State v. Carlos Haywood

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JULY 1998 SESSION
FILED
December 11, 1998

STATE OF TENNESSEE, ) No. 02C01-9707-CR-00289 Cecil Crowson, Jr.
Appellate C ourt Clerk
)
Appellee )
) Shelby County
vs. )
) Honorable John P. Colton, Jr., Judge
CARLOS D. HAYWOOD, )
) (Felony Murder, Attempted Especially
Appellant. ) Aggravated Robbery)

FOR THE APPELLANT: FOR THE APPELLEE:

A. C. WHARTON, JR. JOHN KNOX WALKUP
Shelby County Public Defender Attorney General & Reporter

BARRY KUHN ELIZABETH T. RYAN
Assistant Public Defender Assistant Attorney General
(At Trial) Criminal Justice Division
425 Fifth Ave. North
WALTER GW INN 2d Floor, Cordell Hull Bldg.
Assistant Public Defender Nashville, TN 37243-0493
(On Appeal)
201 Poplar Ave., Suite 201 WILLIAM L. GIBBONS
Memphis, TN 38103-1947 District Attorney General

PATIENCE R. BRANHAM
LEE V. COFFEE
Assistant District Attorneys General
201 Poplar Ave., Suite 301
Memphis, TN 38103-1947

OPINION FILED: ____________________

CONVICTIONS AFFIRMED, SENTENCE MODIFIED.

JAMES CURWOOD WITT, JR.
JUDGE
 OPINION

The defendant, Carlos D. Haywood, was convicted in a jury trial in the

Shelby County Criminal Court of felony murder and attempt to commit especially

aggravated robbery. After a bifurcated trial in which the state sought a life sentence

without the possibility of parole, the jury found that the aggravating circumstance did

not outweigh the mitigating circumstances beyond a reasonable doubt and

sentenced the defendant to life with the possibility of parole. The trial court

sentenced the defendant to a consecutive sentence of twelve years as a Range I

offender for attempted especially aggravated robbery, a class B felony. In this

appeal, the defendant contends (1) that the evidence is legally insufficient to sustain

his convictions, (2) that the trial court erred in admitting testimony about the

defendant’s gang affiliation, (3) that admission of five photographs of the victim’s

body taken during the autopsy were unfairly prejudicial, and (4) that his sentence

is excessive. Our review of the record has uncovered no error requiring reversal of

the defendant’s convictions. We find, however, that the trial court incorrectly

applied several enhancement factors to the defendant’s sentence. Therefore, we

affirm the judgment of the trial court but modify the defendant’s sentence for

attempted especially aggravated robbery.

I. Facts

Sometime after midnight on Saturday, June 18, 1995, Barry Brodey

was shot at close range with a shotgun in the parking lot of the Fantasy Warehouse

in Memphis. Hospital personnel pronounced him dead at approximately 2:00 a.m.

On the following Monday, Memphis police officers arrested fifteen-year old Carlos

Haywood and two co-defendants for Brodey’s murder. 1 The evidence at trial

provides us with the following narrative of events.

1
The indictment names as co-defendants Tyre S. Allen and
Frederick D. Branch (also known as Frederick Lewis). The cases were severed
for trial. Neither Allen nor Branch testified at Haywood’s trial.

2
 Barry Brodey, who lived in Indianapolis, Indiana, was attending a

business-related conference in Memphis. On Friday evening, June 17, 1995, he

had dinner with some friends. When he left them at about 11:30 p.m., he said he

was headed back to the Peabody Hotel. Brodey never returned to the hotel.

At about 1:00 a.m., Trudy Blanchard, a shift manager at Fantasy

Warehouse, heard what she thought were backfires in the parking lot. When she

stepped out the front door, she saw someone firing a shotgun into the ground about

four cars down from the door. She stepped back inside and asked the cashier to

call 911. As she opened the door again, the shooter ran directly past her around

the corner of the building. She described him as a young black man, possibly

seventeen or eighteen years old, about five feet five inches in height with short,

black hair. He was carrying a sawed off shotgun in his hands. She walked down the

sidewalk to the place where the shots were fired and found Brodey lying face down

on the pavement between two cars.

A few moments later, Sergeant Michael Williams turned into the

parking lot. He was on routine patrol in the area and frequently checked the

Fantasy Warehouse parking lot because it had recently been the scene of

criminal activity. People in the lot flagged him down and told him there had been

a shooting. They said that the shooter had run around the corner of the building.

Williams then drove around the back of the building and tried to find the suspect.

When he saw no one he returned to the scene where he found a bleeding white

male lying on the pavement between two automobiles. The man’s shoes were off.

Several people were trying to stop the bleeding with a towel or blanket. Parked

nearby was a black Cadillac. The driver’s side door was standing open, the lights

were on, and the engine was running. The back and rear side windows had been

shot out. The sergeant found a handgun and a clip lying in the driver’s seat. The

victim, who was still alive, was taken by helicopter to a hospital where he died.

3
 The next day, Capt. Mike Houston received a telephone call from Al

Pritchard. Pritchard, who had been the defendant’s friend for ten years, told

Houston that the defendant fired the shots that killed Brodey. Pritchard and the

defendant had been at the home of another friend before the shooting. Pritchard

knew that the defendant was going “shopping” for some rims.2 The defendant left

carrying a sawed-off Mossberg pump-action shotgun. At 3:00 a.m., the defendant

returned and told Pritchard that when he ordered the driver of a Cadillac to get out

of the car, the driver refused and pulled a gun on him. The defendant then shot

him. Pritchard advised the defendant to get rid of his blood-spattered T-shirt. Later,

after reading in the newspaper that the driver died, Pritchard decided to call the

police.3 After speaking to Houston, Pritchard took the defendant to the parking lot

where he retrieved the shotgun from where he had thrown it in some bushes.

As result of the information provided by Pritchard, Houston obtained

a search warrant and officers ultimately found a sawed-off shotgun under a sofa at

the defendant’s grandmother’s house. At this point, the police arrested the

defendant and brought him and his grandmother, who was his legal guardian, to the

station. His grandmother was present during the interview. She and the defendant

signed and dated the advice of rights form. During the interview, the defendant

confessed to shooting Brodey.

