         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs January 9, 2007

              STATE OF TENNESSEE v. MARQUETTE HOUSTON

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 03-08488   James C. Beasley, Jr., Judge



                     No. W2006-00095-CCA-R3-CD - Filed June 29, 2007


The defendant, Marquette Houston, appeals as of right from his conviction of second degree murder
for which he received a twenty-five-year sentence as a violent offender. In this appeal, the defendant
contends that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in
denying the admission of first aggressor evidence; (3) the trial court erred in admitting the
defendant’s statement to police; and (4) the trial court erred in imposing an excessive sentence.
Following our review of the record, parties’ briefs and applicable law, we affirm the defendant’s
convictions. However, we vacate the sentence imposed by the trial court and remand this case for
resentencing under the 1989 Sentencing Act with consideration of the constitutional restrictions upon
enhancing the defendant’s sentence above the presumptive minimum.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part,
                             Vacated in Part, and Remanded

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID G. HAYES and NORMA MCGEE
OGLE, JJ., joined.

Phyllis Aluko (on appeal) and Michael Johnson and Amy Mayne (at trial), Assistant Public
Defenders, Memphis, Tennessee, for the appellant, Marquette Houston.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Charles Bell and Pam Fleming, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

                                   FACTUAL BACKGROUND

       The facts giving rise to this appeal are as follows. Arizona Franklin testified that in the early
evening hours of April 28, 2003, her husband of fifty years, Claude Franklin, was shot and killed
while he was outside mowing the lawn of their residence near Hollywood Street. Upon hearing
gunfire, Mrs. Franklin went outside and found her husband lying in the yard, bleeding from his chest
area. Mrs. Franklin called 911 and accompanied her husband to the hospital. Her husband died a
few days later.

        Sergeant James L. Fitzpatrick of the Memphis Police Department, testified that he
investigated the crime scene approximately one-and-a-half hours after the shooting occurred. He and
other investigative officers located and gathered evidence including several .40 caliber shell casings.
After talking with witnesses, Sergeant Fitzpatrick and other officers attempted to locate Mr. Bernard
“Chuck” Barnes and Mr. Albert “Mac Al” Thomas. Mr. Barnes was eventually located and was en
route to the homicide office for questioning when Mr. Thomas, Mr. Thomas’ brother and the
defendant were seen sitting in a vehicle. The officers transporting Mr. Barnes stopped the vehicle
and detained Mr. Thomas and the defendant for questioning. Sergeant Fitzpatrick took Mr. Thomas’
statement while another officer took the defendant’s statement. After further investigation, the
defendant was arrested and charged.

        Bernard “Chuck” Barnes testified that at the time of the shooting, he had known Albert “Mac
Al” Thomas for about three years after rebuilding a motor in Mr. Thomas’ car in 2001. Mr. Barnes
stated that he and Mr. Thomas had a series of heated arguments over a $35 repair bill owed for work
done on the motor in 2001. According to Mr. Barnes, on April 28, 2003, he was driving his 1985
Cadillac limousine on Hollywood Street when he was flagged down by Mr. Thomas, who was a
passenger in a “goldish-looking” car, driven by a female. Mr. Barnes pulled over, got out of the
Cadillac, and asked Mr. Thomas why he was bothering him. Mr. Barnes then returned to the
Cadillac and continued to drive down Hollywood. However, Mr. Thomas and his female companion
followed him, so Mr. Barnes pulled over onto the right-hand side of the street. He got out of the
Cadillac and approached Mr. Thomas, whereupon, he observed that Mr. Thomas was on the phone.
Mr. Barnes again told Mr. Thomas to leave him alone.

        Mr. Barnes testified that seconds later a car came “zooming” down Hollywood, made a right
turn, and drove up a hill onto Vollintine Street. The car stopped at the top of the hill and someone
started shooting at him. One of the bullets struck the back window of the Cadillac and dropped into
the backseat. Mr. Barnes later identified the defendant as the shooter. Mr. Barnes testified that he
reacted to the defendant’s shooting by reaching for a .9mm handgun in the Cadillac and shooting at
the defendant’s position on the hill seven or eight times. Mr. Barnes also attempted to shoot at Mr.
Thomas but could not because he was out of bullets.

        Mr. Barnes testified that he drove away from the area, dropped off the Cadillac, and got into
a brown Nissan Maxima. After dropping his stepbrother, Marcus Tate, and another man, off at the
liquor store, he eventually drove to Mr. Thomas’ house and, after reloading his .9mm handgun, shot
at the house. He avoided the police after leaving the Maxima at his cousin’s house and returned to
his home. However, the day after the shooting, he contacted the police and made arrangements to
be picked up at his home. When the police arrived, he showed police where he had hidden his gun
and ammunition. He also told police where to find the Cadillac. While being transported to the
police station, he saw Mr. Thomas, Mr. Thomas’ brother, and the defendant. He immediately


                                                 -2-
identified the defendant as the shooter. Mr. Barnes reiterated that he did not know the defendant
prior to being shot at by him.

