        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                July 19, 2016 Session

           STATE OF TENNESSEE v. WILLIE LEE HUGHES, JR.

               Appeal from the Circuit Court for Williamson County
                   No. I-CR105947 Michael Binkley, Judge
                    No. I-CR126935 Joseph Woodruff, Judge
                    ___________________________________

                         No. M2015-01688-CCA-R3-CD
             No. M2015-01207-CCA-R3-CD – Filed November 29, 2016
                    ___________________________________

The defendant, Willie Lee Hughes, Jr., appeals both his Williamson County Circuit Court
jury conviction of aggravated robbery and his guilty-pleaded conviction of failure to
appear, claiming that the trial court erred by failing to exclude his statements to law
enforcement officers on the basis that the statements were made during the course of plea
negotiations and that the trial court erred by classifying him as a persistent offender.
Discerning no error, we affirm.

            Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., J., joined. TIMOTHY L. EASTER, J., not participating.

Matthew J. Crigger, Brentwood, Tennessee, for the appellant, Willie Lee Hughes, Jr.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Mary Katharine White,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

             In October 2011, the Williamson County Grand Jury charged the defendant
with one count of aggravated robbery in case number I-CR105947. The defendant‟s case
was scheduled for trial on October 10, 2012, but the defendant failed to appear. The
defendant was later charged with failure to appear in case number I-CR126935, and he
pleaded guilty to that charge with the sentence to be determined by the trial court at a
hearing.

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              The defendant‟s aggravated robbery case proceeded to trial in May 2014.
The State‟s proof at trial established that, at approximately 6:00 a.m. on August 18, 2011,
Maria Jaimes was drinking coffee outside her place of employment, Brentwood Magic
Cleaners, when a black male accosted her with a large knife. The assailant placed the
knife against Ms. Jaimes‟s stomach and demanded that she “give [him] everything”
before taking her iPod, cellular telephone, and handbag. The assailant then ran to a light-
colored Chevrolet Blazer parked in front of a nearby hotel and fled the scene; a white
shirt concealed the vehicle‟s license plate. Ms. Jaimes reported the robbery to her
manager, who in turn called the police.

             Brentwood Police Department (“BPD”) Officer Stanley Boyd responded to
the scene and spoke with Ms. Jaimes, who provided a description of the assailant and his
vehicle. Upon learning that the assailant had stolen Ms. Jaimes‟s cellular telephone,
Officer Boyd requested that the cellular carrier “ping” the telephone‟s location. The
“ping” returned a location in north Nashville, and Officer Boyd advised officers with the
Metropolitan Nashville Police Department (“Metro”), who responded to the location.

              Metro Officers Kevin Cooley and Andrew Johnson arrived at the location
at approximately 7:30 a.m., and about 30 minutes later, they observed a grey Blazer pull
into the driveway of 1806 Elizabeth Road. The officers approached the driver of the
vehicle, who identified herself as Lynne Edmonds. While the officers were speaking
with Ms. Edmonds, the defendant walked out of the house and identified himself to the
officers. The defendant admitted to Officer Cooley that he had been driving the Blazer
earlier that morning. Ms. Edmonds gave officers consent to search the Blazer, and
Officer Johnson discovered a large folding knife in the rear of the vehicle. At that point,
Metro officers contacted BPD detectives and informed them that “we may have got your
guy.”

             Shortly thereafter, BPD Detective James Colvin arrived at the scene and
spoke with the defendant. After Detective Colvin provided the defendant with his
Miranda warnings, the defendant stated that he had been at the Elizabeth Road residence
“[a]ll morning” and adamantly denied any involvement in the robbery. Eventually, the
defendant admitted that someone named “K.C.” was driving the Blazer that morning, that
K.C. had parked in front of the hotel, and that K.C. returned to the Blazer holding a
woman‟s handbag. The defendant insisted that he had never gotten out of the Blazer.

