Opinion
C.C.A. No. E1998-00378-CCA-R3-CD.
December 7, 1999.
Appeal from Hamilton County, Honorable Douglas A. Meyer, Judge, (Attempted Especially Aggravated Robbery/First Degree Murder).
AFFIRMEDFOR THE APPELLANT:
ARDENA J. GARTH, District Public Defender.
FOR THE APPELLEE:
PAUL G. SUMMERS, Attorney General Reporter, DONNA ROBINSON MILLER, Assistant District Public Defender, ELLEN H. POLLACK, Assistant Attorney General, WILLIAM H. COX, III, District Attorney General.
OPINION
The defendant, Joe N. Anderson, Jr., appeals from guilty verdicts returned by a Hamilton County jury for one count of First Degree murder and two counts of attempted especially aggravated robbery. The trial court sentenced the defendant to life imprisonment to serve at eighty-five percent for First Degree murder, a Class A felony, and twelve years in the Department of Correction for each count of attempted especially aggravated robbery, a Class B felony. The defendant was sentenced as a Range I standard offender for the attempted especially aggravated robberies, with those sentences to be served concurrently with each other but consecutively to the First Degree murder sentence. In this appeal, the defendant contends that:
(1) The trial court erred in denying the defendant's motion to sever;
(2) The trial court erred in denying the admission of MichaelTaylor's statement to police;
(3) The trial court erred in denying the testimony of Marvin Davis;and
(4) the trial court erred in ordering the defendant's attempted robbery sentences to be served consecutively to his murder sentence.
After careful review of the briefs, the record, and the applicable law, we AFFIRM the defendant's convictions and sentences as imposed by the trial court.
FACTS
On July 11, 1996, the defendant was at his mother's house when Allen Russell, driving a blue Astro van, arrived around midnight. The defendant requested Allen to drive him to the home of Lakita Fountain, the defendant's girlfriend. At the Franklin house, the defendant retrieved a .25 caliber gun and an older revolver. The defendant, Russell, and Fountain then returned to the defendant's home. While at the defendant's home, the defendant and Fountain fired the weapons at a street light.
Later in the evening, Russell drove the defendant, Fountain, his sister, and Michael Taylor to the McCallie Housing Project in the blue Astro van. Russell pulled into the parking lot of the Project, where the defendant and Taylor exited the van.
Travis Haynes was sitting on a friend's porch in the area. He was talking to a friend, Ricus Langston, when he saw the van pull into the parking lot and two people get out. Soon after exiting the vehicle, the defendant and Taylor approached the house, and the defendant asked Langston for drugs. Haynes recognized the defendant because they had previously worked together, and Haynes knew that the defendant's name was "Joe." After Langston told the defendant that they did not have drugs, the defendant pulled out a gun.
Cheryl Ransom, who was inside the house, had seen the defendant and Taylor approach the house. At which time, she became concerned for the safety of Langston and Hayes. She first called Mr. Langston, who was her cousin, into the house. Langston went into the house. After Mr. Langston was inside, she then called to Mr. Haynes to come into the house. However, the defendant had already grabbed Haynes and told him to "give up the cheese."
Haynes said he believed "cheese" meant money.
Haynes told the defendant that he had no money. After repeating his demand, the defendant shot Haynes. The bullet struck Haynes in the shoulder.
Langston heard the shot. He returned to the porch and found the wounded Haynes. Haynes told Langston that his assailant's name was "Joe." Haynes later told the police he had been shot during a robbery.
The defendant and Taylor ran back to the van, and Russell drove away. The defendant and Taylor joked with each other saying," . . . just another dead slob." The defendant also said something like "I can't believe we did not get any `cheese.'"
Soon afterwards, while riding in the van, the defendant and Taylor spotted a tractor-trailer truck parked near the side of the road. They believed the driver was asleep inside. Taylor said something like "truck drivers have a lot of money." The defendant then requested that Russell stop the van so that he could "get this truck driver." After stopping, the defendant and Taylor exited the van and approached the truck. The defendant carried the .25 caliber gun with him.
Russell believed that this meant the defendant planned to rob the truck driver.
Russell, not wanting to be "involved," drove away. As he pulled away, he and the remaining occupants of the van heard a gun shot. Almost immediately, a police car stopped the van, a short distance from the truck. The police, who were searching for Haynes's assailant, found beer and a .22 or .25 caliber casing in the van. However, after a brief investigation, the police allowed Russell and the others to drive away.
The truck driver, Daren King, was found in his truck shot to death. The bullet that killed him was shot from the same gun the defendant had used to shoot Haynes. The driver had been shot at close range. Taylor's fingerprint was found on the passenger side of the truck, which was found locked.
