Summary
In State v. Michael Lebron Taylor, No. 03C01-9810-CR-00366, 1999 WL 692579, at *6-7 (Tenn.Crim.App. filed September 8, 1999, at Knoxville), perm. to app.
Summary of this case from State v. HoustonOpinion
No. 03C01-9810-CR-00366.
September 8, 1999.
HAMILTON COUNTY, HON. DOUGLAS A. MEYER, JUDGE.
CONVICTIONS AFFIRMED; SENTENCE MODIFIED IN PART
FOR THE APPELLANT :
JOHN ALLEN BROOKS
FOR THE APPELLEE :
PAUL G. SUMMERS, Attorney General and Reporter, TODD R. KELLEY Assistant Attorney General, WILLIAM H. COX III District Attorney General, C. LELAND DAVIS, CALDWELL H. HUCKABAY, Asst. District Attorneys General
OPINION
The defendant, Michael Lebron Taylor, was convicted by a Hamilton County jury of first degree murder, carjacking, and two counts of attempted especially aggravated robbery. The trial court sentenced him as a Range I standard offender to life imprisonment for the murder; ten consecutive years on the carjacking; ten consecutive years on one count of attempted especially aggravated robbery; and ten concurrent years on the other count of attempted especially aggravated robbery, for an effective sentence of life plus twenty years. In this appeal as of right, defendant raises the following issues:
The jury also convicted defendant of aggravated assault, which the trial court merged into the coinciding attempted especially aggravated robbery.
1. whether the trial court erred in refusing to sever the offenses;
2. whether the state engaged in prosecutorial misconduct;
3. whether the trial court erred in allowing the state to examine one of its witnesses through leading questions;
4. whether the trial court erred in refusing to allow him to question a witness about defendant's statement to the police; and
5. whether the trial court erred in imposing a partially consecutive sentence.
Upon our review of the record, we REDUCE one of defendant's sentences from ten to eight years, but otherwise AFFIRM the judgment of the trial court.
FACTS
During the early morning hours of July 11, 1996, defendant was riding around in a van driven by Allen Russell. Also in the van were Joe Anderson, Angela Anderson, and Latika Fountain. Fountain had been complaining that she needed money to pay her rent, and Anderson and defendant had earlier discussed committing a robbery. The van pulled up in front of a house where Travis Haynes was sitting on the porch. Ricus Langston and Cheryl Ranson were standing on the porch with him. Anderson and defendant got out of the van, each carrying a gun. Anderson approached Langston while defendant stood nearby in the yard. Anderson asked Langston for some marijuana and pulled his gun. Langston and Ranson ran into the house. Anderson turned to Haynes, stuck the gun in his face, and said, "Give up the cheese." Anderson then shot Haynes in the neck/shoulder area, and he and defendant ran off.
Defendant and Anderson got back in the van, saying, "Let's go," and, "Yeah, that's another dead slob." As they were driving around, they saw a parked tractor-trailer. Anderson told Russell to stop; he wanted to rob the driver. Defendant agreed, stating, "I'm down for mine. I'm willing to die tonight." Russell pulled over, stating he wanted nothing to do with it and was going to leave. Anderson and defendant left the van, each carrying a gun. Russell waited a moment, and heard a gunshot as he was leaving. A police car pulled the van over and delayed Russell and the others for questioning about the Haynes shooting. The police officer had not heard the gunshot and did not question them about the tractor-trailer incident. After the questioning, Russell and the remaining van occupants left and went home.
A short time later, defendant approached Bernice Hudson as she sat in her parked car, put a gun in her face, and told her to get out of the vehicle and run. She complied, and defendant got in her truck and left.
Sometime later, Daren King was found dead in the cab of the tractor-trailer. He had been killed by a single gunshot to the head, fired from one to two feet away. The bullet recovered from his body matched a bullet recovered from the scene where Haynes had been shot. Both bullets had been fired from the same .25 caliber gun. The proof at trial established that Anderson had a .25 caliber gun that night. The investigation also revealed defendant's fingerprint on the cab of the tractor-trailer.
I. SEVERANCE OF OFFENSES
Defendant contends that each of the offenses committed on the night in question was separate from the others; therefore, he was entitled to a severance. The trial court disagreed, as do we.
A.
