        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   July 19, 2011 Session

              STATE OF TENNESSEE v. KEVIN L. BUFORD, SR.

             Direct Appeal from the Criminal Court for Davidson County
                    No. 2008B1355    J. Randall Wyatt, Jr., Judge


                  No. M2010-01618-CCA-R3-CD - Filed May 24, 2012


The defendant, Kevin L. Buford, Sr., was found guilty after a jury trial of facilitation of
felony murder, a Class A felony, and attempted especially aggravated robbery, a Class B
felony. On appeal, he raises numerous challenges to his convictions and sentencing,
including claims that: (1) the evidence is insufficient to support his convictions; (2) the trial
court erred by failing to suppress his pretrial statements to police; (3) his two convictions
should have been merged; and (4) the trial court erred at sentencing by finding him to be a
Range II offender, by imposing consecutive sentences, and by giving him excessive
sentences on both counts. After a careful review of the record and the arguments of the
parties, we conclude that the testimony given by one of the defendant’s accomplices is
sufficient to support his convictions and that this testimony is sufficiently corroborated by
other evidence. We conclude that the trial court did not err by denying the defendant’s
motion to suppress because any police misconduct that may have occurred was unintentional
and because the statements the defendant made to police were given after the defendant
received repeated Miranda warnings and occurred several hours after he was taken into
custody. We conclude that double jeopardy principles do not require the merger of the
defendant’s two convictions because the statutes under which the defendant was convicted
include different elements and therefore punish distinct offenses. Finally, after engaging in
de novo review of the defendant’s sentencing, we conclude that the defendant was properly
sentenced as a Range II offender, the sentences imposed by the trial court were not excessive,
and that the trial court did not err by ordering them to be served consecutively.
Consequently, the judgments of the trial court are affirmed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R. and D. K ELLY T HOMAS, J R., JJ., joined.

Dawn Deaner, District Public Defender, and Jeffrey A. DeVasher (on appeal), Jonathan F.
Wing, and Sunny Marie Eaton (at trial), Assistant Public Defenders, for the appellant, Kevin
L. Buford, Sr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Kathy Morante and
Amy Eisenbeck, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION


       The defendant and four co-defendants (including several members of the defendant’s
family) were indicted by a grand jury on May 9, 2008, on two counts – felony murder and
attempted especially aggravated robbery. The charges against the defendant stemmed from
his involvement in the death of the victim, Billy Jack Shane Tudor, who was slain during a
botched robbery attempt on January 21, 2008. Prior to the defendant’s trial, the defendant
moved to suppress pretrial statements he gave to police on the grounds that his first statement
resulted from an arrest without probable cause and was made before he was given his
Miranda warnings, and his subsequent statement resulted from this initial constitutionally-
tainted statement.

      At an initial hearing on the defendant’s motion to suppress, the following evidence
was presented:

        The State presented the testimony of Sergeant Chris Steele, the lead detective assigned
to the victim’s murder. Sergeant Steele testified that on January 21, 2008, he arrived at a
crime scene on Clarksville Pike. He testified that, by the time he arrived, some witnesses had
already given statements to other officers, and that he spoke to another witness by telephone.
Sergeant Steele testified that based on the information he received from these witnesses, he
was able to conclude that these witnesses heard several shots fired, and then saw several
individuals enter a vehicle. Sergeant Steele was informed that this vehicle was a gold sports
utility vehicle (“SUV”) and was given a complete license tag number. Sergeant Steele
testified that patrol officers on the scene had already searched computer records using the
gold SUV’s license tag number and discovered the names of the owners of the vehicle – the
defendant and his wife.

        Sergeant Steele testified that he directed other officers to go to the defendant’s house
and place it under surveillance. When those officers arrived, a gold SUV matching the
license tag number given to the officers was parked in front of the defendant’s house. A
short time later, the officers watching the defendant’s house contacted Sergeant Steele and
told him that a male and female had left the house and gotten into two separate vehicles,

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neither of which was the gold SUV. Sergeant Steele had the officers follow the vehicles.

        When Sergeant Steele was informed that both of the vehicles had driven a short
distance and pulled into a McDonald’s, Sergeant Steele requested the officers to pull both
vehicles over and perform an investigative stop. Sergeant Steele testified that he did not
intend to arrest either of the vehicles’ occupants at that time, but rather merely wanted to
determine the identities of the drivers. Sergeant Steele testified that he drove directly from
the crime scene to the McDonald’s parking lot and arrived about fifteen or twenty minutes
later. He testified that when he arrived, the defendant and his wife were at the scene and had
been detained. Sergeant Steele testified that Lieutenant Mackall was the officer in charge
of the scene, and that several other patrol officers were also present.

         Sergeant Steele testified that when he arrived the defendant was sitting in the back of
a police car in the McDonald’s parking lot. He testified that the door to the police car was
open and an officer was standing beside the defendant. Sergeant Steele testified that the
defendant’s wife was also in a patrol car. He testified that he did not believe that the
defendant was handcuffed. Sergeant Steele testified that he spoke to the defendant’s wife
first, informed her of her Miranda rights, and asked her who owned the gold SUV. The
defendant’s wife told him that she and the defendant owned it. Sergeant Steele testified that
he asked the defendant’s wife if she had driven the SUV on that day, and she responded that
she had not. The defendant’s wife further stated that no one other than her and her husband
ever had control over or drove their SUV.