        Several police detectives testified regarding the recovery and collection of evidence.
According to their testimony, three live .9mm rounds were found in the Maxima. The .9mm gun and
two ammunition clips were collected from the location where Mr. Barnes had hid them. A total of
nine live rounds were collected from the clips. A bullet fragment was collected from the rear
floorboard of the Cadillac. Spent .9mm shell casings and a bullet fragment were found on
Hollywood Street. Several spent .40 caliber bullet casings and a beer can were collected from the
Vollintine Street area. Pictures of bullet holes were taken of the crime scene where the victim had
been shot, but no bullets were recovered.

         Dr. Karen Elizabeth, the county’s chief medical examiner, testified that Claude Franklin’s
autopsy report revealed he died of internal bleeding caused by a gunshot wound to his chest. A
copper-jacketed bullet was removed from Mr. Franklin’s body. The bullet was identified as Exhibit
11. Agent Don Carman, a forensic firearms examiner for the Tennessee Bureau of Investigation,
testified that the bullet recovered from Mr. Franklin’s body and identified as Exhibit 11 was
determined to be a .40 caliber. Agent Carman also testified that the .40 caliber bullet recovered from
Mr. Franklin, a .40 caliber bullet collected from the floorboard of a vehicle, and other .40 caliber
bullet fragments and shell casings found on Hollywood and Vollintine were shot from the same
firearm, though Agent Carman noted he did not have this particular firearm in his possession to test.
Agent Carman further noted that these .40 caliber bullets were not fired from the .9mm pistol. Agent
Carman stated that he tested the .9mm bullet fragment and shell casings found on Hollywood and
determined that they were all fired from the same .9mm pistol which was tested and examined.

        Detective James P. Smith of the Memphis Police Department testified that he and another
detective questioned the defendant about the shooting. After the defendant was advised of his
Miranda rights, the defendant gave a statement in response to Detective Smith’s questions. The
statement reads as follows:

       Q:      On Monday, April 28, 2003, Claude Lee Franklin was fatally shot outside of 950
               Hollywood. Are you the person responsible for his death?

       A:      No sir.

       Q:      Do you know the person or person(s) responsible for Franklin’s death?

       A:      No, sir.

       Q:      Tell me the events that occurred during, before and after the shooting that occurred
               on Monday, April 28, 2003 at the corner of Hollywood and Vo[l]lintine.




                                                 -3-
A:   Chuck pulled down on me when I was walking down to my grandmother’s street . .
     . . I am walking down the street and Chuck is following me. I stopped and he did
     too. I then walked up to [the] railroad track and went up the little ramp thing. . . .
     Chuck and I [was] having words, then Chuck got out the car on Hollywood and begin
     to throw hand signs and saying “Boy, you got me f**ked up!” By that time, Chuck
     fired some shots off at me, then I fired my 40 three times at Chuck but the gun had
     jammed. I struck out running down to Springdale to my girlfriend[’s] house . . . who
     lived in the Evergreen. That was it between us. This all started on Saturday, April
     26, 2003 in the club, Hay Baby’s, when Chuck and I got into it about a girl.

Q:   Where is the weapon . . . which you had the day of April 28, 2003?

A:   I throw it in the bushes on the hill near Hollywood and Vol[l]intine.

Q:   Tell me in detail [what] did you do with the gun after the shooting?

A:   After I finish[ed] shooting I ran down the street I was shooting on. I don’t know the
     name of the street but it lead me to Springdale Street. I then [threw] the gun behind
     [somebody’s] house.

     . . . .

Q:   Describe the vehicle in which Chuck was driving?

A:   A white old model Limo with 20-inch rims.

Q:   How many rounds did Chuck fire at you?

A:   Man, I know it was about seven or nine.

Q:   [Was] there anyone in your view when you fire[d] your weapon?

A:   No, sir.

Q:   When did you learn about the death of Franklin?

A:   Man, I swear I don’t want to be in this incident. It hurt me man. I feel it in my heart
     that I didn’t kill that man. About 11:00 p.m. or 12:00 p.m., [sic] my little cousin, Po
     Bear, called me and told me that the man was dead.

Q:   Is the 40 caliber the only gun you own?

A:   Yes . . . .


                                       -4-
Q:   Are you a member of a gang?

A:   No . . . .

Q:   How long have you known Chuck?

A:   It’s been like a couple of months.

Q:   During [your] time knowing Chuck, has this been the first altercation between you
     and Chuck?

A:   Yes Sir.

Q:   On the day of the shooting, [was] there anyone else involved in the altercation?

A:   No Sir, [i]t was just me and Chuck nobody else had anything to do with it.

Q:   Why did you have this gun?

A:   Because people were telling me that Chuck was on Heroin and that he like to rob
     folks. I heard Chuck was involved in a carjacking where he took a Nissan with a
     baby in it.

Q:   Describe the weather and light condition during the shooting?

A:   It was hot and dusk.

Q:   Prior to the shooting, you stated you stopped near a ramp. Where is this ramp
     located?