ANALYSIS Motion to Sever
The defendant first argues that the trial court erred in denying his motion to sever the offense charging the attempted robbery and shooting of Travis Haynes from the offense charging the attempted robbery and murder of Daren King. Tennessee Rules of Criminal Procedure 14(b) governs severance of offenses.
A motion for severance of offenses is a matter which addresses itself to the sound discretion of the trial court, and this Court will not interfere with the exercise of this discretion unless it appears on the face of the record that the accused was prejudiced by the court's ruling. State v. Furlough, 797 S.W.2d 631, 642 (Tenn.Crim.App. 1990); State v. Wiseman, 643 S.W.2d 354, 362 (Tenn.Crim.App. 1982). Whether severance should be granted "depends upon the facts and circumstances involved in the various crimes charged." State v. Morris, 788 S.W.2d 820, 822 (Tenn.Crim.App. 1990). The trial court is required to hold a pretrial hearing to determine the appropriateness of severance. See State v. Hoyt, 928 S.W.2d 935, 944-45 (Tenn.Crim.App. 1995). The court must make a determination that the evidence of one crime is relevant to a material issue in the trial of the other. Id. at 945. The court must then consider whether the probative value of the evidence outweighs any prejudicial effect. Id.
Tennessee Rules of Criminal Procedure provide for mandatory and permissive joinder of offenses charged in separate indictments. It is permissible to join offenses under Rule 8(b) "if the offenses constitute parts of a common scheme or plan or if they are of the same or similar character." Under Rule 14(b)(1) a defendant shall have the right to severance of the offenses unless the offenses are (a) part of a common scheme or plan and (b) the evidence of one would be admissible upon the trial of the others.See Hoyt, 928 S.W.2d at 943; State v. Hallock, 875 S.W.2d 285, 289 (Tenn.Crim.App. 1993). To avoid severance, both portions of the rule must be satisfied. See v. Hallock, 875 S.W.2d at 289.
Rule 14(b)(1) requires the trial court to find a common scheme or plan to meet the first prong. See Hoyt, 928 S.W.2d at 943. There are three categories of common scheme or plan evidence: (1) distinctive design or signature crimes; (2) a larger continuing plan or conspiracy; and (3) same transaction. N. Cohen, D. Paine Sheppeard, Tennessee Law of Evidence § 404.11 (3d. ed. 1995).
The second prong of Rule 14(b)(1) requires that the evidence of the offenses be admissible at the trial of the other. See Hoyt, 928 S.W.2d at 943; State v. McKnight, 900 S.W.2d 36, 50 (Tenn.Crim.App. 1994). Evidence that the accused committed crimes independent of those for which he is on trial is generally inadmissible because such evidence lacks relevance and invites the finder of fact to infer guilt from propensity. Tenn. R. Evid. 404(b). However, evidence of other crimes, wrongs, or acts may be admissible for other purposes. Id.
In State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985), the Supreme Court held that proof of other crimes may be admissible if, after a jury-out hearing, the trial court determines: (1) the evidence is relevant to an issue at trial, such as identity, and (2) the probative value of the evidence outweighs its prejudicial effect. Tenn. R. Evid. 404(b) was drafted in accordance with these standards. See Tenn. R. Evid. 404, Advisory Commission Comments.
First, these two offenses are properly considered part of a common scheme or plan. That is, each is part of a "continuing plan or conspiracy" directed at and executed for the same purpose. See,e.g., State v. Brown, 823 S.W.2d 576, 585 (Tenn.Crim.App. 1991). In this case, there was a working plan commenced earlier that evening when the defendant gathered the necessary weapons, practiced shooting, and then joined his companion, Taylor. Their plan and goal were simple: robbery and murder. And while the victim was not certain, the conclusion was tragically inevitable. And so, the two first came upon Haynes, pulled a gun, pointed it to his head, and demanded money. When Haynes did not produce any, the defendant and Taylor shot him and fled. But with their purpose unfilled, they continued on their plan. Within twenty minutes, they had found their next victim, Daren King, parked on the side of the road in his truck. Again, the two approached, again the gun was pointed to the victim's head, and again a shot was fired. This time, however, their attempted robbery victim was killed. That night, like Haynes, King was their victim. The first victim was shot, the other killed, but both were prey to one simple and violent plan. Their attacks were similarly motivated and similarly executed, close in time and location, and carried out by the same two perpetrators intent on one simple purpose.
Second, we must address the admissibility of the evidence as governed by Tenn. R. Evid. 404(b). In this case, the trial court did not hold a pretrial hearing to determine the relevance of evidence of other crimes or bad acts. See State v. Bigbee, 885 S.W.2d 797, 806 (Tenn. 1994); State v. Nichols, 877 S.W.2d 722, 732 (Tenn. 1994); State v. West, 844 S.W.2d 144, 150 (Tenn. 1992). Rather than remand for a 404(b) hearing, we choose to complete the analysis. See Hoyt, 928 S.W.2d at 943.
