### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs M arch 4, 2 003
STATE OF TENNESSEE v. TYRONE CUNNINGH AM, AKA

TYRONE CUMMINGHAM
Appeal from the Circuit Court for Lauderdale County No. 7059 Joseph H. Walker, III, Judge

No. W2001-02941-CCA-R3-CD - Filed July 24, 2003

The defenda

nt, Ty rone Cunn

ingham, appealsfrom his c onviction by a Laud erdale County Circuit Courtjury of second de gree murder. The trial court sentenced him as a ca reer, violent offender

to the maximum sent

ence of sixty years. The

defendant contends that (1) the evidence is insufficient to support hi s second d

egree murder c onviction , (2) the trial cou rt erron eously denie d his pr etrial motion for a continuance, and (3) the trial cour t erred in sentencing him as a career of fend er. We affirm the trial court’s judgment of conviction.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OSEPH M. T IPTON , J., delive red the opinion of the court, in which D AVID H. W ELLES and J AMES C URWOOD W ITT , J R ., JJ., joined.

Didi Christie, Brownsville, Tennessee (on appeal); Gar y F. Antrican, District Public Defender; and Dav id S. Stockton, Assistant District Public Defender (at trial), for the appellant, Ty rone Cunningh am, aka T

yr one Cumming

ham.

Paul G. Summers, Attorney Gene ral and Reporter; Peter M. Coughlin, Assistant Attorney Genera l; Elizabeth T. Rice, District Attorney Ge neral; and Tracey

Anne Brewer, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

Th is case arises from the November 27, 2000 bea ting death of inmate Joseph William s

. Corporal Bry an Fied

ler of the West Tenne ssee Stat

e Penit en ti ar y t estified that the defendant and victim were both inmates at the prison. Befo re Novem ber 27, 2000, he had never seen a conf lict between the defendant and the victim. On the day of the incident, he wa s stan ding in front of the guard shac k check ing the inmates leaving the dining hall for contraba nd. He said he saw the defendant step outof the industry building and strike the victim on the head with a metal roller pin. He said he sa

w the def endant hi tthe victim two or three times and the victim fall to the ground. He-2-

said the defe ndant kept hitting t

he victim i n the hea

d until the o fficer s arrive d. He sai d th a t the defendant struck the victim

a total of seven or eight times in a matter of seconds and that while the defen dant was striking the victim, the defendant was y elling “Die, M-F, die.” Four c orrec tiona l officers subdued the defendant, and Corporal Fiedler sec ured the metal roller

pin. Corporal Fiedler said that when he went to restrain the vict

im, he saw

the victim

was unar med and needed fir st

aid
as soon as possible. He said that as the officers led the defendant awa y, the defe

ndant yelled, “I

hope you die, M-F, I

hope you die.”
Corporal Fied ler testifi ed that the guard shack, where the yard of

ficers were posted, was locatedin the middle of the yard directly across f rom the inmate dining area. Next to the guard shac k
was a fence with a gate that led toth e industry building. The industry building consisted of the Wilson ball plan

t, where sports balls wer

e inflate d and pac

kaged , and a se

parate sewing area, where inmate clothing was made. All traffic going into the industry building must pass through a door, a metal detector, and anot her door before reaching the ball plant. He identified a photograph of a conveyor belt with a

missing me

tal rolle r pin inside

the ball p lant. He s a id the indu str y building containedwooden sk

ids for loa ding the balls, sta nding me tal ash tray s, m ops, broo ms, and me tal trash cans, which were more readily available to the defendant than the metal roller pin.
Corporal Fiedler testified

that when inmates arrive at the prison, they are told the procedures for notifying the a

uthorities if they fee

l threatened and that there ar e a number of people to whom they can g o to if they have pr oblems. He said that although other inmates came to h im in the past withproblem s, the defendan t never asked to be moved to a new location. He said the de fendant could have been housed or could have worked where h e would no t have co me into contact with the victim. He said that a few day s after the incident, the defendant told him that he and the victim had been having conflicts for a while and that he could not take it anymore . He said that at the suppression hearing, the defendant said that he kne w what he had done was wrong but that “he had to do w hat he had to do.” He also said that before the incident, the de fendant was a quiet inmate, stayed to himself, and had the reputation that no one should “mess” with him. He said that after the attack, the defendant’s reputation was that if y ou messed with him, he would kill you.
Corporal Fiedler

testifie d that he h ad often spoken with the vic ti m, who wasdeaf but able to speak a little with a speech impediment. He said that although hearing aids helped the victim hear
a little, the victim used signs to communicate. Corporal Fiedler knew sign language , and he said the victim would stop

and joke with him dail

y. H e said tha

t w hile he had worked at the prison, the victim had never been in Unit Six, which was reserved for the worst inmates.

On cross -examinat

ion, Corpo

ral Fie dler test

ified tha t he is tr ained to respond to gang situations and that the Gangster Disciples were one of the largest security

threats at the prison. He agreed that he did not observe the defendant and the victim together at work and did not know what had occurred between them that morning. He also said that he was familiar withthe conve

yor belt from wh ic h t he ro ll er pi n w as re mo ve d a nd th at , p re vi ou sl y, the yard of ficers would check

the roller pins to make sure they

were secure. He said that althou gh the v ic tim h ad a rep utati on for being a gang member, he had no t discusse d it with the victim. On redirect examination, Corporal Fiedler-3-

testified that no gang members helped the victim during the beating. He agreed that inmates had lied to him about g ang af

filiation s. He ag

reed tha t usuall y r

etaliati on follows the beating of a gang member but said that no one had retaliated against the defe ndant. He ackn owled ged that the d efendant was currently

in a single cell in a maximum security unit and ha d only one

hour o f
ex er ci se ev er y ot he r w ee kd ay.
Officer Jason Hurst testified that at the prison, inmates usually go to lunc