According to the statement, Haywood was asleep in bed when his two

co-defendants came by and invited him to go “shopping” with them. Haywood was

anxious to obtain a set of Vogue-STS rims because Tyre Allen had sold a set for

$1500. The three had been riding around for a while when Tyre spotted the

Cadillac with STS rims as it turned into the parking lot. They followed it in and

stopped the car just beyond the Cadillac. The defendant jumped out carrying the

2
“Shopping,” apparently, is street slang for driving around looking for
a vehicle with specific equipment that can be hijacked and then stripped.
3
According to Pritchard, he thought “things were getting out of hand
. . . People start getting killed.”

4
shotgun, yanked open the driver’s door and ordered the driver out. Brodey,

however, did not comply. He began to fumble with something near the seat belt

release. When the co-defendant honked the horn, the defendant glanced away.

He turned back, cocked the weapon, and once again ordered Brodey from the

vehicle. He told the victim, “Get out or I’ll shoot you.” The victim pulled up the

handgun and said, “Not before I shoot you first.” The defendant became frightened

and shot the victim. He was afraid the victim would shoot him in the back if he tried

to run away. He ran around the car and fired at Brodey through the windows

because he thought the victim was still trying to shoot him. Then he ran around

the building but the co-defendants were gone. He threw the shotgun in some

shrubbery and continued to run. When he felt safe, he called Tyre from a pay

phone, and Tyre came and picked him up.

The medical examiner testified that the victim died from internal

bleeding caused by multiple pellet wounds to the chest, abdomen, and extremities.

The pattern of wounds indicated that the victim had been shot at least three times

from the front. The shots were fired from within a few feet. The victim sustained no

wounds to his back. His system contained traces of alcohol and metabolite of

cocaine.

The defendant testified in his own behalf. Although he added some

details, his trial testimony was generally consistent with the statement he made to

the police. According to his trial testimony, after the first shots were fired, the victim

got out of the car with the handgun in his hand. The defendant ran behind the car

and fired at him again. This shot hit the Cadillac’s rear window. When the

defendant moved to the passenger side of the car, the victim leaned over the hood

of the car. The defendant fired two more shots that broke out the rear windows. He

insisted that he never shot the victim when he was on the ground and that he had

no intent to kill the man. He was afraid and wanted to get away. After firing the fifth

shot, he fled. When he jumped into the drainage ditch that borders the parking lot,

5
he fell against some barbed wire which gashed his arm and caused him to bleed all

over his T-shirt.

Based on this evidence, the jury found the defendant guilty of

attempted especially aggravated robbery and felony murder.4 The defendant now

contends that the evidence is legally insufficient to sustain the convictions.

II. Sufficiency of the Evidence

The standard for determining the sufficiency of the evidence on appeal

is well-established. Since a jury conviction removes the presumption of innocence

with which a defendant is initially cloaked and replaces it with one of guilt, a

convicted defendant has the burden of demonstrating on appeal that the evidence

is insufficient. State v, Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining

that sufficiency, this court does not reweigh or reevaluate the evidence. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the state is entitled to the

strongest legitimate view of the evidence and all reasonable or legitimate inferences

which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).

It is the appellate court’s duty to affirm the conviction if the evidence, viewed under

these standards, was sufficient for any rational trier of fact to have found the

essential elements of the offenses beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253,

259 (Tenn. 1994); Tenn. R. App. P. 13(e).

Especially aggravated robbery is the intentional or knowing theft of

property from the person of another accomplished with a deadly weapon and

4
The defendant was indicted for felony murder in count 1 and
premeditated and deliberate murder in count 2 of indictment # 96-00973.
According to the transcript, the jury returned a verdict of guilty in count 1 of #96-
00973. The jury found the defendant guilty of an attempt to commit especially
aggravated robbery in indictment #96-00974. The jury did not return a verdict
on the count charging a premeditated and deliberate murder. The record does
not indicate whether the trial court dismissed this count.

6
resulting in serious bodily injury to the victim. Tenn. Code Ann. § 39-13-403 (1997).

Our legislature has defined criminal attempt as:

(a) A person commits criminal attempt who, acting with
the kind of culpability otherwise required for the offense
***
(3) Acts with intent to complete a course of action or
cause a result that would constitute the offense, under
the circumstances surrounding the conduct as the
person believes them to be, and the conduct constitutes
a substantial step toward the commission of the
offense.

Tenn. Code Ann. § 39-12-101 (1997).

The defendant admitted on the stand at trial that he intended to steal

some tire rims and that he attempted to take Brodey’s car from him at gunpoint. He

then shot Brodey at least three times at close range. Brodey died as result of his

injuries. The proof clearly established the elements of attempted especially

aggravated robbery.

At the time of this offense, murder in the perpetration of a felony was

“the reckless killing of another committed in the perpetration of or attempt to

perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping,

aggravated child abuse or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2)

(1991).5 The defendant’s actions were, at a minimum, reckless. He pointed the

loaded and cocked weapon at the victim and ordered him from his car. He fired the

pump shotgun at the victim from close range, and then, by his own testimony,

proceeded to fire at him at least four more times. Trudy Blanchard saw the

defendant discharge the shotgun into what she believed was the ground. The

defendant was surely aware of but disregarded the risk that the victim would be

seriously injured or killed as the result of his actions. Tenn. Code Ann. § 39-11-

106(a)(31)(1991). Disregarding this risk constituted a gross deviation from the

5
On July 1, 1995, a few weeks after the commission of this offense,
the legislature amended the section to exclude the reckless mens rea. See
Tenn. Code Ann. § 39-13-202(a)(2) (1997).

7
standard of care that an ordinary person would exercise in the circumstances. Id.

The proof establishes the elements of felony murder beyond a reasonable doubt.

III. Testimony of Defendant’s Gang Affiliation

The defendant contends that the trial court erred by allowing testimony

about the defendant’s gang affiliation as well as about the presence of fellow gang

members in the courtroom. We find that, under these circumstances, the testimony

should have been excluded. The error, however, was harmless.

The record indicates that after a noon recess, the state’s attorney

questioned the witness, Al Pritchard, about some young men that Pritchard had

noticed in the courtroom during his earlier testimony. At that point, defense counsel

objected. At a jury-out hearing, the prosecutor stated that the defendant was a

member of the “Gangster Disciples” and that when Pritchard left the stand for the

noon recess, he told the prosecutor that gang members were in the courtroom to

intimidate him. The state also informed the court that Pritchard and the defendant

had an altercation in jail. The state contended that the evidence was relevant to

show motive, premeditation, deliberation and to negate any claim of self-defense.