        Sergeant Steele then went to another patrol car to speak with the defendant. Sergeant
Steele testified that after he gave the defendant his Miranda warnings, the defendant told him
that he had been driving the SUV that day and that no one else had ever been in control of
the vehicle. He testified that he asked the defendant if anyone else was with him during the
day, and the defendant initially told him no. However, later in the conversation, the
defendant stated that his son D’Angelo Buford had been with him. Sergeant Steele continued
to talk with the defendant and asked him if he would be willing to go to the police station to
give an interview on tape. Sergeant Steele testified that defendant was not under arrest but
was taken to the police station, where he was again given his Miranda warnings and made
a further statement.

       During his interview at the police station, the defendant again stated that he was the
only one driving the SUV and that his son D’Angelo was the only one with him. The
defendant stated that while he was parked at a gas station, he heard some gunshots, and then
a couple of kids suddenly ran from a nearby car wash area and jumped into his vehicle.
Sergeant Steele testified that defendant stated that these kids offered him a couple of dollars
if he would drive them to the Hines Park area and drop them off. Sergeant Steele testified

                                              -3-
that defendant told him that he had complied with their request. Sergeant Steele testified that
the defendant initially stated that he did not know the identities of these kids. Later,
however, the defendant stated that one might go by the name “Ray” and the other might go
by the name “Mac 10.” Sergeant Steele testified that he was able to determine through
further investigation that “Ray” was the street name of the defendant’s codefendant Raymond
Pirtle, and that “Mac 10” was the street name of another one of the defendant’s sons (also
a co-defendant). Sergeant Steele testified that after he finished interviewing the defendant,
the defendant was released. The defendant was indicted several days later.

        On cross-examination, Officer Steele testified that he arrived at the McDonald’s at
approximately 7 p.m., which was approximately an hour after the shooting. He clarified that
one of the primary witnesses he spoke to was Ms. Donna Jones. He testified that Ms. Jones
told him that she and her son had been walking out of a store when they heard a loud noise
that she thought might have been a gunshot. He testified that she stated that she immediately
grabbed her son went back into the store, and a short time afterward she saw three young
black males running in her direction. She saw these black males get into an SUV and wrote
down the license plate number. Sergeant Steele testified that Ms. Jones told him that she did
not see any of the men holding guns and did not see anyone in or around the SUV doing
anything illegal.

       Sergeant Steele further testified that the defendant and his wife were not allowed to
speak to anyone while they were in the patrol cars. He testified that at one point while he
was questioning the defendant he stated “we dragged you around a lot tonight, thanks for
bearing with us.” Sergeant Steele testified that the defendant did not sign a written Miranda
waiver until after he arrived at the police station. Sergeant Steele testified that the defendant
was questioned for a long time and was not released until the following morning. Sergeant
Steele testified that the defendant was not given the option of making an appointment to
speak with police at a later point in time.

        Following Sergeant Steele’s testimony, the defense presented the testimony of the
defendant’s wife, Ms. Tiffany Buford. The defendant’s wife testified that on the night in
question she, her husband, and her brother decided to go to McDonald’s. She testified that
she and her husband were in one car and her brother was in another car. When she arrived
at the McDonald’s, her brother had already been pulled over by police. She testified that she
saw police lights behind her, and when she pulled over, several police officers came over to
the car and told her to put her hands up and step out of the vehicle. She testified that there
were between ten to fifteen police officers there and that they had their weapons out and were
speaking in a loud tone of voice. She testified that the officers escorted her over to the
sidewalk, and afterward she saw them get her husband out of the car, pat him down, and
handcuff him before taking him to a police car. She testified that she did not remember

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whether any of the officers had touched her at any point, but she knew that she was asked to
sit in the back of a different police car and she complied with this request. She testified that
a detective came over to talk to her. She testified that afterward she was taken back to her
house, where the gold SUV was parked, and was asked to step outside and stand nearby
while the police searched the SUV. The defendant’s wife testified that the defendant
remained in the back of a patrol car throughout this time. The defendant’s wife testified that
after the police officers finished searching the SUV, she went inside with them while they
searched the house. The defendant’s wife testified that she did not feel like she was free to
leave at any point during the evening.

       On cross-examination, the defendant’s wife testified that her husband dropped her off
and picked her up from work that day in the gold SUV. She testified that the house where
she and her husband lived was owned by her parents, who lived there along with her brother.
She testified that about twenty minutes after she got home from work on the day in question
she and her husband left to go to McDonald’s. She testified that after returning her to her
house, the police asked for her consent to search the SUV and her parents’ house. Both she
and her parents gave consent for these searches. She testified that after the police finished
with these searches they left, and she stayed at the house while her husband went to the
police station. She testified that her brother was released after he was stopped in the
McDonald’s parking lot, and that he arrived at their house sometime later. She testified that
she believed that her husband received a ride home from the police the following morning.