As we have previously determined, the evidence of the offense against Haynes and the attempted robbery and murder of King involves a common plan or scheme. As such, the evidence of each offense addresses an issue relevant to the other offense and is therefore admissible in the trial of the other. See McKnight, 900 S.W.2d at 51. That is, in both instances, separated only by minutes, the defendants approached their victim together, confronted him with the same gun and the same intent. In such a way, the two offenses were tightly connected, unified by a common plan and a similar modus operandi. Evidence of one tended to elucidate and establish the other. See State v. James Clark and Gene Honaker, No. 02C01-9206-CR-00149 (Tenn.Crim.App. filed October 30, 1993, at Jackson). Further, as we find no undue prejudice in the admission of this evidence. Therefore, we conclude that the trial court did not err in its denial of the defendant's motion to sever.
We also note that the evidence also bore relevance to "identity." See Parton, 694 S.W.2d at 303. That is, evidence that the defendant fired the gun at Haynes was relevant to establishing the identity of King's shooter.
Admissibility of Taylor's Statement to Police
The defendant next contends that the trial court erred in its ruling on the admissibility of Michael Taylor's statement to police. The defendant sought to introduce, through the cross-examination of Detective Carroll, a redacted statement that Taylor gave to the police. It is clear, that the trial court did not abuse its discretion in denying the admission of the statement. As the trial court observed, the statement is hearsay: a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. See Tenn. R. Evid. 801(c). Therefore, as Detective Carroll would testify to what Taylor said to him, the jury would be unable to evaluate the manner and context of Taylor's statement. Further, the defendant fails to set forth any exception necessary for its admissibility. See Tenn. R. Evid. 804(b). The statement is not a "statement against interest," for while Taylor was unavailable, the statement read in its entirety is not sufficiently against Taylor's interest. See Tenn. R. Evid. 804(b)(3). In this statement, Taylor denies any real involvement and attempts to lay the vast bulk of the attempted robbery and murder on Anderson. On similar facts, our Supreme Court in State v. King, 694 S.W.2d 941, 945 (Tenn. 1995), decided that a defendant could not cross-examine a detective about the statement given to him by a non-testifying codefendant. Similarly, Taylor's statement is inadmissible hearsay properly excluded by the trial court.
Concerning this same statement, the defendant also argues that the trial court improperly stated that if the defendant tried to introduce the redacted statement, the court would allow into evidence the entirety of the statement. The defendant argues that the rationale set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968), protecting defendants from statements of non-testifying co-defendants, would allow for redaction of Taylor's statement. Bruton does set forth an important protection of a defendant's right to confrontation, but the defendant misconstrues its applicability here. Apparently, the defendant wishes to use the Bruton ruling to transform through massive strategic redaction a statement directly and entirely incriminating him into a statement suggesting someone else's guilt. The trial court instructed the defendant properly on this matter.
The Testimony of Marvin Davis
The defendant next argues that the trial court erred in denying him the opportunity to call Marvin Davis as a witness. Davis would apparently testify that several days before the instant attempted robbery and murder he was carjacked by Taylor at gunpoint. The defendant argues that this testimony was relevant and that the trial court mistakenly excluded it; however, our reading of the record reveals that the trial court, while opining that the evidence was probably irrelevant and immaterial, found simply that Davis was unavailable to testify. Davis was under subpoena but could not be located. As he was unavailable, the issue is moot.
Sentencing
Finally, the defendant argues that the trial court erred in sentencing him to serve the two attempted especially aggravated robbery sentences concurrent to each other but consecutive to the first degree felony murder sentence. When a defendant challenges the length, range, or manner of service of a sentence, this court's review of the sentence imposed by the trial court is de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judge considered the sentencing principles and all relevant facts and circumstances.See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directives, there is no presumption of correctness and our review is de novo. See State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
The burden is upon the defendant to show that the sentence is improper. See Tenn. Code Ann. § 40-35-401(d) sentencing comm'n comments. In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider the following factors in sentencing:
(1)[t]he evidence, if any, received at the trial and the sentencing hearing;
(2)[t]he presentence report;
(3) [t]he principles of sentencing and arguments as to sentencing alternatives;
(4) [t]he nature and characteristics of the criminal conduct involved; (5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and
(6) [a]ny statement the defendant wishes to make in the defendant's own behalf about sentencing.
If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after giving due consideration and proper weight to the factors and principles set out under sentencing law, and the trial court's findings of fact are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.Crim.App. 1991).
