*1 filed case was more appeal this tice of twenty days hundred after
than one dismissing the final order entry sessions general remand to the
case for also that the trial are mindful
court. We remanding the case to the order
court’s preliminary for a
general sessions court prosecution. not end the
hearing does
Therefore, the that waiver court concludes Accordingly, case. inappropriate
is this untimely. appeal is state’s dismissed
CONCLUSION justice the interest of does
Because filing timely a waiver
require appeal, appeal is dis-
notice state’s
missed. of Tennessee
STATE Dwayne
Marcus WELCOME. Tennessee, Appeals of Criminal
Court
at Knoxville.
June 2007 Session.
Sept. 2007. Appeal
Application Permission by Supreme
Denied Court
Feb. *3 as a responsibility
characterized included rob- lesser bery, the trial court should have granted a mistrial based upon wit- to the previ- ness’s reference incarceration, that ous the trial court erred prior ruling robbery admissible for impeachment purposes, the trial and that court committed errors sentenc- related to *4 review, ing. Following our judgment of the trial is affirmed.
The defendant’s conviction from arises participation aggravated robbery his in the uncle, eighty-two-year-old of his Jesse Wil- lard Turner. Turner testified that the de- fendant visited him often and had been at day his home several times in the earlier on that September He said on occasion, jacket. one the defendant his left Stephens, Mark District Public Defend- midnight, Turner testified that around er; Halstead, and John Assistant District shower, preparing he to take a he Defender, appellant, Public for Marcus recognized knock at his heard a door. He Dwayne Welcome. and, although nude, the defendant’s voice Jr., Cooper, Attorney E. Robert General opened the door to allow defendant Reporter; Harmon, & Rachel West Assis- jacket. his Upon entering retrieve General; Attorney tant Randall E. Nich- residence, instead of walking toward the ols, General; Attorney District James D. jacket, straight the defendant walked Jr., Holley, Fitzgerald, and Takisha M. Turner’s bedroom. Turner that an- stated General, Attorneys Assistant District for other individual followed the defendant appellee, State of Tennessee. into the home and that he was armed with a gun. The individual Turner not directed OPINION him, to look at a request that Turner THOMAS, JR., J., D. KELLY delivered quickly complied stated he with out fear opinion court, in which safety. for his own Turner recalled that WOODALL, J., THOMAS T. joined. the defendant told him one that no TIPTON, P.J., JOSEPH M. filed hurt him going they just but wanted concurring opinion. money. some As the defendant and the defendant, Dwayne Marcus money, Wel- other individual went look for come, appeals right County as of his Knox Turner testified he ran to a nude house, Criminal neighbor’s Court gave who him some wear, responsibility aggravated robbery for clothes to and called the police. The he twenty which received a sentence of at police approximately arrived the scene II, years Range as a multiple forty-five offender. minutes later and Turner re- appeal, On he jeopar- contends that double turned home to find his wallet its dy conviction, precludes his scattered on Missing ver- contents the floor. dict form incorrectly prejudicially from wallet one and fifty were hundred Jury, he had for car insurance and We the find the dollars saved money. (guiltyXnot Turner testified emergency guilty)[circle some of Facili- one] Felony, tation of a police they told him that would a lesser included him to file pursue the case advised offense. it “since he who was” but [knew] a warrant Jury, We the find the defendant your neph- also stated that it’s “[b]ecause (guiltyXnot guilty)[eircle one] Rob- ew, nothing you probably going ain’t to do bery, a lesser included offense.
