### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ma y 6, 200 8

STATE OF TENNESS EE v . TRUMAINE W INT ERS

Appeal from t he Criminal Court for Shelb y County No. 04-04042 Jame s M. Lamme y, Jr., Judge

No. W2007-00529-C CA-R 3-CD - Filed Jul y 24, 2008

The Appe llant, Trumaine Wi nters, appeals hi s convictions and the resulting se ntencingdecisions of the Shelby

County Criminal Court. After a jur y trial, Wint ers wa s found g uilty of first deg ree murder and agg ravated robbery

. Wint ers was sentenc ed to conse cutive sente nces of life imprisonment for first deg ree murder a

nd twelve y ear s for a g g ravated robbe ry . On appe al, Winters argues: (1) that the evidenc e wa s leg ally

insufficient to sustain his convictions; (2) that the t rial court “er red in fa iling to suppress the identification and subsequent identification testimony of S tate’s witnesses”; (3) that the trial cour

t erre d in its application of enhanc ement fa ctors at s en tencingfor the c onviction of ag g ravated robbe ry ; and (4) that the trial court e rre d in imposi n g co n s ec u t ive sentenc ing. A fter revie w, we c onclude that issues (1), (2) and (4) are without merit. Howeve r, with reg ard to issue (3)
, we conclude, following plain err or review, that Wint ers’ sentenc e for ag g ravated robbe ry

must be

reve rsed in lig ht of Blakely v. W ashington , 5 42 U. S. 2 96 , 1 24 S. C t. 25 31 (2 00 4) , a nd the c a se
rema nded for rese ntencing

.
Te nn. R . A pp. P . 3 ; J udgm e nt s o f t he Cr im ina l C our t A ff ir me d in P ar t; Re ve r se d and Rem anded i n Part

D AVI D G. H AYES , S R .J., delivere d the opinion of the court, in which D AVI D H. W ELL ES and J AM ES C UR W OOD W I TT , J R ., JJ., joined.

Ke vin E. Chi ldr e ss, Me mph is, Te nn e sse e , f or the Ap pe lla nt, Tr

uma ine W int e rs

.
Rob e rt E. Coo pe r, Jr
., At tor

n e y G e n e r a l an d

R e p o r t e r ; D a vidH. Fin dle y, As sis ta nt A tto rn e y G e ne ra l; William L. Gibbons, District Attorney Genera l; Betsy Carnesa le and Gr eg Gilbert, Assistant District Attorneys Ge nera l, for the Appe llee, State of Te nnessee

.
OP IN ION

F actual Background & P roce dural Hi story

On June 10 , 2 00 4, a

She lby County g ra nd jur y ind ic te d th e Ap pe lla

nt f or on e c ount o f f

ir st deg ree murder, a s defined by statute at Tenne ssee Code Annotated se ction 39-13-202( a)( 2); and oneThe i n d i ct m en t al so j o i n ed R eg i n al d Sh i el d s as a co-d efen d an t

. U p o n m o t i o n of t h e A p p el l an t , t h e A p p el l an t ’s 1

tria l w a s se v e re d fro m th a t o f S h ie ld s, w h o tes tified o n b e h a lf o f th e S ta te in th is c a se

.
-2- count of a g g ravated robbe ry , as def ined by statute at Tenne ssee Code A nnotated sec tion 39-13-402. 1 The indictment allege d that the offenses were committ ed between J anuar y 18 and J anuar

y 21, 2004. Th e A p p e ll a n t w a s d e c la

r e d in d ig e n t an d a

p p o in te d c o u n s e l. H e e n te r e d p le a s o f n o t g u il ty , and a jury trial was he ld on November 27-30, 2006.

The victim, Marc us Crawf ord, was twenty -eig ht y ear s old when he was fatally shot during the cour se of an ag g ravated robber y in Shelby County

. At trial, the State ca lled ey ewitness L aDonna Har ris, who testified that on January 19, 2004, she resided in an apartment l ocate d at 268 Tillman in Memphis with her son and daug hter a nd that the victim was her boy friend. Ms. Ha rris re called that sh or tly be fo re mid

nig ht o n Janu ary 19 , the tw o c hil dr e n we re in o ne be dr oo m of the a pa rtme nt, and she a nd the victim were in the adjac ent master be droom when the y hear d a knock on the door. Mr. Crawf

ord went into the living room to answer the door, a

nd a fe w minutes later, Ms. Ha rris left the be dr oo m and

wa lke d d ow n th e ha ll t o see Mr . Cra wf or d ta lki ngto t

wo me n in

the liv ingro om. Ms. Harr i s d i d n o t know the name s of the two men at the time, but she rec og nized them from the

n eig hborhood. On cr oss-examination, Ms. Harris testified that the two men ha d also visited her apar tment that after

noon, afte r s h e arrived home f rom work, a

nd that they

inquired as to the wher eabouts of Mr . Crawf ord. Ms. Harr is describe d o ne of the men as “ tall and skinny ,” and the other man a s “short and da rk-skinned.” During her te stimony , Ms. H arr is identified the Appellant as the “ tall and skinny ” man. She state d that the Appellant wor e a “g ray hooded sweater w ith blue

wr iti ng ” duri ngthe ro bb e ry , a nd that th e sh or

te r m an w or e a “red ho od e d s we a te r. ” Ms. Ha rr is testified that she saw

the Ap p ell ant pointing a g un at Mr. Craw ford’ s head, a nd that when the Ap pe lla nt s aw h e r e nte r t

he ha llw ay , h e or de re d e ve ryon e to g o b a c k to the ma ste r be dr oo m. M s. Har ris and the victim went ba ck to the bedr oom as instructed, a nd the two men followe d them.

