        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs March 3, 2009

               STATE OF TENNESSEE v. BRUCE C. RELIFORD

               Direct Appeal from the Criminal Court for Shelby County
                Nos. 93-06433, -34, -37, and -38 Paula Skahan, Judge




                 No. W2007-02899-CCA-R3-CD - Filed April 19, 2010


The defendant, Bruce C. Reliford, entered guilty pleas to aggravated robbery charges,
following a remand, and was convicted by a jury of felony murder. The trial court imposed
a life sentence for the felony murder conviction and twelve years for each aggravated robbery
conviction, to be served concurrently. On appeal, the defendant contends that: the trial court
improperly allowed evidence to be introduced at trial; his statement to police was not given
voluntarily; and the trial court erred in accepting his guilty pleas and in setting his sentence.
After careful review, we affirm the judgments from the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which A LAN E. G LENN
and C AMILLE R. M CM ULLEN, JJ., joined.

Sean H. Muizers, Memphis, Tennessee (on appeal), and Larry Copeland and Joseph Ozment,
Memphis, Tennessee (at trial), for the appellant, Bruce C. Reliford.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; William L. Gibbons, District Attorney General; and James Wax and Steve Jones,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

       On December 24, 1992, the defendant robbed two employees at a Memphis gas
station. He also shot and killed Shannon Wilson and stole Wilson’s car in the process of
fleeing the scene. Initially, the defendant entered the gas station and grabbed Cynthia
Coleman. He ordered two other women to go into the women’s restroom and demanded that
Ms. Coleman open the safe. The defendant was armed with a gun and threatened to kill Ms.
Coleman if she did not open the safe and give him the money. He told Ms. Coleman not to
touch the phone and that if a police car came onto the lot, he would go to jail for murder
because he would blow her brains out. She estimated that she gave the defendant
approximately $6000 and put it in a brown paper bag. Ms. Coleman then went into the men’s
restroom and locked the door.

       After he got the money from the safe, the defendant knocked on the women’s
restroom door and demanded Karen Yarber’s car keys. She complied with his demand after
the defendant pointed the gun at her and told her to give him the keys. The women emerged
from the restrooms after the defendant left, and Ms. Yarber observed that the defendant had
not taken her car. Ms. Coleman called 911 to report the robbery when she was sure the
defendant was gone.

       The women in the gas station observed a lot of “commotion” at the Toddle House
across the street. The police later returned with the bag of money, Ms. Yarber’s keys, and
the jacket the defendant had been wearing when he robbed the store.

       Vincent Price testified that he was eating breakfast at the Toddle House when he heard
a loud crash outside. He went outside to see what happened and heard someone yell, “[H]e
shot me.” He saw the defendant standing over Shannon Wilson, who was lying on the
ground near a car. Mr. Price testified that he observed the defendant step over Wilson’s
body, get in the car, and drive away. He told police that the car was a dark blue Toyota. Mr.
Price applied pressure to a gunshot wound in the victim’s chest until the ambulance arrived.

      Shannon Wilson’s father testified that his son purchased a new dark blue Toyota about
a month before he was killed.

        On the day following the robbery and shooting, the witnesses, Ms. Chapman, Ms.
Yarber, and Mr. Price, were called to the police station to view a lineup. Each witness
identified the defendant as the man responsible for the robbery.

        Sergeant Alan Pinnow testified that he interviewed the defendant two days after the
crimes. He said that the defendant executed a waiver of his right to remain silent and his
right to counsel and agreed to answer the sergeant’s questions. The defendant confessed to
robbing the gas station and identified the gun that he used to commit the crimes. The
defendant also acknowledged that he took Ms. Yarber’s car keys so he could escape in her
car but, when he was unable to open her car, he ran across the street to the restaurant where
he found Wilson sitting in his car. The defendant told the police that Wilson grabbed the gun
from him, and it went off. The defendant said that he then got in the car and fled the scene.
The defendant’s interview was transcribed in the robbery bureau. When the statement was



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presented to the defendant, he refused to sign it because there was an error in the transcript.

       Dr. O. C. Smith testified that he was an assistant medical examiner in Shelby County
in 1992 and that he performed an autopsy on Wilson’s body. He determined that Wilson died
of a gunshot wound to the right side of his lower chest.

      The defendant presented two witnesses who testified that someone at the lineup said,
“That’s him, that’s him” during the identification process.