h around 11:45 a.m. and have about one hour to eat. As the inmates leave the dining area, officers sea rch them for eating utensi ls a nd contraband. He said that around 12:45 p.m. on November 27, 2000, he wa s working in the general population and saw a fig ht outside the industry

building. He said the unarmed victim
was about to enter the industry building when the defendant

came out of

the building’s doo

r and hit the victim with a large metal object. He said the d efenda nt raised the wea pon above

his head, hit the victim twice, a nd then used both arm s to strike the victim

again. He said

that the victim fell to the ground and that the defendant hit him three or four more times. Office r Hurst said that as the defendant was hitting th

e victim, t he defe ndant sai d, “I

hope that M-F dies ” and “Die, N, die.” He said that as he and the other officers restra ined the defendant, the defenda nt continu ed to rep eat thes e statemen ts. He said the officers placed the defendant on the ground and stay ed on top of him w

hile handcuffing him. He sa

id no one a side fro m the cor rection al offic ers cam e to the victim’s aid. Officer Hurst sai d that on A

ugust 20, the defen dant told him that he knew what he had done was wrong and that if security had been better, the incident would never have happened.
On cross-examination, Officer Hurst testified that after the incident, he took the defendant to segregation. He said th e defendant told h

im that the

victim had harassed him for ten months and that he hoped the victim

died. He said whe n asked if he had a

knife, the defendant said, “I f I had one, I would have used

it.” Off icer Hur st said the

defenda nt was ag gressi ve and ho stile on the day of the offense.
Stephanie Maxwell, a registered nurse at the prison, testified that she had first cared for

the victim after he was raped at For

t Pillow years earlier

. The victim was deaf, blind in one eye, and had
a speech impedimen

t. She ofte

n came in to contact with the victim because of his medical needs and characterized

him as light-hearted

and n ever causing any

trouble. She said that on November 27, 2000, she was called to the industry building a round 12:45 p.m. to respond to an injured inmate. She said that she saw the victim lying in a pool of blood and his face was unrecog nizable due to his injuries. The vi ctim had a p ulse a nd was breath ing, but his injuries were too extensive to treat at the scene, and they

took him to the prison’s emergency room. She said that while they wer e attending to the victim, the defendant, who wa s angry and hostile, yelled, “I

hope that M-F dies,” and “Die, n****r, die.” The victim, who had disfiguring facial injuries, died in the prison eme rgency room. Ralph Gromley , a reg istered n urse at We st

Tennessee State Penitentiary , testified that when he arrived at the scene on November 27, 2000, he saw the victim ly ing in a pool of blood but did not
reco gniz e him due to his massive head trauma. He said that as guards restrained the defendant, the defendant was yelling , “Die, you motherf *****g n r, die.” He said that the dining hall is about fifty yards from the in dust ry buildi ng. He said that he conducted monthly sanitation inspections of-4-

the prison buildings for the state and that most things in the industry building that could be used as weapons were secured.
Misty Bentley, a

nurse, testified that she responded to the November 27, 2000 attack on the victim. She said that she first went to the defendant, whom officers were restraining , butturned her attention to the vic tim after the offic ers expla

ined that it was the

victim who was injured. She said she was close enough to see the defe ndant and could not see any injuries on him, although she was notable to examine his face. She said the defendant was y elling that he hoped he had killed the victim. She also said that she knew the victim, who was alway s laughing and jokingwith her, and that he ha d never b een a pr

oblem.
Joseph Vernon , an Inter nal Af fairs Investi ga tor with the Tennes see Department of Correction (TDOC), te stified that inmate s recei ve a han dbook tha t gives i nstructio ns for ha

ndling pr oblems wit

h other inmates. Some of the possible remedies for these problems are moving the inmate to different housing; a different

site, which is basically a diff erent facility

at the same institution; ora separ ate institution. The inmat

e could a lso request protective custody , which involves being separated from the general population. He said that whenever an inmate had come to him asking to be moved, the request wa s a lw ays honored if the threat was verified. He said that a ny problems the defendant was having had never been broug ht to his attention.

Inves tiga tor

Vernon t

estified that in his i nvestig ation of th is case, he took ap

proximate
measure ments at the prison. The distance from the industry door to the dining area was 193 feet, and the distance from

the door to the place where the rolling pin was or iginally loca

ted was 84 feet

for
a total distance of 277 feet from the dining hal l to the rol le r pin. He said the industry building containe d many things that could be used as weapons. He said that he attempted to interview t h e defendant after the incident and that the defendant askedonly if the victim had died. He sa id he took pictures of the defendant after the attack a nd noticed a superficialcut on the defendant’s lip but did notknow how the defendant got the cut. He said that at the suppr ession hearing, the

defenda nt said that he was sorry

he did it but tha

t he did wh at he had

to do. On c

ross-exa mination, h

e said being labeleda snitch s ometimes s ubjects a n inmate to ret ribut ion. He sai d he di d not know o f any gangrelated activities or attacks in which the victim participated. He agree d the Gangster Disciples were probably at West Te

nnessee State Penitentiary . He ag reed tha t white tissue paper

containing what could have been bloodstains was found in a trash can in the industry building, but

he had not tested it because he was instructed that there was no ne ed for a test.

The defenda

nt testified that h e was se rving a life sent ence at West Tenne ssee Stat

e Pe ni te nt ia ry, had been incarcerated for ten year s, and had neve

r had a pr oblem with

fightin g. He sa

id that he was not in the same housing unit as the victim and that although he did not know the victim at the time, the victim touched his hair in the cafeteria line one day. He said he told the victim to keep his hands off him and asked another inmate if he could ge t in front of him in line. He said the victim cursed at him throug

hout that me al. The d

efenda nt said tha t he deci ded to wa

lk away but that the victim continued to call him names, such as “bitches and whores,” in the cafe teria and prison yard. He said other inmates told the vict im to le ave him alone. He said that in March, he beg an-5-

working in the ball plant where both he and the victim operated tape machines. He said that at the ball plant, two roller pins were loose and could be removed fr om the conveyor be

lt.