The defense claimed that even if the evidence were relevant, its prejudicial effect

far exceeded its probative value. The trial court, without making any specific

findings, allowed Pritchard to testify that the defendant was a member of the

Gangster Disciples and that members of the gang had been present in the

courtroom.6 Pritchard also testified that he and the defendant had fought when they

were first incarcerated together and that just recently, the defendant had

approached him and told him to tell the jury that he didn’t remember anything. 7

6
The defendant complains about the trial court’s failure to make
specific findings. However, Rule 404 states that a trial court “must upon request
state on the record the material issue, the ruling, and the reasons for admitting
the evidence. . . .” Tenn. R. Evid. 404(b)(2) (emphasis added). In this case, the
defense made no such request.
7
Pritchard was arrested on another charge, and for a time, he and
the defendant were in the same pod in the county jail. A month later, the
defendant learned that Pritchard was the one who had turned him into the police.
A fight ensued, and Pritchard was then moved to another section of the jail.

8
 Two issues are intertwined in this question. First we must consider

whether the defendant’s membership in a gang was admissible,8 and second,

whether the trial court erred in allowing a witness to testify that members of the

defendant’s gang had come to the courtroom to intimidate him.

Generally, evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would without the evidence.” Tenn. R. Evid. 401.

The trial court may exclude relevant evidence if its probative value is substantially

outweighed by the danger of unfair prejudice. Tenn. R. Evid. 403. Evidence of a

character trait, however, is subject to Rule 404 which provides that evidence

concerning a person’s character is not admissible except under very limited

circumstances, none of which are applicable in this case. Tenn. R. Evid. 404(a).

Evidence of other crimes, wrongs, or acts is also subject to Rule 404 and is also

generally inadmissible. Such evidence may be admitted only after a hearing is held

outside the jury’s presence and the trial court determines that the proffered

evidence is relevant to some material issue and is not presented only to prove that

the defendant acted in conformity with his previous actions. Tenn. R. Evid.

404(b)(1) -(2). The trial court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice. Tenn. R. Evid. 404(b)(3).

Testimony or other evidence of a defendant’s affiliation with a street

gang has been admitted into evidence in Tennessee if the evidence meets the

standards in Rules 401, 403, and 404. See, e.g., State v. Johnson, 743 S.W.2d

154, 158 (Tenn. 1987) (defendant’s membership in motorcycle gang offered to

explain witness’s fear of the defendant); State v. Rearno Vaughn, No. 01C01-9703-

CR-00086, slip op. at 5-6 (Tenn. Crim. App., Nashville, Apr. 14, 1998) (murder

arose out of competition between gangs); State v. Amos Lewis Jones, No. 03C01-

8
The defendant did not deny that he was a gang member during his
testimony.

9
9701-CR-00016, slip op. at 3 (Tenn. Crim. App., Knoxville, Feb. 25, 1998) (crimes

committed to demonstrate defendant’s prowess to criminal gang), perm. app.

granted (Tenn. 1998); State v. Bryant Dewayne Millen, No. 02C01-9602-CR-00049,

slip op. at 3-4 (Tenn. Crim. App., Jackson, Mar. 7, 1997) (victim was a member of

a rival gang); State v, Erica Nelms, No. 02C01-9604-CR-00116, slip op. at 2-3

(Tenn. Crim. App., Jackson, May 23, 1997) (crime committed to win favor with

gang); State v. Jack Jay North, Jr., No. 02C01-9512-00369, slip op. at 16 (Tenn.

Crim. App., Jackson, Dec. 9, 1996) (defendant’s aspiration to become gang

member provides motive for first degree murder). Evidence of gang membership

is clearly inadmissible if its only purpose is to establish that the defendant acted in

conformity with his bad character or to demonstrate that he had a propensity to

commit a crime. Bunch v. State, 605 S.W.2d 227, 230 (Tenn. 1980); Tenn. R.

Evid. 404.

The fact that the defendant was a member of the Gangster Disciples

is irrelevant to any material fact at issue in this case. The circumstances in this

case are not similar to those in Nelms in which the jury also found the defendant

guilty of felony murder and especially aggravated robbery. In Nelms, gang colors

were left at the scene of the crime and several witnesses testified that the defendant

committed the crime to win favor with the gang. Erica Nelms, slip op. at 2-3. Nor

was the murder the result of gang rivalries as was the case in State v. Rearno

Vaughn, No. 01C01-9703-CR-00086, slip op. at 5-6 (Tenn. Crim. App., Nashville,

Apr. 14, 1998). See also State v. Bryant Dewayne Millen, No. 02C01-9602-CR-

00049, slip op. at 3-4 (Tenn. Crim. App., Jackson, Mar. 7, 1997). Unlike the witness

in Johnson, Al Pritchard did not testify that he was afraid of the defendant.

Johnson, 743 S.W.2d at 158. Nothing in the circumstances of the crime indicates

that the defendant’s aborted robbery was related to any gang activities or that he

committed the crime to gain membership or status in the gang. Indeed, the record

demonstrates that he accepted the invitation to go “shopping” because he wanted

the fifteen hundred dollars that he believed the rims would bring. On these facts,

10
his membership in the Gangster Disciples was not relevant to show identity, intent,

motive, or common scheme or plan, see State v. Parton, 694 S.W.2d 299, 302-303

(Tenn. 1985), or to sustain the state’s burden of proving each element of the crimes

beyond a reasonable doubt. See Tenn. Code Ann. §§ 39-12-101, 39-13-403 (1997)

and § 39-13-202(a)(2) (1991) (amended 1995).

The defendant’s gang affiliation was relevant only to Pritchard’s

testimony concerning the presence of three alleged gang members in the

courtroom. However, this testimony should have been excluded. Pritchard testified

that the defendant had asked him to say that he didn’t remember what had

happened. He also testified that although he had heard some “little remarks” or

threats, he did not say that the defendant had threatened him. In fact, Pritchard

stated that he was not afraid of the defendant and that he had spoken with him

several times after their fight. Nothing in the record indicates that the defendant

was in any way responsible for the presence of the three men identified as Gangster

Disciples. Nothing indicates that their conduct was inappropriate or threatening.