       Linda Sue Ridgell testified that she was standing at the cash register at the Toddle
House restaurant when she saw someone shoot a man in the parking lot. She said that she
did not get a good look at him but thought he was “five six to five seven” in height. The
defendant demonstrated that he was six feet tall. She testified that the outburst from the
person in the lineup room had no impact on her identification.

                                           Analysis

       The defendant argues that the trial court erred in admitting evidence of the aggravated
robberies during his trial for the felony murder of the victim at the Toddle House. He
contends that the introduction of the evidence was in violation of Tennessee Rule of
Evidence 404(b) and that the videotape of the robberies was not properly authenticated. The
defendant’s indictments for the robberies at the gas station and the shooting at the restaurant
were consolidated for trial. The defendant entered pleas of guilty to the robberies after the
jury was selected. During the opening statements for the State, the defendant objected to the
introduction of any evidence from the robberies during the murder trial. Specifically, he
contends that the evidence was unfairly prejudicial.

       Evidence of prior crimes, wrongs, or acts may be admissible to establish intent,
knowledge, identity, completion of the story, opportunity, and preparation. Tenn. R. Evid.
404(b). The motive and intent of the defendant in the commission of a murder are almost
always critical issues. State v. Gentry, 881 S.W.2d 1, 7 (Tenn. Crim. App. 1993). Evidence
that proves motive serves the purpose of completing the story of the crime. State v. Leach,
148 S.W.2d 42, 47 (Tenn. 2004).

         Here, evidence of the defendant’s prior aggravated robbery of the gas station was
offered by the State to demonstrate the events leading up to the shooting death of Wilson.
Although this is not one of the reasons frequently given for proffering evidence of other acts,
evidence offered to show contextual background need not be excluded simply for the reason
that it involves evidence of prior acts. If the contextual evidence is relevant to an issue other
than criminal propensity and its probative value is not outweighed by the danger of unfair


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prejudice, then that evidence may be properly admissible. State v. Gilliland, 22 S.W.3d 266,
271 (Tenn. 2000). The conditions which must be satisfied before allowing such evidence
are:

       (1)    The court upon request must hold a hearing outside the jury’s presence;

       (2)    The court must determine that a material issue exists other than conduct
              conforming with a character trait and must upon request state on the
              record the material issue, the ruling, and the reasons for admitting the
              evidence;

       (3)    The court must find proof of the other crime, wrong, or act to be clear
              and convincing; and

       (4)    The court must exclude the evidence if the probative value is
              outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). As the language of the Rule indicates, evidence of other acts is
admissible so long as that evidence is (1) offered to establish something other than action in
conformity with a particular character trait, (2) relevant to a material issue at trial, and (3)
such that its probative value is not outweighed by the danger of unfair prejudice. Gilliland,
22 S.W.3d at 271.

       Here, the trial court satisfied the four conditions of Rule 404(b). The trial court
conducted a jury-out hearing and reviewed the evidence of the robbery, including the
testimony of the women in the gas station who were threatened by the defendant. The
defendant took Ms. Yarber’s car keys but was unable to get in her car. The defendant then
went across the street to the restaurant where the shooting occurred. The trial court also
reviewed a videotape of the robberies. The trial court determined the evidence regarding the
robberies was relevant to prove intent and motive for the defendant to shoot Wilson and take
his car. The trial court determined that the probative value of the other evidence was not
outweighed by any danger of unfair prejudice.

        Because the trial court complied with the requirements of Rule 404(b), the decision
to admit the evidence is entitled to great deference and may not be disturbed by this court
absent a showing that the trial court abused its discretion. State v. Thacker, 164 S.W.3d 208,
240 (Tenn. 2005). The defendant has not demonstrated that the trial court abused its
discretion. The trial court applied the correct legal standard, and the evidence in the record
supports the trial court’s determination that the testimony about the robberies at the gas
station was admissible in the murder trial.


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        The defendant also argues that the trial court erred in admitting the store surveillance
videotapes into evidence because they were not properly authenticated. Specifically, the
defendant argues that the witnesses from the gas station who testified at trial did not give the
videotapes to police and, therefore, could not authenticate them. However, Ms. Coleman
identified the videotapes during her testimony and confirmed that they contained an accurate
depiction of the events of the robbery in the store.

