         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   December 5, 2000 Session

                    STATE OF TENNESSEE v. CEDRIC TERRY

                  Direct Appeal from the Criminal Court for Shelby County
                         Nos. 98-03179-81   Bernie Weinman, Judge



                   No. W1999-01568-CCA-R3-CD - Filed February 23, 2001


A Shelby County jury convicted defendant of one count of premeditated first degree murder and two
counts of attempted first degree murder. Defendant was sentenced to life imprisonment for first
degree murder and twenty years for each attempted first degree murder conviction. The two twenty-
year sentences run concurrently with each other but consecutively to the defendant's life sentence.
In this appeal as of right, defendant challenges: (1) the trial court's denial of his motion to suppress
his identification by the two surviving victims, (2) the sufficiency of the evidence, and (3) the length
and consecutive nature of his sentences. Upon our review of the record, we affirm the judgment of
the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT
W. WEDEMEYER , JJ., joined.

Michael E. Scholl, Memphis, Tennessee, for the appellant, Cedric Terry.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; John W. Campbell and Rosemary S. Andrews,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

       Defendant appeals his convictions for first degree murder and two counts of attempted first
degree murder for which he received an effective sentence of life plus twenty years. After a careful
review of the record, we affirm the judgment of the trial court.




                                               FACTS
        On June 6, 1997, at approximately 11:15 p.m., shots were fired outside the F & F Grocery
Store in Memphis, Tennessee. Paul Jefferies, apparently an unintended victim, was fatally shot in
the back as he ran from the store. The intended victims, fourteen-year-old Shalina Williams and her
twelve-year-old step-sister, Latoya Jones, were able to safely flee the scene on foot.

        Shalina Williams knew the defendant and the co-defendant, Marcus King, from the
neighborhood. She referred to the defendant as “Ced” and sometimes by his nickname, “Peanut.”
She also knew King by the nickname, “Peanut.” Further testimony revealed that the defendant had
a “lazy eye,” but King did not.

         At some point prior to the shooting, Williams and Jones witnessed an altercation involving
defendant’s sister, and the defendant appeared at the scene of the altercation. Williams testified that
defendant’s sister was knocked down by another girl. She further testified that the defendant picked
his sister up and said, “Well, you know it’s not over.” Williams and Jones then ran home.

         Williams testified that on June 7, 1997, she and Jones exited the F & F Grocery Store and
noticed a white LTD being driven by King with the defendant in the passenger seat. She stated that
she told Jones, “that’s Ced and Peanut,” referring to the defendant and co-defendant King. She
stated that the defendant rolled down the window and said “there go those two bitches” and opened
fire, at which time the girls ran from the store. Williams testified that she fell to the ground, and
Jones continued running. Williams then sought shelter behind a car in the parking lot, and Jones fled
to the back of the store. Williams testified that the defendant then began firing under the vehicle
where she was hiding, although she was not hit. The defendant then left the scene. Thereafter,
Williams and Jones fled the scene. Williams testified that when she reached her house, she informed
her mother that “Ced” had tried to kill her. Jones’ testimony regarding the details of the shooting
was essentially the same as Williams’ testimony.

       Andre Jones testified that he was talking to the victim, Paul Jefferies, when the defendant and
King pulled up in a white LTD. He identified the defendant as the person who was shooting.

       Officer Clarence Hawkins was the first to arrive at the scene. He testified that Jefferies
described a white LTD as the car which transported the shooter. He further testified that Shalina
Williams told him “Peanut” was the shooter, and he had a “lazy eye.”

         The defendant presented testimony from his sister and his girlfriend. First, defendant’s sister
testified that she was with the defendant on June 6, 1997, at his girlfriend’s house from
approximately 8:30 p.m. to 10:30 p.m. She stated she left the defendant’s girlfriend’s house at 10:30
p.m., and the defendant stayed. Defendant’s girlfriend testified that on June 6, 1997, the defendant
and his sister arrived at her house at approximately 8:30 p.m. She further testified that the
defendant’s sister left her residence at approximately 10:30 p.m., and the defendant did not leave the
house until the “wee hours of the morning.”