Pritchard testified at length and answered the prosecutor’s questions in a forthright

manner and without hesitation. His responses were very damaging to the

defendant. He explained that his initial hesitation in talking to the prosecutor was

the result of his reluctance to speak to a representative of the state without his

attorney present.

A defendant does not control who does and who does not enter the

courtroom. Unless some evidence exists to demonstrate that the defendant is

responsible for the presence of a disruptive element, he surely cannot be held

accountable for it.9 Without some evidence that the defendant was a party to the

9
The trial judge was aware of the presence of the young men even
before the prosecutor brought them to his attention. He asked the deputies to
search them and to monitor carefully any one who entered the courtroom. Out of
the jury’s presence, he warned the spectators about the potential problem and
described the additional security measures he had taken. These were
reasonable steps to ensure the safety of everyone concerned.

11
alleged intimidation, Pritchard’s testimony about “Shaun, Gerald, and Rudy” did not

have “any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence.” Tenn. R. Evid. 401.

Pritchard’s testimony about the defendant’s gang affiliation and the

presence of the alleged gang members in the courtroom should have been

excluded. In his brief, the defendant contends that the harmless error rule should

not apply in this instance. He has, however, cited no authority for his proposition

that the testimony deprived him of a fundamental constitutional right and, therefore,

the error demands an automatic reversal of the defendant’s conviction. Moreover,

pursuant to Tennessee Rule of Evidence 103(a), the admission or exclusion of

evidence is not a basis for error unless the ruling affects a substantial right of the

party. We find that even if the trial court did err in allowing this testimony to be

introduced, no substantial right of the appellant was affected. In light of the

defendant’s statement to the police and his testimony from the stand, any error in

the admission of this testimony was harmless. See State v. Shelley, 628 S.W.2d

436, 438 (Tenn. Crim. App. 1981); Tenn. R. App. P. 36(b).

IV. Autopsy Photographs

During the guilt phase, the trial court allowed the state to introduce into

evidence five photographs of the victim’s body taken during the autopsy. The state

requested that eight photographs be admitted. After a jury-out hearing, the trial

judge ruled that the prejudicial effect of three of the pictures substantially

outweighed their probative value. The five remaining photographs, however, the

trial judge ruled were relevant and admissible. Exhibit 38 shows the victim’s face

and naked upper torso peppered with wounds caused by shotgun pellets. Number

39 shows the victim’s left arm and a portion of his naked body. Two fingers of the

left hand are missing and pieces of shredded flesh are clinging to the bone. Exhibit

40 is a side view of the victim’s face and upper torso. The remaining exhibits,

12
numbers 41 and 42, show the left and right side of the body. The photographs, in

addition to showing the horrendous number of pellet wounds the victim sustained,

include drainage tubes, incisions, and other signs of medical and autopsy

procedures.

In this appeal, the defendant argues that the photographs are grisly,

inflammatory and of little probative value. The state contends that the photographs

were necessary to show the nature and extent of the injuries the victim suffered.

The trial court found that the photographs were relevant to show that a death

occurred and the various wounds the victim suffered, to illustrate the testimony of

the medical examiner, and to demonstrate the direction of the pellets. Although it

is a close question in this case, we conclude that the trial court did not abuse its

discretion in admitting the photographs.

To be admissible, a photograph must be relevant to some issue at

trial, and the prejudicial effect of the photograph must not outweigh its prejudicial

value. State v. Bush, 942 S.W.2d 489, 514 (Tenn. 1997); State v. Banks, 564

S.W.2d 947, 951 (Tenn. 1978). The admissibility of photographs is within the sound

discretion of the trial court and the court’s determination will not be overturned on

appeal except upon a clear showing of abuse of discretion. Bush, 942 S.W.2d at

514; State v. Bordis, 905 S.W.2d 214, 226 (Tenn. Crim. App. 1995).

As a general rule, where medical testimony adequately describes the

degree or extent of the injury, gruesome and graphic photographs should not be

admitted. State v. Jennifer Collins, No. 03C01-9704-CR-00143, slip op. at 15

(Tenn. Crim. App., Knoxville, Mar. 3, 1998) (citing State v. Duncan, 698 S.W.2d 63

(Tenn. 1985)), perm. app. denied (Tenn. 1998); State v. Cynthia Roberson, No.

02C01-9503-CC-00059, slip op. at 14 (Tenn. Crim. App., Jackson, Dec. 28, 1995).

This court has noted an increasing concern that courts may become too liberal in

their admission of inflammatory autopsy photographs. Collins, slip op. at 15-16.

13
Photographs made during or after an autopsy should be scrutinized and examined

prior to being shown to the jury. State v. James Dubose, No. 01C01-9405-CC-

00160, slip op. at 20 (Tenn. Crim. App., Nashville, Aug. 25, 1995), aff’d on other

grounds, 953 S.W.2d 649 (Tenn. 1997).

In State v. Banks, the supreme court recognized “the inherently

prejudicial character of photographic depictions of a murder victim. . . .” 564 S.W.2d

at 951. The court suggested a variety of factors for consideration by the trial judge

including the “value of photographs as evidence, . . . their accuracy and clarity, . .

. whether they were taken before the corpse was moved . . . [and] the inadequacy

of the testimonial evidence in relating the factors to the jury.” Id. Moreover,

photographs that are unfairly prejudicial must be excluded. Banks, 564 S.W.2d at

951 (quoting Advisory Committee Note to Federal Rule of Evidence 403). Evidence

that is unfairly prejudicial has been defined as that “which only appeals to

sympathies, conveys a sense of horror, or engenders an instinct to punish. . . “

Collins, slip op. at 13 (citing to J. Weinstein and M. Burger, Weinstein’s Evidence

Manual 6-20 to 6-21 (Student ed. 1987)).

The photographs in this instance are grisly. The victim is lying naked

on the slab in the morgue. Pools of blood that may or may not be attributable to the

autopsy process have formed behind his head. However, the pictures illustrate the

various wounds that led to the victim’s death. The photograph of the victim’s left

hand was relevant to the question of whether the victim could have held his revolver

when he got out of the car.10 Using the photographs, the medical examiner

described for the jury the path and trajectory the pellets followed.