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 pre-trial hearing to determine the appropriateness of severance.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.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. 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. 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, et al., 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. 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." Hoyt, 928 S.W.2d at 944; see Tenn. R. Evid. 404(b). However, evidence of other crimes, wrongs, or acts may be admissible for other purposes.Hoyt, 928 S.W.2d at 944.
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.
B.
We first address the "common scheme or plan" requirement. In this case, Anderson and defendant's scheme was to be driven up to a potential victim, attempt to rob the victim at gunpoint, and then leave the scene by the same vehicle which dropped them off. The scheme went awry after the second attempted robbery because a police officer pulled the van over and made the intended escape impossible. Defendant was then forced to find a different mode of transportation, which he did by committing a carjacking. Defendant's resourcefulness in adjusting the scheme as circumstances dictated does not entitle him to claim that the carjacking was not part of the plan so as to entitle him to a severance. Accordingly, we find that the first prong of Rule 14(b)(1) is met.
We turn now to whether the evidence of one crime would be admissible upon the trial of the others. Certainly, the bullet found at the Haynes crime scene was relevant to prove that the same gun was later used to kill King. A link in identifying the perpetrators was thereby established. Evidence of defendant's fingerprint on King's truck cab was likewise relevant to prove the inference that Anderson and defendant were attempting to rob their victims while together. Testimony that defendant was armed each time he left the van supports the state's theory that he was armed during the carjacking. Proof that the van became unavailable after the second attempted robbery supports the state's theory as to defendant's motive in carjacking Hudson's vehicle. In this case, the evidence of each crime was relevant to show identity, guilty knowledge, intent, or motive with respect to the other crimes. See Tenn. R. Evid. 404(b); Hoyt, 928 S.W.2d at 944. Moreover, the probative value of this evidence outweighs any prejudicial effect on defendant. Accordingly, the evidence was properly admissible, and the second requirement for disallowing a severance was met.
This issue is without merit.
II. PROSECUTORIAL MISCONDUCT
Defendant next contends that the state committed prosecutorial misconduct by changing its theory about who shot "the victim" after Anderson's trial. Defendant's brief does not make clear to which victim he is referring. Moreover, there is nothing in the record to support this assertion, and defendant has failed to cite any legal authority to bolster his contention. This issue is, therefore, waived. Tenn. Crim. App. Rule 10(b).
Defendant also contends that the state committed prosecutorial misconduct with respect to his not testifying at trial. During closing argument, the prosecutor reviewed the attempted robbery of Haynes, and stated,
[Haynes] didn't have any cheese, and they shot him. They run back to the van, and they get in. And what do they do? What does everybody in the van do? Did Mike Taylor ever once, did you hear any testimony where Mike Taylor said, Whew, Joe, man, don't do that?
Defense counsel objected and moved for a mistrial, which the trial court denied.
We acknowledge that it is "constitutionally impermissible for a prosecutor to comment upon an accused's silence during the course of a trial." State v. Transou, 928 S.W.2d 949, 960 (Tenn.Crim.App. 1996); see also Griffen v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106, 110 (1965). However, given the context of the remark in this case, it is clear that the prosecutor was trying to emphasize that neither Russell, nor Angela Anderson, nor Fountain — all of whom were witnesses at trial — testified that defendant had objected to Anderson's actions in shooting Haynes. Mere argument by the State that its proof is unrefuted or uncontradicted is not an improper comment upon a defendant's failure to testify. State v. Thomas, 818 S.W.2d 350, 364 (Tenn.Crim.App. 1991). Moreover, even if the prosecutor's remark was improper, no new trial is required if the error was harmless beyond a reasonable doubt. Transou, 928 S.W.2d at 960. We have no trouble concluding here that no prejudice inured to defendant as a result of the alleged transgression.
This issue is without merit.
III. STATE'S EXAMINATION OF ANGELA ANDERSON
Defendant next contends that the trial court erred when it allowed the state to examine Angela Anderson with leading questions. We disagree. Prior to Ms. Anderson's testimony, the state informed the court (outside the presence of the jury) that she was "very hostile to the State." The prosecutor stated that he would try to examine her, but might be asking that she be treated as a hostile witness. Subsequently, during Ms. Anderson's direct testimony, defense counsel objected to a leading question and the prosecutor requested permission to ask leading questions. The trial court granted the state's request, finding that Ms. Anderson was "not being responsive" to the state's questions.
