         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 11, 2005

                    STATE OF TENNESSEE v. JAMES AUSTIN

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 00-04749   John P. Colton, Jr., Judge



                     No. W2004-00510-CCA-R3-CD - Filed April 14, 2005


The defendant appeals his conviction for second degree murder on the grounds of insufficient
evidence to support the verdict and the sentence, pursuant to Blakely issues. After review, we find
sufficient evidence to support the verdict. We conclude that the two enhancement factors used to
elevate the sentence are violative of Blakely and, therefore, modify the sentence to twenty years. The
cause is remanded for modification of sentence.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which J.C. MCLIN , J., joined.
DAVID G. HAYES, J., filed a dissenting opinion.

Charles W. Gilchrist, Jr. and Lance Chism, Memphis, Tennessee, for the appellant, James Austin.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Karen Cook and Stacy McEndree, Assistant
District Attorneys General, for the appellee, State of Tennessee.


                                             OPINION

        The defendant, James Austin, was indicted along with co-defendants, Carlos Summers and
Parnell Austin, for the first degree murder of Dedrick Jennings. The defendant was tried separately
and convicted by a jury of second degree murder, a Class A felony. The defendant was sentenced
as a Range I, standard offender to twenty-two years, to be served 100% as a violent offender. He
appeals his conviction on the grounds of insufficient evidence to support the conviction and the
sentence, due to alleged inappropriate application of enhancement factors in light of Blakely.
                                       Factual Background

       On September 18, 1999, Myka Warmsley hosted a birthday party at her apartment at 1337
Turkey Run in Memphis. The party began early in the day and culminated late in the evening with
the shooting death of Dedrick Jennings by the defendant, James Austin.

        The State presented five witnesses who were present at the party when the killing took place.
Bryant Jennings, a cousin of the victim, had played cards at the party with the victim, Terrence Hill,
and the defendant. Jennings and the victim were partners against Hill and the defendant. “Trash
talking” ensued between the two teams and escalated between the victim and the defendant to the
point of “fighting words” being exchanged. The defendant began insisting that Hill take him home.
Eventually, Hill and the defendant left the party. Jennings stated that the defendant returned in the
company of his brother, Parnell Austin, and Carlos Summers. Jennings stated that all three men
were carrying guns. Jennings started calling out the victim’s name to warn him, then ran upstairs
to hide. Jennings heard the host repeating the words, “don’t do that.” After hearing a gunshot,
Jennings ran back downstairs. Outside on the patio, he found the victim lying on the ground,
bleeding from the mouth. Jennings stated the victim had consumed alcohol and used marijuana at
the party. To Jennings’ knowledge, the victim was not armed.

        Ms. Danielle Branch testified that she arrived at the party between 5:00 and 5:30 p.m. Later
in the evening, she saw three men enter the apartment with guns. The party guests started running.
The defendant said, “where’s that nigger at?” The victim ran from the kitchen and bumped the
defendant, who was in the entrance door. She said the victim fell outside and landed on his back.
The defendant was over the victim, and she observed the defendant shoot the victim. After the
shooting, she saw Carlos Summers kick the victim and spit on him. The defendant and his two
companions then left the scene in a gold Cadillac. Branch said she had not seen the victim with a
weapon.

       Myka Warmsley, the hostess of the party, estimated that between thirty and fifty people
attended. She stated that the defendant seemed “kind of upset” when he left the party. Ms.
Warmsley was in the kitchen, preparing the victim a plate of food, when the defendant and his
companions returned. She saw that the defendant, Carlos Summers, and Parnell Austin each had a
gun. She tried to calm Carlos Summers and then intervened when Parnell Austin started upstairs.
The defendant had been by the entrance door. Ms. Warmsley heard a gunshot and ran to the door,
where she saw a body lying outside. She bolted upstairs, called the police, and looked out the
window. She witnessed Carlos Summers hitting and kicking the victim. The defendant and his
companions then left the scene in a gold Cadillac.

        Ms. Khamesa Jefferson was grilling food on the patio at Ms. Warmsley’s apartment when
the defendant, his brother, and Carlos Summers came to the party. She said two of the three co-
defendants had guns, but she could not recall which individuals were armed. She heard them
announce angrily, “where’s that nigger at?” and “where’s that m-f at?” Ms. Jefferson witnessed the
victim run out the door with the defendant running behind him. She heard a shot and then saw the


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victim lying on the ground with the defendant standing over him. She also witnessed Carlos
Summers pistol whip, stomp, and spit on the reclining victim. The defendant and his companions
then left the scene in a gold Cadillac.

