### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jun e 2, 200 4

STA TE OF TEN NES SEE v. C AR LOS EDD INGS

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 01-03777 W. Otis Higgs, Jr., Judge

No. W2003-02255-C CA-R 3-CD - F iled October 8, 2004

The De fenda nt, Carlos Eddings, w as tried and c onvicted for ag g ravated robbe ry , and the tria l court
sentenc ed the De fenda nt to ten y ear s in prison. The Def endant a ppeals c ontending that: (1) the tria l court pe rmitted improper closing arg ument by the State; and (2) the trial court improperly applied enhanc ement fa ctors whe n sentenc ing the Def endant. I n a supplementa l pro se letter , the Def endant

a sk s th is C ou rt

to c on sid e r w he the r the tr ia l c ou rt imp ro pe rl y

g a ve the j ury an in st ru c tio n a ft e r i t be g a n d e lib e ratin g . A ft e r a thr ou g h re vie w of the re c or d a ndapp lic able c a se la w, we c on c lud e that, ba se d o n B lake ly

v. Was hin g ton , th e se nte nc e mus t be mod if ie d to a te rm of e ig ht y e ars

. Othe rw ise the judg ments of the trial c ourt are aff irmed.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed in Par t, Modif ied in Part , and Rem anded

R OB E R T W. W E DE MEY ER , J

. , delivere d the opinion of the court, in which D AVI D H. W EL L ES , J
., joined. D AVI D G. H AYES , J ., filed a c oncurring a nd dissenting opinion.

Ga rl a ndEr g ud e n, Me mph is, Te nn e sse e , f or the app e lla nt, Carl os Ed din g s.

Pa ul G . Su mme rs , Atto rn e y Ge ne ra l a ndRe po rt e r; Kathy D. As lin g e r, As sis ta nt A tto rn e y Ge ne ra l; Wil liam L

. Gibbons, District Attorney Gene ral; Da vid Z ak, Assistant District Attorney Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION I. F acts

Th is ca se ari se s out of the De fe nd a nt’ s con vic tio n for the a g g ra va te d r ob be ry

of the vic tim
, Celeste Willi amson, on Octobe r 23, 2000.

A. F acts P rese nted at Trial-2-

At the Def

endant’ s trial, the following evidenc e wa s prese nted. C el es t e W illiamson, t he victim, testified that she has been employ ed with D irec t Insuranc e since Marc h of 1997, and wor ked at the off ice located in Shelby

County . She said that, on October 23, 2000, she opened the office at approximately ten minutes be fore 9 a.m. Wil liamson testified that, after she we nt into the office a nd turned off the alarm sy stem, she went to her desk and bega n doing paper work. She said that at 9:05

a .m. tw o b la c k me n, on e ta ll wi th a ma sk on a nd a n a uto ma tic we apo n a nd the oth e r w ith ou t a ma sk and with a r oll of duct tape, c ame in the f ront door of the office . The men c ame to wa rd her a nd started y elling “ b****, hurry up. We’re he re to rob y ou and we ’ve only g ot two minutes so hurry up.” Wi l l i am son identified the De fenda nt as the man who e ntere d her of fice with the roll of duct tape.

Wil liamson testified that the Def endant g ot be hind he r and wa s choking her a s he wra pped her mouth, fa c e , a n d n o s e w ith d u c t ta p e

. Sh e s a id th a t th e me n d r a g g e d h e r to th e s a f e a n d then order ed her

to open the saf

e. The men wer e on either side of her while she wa s on her kne es opening
t h e s a f e

. S h e s a i d t h a t t h e m a n w i t h t h e m a s k h e l d t h e g u n t o h e r

w h i l e s h e w a s t r yi n g t o g e tt h e k e ys in the safe in order to g et i t open. She said that she was nervous and could not breathe. Will iamson testified that she fina lly

g ot the safe open and g ave the men the two bag s inside, which containe d approximately

$1700.00 in cash, money order s, and che cks. She testified that the ma n with the g un wiped his fing erprints off of the sa fe a fter he touched the sa fe.

Willi a mso n s a id tha t, a ft e r s he g a ve the me n the mon e y , the ma n with the ma sk tol d he r t o g e t do wn on the fl oo r, a nd the n he pu t the g un to h e r h e a d a ndtol d h e r n ot t o te ll a ny on e a ndno t to

c a ll the po lic e

. She sa id that the De fe nd a nt the n re tr ie ve d he r b ill fo ld c on ta ini ng he r c re dit c ard s, driver’ s license, a nd $295.00, and told her not to tel l an y o n e because they had her persona l information and would kill her if she did. Wi lliamson said that she was sca red f or her life and, a s

a re sult, she suffer ed a he art a ttack. Willi amson explained that, after the men lef

t, she g ot up off the floor and w as having chest pa ins, her he ad wa s hurting, a nd she wa s g etting na useate d. She said that she ra n out the fr o n t ro o m d o or and to a “ca sh place ” located a “ couple of doors down” f

rom her office . She testified t hat t he employ ees at the “c ash plac e” c alled 911, and the operator told her not to remove the duct tape. Williamson said that, when the police came , she explained to them what had happe ned and pr ovided them wi t h a desc ription of the intruders, be fore being taken by ambulance to the hospital. She said that she told the police that, during the robbe ry , she noticed a

scar that looked like a zipper on the w rist of the unmasked intrude r.

Wil liamson said that, at the h o s pital, she was diag nosed as ha ving suf fer ed a he art a ttack. As a re sult, W illiamson was in the hospital for four day s and was then sent home. She testified tha t the police c ame to her

home to show her a n arr ay of six photogr aphs fr om which she identified the picture of the Def endant a s the unmasked intrude r.

On cr oss-examination, W illiamson t estified that she did not notice wh ether the unmasked intruder ha d a tattoo of the na m e “C ar l os” on his arm. She said that, on Nove mber 3, 2000, she identified the De fenda nt’s picture from a photo a rra y of six photogr aphs, and then she wa s shown photogr aphs of the s car on the Defenda nt’s wrist. Further, she said that, on Novembe r 21, 2000, she-3-

g ave the police a sta tement reg arding the incident, which she signe d. Wil liamson te stified that she could not reme mber on whic h of the De fenda nt’s wrists the scar was located.

Sherry Br ooks testified that, in October of 2000, she was e mploy ed by National Chec k Cashing, w hich is located near Direc t Insuranc e. She said that, a fe w minutes befor e 9 a.m. on the morning of Oc tober 23, 2000, she saw two men walk past the building. She sa id that she noticed the men bec ause she wonder ed if th ey we re g oing to c ome into her store . She described both men as “tall and sli m,” and explained that the t aller of the t wo m en had “ big lips.” B rooks testified that, a few minutes later, W illiamson came running in the door “tape d up” and crying. She explained that Wil liamson could not talk because she had tape covering her mouth. Br ooks and her co-w orker s let Wil liamson in and then locked the door behind he r. Br ooks said that she aske d Wil liamson if she had bee n robbed, a nd Wil liamson responded a ffirma tively . Br ooks tes ti f ie d that she ca lled the police and they came to her office and took a report. On c ross-examination, Brooks sa id that the Def endant

w a s n o tt h e s a m e s i z e , i n h i s w e i g h t , a s e i t h e r o f t h e m e n s h e s a w o n t h e d a y o f t h e r o b b e r y.
Serg eant Ke lly , an off

icer with the Memphis Police Depa rtment, testified that she c ollected

e vid e nc e , in c lud ing du c t ta pe fr om the c ri me sc e ne , a ndtoo k p ic tur e s o f the c ri me sc e ne . Sh e sa id that she turned this e vidence and other fing erprint c ards that she collecte d over to “ proce ssing” and had not y et hea

rd the re sults.