Photographs are not necessarily rendered inadmissible because they

are cumulative of other evidence or because descriptive words could be used.

10
A police officer testified that he found pieces of flesh clinging to the
window sill of the door on the driver’s side. A photograph of those pieces was
also admitted into evidence.

14
Collins v. State, 506 S.W.2d 179, 185 (Tenn. Crim. App. 1973); see also State v.

Terrence L. Davis, No. 02C01-95112-CR-00343, slip op. at 14 (Tenn. Crim. App.,

Jackson, June 2, 1997), perm. app. denied (Tenn. 1998). Photographs must be

relevant to prove some part of the prosecution’s case and must not be admitted

solely to inflame the jury and prejudice them against the defendant. Banks, 564

S.W.2d at 951. Prejudice becomes unfair when the primary purpose of the

evidence at issue is to elicit emotions of “bias, sympathy, hatred, contempt,

retribution, or horror.” M. Graham, Handbook of Federal Evidence 182-83 (2d ed.

1986).

The trial court found that the photographs in question were probative

and that their prejudicial effect did not outweigh their prejudicial value. The

photographs are unquestionably unpleasant, but their primary purpose was not to

elicit the jurors’ emotions but to develop facts that were relevant to proving the

state’s case. Absent a clear showing that the trial court abused its discretion, this

court may not overturn its ruling. No such showing exists in this case, and we will

not disturb the trial court’s ruling on appeal.

IV. Excessive Sentence

The jury sentenced the defendant to life imprisonment with the

possibility of parole for the murder of Barry Brodey. At the conclusion of a

sentencing hearing, the trial court sentenced the defendant to the maximum Range

I sentence of twelve years and ordered him to serve the sentence consecutively to

the life sentence imposed by the jury. The defendant now complains that the

twelve-year sentence is excessive and that the trial court erred in ordering that his

sentences be served consecutively.

When an accused challenges the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

15
Ann. § 40-35-401(d) (1997). This presumption is "conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). In conducting our review, we must consider all the evidence, the

presentence report, the sentencing principles, the enhancing and mitigating factors,

counsels’ arguments, the appellant’s statements, the nature and character of the

offense, and the appellant’s potential for rehabilitation. Tenn. Code Ann. §§ 40-35-

103(5), -210(b) (1997); State v. Ashby, 823 S.W.2d at 169. The defendant has the

burden of demonstrating that the sentence is improper. Id. In the event the record

fails to demonstrate the appropriate consideration by the trial court, appellate review

of the sentence is purely de novo. Id. If our review reflects that the trial court

properly considered all relevant factors and the record adequately supports its

findings of fact, this court must affirm the sentence even if we would have preferred

a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

In making its sentencing determination, the trial court, at the

conclusion of the sentencing hearing, determines the sentencing range, the specific

sentence, and the propriety of imposing a sentence involving an alternative to total

confinement. The trial court must consider (1) any evidence presented at trial and

the sentencing hearing, (2) the presentence report, (3) the sentencing principles. (4)

the arguments of counsel, (5) any statements the defendant has made to the court,

(6) the nature and characteristics of the offense, (7) any mitigating and

enhancement factors, and (8) the defendant’s amenability to rehabilitation. Tenn.

Code Ann. §§ 40-35-103(5), and 40-35-210(a), (b) (1990); State v. Holland, 860

S.W.2d 53, 60 (Tenn. Crim. App. 1993). In this case, the trial court was required

to begin with a presumptive minimum sentence. Tenn. Code Ann. § 40-35-210(c).

The sentence may then be increased by any applicable enhancement factors and

reduced in the light of any applicable mitigating factors. Tenn. Code Ann. § 40-35-

210(d),(e).

16
 In this case, the trial judge found several enhancement factors and

one mitigating factor. However, the record does not contain an affirmative showing

that the trial court considered the sentencing principles and all relevant facts and

circumstances and made the appropriate findings in determining that consecutive

sentences were appropriate. Therefore we review the sentencing determinations

without the presumption of correctness. State v. Ashby, 823 S.W.2d at 169.

Especially aggravated robbery is a Class B felony. For a Class B

felony, the minimum sentence for a Range I offender is eight years; the maximum

sentence is twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (1997). The trial court

applied the following factors to enhance the defendant’s sentence to the maximum

sentence in the range:

(1) The defendant has a previous history of
criminal convictions or criminal behavior.
Tenn. Code Ann. § 40-35-114(1).

(2) The defendant was a leader in the
commission of an offense. Tenn. Code
Ann. § 40-35-114(2).

(5) The defendant treated or allowed a victim
to be treated with exceptional cruelty.
Tenn. Code Ann. § 40-35-114(5).

(6) The personal injuries inflicted upon or the
amount of damage to property sustained
by or taken from the victim was
particularly great. Tenn. Code Ann. § 40-
35-114(6).

(8) The defendant has a previous history of
unwillingness to comply with the
conditions of a sentence involving release
in the community. Tenn. Code Ann. § 40-
35-114(8).

(9) The defendant possessed or employed a
firearm, explosive device or other deadly
weapon during the commission of the
offense. Tenn. Code Ann. § 40-35-
114(9).

(10) The defendant had no hesitation about
committing a crime when the risk to
human life was high. Tenn. Code Ann. §
40-35-114(10).

17
 (11) The felony resulted in death or bodily
injury or involved the threat of death or
bodily injury to another person and the
defendant has previously been convicted
of a felony that resulted in death or bodily
injury. Tenn. Code Ann. § 40-35-114(11).

(12) During the commission of the felony, the
defendant willfully inflicted bodily injury
upon another person, or the actions of the
defendant resulted in the death of or
serious bodily injury to a victim or a
person other than the intended victim.
Tenn. Code Ann. § 40-35-114(12).

As a mitigating factor, the trial court found that because of the defendant’s age he

lacked substantial judgment. Tenn. Code Ann. § 40-35-113(6). The trial court,

however, gave the mitigator little weight because of the defendant’s previous

encounters with the criminal justice system and sentenced the defendant to the

maximum sentence of twelve years.