The defendant testified that on his firs t day

at the ba ll plant, th

e victim g estured

at him but that he ignored

it. He said his problems with the victim worsened because he did not confront the victim. He said that

more tha n once, th e victim le

ft his wor k area a nd tried to

provoke a fight with him. He said he would te ll the vict im to leave

him alone

and then g o to the re str oom to smoke a cigarette. He said the victim made threats that he would rape him or kill him. He said in addition to the threats, the victim would kick him or elbow his back near the time clock, push or bump agai nst him a t the water fountain and in the cafeteria, a nd spit on him. He said that the police were not al wa ys around and

that an in mate could do pret

ty much whatever he wanted while a truck w as at the back. He said he did not w ant to provoke the victim because, although he could have fought the victim, he did not want to be raped by a grou p of peop le. The d

efenda nt said tha

t he ref used to joi n a gang but that the victim was a gangmember. He said he felt that eventually the victim would have raped or killed him o

r allowe d another

person to do somethi ng to him.

The defendant testified that on the day of the offense, nothing happened until it was time to go to lunch. He said that

as he was standing in line to clock out, the victim pushed him from behind, resulting in a cut to

his lip. He

said that t

he victim h

it him and that although he did not want to, he fought back. The defendant said that they fought three times and that the victim beat him up. He said that this was the first ph ysi cal fig ht betwee n the two o f them. He

said that h

e trie d to mak e peace with the victim after each fight and that other inmates tried to st

op the fig ht but that t

he victim kept fighting. The def

endant sa id that his lip, eyes, and nose we re swollen and that his mouth was cut from the fight but that he did not seek medical attention. He said th at after the fight, he went to eat, but only

ate half of his foo d. He sai d he could not go to the correctional officers because he was afraid of retribution.
The defendant testified that as he was returning to the industry

building, he saw the victim talking to another gang member a nd at least two other gang members standing by them. He said the victim threate ned to rape him after they entered the building and sh owed him a brown pa per bag in the victim’s coat. He said he w as not sure w hat was inside the bag. He said that the door to the in dustry buildi ng was n ot open wh en he ar rived but that afte r it opene d, he wasone of the first to enter. He was search

ed as he w ent into the

ball plant. The defendant said that just before he went into the ball plant, the victim touched his buttocks and smiled at him. He sa

id that af ter the victim touched him, he was scared, not thinking clearly , and “95 percent of [his] mind was confused.” The defendant testifie d that he w as alre ady disturbe d by

being in prison, the victim’ s harass ment and beating s, and having to avo id gett ing hurt const antly . He said

he felt a s if this wa s a life or death situation because heknew the victim wa s in a ga

ng and h e had alr eady done all h

e could to defend himself.

On cross-examination, the defendant testified that he had walked awa y from the victim for ten months before he killed the victim. He admitted that he never went to a correctional officer and complained about his proble m with the victim unde r the gr ievance procedu re but sa id these-6-

procedures do not work. He admitted he got th e metal r oller pin f rom the c onveyor belt

and killed the victim. He said that

when he g ot the roll er pin, the only thing on h

is mind was the victim

and the pin. On re direct e

xamination, he said th at after the victim

had hara ss ed hi m for five or six months, he complained to Big T, a ranking member of the Gangster Disciples, about his problem withthe victim . He said

that the gang put the victim on violation but that after a wee k and one-half, the victim started causing problems for him again a nd called him a snitch.

Officer Bobby Hoope

r testified that he was the only officer working on the ball plant side of the industry building on

November 27, 2000. There were thirty- two inmates working on the sewing side and thirty-six inmates on the ball plant side that day . As the inmates enter the building, he takes their identification cards to keep track of how many inmates are in the building. At lunchtime, one officer stands just inside the d oor and searches the inmates. A y ard officer watches the metal detector, and a thir

d office r stands ju st outside t

he industr y bu ilding do or and ha

nds the inm ates the

ir identificat ion cards. None of the three of ficers h ave a cl ear vie w of the ti me clock inside the

ball plant as the inma

tes are leaving for lunc h. He sai d it usually takes about twent y minute s to go throu gh all of the inmates working in the build ing. As s oon as the

y g et their c ards, the

inmates w alk to the dining area. Officer H ooper said that as the defendant, whom he describe d as quiet and hardwo rking, left the building t o go to l unch on the day in que stion, he noticed a fresh cut on the defendant’s lip. He said that when he asked the defendant about it, the defendant grabbed his car d and left without saying a

nything. He

said he was not aware of

any fig hts between the defendant and th e v ic ti m b efor e t he y we nt to lu nc h t ha t d ay.
Officer Hooper tes tified that when both of the officers working in the industry building return, they take

the inmate s’ identification cards and search them ag ain before letting the inmates back into the building aft er lunch. He said an officer does not wa tch the metal detector when the inmates return f

rom lunch. On

th e day of the vic tim’s dea

th, the defendant

was one o f the fir st inmates back fr

om lunch. O fficer

Hooper w as standi ng by

his desk in the work

area next to the door that leads into

the ball p lant side o f the indu stry building search ing inma tes a s t he y returned from lunch. He said he searched the defe ndant and proceeded to the next inmate. He said the defendant then ran past him with a roller pin. He said he sh outed at t he defe ndant tostop, the defendant kept runni ng, and he chased the defenda nt . He said

the defe ndant ra n throug h the cro wd of inma

tes in the building with little difficulty because they sep arated for him. Officer Hooper said that he had trouble passing through the crowd and that whe n h e reached the door, he saw the victim on the ground and the defendant

hitting him with the roller pin. He said he tackled the defendant, disarme d him, and held him until other officers arrive d. He sai d that the defenda nt tried to get up but that he continue d to hold him . He said that after the incident, theinmates were returned to their cells and the industry

building was sec ured. He

said he identified the defendant’s coat for Tennessee Burea u of Investigation (TB I) age

nts, who found paper towels with what appeared to blood

on them in the pocket.