Serg eant B en Pruitt, and offic er w ith the M emphis Poli ce D epartment, testified that he investigated t h e ro b b ery

at Dire ct I nsuranc e on Oc tober 23, 2000. He stated that, later in the day afte r the robbe ry

occur red, the police rec eived information that Will iamson’s cre dit card ha d been used at a g as station. The ser g eant testified that he went to the g as station and intervie wed se vera l people who r emember ed the men tha t u s ed the cr edit car d. He e x plained that the g as station

e mpl oy e e s id e nti fi e d a ndre c og nize d th e c ar the me n us ing the c re dit c ardwe re in a nd“ kn e w v a g ue ly wher e the c ar be longe d and who owne d it.” Serg eant Pruitt said that, based upon this information, he obtained and executed a se arc h war rant a nd, in the car , he found a “knit cap[] that had a hole cut throug h it . . . some glove s and jac ket and c lothes.”

The ser g eant sa id that he was prese nt w hen they showed Wil liamson a photo array of six men and aske d her if she rec og nized any of the men as the perpetrator of t he robbery

. He sa id that, at the tim e , h e e xpla ine d to Willia mso n tha t the se me n may or ma y no t hav e a nythi ng to d o w ith the c ri me and not to pick any one out unless she wa s certain that who s h e wa s p i ck i ng was the ma n who committed the crime.

The ser g eant state d that he wa s prese nt wh en t h e Def endant wa s arr ested on Nove mber 2, 2000, and whe n the Def

en d an t confe ssed to the crime. He sa id that he che cked on the Def endant approximately ev er yfiftee n minutes before he g ave the Def endant, a nd the Def

endant sig ned, a waiver of his Miranda rights. The serg eant sa id that, l at er , the Def endant or ally

confe ssed to the crime, a nd then he sig ned a w ritten confe ssion. The serg eant rec o u n t ed that, in t he De fenda nt’s

c on fe ssi on , h e sa id tha t he a nd a no the r ma n ra nd oml y e nd e d up a t D ir e c t I ns ur a nc e a ndde c ide d to rob it. He told the off

icer that he took duct tape and tape d the victim and that the other individual-4-

was a rmed with a g un. The off icer said that the De fenda nt told him that the two men ob t ai n ed approximately

$2000 from the robbery and the Def endant’ s share was $500. Serg eant Pruitt stated that he and a nother off

icer took photogr aphs of the D efe ndant’s arm, which had a larg e sca r.

On c ro ss- e xami na tio n th e of fi c e r t e sti fi e d th a t th e se arch w arran t tha t he e xec ute d w a s to

sear ch for “Maurice Edding s” and de scribed him as ha ving a scar

. The officer also testified that the Def endant was six fee t two inches and weig hed approximately 235 pounds, which does not matc h the d e s c r ip ti o n in th e s e ar c h w arr a n t. T h e o f f ic e r s a id th a t, o n th e d a y a f te r th e Def

endant wa s

arr ested, he broug ht the Defenda nt up to his office to spea k with the Def

endant e arly

in the day , and handcuf fed the Def

endant to a be nch. He said the De fendant did not si g n the waive r of rights form until 12:54 p.m . that afte rnoon, and did not sig n his confession until 5:30 p.m. The office r conc eded that some people lie w hen g iving a statement to police. The office r also stated that the e mploy ees

a t th e g a s st a tio n p ro vid e d th e na me a ndde sc ri pti on of Mau ri c e Ed din g s a ndno t Ca rl os Ed din g s. Serg eant P ru i t t stated that none of the items found during the sea rch tha t were suspect, i.e., pantyhose, masks, and a

BB g un, wer e found in the D efe ndant’s possession.

J ames Da lton testified that he was e mp l o y ed with the Tutwell Oil Company and that, on November

1, 2000, police officer s came into his gas station and a sked him questions about a patron who had use d a stolen cr edit car d. Dalton testified that he revie wed with police surveillanc e ca mera

re c or din g s to loo k a t th e da te a ndtim e that the sto le n cr e dit c ard wa s use d in his s tor e a nd , f ro m th a t, the police office rs develope d and showed him a photo a rra y and asked him to pick out the man using the stolen cre dit card. D alton stated that the man that used the stolen cre dit card w as a r eg ular customer, who usua lly

paid in cash. D alton testifi ed t h at t h e m an was not the De fenda nt and the Def endant wa s not with the man using the c ard.

Dennis McNe i l
, an off

icer with the Memphis Poli ce D epartment, testified that he wa s inv olv e d in the ro bb e ry

inv e sti g a tio n in thi s c a se . H e sa id that he int e rv ie we d th e De fe nd a nt w ith Serg eant Cra ig a nd that no one promised the D efe ndant any thing or promised the De fenda nt that he could l eave if he confessed to the crime. On cr oss-examination, the office r stated that he had no idea what wa s said to the Def

endant pr ior to interviewing him. The off icer said that Serg eant Pruitt, who is Cauca sia n , a s k e d h e a n d L ie u te n a n t C r a ig
, w h o a r e b o th A f

r ic a n

- A me r ic a n , to s p e a k w ith the Def endant be cause the Def

endant did not want to “ta lk to a white offic er.”

L ieutenant Anthony

F. Cra ig, a n office r with the Memphis Police D epartment, testified that he intervie wed the D efe ndant. He sa id that he s poke with the Def endant a bout ge nera l information and not about the de tails of the ca se itself. He explained that he did not make any promises to the De fe nd a nt. On c ro ss- e xami natio n, L ie ute na n t C r ai g s t ate d th a t th e De fe nd a nt d id n ot c on fe ss t o h im.

Serg eant Ma tthew S. Pugh, an office r wit h the Memphis Police Depa rtment, testified that he worke d on this investig ation, and, during his inve stiga tion, he learned that s o m e o f t h e victim ’s pers on a l it e ms, inc lud ing c re dit c ard s, ha d b e e n ta

ke n. Ac c or din g ly , h e c he c ke d w ith the ba nk to see if a ny of those items had be en used, a nd he lea rned that one of the credit car ds was used at a g as station. The offic er sa id that, from gas station’s surveillance tapes, a g as station attendant r ecog nized-5-

a ca r fr om the neig hborhood whose o ccupants used the cr edit car d. The a ttendant told the office r wher e the c ar w as usually parke d in the neig hborhood. T h e o ff i cer said that he f

ound the ca

r and discovere d that it wa s reg istered to Maurice Edding s. He said that he g ot a photogr aph of Maurice E d d i n gs an d m ad e ap h o t o ar ra y , fr o mwh i ch t h e ga s s t at i o n at t en d an t i d en t i fi ed M au ri ce E d d i n gs

a s th e dr ive r of the c ar a nd the ma n that us e d the c re dit c ard

. Th e of fi c e r sa id that, ba se d u po n th is in f o r mati o n , h e o b ta in e d a

s e ar c h w arr a n t n a mi n g M a u r ic e E d d in g s a n d a n u n k n o w n ma le w ith a s ixinch long scar

on his arm.