A:   Vol[l]intine and Hollywood near the railroad track area.

     ....

Q:   Describe to me what type of gun did Chuck have?

A:   I believe it was a 9mm, because the way it was shooting.

Q:   Did you give this statement freely and voluntarily without threats, promises, or
     coercion?

A:   Yes.



                                     -5-
       Q:      Is there anything else that you would like to add to your statement that would aid us
               in this investigation?

       A:      No, Sir.

       Q:      I’m going to ask you to read your 4 page statement and if you find it to be true and
               correct place your initials in the bottom right hand corner of the first pages and place
               your signature, date and time on the last page in the space provided. Do you
               understand?

       A:      Yes.

The defendant then initialed each page and signed the last page, “Marquette Houston, 4/29/2003, at
8:10 P.M.” After reading the defendant’s statement to the jury, Detective Smith noted that the .40
caliber gun was never found.

        Albert “Mac Al” Thomas testified that he was currently in federal custody for unlawful
possession of a weapon. Mr. Thomas stated that Mr. Barnes was a mechanic in the neighborhood
and had worked on his car. According to Mr. Thomas, on April 28, 2003, Mr. Barnes approached
him on Hunter Street to discuss a $30 debt incurred two years ago. Approximately thirty minutes
later, Mr. Thomas encountered Mr. Barnes again while driving down Hollywood Street whereupon
Mr. Barnes pulled up behind him and began driving erratically. Mr. Barnes then drove past Mr.
Thomas, pulled over to the side of the road, and jumped out of his car with a gun pointed up in the
air. Mr. Barnes was hollering, but Mr. Thomas could not understand what he was saying. Mr.
Thomas saw a black truck drive by and turn up the street ramp on Vollintine. Mr. Thomas then
heard gunshots and to his surprise saw the defendant up on the street ramp shooting.

       Mr. Thomas testified that he had been good friends with the defendant for about three years
and had seen him earlier on the day of the shooting. According to Mr. Thomas, he had a
conversation with the defendant about Mr. Barnes in which the defendant said he “was going to get
up with [Mr. Barnes] when he see him.” Mr. Thomas explained that the expression, “get up with
him” was street slang and could mean many things including “you going to fight him, jump on him,
you know, shoot him, whatever.”

         Mr. Thomas testified that Mr. Barnes had his gun pointed in the air, but the defendant was
the first person to start shooting. When the defendant started shooting from the street ramp, Mr.
Barnes responded by shooting everywhere because he did not know where the defendant was
positioned. At one point, Mr. Barnes fired directly at Mr. Thomas but did not hit him. Mr. Thomas
made a U-turn in the middle of Hollywood, parked his car, and jumped into another car. He did not
see the defendant again until the next day. At that time, he and his brother picked up the defendant
and the three of them drove toward downtown to see an attorney. Coincidentally, when they stopped
at a traffic light, they were stopped by the same police transporting Mr. Barnes to the police station.
Mr. Thomas further testified that in his written statement, he told the police that the defendant had


                                                 -6-
a .40 caliber weapon. Mr. Thomas also acknowledged that he did not tell police about the
defendant’s remark about “getting up” with Mr. Barnes.

       The defendant testified that he had known Mr. Thomas since they were young children. He
had seen Mr. Barnes around the neighborhood and knew he had a reputation for robbing people. He
had also heard that Mr. Barnes did not like him because of a girl; however, Mr. Barnes had never
approached him about the situation.

         The defendant testified that on April 28, 2003, Mr. Barnes spoke to him while they were on
Winnona Street. After the conversation, the defendant walked toward Mr. Thomas’ house. As he
traveled down Hunter Street, he saw Mr. Thomas jump into a car and leave. Later that day, around
5:30 p.m., Mr. Barnes appeared on Hunter Street and blocked the path of the black Suburban truck
the defendant was driving. The defendant stated that Mr. Barnes appeared to be looking for someone
in the truck.

        The defendant testified that around 6:00 p.m., he was driving down Hollywood when he saw
Mr. Thomas and Miss Sharon pulled over on the side of the road. He then saw Mr. Barnes
approaching Mr. Thomas and Miss Sharon with a gun pointed at Mr. Thomas. Believing that Mr.
Barnes intended to harm Mr. Thomas and Miss Sharon, he drove up the ramp and shot his gun once
in the air in an attempt to scare Mr. Barnes away. In response, Mr. Barnes ducked into his car then
started shooting at him, so he returned fire. A stipulation was admitted into evidence showing that
Mr. Barnes had been previously convicted of two assaults.

      Based upon the evidence presented, the jury found the defendant guilty of second degree
murder. Thereafter, the defendant was sentenced to twenty-five years as a violent offender.

                                            ANALYSIS

                                  I. Sufficiency of the Evidence

      The defendant first contends that the evidence is insufficient to support his second degree
murder conviction because the proof shows he acted in defense of others and in self-defense.

