# FILED
November 14, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 02-C-01-9611-CC-0 0412 ) ) Madison County v. ) ) Whit La fon, Judge ) ) Second Degree Murder CARLOS COMAN, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Jan R. Patterson John Knox Walkup Attorney at Law Attorney General & Repor ter 225 West Baltimore, Suite B 500 Charlotte Avenue Jackson, TN 38301 Nashville, TN 37243-0497 Kenneth W. Rucker Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-4351 James G. Woodall District Attorney General P.O. Box 2825 Jackson, TN 38302-2825 James W. Thompson Assistant District A

ttorney General P.O. Box 2825 Jackson, TN 38302-2825 Christopher J. Schultz Assistant District A

ttorney General P.O. Box 2825 Jackson, TN 38302-2825

OPINION FILED:________________________ AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Carlos Coman (d efendant), was convicted of second degreemurder,
a Class A

felony,by a ju ry of h is peers. The trial court, finding the defendant to be a standard offender, imposed a Range I sentence consisting of confinement for twenty (20) years in the Department of Correcti on. In this court, the defendant pr esents five issues for review. He contends the evidence i s insufficient to support his convicti on. He also contends the trial court committed error of prejudici al dimensions by denying his motion to suppress the statemen t he gave to the pol ice, excluding the terms of the victim’s plea bargain agreement prior to his murder, failing to give an instruction on identification, and imposing an excessiv e sentenc e. After a thorou gh review of the recor d, the br

iefs submitted by the parties, and the la w governing

these issues, it is the opinion of this court that the judgment of the trial c ourt should be affirmed. On the evening of March 29, 1995, the defendant and three companions went to the apartmentof Jacqueline Haynes. The defendant knocked on the door. When Ha yne s answered the door, thedefendant, who appeared angry, asked her if she had seen Brent Love. She told the defendant she had not seen Lov e that evening. The defendant and his companions left. They then went to the apartment of Terry Kay Wallace. RoderickPurdy, one of the defendant’s companions , and a co-defendant, went to the door and knocked. When Andrew Thompson answered t he door, Purdy aske d if Love
was there. According to a s tatement given to police,Love had removed the hubcaps from Purdy’s automobile and Purdy want ed to know where the

hubcaps were. Love ex ited the apartmentan d w

as sh ot fi ve ti me s. Eric

Bu rton , w ho

ha d a ls o b ee n i ns id e Wa llace’ s apartment, waited a short time, ex ited the apartment, and dragg ed Lo ve back inside the apartment. Two people were in the process of leaving a church directly across the street from the situs ofthe murder. They saw three or four people congregated in front of W allace’s apartment. One person shot the victim. They saw the victim fall. The perpetrators of the murder ran away. Neither party could identify any of the indiv iduals they saw si nce it was dark. Several witnesses testified they heard five or six shots i n rapid succession.3 Love appeared to be in excruciating pain.He was breathing heav ily. He then began t o moan and gasp for breath. Later, h e began “fading in and out.” When Burton an d Thompson would call Love’s name, he would respond, but would then lapse back into an unconsciousstate. He died later that night at the hospital. Shortly after Love w as dragged inside the apartment, he told Burtonand Thompson twice that “Bushwick” shot him. The defendant’s nickname is Bushwi ck. The victim obviou sly knew the defendant. An autopsy revealed the victim died of multiple gunshot wounds. Three of the wounds discovered by the pathologist were superficial. One projectil e struck thevictim’s spine and stopped. The remaining projectile struck the victim on the right side of the chest , bruised the right lung, passed through both chambers of the heart, and struck the aorta as well. This latter w

ound was the cause of the vi ctim’s death. The defendant gave the police a st atement. He admitted to the officers that he was present when the victim was shot

. However, he denied he was the person who s hot the victim. When the shooting began, the de fendant ran and hid in a grove of trees behind a grocery store. I.

The defendant contends the evidence is insufficient, as a matter of law, to support his conviction. He argues his conviction is predicated upon the dying declaratio n of the victim, presented t hro ugh the testimony of Thompson and Burton, two convicted felons. He also argues the eviden ce does not suppor t a convi ction based exclusiv ely upon circumstantial evidenc

e. A.