M s

. H ar r i s t e s t i f i e d t h a t , o n c e t h e y w e r e a l l i nt h e b e dr o o m , t h e t w o m e nd e m an d e d m o n e y, and the shorte r m an pinned a strug g ling Ms. Ha rris behind the be droom door “tr y ing to smoosh [sic] [her]” w h il e th e A p p e ll an t p o in te d th e g u na t M r

. Cr aw f

o r d b e s id e th e b e d

. H ar

r is to ld th e m t hat they did not have any

money to give them, but that he r purse was on the bed. The short man shook the purse a

nd $80 in cash fe ll out, which he t o o k an d put in his pocket. Harr is testified that the Appellant kept p o i nting the gun at the victim, and that the victim was turne d so that his back wa s fac ing the Appellant. Ha rris testified that the A

ppellant then shot Mr. Craw ford in the back. She

rec alled that “they

tussled for a c ouple of minutes,” dur ing w hich time the g un went off ag ain, leavinga bullet hole in her d re s s er

. S he stated that the men then dra g g ed the victim out of the bedroom a

nd into the living room. Ms . Har ris stated that she he ard the g un being fired a g ain, and she later observe d that a bull et had g one into the ce iling. Ms. Har ris stated that the men the n drag g ed the victim outside, and that she ca lled 911. She hear d the victim outside scre aming for help, and she

ra n o uts ide and

saw the vic timlyingon the po rc h of an a pa rtme nt ac ro ss the str e e t, wh e re a fa mil y friend of the Appellant lived. The police arr ived at the sc ene a pproxi mately

fiftee n minutes later. Ms. Ha rr is t e sti fi e d th a t sh e ide nti fi e d th e Ap pe lla nt a s th e sh oo te r a ft e r v ie wi nga ph oto g ra ph ic lineup on J anuar

y 23, 2004.-3-

Audra Woods, t he fifteen-y ear -old daug hter of Ms. Har ris, testified that she wa s eleve n y ear s old in J anuar

y of 2004. She testified that she a nd her f ive y ear old half-br other, Mar cus, Jr., who was the son of Ms. Har

ris and Mr. Cra

wford, w ere in their own bedroom the entire time that the two men

we re in t he ho us e on

the e ve nin g of Janu ary 19 , 200 4. Mis s Woods te sti fi e d th a t sh e c ou ld s e e int o the living r oom from the foot of her bed, and that she saw the A ppellant holding a

g un to the victim’s head. Miss Woods testified that the g unman wore a g ray hooded sweatshirt, and that the other man

wore a re d hooded swe atshirt. Miss Woods te stified that she saw the two me n and her mother and the vic timg o in to t

he ma ste r b e dr oo m, t

hat sh e he ard

tw o gun sh ots , a

nd that sh e g ra

bb e d h e r l itt le brother a nd hid in the closet. She testified that she s aw t h e men dra g g ing the victim down the hallway , and that she he ard a not h er gunshot when the men w ere in the living room. Miss Woods stated that af

ter the two men left the house , she we nt to the living room, looked out the scr een door
, and saw the me n dra g the vic tim a c ro ss the str e e t and le ave him on the po rc h o f a

n a pa rtme nt. Mis s Woods t estified that she spoke with the 911 operator afte r her mother ca lled to report the shooting and robbery

. Miss Woods subsequently identified t he Appellant as t he man she saw holdinga g un to the victim’s head, a fter she viewed a photogr aphic lineup on January 23, 2004.

Andre w B rown testified that he was an office r with the Memphis Poli ce D epar tment. Brow n responde d to the crime scene at approximately 11:35 p.m. He observe d the victim ly ing on the porch of the a partment c omplex acr oss the street f rom 268 Tillman
, an d he re called that the victim had been shot onc e in the b ac k

. Offic er B rown testified that based upon his own experienc e and the location of the gunshot wound, he thoug ht Mr. Crawf ord wa s in imminent dang er of death. He a sked the victim who shot him, and the vi ctim responde d, “I don’t know right now.” Offic er B rown tried to calm the victim until the ambulance a rrived, a nd he later

lear ned that the victim died.

Al fr e d G ard

ne r l ive d n e xt doo r t o M s. Ha rr is a nd he r ch ild re n. He te sti fi e d tha t th e vic tim was pre sent at the house pe riodically . On the night of J anuar y 19, 2004, he awoke to the sound of doors beingslammed and looked out his window, which w as “f og g y ” fr om the cold air outside. Gar dner state d that he obser ved two men c ross the stree t and g et into the passeng er side of a par ked

ve hic le , w hic h h e de sc ri be d a s a “ sma ll m ini va

n. ” Ga rd ne r state d that “ on e of

[the me n] w a s a

lit tle ta lle r t ha n th e oth e r o ne .” He te sti fi e d th a t he sa w the ve hic le pu ll aw ay , an d tha t he sa w M s. Ha rr is outside talking on the telephone.

J ohn H u d s o n , w h o li v e d

a t t h e a p artm e n t i nf

r o n t o f w h ic h th e v ic ti m w a s f

o u n d
, te s ti f

ied that he was a longtime family friend of the victim. On the nig ht of the shooting, he hear d knocking at his door, and upon opening the door, saw the vi ctim ly ing on the porch, bleeding . Hudson testified that the victim c alled him by his nic kname, “Unc le J .R.,” and said, “Call the ambulance

. I ’ve be en shot.” Hudson went inside the a p ar t m en t and ca lled 911. Hudson rec alled noticing a cut on the victim’s arm. Hudson stated that one of his neighbors provided the vi ctim with a blanket for c omfort while they

waited f or an a mbulance.

