### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Jun e 20, 200 6
STATE OF TENNESS EE v . CHRIST OPHE R NICHO LAS ORLANDO

Appeal f romthe Cr im inal Cou rt for De Kalb County No. 02-126 Leon Burns, Jr., Jud ge

No. M2005- 01767-CCA -R3-C D - August 3, 2006

The Appe llant, Christo p h e r N ic holas Orlando, w as convic ted by a De Kalb County

jury of fa cilitation of first deg ree murder, a

Class A felony , and sentenced as a R ang e I I , multipl e off ender to thirty -five y ear s i n the Depa

rtment of Corre ction. On appe al, Orla ndo raises the following issues for our revie w: (1) whe ther he was de nied his fundamenta l rig ht to a fair trial beca use the State failed to (a ) disclose the terms of a plea ag ree ment with a key

witness and (b) prese rve e x culpatory evidenc e; and (2) whe ther he was sente nced in violation of Blakely v. W ashington. After

a re view of the rec ord,
we a ffirm.
Tenn. R. App . P . 3; Judgme nt of th e Cr im inal Cou rt A ff irm ed

D AVI D G. H AYES , J ., delivere d the opinion of the court, in which T H O M A S T. W O O D A LL and N OR MA M C G EE O G LE , J J ., joined.

Kevin S. L atta and J . Hilton Conger , Smit hville, Tennesse e, for the Appellant, Christopher N icholas Orlando.

Paul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; El i z a b e thB

. Ma

rn e y , A ssi stant A tto rn e y

Ge ne ra l; Wil li am E . Gibson, District Attorney Gene ral; and William L ocke, A ssistant District Attorney Gene ral, for

the Appellee , State of Tenne ssee.
OP IN ION

P r oc e dur al B ac kgr ound On September

18, 2002, the body

of Jos h M urphy

was found on B ackboneRidge off Hi g hw a y 70 be tw e e n Spa

rt a a nd Smithv ill e in D e Ka lb C ou nty . T he de c e a se d h a d s us ta ine d mu lti ple gu n s h o two u n d s t o t h e f

ac e. Bo t h fi re d an d u n fi re d

. 1 2 gau ge s h o t gu n s h el l s , as we l l as wa d d i n g, wer e found at the scene . During the investig ation, Tenne ssee B ureau of Investig ation (TB I ) Ag ent Bob K rofssik trave led to Kentucky four or five day s after

the discovery of the body and intervie wed Melvin Turnbill. Turnbill confessed to participating in the m urder and im plicated the Appellant as-2-

the shooter. The Appellant and T urnbill were j o i n t ly indicted for f

irst deg ree murder; howe ver, beca use ea ch ac cused the other of shooting the victim, se verance of the def endants wa s g rante d as provided by

Tenn. R. Crim. P. R ule 14(c ).

P r i o r t o tr i a l , T u r n b i l l p l e d g u i l t y t o f a c i l i t a t i o n o f

f i r s t d e g r e e m u r d e r

a n d r e c e i v e d a

t w e n t yfive y ear prison sentenc e. Under t he terms of t he plea ag ree ment, Turnbill ag ree d to testify for the State . A t tria l, T urnb ill te sti fi e d th a t onSe pte mbe r 1 4- 15 , 2 00 2, he we nt t o B a c kb one Rid g e to manufa cture methamphetamine w ith his friend J osh Murphy . When it st arte d raining , the two g ather ed their e quipment and went to the home of Turnbill’s g irlfriend, Robin B aker

. Murphy left around 2 or

2:30 A.M., and the Appe llant arrive d at B aker ’s home around 4:00 A.M. and spent the nig ht. Ar ou nd9 A .M ., Tu rn bil l di sc ov e re d th a t a ha lf -g a llo n ja r o f m e th o il w a s mi ssi ng . T urnb ill advised Ag ent Krofssik, “I told [t he Appellant] to g o g et my g un that he wa s keeping for me, and I was g oing to kill whoeve r g ot my meth oil.” Turnbill reporte d that the t wo d ep ar t ed i n the Appellant’s c ar f

or James Reeves’ house wher e the victim was stay ing. The Appellant escorted the victim from the house and took him to T urnbill, and the three some drove to Robin Ba ker’ s house. At Ba ker’ s house, Turnbill bor rowe d a truck and drove the victim ba ck to Ba ck b o n e R idge

