501 S.W.3d 577
Tenn. Crim. App.2016Background
- On March 10, 2011, Michael Lebron Branham and another armed man entered Regika Tillery’s home; Branham placed a gun to Tillery’s back, demanded money from Reginald Hubbard, and left with approximately $200 and a small bag of marijuana. Victims reported subsequent threatening phone calls from Branham.
- A jury convicted Branham of aggravated robbery (Hubbard), aggravated assault (Tillery), coercion of a witness (Tillery), aggravated burglary (Tillery’s home), and employment of a firearm during a dangerous felony; trial court imposed an effective 29-year sentence.
- At sentencing Branham had multiple prior juvenile and adult convictions, a federal firearms conviction, and admissions of prior gang affiliation; the court applied several enhancement factors and some mitigating factors.
- On motion for new trial Branham raised multiple claims for the first time (including that one ADA had been his prior counsel), so the court and this court reviewed many issues only for plain error.
- The Court of Criminal Appeals affirmed, rejecting claims of prosecutorial disqualification, vindictive prosecution, severance error, double jeopardy, defective election, and sentencing error (including consecutive sentences).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Branham) | Held |
|---|---|---|---|
| Disqualification of ADA Schmidt | ADA’s prior 2007 limited representation did not influence the prosecution; no conflict shown. | ADA Schmidt previously represented Branham and thereby learned his gang status, creating a conflict and unfair prejudice. | Denied: Branham waived full review; plain error not shown because prior representation was minimal and gang affiliation was publicly known. |
| Vindictive prosecution (new indictments) | Adding aggravated burglary and firearm charges before trial was within prosecutorial discretion where probable cause existed. | New indictments were a ruse to increase exposure and mandate harsher/consecutive sentencing (vindictiveness). | Denied: Waived when not raised pretrial; plain error not shown because State had probable cause. |
| Severance of coercion charge | Joinder proper; evidence of witness-coercion is probative of intent and not unduly prejudicial. | Trying coercion with substantive offenses prejudiced Branham and hampered cross-examination. | Denied: Waived for failure to move pretrial; no plain error because evidence of coercion was probative. |
| Double jeopardy (multiple convictions) | Separate statutes and victims; each offense contains at least one distinct element. | Aggravated assault and aggravated burglary were incidental to the single episode of aggravated robbery and should not both stand. | Denied: Blockburger and cases interpreting robbery/burglary allow separate convictions here (different elements and different victims for assault/robbery). |
| Election of offenses for coercion charge | Coercion is not shown to be a continuing offense but State’s election (and prosecutor’s closing) identified the specific phonecall acts; jury instructed to exclude later jail calls. | Indictment alleged a multi-month period; State failed to elect which act formed the basis and admitted recordings outside the timeframe. | Denied: Election was adequate and any defect cured by prosecutor’s closing; court instructed jury not to consider post-indictment jail calls for the charge. |
| Sentence length | Sentences within statutory ranges; trial court considered mitigating/catch-all factors and multiple enhancements justify length. | Trial court failed to adequately weigh mitigation (ADHD history, family support, no injuries, short duration). | Denied: Abuse of discretion not shown; sentencing principles applied and enhancements supported lengths. |
| Consecutive sentencing | Trial court relied on Branham’s extensive criminal history, a valid statutory ground for partial consecutive sentences. | Court improperly relied on same priors used for enhancement and offenses were related. | Denied: Consecutive service supported by record (extensive criminal history); using history for both enhancement and consecutive service is permissible. |
Key Cases Cited
- State v. Page, 184 S.W.3d 223 (Tenn. 2006) (plain error doctrine and factors for invoking plain error review)
- State v. Phillips, 672 S.W.2d 427 (Tenn. Crim. App. 1984) (conflict/disqualification principles for attorneys who previously represented criminal defendants)
- State v. Mann, 959 S.W.2d 503 (Tenn. 1997) (prosecutor’s initial charging decisions not binding on future prosecution)
- United States v. Goodwin, 457 U.S. 368 (U.S. 1982) (prosecutorial charging discretion and limits regarding vindictiveness)
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (test for whether multiple statutory offenses constitute the same offense for double jeopardy)
- State v. Watkins, 362 S.W.3d 530 (Tenn. 2012) (applying Blockburger and test for multiple-punishment double jeopardy claims)
- State v. Bise, 380 S.W.3d 682 (Tenn. 2012) (standard of appellate review for within-range sentencing)