Se rg e ant B arr

y Ha nk s o f t he Me mph is Po lic e De pa rtme nt t e sti fi e d tha t he wa s a ssi g ne d to investigate the homicide. He visited the crime scene and spoke with Ms. Har ris and h er daug hter reg ardingthe circ umstances of the cr ime and possible suspects i n t h e case. Serg eant Ha nks-4-

a sse mbl e d s e ve ra l ph oto g ra ph ic lin e up s o f su sp e c ts. Duri ng he r vie wi ng of on e of the se lin e up s, Ms. Har ris identified Reg inald Shield s as the man w ho held her ag ainst the bedroom wa ll and took money from her purse. Ser g eant Ha

nks testified that he broug ht Shields in f or questioning, a

nd that Shields admitted he was prese nt at t he robbery
, but that the Appellant was responsible for shooting the victim. Serg eant Ha

nks rec alled that Shields “minimiz ed his involvement” in the c rimes but “knew how much money

was take n out of [ Ms. Har ris’s] purse,” and that Shields claimed that a third

man had been involved. Serg eant Ha nks testified that he pre pare d another photogr aphic lineup of suspects, which c ontained a phot o gra p h o f t he Appe llant and five othe r individuals, and that on J anuar y 2 3 , b o t h M s

. Har

ris and her

daug hter identified the Appellant as the shooter fr om the photogr aphic a

rra y

. At trial, Reg inald Shields testified that he knew the Appellant from their having be en “in a nd out of juvenile fa cilities toge ther for about five [or] six y ear s.” Shields stated that on the date of the robber y and murde r, he sa

w the Appe llant w ith two other people in the neig hborhood in a dark blue For d Ex plorer. He rec alled that the Appellant wore a g ray hooded sweatshirt. Shields c laimed that the App e ll an t in f

o r me d h im o f h is in te n ti o n s to r o b th e v ic ti ms , an d th a t h e “ p u ll e d a g un on [Shie lds ]” a

nd sa id S hie lds wa s “ g oin g to b e the watc ho ut. ” Shi e lds te sti fi e d that he wa lke d w ith the Appellant and an unidentified third man, w ho alleg edly wore a re d sweatshirt, to Ms. Harris’s residenc e, and that they knocked on the door. Shields stated that when the victim opened the door
, the Appellant we nt into the residenc e with a g un, that the “third man” went in next , and that he w as the la s t p e r s o n to e n te r th e r e s id e n c e

. Sh ie ld s s a id th a t w h il e th e y s to o d in th e li v in g room, the Appellant put the g un in the victim’s fac e and de manded marijuana. When the victim responded that he had no marijuana
, the men sear ched the residenc e. Shields testified that the Appellant took the victim to the master bedr oom while he re mained in the living r oom. Shields st ated that he hear d two g unshots a

f e w mi n u te s late r

. Sh ie ld s s a id th a t t h e o th e r tw o me ndr a g g e d

th e v ic ti m o u t o f

the bedroom, a

nd that he helpe d them dragthe victim to the apar tment a cross the street. Shields testified that he over

hear d the Appellant a

nd the “other

g uy ” say they had stolen $80 and “ a pound of w eed.”

Offic er D avid Pay

ment testified that he wor ked with the Crime Scene I nvestig ation unit of the Memphis Police Depa rtment, and he descr ibed t he bull et damage and bloodstains he obser ved ins ide Ms. Ha

rr is’ re sid e nc e , p ho tog ra ph s o f w hic h w e re a dmi tte d in to e vid e nc e . T he State conclude d its case with the t estimony of Dr. O.C. Smi th, who was the me dical examiner in Shelby County until Februa

ry of 2004, and w ho was a dmitted by the trial court as an expert in the field of fore nsic patholog y . Dr. Smith testified that he perf ormed the autopsy on the vi ctim, Mr. Crawf ord. Dr. Smith opined that the victim’s death was a homi cide, caused by a gunshot wound to the bac k and

re s u lt in g in te r

n a l b le e d in g

. D r

. Sm it

h s tate d th a t p o w d e r b u r

n s o n th e v ic ti m in d ic a te d that the

muzz le of the gun was within two fee t from the victim at t he ti me i t was fired. Dr. S mith related that the bullet, which he believed to be between a .22 and .45 ca liber in size, entere d the victim’s back, tr a ve le d to wa

rd his fr on t and

do wnwa rd , ca us ing inj ur ie s to his lung , d ia ph ra g m, p anc re a s, and

sma ll intestine, and that he f

ound the bullet in the victim’s abdominal cavity . Dr. Smith further testified that the victim had another wound to his left fore arm, c aused by something w ith a sharp e dg e, such as metal or g lass.-5-

Th e de fe ns e c a lle d Se rg e ant E rn e stine Da vid so n o f t

he Me mph is Po lic e De pa rtme nt a s a witness. Serg eant Da

vidson stated that, at ap p ro x i mately 2:00 a.m. in the ear ly

morning afte r the murder and robber

y , Ms. H arr is initially did not want to c ome to the homicide burea u and talk to the police, but that she did come to the police station a fe w hours later that morning . L ieutenant William Woo da rd , a lso of the Me mph is Po lic e De pa rtme nt, te sti fi e d th a t he re c e ive d a p ho ne c a ll f ro m Ms

. Har ris on the af

ternoon a fter the crimes we re c ommitt ed, and t h at M s

. Ha rr i s told him that a man

name d “ To ny” wa s r e sp on sib le fo r t he sh oo tin g. L ieu ten ant Wo od ard state d th a t it

wa s h is impression that Ms. Harr is had rece i v ed t his information by speakingwith people in her neig hborhood. L ieutenant Woodard te stified that he learned that the name “Tony” mi g ht have be en associate d with Reg inald Shields, whose middle name he be lieved wa s “Antonio.”