. Meanw hile, the Appellant returned to Reeve s’ hous e to compar e a sample of the me thamphetamine Turnbill had manufa cture d to that which the two suspec ted Murphy of stealing . The Appe llant
arrive d at B a c kb on e Rid g e a n h ou r t o a n h ou r anda ha lf late r andre po rt ed a mat ch. Tu rn bil l testified that the Appe llant announced, “I went and g ot y our g un” and aske d “if [Turnbill] wanted to do it or i f [ Turnbill] wanted [ the Appellant] to do it.” Turnbill responde d that he would do it, and he aske d the victim if he had stolen the meth oil. The victim ran a round the ve hicle in an attempt to hide and denie d any

responsibility . Meanw hile, the Appellant took the pump shotg un from Turnbill and started shooting . The victim cha rg ed the Appe ll an t an d k n o cked him over , but the Appellant continued to f

ire. Turnbill stated that at this point, he ran to his truck. Th e A p p el l ant threw the shotgun in the ba ck of the truck, and Turnbill drove to his g irlfriend’ s house. He took the truck, g un, and meth lab to a friend’s house for safeke eping . Two day s later, Turnbill returned and asked f or the g un. Turnbill left for K entucky soon after

the victim’s body

was found.

After a jury trial, the Appellant was convicted of fac ilitation of first deg ree murder. O n J une 23, 2004, the trial court sentence d the Appellant a s a Rang e I I , multipl e offe nder to forty y ear s in the Depa rtment of C o rre ction. The Appe llant’s motion for a new trial was de nied on April 18, 2005. At this he aring , the trial court modified the Appellant’s sentenc e to r efle ct a sente nce of thirty -five y ear s, concluding that the i mposed forty -y ear sentenc e “is inappr opriate unde r the Bl ake ly ruling .” This appea l followed.

Ana lys is I. Right to a F air Trial The Appe llant asserts that he w as denie d his fundamental right to a f air trial under the United States and Tenne ssee Constitutions due to the State’s f ailure to: (A) disclose the terms of its plea ag ree ment wi th M e lvi n T urnb ill and (B ) produc e potentially exculpatory

evidenc e.-3-

A. P le a A gr e e m e nt The Appe llant arg ues that he w as denie d his fundamental right to a f air trial be cause the pr os e c uti on faile d to fu lly dis c lose th e te rm s o f the ple a a g re e me nt w iththewi tne ss T urnb ill

. Specifica lly , the Appellant contends that the State failed to disclose that Turnbill would be permitted t o s e r v e h i s s e n t e n c e i n t h e D e K a l b C o u n t y J a i l r a t h e r t h a n i n a D e p art m e n t o f

C o rr e c t i o n f

a c i l i t y. At the hea

ring on the motion fo r new trial, the proof e stablished that Turnbill pled g uiltyon September 23, 2003, and rema ined an inmate of t he county jail until December

17, 2004, when he
wa s tr a ns fe rr e d to theDe pa rt me nt o f C or

re c tio n. Th e pr os e c uto r a c kn ow le dg e d th a t be c aus e Turnbil l wa s being called a s a witness, he w ould have r emained at the jail until t he trial ha d
co n cluded, which occur

red on A pril 15, 2004. The assistant district attorney testified that he wa s not awar e that Turnbill was a n i n m at e of the c ounty jail until he was contac ted by the victim’s famil y . Af

te r be ing inf

orme d of thi s fa c t, the a ssi stant dis tric t atto rn e y c on ta c te d th e De Ka lb C ou nty Sheriff’ s Offic e, and Turnbill was transfer red to Depa

rtment of Corre ction custody on Dec ember

17, 2004. The following colloquy then occ urre d:

De fe ns e c ou ns e l: [W]a s p art of y ou r p le a a g re e me nt the fa c t tha t Mr. Tu rn bil l w ou ld be a llo we d to se rv e his se nte nc e in the De Ka lb C ou nty ja il?

Pr os e c uto r: No , it

wa s n ot.

Be cause the re cord f

ails to disclose any

proof that the State ha d enter ed i n t o an agr eeme nt that Tu rn bil l’ s se nte nc e c ou ld b e se rv e d inthec ou nty ja il, thi s is su e is w ith ou t me ri t. B. Exculp atory Evidence Additionally , the Appellant asserts that the State was in possession of exculpatory evidenc e, namely “clothing worn by

[Melvin Turnbill ] at the tim e of his ar rest contain[ ing] considera ble blood splatter emanating from events surrounding the death of [the victim] ,” that it failed to pre serve and d i s c l o s e

. H e c i t e s a s au t h o r i t y Brady v. M aryland , 373 U.S

. 83 , 83 S . Ct. 1 19 4 ( 19 63 ). At tria l, Ag e nt K ro fs sik te sti fi e d that on Sept e mbe r 25, 20 02 , he , alo ng wi th She ri ff Em mom s, tr a ve le d to Kentucky to intervi ew T u rn b ill, who, at the time, was inca rce rate d in Ba

rre n Countyon char g es unrelated to the homicide. During this trip, Sheriff Emmoms collected the clothing that Turnbill was
wea ring on the date of

the homicide, which w as re tained b y t h e Sheriff’ s Depa rtment. Ag ent Kr of ssi k s tate d th a t hedidno t su bmi t th e c lothin g fo r t e sti ng be c aus e :

Me lvi n Turnb ill c on fe sse d to bei ng the re wh e n th e mur de r t oo k p la c e , c on fe sse d to be ing in the are a

of thesh oo tin g , s o .