A. Enhancement Factors

The defendant contends that the evidence does not support the trial

court’s findings with respect to a number of the enhancement factors. He does not

challenge the use of factors (1) and (2). Nor could he. The defendant’s juvenile

record includes several car thefts as well as less serious infractions including

aggravated criminal trespass and disorderly conduct.11 The record indicates that

the defendant, who testified that he knew how to drive and evade the police, was

a leader in the commission of the offense. He also provided the weapon,

approached the target vehicle, and fired the fatal shots. The trial court’s findings

with respect to factors (1) and (2) are clearly supported by the record.

11
In his brief, the defendant questions the use of a printout of the
Juvenile Court computer screen instead of court orders to show an adjudication
of delinquency. Because the defendant did not challenge the use of the printout
at the sentencing hearing, this issue is waived. Tenn. R. App. P. 36(a). We note
that as of July 1, 1995, only those delinquent acts that would constitute a felony
if committed by an adult may be considered to enhance a sentence. This
provision applies to sentencing of any defendant committing an offense on or
after that date. The defendant committed these offenses on June 17, 1995.
Therefore, the trial court could consider all of the offenses listed on the
defendant’s juvenile record for the purpose of enhancing his sentence. State v.
Adams, 864 S.W.2d 31, 34 (Tenn. 1993).

18
 The state concedes that factors (6), (9), and (10) are inappropriate.

We agree. The infliction of serious personal injury (factor 6)12 and the possession

of a firearm (factor 9) are elements of especially aggravated robbery and are,

therefore, inapplicable to enhance the defendant’s sentence. Tenn. Code Ann. §

40-35-114 (1997). Because the offense of especially aggravated robbery

necessarily entails a high risk to human life, factor (10) likewise should not have

been applied. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995).

In addition, factors (11) and (12) may not be used to enhance this

defendant’s sentence. Factor (11) applies when death or bodily injury is inflicted

upon or threatens another person and the defendant has previously been convicted

of a felony that resulted in death or bodily injury. See State v. Makoka, 885 S.W.2d

366, 373 (Tenn. Crim. App. 1994); Tenn. Code Ann. § 40-35-114(11) (1997).

Factor (12) is similar in that it refers to the willful infliction of bodily injury on a

person other than the intended victim. The defendant’s actions neither threatened

nor inflicted bodily injury on any person other than the victim, nor had he been

previously convicted of a felony that resulted in death or bodily injury. The trial court

erred in using these factors to enhance the defendant’s sentence for especially

aggravated robbery.

Factors (5) and (8) must be discussed in greater detail. The trial court

found that the defendant treated the victim with exceptional cruelty when he shot

him five times with a pump-action shotgun. See Tenn. Code Ann. § 40-35-114(5).

The defendant argues that the trial court should not have applied the factor because

the defendant had already been convicted of felony murder on those same facts.

The defendant cites no authority for the proposition that facts used to convict a

defendant of one offense may not be used to enhance the sentence for a different

12
This court has previously held that “serious bodily injury” is, in
essence, the same as a “particularly great” personal injury. State v. Nix, 922
S.W.2d 894, 903 (Tenn. Crim. App. 1995); State v. Jones, 883 S.W.2d 597, 602
(Tenn. 1994); State v. Crowe, 914 S.W.2d 933, 940 (Tenn. Crim. App. 1995).

19
offense. Therefore, the issue as stated is waived. Tenn. Crim. Ct. App. 10(a).

However, under our mandate to review sentences de novo, we consider whether the

record supports the use of factor (5) to enhance the defendant’s sentence for

especially aggravated robbery.

Section 40-35-114 provides that enhancement factors must be

“appropriate for the offense” and “not themselves essential elements of the

offense.” Tenn. Code Ann. § 40-35-114. Because of these limitations, those

factors based on facts which are used to prove the offense or which establish the

elements of the offense are excluded. State v. Poole, 945 S.W.2d 93, 98 (Tenn.

1997) (citing State v. Jones, 883 S.W.2d 597, 603 (Tenn. 1994)). The purpose of

the limitation is to avoid enhancing the length of sentences based on factors that the

legislature considered when establishing the range of punishment for the offense.

Id.

Exceptional cruelty is not an element of especially aggravated robbery.

Poole, 945 S.W.2d at 98; Tenn. Code Ann. § 39-13-403(a)(2) (1997). Both our

supreme court and this court have held that proof of serious injury does not

necessarily establish extreme cruelty. Poole, 945 S.W.2d at 98; State v. John

Dennis Rushing, No. 02C01-9501-CR-0020, slip op. at 20 (Tenn. Crim. App.,

Jackson, July 22, 1996); see also State v. Henry Lee Martin, No. 01C01-9411-CR-

00397, slip op. at 23 (Tenn. Crim. App., Nashville, May 24, 1996). A certain amount

of cruelty is inherent in every especially aggravated robbery, rape, or aggravated

assault for which the legislature has already provided enhanced sentences. State

v. Kenneth Alan Steele, No. 03C01-9207-CR-233, slip op. at 15 (Tenn. Crim. App.,

Knoxville, Oct. 13, 1993). Therefore, factor (5) requires a strong showing of

exceptional cruelty. John Dennis Rushing, slip op. at 20.

To establish exceptional cruelty, the facts must demonstrate a

culpability distinct from and greater than that incident to the offense of especially

20
aggravated robbery. Poole, 945 S.W.2d at 98. A trial court should state for the

record what actions of the defendant, apart from the elements of the offense,

constituted exceptional cruelty. State v. Goodwin, 909 S.W.2d 35, 45 (Tenn. Crim.

App. 1995).

In this case, the trial court stated that exceptional cruelty was

demonstrated by the fact that the defendant shot the victim five times with a pump-

action shotgun. The use of a firearm and proof of serious bodily injury are, of

course, elements of especially aggravated robbery. Tenn. Code Ann. § 39-13-403

(1997). The facts in the record indicate that the defendant fired five shots. The

medical examiner testified that at least three of the shots struck the victim. The fact

that the rear and rear side windows of the Cadillac were demolished tends to

corroborate the defendant’s assertion that two of the shots were fired at the

vehicle.13 The victim apparently ran and placed another vehicle between himself

and the defendant. Ms. Blanchard testified that she saw the defendant fire twice at

the ground.

