ce m en to f t h e d ef en d an t ’s s en t en ce b as edo nh i s comm ission of a c ri me wh e n th e ri sk

to h uma n li fe wa s h ig h, we con clu de the re c or d d oe s n ot s up po rt its application. A se ntence may not normally

be enha nced ba sed on a f

actor inhere nt in the offe nse, as is this factor, see State v. Clay brooks, 910 S.W.2d 868, 872-73 (Tenn. Crim. App. 1994), but such fac tor may

be applied w hen indi v iduals other than the vic tim may have be en har

med by the commission of the offe nse. See State v. Imfeld, 70 S.W.3d 698, 707 (Te nn. 2002). He re, w hile the-5-

proof showe d that another cler k was in the ba ck of the s tore at the t ime of the robbe ry , there was no ev i d en ce t h at t h e c l er k

wa s en d an ger ed , o t h er

t h an b ei n g i nt h e b u i l d i n g.

Fur ther, the “ wea

pon” involved wa s a B B gun, and it i s q u es t i onable whe ther a BB g un c a us e s a hig h r isk to h uma n li fe . Ce rt a inl y , a

B B c ou ld d a ma g e on e’s ey e or in fl ict pa in, bu t it is hard to c onceive a BB causing a risk to human life. See State v. D onald Ray Shirley , No. 03C01- 9610-CR-00369, 1998 WL 268101, at *21 (Te nn. Crim. App. May 27, 199 8 ), re v erse d on other g rounds by

State v. Shirley , 6 S.W .3d 243 (Tenn. 1999) (noting that the defendant’s use of a B B gun did no t w arr ant a

pp lic a tio n o f e nh anc e me nt f a c tor te n)

. Mo reov e r, our r e se arc h in dic a te s a differ entiation betwee n a pellet gun, which has be en found to be a dea dly weap o n , an d a B B gun. See State v. Ant h o n y L eon Moore , No. W2000-02862-CCA-R3-CD, 2002 WL 1482667, at *6 (Tenn. Crim. App. Fe b. 11, 2002) (citing State v. Anthony Bow en, No. 1107, 1987 WL13690 (Tenn. Crim. App. J uly

13, 1987), per

m. to appeal denied (Tenn. J uly 8, 2002) (noting that the trial cour t fo un d th a t th e de fe nd ant c omm itt e d th e ro bb e ry wi th a d e a dly we a po n, and e ve n th ou g h o ne wi tne ss testified the we apon wa s a B B gun, another witness testified it was a pellet g un which this court had previously

deter mined to be a deadly wea

pon). But see State v. Todd A nthony King , No. 994, 1987 WL 15530, at *3 (Tenn. Crim. App. Aug . 12, 1987), per m. to appeal de nied (Te nn. Dec . 7, 1987) (cit i n g An t h o n y

Bow en and stating that “ this Court has rece ntly held a pe llet or ‘B B’ g un to be a deadly wea pon”).

The State a

rg ues that the de fenda

nt’s act of robbing a store w hile asser ting that he was a

rmed, and by all appea ranc es being ar m ed , cr ea t ed the risk of a g unfig ht had a police office r or a rmed customer e ntere d the s tore. How ever persua sive, such ar g ument is highly speculative and conting ent on evidence not in the re cord. A ccor dingly , we c onclude that no e nhance ment fac tors wer e applicable to the defe ndant’s convic tion for ag g ravated robbe ry and, ther efore, modify

the defe ndant’s sente nce f

or ag g ravated robbe ry

from ten to eig ht y ear s.
The de fenda

nt argues that the trial c ourt err ed in enha ncing his sentence for attempted voluntary manslaug hter ba sed on his posse s s io n o r e mploy ment of a f

irea rm or dea dly

wea pon, Tenn. Code Ann. § 40-35-114(9), a nd commission of a crime w hen the r isk to human life was hig h. I d. § 40-35-114( 10). He asserts that the enha nceme nt was er

roneous be cause the evidenc e wa s “tenuous at best” that he possessed or employ ed Of

fice r Kollias’ wea

pon and no one other than O ffice r Kollias was in the zone of da

ng er dur ing the alterc ation.

As to the defe ndant’s possession of a firea rm or deadly wea

pon, Offic er K ollias testified at trial that the def

endant r emoved the offic er’ s service wea pon from the holster a

nd reme mbere d
se e ingthe g un

c omi ng tow ard his he a d. Of fi c e r K oll ia s a c kn ow le dg e d th a t in an e arl ie r s ta te me nt, when a sked if the de fenda nt ever pointed or attempted to use the g un ag ainst him, he said, “I couldn’t tell, the only thing Iwas thinking about was g etting the g un awa y from him[.] ” Ha

rold Scott, who witnessed the alterc ation, testified that he never saw the de fenda

nt ge t Office r Kollias’ gun, but he explained that his view was par tially impeded by

his ang le in relation to the defe ndant and Of fice r Ko lli a s. I n li g ht o f t

his e vid e nc e , w e c on c lud e tha t th e tr ia l c ourt

did n ot abu se its di sc re tio n in-6-

finding that the def

en d ant possessed a

deadly wea pon during the commission of the attempted voluntary manslaug hter.
Reg ardingthe defendant’s commissi on of an offe nse when the risk to human life wa s high,
we a g ain note that such factor may be applica

ble when individuals other tha n the victim may

have been ha rmed by the commission of the offe nse. See I mfeld, 70 S.W .3d at 707. The e vidence shows that Har old Scott and his mother were in the vi cinity of t he altercation between the defe ndant and Offic er K ollias, such that Scott was ea sily able to rush to Offic er K ollias’ aid. Even if a shot was not actually

fired, othe rs wer e pre sent nea rby during an alter ca t i on that involved a strug g le and a loaded f irea rm. There fore , the trial cour t did not abuse its discretion in apply ing this enha nceme nt fac tor to the defe ndant’s convic tion for attempted voluntar y manslaug hter.