When an accused challenges the suffici ency of the convicting evidence, this court must review the recor

d to determineif the evidence adduced at tri al is sufficient "to support the finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is applicable to findi ngs of guilt based upon dir ect evidence, circumstantial evidence, or a combination of direct and circum stan tial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990).4 In determining the

sufficiency of the convicting evidence, this court does not reweigh
or reevaluate the evidenc e. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). Nor may this court s ubstitute its inferences for those dra wn bythe trier of fact from circumstantial evi dence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859, ce rt
. denied , 35 2 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the contrary, this court is requi red to afford the Stat e of Tennessee the strongest leg itimate view of the eviden ce contained in the recor

d as well a

s all reaso nable and leg itimat e inferences which may be dr awn from the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerni ng the credibility of the w itnesses, the weight and value to be given the evidence, as well as all factual issues raise d by the evidence are r

esolved by

the trier of fact, not this court. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), our Supreme Court said: "A gui lty verdict by the jury, approved by the tri al judge, acc redits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State." Since a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused, as t he appellant, has the burden in thi s court of illustratingwhy the evidence i s insufficient to support the v erdicts returned by the

trier of fact. State v. Tuggle , 63 9 S.W.2d 913, 914 (Tenn. 1982). This court wil l not disturb a verdict of gui lt due to the sufficiency of the ev idence unless the facts contained in the record are insufficient, as a matter of law, for a rational trier of fact to find tha t the accused is guilty beyond a reasonable doubt. Tuggle , 639 S.W.2d at 914.

B.

Befor e an accused can be convicted of sec ond degree murder, the State of Tennessee must prove beyond a reasonabl e doubt the accused know ingly ki lled the vi ctim. Tenn. Cod e Ann. § 39-13-210(a)(1). In this case, the defendant, who appeared ang ry , asked Haynesif the victim was i nside her apartment or whether she had seen thevictim that evening. The defendant admitted he was present outside Wallace’s apar tment when5

the victim was shot. He also admitted he left the situs of the crime running. The victim made a dying

declaratio n stating the defendant w as the person

who shot hi m. This court finds the evidence i s clearly sufficient to s upport a finding by a ratio nal trier of fact that the defendant was guilty of second degree murder beyond a reason able doubt. Tenn. R. App. P. 3(e); Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This issue is without merit.

II.

The defendant contends the trial court committed error of prejudici al dimensionsby denying his m otion to suppress a statement he made to a police officer. He arg ues he was only sixteen years of age with bo rderline intellectual functioning capacity at the time he ma de the st atemen t. As a resu lt, the de fendan t was not ca pable of voluntari ly, knowingly, and intelligently waiving his Miranda rights. Officer Barry Michael interviewed the defendant sh ortly after t he murder of the victim. He read the Miranda warnings t o the defendant. The defendant advised Officer Michael he understood his rights and he was willi ng to waive these rights. The defendant did not ask any questions about his rights. The defendant was asked to read the first sentence on the wai ver ofrights form to test whether he could read. The de fendant had no problem reading thesentence. Officer Michael then permitted the defendant to sign the waiver of rights form. After the inter view
was completed, Officer Michae l read th e statement to the defendant. He then gav e the statement to the de fendant to read and make changes or appr ove it. The defendant signed the statement as prepared by Officer Michael. The defendant presented a psycholog ist to s upport his contentions. The psychologist tes tif ied the defendant possessed a borderl ine range of intelligenc e. The defendant was found to read at a fourth grade level . Accordin g to the ps yc hologi st, a person must be able to read at the sixth grade l evel to understand the Miranda warnings.6

However, the psy chol ogist opined the defendant knew right from wrong, w as competent to stand trial, and was capable of assisting counsel. The defendant testified duri ng the su ppression hearing. He a cknowledged he signed the waiver

of rights form, but stated he did not know why he si gned the form. He also acknowledged he sig ned the statement attributed to him. He refuted Of ficer Michael’s testimo ny. The defendant denied Michael read the Miranda warnings or the statement to him. However, the

defendant stated he was able to r ead the statement. The defendant also stated he told the police the truth when giving the statement, and that he provided the police with the informatio n contained in the statement. When an accused is afforded an evidenti ary hearing onthe merits of his motion to suppress a statement given to a law enforcement officer, the findings of fact made by the trial court are binding

upon the appellate court unless the evidence contained in the record preponderates against these find ings. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996); State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994); State v. O’Guinn , 709 S.W.2d 5 61, 565-66 (Tenn.), cert
. denied , 478 U.S. 820, 107 S.Ct. 244, 93 L. Ed.2d 169 (198 6) ; State v. Mosier , 888 S.W.2d 781, 785 (Tenn. Crim. App. 1994). This standard of review was created because the tr ial court, as the trier