The fact that repeated shots were fired do not, of themselves,

constitute exceptional cruelty. See e.g. State v. James R. Hankins, No. 02C01-

9603-CR-00098 (Tenn. Crim. App., Jackson, May 23, 1997) (shooting victims in

neck and in the back does not constitute exceptional cruelty in conviction for

especially aggravated robbery). In this case, however, the two shots fired after the

victim abandoned the vehicle and attempted to hide himself from the defendant and

when he was no longer armed constitute acts unnecessary to commit the crime of

attempted especially aggravated robbery. The final shots fired by the defendant

demonstrate a culpability distinct from and appreciably greater than that incident to

the offense. Although we do not accord this factor the weight we place on factors

13
Of course, some of the pellets from these shots may have struck
the victim as well. The medical examiner testified that although he could identify
only three distinct blasts from the medical evidence, more shots could have been
fired.

21
(1) and (2), the trial judge did not err in applying factor (5) to enhance this

defendant’s sentence.

The defense also contends that factor (5) is inapplicable because the

jury failed to find that “the murder was especially heinous, atrocious, or cruel”

pursuant to Tennessee Code Annotated section 39-13-204(I)(5). We disagree.

The aggravating factor found in section 39-13-204 is not identical to the

enhancement factor contained in section 40-35-114. The aggravating factor

requires a jury to find beyond a reasonable doubt that “the murder was especially

heinous, atrocious, or cruel in that it involved torture or serious physical abuse

beyond that necessary to produce death.” Tenn. Code Ann. § 39-13-

204(1)(5)(1997). The aggravator applies only to convictions for first-degree murder,

and the facts must demonstrate that the crime involved torture or serious physical

abuse beyond that necessary to kill the victim. The enhancement factor, on the

other hand, requires only that the cruelty exceed that which was necessary to

effectuate the crime. State v. Lester Bennett, No. 03C01-9403-CR-00104, slip op.

at 7 (Tenn. Crim. App., Knoxville, Dec. 8, 1994). The jury’s determination on the

aggravating factor in the felony murder sentencing does not preclude the trial court

from applying factor (5) to a conviction for a different crime. The facts in this case

indicate that the defendant’s culpability exceeds that required to convict the

defendant of the offense in question. The evidence in the record does not

preponderate against the trial court’s finding.

The trial court also found that the defendant had a previous history of

unwillingness to comply with the conditions of release into the community. Tenn.

Code Ann. § 40-35-114(8) (1997). The defendant argues that the record contains

no evidence that the defendant was placed on probation and that there is no order

or copy of an order finding the defendant in violation of probation. The defendant

is correct that the record contains no evidence that a court found the defendant in

violation of probation. The presentence report, however, states that on April 8,

22
1994, the juvenile court placed the defendant on supervised probation for driving

without a driver’s license, reckless driving, and being a runaway. On June 1, 1994,

the defendant was back in juvenile court on the charge of theft of a vehicle. The

matter was adjusted non-judicially, and he was released in the custody of his

grandmother. The record shows that on that very same day, he stole another

vehicle and was in possession of marijuana. Six weeks later, he was charged with

the theft of yet another vehicle. On July 21, 1994, the court placed him under the

supervision of the Youth Services Bureau.

Tennessee Code Annotated section 40-35-114(8) does not require

that the defendant violate an order of probation. To enhance a defendant’s

sentence, the state must prove that “[t]he defendant has a previous history of

unwillingness to comply with the conditions of a sentence involving release into the

community . . . .” Tenn. Code Ann. § 40-35-114(8) (1997) (emphasis added). The

defendant’s juvenile record indicates that within a three-month period, he was

placed on supervised probation, counseled and continued on supervised probation,

and then, after he continued to re-offend, he was remanded to a youth training

center. At the sentencing hearing, the defendant made no objections to the

presentence report, nor did he assert that the report was inaccurate. Nothing in the

record indicates that the defendant attempted to have the state substantiate the

information in his juvenile record with copies of the judgments or orders. Absent a

challenge to the reliability of the information in the report, the trial court did not err

in considering the information the report provided. State v. Dale Nolan, No. 01C01-

9511- CC-00387, slip op. at 31 (Tenn. Crim. App., Nashville, June 26, 1997), perm.

app. denied (Tenn. 1998); State v. Richard J. Crossman, No. 01C01-9311-CR-

00394, slip op. at 11 (Tenn. Crim. App., Nashville, Oct. 6, 1994), perm. app. denied

(Tenn. 1995). Although the record contains no official finding that the defendant

violated a condition of probation, the presentence report demonstrates that this

defendant has a previous history of unwillingness to comply with the conditions of

a sentence involving release into the community.

23
 B. Mitigating Factors

The trial court found, as a mitigating factor, that because of his youth,

the defendant lacked substantial judgment in committing the offense. Tenn. Code

Ann. § 40-35-113(6) (1997). The trial judge declined to place much weight on this

factor because of the defendant’s previous experiences with the criminal justice

system. Our review of the record has convinced us that the mitigating factors

present are entitled to substantial weight. According to the defendant’s school

records, he has a vision disorder that interferes with his ability to read and function

in an academic setting.14 At age thirteen, he read at the second grade level

although his math skills were those of a fifth grader. At the sentencing hearing, the

defendant’s grandmother testified that when the defendant was born, his mother

was an exotic dancer who worked nights and his father was “on the streets.”

Because she needed to sleep during the day, the defendant’s mother beat him and

burned him with cigarettes when he would not be quiet. When he was two years

old, he was placed in the custody of his paternal grandparents. At the time of the

sentencing hearing, the defendant’s father was in jail. His grandfather had died

after a long and difficult bout with cancer. His grandmother admitted that during the

past few years she had little energy or time to spare for her difficult grandson. The

defendant had maintained a relationship with his mother, but she made little effort

to provide guidance or supervision. In fact, the defendant was spending the night

at her house when Tyre Allen came to take him on the “shopping” trip that ended

in Barry Brodey’s death.

In the closing paragraph of the defense brief, counsel argues that the

defendant “may have developed street survivorship skills due to parental neglect

and actual or perceived necessity. But to say that he is street ‘wise’ would be a

misnomer. He has not had enough time on this earth or adult guidance to develop

any wisdom or substantial judgment.” We agree. The defendant was just fifteen

14
This disorder is referred to as “accommodative spasm” which is
related to focusing and affects visual perception.

24
years old when this crime was committed. He suffered from abuse and neglect

during his childhood, and he is further handicapped by a vision problem that led to

failure at school. He was raised by his grandmother who because of her age and

the responsibility for caring for her ailing husband was unable to provide her

troubled grandson with the supervision and guidance he needed. On these facts,

the mitigating factor is due considerable weight.