              Detective Colvin attempted to locate K.C. without any success, and in his
subsequent interview with Ms. Jaimes, she stated that the defendant was the only person
she saw in the Blazer.

             On August 22, 2011, the defendant requested to speak with Detective
Colvin at the Brentwood Police Department. Detective Colvin again administered
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Miranda warnings to the defendant, and the defendant signed a waiver of his rights.
Initially, the defendant maintained that the robbery had been K.C.‟s idea and that he had
remained in the Blazer while K.C. committed the robbery. Upon further questioning by
Detective Colvin, the defendant eventually admitted, “It was me, me by myself.” The
defendant confessed that Ms. Jaimes‟s cellular telephone and iPod were at the Elizabeth
Road residence. Although he was unable to find Ms. Jaimes‟s handbag, which the
defendant stated he had thrown out of the Blazer following the robbery, Detective Colvin
recovered the telephone and iPod from the Elizabeth Road residence and returned the
items to Ms. Jaimes.

             With this evidence, the State rested. Following a Momon colloquy, the
defendant elected not to testify and chose not to present any proof. Based on the
evidence presented, the jury convicted the defendant as charged of aggravated robbery.

              Following a sentencing hearing, the trial court sentenced the defendant as a
Range III, persistent offender to a term of 25 years‟ incarceration. A few months later,
the trial court conducted a sentencing hearing on the defendant‟s failure to appear
conviction. The court again sentenced the defendant as a Range III, persistent offender
and imposed a sentence of four years‟ incarceration, to be served consecutively to the
defendant‟s 25-year sentence.

               Following the denial of the defendant‟s motion for new trial in the
aggravated robbery case, the defendant filed a timely notice of appeal in both cases,
which appeals were consolidated by this court. In this appeal, the defendant argues that
the trial court erred by failing to exclude from his aggravated robbery trial his statements
to Detective Colvin because they were made during the course of plea negotiations and
that the sentences imposed in both cases were excessive.

                                I. Defendant’s Statements

             The defendant first contends that the trial court erred by failing to exclude
from evidence during his aggravated robbery trial the statements he made to Detective
Colvin, claiming that both statements were made during the course of plea negotiations
and were therefore inadmissible under Tennessee Rule of Evidence 410. We disagree.

              Tennessee Rule of Evidence 410 provides, in pertinent part, as follows:

              Except as otherwise provided in this rule, evidence of the
              following is not, in any civil or criminal proceeding,
              admissible against the party who made the plea or was a
              participant in the plea discussions:

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                    ....

             (4) any statement made in the course of plea discussions with
             an attorney for the prosecuting authority which do not result
             in a plea of guilty or which result in a plea of guilty later
             withdrawn. . . .

Tenn. R. Evid. 410(4).

              The seminal case in Tennessee regarding the exclusion of statements made
during the course of plea negotiations is State v. Hinton, 42 S.W.3d 113 (Tenn. Crim.
App. 2000), in which this court employed a two-prong test for determining whether a
statement should be excluded under Rule 410. Id. at 121-123. First, the court must
“consider the totality of the circumstances and determine whether the defendant exhibited
an actual subjective expectation to negotiate a plea at the time of the discussion and
whether the expectation was reasonable.” Id. at 122 (citing United States v. Robertson,
582 F.2d 1356, 1366 (5th Cir. 1978)). Second, the court must decide “whether the
statement was made in the course of plea discussions „with an attorney for the
prosecuting authority,‟” which includes a law enforcement officer acting “under the
express authorization of the prosecuting attorney.” Hinton, 42 S.W.3d at 122-23 (quoting
Tenn. R. Evid. 410(4)). The state of the law is quite clear, however, that the protections
of Rule 410 “do not encompass statements made during the preliminary investigation
process.” Hinton, 42 S.W.3d at 121 (citing State v. James Wayne Butler, No. 01C01-
9301-CR-00023, slip op. at 6-7 (Tenn. Crim. App., Nashville, Sept. 9, 1993) (holding that
statements made by defendant prior to being charged did not fall under the ambit of Rule
410)); see also Neil P. Cohen, et al., Tennessee Law of Evidence § 4.10[6][c] (6th ed.
2011) (“To be excluded, the statements or conduct must have been given as part of plea
negotiations rather than during the preliminary investigatory process. For example, if a
prosecutor participates in a custodial interrogation at a police station and the accused
confesses during the questioning, Rule 410 would probably not bar the confession.”);
State v. Calvin Person, No. W2011-02682-CCA-R3-CD, slip op. at 19 (Tenn. Crim.
App., Jackson, Oct. 31, 2013) (holding that Rule 410 did not apply to defendant‟s
statement to law enforcement officer when it was given prior to indictment), perm. app.
denied (Tenn. Mar. 5, 2014); State v. Charles Vantilburg, III, No. W2006-02475-CCA-
R3-CD, slip op. at 7-8 (Tenn. Crim. App., Jackson, Feb. 12, 2008) (holding that
defendant who entered into memorandum of understanding with law enforcement officers
prior to his being charged with any crime did not afford him the protections offered by
Rule 410), perm. app. denied (Tenn. Aug. 25, 2008).