Offic er Pug h testified that, when he ex ecute d the sea rch w arr ant, Mauric e Edding s’ mother told one of the off

icer s that s h e had another son na med Carlos Edding s and that he ha d a six -inch

scar on one of his arms. She then provided an addre ss w here Carlos Edding s could be found. T he of fi c e r sa id that the y fo un d Carl os Ed din g s, the De fe nd a nt, a t th e a dd re ss p ro vid e d a ndtoo k h im i nto police custody . Offic er Pug h stated that, there afte r, he br oug ht a photo arr ay , which included the Def endant’ s photogr aph, to Will iamson’s home, and she identified the D ef en d an t as one of

the robber s. He said that Williamson also positively identified pictures of the sca r on the De fenda nt’s

arm a s the same a s the scar that she noticed on the robber

.

Th e of fi c e r s a id tha t, a ft e r Wi lli a mso n’ s ide nti fi c a tio n, he we nt ba c k to th e po lic e statio n to interview the Def

endant. He said that he a dvised the De fenda nt of his rig hts and tried to “build a rapport” with him. The offic er sa id that he told the Def endant that the victim had identified him and had identified the scar on his a rm. Offic er Pugh said that the Def endant wanted to c onfess, a nd the office r took his statement. The of fice r said that the Defenda nt described t he crime to him from the tim e that th e De fe nd a nt a nd the De fe nd a nt’ s br oth e r- in- la w e nte re d Di re c t I ns ur a nc e Compa ny un til the time that they

left. The D efe ndant told him that his brother- in-law planne d the robbery and wa s

arme d with a semi-automatic handg un during the robbe ry . The De fenda nt said that his brother-inlaw told him to duct tape the victim and to look for money inside the business. He told the off icer how he a nd his brother-in- law split the money afte r the robbe ry

. The office r re ad the De fenda nt’s

s t at em en t , s t at i n g:

Questio n : D idy o u p ar ti c ip a te in th e r o b b e r y o f D ir e c t In s u r a n c e Co mp a n y lo c ated

a t3 3 8 8 N o r t h W a t k i n s , w h i c h o c c u rr e d o n O c t o b e r 2 3
, 2 0 0 0
, a tap p r o x i m a t e l y 9 a.m.? Answer : Yes, sir. Que stion: W ho was with y ou during the robbe ry ? Answer :

. . . My brother- in-law. Question: Were y ou arme d with a wea pon? Answer : No, I was not. No, sir. Qu es tion: W as [y our brother -in-law] arme d with a wea pon? Answer : Yes, sir. Que stion: W ere y ou wea ring a mask? Answer : No
, s i r. . . . Question: Was [ y our brother -in-law] wea ring a mask? Answer : Yes, sir. Que stion: Who planned the robbe ry ? Answer : It just happened, a rea lly bad mistake of mine. Question: WhyDirec t I nsuranc e compa ny ? Answer : It r eally was not just an exact

re a so n w hy

Di re c t I ns ur a nc e

. Qu e sti on : Did y ou kn ow that D ir e c t I ns ur a nc e ke pt a lot of money

inside? Answer : Just I did not know that, no, sir. Question: Did y ou or [y our brother -in-law] know any employ ees tha t worked inside? Answer : No, sir. Question: To y our knowledg e, does [y our brother- in-law] or any of y our fa milyhave insurance with Direc t? Answer : No, sir, not to myknowledg e.-6-

Th e of fi c e r t e sti fi e d th a t, thr ou g h h is i nv e sti g a tio n, he le arn e d th a t Maur ic e Ed din g s h a d a bu sin e ss

re l at i o n s h i p wi t h Di re ct I n s u ra n ce

. T h e o ff i ce r c o n t i n u ed re ad i n g t h e D ef en d an t ’s s t atement, statin g:

Question: Ex plain to me in y our own wor ds the eve nts leading up to the robbe ry and during the robbe ry . Answer : I spent the ni g ht over there that night with [m ybrotherin- la w] .

. . . We wa lke d – pa rk e d the c ar, lik e , by the c he c k c a sh ing pla c e ba sic a lly on the cor ner. I walked in

. . . first, and [ my brother- in-law] came in behind m e. I told the lady to be quiet and don’t say anything a nd I

attempted to put g ray

tape on her mouth. The ta

pe didn’t stick, and I

attempted to wra

p the tape a

round her and she . . . g ot the key s and opene d the safe . [Mybrother- in-law] took the money out of the safe and we left. Que stion: Did y ou or [y our brother -in-law] take the lady ’s po c ke tbo ok ? An sw e r: [My br oth e r- in- la w] too k it. Qu e sti on : What ki ndof ve hic le

we re y ou a nd [ y ou r br oth e r- in- la w] o c c up y ing ? An sw e r: A g ray Ca va lie r, his mother’s car

. Question: What wa s in the safe ? Answer: [ M yb ro ther-in- law] g rabbe d the little pouch thing a nd he g ot the l ad y ’s wallet. Que stion: How much money did y ou see a fter the robbery ? Answer : It w as like close to $2,000. Que stion: Did y ou see a ny

chec ks in the pouch? Answer : Y es. I saw the che cks and w e thre w them awa y

. I think [my brother- in-law] thr ew them in the trash at home. Que stion: Did y ou see [y our brother -in-law] with the lady ’s pocke tbook? Answer : Yes, sir.

. . . Qu es t i o n : What happened to the c ontents of the pocke tbook? Answer : We had that. I don’t know exactly what he did w ith it – he had that . . . . Que stion: Where did y ou g o afte r t he robbery ? Answer : To [m y brother- in-law’s] house .

. . . Question: . . . What did y ou g et as a result of this robbery ? Answer : A littl e over $500. Question: Was the re any one else at the house w hen y ou and [y our brother -inlaw] split the money

up? Answer : No, s ir. Question: Did [y our brother -in-law] g ive

a ny of the c on te nts to Ma uri ce? An sw e r: No t to my kn ow le dg e . A ns we r:

. . . D id
y ou see Maurice the day of the robbery ? Answer : N o, sir. Question: What ty pe of

we apo n d id [y ou r b ro the r-i n- la w] h a ve du ri ng the ro bb e ry ? An sw e r: I t w a s a handg un. I

don’t know for

sure what kind but y ou rac k it ba ck. I t’s black. Que stion: Have y ou ever

seen [y our brother -in-law] with a g un b ef o re ? Answer : No, sir. Qu e sti on : H a ve y ou a nd [y ou r br oth e r- in- la w] e ve r c omm itt e d a ny oth e r r ob be ri e s? Answer : No, sir.