        It is well-established that once a jury finds a defendant guilty, his or her presumption of
innocence is removed and replaced with a presumption of guilt. State v. Evans, 838 S.W.2d 185,
191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the burden of demonstrating
to this court why the evidence will not support the jury’s verdict. State v. Carruthers, 35 S.W.3d
516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden,
the defendant must establish that no “rational trier of fact” could have found the essential elements
of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.
Evans, 108 S.W.3d 231, 236 (Tenn. 2003); see Tenn. R. App. P. 13(e). In contrast, the jury’s verdict
approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor of the
state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the strongest


                                                 -7-
legitimate view of the evidence and all reasonable inferences which may be drawn from that
evidence. Carruthers, 35 S.W.3d at 558. Questions concerning the credibility of the witnesses,
conflicts in trial testimony, the weight and value to be given the evidence, and all factual issues
raised by the evidence are resolved by the trier of fact and not this court. State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate the evidence. State v. Reid,
91 S.W.3d 247, 277 (Tenn. 2002). Likewise, we do not replace the jury’s inferences drawn from the
circumstantial evidence with our own inferences. Id.

        A conviction for second degree murder requires proof that the defendant unlawfully and
knowingly killed another. See Tenn. Code Ann. § 39-13-210(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. See id. § 39-11-302(b). Tennessee’s self-defense statute provides in
relevant part:

       A person is justified in threatening or using force against another person when and
       to the degree the person reasonably believes the force is immediately necessary to
       protect against the other's use or attempted use of unlawful force. The person must
       have a reasonable belief that there is an imminent danger of death or serious bodily
       injury. The danger creating the belief of imminent death or serious bodily injury must
       be real, or honestly believed to be real at the time, and must be founded upon
       reasonable grounds. There is no duty to retreat before a person threatens or uses
       force.

       ....

       The threat or use of force against another is not justified if the person provoked the
       other individual's use or attempted use of unlawful force, unless:

       (1) The person abandons the encounter or clearly communicates to the other the
       intent to do so; and (2) The other nevertheless continues or attempts to use unlawful
       force against the person.

Id. § 39-11-611(a) and (d). Tennessee’s “defense of another” statute provides as follows:

       A person is justified in threatening or using force against another to protect a third
       person, if:

               (1) Under the circumstances as the person reasonably believes them
               to be, the person would be justified under § 39-11-611 in threatening
               or using force to protect against the use or attempted use of unlawful
               force reasonably believed to be threatening the third person sought to
               be protected; and



                                                 -8-
               (2) The person reasonably believes that the intervention is
               immediately necessary to protect the third person.

Id. § 39-11-612. The claim of self-defense or defense of another is essentially a fact question for
the jury. See State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Clifton, 880
S.W.2d 737, 743 (Tenn. Crim. App. 1994); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App.
1993).

         After reviewing the evidence in the light most favorable to the state, we conclude that the
evidence was sufficient to support the defendant’s conviction of second degree murder. The
evidence established that the defendant had some conflict with Mr. Barnes. On April 28, 2003, the
defendant knowingly initiated a gun battle with Mr. Barnes by shooting at him in the middle of a
residential neighborhood. As a result of the defendant’s conduct, Mr. Claude Franklin, an innocent
bystander, was struck by a bullet fired from the defendant’s gun and was killed. From the evidence,
the jury could have rationally found that the defendant’s action in shooting the victim was excessive
and unnecessary for the defense of others or self-defense. In other words, a rational jury could have
determined that the defendant’s use of deadly force was not founded on reasonable grounds. As
previously noted, the credibility and weight given to a witnesses’s testimony are issues resolved by
the jury as the trier of fact. See Bland, 958 S.W.2d at 659. The jury, as was their prerogative, chose
not to credit the defendant’s theory of self-defense or defense of others, and we will not second-guess
the factual determinations of the jury. Accordingly, the defendant is not entitled to relief on this
issue.

                                   II. First Aggressor Evidence

        The defendant next contends that the trial court erred in excluding witness testimony of a
prior bad act of Mr. Barnes. The defendant argues that such testimony would have aided the defense
by circumstantially proving Mr. Barnes was the first aggressor in the shooting.

        During a hearing, out of the presence of the jury, the defendant presented as an offer of proof
the testimony of Angela Brittenum. Ms. Brittenum testified that about a week before trial, Mr.
Bernard “Chuck” Barnes got into an argument with her brother, Booker Leshawn Hunter. Ms.
Brittenum recounted that Mr. Barnes was drunk and became angry at her brother after her brother
told Mr. Barnes he was “fixing” to take him home. Mr. Barnes and her brother were outside at the
time. From inside the house, Ms. Brittenum heard Mr. Barnes tell her brother “give me my gun,
man, give me my gun.” Then, Ms. Brittenum heard gunshots. She ran outside and saw Mr. Barnes
standing and her brother lying on the ground. She saw Mr. Barnes drop a gun and pick it up again.
Ms. Brittenum stated that she struggled with Mr. Barnes and wrested the gun away from him and ran
inside the house with it. Ms. Brittenum then called 9-1-1.