            In the instant case, the defendant‟s initial statements to Detective Colvin
were made during the preliminary investigation, only hours after the commission of the
armed robbery. Throughout that interview, the defendant maintained his innocence.
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Although Detective Colvin made several statements about his ability to speak with the
district attorney and make recommendations to assist the defendant, Detective Colvin
also made it very clear that he was not making any guarantees or promises to the
defendant. In the defendant‟s second interview with Detective Colvin, during which he
eventually confessed to the robbery, the detective never mentioned the district attorney‟s
office and instead informed the defendant that he had sufficient evidence to convict him.
Significantly, the defendant was not charged with aggravated robbery until October 2011,
nearly two months after his interviews with Detective Colvin. Without question, the
defendant‟s statements to the detective were made during the initial investigatory process,
well before charges were filed, and Rule 410 is simply inapplicable.

             The defendant urges this court to extend the holding in Hinton to include
apparent authority. In support of his position, he relies upon United States v. Swidan,
689 F.Supp. 726 (E.D. Mich. 1988), for the proposition that the inquiry under Rule 410
should be whether the officer made statements that could have led the defendant
reasonably to believe that the officer had authority to enter plea negotiations. Id. at 728.
Because we believe the analysis in Hinton to be a correct and complete statement of
Tennessee law, we decline the defendant‟s invitation to extend it based upon Swidan,
which was decided before Hinton.

                                      II. Sentencing

              The defendant also contends that the trial court erred by classifying him as
a Range III, persistent offender for sentencing purposes for both his aggravated robbery
conviction and his conviction for failure to appear. Again, we disagree.

              Our supreme court has adopted an abuse of discretion standard of review
for sentencing and has prescribed “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012) (stating that “although
the statutory language continues to describe appellate review as de novo with a
presumption of correctness,” the 2005 revisions to the Sentencing Act “effectively
abrogated the de novo standard of appellate review”). The application of the purposes
and principles of sentencing involves a consideration of “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the
sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). The
supreme court cautioned that, despite the wide discretion afforded the trial court under
the revised Sentencing Act, trial courts are “still required under the 2005 amendments to
„place on the record, either orally or in writing, what enhancement or mitigating factors
were considered, if any, as well as the reasons for the sentence, in order to ensure fair and
consistent sentencing.‟” Bise, 380 S.W.3d at 706 n.41 (quoting T.C.A. § 40-35-210(e)).
Under the holding in Bise, “[a] sentence should be upheld so long as it is within the
                                            -5-
appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709.