Ba sed upon the fore g oing e vidence , the jury found the Appe llant guilty of first deg ree felony murder a nd ag gra vated r obbery . As provided by law, the Appe llant rec eived a sentenc e of life imp ri so nme nt f

or the fi rs t de g re e mur de r c on vic tio n. A se nte nc inghe ari ngwa s h e ld w ithre g a rd to the ag g ravated robbe ry

conviction, and the A

ppellant was or dere d to s er v e a term of twelve y ear s in the Depa

rtment of Corre ct i on, as a Rang e I , standard of fende r, to run conse cutively to the life sentenc e. The Ap p el l an t fi l ed a motion for new trial, which wa s denied by the trial cour

t. The Appellant timely

filed a notice of appe al.

Ana lys is

I. Su ff iciency of the Evid ence

Th e Ap pell ant a

rgue s th a t th e e vid e nc e a t tr ia l w a s le g a lly ins uf fi c ie nt t o s up po rt

his convictions for a g g ravated robbe ry and first deg ree felony murder. H e alleg es numerous inconsistencies in the e y ewitness testimony of both Ms. Harr is and her da ug hter at trial in support of his position. Th e Ap p el l an t concedes that “ the question of identity is traditionally

held to be a matter of f

act” for determination by the jury , howeve r, he submits that “the e y ewitness testimony prese nted by

the State is inherently

untrustworthy .”
The Appe llant argues that Ms. Har ris’s descr iption at trial of the gunman’s clothing as being a g ray h o o d ed sweatshirt, with blue writing, wa s inconsistent with her testimony at a pr eliminary hear ing that the sweatshirt was blue, with g ray writing . He a lso questions Ms. Harris’ de scription of the g unman as “ tall and skinny [,] ” citing the testimony of her neig hbor Gardner , who desc ribed the su sp e c ts as be ing “ a

bo ut fi ve [fo ot] some thi ng ” in he ig ht. Th e Ap pe lla nt f ur the r a rgue s th a t Ms

. Har ris’ and Miss Woods’ testimony that they saw the assailants dra g g ing the victim across the stre et was inconsistent with Gar ner’ s rec ollection that he did not se e the suspects drag g ing a person whe n he loo ke d o ut h is w indo w. Th e Ap pe lla nt f ur the r q ue sti on s Ms . H arr is’ “ va g ue ” te sti mony a s to wh e n s he be lie ve d s he ha d s e e n th e su sp e c ts p re vio us ly in t he ne ig hb or

ho od , a s it

va ri e d f ro m a
numbe r o f m on ths , to “ a

c ou ple of we e ks ,” to t

he a ft e rn oo n of Janu ary

19 . T he Ap pe lla

nt c ite s Ms

. Ha rris’ initial statement to police, that she be lieved a ma n named “ Tony ” wa s responsible for the murder, in c halleng ing her identification of the Appe llant as the g unman. As to Miss W oods, who also identified the Appellant as the gunman, he argues t hat her testimony that she obser

ved him, from-6-

her be dro o m, in th e li v in g r o o m h o ld in g a g u n to th e v ic ti m’ s h e a d is c o n tr a d ic te d b y Offic er Pay ment’s testimony

that it would have been difficult to see f rom the childre n’s bedr oom into the living room. The Appellant further argues that Miss Woods’ testimony that she “pe ek[ed] around the cor ner” and looked into “a

lit t l e cr ack” in the door to the master bedroom a

nd observe d the crimes takingplace was inconsistent with Ms. Harris’ testimony that the master be droom door wa s open. The Appellant ar g ues that the testimony of Reg inald Shields identify ing the Appellant as the shooter is contra dicted b y h i s writing the name “ Terma ine,” r ather than his actua l name of

“ Tr umai ne, ” on

the pic tur e of

the Ap pe lla

nt s ho wn to S hie lds by

po lic e duri nga

ph oto g ra ph ic lineup. The Appe llant also argues that Shields’ testimony descr ibing e vents taking place within the master be droom wer e inconsistent with his testimony t h at h e st ay ed in the living r oom, while the Appellant and the alleg ed third assa ilant took the victims i nto the bedroom.

In our r eview of

the issue of suff

iciency of the evidenc e, the r eleva nt question is “whether
, afte r viewing the evidenc e in the light mos t favora ble to the [State], any ratio na l tr ie r o f f a c t c ou ld have f ound the essential elements of the crime beyond a rea sonable doubt.” J ac k so n v . V irg ini a , 443 U. S. 3 07 , 3 19 , 9 9 S. Ct. 27 81 , 2 78 9 ( 19 79 ) ( e mph a sis in o ri gin a l) ; see also Tenn. R. App. P. 13(e)

. Moreo ve r, the Sta te is e nti tle d to the str on ge st l e git ima te vie w o f the e vid e nc e a nda ll r e a so na ble infere nces which may be drawn ther efr om. Sta te v . H ar ris , 839 S.W.2d 54, 75 (Tenn. 1992) . The weight and c redibility of the witn es s es ’ t es t i mony are matters entr usted exc lusively to the jury as triers of f act. State v. Str ickland , 885 S.W.2d 85, 87 (Tenn. Crim. App. 1994)