       After hearing Ms. Brittenum’s testimony, the trial court ruled as follows:




                                                 -9-
                  [T]he testimony of Ms. Angela Brittenum, as to the incident involving Mr.
         Barnes two weeks ago, that testimony is not sufficient in this Court’s opinion to show
         in a clear and convincing manner that Mr. Barnes was an aggressor in that
         transaction.

                Ms. Brittenum did not see the incident. The testimony that she gave was that
         there was a disagreement going on between Mr. Barnes and her brother. She heard
         Mr. Barnes ask for his gun from her brother, and then there were shots fired and her
         brother was shot, and Mr. Barnes has been arrested and charged with that.

                But there’s no indication of what occurred, how it occurred, under what
         circumstances it occurred, and I’m not satisfied that there’s enough clear and
         convincing evidence that Mr. Barnes was acting in an aggressive nature simply
         because he’s been charged.

                  I just haven’t heard sufficient proof that I think would allow that testimony
         to come before the jury under the [guise] of corroboration of self-defense argument;
         or if I understand correctly . . . defense of another that has not actually been shown
         or put before the jury yet.

                 . . . I do not find that Ms. Brittenum’s testimony was sufficient, clear and
         convincing evidence of aggressive behavior by Mr. Barnes that I would allow that in.
         So if that’s what’s been presented to me at this point I rule that [her testimony] is not
         admissible . . . .

        We begin our review by noting that “[r]ulings on the admissibility of evidence are largely
within the sound discretion of the trial court, and on appellate review, a trial court’s ruling to admit
or exclude evidence will not be disturbed unless it appears that such a ruling amounts to an abuse
of that discretion.” State v. James, 81 S.W.3d 751, 760 (Tenn. 2002). “An appellate court should
find an abuse of discretion when it appears that the trial court applied an incorrect legal standard, or
reached a decision which is against logic or reasoning that caused an injustice to the party
complaining.” Id.

       Under limited circumstances, “specific violent acts of the victim are admissible to
corroborate the defendant’s assertion that the victim was the aggressor.” 1 State v. Furlough, 797


         1
           As an aside, different admissibility rules apply when testimony is offered to demonstrate the defendant’s fear
of the victim (i.e., the defendant’s mental state) versus when testimony is offered to demonstrate who was the first
aggressor. See State v. Hill, 885 S.W .2d 357, 361 (Tenn. Crim. App. 1994), perm. to app. denied (Tenn. 1994).
The different rules are aptly explained by this court in State v. Jerry Dale Bennett, No. 03C01-9304-CR-00115, 1994
W L 53645 (Tenn. Crim. App., at Knoxville, Feb. 24, 1994), and quoted in pertinent part below:

         W hen self-defense is raised,
                                                                                                           (continued...)

                                                         -10-
S.W.2d 631, 649 (Tenn. Crim. App. 1990 ), perm. to app. denied, (Tenn. 1990) (emphasis added);
see also State v. Hill, 885 S.W.2d 357, 361-62 (Tenn. Crim. App. 1994), perm. to app. denied (Tenn.
1994). First aggressor evidence is evidence which would address “the animus of the [victim], his
conduct and motives, and [is] offered to show which party began or provoked the fight.” State v.
Jerry Dale Bennett, No. 03C01-9304-CR-00115, 1994 WL 53645, *3 (Tenn. Crim. App., at
Knoxville, Feb. 24, 1994) (quoting Little v. State, 65 Tenn. 490, 493 (1873)). “[B]efore a defendant
can offer proof of evidence of first aggression . . . [s]elf defense must be at issue by the evidence in
the record, not by the words and statements of counsel.” State v. Laterral Jolly, No.
02C01-9207-CR-00169, 1993 WL 523590, *4 (Tenn. Crim. App., at Jackson, Dec. 15, 1993), perm.
to app. denied (Tenn. 1994). Likewise, first aggressor evidence, albeit admissible to corroborate a
defendant’s claim of self-defense, is, at minimum, subject to the balancing test set forth in Tennessee
Rule of Evidence 403. See Furlough, 797 S.W.2d at 650; see also Jolly, 1993 WL 523590, *4; but
compare, State v. Ruane, 912 S.W.2d 766, 779-80 (Tenn. Crim. App. 1995) (suggesting that
defendant’s desired use of witness testimony to prove first aggression amounts to character evidence
of the victim’s propensity for violence and is thus subject to evidentiary limitations set forth in Tenn.
R. Evid. 404 and 405).

