             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                                MARCH 1997 SESSION
                                                        FILED
                                                       November 14, 1997

STATE OF TENNESSEE,                   )                 Cecil Crowson, Jr.
                                      )                 Appellate C ourt Clerk
                   APPELLEE,          )
                                      )    No. 02-C-01-9611-CC-00412
                                      )
                                      )    Madison County
v.                                    )
                                      )    Whit Lafon, Judge
                                      )
                                      )    Second Degree Murder
CARLOS COMAN,                         )
                                      )
                   APPELLANT.         )



FOR THE APPELLANT:                         FOR THE APPELLEE:

Jan R. Patterson                           John Knox Walkup
Attorney at Law                            Attorney General & Reporter
225 West Baltimore, Suite B                500 Charlotte Avenue
Jackson, TN 38301                          Nashville, TN 37243-0497

                                           Kenneth W. Rucker
                                           Assistant Attorney General
                                           450 James Robertson Parkway
                                           Nashville, TN 37243-4351

                                           James G. Woodall
                                           District Attorney General
                                           P.O. Box 2825
                                           Jackson, TN 38302-2825

                                           James W. Thompson
                                           Assistant District Attorney General
                                           P.O. Box 2825
                                           Jackson, TN 38302-2825

                                           Christopher J. Schultz
                                           Assistant District Attorney General
                                           P.O. Box 2825
                                           Jackson, TN 38302-2825




OPINION FILED:________________________

AFFIRMED

Joe B. Jones, Presiding Judge
                                   OPINION


       The appellant, Carlos Coman (defendant), was convicted of second degree murder,

a Class A felony, by a jury of his peers. The trial court, finding the defendant to be a

standard offender, imposed a Range I sentence consisting of confinement for twenty (20)

years in the Department of Correction. In this court, the defendant presents five issues for

review. He contends the evidence is insufficient to support his conviction. He also

contends the trial court committed error of prejudicial dimensions by denying his motion to

suppress the statement he gave to the police, excluding the terms of the victim’s plea

bargain agreement prior to his murder, failing to give an instruction on identification, and

imposing an excessive sentence.        After a thorough review of the record, the briefs

submitted by the parties, and the law governing these issues, it is the opinion of this court

that the judgment of the trial court should be affirmed.

       On the evening of March 29, 1995, the defendant and three companions went to the

apartment of Jacqueline Haynes. The defendant knocked on the door. When Haynes

answered the door, the defendant, who appeared angry, asked her if she had seen Brent

Love. She told the defendant she had not seen Love that evening. The defendant and his

companions left. They then went to the apartment of Terry Kay Wallace.

       Roderick Purdy, one of the defendant’s companions, and a co-defendant, went to

the door and knocked. When Andrew Thompson answered the door, Purdy asked if Love

was there. According to a statement given to police, Love had removed the hubcaps from

Purdy’s automobile and Purdy wanted to know where the hubcaps were. Love exited the

apartment and was shot five times. Eric Burton, who had also been inside Wallace’s

apartment, waited a short time, exited the apartment, and dragged Love back inside the

apartment.

       Two people were in the process of leaving a church directly across the street from

the situs of the murder. They saw three or four people congregated in front of W allace’s

apartment. One person shot the victim. They saw the victim fall. The perpetrators of the

murder ran away. Neither party could identify any of the individuals they saw since it was

dark. Several witnesses testified they heard five or six shots in rapid succession.


                                             2
       Love appeared to be in excruciating pain. He was breathing heavily. He then began

to moan and gasp for breath. Later, he began “fading in and out.” When Burton and

Thompson would call Love’s name, he would respond, but would then lapse back into an

unconscious state. He died later that night at the hospital. Shortly after Love was dragged

inside the apartment, he told Burton and Thompson twice that “Bushwick” shot him. The

defendant’s nickname is Bushwick. The victim obviously knew the defendant.

       An autopsy revealed the victim died of multiple gunshot wounds. Three of the

wounds discovered by the pathologist were superficial. One projectile struck the victim’s

spine and stopped. The remaining projectile struck the victim on the right side of the chest,

bruised the right lung, passed through both chambers of the heart, and struck the aorta as

well. This latter wound was the cause of the victim’s death.