Officer

Hooper testified

that he knew of no conflicts or fights between the defendant and

the victim in the days or weeks prec eding th e attack. He ag

reed tha t the def endant a nd the vic tim workedwithin eight to ten feet of each other. He sa id he was not always in a position to watch them-7-

because he must remain at the back door when trucks are present. While he is with a truck, no other officer is assigned to take his place inside the building. A Tricor supervisor tries to be in the work
area while he is with a truck, and the building does not have video cameras. Officer H ooper said that altho ugh he arrives before the inmates, he does not have time to search the building for weapons due to its large size. He said tools such as screwdr ivers, wire plier s, and box cutters are given to the inmates who work

with th em and then locked up as the inmates leave the building. He said the rolling pin that the defendant used came from a convey or belt, but he did not know whether it was
secure d or not.

On cross-e

xamination, Office

r Hooper testi fied tha t the attack occurred at the end of the l unch hour aro

und 12:47 p .m. He sa

id that alt

hough th e defendant coul d have re tu rned firs t
oc ca si on al ly, he was no t usually one of the

first inmates back from lunch. He said that the inmates used the same procedures to go to and from lunch every da

y and that the door to the industry building was open to allow the inmates to return to work . H e also said that at the time the defendant
r an out wi th the roller pin, he had no doubt that there was no actual or imminent threat to the defendant.

Inmate Robert Atkins testified that he knew both the victim and the defendant and worked withthem at the ball plant. He said that on the morning of the offense, he and the d efenda nt had finished working

on their f ootballs a nd that he prepar ed to work on the footballs on the victim’s line. He said the defendant did not want to work on the victim’s footballs and sat down. He said that the victim y elled but that the d efenda nt did not r

espond to h

im. He said he came out of the bathroom before going

to lunch a

nd discove

red that the defe ndant and the victim

had bee n fighti ng. He s aid the defendant’s face was re d from being punched by the victim. He

said that the defendant extended his hand and asked the victim to shake because they were not afraid of each other but that, instead, the victim knocked the defenda nt down an d punche d the def endant’ s face. Mr. Atkinssaid Officer Hooper did not

see the f ight fr om his positi on inthe fron t. He said

there wa s nothing

but ang er in the defendant’s face when he f inally got up. Mr. Atkins said the de fendant went

to lunch but, instead of eating, threw his food

away . He said

that the defendant went back to the industry building and that as the victim got to the door, the defendant came out and star ted beating him. He said th e victim
was an enforcer for the Gang ster Disciples. On cross-examination, he said the defendant did not show that he was afraid of any one.

Inma te Darrell Sellers testified that at the time of the incident, he had knownthe defendant for about three months because they worked together

at the ba ll plant. H e said

that on the morning of the attack, he was clocking out to go to lunch when he turned ar ound to see the defendant and the victim fighti ng. He said both the defendant and the victim threw punches, and the victim knocked the defenda

nt to the g

round. He

said the defendant said, “Joe, why you keep f** ***g

with me? I told you to leave me a

lone. Quit f*****g with me,” and the victim responded b y say ing, “I f**k withyou when I want to.”He said

the victim

hit the defendant again, starting anothe r fight, which lasted two or three minutes. He said both participants threw punche s, and the defendant fell or slipped to the floor. He said the defendant got up and told the victim, “The Tricor workers are g one. The poli ce did n’t se e noth ing. You can see ain’t nobody scared of nobody . We done fought. Let-8-

this be over

with.” He

said the victim

struck the defendant again, starting a third fight that lasted one
or two minute s. He said

the defendant fell to the floor once more, then go t up, and le ft the buil ding. He said that after each fight, he be lieved the defendant was trying to end the fig hting. H e said

two or three officers were in the ba ll plant by the door during the three fights.

Inma te Sellers testified that at lunch, the defendant gave his food to him and the others a

t his table. He said he saw the victim sitti ng at hisregula r table with othe r members of the Gangster Disciple s, the victim’s gang. He did not know of any problem betweenthe defe ndant and the victim before the fight, the defendant had never told him the def endant feared the

victim or the Gangster Disciples before the fights, and he never saw the defendant or the victim fighting with any one else.

On cross-examination, Inmate Sellers testified that upon returning from lunch and

entering the industry building, inmates re turned their identification cards and were fr isked. He said that as he came into the industry building, he saw the defendant going out with a roller pin over his head. He said he looked out the door and saw the defendant hitting the victim on the head. He said he saw the defenda

nt hit the vi ctim

three or four times as the victim lay on the g round. He

said the victim
was a lot taller and bigger than the de fendant. He said that the defendant’s picture from the day of the offense revealed an abr asion under his left ey e.

Inma te G ary Pitm an testified that he also worked at the ball plant and had known the defendant since 1998. He said that when lunch was announced on the day of the offense, he went towardthe time clock and saw that the defendant and the victi m had b een figh ting. He said he tried to stop another fight between the defendant and the victim, but the defendant hit the victim in the mouth, starting a new fight. He said theofficers did not know of the fight, and it took the normal amount of tim e –ten or fif

teen m inut es – fo r the i nmate s to go to lunch. He said that he sat with the defendant at lunch and that the defendant agree d he was all right. He said he had previously told the victim to leave the defendant alone on more than one occasion. On cross-examination, he said the fights occurred between 11:30 a.m. and 11:45 a.m. He said he he ard the d efenda nt tell the victim that they had prov en they

would fig

ht and we re not sc ared of

each oth er. He s aid he und

erstood t his to mean that the defendant would not let the victim bully him ar ound anymore.