        The next witness for the defense was Mr. Eric Whittemore, the defendant’s wife’s
brother. He testified that he was on his way to McDonald’s to meet his sister when he saw
several police vehicles. He testified that when he turned into the McDonald’s parking lot,
police officers turned on their blue lights and boxed him in. He testified that approximately
ten police officers approached his vehicle. These officers told him to put his hands out of
the car and open the door. When he got out of his vehicle the police officers searched him.
Afterward, they put him in the back seat of a police car. He testified that he was detained by
the police for a couple of hours in all and that he was not under the impression that he could
leave at any point.

       On cross-examination, the defendant’s wife’s brother testified that he did not ask to
leave at any point. He also testified that he was not informed that the police were
investigating a murder until after he arrived back at his house.

       Following this testimony, the trial court stated that it wanted to take testimony from
Lieutenant Mackall, the officer in charge of the scene during the stop at the McDonald’s
parking lot, who was out of state and had been unavailable as a witness. Proceedings were
continued while the State checked on his availability. At a further hearing on the defendant’s

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motion to suppress held on November 9, 2009, the trial court heard testimony from
Lieutenant Mackall and additional testimony from Sergeant Steele.

        Lieutenant Mackall testified that he had been unavailable to testify at the prior hearing
because he was in Quantico, Virginia at the FBI National Academy. He testified that he was
the officer in charge of the vehicular stops that occurred in the McDonald’s parking lot on
the day of the victim’s homicide. He testified that prior to conducting the stops he was in
touch with Detective Steele over the radio. He testified that a license tag number that he had
researched in conjunction with Detective Steele’s investigation had come back with an
address on Neely’s Bend Road. He testified that he dispatched officers to that address to
conduct surveillance. He testified that the officers on the scene told him that there were two
vehicles at that location, and that while they were watching one of these vehicles left. He
testified that he gave this information to Detective Steele and Detective Steele requested that
he stop the vehicle.

        Lieutenant Mackall testified that he ordered police officers to stop the vehicle. He
testified that the white female driver of that vehicle pulled into a McDonald’s parking lot and
was in the drive-through line when his officers pulled in behind her. Lieutenant Mackall
testified that he was not present when this vehicle was stopped, but that he arrived later and
observed that the vehicle was still in the drive-through line. Lieutenant Mackall testified that
he when he arrived the driver was standing outside of her vehicle, and she was not
handcuffed. He testified that none of the police officers had their weapons drawn when he
arrived. Lieutenant Mackall testified that he asked the female her name but did not ask her
any substantive questions about what she had been doing that night.

        Lieutenant Mackall testified that he was then informed that a second vehicle had left
the house on Neely Bend Road, and that it was being driven by a white male. He was
informed the vehicle, a truck, was traveling in the same direction, so he told his officers to
wait before they stopped it. Lieutenant Mackall testified that once the vehicle got close to
the McDonald’s, the officers activated their blue lights and pulled the truck over into the
McDonald’s parking lot. Lieutenant Mackall testified that none of the police officers present
at the scene had their guns drawn. He testified that he approached the second vehicle from
the front and asked the driver to step outside. He testified that he asked the gentleman if he
had “anything” on him, and the individual said no. He testified that he asked the individual
if he minded if the police patted him down. He testified that the individual said no.

       Next, Lieutenant Mackall testified that he patted down the defendant, and another
officer patted down the white male driver. Responding to a question from the court,
Lieutenant Mackall specifically testified that the defendant was a passenger in the second
vehicle (the one driven by the white male), and that both the defendant and the white male

                                               -6-
were standing together at some point. When he was informed that there had been some
earlier testimony by an individual to the effect that guns had been drawn, Lieutenant Mackall
responded that he was not there for the first vehicle stop (which according to his testimony
involved only the white female), but that when the second vehicle was stopped he did not
have his weapon out and he did not see anyone else with their weapon out. Lieutenant
Mackall testified that at no point did either the driver or the passenger of the second vehicle
state that he wanted to leave, that he wanted a lawyer, or that he did not want to be searched.
Lieutenant Mackall testified that he was not involved in questioning any of the individuals,
and he left the parking lot before any of the individuals who had been detained.

        On cross examination, Lieutenant Mackall testified that he did not make a report of
the incident and that he was working off his memory with respect to these events, which had
happened almost two years before. Lieutenant Mackall testified that he made it clear to the
officers involved that he wanted the two vehicles at issue stopped and that he was sure that
the officers had taken the stops seriously. He testified that when he arrived at the scene there
were several marked patrol cars present, but that they did not have their lights activated. He
testified that he would dispute any testimony that the defendant and his wife were together
in the first vehicle that had been stopped – he clearly remembered the defendant being in the
passenger side of the second vehicle. He testified that he detained the defendant until
Detective Steele arrived.

       Following this testimony, which was considered part of the State’s initial proof,
Sergeant Steele took the stand on behalf of the State in rebuttal. He testified that when he
arrived at the scene, no one was in handcuffs, none of the officers had their weapons drawn,
and that neither the defendant nor his wife ever indicated that they did not want to talk to
him. He testified that he did not tell them they were under arrest, that he read them their
Miranda rights only because of the seriousness of the offenses that were under investigation,
and that he explained to them why he was speaking to them. Sergeant Steele also stated that
he only spoke with the defendant outside of the McDonald’s and again at the police station;
there were no statements made in between those two points of time that might be introduced
into evidence.