       The defendant gave the police a statement. He admitted to the officers that he was

present when the victim was shot. However, he denied he was the person who shot the

victim. When the shooting began, the defendant ran and hid in a grove of trees behind a

grocery store.

                                              I.



       The defendant contends the evidence is insufficient, as a matter of law, to support

his conviction. He argues his conviction is predicated upon the dying declaration of the

victim, presented through the testimony of Thompson and Burton, two convicted felons.

He also argues the evidence does not support a conviction based exclusively upon

circumstantial evidence.

                                             A.



       When an accused challenges the sufficiency of the convicting evidence, this court

must review the record to determine if the evidence adduced at trial is sufficient "to support

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

This rule is applicable to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803

S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).



                                              3
       In determining the sufficiency of the convicting evidence, this court does not reweigh

or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.),

per. app. denied (Tenn. 1990). Nor may this court substitute its inferences for those drawn

by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286

S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the

contrary, this court is required to afford the State of Tennessee the strongest legitimate

view of the evidence contained in the record as well as all reasonable and legitimate

inferences which may be drawn from the evidence. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978).

       Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence, as well as all factual issues raised by the evidence are resolved by the

trier of fact, not this court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973), our Supreme Court said: "A guilty verdict by the jury, approved by

the trial judge, accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the theory of the State."

       Since a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused, as the appellant, has the burden in this court of

illustrating why the evidence is insufficient to support the verdicts returned by the trier of

fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a

verdict of guilt due to the sufficiency of the evidence unless the facts contained in the

record are insufficient, as a matter of law, for a rational trier of fact to find that the accused

is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.



                                               B.



       Before an accused can be convicted of second degree murder, the State of

Tennessee must prove beyond a reasonable doubt the accused knowingly killed the victim.

Tenn. Code Ann. § 39-13-210(a)(1). In this case, the defendant, who appeared angry,

asked Haynes if the victim was inside her apartment or whether she had seen the victim

that evening. The defendant admitted he was present outside Wallace’s apartment when



                                                  4
the victim was shot. He also admitted he left the situs of the crime running. The victim

made a dying declaration stating the defendant was the person who shot him.

       This court finds the evidence is clearly sufficient to support a finding by a rational

trier of fact that the defendant was guilty of second degree murder beyond a reasonable

doubt. Tenn. R. App. P. 3(e); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979).

       This issue is without merit.



                                              II.



       The defendant contends the trial court committed error of prejudicial dimensions by

denying his motion to suppress a statement he made to a police officer. He argues he

was only sixteen years of age with borderline intellectual functioning capacity at the time

he made the statement. As a result, the defendant was not capable of voluntarily,

knowingly, and intelligently waiving his Miranda rights.

         Officer Barry Michael interviewed the defendant shortly after the murder of the

victim. He read the Miranda warnings to the defendant. The defendant advised Officer

Michael he understood his rights and he was willing to waive these rights. The defendant

did not ask any questions about his rights.

       The defendant was asked to read the first sentence on the waiver of rights form to

test whether he could read. The defendant had no problem reading the sentence. Officer

Michael then permitted the defendant to sign the waiver of rights form. After the interview

was completed, Officer Michael read the statement to the defendant. He then gave the

statement to the defendant to read and make changes or approve it. The defendant

signed the statement as prepared by Officer Michael.

       The defendant presented a psychologist to support his contentions.                The

psychologist testified the defendant possessed a borderline range of intelligence. The

defendant was found to read at a fourth grade level. According to the psychologist, a

person must be able to read at the sixth grade level to understand the Miranda warnings.




                                              5
However, the psychologist opined the defendant knew right from wrong, was competent

to stand trial, and was capable of assisting counsel.

       The defendant testified during the suppression hearing. He acknowledged he

signed the waiver of rights form, but stated he did not know why he signed the form. He

also acknowledged he signed the statement attributed to him. He refuted Officer Michael’s

testimony. The defendant denied Michael read the Miranda warnings or the statement to

him. However, the defendant stated he was able to read the statement. The defendant

also stated he told the police the truth when giving the statement, and that he provided the

police with the information contained in the statement.