. . . Question: Do y ou have a ny of the money

left? Answer : No, sir. I sp e nt i t all. I c a n’ t re c a ll whe re

. Qu e sti on : I s the re a nythi ng e lse y ou wo uldlik e to add to this s tate me n t? A n s w e r : Y e s , s ir

. I r e a ll y w a s n ’ t try in g to h u r t a n y b o d y . I know that was a big mistake and I am very sorry . I f it’s possible, I ’ll g et a job and do wh a te ve r the y sa y

a ndre pla c e wh a t th e y

sa y is m iss ing . H on e stl y , I ’m no t ju st a bad per son. Neve r bee n involved in any thing. . . .

The off icer then testified that he took a photogra ph of t he Defenda nt’s rig ht arm that showed his scar and anothe r of the D efe ndant’s lef t arm that showed a

tattoo of his name.

On c ro ss- e xami na tio n , O f f i c e r P u g ht e s t i f

i e d th a t th e inc ide nt r e po rt , w hic h w a s ma de sh ortly-7-

afte r the robbe ry was reported, indicated t hat t he robbery was perpetrated by three men. The office r

a lso state d th a t the se arc h wa rr a nt that he pr e pa

re d wa s f or “ a n u nk no wn ma le bla c k, app ro xima te ly 22 y ear s old, me dium build, medium c omplex ion, short natural Afr o, with a . . . six -inch sca r on left arm,” and then he conce ded that he w ould not describe the Def endant a s h av i n g a medium build. Offic er Pug h stated that, afte r issuing the sear ch war rant, he did not find a money bag or any

chec ks in a ny g arb a g e c a ns . T he of

fi c e r s ta te d th a t th e De fe nd a nt d id n ot c omp le te hig h s c ho ol.

The De fenda nt testified on his own behalf that he wa s arr ested while at his brother-in-la w’s house and taken to a g as station and then to the police station. The Def endant a dmitted that he has pr e vio us ly

be e n a rr e ste d f or the ft of pr op e rt y . T he De fe nd a nt s a id tha t, a ft e r h e wa s a rr e ste d f or thi s

c ri me , h e sp e nt the nig ht i n ja il a nd , in the mornin g , h e wa s b ro ug ht u p to sp e a k w ith po lic e of fi c e rs

. He sa id that Office r Pug h and anothe r off icer spoke with him in the morning a nd told him t hat he had bee n involved in a robbe ry . The De fenda nt denied any involvement in the October 23, 2000, robbery of Dire ct I nsuranc e. He said that he tol d the pol ice that he had been involved in the robbery beca use they had bee n holding him all day and “c onstantly

coming back and forth.” He sa id that the office rs told him what was mi s s ing f rom Direc t I nsuranc e, how much mone y had bee n stolen and pr ov ide d h im o the r d e ta ils of the c ri me

. Th e De fe nd a nt sa id that, a t fi rs t, h e de nie d in vo lve me nt i n the cr ime, but later the of

fice rs told him that he could go hom e if he told them about his invol vement in the crime. H e said that the police office rs ca me in and starte d y elling a nd “smac king me ar ound.” He sa id they

told him “‘ look, y ou are g oing to ma ke something up rig ht now

. Or if y ou don’t, we

are g oi n g t o l o ck y ou up for the r est of y our life. B ut if y ou do, we’ ll just let y ou g o.’” The Def endant e x plained that he w as able to make the state ment that he ma d e fr om the fac ts that the police had told him.

The De fenda nt testified that he has a sca r on his arm, but it is on the outside of his forea rm and not on the inside as Williamson had te stified. The Def endant said that this wa s the first time that he had e ver been a

rre sted and the f

irst time he was e ver que stioned by police. He said that he ha d been ha ndcuff

ed to a be nch for

eig ht or nine hours be fore the pol ice talked to him. The De fenda nt said that the only rea son he gave the s tatement that he did was because he was try ing to g et the police to l e a ve him

a lon e a ndbe c a us e he be lie ve d th e m w he n th e y sa id th at he cou ld g o h ome if he tol d them that he committed the robbe ry

.

On cross-e x amination, the Def endant testified that he is a bout six fe et and one inc h in heig ht and we ighs a

pproxi mately

280 pounds. He said that he has a scar on his right a

rm and a tattoo of his name on his left arm, close to his elbow. The D efe ndant said that his brother Maurice is skinnier than he is and a lso said that he did not believe that his brother used t h e v i cti m’s cre dit card. The Def endant de nied eve r g oing to Dir ect Insuranc e and de nied knowing the victim. The De fenda nt said that he did not listen to the officers as they rea d him his rights, and he just did what they wanted. He testified that the office rs told him that he could pick either his brother or his brothe r-in-la w to be his acco m p l i ce in the crime, but that he had to pick one, so he picked his brother -in-law. T he Def endant sa id that the police told him what to say and that, while giving his stateme nt, he re peate d to them the information that they g ave him. The Def

endant de nied any

knowledg e of the robbery until he was ar

rested a nd informed a

bout the crime by

the police.-8-

B a s e d u p o n t h i s e v i d e n c e a j u r y c o n v i c t e d t h e D e f

e n d a n t o f o n e c o u n t o f

a g g r a v a t e d r o b b e r y.

B. Se nt e nc ing He ar ing

At the Def

endant’ s sentenc ing hearing, the State told the trial court that the De fenda nt was a Rang e I , Standard Of

fend er , and then r ecommende d a sente nce of ten y ear s due to the serious
nature of the c rime. Celeste Williamson te s t i fi ed t h at s he wa s still on leave from wor k at Dire ct I nsuranc e. Willi amson said that she re commended tha t the Def endant g et a se ntence longe r than ten
y ear s because of the “ severity of what he did to me, how long I ’m g oing to be under doctor’s c are for the r est of my life, and on medication beca use of this. And the fa ct that while he w as on -- out on bo n d fo r wh at h e d id to me he committed other off enses.” Wil liamson said that she is on two medications for

her he art a ttack, has to g o to phy sical thera py , and is unde r a psy chiatrist’s ca re a nd on medication for

panic attacks. She has not bee n able to wor k since this crime.

The De fenda nt’s pre- sentenc e re port showed that he had two misdemeanor matters that wer e

ex p u n ged fr o mh i s re co rd af t er h e co m p l et ed d i v er s i o n an d h e h ad b ee n , at t h e t i m e o f t h e h ea ri n g, indicted for a g g ravated burg lary

.

The De fenda nt testified and denie d any i n v o l v em ent i n this crime. He sa id that he has no prior convic tions, but di d h av e o n e char g e pending ag ainst him. On cross-e x amination, the Def endant a dmitted that he had one prior conviction for theft of pr operty

under $500.

The State a

rg ued that the tria l court should sentenc e the De fenda nt t o t en y ea rs, t wo y ear s above the presumptive mi nimum sentenc e of eig ht y ear s, due to the s everity of t he crime. The trial court he ld:

[T]h e D e f

e n d a n t i n th is c a s e is c h ar g e d w ith a g g r a v a te d r o b b e r y , a n a g g r avate d robbery in which the victim testified that s h e h as been sever ely phy sically

and

m e n t a l l y i n

j u r e d a s a r e s u l to f t h e r o b b e r y.