        We conclude that the trial court did not abuse its discretion in excluding Ms. Brittenum’s
testimony. As the trial court aptly noted, Ms. Brittenum observed no act of violence by Mr. Bernard.
As such, the testimony of Ms. Brittenum was of little to no probative value in corroborating the
defendant’s claim that Mr. Bernard was the first aggressor. Additionally, under the unique facts of
this case, Mr. Bernard was thoroughly questioned by the defense at trial and a stipulation was
admitted into evidence indicating that Mr. Bernard had been previously convicted of two assaults.
The defendant also testified. Therefore, the defendant had ample opportunity to establish his claim
that Mr. Bernard was the first aggressor. Accordingly, the trial court did not abuse its discretion in
excluding the evidence because the probative value of the evidence in question was substantially
outweighed by prejudice, confusion of the issues, and needless presentation of cumulative evidence.
Moreover, even assuming arguendo that the trial court erred in excluding the speculative testimony,

          1
           (...continued)
          1.The defendant and other witnesses may testify to the victim's general reputation for violence or
          peacefulness in the community on direct or cross-examination.

          2.The defendant may testify on direct examination about threats or violence to the defendant or others
          if the defendant knew about the threats at the time of the offense. Since this testimony is offered to
          establish defendant's state of mind at the time of the offense, the knowledge of those events is a
          prerequisite.

          3.Third persons may testify about violent acts or threats toward them about which the defendant had
          no knowledge at the time of the offense if the evidence of the victim's violent acts or threats is offered
          to corroborate a claim of self-defense by proving that the victim was the first aggressor.

          ....

Id. at *4 n.6.



                                                            -11-
which was only admissible for a limited corroborative purpose, the error was harmless. See Tenn.
R. App. P. 36(b).

                               III. Motion to Suppress Statement to Police

       The defendant next contends that the trial court erred in admitting his statement to police
because it was obtained in violation of his constitutional rights.

        Both the United States and Tennessee Constitutions protect the accused from compelled
self-incrimination. See U.S. Const. amend. V; Tenn. Const. art. I, § 9. As a result, government
authorities are prohibited from using statements made by the accused during custodial interrogation
unless the accused has been previously advised of his or her constitutional right against compulsory
self-incrimination and right to an attorney, and the accused knowingly and voluntarily waives those
rights. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). Whether waiver of a right is voluntarily
and knowingly made is determined by the totality of the circumstances under which the right was
waived. See State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992). However, “[a] defendant’s
subjective perception alone is not sufficient to justify a conclusion of involuntariness in the
constitutional sense. Rather, coercive police activity is a necessary predicate to finding that a
confession is not voluntary.” State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996) (citations and
internal quotations omitted).

         When reviewing the trial court’s decision on a motion to suppress, this court conducts a de
novo review of the trial court’s conclusions of law and application of law to facts. See State v.
Walton, 41 S.W.3d 75, 81 (Tenn. 2001). However, the trial court's findings of fact are presumed
correct unless the evidence contained in the record preponderates against them. See State v. Daniel,
12 S.W.3d 420, 423 (Tenn. 2000). “Questions of credibility of the witnesses, the weight and value
of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as
the trier of fact.” State v. Lawrence, 154 S.W.3d 71, 75 (Tenn. 2005) (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). Moreover, the prevailing party is entitled to the strongest legitimate
view of the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001).

        At the suppression hearing, Sergeant Fitzpatrick testified that the defendant was brought to
the homicide office sometime in the afternoon of April 29, 2003. Thereafter, around 6:00 p.m., he
and Sergeant Sims2 read the defendant his Miranda rights prior to conducting a brief oral interview.
After reading the defendant his rights, they gave the defendant the waiver of rights document and
had him read aloud the first line to make sure he could read. The defendant was then allowed read
the remainder of the waiver to himself. The defendant signed and dated the waiver of rights
document and indicated he understood his rights.




        2
            The record reflects that Sergeant Sims passed away prior to the hearing on the motion to dismiss.

                                                         -12-
         Sergeant Fitzpatrick testified that he had not coerced the defendant to sign the waiver of
rights document and no promises or threats were made to the defendant. According to Sergeant
Fitzpatrick, the defendant was very cooperative in responding to questions about the homicide. The
defendant did not appear under the influence of alcohol or drugs and did not appear unusually sleepy.
During the brief oral interview, the defendant indicated he had a tenth grade education and could
read and write. Although Sergeant Fitzpatrick was only present for the initial oral interview, he
testified that there were no significant discrepancies between the oral interview and the defendant’s
subsequent statement. Sergeant Fitzpatrick further testified that after the initial interview, he and
Sergeant Sims both left the defendant in order to interview other suspects. At no time did he observe
Sergeant Sims strike the defendant. At no time did the defendant ask for a lawyer.

        Detective J.P. Smith testified that around 7:00 p.m., he and another detective were directed
by Sergeant Fitzpatrick to take the defendant’s statement. Prior to taking the defendant’s statement,
the defendant was escorted from the interview room to Detective Smith’s desk in an open area.
According to Detective Smith, the defendant was read his Miranda rights. The defendant did not
smell or appear to be under the influence of any drugs or alcohol. The defendant was cooperative
and no threats or promises were made to him. The defendant was not hit, threatened, or coerced.
The defendant was given a Coke to drink and some crackers. It took a little over an hour to take the
defendant’s statement. The defendant was given his statement for review and was told to make any
corrections on the statement. The defendant initialed each page of the statement without making any
corrections and signed the last page with the time reflecting 8:10 p.m., on April 29, 2003.