of fact, must assess the credibility of the witnesses, determine the weight and value to be afforded the evidenc e adduced during the hearing, and the court must resolve any conflictsin the evidence. How ever, an appellate court is not bound by the trial court’s conclusions of law. The defendant has the burden of illustrating to thi s court that the evidence contained in the record preponderates against the findings of fact made by the trial court. Braziel v. State , 529 S.W.2d 501, 506 (Tenn. Crim. App.), cert
. denied (Tenn. 1975); Mitchell v. State , 3 Tenn. Crim. App. 494, 501, 464 S.W.2d 307, 311, cert
. denied (Tenn. 1971). The waiver of

the constitutional rig hts guaranteed by Mirandamust be vo luntaril y, knowingly, and intelligently made to b e valid. State v. Van Tran , 864 S.W.2d 465, 472 (Tenn. 1993), cert
. denied , 511 U.S. 1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994); State
v . Middlebr ooks , 840 S.W.2d 317, 326 (Tenn. 1992); State v. Benton , 759 S.W.2d 427, 431 (Tenn. Crim. App. 1988). A juvenile can waive these constitutional rights if he is fully advised of the Miranda warnings an d his deci sion to wai ve these ri ghts is volu ntarily,7

knowingly, and intelligently made

. State v. Gordon , 642 S.W.2d 742, 745 (Tenn. Cr im. App.), per . app . denied (Tenn. 1982); Braziel , 529 S.W.2d at 506; Mitchell , 3 Tenn. Cri m. App. at 501, 464 S.W.2d at 311; Vaughn v. State , 3 Tenn. Crim. App. 54, 62, 456 S.W.2d 879, 883, cert
. denied (Tenn. 1970). Similarly, a person with a mental deficiency may also waive these rights under the same circumstances. State v. Green , 613 S.W.2d 229 (Tenn. Crim. App. 1980), per . app . denied (Tenn. 1981); Braziel , 529 S.W.2d at 506. See also State v. Bell , 690 S.W.2d 879 (Te nn. Crim. App.), per . a pp . denied (Tenn. 1985) (adult defendant claimed to be intoxicated and suf fering from a mental deficiency). When determining whether an accusedhas voluntarily, knowingly, and intelligently waived his Miranda

rights, this court must consider the totality of

the circumstances which existed when the accused waiv ed these rights. Middlebrooks , 840 S.W.2d at 326; Benton , 759 S.W.2d at 431; Vaughn , 3 Tenn. Crim. App. at 60-61, 456 S .W.2d at 883. Since the defendant contends his waiver of the Mirandarights was not voluntarily or understandingly entered due to his age and borderline range of intelligence, this court must consider such factors as the defendant’s age, educatio nal backg round, m ental com petence and abili ty, and the facts surrounding the waiver of these rights. Benton , 759 S.W.2d at 432; State v. Bell , 690 S.W.2d 879, 882 (Tenn. Crim. App.), per . app . denied (Tenn. 1985). However,
one of these factors, standing alone, will not necessaril y render a waiv

er of the Miranda rights invalid. Bell , 690 S.W.2d at 882. In this case, the officers read the Mirandawarnings to the defendant. He was asked if he understood the rights. He told the officers he understood these rights, and he d id not askany questions. The officers had the defendant read the first line of the waiver form to
see if he could read. He h ad no problem reading the sentenc e. He then executed the waiver form. The officers stated the defendant appeared normal. The officers read both the waiver form andthe statement to the defendant before he affixed his signa

ture to them. The defendant admitted his signature appeared on the waiver form. He stated he did not know w

hy he sign ed the form. He also acknowledged his signature appeared on the statement he gave the polic e. The defendant admitted he told the officers the information contained in the statement and the c ontent of the statement was true. He testified he was able to re ad the statement.8 This court has considered the totality of the circumst ances. The c ourt is of the opinion the evidence contained in the record does not preponder ate against thefindings of fact made by the trial court.It is obvious the tri al court accredited the tes timony of the state’s witness. This issue is without merit.

III.