. These r ules are applicable to findings of guilt predicated upon dir ect e vi d en ce , circ umstantial evidence , or a combination of both. Sta te v . M atthe ws , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990)

. A j ury c on vic tio n r e mov e s th e pr e su mpt ion of inn oc e nc e wi th w hic h a

de fe nd a nt i s in iti a lly cloake d and re place s it with one of guilt, so that on appea l, a convicted de fenda nt has the burde n of demonstrating that the evidence is insufficient. Sta te v . Tu gg le , 639 S.W.2d 913, 914 (Tenn. 1982)

. In dete rmining the sufficienc y of the e vidence, this court should not reweigh or ree valuate the evidenc e. Sta te v . P hil

po tt , 882 S.W.2d 394, 398 (Tenn. Crim. App. 1994) (citing State v. Cabbage
, 571 S.W.2d 832, 836 (Tenn. 1978) ).
Aggra vated r obbery is statutorily defined a s robbery acc omplished with a deadly we apon or by dis play o f a ny art ic le us e d o r fa sh ion e d to lea d the vic tim to r e a so na

bly be lie ve it t o b e a

de a dly

wea pon, or whe re the victim s u ff er s s erious bodily injury. T.C.A. § 39-13-402(a ) (2003) . The of fe ns e of fi rs t de gr e e mur de r, a s c ha rg e d b y th e ind ic tme nt in thi s c a se , is de fi ne d b y s ta tut e a s a killing of another committed in the per petra ti o n of or attempt to perpetra te the crime of robbe ry. T.C.A. § 39-13-202( a)( 2) (2003)

. Upon thorough re view of the rec ord, we conclude that the evidenc e wa s more than suffic ient to convince a rational juror beyond a reasonable doubt that the Appellant committed the crimes for which he w as convic ted. The A ppellant’s entire argume nt on this issue is, nota bly, premised upon

a n a lle ge d la c k o f cr e dib ili ty as to ey e wi tne sse s ca lle d by the pr os e c uti on in thi s c a se . W e re ite rate that the weight and c redibility of the witnesses’ te stimony are matters entrusted exclusively to the j u ry as triers of fa ct. Strickland
, 8 8 5 S. W

. 2 d a t 8 7

. A ju r y v e r d ic t ap p r o v e d b y the trial judge

acc redits the State’s witnesse s and re solves all conflicts in fa vor of the State. Id. (citing S t a t e v.T h e A p p e llan t’s a rg u m e n t i s a c tu a lly fra m e d , “ . . . t h a t sa id id e n ti f ic a tio n a n d su b se q u e n t t e stim o n y

. . . 2
[ w as ] s o s ug ges t i ve as t o gi ve r i s e t o a ver y s ub s t ant i al l i kel i ho od of i r r epar abl e m i s i dent i f i cat i on

. ” Th e A pp el l ant t hen
p ro ce ed s t o ch all en g e th e c red i b i l i t y o f t h e p ro sec u t i o n w i t n esse s.

-7- Williams , 657 S.W.2d 405, 410 (Tenn

. 1 9 8 3 ))

. Furthermore , it is well-established that the ide nti fi c a tio n o f a

de fe nd a nt a s th e pe rs on wh o c omm itt e d th e of fe ns e fo r w hic h h e is o n tria l is a question of fa ct for the deter minati o n of the jury upon c onsideration of a ll competent proof. Strickland , 885 S.W.2d at 87 (c iting Sta te v . Cr awf or d , 63 5 S

. W. 2 d 7 04, 705 (Tenn. Crim. App. 1982)). The overw helming proof pre sented a t trial was lega lly sufficient to establish the State’s theory that the A ppellant participated in robbing the victims at gunpoint a nd fired the fata l gunshot into Mr. Crawfor d’s bac k. Acc ordingly, this is sue is without merit.

II. Adm iss ibil it y o f P r e tr ialIde nt ific at ion and I de nt ific at ion Te st im ony
The Appellant next argues t hat t he trial court erre d in failing to suppress the identific ation and subseque nt identification testimony of witnesses f

or the State. Be fore trial, the Appe llant filed a motion to suppress Ms. Har ri s ’ and her daug hter, Miss Woods,’ pretrial identifications of the Appellant as the shooter of Mr. C raw ford. An evidentiary hear ing was held on the m otion at which Serg eant Ha

nk s an d the two ey ewitnesses pr ovided testimony in this reg ard. In an ef

fort to ar g ue ag ains t the constitutionalit y of the trial c ourt’s admission of these e y ewitnesses’ pretria l identifica t i o n s o f t he Appe llant as the sing le g unman during the robbe ry and cor responding te sti mony a t tr ia l, t

he Ap pe lla

nt a pp e ars to r e pr ise his pr e vio us argume nts c on c e rn ingthe c re dib ili ty of the pr os e c uti on

e y e wi tne sse s, su

bmi tti ngthat th e ide nti fi c a tio ns we re un re lia ble un de r t

he tot a lity of the c ir c ums tanc e s. 2

The finding s of fa ct made by the trial court at the hear ing on a motion to s uppress a

re binding on this court unless the evidenc e conta ined in the record preponder ates a g ainst them. Sta te v . R e id
, 2 1 3 S