       When an accused is afforded an evidentiary hearing on the merits of his motion to

suppress a statement given to a law enforcement officer, the findings of fact made by the

trial court are binding upon the appellate court unless the evidence contained in the record

preponderates against these findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);

State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994); State v. O’Guinn, 709 S.W.2d

561, 565-66 (Tenn.), cert. denied, 478 U.S. 820, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986);

State v. Mosier, 888 S.W.2d 781, 785 (Tenn. Crim. App. 1994). This standard of review

was created because the trial court, as the trier of fact, must assess the credibility of the

witnesses, determine the weight and value to be afforded the evidence adduced during the

hearing, and the court must resolve any conflicts in the evidence. However, an appellate

court is not bound by the trial court’s conclusions of law. The defendant has the burden

of illustrating to this court that the evidence contained in the record preponderates against

the findings of fact made by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn.

Crim. App.), cert. denied (Tenn. 1975); Mitchell v. State, 3 Tenn. Crim. App. 494, 501, 464

S.W.2d 307, 311, cert. denied (Tenn. 1971).

       The waiver of the constitutional rights guaranteed by Miranda must be voluntarily,

knowingly, and intelligently made to be valid. State v. Van Tran, 864 S.W.2d 465, 472

(Tenn. 1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994); State

v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992); State v. Benton, 759 S.W.2d 427,

431 (Tenn. Crim. App. 1988). A juvenile can waive these constitutional rights if he is fully

advised of the Miranda warnings and his decision to waive these rights is voluntarily,



                                             6
knowingly, and intelligently made. State v. Gordon, 642 S.W.2d 742, 745 (Tenn. Crim.

App.), per. app. denied (Tenn. 1982); Braziel, 529 S.W.2d at 506; Mitchell, 3 Tenn. Crim.

App. at 501, 464 S.W.2d at 311; Vaughn v. State, 3 Tenn. Crim. App. 54, 62, 456 S.W.2d

879, 883, cert. denied (Tenn. 1970). Similarly, a person with a mental deficiency may also

waive these rights under the same circumstances. State v. Green, 613 S.W.2d 229 (Tenn.

Crim. App. 1980), per. app. denied (Tenn. 1981); Braziel, 529 S.W.2d at 506. See also

State v. Bell, 690 S.W.2d 879 (Tenn. Crim. App.), per. app. denied (Tenn. 1985) (adult

defendant claimed to be intoxicated and suffering from a mental deficiency).

       When determining whether an accused has voluntarily, knowingly, and intelligently

waived his Miranda rights, this court must consider the totality of the circumstances which

existed when the accused waived these rights. Middlebrooks, 840 S.W.2d at 326; Benton,

759 S.W.2d at 431; Vaughn, 3 Tenn. Crim. App. at 60-61, 456 S.W.2d at 883. Since the

defendant contends his waiver of the Miranda rights was not voluntarily or understandingly

entered due to his age and borderline range of intelligence, this court must consider such

factors as the defendant’s age, educational background, mental competence and ability,

and the facts surrounding the waiver of these rights. Benton, 759 S.W.2d at 432; State v.

Bell, 690 S.W.2d 879, 882 (Tenn. Crim. App.), per. app. denied (Tenn. 1985). However,

one of these factors, standing alone, will not necessarily render a waiver of the Miranda

rights invalid. Bell, 690 S.W.2d at 882.

       In this case, the officers read the Miranda warnings to the defendant. He was asked

if he understood the rights. He told the officers he understood these rights, and he did not

ask any questions. The officers had the defendant read the first line of the waiver form to

see if he could read. He had no problem reading the sentence. He then executed the

waiver form. The officers stated the defendant appeared normal. The officers read both

the waiver form and the statement to the defendant before he affixed his signature to them.

       The defendant admitted his signature appeared on the waiver form. He stated he

did not know why he signed the form. He also acknowledged his signature appeared on

the statement he gave the police. The defendant admitted he told the officers the

information contained in the statement and the content of the statement was true. He

testified he was able to read the statement.



                                               7
       This court has considered the totality of the circumstances. The court is of the

opinion the evidence contained in the record does not preponderate against the findings

of fact made by the trial court. It is obvious the trial court accredited the testimony of the

state’s witness.

       This issue is without merit.



                                              III.



       The victim had entered a plea of guilty to aggravated robbery pursuant to a plea

agreement.       The defendant contends the trial court committed error of prejudicial

dimensions by ruling the terms of the plea agreement could not be admitted into evidence.