        On cross-examination, Sergeant Steele stated that there were no witnesses to the actual
shooting, only witnesses who stated that a gold SUV with a specific tag number was seen
leaving the area. He testified that when he asked for the two vehicles to be pulled over for
an investigative stop, he was aware that these vehicles, which were leaving the residence
where the suspect vehicle was located, were not themselves the suspect vehicle. Sergeant
Steele testified that there was an officer with the defendant from the time he was stopped
until the time the defendant left the police station, and he testified that the defendant
remained in continuous police control throughout this time. He testified that all three of the

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detained individuals were kept separate from each other for investigative purposes.

        Following this testimony, the trial court heard oral argument concerning the
defendant’s motion to suppress. The State generally argued that the officers had performed
a mere investigative stop and that they had the “reasonable suspicion” necessary to do so.
The State further claimed that the defendant voluntarily participated in the investigation that
followed. Even if the initial stop was unreasonable, the State argued, there were no unlawful
fruits flowing from it, as the defendant was given his Miranda warnings and executed a
written Miranda waiver when he arrived at the police station. On the other hand, the
defendant argued that he was unlawfully arrested without probable cause in the McDonald’s
parking lot, and because of the short span of time that had passed between that unlawful
arrest and his questioning at the police station and lack of any intervening circumstances, the
statement given by the defendant at the police station was the fruit of this unlawful arrest.
After hearing these arguments, the trial court requested additional briefing.

        On December 9, 2009, the trial court issued a written order denying the defendant’s
motion to suppress. The trial court found that the defendant had been seized in the
McDonald’s parking lot, reasoning that a reasonable individual would not have felt free to
leave under the circumstances. The trial court found that this seizure was initially justifiable
as a valid investigative stop because the police had a reasonable suspicion that the occupants
of the vehicle may have been involved in a homicide. Consequently, the police were entitled
to briefly detain the defendant and interview him about the shooting (and the law did not
require the suppression of any statements he made to police at this time).

        However, the trial court further reasoned that investigative stops must be temporary
and made only for a limited purpose. While the defendant’s initial detention was justified
as a investigative stop, his continued detention over a period of many hours, and his transport
in the back of a police cruiser, first to his house, and then to the police station, “restrained
the Defendant to such a degree as to be more associated with a formal arrest, even if he was
not formally charged at th[at] point.” The trial court held that this de facto arrest of the
defendant was illegal because it was not supported by probable cause. However, the trial
court held that the defendant’s statements to the police made back at the police station should
not be suppressed because they were sufficiently voluntary so as to be purged of any taint
associated with the defendant’s prior seizure without probable cause. In reaching this
conclusion, the trial court relied on several factors, including the facts that: (1) the police
repeatedly gave the defendant his Miranda warnings; (2) the police did not intend to secure
a confession from the defendant when they took him to the station; and (3) considerable time
passed between the defendant’s unlawful arrest and his subsequent statements to police back
at the station.



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       The defendant was tried before a jury on February 8-12, 2008. At his trial, the
following evidence was presented:

        The first witness for the state was Mrs. Janice Tuders, the victim’s mother. She
testified that her son was employed at a lubrication shop and car wash on Clarksville
Highway. She testified that at the time of his death the victim was building an additional
building beside the car wash, and that he had been doing so for about six months. She
testified that her son was paid in cash each day for his work. She testified that almost every
evening her son would go to a market next to the car wash to buy cigarettes.

       The State’s second witness was Officer Byron Boelter of the Metropolitan Nashville
Police Department. Officer Boelter testified that he was working as a patrol officer on the
day in question, and that he received call to go to a location on Clarksville Highway because
an individual had been shot at a car wash. He testified that he was the first officer on the
scene. He testified that when he arrived, he saw a white male, dressed in all black, lying face
down about fifty yards from the car wash. Officer Boelter testified that this individual was
not breathing, his eyes were glassed over, and he had blood coming out of his mouth. Officer
Boelter testified that medical personnel arrived shortly afterward. When the medical
personnel rolled the victim onto his back and opened his shirt, Officer Boelter saw a small
hole in the victim’s chest that he believed was consistent with a gunshot wound. Officer
Boelter testified that he secured the crime scene after the victim was transported to
Vanderbilt hospital.

        On cross-examination, Officer Boelter testified that when he arrived at the crime
scene, the gas station next to the car wash and the market across the street from the car wash
were still open. He testified that there was probably a good amount of traffic on the road at
that time of day. He further testified that at least two of the nearby businesses had security
cameras.

       The State’s next witness was Officer Eric Richardson of the Metropolitan Nashville
Police Department. He testified that he was working patrol on the day in question and was
one of the first police officers to arrive at the crime scene. He testified that he secured the
crime scene and then searched the area for evidence. He testified that he found a shell casing
near the car wash, and a picture of this item was entered in the evidence.

