            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                                 MAY 1997 SESSION                 FILED
                                                                October 9, 1997
STATE OF TENNESSEE,               *      C.C.A. # 02C01-9604-CR-00120
                                                              Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
      Appellee,                   *      SHELBY COUNTY

VS.                               *      Hon. L. T. Lafferty, Judge

QUANTREAL UNDERWOOD,              *      (Second Degree Murder and

      Appellant.                  *      Two Counts of Aggravated Robbery)




For Appellant:                           For Appellee:

Marvin E. Ballin, Attorney               Charles W. Burson
and                                      Attorney General & Reporter
Mark A. Mesler, Attorney
Ballin, Ballin & Fishman, P.C.           Ruth Thompson
200 Jefferson Avenue                     Counsel for the State
Suite 1250                               450 James Robertson Parkway
Memphis, TN 38103                        Nashville, TN 37243-0493

                                         James A. Wax, Jr.
                                         and
                                         Karen Cook
                                         Assistant District Attorneys General
                                         201 Poplar Avenue, Third Floor
                                         Memphis, TN 38103



OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, JUDGE
                                              OPINION

                The defendant, Quantreal Underwood, was convicted of second

degree murder and two counts of aggravated robbery.1 The trial court imposed a

Range I, twenty-five-year sentence for second degree murder and two concurrent

eight-year sentences on each count of aggravated robbery.



                In this appeal of right, the defendant challenges the sufficiency of the

evidence; he claims that the trial court erred by allowing evidence of an excited

utterance as an exception to the rule against hearsay; and he complains that the

twenty-five-year sentence was excessive.



                We find no error and affirm the judgment of the trial court.



                During the early morning hours of August 28, 1993, the victim, Dorrell

Eggleston, was shot during a robbery of the Serve-Rite Market in Memphis. Twenty-

three years of age at the time of the shooting, the victim died forty days later.



                Jerome Bond, Jr., was attempting to leave the store when four or five

armed males in black ski masks entered the store and ordered its occupants to the

floor. According to Bond, four or five shots were fired. One of the robbers, who had

a knee to Bond's back and a gun to his face, took his wallet, containing

approximately $140.00. Bond recalled that another of the robbers, in response to a

customer who was not cooperating, ordered another robber to "clock" the customer;

however, no more shots were fired. It was only after the robbers left that Bond

discovered that the victim had been shot.



        1
          The jury acquitted the defendant on murder in the perpetration of a felony and returned a
verdict of second degree m urder on a charge of prem editated, deliberated first degree murder.

                                                   2
                 Bond, who knew the defendant "by face," recalled seeing him standing

outside the store just before the robbery; however, he was unable to identify any of

the masked robbers. Bond remembered that one of the robbers had a .380

automatic pistol and that one of the shots sounded like a shotgun blast.



                 Andrew Bolden, the night manager at the market, was tending the

cash register and talking on the telephone at the time of the robbery. He testified

that there were about five customers in the store, including Bond and the victim,

when three armed men wearing stocking masks entered the store and ordered the

occupants to the floor. He recalled that one of the robbers ordered another to shoot

a handicapped customer who was unable to lie on the floor. That customer was not

shot. Bolden recalled that one of the robbers took money from the cash register.



                 After the robbery, Bolden discovered that the victim had been shot.

Bolden recalled hearing four shots, some of which sounded different than others.

He observed a bullet hole in the storage area near the victim and what appeared to

be shotgun pellets above the door.



                  Caroline Hollister of the Memphis Police Department testified that

when she arrived at the market, she asked the victim who had shot him. Describing

the victim as scared and agitated, the officer recalled that the victim named the

defendant and a Spencer Payne.2



                  Anthony Yarborough witnessed the latter part of the Serve-Rite

robbery. After hearing shots from his residence, he looked across the street in time

to see some men exit the Serve-Rite and enter two different cars; one was a white


      2
          No on e by the na me o f Spenc er Payne appea rs in the tran script of the trial.

                                                      3
Hyundai and the other a maroon Chevrolet. Yarborough recalled seeing a shotgun

and observed that one of the men had a stocking over his head. He recognized one

of the two getaway cars as that of Roderick Turner who lived in the neighborhood.

Yarborough testified that he had observed the defendant, whom he did not know but

had seen before, driving the white car earlier in the day. Explaining that he was

nervous and afraid for his family, Yarborough was unable to point out the defendant

from the witness stand.



                 Demetrius Henderson, who had pled guilty to second degree murder

and two counts of aggravated robbery because of this incident, testified for the

state.3 He recalled that on the day of the robbery, the defendant, who was

accompanied by his cousin, claimed that he had been robbed of his cocaine and

would pay $700.00 and an ounce of cocaine for his assistance in this matter.

Henderson testified that he joined with the defendant and six other men, all of whom

were in two cars, a Hyundai and a Chevrolet, in an effort to find the defendant's

robber. The defendant, Dennis Smith, and Demarcus Radliff were in the Hyundai.

Henderson, Charles McGaughy, Thomas Watkins, Lee Antonio Boyd, and Carl

Porter got into the Chevrolet.