A trial court may permit leading questions upon direct examination when a witness is determined to be hostile. Tenn. R. Evid. 611(c). Moreover, the propriety, scope, manner and control of the examination of witnesses is a matter within the discretion of the trial judge, subject to appellate review for abuse of discretion. State v. Caughron, 855 S.W.2d 526, 540 (Tenn. 1993). Our review of Ms. Anderson's testimony in this case reveals no abuse of that discretion.
This issue is without merit.
IV. DEFENDANT'S EXAMINATION OF TIM CARROLL
Defendant next complains about the trial court's refusal to allow him to examine Officer Tim Carroll about the statement he gave Officer Carroll preceding his arrest. Defendant made no offer of proof at trial about the content of this statement, but we assume it was self-serving. As such, the trial court was correct. An accused does not have the right to introduce his or her self-serving hearsay statements. State v. Turnmire, 762 S.W.2d 893, 897 (Tenn.Crim.App. 1988); Hall v. State, 552 S.W.2d 417, 418 (Tenn.Crim.App. 1977).
This issue is without merit.
V. SENTENCES
A. Length of Sentences
Although defendant does not challenge specifically the length of his sentences for the attempted especially aggravated robberies and the carjacking, he challenges the trial court's application of enhancement factors. We agree with defendant that some of the enhancement factors were misapplied.
This Court's review of the sentence imposed by the trial court is de novo with a presumption of correctness. 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. 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.State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the minimum sentence within the applicable range. See State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn.Crim.App. 1991). However, if such factors do exist, a trial court should start at the minimum sentence, enhance the minimum sentence within the range for enhancement factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the statute, as the weight given to each factor is left to the discretion of the trial court as long as the trial court complies with the purposes and principles of the sentencing act and its findings are supported by the record. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn.Crim.App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn.Crim.App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments. Nevertheless, should there be no mitigating factors, but enhancement factors are present, a trial court may set the sentence above the minimum within the range. Tenn. Code Ann. § 40-35-210(d); see Lavender, 967 S.W.2d at 806;Manning v. State, 883 S.W.2d 635, 638 (Tenn.Crim.App. 1994).
In this case, the trial court's findings are insufficient to allow the presumption of correctness. Accordingly, our review is de novo.
Attempted especially aggravated robbery and carjacking are Class B felonies. See Tenn. Code Ann. §§ 39-12-107(a); 39-13-403(b); and 39-13-404(b). Since defendant is a Range I standard offender, the range of sentencing for each of these crimes is eight to twelve years. Tenn. Code Ann. § 40-35-112(a)(2). In setting the sentences at the mid-range point of ten years for each of these convictions, the trial court found no mitigating factors but applied the following four enhancement factors:
(6) The personal injuries inflicted upon or the amount of damage to property sustained by or taken from the victim was particularly great;
(10) The defendant had no hesitation about committing a crime when the risk to human life was high;
(12) During the commission of the felony, the defendant willfully inflicted bodily injury upon another person; and
(16) The crime was committed under circumstances under which the potential for bodily injury to a victim was great.
Tenn. Code Ann. § 40-35-114. Defendant contends that each of these enhancement factors is an essential element of the offenses of attempted especially aggravated robbery and carjacking and cannot be used to enhance his sentences. To a limited extent, we must agree.
Attempted especially aggravated robbery is the attempted intentional or knowing theft of property from the person of another by violence or putting the person in fear, accomplished with a deadly weapon and causing serious bodily injury to the victim. Tenn. Code Ann. § 39-13-403(a). This Court has previously held that enhancement factor (6) is inherent in this offense, and its application to this crime is, therefore, inappropriate. See State v. Holly Lack Earls, C.C.A. No. 01C01-9612-CC-00506, Coffee County (Tenn.Crim.App. filed Jan. 16, 1998, at Nashville). Factor (12) is also an element of the offense and, therefore, inapplicable. Factors (10) and (16) are also elements of the crime. However, in the case of the attempted robbery of Haynes, two other people were present on the porch when Anderson pulled his gun. Indeed, Anderson first pulled the gun on Langston, at which point he and Ranson ran in the house. Thus, in the attempted especially aggravated robbery against Haynes, there were other potential victims in the area subject to injury. Under these circumstances, application of factors (10) and (16) was appropriate. See State v. Sims, 909 S.W.2d 46, 50 (Tenn.Crim.App. 1995). With respect to the attempted especially aggravated robbery of King, on the other hand, there was no proof of any other potential victims present. Thus, none of these enhancement factors should have been applied to the sentence on this offense.