Inma te Randy Crow

testified that

he had known the defendant and the victim for only about
a week at the time of the incident. He said he had already

clocked out and did not see the defendant and the victim fight before lunch. He

said the victim got in line in front of him, and the defendant yelled to the victim that “if that’s all he ha d, he was weak.”
Stanley Norris te stified th at he wa s a n officer in the defe ndant’s h ousing p od at West Tennessee State Penitentiary . He said that i n the w eeks b efore t he offe nse, h e noti ced a ch ange in the defendant’s behavior

and that the defendant was not socializing in the pod like he normally did. He said that when asked about it, the defendant said he was having a problem at work. He said that the defend ant wa s not speci fic abo ut th is pro blem a nd th at the matt er did not s eem ser ious enough to report. He said he had not had any problems with the defendant and was not aware of a ny problems betwee

n the def endant a nd the othe

r guar ds.-9-

Tony Lee Fulkerson testified tha the was formerly

a correctional officer at the prison and had workedin the unit that housed both the defendant and the victim. He said that the defendant lived in pod 3-A and that he thought the victim lived in pod 3-B. He said the defenda nt came to him and askedhim what to

do about th

e victim. He said th

e defendant told h

imthat the victim wan

ted him
as his boyfriend but

that the defendant did not want this relationship. On cross-examination, he admitted that inmates lie to him regularly and that he did n ot kn ow if the defendant’s complaint about the victim was true. He said that he told the defendant about the gri evance

procedu re and to whom he should talk but that the defendant never requested to be moved.
Johnny Hamby testified that he is a supervisor at the Wilson ball plant. He said the defendant had worked there eight mo nths and was a hard worker. He said he ha d not seen the defendant involved in any

fights. The def

endant a nd the vic tim both ope

rated a utomatic tape machines about twelve feet apart. Open rollers connected two convey or belts, but he did not know that two of the roller pins were

not secur

e. He sa id one pin n

ear the defenda nt’s work st ation and one near the victim’s workstation were loose and could be r

emoved. T

he pin close to where the victim worked had not been r

emoved. He said he

is on the pl ant floor

“pretty well” all the time b ut admitte d the plant is very large. He denied that an inmate could be attacked on the open floor of the plant without his knowledge but said an attack could possibly occ ur behind the stacks of empty boxes before they
were broken down. He s aid that if a fight were to occur, the ot her in mates would start yelling. He admitted that if the

inmates di d not yell, then something

could hap

pen that h e might n ot know ab out. He said that

he hands out the tools – two box knives, five pairs of scissors, and one band tightener

–and that

each tool is assigned to an inmate based on his specific job. He said the tools are not checked in when in

mates g o to the ba

throom, bu

t the inmat

es must tur

n their tools in before going to lunch.

Lieutenant

Russell Keesler testified that while wor

king in I nternal Affair s, he investigated gang s, including the Gangster Disciples. After reviewing his report, he said he investiga ted the victim in 1995 f

or directing other inmates to assault an inmate named Nelson. The victim was placed in maximum se curity

at the time . On cros s-examina tion, he sa id that alt hough he could only vaguely r emember the victim , he did no t believe the victim

went to co

urt over the assa ult.

Barbara Scoley, a cle

rk in the prison’s records office, produced the victim’s prison record s. The victim’s TDOC admission assessment sheet revealed that the deaf victim had problems re lating to other inmates and was involved in several fights. A TDOC disciplinary repor t and an involuntary administrative segregation placeme nt report disclosed that in 1995, the victim was involved in an assault of another inmate and was placed in involuntary administrative segregation as a re sult of the attack. Another TDOC disciplinary repor t stated that

in April 2000, six members of the Gangster Disciples, including the victim, assaulted another inmate.
Based upon this testimony, the jury convicted the defendant of second deg ree murder.-10- I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to support

his second degree murder conviction because the proof shows that he acted in self- defense. He also argues that the evidence is not sufficient to support a finding that he knowingly killed the victim but, instead, shows the existence of adequate provocation for the killing. The state argues that the evidenc e is suffi cient to support his conviction. We agree with the state.

Ou r standard of

review w

hen the sufficiency

of the ev

idence i s questioned on app eal is “whether, after

viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the c rime beyond a r

eas onable doubt.” Jackson v. Virg inia , 443 U.S. 3 07, 319, 99S. Ct. 2781, 2789 (1979). We do not reweigh the evidence but presume that the jury has re solved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of the state. See State v. She ffield , 676 S.W.2d 542, 547 (Tenn. 1984); Statev. Cab bage , 571 S.W.2d 832, 835 (Tenn. 1978). Any questions about witness cre dibility were resolved by the jury

. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).

A conviction for second degree m u rder requires proof that the defenda nt unlawfully and knowing ly

killed another. See Tenn. Code Ann. §§ 39-13-201, -210(a)(1). A per son acts know ingly wi th respec t to a result of the pe rson’s c onduct wh

en the pe rson is aw are tha

t the cond

uct is
reasona bly certain to cause the result. Tenn. C ode Ann. § 39-11-30 2(b). Te nnessee ’s self- defense statute, Tenn. Code

Ann. § 39- 11-611(a

), provid es as fol lows:

A pers on is justified

in threa tening o r using f orce ag ainst another person when and to the degree the pers on reaso nably

believes the force is immediately necessar y to protec t again st the othe r’s use
or attempted use of unlawful force. T he person must have a
reasona ble belief th at there

is an immine

nt dang er of de athor serious bodily injury. The dang er creating the belief of i mminen t death or serious bodily injury

must be real, or honestly be lieved to be rea l a t the time, and must be founded upon reasonable grounds. Ther e is no duty to retrea

t before a person threatens or uses for ce.
The state has the burden of negating any defense raised by

supporting evidence. See Tenn. Co d e Ann. § 39-11-201(a)(3).