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        In addition, the defendant introduced testimony from Marvin Phillips who claimed to have
been across the street from the grocery store at the time of the shooting. Phillips stated that the white
LTD in question passed right in front of him minutes before the shooting, and he observed five
males inside the vehicle. He further testified that he knew both defendants, and neither the defendant
nor the co-defendant was in the vehicle.

       Defendant and co-defendant King were jointly tried. Defendant was convicted of the
premeditated first degree murder of Paul Jefferies and the attempted first degree murder of Shalina
Williams and Latoya Jones. Defendant received an effective sentence of life plus twenty-years. The
jury was unable to reach a verdict on the charges against King.


                           I. SUPPRESSION OF IDENTIFICATION

        Defendant alleges the trial court erred in failing to suppress the identification of the defendant
by the two surviving victims. Defendant alleges the circumstances surrounding the photographic
identification were coercive and overly suggestive. Specifically, defendant contends the
identification was made from a photograph on the wall of the local police precinct, and there were
no other photographs on the precinct wall.

A. Testimony

        Lieutenant Edward Cash testified at the suppression hearing that Williams and Latoya Jones
asked to go down to the local precinct because they knew there was a photograph of the shooter on
the wall. He further testified that the photograph was placed on the precinct wall before the shooting
with regard to an unrelated aggravated assault. Both girls signed a copy of the picture with a
statement indicating the man in the photograph was the shooter. Lieutenant Cash did not testify at
trial.

        Williams testified at the suppression hearing that she did not know why she and her step-
sister were taken to the local police precinct. However, she stated that while the girls were waiting
for Lieutenant Cash, she noticed a picture of “Ced” on the wall and pointed it out to her sister. She
explained that the photograph of the defendant was the only photograph on the wall and was taped
to a sheet of paper containing the name of the defendant along with the word “Wanted.” Williams
told the officers, “that’s ‘Ced’ right there. He’s responsible for the shooting.” Williams claimed she
had never seen the photograph prior to that time. However, at trial Williams indicated that she told
the officers that there was a picture of the defendant on the wall at the precinct, and she subsequently
went to the precinct and identified defendant’s photo.

       Officer Hawkins testified at trial that he interviewed Shalina Williams at the scene after the
shooting. He further testified that she said the defendant was the shooter, and she had previously
seen his picture on the wall at the precinct. Officer Hawkins did not testify at the suppression
hearing.


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        Latoya Jones did not testify at the suppression hearing but did testify at trial. She testified
that Williams already knew that defendant’s picture was on the precinct wall, and that they went to
the precinct so Williams could point it out to the officers.

       The suppression hearing testimony and trial testimony further revealed that both Williams
and Jones knew the defendant from the neighborhood; Williams told Jones that it was “Ced” upon
seeing him in the vehicle; Williams told her mother and others shortly after the shooting that “Ced”
was the perpetrator; and both surviving victims identified the defendant at trial as the perpetrator.

B. Trial Court Findings

        At the conclusion of suppression hearing, the trial court stated that there was no proof that
the officers had purposely placed the photograph of the defendant on the precinct wall just for the
victims to observe. To the contrary, the trial court found that the proof revealed that the “picture was
on the wall for an entirely different purpose.” The trial court found that the identification was based
upon the witnesses’ prior knowledge of the defendant, not upon the photograph. Thus, the trial court
concluded there was no “suggestiveness as far as the actual identification is concerned.”

C. Standard of Review

        The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this Court unless the evidence contained in the record preponderates against them. State v.
Carter, 988 S.W.2d 145, 149 (Tenn. 1999). The trial court, as the trier of fact, is able to assess the
credibility of the witnesses, determine the weight and value to be afforded the evidence and resolves
any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, this Court
is not bound by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn.
1998). The application of the law to the facts found by the trial court are questions of law that this
court reviews de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the
burden of establishing 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. 1975). This
court may consider the testimony at both the suppression hearing and at trial. State v. Henning, 975
S.W.2d 290, 299 (Tenn. 1998).

D. Applicable Law

        Convictions based on eyewitness identification at trial following a pre-trial photographic
identification will be set aside only if the photographic identification was “so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons
v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968). However, a pre-
trial confrontation procedure may be unlawful if, under the totality of the circumstances, the
procedure is unnecessarily suggestive. Moore v. Illinois, 434 U.S. 220, 227, 98 S. Ct. 458, 464, 54
L. Ed. 2d 424 (1977).