       Following this testimony, the State presented Detective Norris Tarkington of the
Metropolitan Nashville Police Department. Detective Tarkington stated that he went to the
crime scene on the night in question to assist the investigating detectives. He testified that
he did a walk-through of the crime scene, and while doing so he found a spent shell casing
on the ground near the front door of the car wash. He also found a folded twenty dollar bill

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and a lottery ticket on the ground just to the left of the shell casing. Pictures of these items
were entered into evidence, along with some pictures of blood spatter and blood trails leading
toward the car wash. On cross-examination, Detective Tarkington testified that there was
considerable traffic on the nearby highway, and there was at least one surveillance camera
located in the nearby parking lot.

       The State’s next witnesses were Donna and Darnell Jones, the mother and son who
had been shopping at a nearby grocery store and who had called the police to report hearing
gunshots. These witnesses testified that they had just finished shopping at the grocery store
and were walking out when they suddenly heard gunshots. They rushed back inside, and
soon thereafter they saw three black men run past the front of the market and get into an
SUV, which immediately drove away. Darnell Jones testified that he took down the license
plate number of this SUV. In addition, he testified that during the ensuing police
investigation he was shown several photo lineups containing multiple individuals and that
he identified two individuals from those lineups as being two of the persons that he saw
running away that day.

        The State’s next witness was Mr. Raymond Pirtle, one of the defendant’s
codefendants. Mr. Pirtle testified that he had been a friend of the defendant’s sons,
D’Angelo Buford and Kevin Buford Junior, for many years but that he met the defendant for
the first time on the day of the shooting. Mr. Pirtle testified that some weeks before the
incident, he had bought a gun “off the streets” for his own protection. This gun was a 9mm
Smith & Wesson. Mr. Pirtle testified that about three weeks before the incident, he gave this
gun to D’Angelo Buford and Kevin Buford Junior, after they had asked him to borrow it.
He testified that on the day of the incident, Kevin Buford Junior came to his house and asked
him if he wanted to commit a robbery. Mr. Pirtle replied that he did. When he went outside,
the defendant and D’Angelo Buford were also present, waiting for him in a gold SUV. Mr.
Pirtle testified that the defendant was driving the vehicle. Mr. Pirtle testified that after he got
inside the SUV, all four of them drove to a Burger King. He testified that at some point
during this drive he heard D’Angelo Buford cock a gun.

        When they arrived at the Burger King, the defendant told Mr. Pirtle that a friend of
his had told him about a car lot that they could rob. Mr. Pirtle testified that the defendant told
the other three to act as if they wanted to buy a car, and then, when the owner let them in, to
rob him. Mr. Pirtle testified that he, Kevin Buford Junior, and D’Angelo Buford all got out
of the SUV to rob the car lot, and he saw D’Angelo Buford carrying a gun at that time. He
testified that as they approached the car lot, he told Kevin Buford Junior and D’Angelo
Buford that he had a bad feeling. They appeared to agree, and after about three minutes all
the three of them went back to the SUV. Mr. Pirtle testified that after they got back into the
SUV, the defendant continued to urge them to rob the car lot, describing various methods the

                                               -10-
three might use to get in. He testified that the three of them did not respond, and the
defendant got angry and sped away.

        Next, Mr. Pirtle testified that the defendant drove them to an Auto Zone, and told
them to wait in the SUV while he went inside to see if there were any surveillance cameras.
Mr. Pirtle testified that the defendant returned about five minutes later and drove away from
the Auto Zone. During this drive, the defendant made a phone call to someone and asked the
person on the other end of the call about robbing some white guy. Then the defendant pulled
into a gas station. The defendant told the rest of the group that they did not have enough
money to buy gas to return home, and he appeared unhappy about the situation. Mr. Pirtle
testified that the group then left to go pick up some marijuana from one of Mr. Pirtle’s
friends, known by the street moniker “Little E,” who lived in some nearby apartments. He
testified that he got out of the SUV alone, went to his friend’s house, and bought twenty
dollars worth of marijuana.

        Following this, the group drove to pick up Robert Buford, the defendant’s brother,
from his workplace. After picking him up, the defendant drove all five individuals to a liquor
store on Jefferson Street for the purpose of robbing one of the many people frequenting a
nearby business. Mr. Pirtle testified that the defendant told the group that he knew “a place
where a lot of Mexicans cash their checks,” and that he suggested that they all stay in front
of the liquor store, pretending to drink liquor. Mr. Pirtle testified that the defendant told the
group that he was going to tell them which individual to rob after he watched them cash their
checks. Mr. Pirtle testified that the defendant went into the liquor store and purchased some
vodka, which was sampled by the entire group. Mr. Pirtle testified that the group had been
waiting for about thirty minutes when the defendant stated that a woman who was cashing
her check was about to come out and instructed him, D’Angelo Buford, and Kevin Buford
Junior to rob her. Mr. Pirtle testified that when this woman came out of the store, the three
of them told the defendant that they were not going to rob her, and the defendant drove away.