The defendant contends that the evidence shows tha t he acted in self-defense beca use he
reasona bly believed the force he us ed was necessary to protect himself from the victim, who had thr eatened

to rape him and had assaulted him just before the offense. He claims that he and th e victim were confined together a nd that he would not have been able to flee if the victim attacked him. In response, the state points to the abundance of evidence refuting self-de fense, including the victim being unarmed; testimony that the defendant was notafraid of the victim; and the defendant’s retrieving a metal roller pin, crossing the building, and striking the victim repeatedly

.-11-

We believe the evidence is sufficient to warrant the jury ’s rejection of self-defe nse beca use th e defenda nt did not have a reasonable belief that force was immediately nec essary to prote ct himself. Although the vic tim i nstigated three fights with the defenda nt before lunchtime, the defendant’s beating of the vic tim occur red an ho ur afte r these f ights at a time whe

n the vict imposed
no immediate threat to him. Inma te Gary Pitman testified the fig hts between the defendant and the victim occurred between

11:30 a.m. and 11:45 a.m. Officer Jason Hurst testified that the inmates go to eat around 11:45 a.m. and have about one hour to eat. Ac cording to Office rs Hurst and Hooper, the attack on the victim occurred about 12:45 or 12:47 p.m., as the inmates were returning from lunch. Nu

rse Stephanie Maxwell testified that she was called to the scene of the attack a t 12:45 p.m. Taken in the light mos t favor able to the state, approxima tely one hour passed f rom the tim

e of the fig hts t o the time t

he defe ndant bea t the victi m with a me

tal rolle r pin. The

evidenc e als o shows that at the time the defendant attacked him, the victim was unarmed. Although the defendant claims that the victim flashed something in his coat inside a brown ba g at him, he admitte d he did notknow that

it was a weapon. Officer Hurst testified that inmates were sea rched for utensils and contraband as they

left the dining area.

The defendant also claims that the victim threaten ed to rape h im after they e ntered the industry building and grabbed his buttocks shortly before he killed him. After lunch, the defendant traveled 193 feet to the industry building a nd an additional 84 feet inside the industry building to the location of the roller pin. The defendant was searched by Officer Hooper a s he ente

red the b all plant. Then, the defe

ndant, passing Officer Hooper ag ain, ran back to the door leading to the outside of the industry building where thevictim was standing. Officer Hooper testified that there wa s no threat to the defendant as he ran out of the building with the roller pin. Furthermore, the defe n dant repeated lystruck the victim with a metal roller pin, continuing to hit the victim even after he had fallen to the gr

ound. The

jury could hav e ration all y conclude d that the defenda nt respon ded with
more force than was necessary to protect himself. Although the defendant contends that his fear that the victim would rape him was reasonable, Johnny Hamby testified that

he was on the ball plant floor nearly all the tim

e and t hat it was unlikely that an inmate could be attacked without him knowing
a boutit. The cr

edibility and weig ht to be g iven to a w itness’s t estimony are issu es to be r

esolv e d by the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). There was ample evidence for the jury to reject the defendant’s claim of self-de fense.

The def endant also summarily contends tha t even if the jury pr

operly re jected his self-d efens e claim, it should h a ve convicted him of voluntary manslaughter rather than second de gree murder because the proof shows the victim caused adequate provoca tion to lead him to act

irration al ly. Voluntary

manslaughter is “the intentional or knowing killing of a nothe r in a state of passion produced by adequa

te provocation suffici ent to lead a reasonable person to act in an irr ational manner.” Tenn. Cod

e Ann. § 39 -13-211( a). View ed in th e ligh t most favorable to the state, the evidence supports t

he jury ’s finding

that the d efenda nt unlawf ully and knowingly

killed the victim. The defendant

walked to

the conveyor

belt inside the industry building, retrie ved a metal roller pin, and ran out of the building. As the defendant left the building, he struck the victim seven or eight times with the roller

pin, three o r four times after the victim had fallen to the ground. A s the defendant struck the victim, h

e repea tedly ye lled for t he victim t

o die. Corporal Bry an Fiedler and-12-

Investigator

Joseph Ver

non testif ied that th ere we re items in the indu stry

building more ac cessible than the roller pin that could be used as weapons We believe that a rational jury could have found that the d efe ndant beat the victim knowing that his conduct was reasonably certain to cause the victim’s death. We note that the trial court instructed the jury on voluntary manslaug

hter, but the jury believed that the defendant knowingly killed the vi ctim wit

hout adequate provocation. “Whether the acts constitute a ‘knowing killing’ (second de gree murder) or a killin g due to ‘adequa te provocation’ (voluntary manslaug hter) is a question for the jury.” Statev. Johnson , 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995). We conclude that the evide nce is sufficient to support the conviction.

II. DENIAL OF CONTINUANCE

As a part of his sufficiency argument, the defendant

contends in passing that

the trial court
errone ously

denied hi s reques t for a c ontinuanc e to secu re proof of the vic tim ’s pri or acts of violence. He a

rgu es that the

victim’s s tatus as a

convicte d violent r

apist wasa chara

cter tra it essentia l to his cla

im that he a

cted in se lf-defe nse beca use the vi ctim was th

reaten ing to ra pe him. See Tenn. R. Evid. 405(b ) (provi din g that proof of specific instances of a person’s conduct are admissible

in cases “in which character or a trait of character of a

person is an essential element of
a charge, claim, or defense ”). He asse rts that th is evidence was a

dmissible t

o corroborate his theory that the victim was the first aggressor. The state c ontends that the defendant has waived this issue by failing to include it in his new trial motion. It also arg ues that he has failed to show that the trial court abuse d its discr etion in den ying the co ntin uance, poin ting out th at the defendant presented evidence of the victim’s g ang-r elated violence

while inc arcer

ated tocorroborate his theory that the victim was the first aggressor. I t asserts that

the defendant has failed to show or even to argue that the gra nting of the conti nuance

would hav e resulted in a diff erent ou tcome at t rial.