                                                  -4-
        Although it may be suggestive, an identification may satisfy due process as reliable and
admissible when considering the totality of the circumstances. See State v. Brown, 795 S.W.2d 689,
694 (Tenn. Crim. App. 1990). This Court must consider five factors in determining whether the in-
court identification is reliable enough to withstand a due process attack despite the suggestiveness
of the pre-trial identification. Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d
401 (1972); State v. Strickland, 885 S.W.2d 85, 88 (Tenn. Crim. App. 1993). These factors are: (1)
the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree
of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of
certainty demonstrated by the witness at the confrontation; and (5) the time between the crime and
the confrontation. Strickland, 885 S.W.2d at 88 (citing Neil, 409 U.S. at 199).

E. Our Conclusion

        The trial court did not err in failing to suppress the identification of the defendant. We note
(1) the victims already knew the defendant prior to the shooting; (2) the victims had ample
opportunity to observe the defendant as they were leaving the store; (3) the victims were focused on
the defendant because of their fear; (4) Williams told her mother and the officers shortly after the
shooting and prior to the photographic identification that “Ced” was the shooter; (5) the description
of the defendant was accurate; (6) the victims adamantly stated that the defendant was the shooter;
and (7) the photographic identification of the defendant was made less than twenty-four hours after
the incident. Furthermore, we reach the same result regardless of whether Williams first saw the
photograph before or after the shooting. Thus, we conclude that, even if the photographic procedure
was suggestive, the in-court identification of the defendant was sufficiently reliable to withstand a
due process attack.

        The defendant further argues Williams’ identification was tainted since one of the officers
made sexually suggestive comments at the police precinct. Williams’ testimony at the suppression
hearing did not mention anything about sexual comments. However, Williams testified at trial that
such comments were made. She testified that even though she felt intimidated by the comments, she
did not make a false identification. Regardless, it is clear that the defendant had previously stated
to her step-sister, mother and officers at the scene that the defendant was the shooter. Furthermore,
she testified at the preliminary hearing and at trial that she recognized the defendant, “Ced,” from
the neighborhood and was sure he was the shooter. Thus, regardless of whether such comments were
or were not made by an officer, her identification of the defendant was not tainted.


                           II. SUFFICIENCY OF THE EVIDENCE

       Defendant alleges the evidence is insufficient to sustain his convictions. Specifically,
defendant claims the jury heard substantially the same evidence with regard to his involvement as
they did with regard to his co-defendant’s involvement. Thus, he argues that since the jury was
unable to reach a verdict against his co-defendant, they could not have reasonably concluded



                                                 -5-
defendant was guilty. Additionally, the defendant challenges the credibility of the state’s
eyewitnesses and asserts he successfully presented an alibi defense.

A. Standard of Review

        In Tennessee, great weight is given to the result reached by the jury in a criminal trial. A jury
verdict accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee,
885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view
of the evidence and all reasonable inferences which may be drawn therefrom. Id.; State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption of
innocence which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this
presumption of guilt. Id.

        Where sufficiency of the evidence is challenged, the relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime or crimes beyond a reasonable doubt.
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996).

B. Inconsistent Verdict

        A court will not upset a seemingly inconsistent verdict by speculating as to the jury’s
reasoning. Wiggins v. State, 498 S.W.2d 92, 94 (Tenn. 1973). Each participant in a crime should
be viewed independently, acknowledging the role of the jury as the final arbiter of the facts. State
v. Gennoe, 851 S.W.2d 833, 836 (Tenn. Crim. App. 1992). A defendant's conviction is not
fundamentally unfair even if a co-defendant is acquitted. State v. Lewis, 919 S.W.2d 62, 67 (Tenn.
Crim. App. 1995). Where there are multiple defendants, a jury’s inability to reach a verdict as to one
defendant does not effect the reasonableness of the adjudication of guilt with regard to the other
defendant(s). Thus, our focus is strictly upon whether the evidence is sufficient as to the defendant;
the jury’s determination regarding the co-defendant is irrelevant.