The vi ctim had entered a plea of guilty to aggravated robbery pursuant to a ple a agreement. The defendan t contends the trial court committed er ror of prejudicial dimensions by ruling the terms of the plea agreement could not be admitted i nto evidence. The defendant argues it was admis sible to rebut the state’s theory on motive. This issue has been waived

. The defendant has failed to state authority in support of this i ssue. Tenn. R. App. P. 27(a)( 7). Also, the document containi ng the p le a agreement was not made an exhibit, and, therefore, has not been included in the record transmitted to this court. As a res ult, this court cannot cons ider the issue. State v. Ballard , 855 S.W.2d 557, 560-61 (T enn. 1993). Instead, this court must presume the rulin g ofthe trial court was correct. State v. Locust , 914 S.W.2d 554, 557 (Tenn. Crim. App.), per . app . denied (Tenn. 1995). This issue is without merit.

IV.

When the trial court completed re ading the charge to the j ury, the court asked counsel if there were any other matters counsel wanted to s ubmit. Defens e counsel advised the court she did not remember hea ring an instruction on identification. Counsel submitted a special request which set forth the identification instruction recommended by the supreme court in State v. Dyle , 899 S.W.2d 607 (Tenn. 1995). The trial court refused to give the special r

equest. The defenda n t contends the trial court committed error of prejudicial dimensions by failing t o instruct the jury on

the law of identification. The state9

contends the defendant did not place his identification in issue. In this case, the evidence i dentifying th e defe ndant as the person who kil led the victim is unique. The defendant and Roderic k Purdy, a co-defendant, searc hed for the victim. They went to the Haynes residence and asked Haynes if the victim was ins ide or if she had seen the victim that evening. According

to Haynes, the defendant appeared angry. The defendant and Purdy then went t o the Wallace residence where the vi ctim was visiting. Purdy went

to the door an d asked for th e victim. It appears Purdy saw the victim and another person steal his hubc aps, and Purdy wanted to addres s the matter with the victim. The victim went outsi de. Shots were fired at the victim. Purdy, the defendant, and theirfriends ran away. A person inside the resi dence went outside and broug ht the victim into the residence. The victim told those inside the apartment “Bus hwick” was the per son who shot him; Bushwick is the defendant’s nickname. The def endant gave the police officers a statement admitting, like the co-defendant, that he was pr esent when the victim was murder

ed, but denying that he fi red the shots that kille d the victi m. The defendant predicates the necessity for an instruction on identific ation based upo n t he testimony of an independent wi tness, Sandra Luanne Cisco Hol t. She was
across the street from where the murder occurred. It

was dar k and she

could no

t identify any person who was pres

ent when the shots were fired. Holt saw

the fire come from the barrel of the pistol; it w as the only weapon she s aw fired. During cross-examination the witness was asked about the identif ication s he gave the police officers whenshe wasinterviewed. Her answer was: “I j ust said he was I think average height, medi um build, pr etty mu ch .” When aske d what the aver

age hei ght of a
man was, she stated: “I guess somewhere around 5' 7" or six foot. “ When asked about the heightof the person who fired gun, she responded: “I really don’t [know]. I couldn’t tell how tall he was. Tha t’s why I just said he was average, yo u know. Nothing stood out to me to make -- you know

-- so I just said he was average.” She saw the defendant at a prior court hearing and she viewed the defendant dur ing the trial. The wi

tness said on both occasions the defendant was shorter than the he ight of the average man sh e had previously described. The basis of the identification in this case was the dying decl aration made by the10

victim. Of cour se, t he testimony by Hay nes placed Purdy and the defendant together shortlybefore the shots were fired.Both admitted to being present when the shots were fired. Holt could not identify the person who shot the victim. Moreover, she gave a generic description of the person who fired the weapon. Neverthel ess, the defendant argues for an identification instructi on based on Holt’s testimony on cross-examination. The trial court instruct

ed the jury as follows : “The Court further charges y ou thatthe
mere presence of

a person in an area wher e a crime was committed is not sufficient

for a finding of g uilt of such crime by that person.” In this case, thi s instruction was s ufficient based on the evidence. Never theless, the trial court

should have included the identification instruction in its charge to the jury. However, the failure to do so constituted harmless error in the context of this case. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). This issue is without merit. V.