The de fenda

nt argues that the trial c ourt imposed an ex cessive se ntence by applying
e nh anc e me nt fa c tor s no t su pp or te d b y the re c or d. As a dd

re sse d a bo ve , th e tr ia l c ourt

ina pp ro pr ia te ly enhanc ed the de fenda

nt’s sentenc e for ag g ravated robbe ry , and we have modifie d the def endant’ s sentenc e ac cording ly . As we understand, the de fenda nt also argues that the 2005 Sentenc ing A ct runs af oul of Blakely v. Washington, 542 U.S. 296 (2004), and its prog eny

. Our supre me cour t has held that the enha

nceme nt fac tors are advisory only and there fore do not violate Blakely . Carter , 254 S.W .3d at 344. This issue is without m erit.

The defe ndant argues that the trial cour t abused its discretion in not applying the mitigating fac tor that he did not have a prior r ecor d. The rec ord shows that the court reje cted the def endant’ s arguments as to the statutory mitigating fac tors. Howeve r, the re cord a lso shows that the court
a c kn ow le dg e d th a t th e de fe nd ant d id n ot h a ve a recor d a nd sa id “ [t]he re ha s g ot t o b e so me mitigation . .

. for that.” L ater , in arrivingat the sente nce, the court said that it was mitig ating based
on the de fe nd ant b e inga

fi rs t of fe nd e r a nd havin g no t be e n in any

pr e vio us tr ou

ble . T he re fo re , th is issue is without m erit.

Th e de fe nd ant a lso c ha lle ng e s th e tr ia l c ourt ’s imp os iti on of con se c uti ve se nte nc e s. Tenne ssee Code A n notated sec tion 40-35-115 provides that a trial court may , in its di scre tion, i mp o s e c o n s e c u t i v e s e n t e n c i n g w h e n i t f i n d s an y o n e o f

a n u m b e r o f d i f f e r e n tf a c t o r s b y a preponde ranc e of the evidenc e, including that the defendant is a dange rous offender whose be havior indicates little or no re g ard for human life and no hesitation about c ommitt ing a crime in whic h the risk to human life is high. Tenn. Code Ann. § 40-35-115( b)(4) . When a trial cour t bases conse cutive sentenc ing upon its cla ssification of the de fenda nt as a da n gerous of

fende r, it is required to make further finding s that the ag g reg ate leng th of the defendant’ s sentence rea sonably relates to the
sever ity of his offe nses and is ne cessa ry to protect the public f

rom furthe r cr iminal conduct of the defe ndant. State v. L ane, 3 S.W.3d 456, 460-61 (Tenn. 1999); State v. Wil kerson, 905 S.W.2d 933, 937-38 (Te nn. 1995).

The trial c ourt order ed that the defe ndant’s sente nces f or ag g ravated robbe ry

and attempted voluntary manslaug hter be serve d consec utively presumably

upo n t he State’s a

rg ument that the defe ndant was a

dang erous of

fende r. The trial court did not state its rea soning on the rec ord or make-7-

the additional Wilkerson finding s. Howeve r, ex erc ising our pow er of de novo revie w, we c onclude that the def

endant is a da

ng erous of

fende r with no reg ard f

or human li fe an d no hesitation about committing a c rime whe n the risk to human life wa s high.

Th e e vid e nc e sh ow s that the de fe nd ant fo ug ht wi th Of fi c e r Ko lli a s a

nd g a ine d c on tr ol o f h is
wea pon, despite having a number of opportunities to flee

. The a ltercation, which involved a loade d
wea pon, took place in the vi cinity of t wo innocent by standers a nd resulted in Of

fice r Kollias’ be ing t r an s p o rt e d

t o t h e e m e r g e n c y r o o m

. O f f i c e r K o l l i a s w a s h i t b y t h e d e f e n d an t“ u p w ar d s o f t w e n t y” tim e s p r im ar il y o n th e to p an d b a c k o f h is h e a d w h il e h e w a s o n th e g r o u n d

. T he def endant apolog ized for his actions but expressed he did not fe el that he ha d rea lly inju red any one. In our view, an a g g reg ate se ntence of ele ven y ear s for the thre e off enses in this case is reasona bly related to the sever ity

of the offenses and is nece ssary to protect the public f

rom a de fenda

nt who eng ag ed in acts of violenc e ag ainst both a citizen and a police office r an d re p ea t ed ly attacke d the police office r eve n though he had numer ous chanc es to esca pe.
CO NC LU SION

Ba sed on the for eg oing a

uthorities and re asoni n g, we m o dify the def endant’ s sentence for ag g ravated robbe ry

to eig ht y ear s and af

firm the sente nces imposed by the trial cour

t i n al l other respe cts. The de fenda

nt’s eff ective se ntence is eleven y ear s in the Depa rtment of Corre ction.

___________________________________ ALAN E. G LENN, JUD GE