               In the instant case, the jury convicted the defendant of aggravated robbery,
a Class B felony. The presentence investigation report established that the defendant had
five prior Class C felony convictions, including two convictions for facilitation of
aggravated robbery, and four prior misdemeanor convictions. Tennessee Code Annotated
section 40-35-107 provides that a persistent offender includes a defendant “who has
received . . . [a]ny combination of five (5) or more prior felony convictions within the
conviction class or higher or within the next two (2) lower felony classes, where
applicable.” T.C.A. § 40-35-107(a)(1). In determining prior convictions, “convictions
for multiple felonies committed within the same twenty-four-hour period constitute one
(1) conviction” unless those convictions include the statutory elements of “serious bodily
injury, bodily injury, threatened serious bodily injury or threatened bodily injury to the
victim or victims.” T.C.A. § 40-35-107(b)(4).

              The defendant does not dispute that he has five prior Class C felony
convictions; rather, he argues that his two prior convictions of facilitation of aggravated
robbery, both of which occurred on October 5, 2005, did not include the elements of
actual or threatened bodily injury or serious bodily injury and, thus, should count as a
single conviction pursuant to the 24-hour merger rule.

               This court has previously held that robbery, and by extension aggravated
robbery, see T.C.A. § 39-13-402(a)(1)-(2) (“Aggravated robbery is robbery as defined in
§ 39-13-401 . . . [a]ccomplished with a deadly weapon or by display of any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon” or “[w]here
the victim suffers serious bodily injury”), contains an element that the defendant cause or
threaten to cause bodily injury. See State v. Jamie Lynn Middlebrook, No. M2009-
02276-CCA-R3-CD, slip op. at 8 (Tenn. Crim. App., Nashville, Jan. 11, 2011)
(concluding “that the statutory elements of robbery include a threat of bodily injury when
the State is required to prove that the defendant committed the act through violence or by
putting the person in fear”), perm. app. denied (Tenn. May 26, 2011); see also, e.g., State
v. Iwanda Anita Buchanan, No. M2007-02870-CCA-R3-CD, slip op. at 7 (Tenn. Crim.
App., Nashville, Oct. 6, 2008) (“Both robbery and aggravated assault contain elements
that the defendant cause or threaten to cause bodily injury.”); State v. Robert Lee Bailey,
Jr., No. 01C01-9507-CR-00220 (Tenn. Crim. App., Nashville, May 9, 1996) (concluding
that convictions of attempted aggravated robbery “threatened bodily injury to the
victims” for purposes of the 24-hour merger rule).

             That the facilitation statute itself does not contain an element of actual or
threatened bodily injury or serious bodily injury matters not because the State “must
prove the commission of a specified felony” in order to establish the facilitation of a
                                           -6-
felony. State v. Parker, 932 S.W.2d 945, 951 (Tenn. Crim. App. 1996) (emphasis
added); see T.C.A. § 39-11-403(a) (“A person is criminally responsible for the
facilitation of a felony, if, knowing that another intends to commit a specific felony, but
without the intent required for criminal responsibility under § 39-11-402(2), the person
knowingly furnishes substantial assistance in the commission of the felony.”). Because
aggravated robbery includes, at a minimum, an element of threatened bodily injury,
facilitation of aggravated robbery necessarily includes such an element, and, as such, this
element prevents the merger of the defendant‟s two prior facilitation of aggravated
robbery convictions. Cf. State v. Michael Anthony Lewis, No. M2005-02279-CCA-R3-
CD, slip op. at 9 (Tenn. Crim. App., Nashville, Sept. 26, 2006) (stating that “the merger
rule should not apply” to convictions of facilitation of felony murder and attempted
especially aggravated robbery), perm. app. denied (Tenn. Jan. 29, 2007). Consequently,
the trial court did not err by finding the defendant to be a persistent offender. Moreover,
because the trial court considered all relevant principles associated with sentencing, no
error attends the imposition of these within-range sentences.

                                     III. Conclusion

             Based upon the foregoing analysis, we affirm the judgments of the trial
court.

                                            __________________________________
                                            JAMES CURWOOD WITT, JR., JUDGE




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