                 Henderson testified that they first went to a residence but found no

one at home. He stated that the men then proceeded to the Serve-Rite. According

to Henderson, the defendant, who had purchased masks, handed them out to each

of the participants before they went into the store. All but one was armed. The

defendant, who gave Radliff .32 caliber bullets, had a .380 and another man had a

shotgun. Porter, who was the only one without a gun, stayed in the car. Henderson

said he had a .22, Boyd a .32, Radliff a .32, McGaughy a .380, and Watkins a 12


      3
          Henderson received a sentence of twenty-eight years.

                                                 4
gauge shotgun. Henderson identified McGaughy as the robber who ordered the

store occupants to the floor. He recalled that the robber with the shotgun, W atkins,

fired before the others. Henderson, who denied firing a shot, testified that "a lot of

people fired." He stated that Watkins and the defendant went to the back of the

store during the course of the robbery.



                  By the time of this trial, McGaughy had also pled guilty to second

degree murder and two counts of aggravated robbery. A witness for the state, he

testified that the defendant claimed that he had been robbed and wanted some

help. He recalled that the defendant stopped to acquire some stocking caps before

the men entered the Serve-Rite. McGaughy claimed that he was without his mask

and never fired his weapon, a .380, but conceded that he had "laid [two] people

down" during the robbery. He claimed that he never received the quarter ounce of

cocaine, the "juice" of crack, or the $700.00 the defendant represented he would

pay. McGaughy admitted driving a burgundy Chevrolet and said the defendant was

in a small white sports car. On cross-examination, McGaughy admitted that he had

failed to mention to police that the defendant entered the store. He acknowledged

that he had told officers that Watkins, who he said had shot the victim, and

Henderson did the shooting during the robbery.



                  Dr. Jerry Francisco, the Shelby County Medical Examiner, performed

an autopsy. He testified that the victim had two gunshot wounds which did damage

to the spinal cord and his lungs, liver, and other internal organs. Dr. Francisco

measured one of the bullets at 32/100 of an inch.4 He explained that the victim, who

was paralyzed from the neck down because of the shooting, died from the infections

caused by the wounds.


       4
           There was no ballistics ana lysis. The tw o bullets we re design ated as med ium ca liber.

                                                      5
              The defendant presented no proof.



                                            I

              In challenging the sufficiency of the evidence, the defendant contends

that the proof at trial was simply inadequate to establish that the defendant either

committed or was criminally responsible for the robbery of either Bond or the Serve-

Rite or the shooting of the victim. The defendant points out the inconsistencies

between statements made by his co-defendants to police and those made at trial.

The defendant contends that the testimony of the co-defendants was

uncorroborated.



              On appeal, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof are

matters entrusted exclusively to the jury as the triers of fact. Byrge v. State, 575

S.W.2d 292, 295 (Tenn. Crim. App. 1978). This court may not re-evaluate the

evidence or substitute its inferences for those drawn by the jury. Farmer v. State,

574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). A conviction may be set aside only

when the reviewing court finds that the "evidence is insufficient to support the finding

by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).



              Robbery is defined as "the intentional or knowing theft of property from

the person of another by violence or putting the person in fear." Tenn. Code Ann.

§ 39-13-401. It is aggravated, and thus a Class B felony, when a deadly weapon is

utilized or the victim of the robbery suffers serious bodily injury. Tenn. Code Ann.

§ 39-13-402. One who knowingly kills another can be found guilty of second degree


                                            6
murder, a Class A felony. Tenn. Code Ann. § 39-13-210. In this state, one may be

criminally responsible for the commission of offenses if he acts with the intent to

promote or assist in the commission of the offense. Tenn. Code Ann. § 39-11-402.

Here, there was proof that the defendant was one of several armed, masked men

who robbed a convenience market and one of its customers, shooting the victim in

the process. The victim identified the defendant, who others said was armed with a

.380 pistol, as one of two men who fired the shots which ultimately resulted in his

death. There was evidence from co-defendants that the defendant was the leader

in the commission of the crimes and had utilized a white Hyundai automobile. One

state witness testified that he had seen the same car driven by the defendant earlier

that day. The testimony of another witness, not charged with this offense, placed

the defendant at the scene of the crime.



              A defendant, of course, cannot be convicted upon the uncorroborated

testimony of an accomplice. Sherrill v. State, 321 S.W.2d 811, 814 (Tenn. 1959).

The general rule is that there must be some fact testified to entirely independent of

accomplice testimony which, taken by itself, leads to an inference not only that a

crime has been committed but that the defendant is implicated in that crime. State

v. Fowler, 373 S.W.2d 460, 463 (Tenn. 1963). Only slight circumstances, however,

are required to furnish the necessary corroboration. Garton v. State, 332 S.W.2d

169, 175 (Tenn. 1960). Here, the testimony of Jerome Bond and Anthony

Yarborough, was sufficient to provide the necessary corroboration. Other proof,

accredited by the jury, established each and every element of the three offenses.

Thus, the evidence was sufficient.