To sum up, we find that enhancement factors (1), (2), (5), and (7) are

applicable to the defendant’s sentence. We place less weight on factor (5);

however, the extent of the defendant’s criminal record and his inability to conform

to the rules of a civilized society are entitled to great weight. Attempted especially

aggravated robbery is a class B felony. The defendant’s applicable sentencing

range is eight to twelve years. Tenn. Code Ann. § 40-35- 210 (1997). Based solely

on the enhancement factors, twelve years would be an appropriate sentence.

However, in this case, the mitigating factor is also entitled to great weight.

Therefore we reduce the defendant’s sentence for attempted especially aggravated

robbery to ten years.

C. Consecutive Sentences

The defendant protests the trial court’s order that he serve the

sentence for attempted especially aggravated robbery consecutively to the life

sentence imposed by the jury. Consecutive sentencing may be imposed in the

discretion of the trial court upon determination that one or more of the criteria listed

in Tennessee Code Annotated section 40-35-115(b) exist. Consecutive sentences

however, should not be routinely imposed even for the offender whose record of

criminal activity is extensive. Tenn. Code Ann. § 40-35-115, Sentencing Comm’n

Comments; State v. Taylor, 739 S.W.2d 227, 230 (Tenn. Crim. App. 1987); State

v. David L. Mayes, No. 03C01-9610-CR-00365 (Tenn. Crim. App., Knoxville, Sept.

9, 1997); State v. Roscoe C. Smith, No. 01C01-9502-CR-0003, slip op. at 10 (Tenn.

Crim. App., Nashville, Oct. 12, 1995). Moreover, the consecutive sentencing factors

25
“cannot be read in isolation from other provisions of the Sentencing Reform Act of

1989.” State v. Wilkerson, 905 S.W.2d 933, 937 (Tenn. 1995).

The trial court, in this instance, made no findings pertaining to

consecutive sentencing and did not indicate on which of the consecutive sentencing

criteria he relied. However, based upon our de novo review, we find that this

defendant is a dangerous offender. As defined in Tennessee Code Annotated

section 40-35-115(b)(4), a dangerous offender is one “whose behavior indicates

little or no regard for human life, and no hesitation about committing a crime when

the risk to human life is high.” The defendant, who was armed with a loaded

sawed-off shotgun, ordered the victim out of his car in an attempt to steal the

vehicle’s popular and expensive rims. When the victim refused to comply and

threatened the defendant, the defendant shot the victim at close range rather than

abandon the attempt. Moreover, he did not stop with one blast of the shotgun. He

fired five times and at least three of those shots hit the victim. The defendant had

previously participated in similar car-jackings. Such behavior indicates a serious

disregard for human life and no hesitation about risking the loss of human life in

exchange for a relatively small amount of money.

A court, however, may not impose consecutive sentences on the

weight of these two findings alone. In State v. Wilkerson, our supreme court

referred to two additional requirements that must be satisfied before consecutive

sentences may be imposed on a dangerous offender. The court must find that

consecutive sentences (1) are reasonably related to the severity of the conduct and

(2) are necessary to protect the public from further criminal conduct. Wilkerson, 905

S.W.2d at 937-38. We find that the two Wilkerson requirements are satisfied in this

instance.

Barry Brodey died as result of the defendant’s determined attempt to

steal a set of rims. A consecutive sentence is reasonably related to the severity of

26
the offense in this case, and the defendant does not contend otherwise. The

defendant does contend that consecutive sentences are not necessary to protect

the public. He argues that he will have to serve more than fifty years on the life

sentence before he is eligible for parole, and that a consecutive sentence will do

nothing further to protect society. This crime, however, was committed on June 17,

1995. At that time, Tennessee law provided that those serving life sentences were

eligible for parole after a minimum of twenty-five calendar years. Tenn. Code Ann.

§ 40-35-501(h)(1) (1991).15 Under the law applicable at the time the offense was

committed, the defendant will be eligible for parole for his life sentence when he is

approximately 40 years old.

The defendant’s actions betray a lack of respect for society’s laws, a

warped sense of values, and a hardness of heart that are frightening in one so

young. His prospects for immediate rehabilitation are not good. This young man

has had little opportunity to develop the kind of attitudes and skills that would have

allowed a little boy to become a thoughtful, productive man. Barry Brodey’s life has

been destroyed and the defendant’s life wasted. All of society is diminished by this

loss. Nevertheless, the public needs to be protected from those who cannot or will

not abide by the rules of civilized society. The trial court did not err in imposing

consecutive sentences in this case.

Conclusion

We have reviewed the record before us and have found no error

warranting the reversal of the defendant’s convictions. For the reasons discussed

15
In 1995, the legislature added subsection (I)(1) to Tennessee Code
Annotated section 40-35-501 which provides that there shall be no release
eligibility for a person convicted of various crimes including first degree murder
except for a possible reduction of no more that fifteen percent of the sentence for
earned and retained sentence credits. Tenn. Code Ann. § 40-35-501(I)(1)
(1997). The new statute specifically states that its provisions apply to those
persons who commit offenses “on or after July 1, 1995.” Id. (emphasis added).
The defendant murdered Mr. Brodey on June 17, 1995, and the new release
eligibility formula does not apply to him.

27
above, we modify his sentence for attempted especially aggravated robbery to ten

years. This sentence will be served consecutively to his life sentence.

We must address an additional matter which we discovered during our

review of the record. The jury in this case found the defendant guilty of felony

murder but did not return a verdict on the first count of the indictment. The record

does not reflect that the trial court dismissed this count.

The defendant’s convictions and life sentence are affirmed. His

sentence for especially aggravated robbery is reduced from twelve years to ten

years. The defendant will serve the ten-year sentence consecutively to the life

sentence. The second count of Indictment # 96-00973 in which the defendant was

charged with premeditated and deliberate murder is dismissed.

________________________________
JAMES CURWOOD WITT JR., Judge

CONCUR:

_________________________________
JOE G. RILEY, Judge

_________________________________
ROBERT W. WEDEMEYER, Special Judge

28