       After the group left, various members put forward different suggestions concerning
the next place they should go to commit a robbery. Mr. Pirtle testified that eventually the
defendant told his son D’Angelo to call back “Little E” and request to buy some additional
marijuana so that the group could rob him. D’Angelo did so. Mr. Pirtle testified that the
defendant drove to a prearranged meeting location near a convenience store, and that Robert
Buford got out of the SUV carrying a gun. According to Mr. Pirtle’s testimony, the plan was
to allow “Little E” to approach the SUV, and then Robert Buford (whom the dealer had not
met) would come from behind and rob him – thereby fooling the dealer into believing that
he had been robbed by a random person. Mr. Pirtle testified that the group executed this
robbery as planned. Afterward, the defendant drove the SUV a short distance away and
picked up Robert Buford, who now had marijuana and some money.

                                              -11-
        Following this robbery, Mr. Pirtle testified that the defendant drove the group down
Clarksville highway. Mr. Pirtle testified that the defendant then calmly told the group “now
I got 15 minutes to do a robbery before I go and pick up my wife from work.” Mr. Pirtle
testified that at that point Kevin Buford Junior started acting “hyped up” – talking louder than
normal and “swaggering.” Mr. Pirtle testified that D’Angelo Buford tried to calm Kevin
Buford Junior down, but the defendant discouraged his efforts. Mr. Pirtle testified that the
defendant pulled into a car wash on Clarksville highway and parked the SUV. Mr. Pirtle
testified that they saw the victim walking by, and the defendant stated that the victim looked
like he had some money. Mr. Pirtle testified that the defendant told the others to go rob him.
After the victim walked past the SUV, Kevin Buford Junior and Robert Buford got out of the
car and followed him. Mr. Pirtle testified that Robert Buford had the gun with him at this
time. Mr. Pirtle testified that he also got out of the SUV and followed the other two to assist
them.

       Mr. Pirtle testified that the victim walked into a grocery store, and they waited for him
to come out. Mr. Pirtle testified that when the victim walked out of the store, Kevin Buford
Junior ran over and hit the victim in the head with a gun. Mr. Pirtle testified that the victim
turned around and swung at Kevin Buford Junior, and then Kevin Buford Junior shot the
victim. The victim ran toward the nearby car wash. Mr. Pirtle testified that he, Kevin Buford
Junior, and Robert Buford all got back into the SUV, and then the defendant drove them
away.

       Mr. Pirtle testified that during this car ride, the group was yelling at Kevin Buford
Junior for shooting the victim. Mr. Pirtle testified that Kevin Buford Junior responded “he
hit me, I did not know what to do.” The defendant drove D’Angelo Buford and Kevin
Buford Junior home. After dropping them off, the defendant drove Mr. Pirtle to a small
market. Mr. Pirtle testified that he gave the defendant five dollars, and the defendant went
into the store and bought him a cigarillo so that he could smoke the rest of his marijuana.
The defendant then drove Mr. Pirtle home. Mr. Pirtle testified that when he left, the
defendant and Robert Buford were still in the front seat of the SUV.

        Mr. Pirtle testified that the police came to his house and arrested him the next
morning. He testified that the police requested to search his house for the gun, and he gave
them permission to do so. Mr. Pirtle testified that he did not have the gun at that time, and
the last time he saw it, it was in D’Angelo Buford’s possession as he was being dropped off
after the shooting.

       Mr. Pirtle testified that he was taken back to the police station, where he generally told
police the truth about what happened on the day of the shooting – although he admitted that
he did not tell them every single detail because he did not want to get himself into more

                                              -12-
trouble. He testified that he had not been offered anything from the State in return for his
testimony, but he was hoping for some sort of leniency. He testified that he had been in
trouble at school, and sometimes suspended, for cutting classes, fighting, and possessing a
weapon. In conclusion, Mr. Pirtle testified that the defendant was the person who had
directed all of the various participants to do the various robberies on the day in question,
including the attempted robbery of the victim.

        On cross examination, Mr. Pirtle acknowledged that he was presently charged with
first degree murder, that the penalty for first degree murder was life in prison, and that he
understood that a sentence of life in prison required him to serve at least fifty-one calendar
years. He admitted that while he had no deal with the prosecution, he was aware that some
of the people prosecuting the defendant would also be deciding whether he received a deal
and that he was in fact hoping to receive a deal.

        Mr. Pirtle also admitted that in January of 2008, he was a member of the Gangster
Disciples and was living a “gangbanger’s life.” He admitted that he willingly joined Kevin
Buford Junior, D’Angelo Buford, and the defendant on the day in question for the purpose
of committing robberies, and he was a willing participant in the robbery and attempted
robberies that were committed that day. He admitted that he had been previously arrested,
that he had been disciplined at school on numerous occasions, and that he had been
disciplined while in police custody for committing various criminal and antisocial acts. Mr.
Pirtle also discussed some specific instances of the misbehavior that had resulted in his
receiving this discipline. He claimed to have left the Gangster Disciplines the year before,
and he testified that he would not lie to protect his former gang members.

         Mr. Pirtle testified that the defendant never held the gun on the day of the robberies.
He testified that he never saw Kevin Buford Junior tell the victim to give him any money and
never saw the victim give anything to him. He testified that Kevin Buford Junior did not get
anything from the victim. He testified that the defendant did not know that anyone had been
shot until the group returned to the SUV after the shooting.