about it.” added). lists, (Emphasis The verdict form cross-examination, order,
On Turner in descending robbery, aggravated acknowl- edged dangerous assault, that he lived in a area of assault and theft as lesser included town, opened but stated that he the door of aggravated robbery. offenses Facili- recognized in the nude he because a felony properly tation of is also listed as He that the defendant’s voice. also stated a lesser included offense of him defendant never threatened robbery. Included in each option verdict weapon only person and that armed phrase is the “a lesser included offense” *5 the unidentified who fol- appropriate individual for a where lesser included the defendant into the home. He lowed option offense. The verdict relevant acknowledged police that the did not take responsibility criminal does not include the any fingerprints, explained but that was phrase “a lesser included offense.” In re- because he had told them that the defen- verdict, turning jury its the circled “not robbery. dant committed the He testified guilty” for aggravated the offense of rob- injured during that he the inci- bery guilty but circled for criminal respon- dent. sibility for aggravated robbery. guilty by verdict as announced the fore- Form and
Erroneous Verdict person responsibility was for criminal for Jeopardy Double Issues aggravated robbery as The defen- well. plain reading dant contends that a of the argues The defendant that his jury form that the him verdict shows found responsibility conviction for criminal for guilty aggravated robbery. to be not of aggravated robbery should be reversed be Therefore, cause, claims, jury argues, he him he this amounts to an acquitted the of acquittal charged offense under all aggravated robbery as set out in the ver in- form, culpability theories of embraced the pertinent form. The dict verdict dictment. The state that the trial part, reads as follows: properly jury court instructed the that the Jury, find the defendant responsibility criminal for the conduct of Aggra- (guiltyXnot guilty)[cirele of one] theory culpability another was one of Robbery. vated aggravated robbery and verdict IF FIND THE DEFENDANT YOU special represented announced verdict OF A OF- GUILTY GREATER theory culpability. to the of relative FENSE, NEED YOU DO NOT TO Therefore, argues, state ANY THE CONSIDER OF FOLLOW- despite wording be of should affirmed ING OF- LESSER INCLUDED the order of consideration on the verdict FENSES: form. Jury, We the find the defendant of A criminal defendant has the
(guiltyXnot guilty)[circle Crimi- one] right complete charge to a and accurate Responsibility Aggravated nal Rob- given jury by to the court. bery. law v. Stephenson, tempts person 878 S.W.2d to aid another to commit (Tenn.1994). purposes For the of deter- offense. mining a defendant has been af- whether you guilty Before find right, jury forded that charge should being criminally responsible said entirety” be “viewed its and “considered committed the conduct an- offense (citing Cambridge as a Id. whole.” Otis other, you must that all the essen- find Co.,
Mutual Fire Insurance tial elements said have been (Tenn.1992)). supreme Our proven by beyond the state a reasonable explained has that “inconsistent or contra- doubt. dictory instructions ‘do not neutralize or added). (Emphasis In preliminary its in- ” “ par-
validate each other’ and that ‘[t]he jury, structions to the the trial court went ties are entitled a clear and consistent explain further to responsi- one, charge, jus- as a correct well bility “you means that can be guilty as the ” may (quoting tice be reached.’ Id. Citi- offense, principal of you or can be Shepherd, zens Street Railroad v.Co. 107 criminally responsible for the conduct of (1901)). Tenn. 64 S.W. person that committed the If offense. inquiry this court’s be must you’re criminally responsible, you share language whether the of the verdict form the culpability same for the crime as the renders the instruction inconsistent or principal of the offense.” The trial court contradictory entirety. when read in its correctly also outlined the lesser included offenses of robbery, never list- *6 responsibili Relevant to criminal ing criminal responsibility such, as ty, correctly the trial court instructed the always distinguished responsibili- criminal jury that: ty from the lesser included offenses in its The criminally responsi- defendant is jury. Furthermore, instructions to the party ble as a aggravat- the offense of correctly court instructed that “[i]f any ed or lesser included of- you offense, find him guilty any you do if by fenses the offense was committed go not need to on and consider lesser- conduct, by defendant’s own the con- included if you offenses. But him find not duct of another for which the defendant guilty of the charged offense or criminal criminally responsible, is by or both. responsibility facilitation, or you then go Each party may to the offense be on to consider the lesser-included offenses charged with the commission of the of- in descending order.” fense. The correctly trial court in criminally responsi- defendant is jury structed the responsibil criminal ble for an by ity offense committed for the conduct another is not a conduct of another if acting separate offense, with the merely but is theory a intent promote or liability Lemacks, assist the commis- for an offense.1 State v. (Tenn.1999). sion of the offense or to benefit in the In order proceeds offense, or results of the a convict defendant of criminal responsi solicits, directs, aids, defendant or at- bility, the elements of the principal offense such, special As our any specific finding courts have held that a without on the verdict regarding responsibility verdict regarding criminal is form responsibility. criminal Lemacks, constitutionally required. prac- recommend that trial courts follow this S.W.2d at 171. the trial court tice in order to avoid similar issues with ver- jury could have submitted this case to the dict forms in future cases. The defendant is not entitled to beyond a reasonable relief re- proven must be Furthermore, person found garding doubt. this issue. through an offense