. . if

[the vi cti m’ s] bl oo d w a s o n M e lvi n Turnbill’s clothes, . . . I

g u es s it would have conf irmed that he w as there , but he admits that he was ther e, and I have no doubt in my

mind that he was ther e.A r evi ew of t he i nv es t i gat i ve f

i l e woul d hav e rev eal ed a memo by Agent K r of s s i k t hat T ur nbi l l ’ s cl ot hi ng ha d 1
b e e n c o llec te d a n d w a s “b e ing m a inta ine d b y the D e K a lb C o u n ty S h e riff’ s D e p a rtm e n t.”
-4- Relief under Brady i s n o tav ai l ab l e u n l es s a d ef en d an tca n d em o n s tra t e t h e f o l l o wi n g:
1. Th e de fe nd a nt mus t ha ve re qu e ste d th e inf ormatio n ( un le ss the e vid e nc e is obviously exculpatory , in w hich case the State is bound to r elea s e t h e i nformation whether reque sted or not); 2. The State must have suppr essed the inf ormation;

3. The information must have bee n favor able to the a ccuse d; and

4. Th e inf

ormatio n mu st h a ve be e n mate ri a l.

Sta te v . E dg in , 902 S.W .2d 387, 389 (Tenn. 1 9 9 5 ). M oreove r, the de fendant has the burde n of proving a constitutional violation bya pre ponderance of the evidenc e. Id

. Wit h reg ard to fa ctor o n e, t he re cord f ails to establish that the Appellant eve r made a discovery reque st to inspec t the items of clothing maintained by the Sheriff ’s Depa

rtment. A form discovery reque st was fil ed, with the S tate responding “the S tate will g rant y ou an open f ile.” No fu rthe r s pe c if

ic re qu e st wa s so ug ht, wi th the fi rs t me nti on of thec lothin g ’s mate ri a lit y app e ari ng in
a Brady motion that was prese nted over one y ear afte r the trial ha d conclude d.

Wit h reg ard to fa ctor two, no proof is presente d that the articles of clothing we re ever suppressed by

either the prosec ution o r l aw enfor ceme nt officials. The items of clothing f rom Turnbill were obtained by the Sheriff approximately one we ek af ter the homicide occur

red and wer e reta ined by

the DeK alb County

Sheriff’ s Depa

rtment. Ther e is no proof in the rec ord of whe n the items of clothing w ere misplaced or de stroy ed by the Sheriff ’s Depa

rtment, or if, in fa ct, the clothing i s m i s s i n g

. T h e r e c o r d i n d i c a t e s t h a tt h e p r o s e c u t o r ’ s o f f i c e h a d a n “ o p e n f

i l e ” d i s c o v e r y p o l i c y; there fore , the Appellant wa s awa re of , or throug h diligenc e could ha ve bec ome awa re of , the fa ct that the it e ms o f

c lo th in g w e r e inth e p o s s e s s io n o f th e Sh e r if

f ’ s D e p artm e n t. F u rth e r mo r e , the 1 discovery proce dures of

Tenn. R. Crim. P. 16( c) would have permitted the Appe llant’s inspection of the c lothing.

Withre g ardto f

a c tor thr e e , th e reis n o p ro of

tha t th e e vid e nc e wo uld ha ve be e n f a vo ra bleto the Appellant. The only

ref ere nce to bloo d o n Turnbill’s clothing is found in his statement to the TB I , “ Th e sh irts in my truc k that ha ve blo odon the m is min e wh e reI pic ke d my

so re s” a nda t tria l, wh e n Tu rn bil l fu rthe r e xpla ine d that his c lothe s ha d blo od on the m be c aus e he ha d pic ke d h is m e th
so re s. F urthe rm or e , the me dic a l e xami ne r t e sti fi e d th a t th e sh otg un wa s f ir e d f ro m a dis ta nc e of

six fee t or g reater a nd that he “w ould not ex pect” that the dischar g e of the wea pon from that distance
wo u l d ca u s e b l o o d t o s p l at t erfr o mt h e v i ct i mo n t o t h e s h o o t ero r h i s cl o t h i n g.-5-