. W

. 3 d

7 9 2 , 8 2 5 (T en n

. 2 0 0 6 ) ( ci t i n g Sta te v . R os s , 49 S.W .3d 833, 839 (Tenn. 2001) ). Absent

a sh ow ingby

the de fe nd ant t

hat th e e vid e nc e pr e po nd e ra te s a g a ins t th e jud g me nt o f t he tr ia l c ourt , this court must defer

to the ruling of the trial c ourt. Re id
, 2 1 3 S

. W

. 3 d at 8 2 5 (c i t i n g State v. Cribbs
, 967 S.W .2d 773, 795 (Tenn. 1998)
, cert. de nied , 525 U.S. 932, 119 S. C t. 343 (1998)).
The United States Supre me Court established a two- part test to a ssess the validity of a pr etrial identification in Ne il v . B igge rs , 409 U.S. 188, 199-200, 93 S. Ct. 375, 382 (1972). Specifica lly , the

c ourt mus t de te rm ine (1 ) w he the r t he pr oc e dure us e d to ob ta in t he ide nti fi c a tion wa s und uly sug g estive and (2) if the identification wa s unduly sug g estive, the c ourt must determine, unde r the totality of the c ircumstance s, whether the i dentification is nevertheless r eliable. Id. A finding that the pre trial ident i fi ca t ion was unre liable will also require the exclusion of a subsequent in-c ourt identification by the same w itness. Sta te v . Phil po tt , 882 S.W .2d 394, 400 (Tenn. Crim. App. 1994).

At the hea

ring o n t h e Ap p ellant’s motion to suppress, Serg eant Ha nks testified that he interviewe d Reg inald Shields two or three da y s after the cr imes were committed, and Shields ide nti fi e d th e Ap pe lla

nt a s th e sh oo te r o f M r. Cr awf or d. Se rg e ant H ank s su

bs e qu e ntl y

c on ta c te d M s. Har ris and aske d her to c ome to the homicide off ice an d v i ew a “photo sprea d for identific ation.”-8-

He described the prepa

ration of a “photo sprea d,” st ating that he gathe red “six photos of people like and similar in descr iption . .

. rac e, sex, ag e, phy sical char acte ristics[,] ” and used a computer pr og ram to randomly

place the photog raphs into position. He furthe r desc ribed the st an d ard procedur e for pr e pa ri ng a wi tne ss to vie w a ph oto sp re a d, wh ic h inc lud e d g ivi ng the m, and re a din g to the wi tne ss
or a lly , a fo rm a dv isi ngthe wi tne ss

I t e xpla ins that . . . they ’re g oin g to l oo k at a ph oto sp re a d. I t’ s g oin g to c on ta in people similar in desc ription. Nobody is goingto give them a hint as to . . . which position t he possible suspect i s

. I t ex plains that the photo sprea d may not even contain a suspe ct in . . . whateve r the c rime suspec ted is.

Se rg e ant H ank s tes ti fi e d th a t bo th M s. Ha rr is a nd Mis s Woo ds a

pp e are d to un de rs tand

the se direc tions on the morning of J anuar y 23, 2004, approximately four day s after the shooting, a

nd that he did not sug g est to them which photog raph was o f t he Appe llant. Serg eant Ha nks testified that both witnesses identified the Appe llant as the g unman. At the conc lusion of t h e h ear ing, the trial court de nied the Appe llant’s motion to s uppress the ide nti fi ca t i o n s , stating that it saw “nothing unduly sug g estive in the phot o sprea ds” and that “they all appea r similar in ag e and c omplex ion.”

Our re view of the photo spread use d i n this case lea ds us to ag ree with the trial court’ s finding that the photog raphs we re of men all ver

y simil ar in ap p ea ra n ce

. We conclude that the

e vid e nc e do e s no t pr e po nd e rate a g a ins t the fi nd ing of the tr ia l c ourt tha t th e ph oto g ra

ph ic c omp os ite used by the police in this case was not unduly sug g estive. Despite the Appellant’s arg ument that the pretria l identifications wer e unre liable when viewed under the “totality of the c ircumstance s,” he ha s fa ile d to c ite pr e c e de nt su pp or tin g the pr op os iti on that su c h an inq uir y is re qu ir e d wh e n th e de fe ns e has fa iled to make a show ing that the photo composite i s unduly sug g estive. To the c ontrary , our
re fl e c tio n u

po n T e nn e sse e c a se law o n th is i ssu e de mon str a tes th at our c ourt s h a ve fo un d it

unnece ssary to addre ss the “totality of the c ircumstance s” prongof the Ne al v . B igge rs te st w he n it has bee n deter

mined that the pre trial identification wa s not unduly sug g estive. See, e .g. , S tate v. Re id
, 21 3 S.W. 3d 79 2, 82 5 ( Te nn . 2 00 6) ; State v. Jose E. Molina , N o. M2 00 5- 01 03 3- CCA -R 3- CD (Tenn. Crim. App. at Nashville, J uly 25, 2006). The Appellant is not entitled to r elief on this iss ue.

III . Se nt e nc ing
The Appe llant was sentenc ed to twelve ye ars’ imprisonment for th e aggr avate d robbery
c on vic tio n, the ma xim um s e nte nc e a llo we d for a Ra ng e I, sta nd ard of fe nd e r c on vic te d o f a

Cla ss B felony. See T.C.A. § 40-35-112( a)( 2) (2003) . This sentence was order ed to r un consec utively to the life sentenc e for

first degre e murde r. The A ppellant ar gues that the trial court e rre d in sentencing him to a term of twelve year s for a ggravated robbe ry. He further argue s that the trial court erre d by running this twe lve-ye ar sentenc e consec utively to the life sentenc e resulting fr o m h i s conviction for f irst degre e murde r.