       Mr. Pirtle testified that although he had smoked marihuana and drunk vodka on the
day of the robberies, this combination had not made it difficult for him to remember events
as they happened that day. He admitted that he had probably told a doctor something to the
contrary – that he had “blacked out” on the day in question – during his mental health
evaluation but offered no explanation for why he had done so. Defense counsel also
impeached Mr. Pirtle with numerous prior statements he had made – both to police during
the investigation and under oath at an earlier hearing – that were inconsistent with his trial
testimony. Mr. Pirtle testified that he did not know why the defendant had stated that the
group did not have enough money for gas to return home, given that the defendant had

                                              -13-
enough money to purchase vodka at the liquor store and that the defendant had driven them
home after the shooting without filling up the SUV.

        On redirect examination, Mr. Pirtle pointed out that the drug dealer the group had
robbed on the day of the shooting was a fellow Gangster Disciples member. Mr. Pirtle also
testified that D’Angelo Buford and Kevin Buford Junior were members of the Gangster
Disciples. Mr. Pirtle explained that when he was answering questions posed by his doctor
and the police, he was not under oath, as he was when he gave his direct testimony. Next,
the prosecutor went over statements made by Mr. Pirtle at the earlier hearing in detail and
generally attempted to explain away the apparent inconsistencies – partly on the basis that
Mr. Pirtle’s testimony at the earlier hearing was much more brief and less detailed. The
prosecutor also emphasized the numerous statements made by Mr. Pirtle during his direct
testimony that were consistent with his earlier testimony.

        Following Mr. Pirtle’s testimony, the defendant’s wife’s supervisor from the daycare
center where she had worked in 2008 took the stand. The defendant’s wife’s supervisor
testified that the defendant generally dropped off and picked up his wife from work. She
testified that when he did so the defendant drove an SUV. The supervisor testified that on
the night in question, the defendant’s wife was scheduled to get off work at 6:30 p.m. The
supervisor testified that the defendant picked her up slightly later than usual.

       Following this testimony, Detective Harold Haney of the Nashville Metropolitan
Police Department took the stand. He testified that he had retrieved video footage from a
surveillance system at a nearby express lubrication facility after the crime. He identified a
DVD he had created containing a copy of this video, which was entered in the evidence and
played for the jury.

        The video depicts a parking lot in the foreground with a car wash running lengthwise
in the background. Roughly seven and half minutes into this video, an individual can be seen
walking from an area off-screen behind the car wash, through the car wash itself, and then
through the parking lot before finally walking off the bottom of the screen on the left hand
side. Approximately twenty seconds later, two other individuals can be seen walking behind
the length of the car wash, then following roughly the same path as the first individual
through the car wash itself and down through the parking lot. One of these two individuals
appears to stagger – as if laughing or intoxicated – while the pair are in the parking lot before
they also disappear off the bottom of the left hand side of the screen. A few seconds later,
a fourth individual walks through a car wash bay and walks off the right hand side of the
screen.

       Approximately a minute later, the video shows an individual walking up from the

                                              -14-
bottom left hand side of the screen through the parking lot, traversing approximately the
same path taken by the first three individuals, discussed above, but in reverse. A second
individual walks close behind the first one. Midway through the parking lot, the second
individual appears to hit the first individual in the head from behind. As the first individual
tries to run away, the second individual appears to point an object at the first individual and
shoot him. The first individual staggers, and then runs through the car wash and off the right
hand side of the screen. The third individual runs along the same route from the bottom of
the screen and joins the second individual, and then the pair run toward the car wash before
suddenly turning left and running off the left hand side of the screen. This entire series of
events takes place in less than fifteen seconds.

        After showing this video, the State called Detective Rob Hansen of the Metropolitan
Nashville Police Department, who testified that he assisted the lead detective on the case by
showing three photographic lineups to witnesses Donna Jones and Donnell Jones. He
testified that each lineup consisted of six photographs, which were matched by
demographics, hair and skin tone. He testified that he prepared and showed the witnesses
these lineups – one including the defendant, one including Kevin Buford Junior, and one
including D’Angelo Buford. He testified that Donna Jones was unable to make any
identification from these lineups, but that Donnell Jones was able to identify Kevin Buford
Junior. He testified that he was aware that Donnell Jones also identified Mr. Raymond Pirtle
from an additional lineup that he did not administer. Detective Hansen testified that he went
with other officers to Raymond Pirtle’s house to arrest him. When they arrived, they
received permission from Mr. Pirtle’s aunt to search the house for a gun. He testified that
they did not find anything during their search of the house. On cross-examination, Detective
Hanson clarified that no witness had identified the defendant from a lineup.

        The State’s next witness was Ms. Jenness Schuhnann, who worked as a crime scene
technician for the Nashville Metropolitan Police Department on the night in question. Ms.
Schuhnann testified that she processed the crime scene on Clarksville Pike where the victim
was killed and that she took photographs and collected evidence there. She identified items
she had collected from various sealed evidence bags – including a twenty dollar bill, a lottery
ticket, a knit cap, and some shell casings – and these items were entered into evidence. Ms.
Schuhnann explained where these items were found at the crime scene, and she identified
photographs she had taken of them in situ. She also identified additional photographs she
had taken of the crime scene, including photographs of the car wash and nearby buildings
that showed different perspectives.