We find, therefore, that the trial court correctly applied two enhancement factors for the attempted especially aggravated robbery against Haynes, and we see no reason to reduce the mid-range ten-year sentence. None of the enhancement factors should have been applied on the other attempted especially aggravated robbery conviction, and we must, therefore, reduce that sentence to eight years.
Carjacking is defined as the intentional or knowing taking of a motor vehicle from the possession of another by use of a deadly weapon or by force or intimidation. Tenn. Code Ann. § 39-13-404(a). In reviewing the application of factor (6), we first note that there was no proof of any personal injuries inflicted during the course of the carjacking. Nor was there any proof of property damage. The property taken was the victim's vehicle. While this might otherwise qualify as a "particularly great" amount of property taken from a victim, in this case it is an essential element of the offense. Accordingly, this enhancement factor should not have been applied. Factor (12) was also inapplicable because, as noted above, there was no proof of bodily injury being inflicted by defendant during the course of the carjacking.
With respect to factors (10) and (16), defendant's use of a gun in committing this crime was an essential element of the offense. And, since there is "necessarily a high risk to human life and the great potential for bodily injury whenever a deadly weapon is used," State v. Nix, 922 S.W.2d 894, 903 (Tenn.Crim.App. 1995), these factors should ordinarily not be applied to a sentence for carjacking. However, as in the attempted robbery against Haynes, the proof at trial established that Hudson's boyfriend was standing near her vehicle when defendant carjacked it. Indeed, Hudson's boyfriend was close enough to recognize defendant. Thus, under Sims, we find the application of enhancement factors (10) and (16) appropriate in this case. Accordingly, we affirm defendant's ten year sentence for the carjacking conviction.
"[T]hose factors based on facts which are used to prove the offense or which establish the elements of the offense are excluded." State v. Carlos D. Haywood, C.C.A. No. 02C01-9707-CR-00289, Shelby County (Tenn.Crim.App. filed December 11, 1998, at Jackson).
B. Consecutive Sentences
Defendant contends that the trial court erred in "consecutizing" his sentences for the carjacking and for the attempted especially aggravated robbery against Haynes. The trial court imposed these consecutive sentences after finding defendant to be a "dangerous offender." See Tenn. Code Ann. § 40-35-115(b)(4).
The sentence on the Haynes attempted robbery was run consecutively to the life sentence for the murder. The sentence on the carjacking was run consecutively to the sentence on the Haynes attempted robbery.
The trial court made no other findings with respect to imposing consecutive sentences.
A court may order sentences to run consecutively if the court finds by a preponderance of the evidence that:
[t]he 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 . . .
Tenn. Code Ann. § 40-35-115(b)(4); see also State v. Black, 924 S.W.2d 912 (Tenn.Crim.App. 1995). Furthermore, the court is required to determine whether the consecutive sentences (1) are reasonably related to the severity of the offenses committed; (2) serve to protect the public from further criminal conduct by the offender; and (3) are congruent with general principles of sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).
Although the trial court made no findings with respect to theWilkerson factors, our de novo review indicates that the consecutive sentences imposed in this case are appropriate. With a gun in his hand each time, defendant participated in three life-threatening offenses within a short period of time, one of which resulted in an innocent man's murder. These offenses are among the most severe, and therefore, deserve severe sentencing. The offenses were committed against ordinary citizens who in no way provoked defendant, and who were given no opportunity to protect themselves from the violence of the defendant and his cohort. All of these offenses were vicious attacks against the public, and the public clearly needs protection from future criminal activity by defendant. We also find that the consecutive sentences are reasonably related to the severity of the offenses and are congruent with the general principles of sentencing. Accordingly, we hold defendant's consecutive sentences to be appropriate.
CONCLUSION
The trial court having improperly enhanced defendant's sentence for one of the attempted especially aggravated robberies, we REDUCE his sentence for the attempted especially aggravated robbery against King to eight years. The trial court's order regarding consecutive service of defendant's sentences is AFFIRMED, and defendant's effective sentence, therefore, remains at life plus twenty years. The trial court's judgment is AFFIRMED in all other respects.
____________________________ JOE G. RILEY, JUDGE CONCUR:
_______________________________ GARY R. WADE, PRESIDING JUDGE
_______________________________ DAVID H. WELLES, JUDGE