W he n a n a c c us e d ch a lle ng e s the le ng th, ra ng e , or the ma nn e r o f s e rv ic e of a se nte nc e , th is court ha s a duty to conduct a de novo revie w of the se ntence wi t h a pre sumption t hat the de te rm inatio ns ma de by the tr ia l c ou rt are c or re c t. T .C. A. § 4 0- 35-4 01 (d ) ( 20 03 ); State v. Ashby
,In fa irn e ss t o th e tria l c o u rt, a t t h e ti m e o f th e se n te n c in g h e a rin g in th is c a se , St at e v

. G om ez , 163 S. W

. 3d 632 3 (T en n

. 20 0 5 ) ( “ G o m ez I ”)
, w as cont r ol l i ng ca s e l aw. O ur s upr em e cour t ’ s de ci s i on i n St at e v

. G om ez , 239 S. W

. 3d 733 (T en n

. 20 0 7 ) ( “ G o m ez I I ”)
, ove r r ul i ng G o m ez I , w a s re le a se d o n O c to b e r 9 , 2 0 0 7

.

N o w ai ver of a B l akel y claim i s i n clu d ed w i t h i n t h e re co rd b efo re u s. 4

-9- 823 S.W.2d 166, 169 (Tenn. 1991). This presumption is “conditioned upon the af firmative showing in the rec ord that the trial c ourt con s i d er ed t he sente ncing principles a nd all rele vant fa cts and circ umstances.” Ashby , 823 S.W.2d at 169.

a. Appli cation of E nhan cem ent F actor s

At sentenc ing, the trial court a pplied the following eight enha nceme nt fac tors: (2) the de fe nd a nt h a s a

pr e vio us his tory o f c ri min a l con vi c tio ns or c ri min a l be ha vio r i n a dd iti on to tho se
nece ssary to establish t he appropriate range ; (3) the defe ndant was a leade r in the commission of an offe nse involving two or more criminal actor s; (4) the off ense involved more than one victim; (6) the def endant tre ated or

allowed a

victim to be treate d with exce ptional crue lty d uring the

c omm iss ion of

the of fe nse; (7) th e pe rs on a l in jurie s in fl ic te d u po n o r the a mou nt o f d a ma ge to property sustained by or take n by the victim was particularly gre at; (9) the de fenda nt has a pre vious hi s t o ry o f u n willingness to comply with t he conditions of a se ntence involving release in the community; (11) the defendant had no hesitation about commi tting a crime when the risk to human life wa s high; and (17) the c rime was committed under c ircumstance s under whic h the potential for b o d il y in ju r y to a v ic ti m w a s g r e a t. See T

. C

. A. § 40-34-114 ( 2003). The tr ial court found no mitigating factors applica ble.
The Appe llant contends that t he trial court err ed in applying se ntence enhanc ement fa ctors (3), “ [t ]he defen d an t was a leade r in the commission of an off ense involving two (2) or more criminal ac tors[,] ” and (6), “[t] he defe ndant treated or allowed a victim to be treated with exceptional

cr u el ty during the commission of the offe nse[.] ” The c riminal conduct unde rlying the conviction

a t is su e oc c ur

re d on Jan ua

ry 19 , 200 4, pr ior to our le gis la tur e ’s e na c tme nt o f the 20 05 Am e nd me nts to the Sentencing Act. The sentenc ing he aring in this case was conducte d on Januar y 2 6
, 2 007. 3 Before the senten ci n g h ea ri ng was he ld, the trial court pr ovided the Appe llant with the option of proce eding under

the Sentencing Act as it e xisted when the offe nses wer e committed, or as it was amende d in 2005. The Appe llant chose to be sentenc ed under the Sentencing Ac t as it existed at the time of the off

enses.

At this juncture
, we are constraine d to note that althoug h not raised by the Appellant at trial

or on a pp e a l, the re c or d un e qu ivo c a lly de mon str a te s that the Ap pe lla nt’ s se nte nc e is c on sti tut ion a lly infirm under the holding of Blakely v. W ashington , 542 U.S. 296, 1 2 4 S

. C t. 2531 (2004), which 4 applied the r

ule expressed in Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S. C t. 2348, 2362-63 (2 00 0) , tha t “[o]th e r t

ha n th e fa c t of

a pr ior c on vic tio n, any

fa c t th at in c re a se s th e pe na lty fo r a c ri me bey ond the pre scribed statutory maxi mum must be su b mitted to a jury , and appr oved beyond a

rea sonable doubt.” I n adher ence with the holding of Blakely v. W ashington , o ur

su pr e me c ourt

in State v. Gome

z , 239 S.W .3d 733, 743 (Tenn. 2007) (“ Gomez I I ”), conclude d that this St at e’ s p re--10-

2005 sentenc ing a ct violated Gomez’ s ri gh t to jury trial and that plain e rror revie w of a Blak

e ly infrac tion was “nece ssary to do substantial justi ce.” See Tenn. R. Crim. P. 52(b). Acc ording ly , we simil arly conclude that based upon the application of seven c onstitut ionally defic ient enhanc ement fac tors, from a total of

eig ht app l i ed
, substantial justi ce r equire s that the Appellant’s twe lve-y ear maxi mum s en tence for a g g ravated robbe ry be vac ated a

nd rema nded for a sente ncing hear ing consistent with the holding in Gomez I I

.
b. C ons e c ut ive Se nt e nc ing
The Appe llant furthe r al l ege s err or with the trial cour t’s decision to run the twe lve y ear sentenc e for

ag g ravated robbe ry

consec utively

to the life sentenc e for

first deg ree murder.