        Tennessee Rule of Evidence 901 governs the authentication of evidence. It states in
pertinent part that evidence may be authenticated or identified sufficiently for the trial court
to admit the evidence but a witness testifying that the matter is what it is claimed to be.
Tenn. R. Evid. 901(a). Ms. Coleman’s testimony was sufficient to satisfy the admissibility
requirement. She testified that she had reviewed the videotapes in which she appeared and
that the tapes captured the robbery as it occurred. The trial court did not err in admitting the
videotape.

        Next, the defendant argues that the trial court should have suppressed the statement
he made to police following his arrest. Specifically, he argues that the trial court erred in
determining that his unsigned statement should have been admitted at trial. The State argues
that the defendant has waived this issue by failing to include a transcript of the evidentiary
hearing on the motion to suppress the statement.

       Prior to trial, the defendant filed motions to suppress the identification procedure and
to suppress his statement. Following a hearing, the trial court denied both motions in a
written order dated October 24, 2007. The transcript of the hearing is not in the appellate
record. The record does contain the written order which details the facts presented at the
evidentiary hearing and sets out findings of fact and conclusions of law made by the trial
court. The trial court determined that the defendant signed the advice of rights form and that
he freely and voluntarily talked to the police officers.

       The trial court’s determination at the suppression hearing that a confession was
voluntary is presumptively correct on appeal. State v. Stephenson, 878 S.W.2d 530, 544
(Tenn. 1994). This determination is binding unless the evidence in the record preponderates
against that finding. State v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999).

       When determining whether an accused has voluntarily, knowingly, and intelligently
waived his Miranda rights, this court must consider the totality of the circumstances which
existed when the accused waived these rights. State v. Middlebrooks, 840 S.W.2d 317, 326
(Tenn. 1992); State v. Benton, 759 S.W.2d 427, 431 (Tenn. Crim. App. 1988). The totality
of the circumstances must reveal an uncoerced choice and the required level of
comprehension. State v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000) (quoting State v.
Stephenson, 878 S.W.2d 530, 545 (Tenn. 1994)). Where a defendant contends that his

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waiver of Miranda rights was not voluntarily or understandingly made, the court must
consider factors such as the defendant’s age, level of functioning, prior criminal justice
experience, demeanor, responsiveness to questioning, possible malingering, and the manner
in which the Miranda rights were explained. Blackstock, 19 S.W.3d at 208. However, no
single factor is necessarily determinative. Id.

        The trial court’s order in the record reflects that Sergeant H. M. Fields testified at the
suppression hearing that the defendant was told, “He had a right to remain silent. Anything
he said could and would be used against him. He had the right to have an attorney prior to
being questioned and basically keeping these rights in mind did he wish to make a statement
at that time.” The sergeant testified that the defendant read and signed an advice of rights
form and that no one pressured or coerced the defendant. The defendant testified that
officers grabbed his arm, twisted it behind his back, and hit his head on the desk before
forcing him to sign the form. The trial court accredited the testimony of the sergeant and
determined that the defendant knowingly and voluntarily signed the waiver of rights form.
The defendant has failed to demonstrate that the evidence preponderates against the finding
of the trial court.

        Next, the defendant argues that the trial court erred in determining that his unsigned
statement was admissible. The trial court relied on the decision in State v. Gregory Lynn
Redden, No. M2000-00988-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 988 (Tenn. Crim.
App. at Nashville, Dec. 28, 2000). The defendant in Redden also signed an advice of rights
form before giving a statement of confession to the crime of which he was ultimately
convicted. Redden also refused to sign the statement after it was reduced to writing. Id. at
*4. This court held that the defendant’s oral confession was just as binding as a written
confession in the absence of evidence to show that the statement was not given voluntarily.
Id. at *14 (citing Campbell v. State, 384 S.W.2d 4, 9 (Tenn. 1964)). The lack of a signature
on the statement did not affect its admissibility, only the potential weight assigned to the
evidence by the jury. Id. The trial court properly admitted the unsigned statement.

       Next, the defendant argues that the trial court erred in accepting his guilty pleas to the
aggravated robberies because the court failed to comply with Tennessee Rule of Criminal
Procedure 11(b). The trial court reviewed this issue in the defendant’s motion for new trial
hearing and concluded that any error in accepting the pleas amounted to harmless error.

        The United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 243 (1969),
held that defendants must waive certain rights in order for their decision to plead guilty to
be considered knowing and voluntary. These rights include the right to a jury trial, the right
to confront witnesses, and the right against self-incrimination. Id. These rights cannot be
validly waived without an intentional relinquishment, which cannot be presumed from a
silent record. Id. To ensure guilty pleas are entered “knowingly and intelligently,” Boykin

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instructs the trial court to discuss with the accused the consequences of the decision. 395
U.S. at 244.