The defendant contends the sentence imposed by the trial court is excessive. He argues the trial court found one enhancement factor and one mitigatin g factor. Therefore, the court should have sentenced the defendant to the presumptive mini mum sentence of fifteen years. The defendant also contends the trial court did not cons ider the principles of sentencing and all of the factual circumstances. Th us, this court should grant him a new sentencing hea ring. When an accused challenges the l ength of the sentence imposed by the trial court, it is the duty of this court to conduct a de novo review on the recor d with a presumption that “the determinations made by the cour t from which the appeal is t aken are correct.” Tenn. Code Ann. § 40-35-401(d). This presu mption is “conditioned upon the affirmative showing in the record that the trial court consideredthe sentencing principl es and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this ca se, the trial court did not comply w ith the Ashby

requirement. When sentencing the defendant, the trial court simply said: “ It’s the judgment of the Court that you ’ll be sente nced to the penitentiary for a period of 20 years. You’re now sentenced.” Therefore, the presumption does not apply, and this court will conduct a de novo review witho ut a presumption that the11

findings of the trial court are correct. There are four enhancement factors support ed by the record. The defendant has an extensive historyof criminal behavior and c onvictions. Tenn. Code Ann. § 40-35-114(1). The juvenile record of an accused can be consi dered when determining whether the state has establ ished this enhancement factor. State v. Adams , 864 S.W.2d 31, 34 (Tenn. 1993), rev’d on other grounds , 864 S.W.2d 31 (Ten n. 1993); State v. Cr owe , 914 S.W.2d 933, 939 (Tenn. Crim. App. 1995), per . app . denied , (Tenn. 1996); State v. Stockton , 733 S.W.2d 111, 112-13 ( Tenn. Crim. App. 1986), per . app . denied (Tenn. 1987). The presentence report lists numerous j uvenile convictions . The defendant has been convicted of an attempt to commit voluntary manslaughter, carrying
a weapon on school grounds, simple assault, criminal trespass, vandalism, evading arrest, and other minor

offenses. He admitted to the presenten ce officer he smoked marijuana and drank

alcohol daily. See State v. Keel , 882 S.W.2d 410, 419 (Tenn. Crim. App.), per . app . denied , (Tenn. 1994). The defendant was a leader in the commission of the offense. Tenn. Code Ann. § 40-35-114(2). It

was the defendant who asked i f the victim was at

the Haynes residence
or whether Haynes had

seen the victim on the nig ht in question. The defendant was also the pers on who a rmed him self. A pistol was used to commit the offense

. Tenn. Code Ann. § 40-35-114(9). The
use of the weapon is not an element of sec ond degree murder. This court has held this enhancementfactor may be appliedwhen the a ccused is convicted of murde r in the second degree. See State v. Butler , 90 0 S.W.2d 305, 312-13 (Tenn. Crim. App. 1994); State v. Raines , 882 S.W.2d 376, 385 (Tenn. Crim. App.), per . app . denied (Tenn. 1994); State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992), per . app . denied (Tenn. 1993). The defendant had no hesitat ion about com mitting a crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114(10). W hen the shots were fired there were
numerous people near the situs of the shooting. There wer e people inside the residence. There were people across the street leaving a chur ch service. Al so, the defendant’s friends were very cl ose when the shooting occurred. See State v. Ruane , 912 S.W.2d 766,12

784 (Tenn. Crim. App. 1995); State v. Sims , 909 S.W.2d 46, 50 (Tenn. Crim. App.), per . app . denied (Tenn. 1995); State v. Makoka , 885 S.W.2d 366, 37 3 (Tenn. Crim. App.), per . app . denied (Tenn. 1994). The mental capacity of the defendant is the only mitigating factor suppor ted by the record. Tenn. Code Ann. § 40-35-113(8). The weight to be giv

en enhancement and mitigating factors rests

within the sound discretion of the trial court. Shelton , 854 S.W.2d at 123. In th is case, the enhancement factors are to be given great weight. The defendant’s pri or conv iction for crimes of violence, including an attempt to commit voluntary manslaught er, assault, and weapons offenses, require this court t o give enhancement factor ( 1) great weight. The remaining enhancementfactors are also to be given serious consideration. The mitigating factor is entitled to little weight as it did not enter into the eq uation in themurder of the victim. The sentence of twenty (20) year s is reasonable consideri ng the defendantis a violent person, the pu blic deserves protection from this criminal acti vity, and the length

of the s entenc e conforms to the nature of the offense.

___ _____________________ ___________________ _ JOE B. JONES, PRESIDING JUDGE
CONCUR:

____________________________________ GARY R. WADE, JUDGE

____________________________________ CURWOOD WITT, JUDGE