Consecutive sentences may be imposed in the discretion of the trial court only upon a determination that one or more of the following criteria is met:
(1)The defendant is a professional criminal who has knowingly devoted such defendant's life to criminal acts as a major source of livelihood.
(2)The defendant is an offender whose record of criminal activity is extensive;
(3)The defendant is a dangerous, mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences;
(4)The defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high;
(5)The defendant it convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims;
(6)The defendant is sentenced for an offense committed while on probation; or
(7)the defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
In this case, the trial court based its imposition of consecutive sentencing on criterion b(4): dangerous offender. In order to rely on this criterion, our Supreme Court in State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995), has ruled that the court must find that an extended sentence was necessary to protect the public against further criminal conduct by the defendant and that the consecutive sentences reasonably relate to the severity of the offenses committed.
In the instant case, as the trial court noted, the defendant has a lengthy criminal record for someone his age. Additionally, the defendant has been previously found guilty of two counts of aggravated attempted robbery. Further, the defendant has a history of substance abuse. Finally, the manner of these crimes was especially cold-blooded. The defendant shot two people and killed one within twenty minutes for no reason but money. After the first shooting, the defendant and Taylor even joked about their actions. These facts support the trial court's determination that the defendant is appropriately classified a dangerous offender under Wilkerson. See State v. Roberson, No. 02C01-9508-CC-00245 (Tenn.Crim.App. filed December 1, 1997, at Jackson). Accordingly, the imposition of consecutive sentencing was appropriate.
CONCLUSION
Accordingly, we AFFIRM the judgment and sentences of the trial court.
_______________________________ JOHN EVERETT WILLIAMS, Judge
CONCUR:
_______________________________ JAMES CURWOOD WITT, JR., Judge
_______________________________ ALAN E. GLENN, Judge
CONCURRING OPINION
The majority correctly determines that the trial court did not abuse its discretion in denying the severance of the offenses wherein Travis Haynes is the victim from those wherein Darren King is the victim. The trial court acted within its discretion in finding that (1) the offenses were part of a common scheme or plan and (2) evidence of one would be admissible upon the trial of the others. See Tenn. R. Crim. P. 14(b)(1). However, I differ somewhat from the majority in the rationale used to find the second Rule 14(b)(1) factor.
After concluding pursuant to the first Rule 14(b)(1) factor that the offenses were part of a common scheme or plan, the majority found the presence of the second factor, that evidence of one offense would be admissible in the trial of the other pursuant to Tennessee Rule of Evidence 404(b), because both offenses "involve[d] a common plan or scheme."
This holding is apparently based upon State v. Parton, 694 S.W.2d 299 (Tenn. 1985), in which our supreme court, in quoting Bunch v. State, said that character evidence otherwise inadmissible as being irrelevant may nevertheless be admissible when "relevant to such issues on trial as motive of the defendant, intent of the defendant, the identity of the defendant, the absence of mistake or accident if that is a defense, and, rarely, the existence of a larger continuing plan, scheme, or conspiracy of the crime on trial is a part." Parton, 694 S.W.2d at 302 (quoting Bunch v. State, 605 S.W.2d 227, 229-30 (Tenn. 1980)). However, the Advisory Commission Comments to Rule 404(b) undermine the notion that common scheme or plan alone is a threshold to the admission of character evidence otherwise barred by Rule 404(b), when the common scheme of plan is not in and of itself relevant to some other material issue such as identity. The Comments acknowledge that exceptions to the general rule of exclusion of evidence of the defendant's bad character include, when material, "issues such as identity ( including motive and common scheme or plan), intent, or rebuttal of accident or mistake." Tenn. R. Evid. 404 Advisory Comm'n Comments (emphasis added).
Even if Rule 404(b) would allow evidence of a defendant's bad character to show a common scheme or plan when that evidence is not illustrative of any other material issue, I doubt the soundness of using the common scheme or plan rationale to supply the second factor prefatory to denying a motion to sever offenses. Tennessee Rule of Criminal Procedure 14(b)(1) establishes common scheme or plan as the first of two factors which must coincide to negate a defendant's "right to a severance." The second factor is that evidence of one must be admissible in the trial of the other. This two-part requirement is nonsensical if the second factor is also satisfied by the presence of a common scheme of plan.
In a footnote, the majority "note[s] that the evidence bore relevance to `identity.'" See majority opn., n. 3. I would have made the issue of identity, which appears to have been material in the King homicide, the basis for admissibility under evidence Rule 404(b) and for the denial of severance under the second factor of Rule 14(b)(1). The defendant was amply identified as the person who shot Haynes, and the state proved that the bullet recovered from Haynes was fired by the same gun which was used to kill King.
___________________________________ JAMES CURWOOD WITT, JR., JUDGE