        Andrea Phipps was eating when the disturbance erupted at Ms. Warmsley’s party. She heard
someone shout that “he has a gun!” When she turned, she saw a person standing, with a gun in his
hand, who asked, “where’s that nigger at?” Ms. Phipps ran outside and hid behind a tree. She stated
that she heard two gunshots while she was outside. She saw a gold Cadillac pull away and went to
the scene where the victim was lying on the ground, struggling to breathe before he died.

        Despite an exhaustive search, police officers responding to the crime scene were unable to
find a weapon or ammunition casings. Steve Scott, a TBI agent, was qualified as a firearms
identification expert. He identified a hole on the left back of the victim’s shirt as the entry hole,
based on the presence of powder burns. Tests performed by Agent Scott, with a .38 caliber gun,
indicated that the gunshot was at close range, in a bracket from four to twenty-four inches away.

        Sergeant James Fitzpatrick of the Memphis Police Department, testified to interviewing the
defendant on September 19, 1999. The defendant gave two separate and inconsistent statements.
In the first interview, the defendant admitted that he was responsible for shooting the victim. The
defendant related that the victim began making threats toward him during their card game. The
defendant stated that he was armed with a revolver at the time, but left the party. He said he later
returned to apologize to the victim. The defendant’s brother, Parnell, had also arrived at the party.
Guests saw the defendant’s gun handle in his pocket and panicked. The victim then tackled the
defendant and started struggling to take the defendant’s weapon. The defendant said he snatched the
weapon and accidentally shot the victim. He stated that he left the gun, a chrome .38 with a brown
handle, on the ground at the scene. He then left with his brother.

         The defendant’s second statement was made approximately an hour later. In the second
statement, the defendant said that after leaving the party, he had met with the co-defendants, and the
three of them decided to go back and scare the victim. All three co-defendants were armed, and the
defendant was displaying his weapon when he entered the apartment. The defendant stated he
stepped outside the apartment, and the victim grabbed him and started wrestling, trying to take the
weapon. The defendant broke free and shot at the victim. The three co-defendants left and met one
“Lorenzo,” who was given the defendant’s revolver. The defendant stated that the weapon belonged
to his father.

        Dr. O. C. Smith, the Shelby County Medical Examiner, testified as a forensic pathology
expert concerning the autopsy he performed on the victim. The bullet entrance wound was on the
left side of the victim’s back, and an exit wound was on the left side of the victim’s chest. The
victim had an abrasion on his left knee, abrasions and lacerations on his face, and a bruise on the left
back of his head. Injuries to the victim’s face were consistent with being struck by a gun or some
other instrument with straight edges. The victim’s blood alcohol level was .13, and his urine was



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positive for marijuana. Dr. Smith stated that the cause of death was a gunshot wound to the back
and the manner of death was by homicide.

         The defense presented two witnesses, in addition to the defendant’s testimony. Kirestin
McIntyre testified that after the defendant and his companions returned to the party with guns, she
talked with the defendant and told him to leave. The defendant had a gun in his hand. Ms. McIntyre
felt a “bum-rush” at her back and saw the defendant and victim stumble out the door. She saw the
defendant reach over and shoot the victim in the back while the defendant was falling backwards.
She said the victim was not reaching for the defendant’s gun.

        Kabious Johnson had gone to the party with the defendant and Terrence Hill. He saw nothing
amiss during the card game, but the defendant did insist on leaving. Johnson was outside the
apartment when the three co-defendants returned. He heard a commotion inside the apartment, then
saw bodies emerge, and recognized the defendant. Two people fell down, and Johnson heard a shot
fired. Johnson left the scene immediately. He later found out the victim had died and relayed this
information to Parnell Austin.

        In his testimony at trial, the defendant said that the victim threatened him during their card
game. He said that, after leaving the party, he encountered the two co-defendants and told them of
his experience with the victim. The three talked about scaring the victim as they returned to the
party, each one armed. The defendant said he called out for the victim and had his .38 revolver in
his hand. The defendant said that he was turning to leave when the victim rushed him and that he
shot the victim accidentally. The co-defendants left and later learned that the victim had died. The
defendant gave his weapon to “Lorenzo” before turning himself over to the police.

                                     Sufficiency of Evidence

        The defendant phrases his first issue in the following manner: “Whether the trial court erred
by not granting a motion for judgment of acquittal after the State’s proof and at the end of the trial
and not overturning verdict as thirteenth juror based on insufficiency of the evidence?”

        The standard of review for motions on judgment of acquittal is the same as when analyzing
the sufficiency of the convicting evidence. See State v. Blanton, 926 S.W.2d 953, 957-58 (Tenn.
Crim. App. 1996). Where sufficiency of the evidence is challenged, the relevant question for an
appellate court is whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime or crimes beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789, 61 L. Ed. 2d 560 (1979); State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). The weight and
credibility of the witnesses’ testimony are matters entrusted exclusively to the jury as the triers of
fact. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996); State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984).