                                           II

              At trial, the defendant lodged an objection to the testimony of Officer


                                           7
Hollister regarding the statement made by the victim that he had been shot by

"Spencer Payne and Quantreal Underwood." The trial court admitted the evidence

under the excited utterance exception to the rule against hearsay but found that it

did not qualify as a dying declaration exception. See Tenn. R. Evid. 803(2) and

804(b)(2). Rule 803(2) permits the admission of a "statement relating to a startling

event or condition made while the declarant was under the stress of excitement

caused by the event or condition." The statement should be made soon enough

after the event "to minimize the opportunity for conscious fabrication." State v.

Carpenter, 773 S.W.2d 1, 9 (Tenn. Crim. App. 1989). "The event must be

sufficiently startling to suspend the normal, reflective thought processes of the

declarant." Id. The primary consideration is whether the statement offered into

evidence can be deemed reliable under the circumstances of which it was made.

Id. That is, in order to qualify as an exception to the rule against hearsay, the

statement should have been made "at a time so near [a startling event] as to

preclude the idea of deliberation and fabrication." State v. Smith, 857 S.W.2d 1, 9

(Tenn. 1993). Whether statements qualify as excited utterances is left in great

measure to the discretion of the trial judge. State v. Payton, 782 S.W.2d 490, 494

(Tenn. 1989).



              Here, the trial court conducted a hearing, considered the

circumstances, and ruled that the statement qualified within the exception. Implicit

in the ruling is that the statement was so close in time and place to the shooting of

the victim so as not to be the product of reflective thought. Officer Hollister was the

first on the scene. She responded to the call within a couple of minutes. There was

proof that the victim, lying in his own blood and fearful of being left alone, was under

extreme stress, making it unlikely that he had the time or inclination to contemplate

and reflect on a response. In our view, the trial court properly admitted the


                                           8
testimony.



                                           III

              In imposing the maximum sentence possible, the trial court found the

following enhancement factors applicable to the second degree murder conviction:

              (1)    The defendant was a leader in the commission of
              the offense;

              (2)    The offense involved more than one victim;

              (3)    The defendant used a firearm; and

              (4)   The defendant had no hesitation about committing
              a crime when the risk to human life was high.

Tenn. Code Ann. 40-35-114(2), (3), (9), and (10).



              For a Range I offender, a Class A felony warrants a sentence of

between fifteen and twenty-five years. The range is eight to twelve years for a Class

B felony. Tenn. Code Ann. § 40-35-112(a)(1)(2). Because the trial court imposed

the minimum sentences possible for each of the aggravated robberies, the

defendant challenges only the twenty-five year sentence for second degree murder.

He argues that the trial court failed to adhere to the principles of sentencing as set

out by the legislature and improperly applied the enhancement factors. The

defendant specifically complains about the trial court mentioning the twenty-five year

sentences imposed upon those who pled guilty, saying "I can't see any difference

between you and them."



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing


                                           9
in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). See

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              In calculating the sentence for a felony conviction, the presumptive

sentence is the minimum within the range if there are no enhancement or mitigating

factors. Tenn. Code Ann. § 40-35-210(c). If there are enhancement factors but no

mitigating factors, the trial court may set the sentence above the minimum. Tenn.

Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating

factors requires an assignment of relative weight for the enhancement factors as a

means of increasing the sentence. Tenn. Code Ann. § 40-35-210. The sentence

may then be reduced within the range by any weight assigned to the mitigating

factors present. Id.



              The sentencing act clearly contemplates individual sentencing. Yet, in

our view, there are purposes under the act which would support a lengthy sentence:

              (1)   Every defendant shall be punished by the
              imposition of a sentence justly deserved in relation to the

                                           10
              seriousness of the offense;

              (2)    This chapter is to assure fair and consistent
              treatment of all defendants by eliminating unjustified
              disparity in sentencing and providing a fair sense of
              predictability of the criminal law and its sanctions.

Tenn. Code Ann. § 40-35-102(1) and (2).



              While there was no evidence that the murder involved more than one

victim, there were other enhancement factors properly applied. Based upon the

testimony at trial, the defendant was clearly the leader in the commission of the

offense; there was proof that he organized the participation of all of the others

involved in the crime. Clearly, the defendant utilized the firearm in the commission

of the crime and helped arm the others who assisted in the offense. Tenn. Code

Ann. § 40-35-114(2) and (9). There was evidence upon which the trial court could

conclude that the defendant had no hesitation about committing the crime when the

risk to human life, including others besides the victim, was high. Tenn. Code Ann.

§ 40-35-114(10). There were several weapons. More than one robber fired shots.

There were innocent bystanders endangered by the events. No mitigating factors

were listed. The considerable weight of those enhancement factors that were

properly applied would warrant the twenty-five year sentence. See State v. Hayes,

899 S.W.2d 175, 186 (Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1995).



              Accordingly, the judgment is affirmed.



                                          __________________________________
                                          Gary R. Wade, Judge




                                            11
CONCUR:



______________________________
John H. Peay, Judge



_______________________________
Thomas T. Woodall, Judge




                                  12