Wit h reg ard to fa ctor four , the Appellant ha s failed to esta blish that the items of clothing are materia l. The Appe llant was co n v i cted of fac ilitating the crime of first deg ree murder. T hus, the State was re quired to prove only that the Appellant knew that another intende d to commit the murder and that the Appe llant knowing ly furnished substantial assistance in the commi ssion of that crime. See T.C.A. § 39-11-403( a) ( 2003). The pr oof supports the Appe llant’s conviction for this off ense. Jame s Ree ve s c on fi rm e d th a t th e Ap pe llant e nte re d h is r e sid e nc e loo kin g fo r the vic tim be c aus e “Josh [ the victim] had stole some dope f rom somebody .” Ree ves testified that the Ap p el l an t left with the vi ctim and returned shortly there afte r wit hout the victim and took the “dope ” the victim had br ou g ht t o th e tr ail er. Th e wi tne ss, Rob in B ake r, pla c e d th e Ap pe llant, Tu rn bil l, andthevic tim toge ther at her house shortly befor e the victim wa s murdere d, and the fore nsic evidenc e conne cted the shotg un shells used in the homicide to the Appe llant. Accor dingly , we c o nclude that whe ther blo odwa s o n T urnb ill ’s c lothin g wa s imm a te ri a l to the Ap pe llant’ s c on vic tio n fo r fa c ili tatin g fi rs t deg ree murder.

II. Blakely v. Washington The Appe llant also asserts that his sentenc e wa s enhanc ed in violation of Blakely v. W ashington , 542 U.S. 296, 124 S. C t. 2531 (2004). The Appellant orig inally was sente nced to a forty -y ear sentenc e; howe v er , at the hea ring on the Appellant’ s motion for new trial on April 18, 2005, the Appellant’ s s en t en ce was re duced to thirty -five y ear s. The Appe llant now claims that “eve n afte r a modification, [hi s] sentenc e rema ined enhanced a bove the statutory

minimum based upon a my

riad of f actor s neither a dmitted at trial nor prove n by the S tate bey ond a re asonable doubt.” He c ontends that in view of Bl ake ly , h i s s en t en ce s h ould be “modified to re flec t the 32 1⁄2 y ear statutory minimum .”

We note initiallythat the Bl ake ly c la im h a s b e e n r e nd e re d mo ot b y theTe nn e sse e Sup re me Court’s April 15, 2005 dec ision in Stat e v. Gome z , 1 63 S.W. 3d63 2 ( Te nn . 2 00 5) . O ur su pr e me court he ld that the 1989 Sentenc i n g Reform Ac t “authorizes a discr etionary , non-mandatory sentenc ing pr ocedur e . . . [which] sets out broad sentencing principles, enhanceme nt and mitigating fa c tor s, a nda

pr e su mpt ivese nte nc e , a ll o f w hic h s e rv e to g uide tria l ju dg e s ine xer c isi ng the ir discretion to selec t an appr opriate se ntence within the rang e set by the L eg islature. Unde r the Reform Ac t, the finding of an e nhance ment fac tor does not mandate an incr ease d sentenc e.” Id. at 661. Acc ording ly , the court held th at t he Te nnessee Sentencing Reform Ac t does not violate the Six th Amendment g uarantee of a jury trial and is, thus, not affe cted by the Bl ake ly decision. Id. As such, the Appe llant is not entit led to relief under Bl ake ly

.
Re vie w o f the re c or d in thi s ca se re ve a ls that th e tria l c ou rt e xplic itl y fo un d f iveapp lic able
e nh a nc ing fa c tor s: ( 1) a

pr e vio us his tory of c ri min a l c on vic tio ns , (6 ) that the vic tim wa s tr e a te d w ith exception crue lty , (9) a

previous history

of u n wi l l i n gness to comply with conditions invol ving rele ase into t he communit y , (10) that the defendant employ ed a f irea rm, and (14) that the fe lony was committed while the Appellant wa s on probation. See T.C.A. § 4 0 -3 5 -1 14(2), ( 6), (9) , (10), ( 14) (2003). We find no e rror

in the application of these factors. Ba sed upon these f indings, we conclude that a sente nce of

thirty -five y ear s is clearly justified.-6- CO NC LU SION

Ba sed upon the for eg oing, w e af firm the Appellant’s judgme nt of conviction and r esulting sentenc e of thirty -five y ear s for fa cilitation of first deg ree murder.

___________________________________ DAVID G. HAY ES, J UDGE