A trial court may impose consec utive sentenc ing upon a determination that one or more of the c ri te ri a

se t f orth i n T e nn e sse e Cod e An no ta te d s e c tio n 40- 35 -1 15 (b ) ex ist s. Th is s e c tio n p e rm its the trial cour t t o i mpose consec utive sentenc es if the c ourt finds, among other c riteria, tha t “[t]he defe ndant is a danger ous offe nder whose behavior indicates littl e or no rega rd for human life, a nd no hesitation about committing a crime in which the risk to human life is high[.] ” § 40-35- 115(b)( 4) (2003). The length of the sente nce, when consec utive in nature, must be “justly deserve d in relation to the se ri ou sn e ss o f the of fe ns e ” a nd“ no gr e a te r tha n th a t de se rv e d” un de r t he cir c ums ta nc e s. T.C. A

. § 4 0

- 3 5

- 1 0 2 ( 1 )
, - 1 0 3 ( 2 ) ( 2 0 0 3 )

. A d d it io n a ll y , w h e th e r s e n te n c e s ar e to b e s e rved

concur rently or consecutively is a matter addre ssed to the sound discre tion of the trial court. Sta te v. Hastings , 25 S.W.3d 178, 181 (Tenn. Crim. App. 1999)

.

In Gray , our supreme court held that befor e consecutive sentencing could be imposed upon the finding of a de fenda nt to be a dange rous offe nder, othe r conditions must be prese nt: (a) that the crimes involved a ggravating ci rc u m stance s; (b) that conse cutive sente nces a re a nece ssary mea ns to protect the public from the defendant; and (c) that the t erm reasona bly rela tes to the severity of the offe nses. Gr

ay v . S tat e , 538 S.W.2d 391, 393-94 (Tenn. 1976). In State v. Wilke rson and Sta te

v . I mf e ld
, our supreme court rea ffirme d those principles, holding that befor e sente ncing a de fenda nt to serve c onsecutive se ntence s on the basis that he is a danger ous offe nder, the trial court must find that the re sulting sentence is re asonably re lated to the seve rity of t he crimes and nec essary to protect the public against further c riminal conduct. Sta te v . I mf e ld , 7 0 S. W .3 d 6 98 , 7 08 (T e nn . 2 00 2) ; Sta te v. Wilke rson , 905 S.W.2d 933, 938 (Tenn. 1995)

.
Th e tr ia l c ou rt

artic ulate d it s d e c isi on to i mpo se c on se c uti ve se nte nc ing a s f oll ow s:
[T]he defe ndant is a dange rous offe nder w hose beha vior indicates l i t t le or no hesitation about committing a crime in which the risk to human life is high. I find that that does apply and beca use the circ umstances surrounding the commission of the offe nse ar e aggr avate d, cer tainly aggra vated. And tha t the confine ment for a n extende d period of time is nec essary to protect socie ty from the def endant’ s . . . [unwilli n g n es s ] t o lead a productive life and the de fenda nt’s resort to criminal

a c tiv ity in f

urthe ra nc e of

a n a nti so c ia l li fe sty le , I thi nk he ’s the po ste r b oy fo r tha t,-11-

I would say. And that the aggr egate length of the sente nce r easona bly relate [s] to the offe nse [f or] whic h the def

endant stands c onvicted. I f ind all those apply.

The Appellant argue s that “the tria l court er red in finding that the c ircumstance s surrounding the commi ssion of t he offense were aggra vated .

. . as t he court failed to set out any f indings of fac t perta ining thereto as mandated in Gra y.” He asserts that “as no evide nce w as pre sented and the trial court fa iled to find a fa ctual b asis for a ggravated circ umstances, c onsecutive se ntencing wa s improper.” We disa gree . Reviewing the de cision de novo , we r ecogniz e that the r ecor d contains ample evide nce tha t the crimes co m m i t t ed in this case w ere surrounde d by aggra vating circ umstances. Af

ter orde ring Mr. Crawf

ord and Ms. H arris into a bedroom and dema nding money and mar ijuana fr om them at gunpoint, the Appellant obtained c ash fr om the purse of Ms. Harris, and shot Mr. C raw ford in the back at close range

. After a st ruggle with the victim in which anothe r shot was fir ed in the bedroom, the Appellant participa ted in dr agging Mr. Crawf ord into the living room of the re sid e nc e , whe re he fi re d an oth e r gun sh ot, wh ic h furthe r en da ng e re d the liv e s of M s. Ha rris

a ndhe r t wo c hil dr e n, wh o w e re in n e arb y b e dr oo ms of the re sid e nc e . T he Ap pe lla nt s ub se qu e ntl y dragge d the s er i ously wounded victim acr oss the street to the por ch of a nother a partment. As the tr ia l c ou rt

pr op e rl y f

ou ndthe fa c tor s n e c e ssa ry to i mpo se c on se cut ive s e nte nc ing pu rs ua nt t o Tenne ssee Code A nnotated sec tion 40-35-115(b)( 4) and Gray and its progeny, we aff irm the trial court’s de cision to impose consec u t i v e sentencing in this case. Ac cordingly, the Appe llant is not entitled to relief on this issue.

CO NC LU SION

Ba sed upon the fore g oing, the judgme nts of conviction for the crimes of first deg ree murder and ag g ravated robbe ry

are a f f ir me d

. M o r e over, the trial court’ s imposit ion of consec utive sentenc es is af fi rm e d. Th e Ap pe lla

nt’ s sen te nc e fo r ag g ra

vate d rob be ry is re ve rs e d an d va c a te d, and the c a se is remande d for a

sentenc ing he aringconsistent with this opi nion.

___________________________________ DAVI D G. HAY ES, SENIOR JUDGE