guilty of theory of the responsibility guilty is same to Prior Incarceration Reference subject punish- to the same of Defendant person actually who commits ment as The defendant contends that trial conduct; words, criminal re- other court should have declared mistrial when sponsibility is not a lesser included offense. victim, Turner, prior referred to his It clear from a of the instructions is review during incarceration cross-examination. entirety in their that the trial court under- The state that the trial court did principles correctly all of these stood refusing not abuse its discretion in to de jury accordingly. previ- instructed the As testimony clare a mistrial because the was noted, ously specifi- the trial court did not cross-examination, elicited on the trial cally responsibility characterize criminal as gave appropriate an curative instruc a lesser included offense the verdict tion, and the strength case was form it the actual lesser included did great only because Turner was the witness facilitation, aggravat- robbery, offenses of presented testimony undisput and his assault, ed and theft. This court assault examination, ed. On direct Turner testi that, despite concludes the inartful word- fied that the defendant had not lived with ing language of the transition of the ver- cross-examination, following him. On form, jury’s on the dict notation verdict exchange occurred: special represents form is a verdict Q: ... You said Marcus Welcome is the determination your nephew? principal not the offender the un- criminally responsible but is A: Yeah. identified individual’s actions. Such a de- Q: you But said he’s never lived with certainly light termination is reasonable you Are sure he didn’t you? live presented by of the evidence the victim you couple for a months? *7 participation in regarding the defendant’s peniten- he out the got A: No. When comparison to that of the unidentified co- tiary, my my sister called from — from perpetrator. It is clear this record him Ohio and asked me to let move jury the understood the instructions him, me, I in and told no. He to the facts correctly applied the law in couldn’t move with me. Can’t court con- of this case. this in nobody move with me because all instructions, jury cludes that the when do, 14 days, I can have a visitor for in not entirety, read their are inconsistent days, 14 if I put and after don’t or further conclude contradictory. We lease, them on the I’ll be convict- the verdict does not violate double put mean out. I didn’t have ed—I
jeopardy. The verdict as announced go. So I couldn’t place no else on the foreperson the and as noted verdict let him live with me. clearly represents finding by form a the immediately requested a The defendant jury guilty that the defendant as a The trial court denied the motion offender, mistrial. principal guilty but was as some- jury “going for a mistrial because the criminally responsible one for the conduct prior to hear about some convictions perpetrator, theory of the unidentified a testify. the this case” should culpability encompassed charged in the of- curative instruc- jury. to the The trial court offered a correctly fense and instructed 222 trial in denying
tion instead. The court instructed discretion the motion for mis- jury regarding that Turner’s comment trial. incarceration of the defendant prior a bearing have no on “should this case one Admissibility Robbery Prior way “put or the other” and told the Impeachment your that out of and do not “con- minds” The defendant contends that for trial in purpose sider this trial in ruling prior court erred that a making a decision this case.” could conviction be used for purpose declaring impeachment pursuant to Tennessee Rules is to damage mistrial correct done to the of Evidence He argues prej that the
judicial process when some event has oc
outweighed
udicial effect of
precludes an impartial
curred which
ver
probative
disagree.
its
value.
Williams,
385,
dict. State v.
929 S.W.2d
609(a)(3)
Rule
of the Tennessee Rules of
388
A
(Tenn.Crim.App.1996).
mistrial is
Evidence allows for the
of a
admission
only appropriate when the trial cannot
prior conviction to impeach
credibility
causing
continue without
miscarriage
testifying
of a defendant
at trial. Prior to
McPherson,
justice. See
v.
State
admission,
trial
required
its
court is
(Tenn.Crim.App.1994).
S.W.2d
proba-
determine whether “the conviction’s
declared,
For a mistrial to be
there must
credibility
tive value on
outweighs its un-
necessity.”
be a “manifest
State v. Robin
son,
(Tenn.2004).
prejudicial
fair
effect on substantive is-
146 S.W.3d
609(a)(3).
R.
grant
The decision to
sues.” Tenn.
Evid.
mistrial is within
This
court,
only
court will
discretion of the trial
and that
reverse a trial court’s deci-
decision
appeal
will not be disturbed on
sion
if
only
court abused its dis-
Williamson,
unless there was an abuse of discretion.
cretion.
v.
State
Reid,
(Tenn.2002).
State v.