On May3, 2001, the defendant moved for a continuance of the May 30, 2001 trial

date , arguing that the penitentiary had hinde red his investigation requiring defense counsel to seek c ourt orders for disc overy

and that h e neede d to invest

igate a possible sanity or competenc y issue. On May 5, 2001, the court ordered that the defendant’s a ttorney and investigator be allowed to examine the victim’s institution al file. O n May 23, 2001, t

he trial c ourt gr anted the defendant’s motion for a continuance based upon a showing of good cause and or dered that the trial be continued to October 8, 200 1. On October 5, 2001, the defendant filed an ex parte motion for a continuance and supporting affidavit alleging that the defe nse needed

additional time to find the deceased victim’s prior ra pe and a ssault vic tims and to i ntervie w them abo ut the dec eased vi ctim’s g rabbing of their buttocks prior to

his attacking them. The affidavit stated that on Septemb er 12, 20 01, defe ndant told defense counsel t hat the vi ctim gra

bbed his buttocks just before the defendant ran into the work are a and secured t he roller pin. It alleg ed that counsel had only the previous day loca

ted this court ’ s opinion in the victim’s convicting case, State v. Will iams , 920 S.W.2d 247 (Tenn. Crim. App. 1995), and needed

additio nal tim e to travel to Nashville and examine the appellate record in that ca se. Following a hearing on that same day , October 5, 2001, the trial court entered an order deny

ing the
mo ti on. It

found tha

t the opinio n in the deceased victim’s case had bee n a matter of public record since 1995, that

it had already

granted one continuance in the ca se, that the defendant did not know any of the de ceased ’s victims or alleged actions before the of fense, and that the likelihood of gaining-13-

admissible

evidence from the victims of the deceased wa s small. The defendant did not raise the denial of this specific continuance request in his motion for a new trial.

The defenda

nt’s fail ure to ra ise the issue in his motion for a new trial precludes our review of this issue, subject to our noticing plain error. See T.R. A.P. 3(e) (p rovid ing t hat grou nds upon which a new trial are soughtbut which are not raised in a motion for new trial will be treated a s waivedon appeal), 36(a) (pr oviding that re lief is not required for a party who failed to take
reasona bly available action to prevent or nullify an error). The gr

anting o f a conti nuance

rests with in the sound discretion of the trial court. Moorehe ad v. State , 219 Tenn. 271, 274-75, 409 S.W.2d 357, 358 (1966). We will reverse the denial of a continuance only if the trial court abuse d its discretion and the defendant was prejudiced by the denial. Statev. Morgan , 825 S.W.2d 1 13, 117 (T enn. Crim. App. 1991). In order to show pre judice, the defendant

must demonstrate that a different result might
reasona bly have been reached if the trial c ourt had granted the continuance. Id. In Moorehead , our supreme court sta ted that th

e trial c ourt’s exercise o f discre tion will no t be distu

rbed on appeal “u nless s omething is developed in the after trial to show that the defenda nt might have been prejudiced

in so me wa y b y the refusal to grant a continuance.” 219 Tenn. at 275, 409 S.W.2d at 358-59.

In the present case, the trial court’s denial of a continuance was not

error. As the trial court noted, this court’s opinion in the victim’s case was filed in 1995. In examining the sufficiency of the evidence, the Williams opinion notes that the dece ase d victim assaulted three women by grabbing their buttocks on the evening before the off ense. Furthermore, as the state notes, the defendant was required to offer any helpful witnes ses whom he w ould have present ed at tria l at a hearing on his new trial motion. Thus, the defenda nt has fa iled to show how he was prejudiced by the trial court’s denial of his request for a continuance. We discern no plain er ror and declineto fault the trial court’s exercise of discretion.

III. SENTENCE

The defendant contends that the trial court erroneously sentenced

him as a career offender because his conviction for first degree murder a nd four convictions for Class A felonies stemmed from a single course of conduct in Dece mber 1991. He argues that the state failed to prove that these convictions caused o

r threa tened bod

ily injury . The stat

e contends that the

trial cou rt prope rly sentenced the defendant as a ca reer offender. We ag

ree with the state.

At the sentencing hearing, the state introduced certif

ied judg ments along with the ir corresponding indictments relating to the defendant’s convictions pursuant to guilty pleas for four offenses occurring on December 11 through 12, 1991: The first degree murde r of Sandra Fay e Hill; the attem pted firs tdegree murder, a Class A fe lony, of L atonya Hill; and two counts of especia lly aggravated

ki dn ap pi ng , a Cl as s A fe lo ny, of Sandra Faye Hill and Anna Fay e Hill. With respe ct to the especially a

ggravated kidnapping

of Anna Faye Hill, the fo ur count indictment charges two counts of especially

aggravated kidnapping

based upon the victim’s age being less than thirteen and two additi onal coun

ts of that o ffense

based up on the def

endant’ s use of

a deadly weapon, a pistol.1 The legislature ’s 2002 amendmen t t o Tenn. Code Ann. § 40-35- 114 added as the new en hance ment fact or (1)

that the “offense was an ac t of terrorism” but cha nged the ex isting enhanceme nt factors only in increasi ng thei r designat ing number

by one.
-14- Likewise, the four

count indictment relating to the es pe ci al ly a ggr av at ed ki dn ap pi ng of Sa nd ra Fa ye Hill charges two counts based upon serious bodily injury to the victim and

two base d upon the

use of a deadly weapon, a pistol. Neither ju dgment f or espec ially

aggr avated k idnapping indicate s to which count of the indictment the defendant pled.