I hear d testimony

at g reat leng th from the victim who testified at the tr ial that she continues to suff

er f rom this incident, ps y cholog ical problems, under the c are of a psy chiatrist, all of that. And it’s a very serious matter. . . . [ I ]t was a very serious

a n d a v e r y a g g r a v a t e d r o b b e r y.

The intere sting thing about this cas e is that the defe ndant maintains that he didn’t do it. But I reme mber during the trial the def endant g ave a

written conf

ession to this t rial, to this case

. During the trial he sa y s he wa s coer ced, that he was f orce d to g iv e th at stat e me nt b e c a us e the y tol d h im tha t if

y ou wa nt t o g o h ome he wo uld have to g ive a state ment.

Th a t he g a ve a state me nt und e r the mis take n thou g ht tha t he wo uldg o h ome once he confe ssed. I t’s an inherent inconsistency quite fra nkly that a man say s “they-9-

said I could g o home, but in order to g o home I ’d have to admit that I committed an

a g g ra va te d r ob be ry .” B ut tha t’ s w ha t he sa y s.

. . . .

A ll th o s e matt e r s w il l h a v e to b e p a s s e d o n b y th e Co u r t. Ba sed upon the

severity of this case , howeve r, and looking a t what the State has pr esente d I believe the Sta te ’s re c omm e ndati on of 10 y e ars , a s a Ra ng e I Sta nd ardOf

fe nd e r i s a

rea sonable offer for thi s kind of ca se. . . . I ’m g oing to se ntence the Def endant to the 10 y ear s as a Rang e I

Standard Of

fende r . . . .

II. Ana lys is

The De fenda nt now appea ls contending that: (1) the trial court pe rmitted improper c losing arg ument by

the State; and (2) the trial court improperly found that en h an ceme nt fac tors applied when se ntencing the Defenda nt. I n a supplementa l letter, the De fenda nt asks this court to consider whether the trial court improperly g ave the jury

an instruction af

ter it beg an deliber ating

. A. Closing Argum ent

T h e De fe ndant contends tha t the State’s closing arg uments “we re so imprope r that they infec ted the trial with unfa irness and de nied due proce ss to the Def endant.” The De fenda nt conce des that the issue is waived because he never objected to any of t he st atements during the State’ s closing

ar g u me n ts a n d h e d id n o t r a is e th is a s a n is s u e in h is mo ti o n f o r n e w tria l, b u t c o n te n d s that the prosec utor’s ac tions rise to the level of plain e rror . The State c ontends that the De fenda nt waived this iss ue and tha t it does not constitut e plain er ror. We ag ree with the State.

The De fenda nt objects to the following statements by the prosec utor:

Does [Wi lliamson] have a ny rea son to lie about any thing that happene d to her that da y ? D o e s s h e h a v e a n y r e a s o n t o l i e , t o t e l l 1 2 t o 1 4 s t r a n g e r s t h e m os t ho rr if ic experience of her

life? J ust think about that for one sec ond . . . .

. . . . C ar l o s Eddings sat here and did not honor his oath. Does Car los Edding s have a

rea son to be less than honest with y ou? Yes, oh, y es. . . .

Do e s th e Exxon w or

ke r h a ve a ny re a so n to lie that [the De fe nd a nt] c a me in that day with the cre dit card. . . .

. . . I f the off

icer s were g oing to f

ill all thi s in, they ’d put h im with the gun and the tape a n d th e b a d la n g u a g e ta k in g th e mo n e y o u t o f th e s a f e a n d o u t o f

the pu rs e . B e c a us e if

the y ’r e g oin g to ru in the ir c are e rs ov e r [the De fe nd a nt], be tte r t o g o big. B etter to make it a slam dunk. And if y ou are g oing to r uin y our ca

ree r over-10-

[the De fe nd a nt] w hy

no t ha ve e ve ry on e e lse ide nti fy [the De fe nd a nt], too ? Why jus t stop here? [ The De fenda nt] is making ve ry rea l alleg at i o n s against t he police right

no w. He ’s sa y ing that th e e nti re Me mph is Po lic e De pa rt me nt i s lying jus t to g e t hi m. That’s a pretty big eg o. [The Def

endant] thinks a lot of hi mself. Offic ers a ren’ t going to do that. They ’ve g ot thousa nds of case s. They ’re g oing to r uin the ir car eer s over [t he De fenda nt] ? They could have closed thi s case out if they wanted to at any

time. They could have char g ed him based on he r identifica tion and at one o’ clock they would have be en done w ith this . Bu t t h ey went to [the Defe ndant] who . . the Serg eant sa id wanted to conf ess. . . .

I t’s unfortunate that [t he De fenda nt] is sitt ing he re hoping that there is one or
tw o ju ro rs that’ s g oin g to b uy thi s. [Th e De fe nd a nt] is tr y ing to m a ke jus tic e ra c ia l. I t’ s c olo r- bli nd . Just ic e is n ot a bo ut r a c e . B ut tha t’ s wh a t [th e De fe nd a nt] w a nts to do. That’s wa s [t he De fenda nt] is try ing to do. . . .

I t sa dd e ns me that hi s h app e ne d. I t sa dd e ns me that [th e De fe nd a nt] i s

makin g thi s ra c ia l. I t sad de ns me that [ the De fe nd a nt] didno t ho no r h is o a th. Th is sy stem of justice that we have w orks bec ause of juries. . . .

The De fenda nt also com plains that, after Def ense c ounsel g ave his c losing stateme nt in which he stated t h at h e had not broug ht rac e as a n issue and cla imed that neither B rooks nor Da lton had a

rea son to lie when the said that they had not see n the Def

endant a t the time of the robbe ry , the prosec ution responded:

I t must be very

liberating to lie to j u ri es beca use the pe ople that lie to juries, they have a big smile on their f

ace . They

si t i n t h is chair. The y

tell stories. And the defe nse attorne y s do the same.

I suffe r throug h trials. I

eat one turkey

sandwich a

day . I wake up five times a nig ht, and I

can’ t ge t back to slee p afte r 4 a.m. See king j u s t i ce and telling the jur or s th e truth , it

take s a tol l on me . F or

de fe ns e c ou ns e l, it see ms t o b e thi s b ig g a me wh e re we g e t to hu g , we g e t to laug h. It mu st b e ve ry lib e ratin g to l ie to j ur ie s.

. . .
[The Defe ndant] didn’t have that problem bec ause he ’s not telling the tr uth. He’ s g ot a hope f

o r a ju r o r to b u y th a t u s e d c ar

th a t h e k n o w s w il l n o t g e t o f f the parking lot. He has nothing to lose by ly ing to y ou. I f he te lls y ou the truth like he didthe of fi c e rs , y ou fi ndhim

g uil ty . H e c ou ldn ’t

take the sta ndand sa y

I didit beca use there would be no rea son for y ou to be here

. He confe ssed once an d he tho ug ht tha t w a s e no ug h. He c ou ldn ’t, he c a n’ t, h e wo n’ t c on fe ss a g a in, e ve r t o

an y t h i n g.