C. Evidentiary Analysis

        At trial, Williams testified that she and Jones witnessed an altercation involving the
defendant’s sister, after which the defendant stated “it’s not over.” Both girls testified that on June
6, 1997, a white LTD pulled up in front of the store; defendant rolled down the window and yelled
“there go those two bitches;” and then defendant opened fire. Both victims and another bystander
specifically identified the defendant as the shooter. The jury also heard testimony that Williams and
Jones made identifications of the defendant shortly after the shooting. Questions involving the
credibility of eyewitness testimony identifying the defendant as the perpetrator are for the jury’s
determination, not this court. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993).



                                                   -6-
While the defendant did present alibi testimony, it was the jury’s prerogative to reject this testimony.
See State v. Underwood, 669 S.W.2d 700, 703 (Tenn. Crim. App. 1984).

       Therefore, the eyewitness testimony was sufficient to support the convictions for the first
degree murder of Paul Jefferies and the attempted first degree murder of Shalina Williams and
Latoya Jones.

D. Transferred Intent - First Degree Murder

        Apparently, it was the state’s theory that the defendant intended to kill Williams and Jones
but, instead, killed bystander Paul Jefferies. Although not raised by the defendant, we will address
whether premeditation was established for the murder of Paul Jefferies.

         This case is controlled by Millen v. State, 988 S.W.2d 164 (Tenn. 1999). In Millen the
defendant was indicted for both premeditated murder and felony murder. The jury was charged
under the doctrine of "transferred intent," and the jury convicted the defendant of premeditated first
degree murder. The court concluded that it was unnecessary to resort to the doctrine of "transferred
intent" under the first degree murder statute, and the most appropriate charge involving an
"unintended victim" is felony murder. Id. at 167-68. However, the court also concluded that if the
evidence indicates that the defendant, with premeditation, intended to kill a particular person, then
the killing of another, even if not the intended victim, is premeditated first degree murder. Id. at 168.
The court affirmed the premeditated first degree murder conviction. Id.

        Millen requires the same result in the case at bar. After viewing the evidence in a light most
favorable to the prosecution, there was more than sufficient evidence for the jury to have found that
the defendant intentionally and with premeditation attempted to kill Shalina Williams and Latoya
Jones, but instead killed Paul Jefferies. Thus, the evidence is sufficient to support the conviction of
premeditated first degree murder of Paul Jefferies. Tenn R. App. P. 13(e).


                                        III. SENTENCING

        Defendant challenges his twenty-year sentences for the attempted first degree murder of
Shalina Williams and Latoya Jones which run consecutively to his life sentence. Specifically,
defendant alleges the trial court inappropriately applied enhancement factors, failed to apply
mitigating factors, and erroneously sentenced him to partial consecutive sentences.

A. Standard of Review

       This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial


                                                  -7-
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

        The presumptive sentence for attempted first degree murder, a Class A felony, is the midpoint
of the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c).
Therefore, the presumptive sentence for a Class A standard offender is twenty years. See Tenn. Code
Ann. § 40-35-112(a)(1). However, if such factors do exist, a trial court should enhance the sentence
within the range for enhancement factors and then reduce the sentence within the range for the
mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each factor is
prescribed by the statute, as the weight given to each factor is left to the discretion of the trial court
as long as the trial court complies with the purposes and principles of the sentencing act and its
findings are supported by the record. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v.
Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); see Tenn. Code Ann. § 40-35-210 Sentencing
Commission Comments.

B. Length of Sentence

         The defendant had two prior misdemeanor convictions as an adult. See Tenn. Code Ann. §
40-35-114(1). The defendant also had three juvenile adjudications that would be felonies if
committed by an adult. See Tenn. Code Ann. § 40-35-114(20). Furthermore, although the trial court
rejected this enhancement factor as an element of the offense, we apply factor (9) since the defendant
employed a firearm in the commission of these offenses. See Tenn. Code Ann. § 40-35-114(9). Use
of a firearm is not an element of attempted first degree murder and may be used as an enhancement
factor. See State v. Bradfield, 973 S.W.2d 937, 949 (Tenn. Crim. App. 1997). The trial court also
applied enhancement factor (3), an offense involving more than one victim, and enhancement factor
(10), committing a crime when the risk to human life was high. See Tenn. Code Ann. § 40-35-
114(3) and (10). In its written order, the trial court rejected all mitigating factors.