        The defendant testified that he was arrested around 1:30 p.m., whereupon he told police he
wanted his lawyer present when he was to be questioned. Subsequently, he was taken downtown
to the homicide office. After sitting for a couple hours, he was escorted to another room by Sergeant
Sims and another guy. Once there, he told Sergeant Sims he wanted his lawyer present. Sergeant
Sims responded by making threats, pounding the desk, and slapping the back of the defendant’s
head. The defendant was then left in the room for another couple of hours. At some point, Detective
Smith and another detective took his statement.

         The defendant testified that prior to being arrested he had stayed up all night and had taken
some cocaine and liquid heroin. However, the defendant acknowledged that he did not tell the
detectives about this. The defendant recounted that he was arrested while en route to see his
attorney. The defendant acknowledged that he signed the waiver of rights document prior to the oral
interview, but he asserted that he did not read the document before signing it. The defendant
admitted that prior to giving his statement to Detective Smith, he was again advised of his Miranda
rights, and he told the detectives that he understood his rights. However, the defendant asserted that
he really did not understand his rights and did not know his statement could be used against him.
He further asserted that he did not read over his statement because he could not read, but he did not
tell the detectives that he could not read. The defendant admitted that he signed his statement and
initialed every page. The defendant further admitted that he did not tell Detective Smith or the other
detective that he wanted a lawyer.



                                                -13-
        At the conclusion of the hearing, the trial court accredited the testimony of the state
witnesses. The trial court noted that the defendant indicated he understood his Miranda rights by
signing the waiver of rights document, by verbal acknowledgment, and by signing and initialing his
statement. The court also noted that there was no indication that the defendant was threatened or
coerced into giving a statement. The court observed that the defendant indicated he could read by
reading a line from the waiver of rights document. The court further observed that the evidence
indicated that the defendant was alert, attentive, and cooperative and did not appear to be under the
influence of an intoxicant or drug of any kind. The court then found the following:

                 I do not find that [the defendant’s] rights were violated. I do not find that the
       members of the Police Department violated his constitutional rights either under the
       United States or the State of Tennessee. I find that he was advised of his rights, that
       he acknowledged an understanding of those rights, that he acknowledged a waiver
       of those rights and that he gave his statement freely and voluntarily without threats,
       without coercion, without intimidation of any kind and signed not only the waiver of
       rights form but the statement of the details that he had given to the officers, again,
       freely and voluntarily, fully knowing what his rights were and waiving those rights
       in giving this statement. So I find that there’s no basis for the Court to suppress the
       . . . statement that was given, and I will deny the Motion to Suppress.

        Upon review of the record, we conclude that the evidence does not preponderate against the
trial court’s findings that the defendant knowingly and voluntarily waived his Miranda rights and
freely gave statements concerning his involvement in the shooting death of Mr. Franklin.
Accordingly, we hold that the trial court properly denied the defendant’s motion to suppress, and this
issue is without merit.

                                           IV. Sentencing

         The defendant next contends that the trial court erred by imposing an excessive sentence of
twenty-five-years for his second degree murder conviction. Specifically, the defendant argues that
the trial court erred in not finding any statutory mitigating factors and improperly applying certain
enhancement factors.

         When an accused challenges the length and manner of service of a sentence, this court
conducts a de novo review of the record with a presumption that the trial court's determinations are
correct. Tenn. Code Ann. § 40-35-401. This presumption of correctness 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). However,
if the record shows that the trial court failed to consider the sentencing principles and all relevant
facts and circumstances, then review of the challenged sentence is purely de novo without the
presumption of correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). On appeal, the party
challenging the sentence imposed by the trial court has the burden of establishing that the sentence
is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments. We will uphold


                                                  -14-
the sentence imposed by the trial court if (1) the sentence complies with our sentencing statutes, and
(2) the trial court’s findings are adequately supported by the record. See State v. Arnett, 49 S.W.3d
250, 257 (Tenn. 2001); see also Tenn. Code Ann. § 40-35-210(f).

       The record reflects that the trial court found the following enhancement factors applicable:

       The defendant has a previous history of criminal convictions or criminal behavior,
       in addition to those necessary to establish the appropriate range;

       The offense involved more than one victim;

       The defendant possessed or employed a firearm, explosive device, or other deadly
       weapon during the commission of the offense;

       The defendant had no hesitation about committing a crime when the risk to human
       life was high;

       The crime was committed under circumstances which the potential for bodily injury
       to the victim was great.