223 is ple offense offender erroneous. He contends and instant prior conviction if “the possible prejudi in nature the the trial applied similar that court enhancement are and should be greatly Blakely increases in v. Washing- cial effect factors violation of carefully Long v. ton, scrutinized.” 296, 2531, more 124 542 U.S. S.Ct. 159 (Tenn.Crim. State, 482, (2004). 486 607 S.W.2d also L.Ed.2d 403 He contends that analyze trial court must App.1980). range the determination of his status was the on conviction and prior the prior erroneous because the existence of proba determine if the conviction’s trial to upon that it is based should convictions credibility outweighed on is value tive jury. been to a In sum- have submitted danger prejudice. unfair the proper he the mary, that sentence eight years minimum is the sentence case court determined In this the trial I, Range standard offender. conviction for prior the defendant’s that robbery a crime of dishon- aggravated An appellate court’s review of the defendant’s cred- probative and esty the sentencing is de novo on record with a con- gave specific The trial court ibility. presumption the trial determi that court’s similarity to the between sideration are Ann. nations correct. Tenn.Code robbery charge and aggravated present 40-35-401(d) (2003). Sentencing § As the for previous the defendant’s Comments this section Commission robbery It that robbery. determined note, appeal on is on defen the burden impeachment pur- be admitted should improp to show that the sentence dant is everything “credibility because poses [was] If the trial followed the er. statuto under case.” cannot conclude [the] sentencing procedure, findings made ry case the trial circumstances of this supported that are in the adequately fact determining court abused its discretion record, gave due consideration probative value of weight factors and proper principles to the credibility robbery conviction relative to sentencing are relevant under the any danger prejudice of unfair outweighed Act, Sentencing may this court 1989 Blevins, v. 968 the defendant. See State if different disturb sentence even (Tenn.Crim.App.1997) S.W.2d Fletcher, preferred. State v. result were trial court did not (concluding that (Tenn.Crim.App.1991). S.W.2d allowing the defen- abuse its discretion rob- burglary, to be with impeached dant However, presumption of “the bery, larceny convictions when accompanies the trial correctness which of a burglary was on trial upon action is the affir court’s conditioned vehicle); State v. Lamario motor see also showing record that the trial mative in the Sumner, W2005-00122-CCA-R3-CD, No. sentencing principles court considered (Tenn.Crim.App. *3-4 2006 WL at and circumstances.” and all relevant facts 2006) Jan.6, de- (affirming trial court’s (Tenn. Ashby, the defendant to be im- cision to allow 1991). purpose In this for the respect, peached prior review, meaningful appellate *9 trial when the defendant was on rec- place trial court must on the The aggravated robbery). [T]he defendant is for arriving at the final ord its reasons for to on this issue. not entitled relief decision, identify mitigat- sentencing the Sentencing found, and factors ing enhancement supporting each specific the facts state The that his found, articu- II, and multi- enhancement factor twenty-year Range sentence as 224 the mitigating Blakely. disagree.
late how
and enhance-
this
To
violates
be
ment factors have
II,
been evaluated and
Range multiple
sentenced as a
offender
determining
balanced in
the sentence.
the
previously
defendant must have been
40-35-210(f) (1990).
(2)
§
Tenn.Code Ann.
convicted of
minimum of two
but
“[a]
(4) prior
not more than four
felony convic
(Tenn.
Jones,
v.
State
S.W.2d
class,
higher
tions within the conviction
1994).
(2)
class, or within the next
two
lower
Act,
Sentencing
Pursuant
to the 1989
felony
§
classes.”
Ann.
Tenn.Code
40-35-
imposed
the presumptive sentence to be
106(a)(1). The defendant’s criminal histo
for
B felony
a Class
such as
felony
ry contains
convictions for two rob
robbery was the minimum in
range.
the
beries, aggravated burglary, burglary, au
40-35-210(c)(2003).
§
TenmCode Ann.
burglary,
tomobile
witness coercion and
Sentencing
provided
The 1989
Act also
felony escape. Any of these convictions
that, procedurally, the trial court was to
except
burglary
the automobile
and
increase the sentence within the range
felonies,
felony
E
escape,
quali
both Class
based on the
of
existence
enhancement
fy to
the
Range
establish
defendant as a
and, then,
factors
reduce the sentence as
II, multiple offender. As this court has
appropriate
any
mitigating factors.
Id.
noted,
previously
“the
States Su
United
(d)
(e).
weight
at
and
The
to be afforded
preme
exempted proof
Court has
of a de
existing
an
factor
left to the
trial
fendant’s prior convictions from the re
long
court’s discretion so
complied
as it
quirement
that facts
used
enhance a
the purposes
principles
and
defendant’s
aby
sentence be found
Sentencing
Act and the court’s find
beyond a reasonable
v.
doubt.” State Mo
ings were adequately supported by the
Karim,
hamed Medhet
M2006-00619-
(2003),
§
Id.
record.