The one confe ssion he g ave g ot him char g ed with Ag g ravated Robbery and-11-

nobody else. The brother- in-law a nd Maurice didn’t g et cha rg ed with anything. And [the De fe nd a nt] i s si tti ng the re th in ki ng I con fe sse d. An d it mig ht b e g re a t f

or my

so ul b ut it’ s not he lpi ng me ri g ht now

. So now I ’v e g ot o ne la st c ha nc e to g e t my se lf out of this mess that I ’ve c reated by ly ing, by being less than honest to y ou. . . .

[De fe ns e c ou ns el] c a nn ot h a ve it b oth way s. I f y ou lie d c on c e rn ing thi s

s t a t e m e n tf

o r l i t t l e r e a s o n , w h a ta r e yo u g o i n g t o d o h e r e , f o r a l l t h e m ar

b l e s ? If during an exhibiti on, prese ason, wha tever , at the beg inning of something, if y ou are g oin g to l ie abo ut tha t, w ha t are y ou g oin g to d o in fr on t of a jury wh e n it a ll c ou nts ? Although I ’m a liar six day s a we ek, whe n I testify b ef o re j u ries, I

tell the truth. Ca n’ t ha ve it. He tol d the truththi s d a y a ndno w w e ’r e a sk ing y ou to p ut h im i n ti me out. And he doesn’ t want to g o there . So the truth failed him. . . .

Th e Te nn e sse e Sup re me Cou rt “ ha s lo ng re c og nize d th a t c los ing arg ume nts are a va lua ble privileg e that should not be unduly re s t ricted.” Terr

y v. State, 46 S.W .3d 147, 156 (Tenn. 2001) (citing State v. Sutton, 562 S .W.2d 820, 823 (Tenn. 1978)); State v. Goltz,111 S.W .3d 1, 5 (Tenn. Crim. App. 2003). “Conseque ntly , attorney s are gi v en gre ater leeway in arg uing the ir positions befor e the jury , and the tria l court has sig nificant discr etion in con t ro l l i ng these a rg uments, to be

reve rsed only

upon a showing of an a buse of that discr etion.” Te rry , 46 S.W .3d at 156 (c iting Sut ton , 56 2 S.W. 2d a t 82 3) ; se e Smith v. S ta te
, 527 S.W .2d 737, 739 (Tenn. 1975) ; Goltz , 111 S.W .3d at 5. This Court has explained that “[closing] arg uments must be tempera te, base d upon the evidenc e introduce d at trial, re levant to the issues being tried, and not otherw ise improper unde r the fa c ts o r l a w. ” Go ltz, 11 1 S. W.3 d a t 5 ( c iti ng Cok e r v . St a te
, 911 S.W .2d 357, 368 (Tenn. Crim. App. 1995)).

When an appel l at e court finds an ar g ument to be improper, “ the established test for determining whe ther ther e is reve rsible er ror is whe ther the c onduct was so improper or the ar g ument

so inf la mma tory

that it a ff e c te d th e ve rd ic t to the Ap pe lla nt’ s d e tr imen t.” Go ltz, 11 1 S. W.3 d a t 5 (c iti ng Ha

rring ton v. Sta te
, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965)). I n measuring the prejudicia l impact of an imprope r ar g ument, this Court shoul d consider the following fac tors: “(1) the fa cts and circ umstances of the case ; ( 2) any curative measure s undertake n by the court and the prosec utor; (3) the intent of the prosec ution; (4) the cumulative e ffe ct of the imprope r conduc t and any other e rror s in the rec ord; and (5) the re lative streng th or wea kness o f the c ase.” Goltz, 111 S.W. 3d a t 5- 6 (c iti ng Judg e v. Sta te
, 539 S.W .2d 340, 344 (Tenn. Crim. App. 1976) ); see State v. Buc k

, 670 S.W .2d 600, 609 (Tenn. 1984)

.

I n Goltz, t his Court found that within the closin g ar gu m en t , five g ener al ar eas of pr os e c uto ri a l mi sc on du c t are re c og nize d:

1. I t is unprofessional conduc t for the pr osecutor intentionallyto misst ate the evidenc e or mislead the jury as to the infer ence s it may draw

. 2. I t is unprofessional conduc t for the pr osecuto r t o express his [ or her ] personal belief or opinion as to the truth or fa lsityof any testimonyor evide nce or

the g uilt of-12-

the def endant. See State v. Thornton

, 10 S.W .3d 229, 235 (Tenn. Crim. App. 1999) ; L a c ke y v. Sta te
, 57 8 S. W.2 d 1 01 , 1 07 (T e nn . Crim. Ap p. 19 78 ); T EN N

. C ODE OF P R OF ’ L R ES PO NS I B I L I TY DR 7-106(c )(4)

. 3. T h e p ro s ec u tor should not use arg uments calc ulated to inflame the passions or prejudice s of the jury

. See Cauthern

, 967 S.W .2d at 737; State v. Stephenson

, 878 S.W .2d 530, 541 (Tenn. 1994)

. 4. The prose cutor should re fra in from ar g ument which would dive rt t h e juryfrom its du ty to d e c ide the c a se on the e vid e nc e , b y inj e c tin g iss ue s b ro a de r tha n th e g uil t or innoce nce of

the accused under the controlling law, or by making predic tions of the conse quence s of the jury ’s ver d i ct. See Cauthern

, 967 S.W .2d at 737; State v. Kee n , 926 S.W .2d 727, 736 (Tenn. 1994)

. 5. I t is un pr of

e ssi on a l c on du c t for a pr os e c uto r to inte nti on a lly re fe r to o r a rg ue fa c ts outside the rec ord unless the fa cts are matters of c ommon public knowledg e.

Go l t z , 1 1 1 S

. W

. 3 d at 6 (q u o t i n g S T A N D A RD S R EL AT I NG TO THE P R OS EC UTI ON F UNC TI ON AN D THE D EF ENS E F UNC TI ON §§ 5.8-5.9 Commentary (AB A Project on S t an d ar ds for Criminal J ustice, Approve d Dra ft 1971)).

We ag ree with the parties that the Def endant’ s failure to obje ct to the prosec utor’s ar g ument

a t tr ia l a ndhis fa ilu re to r a ise the iss ue in h is m oti on fo r a ne w tri al prec lu des ou r r e vie w o f this issue, subject to our noticing “plain error .” See Tenn. R. App. P. 3(e) (providing that “no issue prese nted for r eview sha ll be predic ated upon err or in the admission or exclusion of evidence , jury instructions gr anted or

ref used, misconduct of jurors, parties or counsel, or othe r ac tion committ ed

or occ urring during the t rial of the case, or other ground upon which a new trial is soug ht, unless the

same wa s specific ally

stated in the m otion for new trial. . . . ); Tenn. R. App. P. 36(a) (providing that relief is not require d for a party who failed to take reasona bly available action to pre vent or nullify

an er ror) ; State v. L ittle, 854 S.W .2d 643, 651 (Tenn. Crim. App. 1992) (stating that failure to object to prosecutor ’s alleg ed misconduct in closing arg ument waives a ny later c omplaint).