The defendant argues it was admissible to rebut the state’s theory on motive.

       This issue has been waived. The defendant has failed to state authority in support

of this issue.     Tenn. R. App. P. 27(a)(7).        Also, the document containing the plea

agreement was not made an exhibit, and, therefore, has not been included in the record

transmitted to this court. As a result, this court cannot consider the issue. State v. Ballard,

855 S.W.2d 557, 560-61 (Tenn. 1993). Instead, this court must presume the ruling of the

trial court was correct. State v. Locust, 914 S.W.2d 554, 557 (Tenn. Crim. App.), per. app.

denied (Tenn. 1995).

       This issue is without merit.



                                              IV.



       When the trial court completed reading the charge to the jury, the court asked

counsel if there were any other matters counsel wanted to submit. Defense counsel

advised the court she did not remember hearing an instruction on identification. Counsel

submitted a special request which set forth the identification instruction recommended by

the supreme court in State v. Dyle, 899 S.W.2d 607 (Tenn. 1995). The trial court refused

to give the special request. The defendant contends the trial court committed error of

prejudicial dimensions by failing to instruct the jury on the law of identification. The state



                                               8
contends the defendant did not place his identification in issue.

       In this case, the evidence identifying the defendant as the person who killed the

victim is unique. The defendant and Roderick Purdy, a co-defendant, searched for the

victim. They went to the Haynes residence and asked Haynes if the victim was inside or

if she had seen the victim that evening. According to Haynes, the defendant appeared

angry. The defendant and Purdy then went to the Wallace residence where the victim was

visiting. Purdy went to the door and asked for the victim. It appears Purdy saw the victim

and another person steal his hubcaps, and Purdy wanted to address the matter with the

victim. The victim went outside. Shots were fired at the victim. Purdy, the defendant, and

their friends ran away. A person inside the residence went outside and brought the victim

into the residence. The victim told those inside the apartment “Bushwick” was the person

who shot him; Bushwick is the defendant’s nickname. The defendant gave the police

officers a statement admitting, like the co-defendant, that he was present when the victim

was murdered, but denying that he fired the shots that killed the victim.

       The defendant predicates the necessity for an instruction on identification based

upon the testimony of an independent witness, Sandra Luanne Cisco Holt. She was

across the street from where the murder occurred. It was dark and she could not identify

any person who was present when the shots were fired. Holt saw the fire come from the

barrel of the pistol; it was the only weapon she saw fired.

       During cross-examination the witness was asked about the identification she gave

the police officers when she was interviewed. Her answer was: “I just said he was I think

average height, medium build, pretty much.” When asked what the average height of a

man was, she stated: “I guess somewhere around 5' 7" or six foot. “ When asked about the

height of the person who fired gun, she responded: “I really don’t [know]. I couldn’t tell how

tall he was. That’s why I just said he was average, you know. Nothing stood out to me to

make -- you know -- so I just said he was average.” She saw the defendant at a prior court

hearing and she viewed the defendant during the trial. The witness said on both occasions

the defendant was shorter than the height of the average man she had previously

described.

       The basis of the identification in this case was the dying declaration made by the



                                              9
victim. Of course, the testimony by Haynes placed Purdy and the defendant together

shortly before the shots were fired. Both admitted to being present when the shots were

fired. Holt could not identify the person who shot the victim. Moreover, she gave a generic

description of the person who fired the weapon. Nevertheless, the defendant argues for

an identification instruction based on Holt’s testimony on cross-examination.

       The trial court instructed the jury as follows: “The Court further charges you that the

mere presence of a person in an area where a crime was committed is not sufficient for a

finding of guilt of such crime by that person.” In this case, this instruction was sufficient

based on the evidence. Nevertheless, the trial court should have included the identification

instruction in its charge to the jury. However, the failure to do so constituted harmless error

in the context of this case. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

       This issue is without merit.

                                              V.



       The defendant contends the sentence imposed by the trial court is excessive. He

argues the trial court found one enhancement factor and one mitigating factor. Therefore,

the court should have sentenced the defendant to the presumptive minimum sentence of

fifteen years. The defendant also contends the trial court did not consider the principles

of sentencing and all of the factual circumstances. Thus, this court should grant him a new

sentencing hearing.