The trial court stated that it found no statutory mitigating factors but it would consider mitigating
factors of the defendant’s young age and his somewhat stable work history. The trial court also
indicated that it was sentencing the defendant pursuant to the 2005 amendments to the sentencing
act.3

        We need not reach the merits of this sentencing issue as it appears from the record that the
trial court incorrectly sentenced the defendant pursuant to the 2005 amendments to the 1989
Sentencing Act. To clarify, certain provisions of the 1989 Sentencing Act were amended in 2005
to reflect an advisory, non-mandatory sentencing scheme. See e.g., Tenn. Code Ann. §§ 40-35-114,
-210. It was specifically noted that the amended provisions applied to sentencing for criminal
offenses committed on or after June 7, 2005, but that offenses committed prior to June 7, 2005,
would be governed by prior law. It was also noted that a defendant who is sentenced after June 7,
2005, for offenses committed on or after July 1, 1982, may elect to be sentenced under the amended


       3
           At the sentencing hearing, the trial court stated:

       Under the sentencing laws as they now stand, there’s no presumptive minimum. There’s no presumptive
       starting point. The Court is to consider the full range of punishment for this offense, which is a Class-A felony,
       which would be fifteen to twenty-five years. The Court is not mandated or required to consider all of these
       enhancement factors. The Court is given guidance and is to look at and to consider these factors as to what if
       any emphasis and weight the Court wants to give to them in imposing sentences. So that’s the status of the law
       as I understand it at this time.




                                                          -15-
provisions of the Act by executing a waiver of ex post facto protections. See Pub. Acts, Ch. 353, §
18; Tenn. Code Ann. § 40-35-210 (Supp. 2005). However, the record reflects that the defendant
committed the offense of second degree murder prior to the effective date of these amended
provisions. While the defendant could have elected to be sentenced pursuant to these amended
provisions, the record on appeal does not contain a waiver showing that he did so. Thus, the
amended 2005 provisions are not applicable in the defendant’s case and the defendant must be
resentenced pursuant to the sentencing statutes in effect at the time the offense was committed.

         Pursuant to the pre-2005 statutory sentencing scheme, the trial court is required to impose
a presumptive sentence, starting at the midpoint of the sentencing range, then adjust the sentence
within the range as appropriate based upon the presence or absence of mitigating and enhancement
factors set out in sections 40-35-113 and 40-35-114. See Tenn. Code Ann. § 40-35-210(c) (2003).
In this case, the presumptive sentence is twenty years because second degree murder is a Class A
felony and the sentencing range for a Range I, standard offender who commits a Class A felony is
fifteen to twenty-five years. See id. §§ 39-13-210(c), - 40-35-112(1).

        Also, the use of the pre-2005 sentencing scheme requires the trial court to evaluate the
defendant’s Sixth Amendment rights pursuant to Blakely v. Washington, 542 U.S. 296 (2004). In
Blakely, the United States Supreme Court held that the maximum sentence a judge may impose is
one based solely on the facts reflected in a jury verdict or admitted by the defendant. Id. at 303.
Although in State v. Gomez, 163 S.W.3d 632 (Tenn. 2005), the Tennessee Supreme Court
characterized the pre-2005 statutory sentencing scheme as a non-mandatory, advisory sentencing
scheme which did not violate the Blakely decision; Gomez was recently vacated by the United States
Supreme Court and the case remanded for reconsideration in light of Cunningham v. California, ---
U.S. ----, 127 S.Ct. 856 (2007).

        In Cunningham, the United States Supreme Court essentially extended the Blakely analysis
to California’s determinate sentencing scheme. Indeed, in Cunningham, the Court reiterated
Blakely’s determination that, “[e]xcept 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.’” Cunningham, --- U.S. at ----, 127 S.Ct. at 868 (citations omitted). The Court
further stated:

       We cautioned in Blakely, however, that broad discretion to decide what facts may support
       an enhanced sentence, or to determine whether an enhanced sentence is warranted in any
       particular case, does not shield a sentencing system from the force of our decisions. If the
       jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an
       additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.

Id. at 869 (citations omitted). Therefore, it appears that Cunningham-Blakely precedents apply to
our pre-2005 sentencing scheme and require that enhancement factors other than prior convictions
be found by a jury or specifically admitted by the defendant. See State v. Mark A. Schiefelbein, No.
M2005-00166-CCA-R3-CD, 2007 WL 465151, *48 (Tenn. Crim. App., at Nashville, Mar. 7,


                                                 -16-
2007), perm. app. denied (Tenn. June 18, 2007), (holding Tennessee’s pre-2005-revision sentencing
law was “just as determinative as Washington’s scheme [as denounced in Blakely], because the
sentence was fixed by statute in the absence of fact-finding not embraced in the jury’s verdict, and
just as mandatory, as well because the judge was not authorized to depart from the presumptive
sentence unless he or she found certain facts not embraced in the jury’s verdict”). Accordingly, the
trial court’s sentencing order is vacated and the cause is remanded for further proceedings consistent
with this opinion.

                                          CONCLUSION

        Following our review of the parties’ briefs and applicable law, we affirm the defendant’s
convictions. However, we vacate the sentence imposed by the trial court and remand this case for
resentencing under the sentencing scheme in place prior to the 2005 amendments with consideration
of the constitutional restrictions upon enhancing the defendant’s sentence above the presumptive
minimum.



                                                       ___________________________________
                                                       J.C. McLIN, JUDGE




                                                -17-