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       A conviction for second degree murder requires proof that the defendant unlawfully and
knowingly killed another. See Tenn. Code Ann. § 39-13-201, -210(a)(1). A person acts knowingly
with respect to a result of the person’s conduct when the person is aware that the conduct is
reasonably certain to cause the result. Tenn. Code Ann. § 39-11-302(b).

       The defendant contends that he did not act “knowingly” and that the evidence would only
support reckless or negligent homicide. The defendant testified that his shooting of the victim was
accidental and due to a struggle with the victim.

        The evidence established that the defendant became angry with the victim and left the party
after they had a heated verbal encounter. The defendant returned with two companions, all
brandishing weapons and calling out for the victim in insulting language. There was no evidence
adduced that the victim was armed. There was evidence that the victim attempted to escape.
Danielle Branch testified that the victim fell during his escape attempt and that the defendant leaned
over and shot the victim. A defense witness, Kirestin McIntyre, observed the defendant reach over
and shoot the victim. Ms. McIntyre also stated that the victim was not attempting to reach for the
defendant’s weapon. The defendant’s immediate disposal of the murder weapon was not consistent
with his claim of an accidental or negligent killing. The jury rejected the defendant’s contention that
the shooting was accidental and accredited the State’s witnesses. This is the jury’s prerogative. We
conclude that the evidence is sufficient to justify a rational jury to find beyond a reasonable doubt
that the defendant knowingly killed the victim.

                                             Sentencing

       The defendant, in his second issue, challenges the trial court’s application of certain
enhancement factors in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531, 159 L. Ed.
2d 403 (2004).

         The defendant was sentenced as a Range I, standard offender for the conviction of second
degree murder, a Class A felony. The trial court applied two enhancement factors: (3) the defendant
was a leader in the commission of an offense involving two or more criminal actors, and (11) the
defendant had no hesitation about committing a crime when the risk to human life was high. See
Tenn. Code Ann. § 40-35-114(3), (11). One mitigating factor was found: that the defendant was
eighteen years of age and had no prior record. Based on these factors, the trial court enhanced the
sentence from the presumptive twenty-year sentence to twenty-two years. A defendant’s sentence
is reviewed by the appellate courts de novo with a presumption that the determinations made by the
trial court are correct. Tenn. Code Ann. § 40-35-401(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn.
2002). For this presumption to apply to the trial court’s actions, there must be an affirmative
showing in the record that the trial court considered sentencing principles and all relevant facts and
circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). While determining or
reviewing a sentence, the courts must consider: (1) the evidence received at trial and the sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence offered


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by the parties on the enhancement and mitigating factors; (6) any statement the defendant wishes to
make in the defendant’s behalf about sentencing; and (7) the potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-103(5), -210(b); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App.
1993); State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991) .

       If the trial court has imposed a lawful sentence by following the statutory sentencing
procedure, has given due consideration and proper weight to the factors and sentencing principles,
and has made findings of fact adequately supported by the record, this Court may not modify the
sentence even if it would have preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991). However, if the trial court does not comply with statutory sentencing
provisions, our review of the sentence is de novo with no presumption the trial court’s
determinations were correct. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000).

         The State contends that the defendant has waived the Blakely issues by failing to properly
raise it before the trial court. We reject this contention in conformity with prior decisions of this
Court. See State v. Chester Wayne Walters, No. M2003-03019-CCA-R3-CD, 2004 Tenn. Crim.
App. LEXIS 1053, at *55-56 (Tenn. Crim. App., at Nashville, Nov. 30, 2004); State v. Earice
Roberts, No. W2003-02668-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 1049, at *29-30 (Tenn.
Crim. App., at Jackson, Nov. 23, 2004).

        In Blakely, the Supreme Court, applying the rule in Apprendi v. New Jersey, 530 U.S. 466,
490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), held that “the ‘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, 124 S. Ct. at 2537.

        The two enhancement factors utilized in this case were neither reflected in the jury verdict
or admitted by the defendant and, therefore, are in violation of Blakely. The range of punishment
for a Range I defendant is fifteen to twenty-five years for a Class A felony. Tenn. Code Ann. § 40-
35-112(a)(1). The presumptive sentence to be imposed is the midpoint in the range for a Class A
felony, twenty years. We conclude that the two enhancement factors were inappropriately applied
in light of Blakely and that the one mitigating factor is of such minimal weight that the sentence
should be reduced to the presumptive sentence of twenty years.

                                             Conclusion

      Based on the foregoing reasons, we affirm the defendant’s conviction for second degree
murder but remand for entry of a sentence modification to twenty years.




                                                       ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE


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