       When an accused challenges the length of the sentence imposed by the trial court,

it is the duty of this court to conduct a de novo review on the record with a presumption that

“the determinations made by the court from which the appeal is taken are correct.” Tenn.

Code Ann. § 40-35-401(d). This presumption 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this case, the

trial court did not comply with the Ashby requirement. When sentencing the defendant, the

trial court simply said: “It’s the judgment of the Court that you’ll be sentenced to the

penitentiary for a period of 20 years. You’re now sentenced.” Therefore, the presumption

does not apply, and this court will conduct a de novo review without a presumption that the



                                              10
findings of the trial court are correct.

         There are four enhancement factors supported by the record.

         The defendant has an extensive history of criminal behavior and convictions. Tenn.

Code Ann. § 40-35-114(1). The juvenile record of an accused can be considered when

determining whether the state has established this enhancement factor. State v. Adams,

864 S.W.2d 31, 34 (Tenn. 1993), rev’d on other grounds, 864 S.W.2d 31 (Tenn. 1993);

State v. Crowe, 914 S.W.2d 933, 939 (Tenn. Crim. App. 1995), per. app. denied, (Tenn.

1996); State v. Stockton, 733 S.W.2d 111, 112-13 (Tenn. Crim. App. 1986), per. app.

denied (Tenn. 1987). The presentence report lists numerous juvenile convictions. The

defendant has been convicted of an attempt to commit voluntary manslaughter, carrying

a weapon on school grounds, simple assault, criminal trespass, vandalism, evading arrest,

and other minor offenses. He admitted to the presentence officer he smoked marijuana

and drank alcohol daily. See State v. Keel, 882 S.W.2d 410, 419 (Tenn. Crim. App.), per.

app. denied, (Tenn. 1994).

         The defendant was a leader in the commission of the offense. Tenn. Code Ann.

§ 40-35-114(2). It was the defendant who asked if the victim was at the Haynes residence

or whether Haynes had seen the victim on the night in question. The defendant was also

the person who armed himself.

         A pistol was used to commit the offense. Tenn. Code Ann. § 40-35-114(9). The

use of the weapon is not an element of second degree murder. This court has held this

enhancement factor may be applied when the accused is convicted of murder in the

second degree. See State v. Butler, 900 S.W.2d 305, 312-13 (Tenn. Crim. App. 1994);

State v. Raines, 882 S.W.2d 376, 385 (Tenn. Crim. App.), per. app. denied (Tenn. 1994);

State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992), per. app. denied (Tenn.

1993).

         The defendant had no hesitation about committing a crime when the risk to human

life was high. Tenn. Code Ann. § 40-35-114(10). When the shots were fired there were

numerous people near the situs of the shooting. There were people inside the residence.

There were people across the street leaving a church service. Also, the defendant’s

friends were very close when the shooting occurred. See State v. Ruane, 912 S.W.2d 766,



                                             11
784 (Tenn. Crim. App. 1995); State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App.), per.

app. denied (Tenn. 1995); State v. Makoka, 885 S.W.2d 366, 373 (Tenn. Crim. App.), per.

app. denied (Tenn. 1994).

       The mental capacity of the defendant is the only mitigating factor supported by the

record. Tenn. Code Ann. § 40-35-113(8).

       The weight to be given enhancement and mitigating factors rests within the sound

discretion of the trial court. Shelton, 854 S.W.2d at 123. In this case, the enhancement

factors are to be given great weight. The defendant’s prior conviction for crimes of

violence, including an attempt to commit voluntary manslaughter, assault, and weapons

offenses, require this court to give enhancement factor (1) great weight. The remaining

enhancement factors are also to be given serious consideration. The mitigating factor is

entitled to little weight as it did not enter into the equation in the murder of the victim. The

sentence of twenty (20) years is reasonable considering the defendant is a violent person,

the public deserves protection from this criminal activity, and the length of the sentence

conforms to the nature of the offense.




                                    ____________________________________________
                                         JOE B. JONES, PRESIDING JUDGE


CONCUR:




____________________________________
     GARY R. WADE, JUDGE




____________________________________
     CURWOOD WITT, JUDGE




                                              12