This Court has, in its di scre tion, fro m t i m e t o time review ed alleg ations of prosec utorial misconduct as “pla in e rror ” even in the absenc e of a contempora neous objec tion. See, e.g ., State v. Marsha ll, 870 S.W .2d 532 (Tenn. Crim. App. 1993)
, overruled on othe r grounds by State v. Carter
, 988 S.W .2d 145 (Tenn.1999) (dete rmining in a bsence of objec tion that prosecutor’ s jury arg ument was not plain er

ror) ; State v. Bulter, 795 S.W.2d 680 (Tenn. Crim. App. 1990) ( considering whether statements of prosec utor wer e plain err or despite lack of objec tion by defe ndant); Ang lin v. St ate, 55 3 S.W. 2d 61 6 (T e nn

. Cr im. Ap p. 19 77 ) (d e te rm ini ng that in or de r to jus tif y re ve rs a l on the ba sis of improper

arg ument and re marks of counsel i n absenc e of objection, i t must affirmatively appea r that the improper c onduct af fec ted the ver dict to the prejudice of the de fenda nt).

Pur su a nt t o Ru le 52 (b ) of the Te nn e sse e Rul e s o f C ri min a l Pr oc e du re , w e ha ve dis c re tio n to notice an e rror

that has af

fec ted the substantial rig hts of an ac cused when necessary to do substantial justice. State v. Adkisson, 899 S.W .2d 626, 642 (Tenn. Crim. App. 1994)

. Be fore an err or may be

rec og nized it must be “plain” and must aff ect a “substantial right of the a ccuse d. The wor d “plain”-13-

is sy nony mous with “cle ar” or equiva lently “obvious.” United States v. Ola no, 507 U.S. 725, 732 (1993). Plain er

ror is not me rely err or that is c onspicuous, but espec ially eg reg ious error

that strikes at the fa irness, integ rity , or public re putati on of judicial proc eeding s. See State v. Wooden, 683 S.W .2d 553, 559 (Tenn. Crim. A p p

. 1 9 8 3 ). When considering whether “plain er ror” exis ts we

c on sid e r the fo llo wi ng fa c tor s:

(a ) the re c or d mu st c le arl y e sta bli sh wh a t oc c ur

re d in the tr ia l c ou rt ; (b) a clea r and une quivocal rule of law must have been br eac hed; (c) a substantial rig ht of the ac cused must have been a dverse ly aff ecte d; (d) the a ccuse d did not waive the issue f or tac tical re asons; and (e) consideration of the err or is “nec essary to do substantial just ice.”

State v. Smit h, 24 S.W .3d 274, 282-83 (Te nn. 2000) (a dopting the te st articulated by the Court of Criminal Appeals in Adkisson, 899 S.W .2d at 641-42 ). All f ive fac tors must be established by the

re cord befo re a n a

pp e lla te c ou rt

wi ll r e c og nize the e xiste nc e of “ pla in e rr or ,” a ndc omp le te consideration of all the fac tors is not nece ssary when it is clea

r fr om the rec ord that at lea st one of the fa ctors ca nnot be established. I d. I n addition, the “‘pla in error ’ must [ have be en] of such a g reat mag nitude that it probably chang ed the outcome of the trial.” Adkisson, 899 S.W .2d at 642.

After a thoroug h revie w of the rec ord in this case , we conclude that the plain err or doctrine

c a nn ot a ff

or d the De fe nd a nt r e lie f. F ir st, the re c or d is c le ar a s to wh a t ha pp e ne d in the tr ia l c ou rt

. The prose cutor arg ued that the S tate’s witnesses had no rea son to lie, while the De fenda nt and the Def endant’ s counsel we re both liars. H e further c ontended that the D efe ndant’s cla im of po lice mis c on du c t w a s o utl a nd ish be c a us e po lic e of fi c e rs wo uldno t ruin the ir c are e rs ov e r the De fe nd a nt. The prose cutor a lso alleg ed that the Defenda nt was making the trial “ra cial” hoping that one or more jur or s w ou ld “b uy

thi s. ” F ina lly , th e pr os e c uto r m a de so me c le arl y ir re le va nt c omm e nts abo ut h is work ha bits and food pre fer ence s.

Al tho ug h th e ma nn e r i n w hic h th e se po int s w e re ma de arg ua bly c ro sse s th e lin e int o improper expressions of opinion or persona l be lief as to the cre dibilit y of witnesses, it is not clear that a cle ar a nd unequivoca l rule of l aw ha s been br eac hed. What is or is not im proper arg ument may very well vary depending on the context in which it was made. See J udg e, 539 S.W.2d at 343 (Tenn. Crim. App.1976) (holding that propriety of prose cution comments must be evaluated in light

o f w h e th e r th e y w e r e in d ir e c t r e s p o n s e to d e f e n s e ar g u me n t r a th e r th a n g r a tu it o u s ) ; se e a ls o G o lt z, 111 S.W .3d at 6. The pr osecutor’ s arg ument reg arding the truthfulness of the witnesses and the unlikelihood of police misconduct we re in dire ct response to the Def endant’ s assertion at tria l that the State’s witnesses w ere untruthful and the De fenda nt’ s t es t i m ony that the police c ommitt ed misconduct when the y

interviewe d him. The same mig ht b e said of the prosec utor’s re marks commenting on the Def

endant’ s attempt to make this case involve rac e. This statement wa s made in response to the Defe ndant’s insinuation at trial that the police use d two Afric an-A merica n office rs to obtain a conf

ession from the De fenda nt rather than a Caucasian officer

. Acc ording ly
, we c annot conclude that a cle ar a nd unequivoca l rule of law was broke n.-14-

Further, it is impossibl e to say whether the complained of comments adve rsely

aff ecte d the jury ’s ver dict in this case and w hether consi deration of this is sue is nece ssary to do substantial jus tic e . It sh ou ld b e no te d a g a in tha t th e bu rd e n o f p e rs ua sio n o n a pp e a l is on th e Defen dan t to d e m o n s t r at e that th e pr os e c uto r’ s c omm e nts “ mor e pr ob ably tha n n ot a ff

e c te d th e jud g me nt o r w ou ld result in prejudice to the judicial proce ss.” Tenn

. R . App. P. 36(b). Other than the bar e asse rtion that the prosec utor’s comments deprived the De fenda nt of a fa ir trial, there is no indication that the jury was unduly sway ed from its duties as ex plained in t he jury instructions. Finally , and per haps most im portantly , there is no excuse or explanation proff ere d by the Def endant, e ither in the re cord

or in h is b ri e f o n a

pp e a l, a s to the re a so n for his fa ilu re to obj e c t to th e a lle g e dly of fe nd ing c omm e nts

or his fa ilu re to ra ise thi s iss ue in his mot ion fo r a ne w tr ia l. Th us , we c a nn ot s a y that th e fa ilu re to object wa s for re asons other tha n tactica l. Under the se circ umstances we are of the opinion that the De fe nd a nt ha s fa ile d to c arry his bu rd e n o f p e rs ua sio n in c on vin c ing thi s Co urt to c on sid e r a s p la in

e rr or the pr op ri e ty

of the a lle g e dly

imp ro pe r c omm e nts of

the pr os e c uto r in clo sin g re bu tta l. T his issue is theref

ore w aived.