       Regardless of whether the trial court erred by applying enhancement factor (3), offense
involving more than one victim, and enhancement factor (10), high risk to human life, see Tenn.
Code Ann. § 40-35-114(3) and (10), our de novo review leads us to the conclusion that the
presumptive sentence of twenty years is certainly not excessive. The clear application of three
enhancement factors and the absence of any mitigating factors justify the sentences.

C. Consecutive Sentencing

       Defendant claims the state failed to provide adequate notice of an intent to seek consecutive
sentences, and the trial court inappropriately found his sentences for attempted first degree murder
should be served consecutively to his life sentence for first degree murder. We disagree.

        The trial court in its written order found the defendant had an extensive record of criminal
activity. See Tenn. Code Ann. § 40-35-115(b)(2). The trial court at the trial implicitly, although not



                                                   -8-
expressly, noted that the defendant had little regard for human life and did not hesitate to commit
a crime in which the risk to human life was high. See Tenn. Code Ann. § 40-35-115(b)(4).

                                              (1) Notice

        Defendant relies on Tenn. Code Ann. § 40-35-202(a) and contends that by failing to give
notice that it intended to seek consecutive sentencing until the day of the sentencing hearing, the state
waived the right to seek consecutive sentences. However, Tenn. Code Ann. § 40-35-202(a) does not
govern consecutive sentencing. State v. Robert Chapman, C.C.A. No. 02C01-9510-CR-00304, 1997
WL 11280, at *4 (Tenn. Crim. App. filed January 14, 1997, at Jackson), perm. to app. denied (Tenn.
1997). Rather, this statute only requires the state to provide notice of its intent to seek enhanced
punishment of a defendant as a multiple, persistent, or career offender. Id. Thus, the state is not
required to give notice that it is seeking consecutive sentencing.

                                     (2) Sentencing Guidelines

        A court may order sentences to run consecutively if the court finds by a preponderance of the
evidence that “[t]he defendant is an offender whose record of criminal activity is extensive; [or] [t]he
defendant is a dangerous offender whose behavior indicates little or no regard for human life, and
no hesitation about committing a crime in which the risk to human life is high.” Tenn. Code Ann.
§ 40-35-115(b)(2) and (4); see also State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).
Furthermore, in the event the trial court finds defendant is a “dangerous offender,” it must also
determine whether the consecutive sentences (1) are reasonably related to the severity of the offenses
committed; (2) serve to protect the public from further criminal conduct by the offender; and (3) are
congruent with general principles of sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn.
1995). Contrary to defendant’s argument, the use of an enhancement factor to increase the length
of a sentence within the proper range does not bar the use of the same facts in imposing consecutive
sentences. State v. Melvin, 913 S.W.2d 195, 205 (Tenn. Crim. App. 1995).

         The defendant had an extensive record of criminal activity. Tenn. Code Ann. § 40-35-
115(b)(2). His juvenile record as well as his adult record may be considered. See State v. Donielle
L. House, C.C.A. No. M1998-00403-CCA-R3-CD, 1999 WL ___ (Tenn. Crim. App. filed December
15, 1999, at Nashville), perm. to app. denied (Tenn. 2000). The extensive prior record alone justifies
consecutive sentencing. In addition, we find defendant’s behavior indicated little or no regard for
human life, and defendant did not hesitate in committing a crime in which the risk to human life was
high. See Tenn. Code Ann. § 40-35-115(b)(4). Although the trial court did not address the
Wilkerson factors, we conclude there is ample evidence to support the Wilkerson requirements.
Initially, we find that consecutive sentencing is reasonably related to the seriousness of the offenses
committed. Defendant shot and killed Paul Jefferies and attempted to kill two young girls, ages
twelve and fourteen. In addition, there were several people present inside and outside the store who
were also placed in danger when defendant randomly opened fire. We further conclude consecutive
sentencing is necessary to protect the public from further criminal conduct by the defendant.



                                                  -9-
        The trial court properly concluded that consecutive sentencing was warranted. Thus, this
issue is without merit.


                                        CONCLUSION

        Upon our review of the record, we conclude the trial court properly admitted the testimony
of Shalina Williams and Latoya Jones regarding their identification of the defendant; the evidence
was sufficient to sustain the defendant’s convictions; and the trial court properly sentenced the
defendant. Therefore, the judgment of the trial court is affirmed.



                                                     ___________________________________
                                                     JOE G. RILEY, JUDGE




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