The trial court found that the defendant was a car eer offender because of his prior convic tions for first degree

murder and three additionalClass A felonies. It declined to consider the se offenses to be a single course of conduct because it found th at the ac ts resulte d in or th re at en ed bo di ly i nj ur y. It determined that even

if it were to consider the especially aggravated kidnapping

and first degree murder of Sandra Faye Hill to be a single course of conduct, the defe

ndant still had sufficient prior convictions to qualify

as a car eer off ender. A lt hough it

noted that it did not have to weigh the enhancement

and mitigating factors in order to impose the maximum sentence for a career offe nder,
see Tenn. Code Ann. § 40-35-108(c), the trial court applied the following enhancement factors: (1), that the defe ndant had

a history of crimin al convictions or be havior be yond that nec essary

to establish his range; (5), that he treated the victim with exceptional crue lty during the o ffen se; (8), that he had a

previoushisto ry of

unwillingness to comply with the terms of r elease into the
co mm un it y; and (10), that he had no hesitatio n in committ

ing an o ffense

when a hi gh risk t

o human life existed. Tenn. Cod e Ann . § 40-35-114 (Supp. 2001) (amended 2002). 1 It found that no mitigating factor s applied and impose d a sixty -y ear sen tence, t he maximum in

the range. It observed that the defendant was statutorily required to serveone hundred percent of his sentence as a violent offender. See Tenn. Code Ann. § 40-35-501(i)(1)-(2)(B ). Finally, the tria l court ordered that the defendant’s present sentence run consecutively

to the life sentence he was serving a tthe time of the offense, finding

him to be a dangerous offender with an extensive criminal record. See Tenn. Code Ann. § 40-35-115(2), (4).

A ppellate

review o f sentencing is de novo on the record with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40- 35-401(d), -402(d). As the Sentencing Commission Comments to these sections note, the burden is now on the appealing party to show that the sentencing is improper. This means t hat if the trial court followed the statutory sentencing procedure, made findings of fact tha t are adeq uately supported in the record, and gave due consider ation and proper w eight to

the factors and principles that are relevant to sentencing under the 1989 Sentencing Act, we may notdisturb the sentence even if a different r esult were preferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
In conducting our de novo review, we must consider (1) the evidence , if any, re ceived at the trial and sentencing hearing, ( 2) the presentence report, (3) the princ iples of sentencing and argume nts as to se

ntencing alterna tives, (4) the nature and characte ristics of the criminal conduct, (5) any mitig ating or statutory enhancement factors, (6) any statement that the defendant made on-15-

his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -21 0; see Ashby , 823 S.W.2d a t 168; State v. Mo ss , 727 S.W.2d 229 (Tenn. 1986).

In the present

case, th e trial c ourt sent

enced th e defendant as a

caree r offen der. To f

all within this classification, a defendant must have at “least three (3) Class A or any

combination of four (4) Class A or

Class B felony

convictions if the defendant’s offense is a Class A or B felony.” Te nn. Code Ann . § 4 0-3 5-1 08 ( a)( 2). In applying this statute, convic tions “for multiple felonies committed
as a part of

a single course of conduct within twenty-four (24) hours constitute one (1) conviction for the purpose of determining pr ior convictions; however acts resulting in bodily injury or threatened

bodily injury

to the v ictim or victims shall not be construed to be a single course of conduct.” Tenn. Cod

e Ann. § 40 -35-108(

b)(4). T he defe ndant, co nvicted o f a Class A fe lo ny, argues that he does not have the required qualify ing offenses to be a caree

r offender because the two especia lly aggravated kidnapping s, the murder and attempted murd er occurred during a single c ourse of conduct o n Decem

ber 11-1 2, 1991. H e asser ts that the state pre sented no

proof tha t the espe cially aggravated

kidnappin gs or the

attempte d murder

caused o r threa tened bod ily injury to the vic tims.

Ini ti al ly, we note

that a ce rtified j udgmen

t of a prio r felony convicti on is prima facie evidence of the facts contained therein. Tenn. Code Ann. § 40-35-202( a). Unquestionably, the defendant’s conviction for the f

irst deg ree mur der of Sa ndra Fa ye Hill is a co nviction th at result ed in bodil y injury to the victim. Likewise, we believe that his conviction for attempted first degree murder at the ve ry least threatened bodily injury

to the victim, Latony a Hill. “A person commits criminal attempt who, actin g with the kind of culpability

otherwis e requir

ed for the offen se:”
(1) Intentionally

engages in action or ca us es a res ult that would constitute an offense if the circumstances surrounding the conduct were as the person believes them to be;
(2) Acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person’s part; or
(3) Acts with intent to complete a course of action o r cause a re sult that would constitute the offense, under the cir cumstances surrounding the conduct as the person believes them to be, and the conduct co n stitutes a substantial step toward the commission of the offense.

Tenn. Code Ann. § 39-12-101(a). The defendant’s attempting the premeditated, first deg ree murder of Latony a Hill under any of these three subsections would threaten bodily injury, i.e., death.
Finally, althoug

h the record does not reveal whether the defenda nt’s espe cially

aggravated kidnapping co nv ic ti on re la ti ng to Sa nd ra Fa ye Hill was aggravated by her serious bodily injury

or his use of a d

eadly weapon, both remove the conviction from the twenty -four-hour merger rule

.-16-

Serious bo di ly i nj ur y by d ef in it io n e nc om pa ss es bo di ly i nj ur y. Tenn. Code Ann. § 39-11-106(34). With respect to the use of a deadly we apon, this court has held that a great potential for bodily injury
necessa rily exists wheneve r a deadly wea pon is used. State v. N ix , 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995) (holding that factor (16) should not be applied to enhanc e an especially a ggravated robbery convicti on beca

use it encompasses an element of the offense). Thus, the judgme nts support the trial court’s finding that the defendant has three convictions of

Class A or higher that resulted in or threa

tened bod ily injury to a victim . Althoug h the tria l court su rmised tha

t the espe cially aggravated

kidnappin g convic tion relating to Sandra Fay e Hill and the first degree murder c onviction could constitute

a single course o f conduc t becaus e they relate to the same victim, the plain langua ge of section 40-35-108(a)(4) contemplates that the acts could c ause or threaten bodily injury to a

single victim. We conclude that the trial court properly sentenced the defendant as a ca reer offender.

Based upon the foregoing and the recordas a whole, we affirm the trial court’s judgment of conviction.

___________________________________ JOSEPH M. TIPTON, JUDGE