40-35-210
Sentenc
CCA-R3-CD,
2007 WL
at *5
ing
Comments;
Moss,
Commission
v.
(Tenn.Crim.App. May
2007)(citing Ap
(Tenn.1986);
727 S.W.2d
see Ash
prendi
466, 490,
Jersey,
New
530 U.S.
by,
at
823 S.W.2d
2348, 2362-63,
120 S.Ct.
The trial court determined that the de- personal injuries upon, inflicted fendant qualified II, as Range multiple damage or the amount of property upon offender history based his of criminal sustained or taken from the victim is convictions. The defendant *10 particularly great;
225 (9) tions that are used to increase a sentence. trial or sen- before The defendant condi- comply regardless of effect Blakely with tencing failed into release involving of a sentence may application tions have on of enhance- community; and (9) (3), (7), (15), ment factors and we shall of (15) position a abused the trial of application The defendant examine court’s en- (2) profes- trust a or used public private implicat- or factor is not hancement which signifi- that a manner sional license by Blakely. ed or ful- the commission cantly facilitated placed great significance trial court The the offense. fillment of of criminal con- history on the defendant’s (7), 40-35-114(2), (3), § Ann. Tenn.Code just not stating “[fit’s victions when (9) (15) (2003). these upon Based or driving or three offenses two or two of factors and the absence enhancement string shopliftings. three He has of factors, the court sentenced mitigating years. criminal convictions He over of to the maximum sentence significant amount of time spent twenty years. The trial court also found penitentiary.” sentencing initially that We note any mitigating factors. the absence 26, May this case was held on hearing in trial agree court that the evidence time, the court relied 2006. At that trial (2) regarding factor is substantial. There- holding in State upon supreme court’s our fore, conclude that this factor alone we (Tenn.2005), Gomez, 632 v. twenty-year imposition of the justifies Blakely inapplicable to our sentenc ruled maximum sentence in this case. However, applica ing Blakely’s statute. has sentencing statute tion Tennessee’s CONCLUSION States been clarified the United since none of the Having concluded that al- Cunningham release of Supreme Court’s appealed by the defendant leged errors 549 U.S. 127 S.Ct. California, relief, trial judgment merit (2007), the subse L.Ed.2d is affirmed. our su vacating of certiorari quent grant v. Ten judgment in preme court’s Gomez P.J., TIPTON, M. filed JOSEPH nessee, 127 S.Ct. U.S. concurring opinion. (2007).2 However, need we L.Ed.2d 36 court’s propriety of the trial address the TIPTON, P.J., concurring. JOSEPH M. factors the enhancement application of most of the in the result and I concur Blakely appropri if are pursuant to there I write reasoning majority opinion. in the justify the ate sufficient to factors the trial court because I believe separately See Kar- imposition sentence. court’s have, ruled, it barred originally should im, stated, Apprendi previously at *4. As aggravated use of the Cunning progeny Blakely and its impeachment. main exempted the re from specifically ham robbery that relates conduct those facts quirement jury finding of a In essentially is a theft. dishonesty criminal convic- regarding a defendant’s nonetheless, I apply, do rec- yes does but [i]t counsel discussed the United Defense grant right [Blakely inapplicable] in Cun- ... Supreme ognize of certiorari now is Court’s argument court that ningham they'll prob- in its to the trial Cunningham, they reverse and if sentencing scheme ar- Blakely applies to our light ably remand to reconsider Gomez indication guing seems to be an "[t]hat Cunningham." oh, say, Supreme want[s] Court] that [the *11 case, present the state had evidence of testified present two he was not at his uncle’s prior theft convictions and two other home during acts the robbery and that he had impeach of theft with which to defen- no role in robbery of uncle. his Given well, use, dant. To allow of an aggra- such a conclusory, non-testimonial offer of robbery vated this aggravat- proof and the testimony unrefuted ed probative would add little uncle, I do not believe the value on the issue of the defendant’s credi- error probably “more than not affected the bility compared to 36(b). the substantial preju- judgment.” T.R.A.P.
dice it would have involving an offense
similar to offense on trial. believe,
I do not though, that the defen-
dant has prejudice. established The de- testify.
fendant did not His counsel stated
to the court that the defendant would have