        When a trial court fails to advise an accused of these rights, the burden shifts to the
State to prove a constitutional plea. Johnson v. State, 834 S.W.2d 922, 925 (Tenn. 1992).
However, the failure does not, in and of itself, entitle the defendant to relief. Id. The State
may prove by clear and convincing evidence either substantial compliance with the advice
requirement by showing the defendant was made aware of his constitutional rights or that the
defendant independently had knowledge of his constitutional rights, rendering the trial
court’s omission harmless. Id.

        The standard for determining substantial compliance or harmless error necessarily
requires inquiry into circumstantial factors surrounding the plea. Blankenship v. State, 858
S.W.2d 897, 904 (Tenn. 1993). The relative intelligence of the defendant, the degree of his
familiarity with criminal proceedings, the opportunity to confer with competent counsel
regarding plea options, the extent of advice from counsel and the trial court regarding the
charges faced, and the desire to avoid a greater punishment resulting from a jury trial are all
relevant factors a trial court can use to find a “knowing” and “intelligent” plea. Id. at 904
(citing Caudill v. Jago, 747 F.2d 1046, 1052 (6th Cir. 1984)).

        The Tennessee Supreme Court established guidelines for reviewing guilty pleas in
State v. Neal, 810 S.W.2d 131, 137 (Tenn. 1991). The court held that “absolutely literal
compliance with the advice to be given is not required.” Id. at 137. “Substantial
compliance” would suffice as long as the “sense of the substance of the required advice . .
. is [expressed to an accused prior to a plea of guilty].” Id.

        Here, the record reflects that the trial court did not follow the Rule 11 guidelines in
advising the defendant when he entered his guilty pleas to the two charges of aggravated
robbery. The State argues, and we agree, that the record is also clear that the defendant was
aware of his rights and voluntarily entered the guilty pleas with the advice of counsel. In the
trial court’s ruling on this issue at the motion for new trial, the court found the defendant had
“quite a history in the criminal justice systems” and had previously entered guilty pleas,
including pleas in the underlying case, that were set aside on appeal. The record supports
ruling of the trial court. The defendant was present during the jury voir dire and heard the
trial court and his counsel review his rights. Any error by the trial court in failing to advise
the defendant was harmless.

       Next, the petitioner argues that the trial court improperly enhanced his sentence
pursuant to Blakely v. Washington, 542 U.S. 296 (2004). The State agrees that the trial court
erred by relying on factors other than prior convictions to enhance the defendant’s sentence


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but contends the sentence should be affirmed because the defendant’s prior convictions
justify the enhanced punishment. The underlying crimes were committed in December 1992.
The decision in Blakely v. Washington, 542 U.S. 296 (2004), held that the relevant “statutory
maximum” for Apprendi purposes “is the maximum sentence a judge may impose solely on
the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542
U.S. at 303. Thus, “the relevant ‘statutory maximum’ is not the maximum sentence a judge
may impose after finding additional facts, but the maximum he may impose without any
additional findings.” Id. at 303-04. In Cunningham v. California, 549 U.S. 270 (2007), the
Supreme Court held that, except for a prior conviction, “any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”

       The trial court applied enhancement factors, including: the defendant had a previous
history of criminal convictions; the offense involved more than one victim; the defendant
treated, or allowed a victim to be treated, with exceptional cruelty during the commission of
the offense; and the defendant has a previous history of unwillingness to comply with the
conditions of a sentence involving release into the community. See T.C.A. § 40-35-114(2),
(4), (6), and (9) (2006). The application of the factors other than his prior history of
convictions violated Blakely and its progeny.

        However, the defendant did have an extensive history of criminal convictions. The
record shows that the trial court “placed the most weight” on this factor in establishing his
sentence, which justified an enhancement of his sentence for the crimes, at twelve years. The
defendant had convictions including aggravated assault, theft, violation of probation,
malicious mischief, and three counts of aggravated robbery. Because the trial court placed
the most weight on this factor, the trial court was within its discretion to set the defendant’s
sentences at twelve years for each aggravated robbery conviction. The defendant is not
entitled to relief on this issue.

                                         Conclusion

        Based on the foregoing and the record as a whole, we affirm the judgments from the
trial court.


                                                    ___________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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