B. Se nt e nc ing

The De fenda nt next contends that the tria l court improper ly applied five enhanc em e n t fac tors when it sentenc ed him to ten y ear s in prison. I n a su p p l emental brief re quested by this Court, t he St at e co u n ters that this issue is waived and tha t, even if not wa ived, any err or in the trial court’s ruling is harmless. When there is a cha lleng e to the leng th, rang e, or ma nner of service of a se ntence , it is t he duty

of this court to conduc t a de novo revie w wit h a presumption that the determinations

ma de by the tr ia l c ourt are corr ect . T e nn . Co de An n. § 4 0- 35 -4 01 (d ). Th is p re su mpt ion is “conditioned upon the a ffirma tive showing in the rec ord that the trial c ourt consider ed the se ntencing principles and all rele vant facts and cir cumstance s.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 19 91 ); se e Sta te v. Jone s, 88 3 S.W.2 d 597 , 600 (T e nn . 199 4) . “I f the tr ia l c ou rt app lie s in app ro pr ia te fac tors or otherw ise fails to follow the 1989 Sentenc ing Act, the presumption of cor rec tness falls.” State v. Shelton, 854 S.W .2d 11 6 , 123 (Tenn. Crim. App. 1992) . The Sentenc ing Commission Comments provide that the burden is on the d ef en d an t to show the impropriety of the sente nce. Te nn . Co de An n. § 4 0- 35 -4 01 Se nte nc ing Com m’ n Cm ts.

Our revie w require s an analy sis of : ( 1) the evidenc e, if any , rec eived at the tri al and

se nte nc ing he ari ng ; (2 ) the pr e -s e nte nc e re po rt ; (3 ) the pr inc ipl e s o f s e nte nc ing a ndthe arg ume nts of counse l relative to sente ncing alternatives; (4) the nature and cha rac teristics of the of

fense s; (5) any mitigating or enha nceme nt fac tors; (6) any statements m ade by the defendant in his own beha lf; and (7) th e d e f

e n d a n t’ s p o te n ti a l f

o r r e h ab il it a ti o n o r

tr e a tm e n t. T e n n

. Co d e A n n

. § § 4 0 -35-102, -103, -210; State v. Smith, 735 S .W.2d 859, 863 (Tenn. Crim. App. 1987).

I n calc ulating the sentenc e for a C lass B felony conviction, t he pre sumptive sentence is the statutory minimum of eight y ear s for a Rang e Ioffe nder if the re a re no e nhance ment or mitiga ting fa c tor s. Se e Te nn . Code An n. § 40- 35 -2 10 (c ). I f the re are e nh a nc e me nt but no mit ig a tiv e fa c tor s, the trial court may set the s entenc e above t he mi nimum, but still within the rang e. Te nn. Code Ann. § 40-35-210( d). A sen t en ce i n v olving both enha nceme nt and mitigating fac tors require s an-15-

assig nment of re lative weig ht for the e nhance men t fa ctors as a means of incre asing the sentenc e. Tenn. Code Ann. § 40-35-210( e). The sentenc e must then be re duced w ithin the rang e by any weig ht assig ned to the mitiga ting f actor s prese nt. Tenn. Code Ann. § 40- 35-210(e ).

I n the ca se under

submissi on, in arriving at a mid-rang e sentenc e of ten y ear s the trial court

app lie d th e fo llo wi ng fi ve e nh a nc e me nt f a c tor s a ndno mit ig a tin g fa c tor s:

(6 ) the De fe nd a nt tr e a te d or a llo we d a vic tim to b e tr e a te d w ith e xce pti on a l c ru e lty du ri ng the c omm iss ion of the of fe ns e ; (9 ) t h e De fenda nt has a pre vious historyof unwillingne ss to comply with the

c on dit ion s o f a

se nte nc e inv olv ing re le a se int o th e c omm un ity ; (10) the D efe ndant possessed or employ ed a f

irea rm during the comm i s s i o n of the of fe ns e ; (1 1) the De fe nd a nt h ad no h e sit a tio n a bo ut c omm itt ing a

c ri me wh e n th e ri sk

to human life wa s high; a nd (17) the c rime wa s comm i t t ed u n d er c ircumstance s under whic h the potential for bo dil y inj ury to a vic tim wa s g re a t.

See Te nn. Code Ann. § 40-35- 114.

The United States Supreme Court’s rec ent opinion in Blake ly v. Washington, 542 U.S. __, 124 S. Ct . 2531 (2004), c alls into question the continuing validity of our cur rent sente ncing scheme

. I n that cas e , th e Co u r t, ap p lyin g th e ru le in A p p r e n d i v

. N e w Je r s e y , 5 6 6 U

. S. 4 6 6
, 4 9 0 ( 2 000),
str uc k d ow n a

pr ov is ion of

the Was hin g ton se nte nc ing g uid e lin e s th a t pe rm itt e d a tr ia l ju dg e to impose an “exceptional sentenc e” upon the finding of certain statutorily enumer ated e nhance ment fac tors. 124 S

. C t

. at 2537. The Court obser ved that “the ‘statutory maxi mum’ for Appr endi purposes is the maximum sentenc e a judg e may impose so le ly on the ba sis of t he fac ts re fle c te d in the jur y v e rd ic t or

ad mi tte d b y the de fe nd an t. ” 124 S. Ct. at 2537. Finally
, the Court concluded that “eve ry defe ndant has a right

to ins ist that the pr os e c uto r p ro ve to a jury [be y on d a

re a so na ble do ub t] all fac ts leg ally

essential to the punishment.” I d. at 2539.

None of the enha nceme nt fac tors used by the t rial court to enhanc e the De fenda nt’s sentenc e

wer e submitt ed to a jury or admitted by the Def endant. There fore
, the rule in Bl ak el yp re cl u des

app lic a tio n o f a ny

of the se fa c tor s. B e c a us e the re are no e nh a nc e me nt f a c tor s th a t w e re pr ov e d to

a jury be y on d a re a so na ble do ub t or

a dmi tte d b y

the De fe nd a nt, the se nte nc e mus t be mo di fie d to eig ht y ear s, the presumptive minimum.

C. Jury Instruction

Th e De fe nd a nt c on te nd s, in a su pp le me nta l le tte r t o th is C ou rt , th a t th e tr ia l c ou rt imp ro pe rl y g ave a n instruction to the j ury “af ter hours of deliberating .” The Defenda nt contends that “Rule 30 of the Criminal Procedur e states that a ny instruction giving [si c] must be inst ructe d befor e the jury retire s to consider the ve rdict.” This issue wa s not properly raised on a

ppea l an d
, there fore , we-16-

conclude that it is waived. Tenn. R. App. P. 36(a)

.

III. Conclusi on

I n acc ordanc e with the for eg oing a uthorities and re asoning , the judg ments of the trial c ourt

are aff irmed as modified. The Defenda nt’s sentenc e is modified to eig ht y ear s. We theref ore r emand for the e ntry

by the tri al court of an amende d judgme nt to indicate a se ntence of eig ht y ear s to be

se rv e d b y the De fe nd a nt i n th e Te nn e sse e De pa rt me nt o f C or

re c tio ns

.

___________________________________ ROBERT W. WEDEMEYER, J UDGE