        The State also called Dr. Kovach, a clinical psychologist at the Middle Tennessee
Health Institute in Nashville who had performed a mental health evaluation of Mr. Raymond
Pirtle. Dr. Kovach testified that the purpose of his evaluation was to determine whether Mr.

                                             -15-
Pirtle needed to be committed. Following the evaluation, he concluded that commitment
was not necessary. In conjunction with this evaluation, the doctor testified that he performed
a brief interview with Mr. Pirtle concerning the events that had occurred on the day of the
shooting. Dr. Kovach testified that Mr. Pirtle told him that he was in a car with his friend
and that he heard his friend’s father say “go get him” before the murder was committed.

        On cross-examination, Dr. Kovach stated that Mr. Pirtle told him during the interview
that he was innocent, that he had never belonged to a gang, that he had robbed someone two
or three times before, and that he had blacked out on the day in question due to his heavy
consumption of alcohol. The doctor also testified that his notes did not reflect that Mr. Pirtle
had ever told him that the group had attempted other robberies on that day or that the
defendant had ever told him “we have fifteen minutes to do a robbery.”

       Next, the State called Mr. Johnny Lawrence of the Nashville Metropolitan Police
Department, who worked with Ms. Schuhnann as a crime scene technician on the night in
question. He testified that he examined and tested an SUV for fingerprints and was able to
recover several sets, which were sent back to the crime lab for identification. These prints
were entered into evidence.

        The following day, the State called Ms. Lorita Marsh, an identification analyst at the
Metropolitan Nashville Police Department who was qualified as an expert in the field of
latent print examination. She testified that she had examined certain fingerprints that were
lifted by Mr. Johnny Lawrence from the doors and handles of the SUV after the shooting.
She testified that after analyzing these prints she was able to conclude that four of the prints
matched Robert Buford, two prints belonged to Kevin L. Buford, and seven prints belonged
to Mr. Raymond Pirtle.

        The State also presented the testimony of Sergeant Chris Steele. Detective Steele
again testified that he was the lead detective in the case involving the victim’s shooting.
Detective Steele went over various crime scene diagrams with the jury and discussed the
location of the victim’s body and other evidence. He also discussed how he (1) interviewed
Donnell and Donna Jones, (2) received and ran the license tag of the gold SUV, (3) came to
order the defendant’s vehicle to be stopped, and (4) interviewed the defendant following this
stop – all in a manner that was consistent with his testimony at the hearing on the defendant’s
motion to suppress. Following this testimony, a videotape of the defendant’s tape recorded
interview at the police station was played for the jury. While questioning the witness
concerning this interview, the prosecutor emphasized portions of the tape where the
defendant initially admitted that someone named “Mac 10” had been in the SUV with him
earlier in the day, and later claimed that someone named “Little E” had gotten in the car with
him. Detective Steele testified that he later determined that “Mac 10” was the street name

                                              -16-
of the defendant’s son, Kevin Buford Junior, and that he never identified anyone named
“Little E.” Detective Steele testified that the defendant was released following this
interview. Detective Steele testified that the defendant was later indicted and arrested (on
February 1, 2008), and that following his arrest he was interviewed again. A videotape of
this interview was also played for the jury.

       On cross-examination, Detective Steele testified that the defendant had been honest
during his interview when he (1) placed himself in the SUV on the day in question, (2) told
him that he was driving it, and (3) admitted that his son D’Angelo had also been in the SUV
as a passenger. Detective Steele further testified that the defendant never admitted in either
police interview that he (1) had ever planned a robbery that day, (2) knew a robbery was
about to occur, (3) knew that anyone had a gun, or (4) had pointed out the victim to the
group. Detective Steele testified that when he interviewed Mr. Raymond Pirtle during his
investigation, Mr. Pirtle did not tell him that the defendant had told him and Kevin Buford
Junior to commit a robbery and did not mention their having committed a robbery earlier in
the day or having engaged in any scouting activities.

        Finally, the State presented the testimony of Dr. Sandra Thomas, a forensic
pathologist at the Davidson County Medical Examiner’s Office, who was qualified as an
expert in the field of forensic pathology. Dr. Thomas testified that she had reviewed a report
of the autopsy that was performed on the victim by a colleague who had since moved out of
state. Dr. Thomas stated that the victim had died of a single gunshot wound to the chest and
that the bullet had pierced his heart, diaphragm, and spleen. Dr. Thomas stated that it would
have taken the victim several minutes to die from this injury and that it would have been
possible for him to move during this time.

       Following this testimony, the State rested. The defense raised a motion for judgment
of acquittal on the grounds that the proof of the elements of the offenses was entirely
dependant on Mr. Pirtle’s testimony, which was not reliable. The trial court denied this
motion. The defendant was advised of and waived his right to testify in his own defense
pursuant to the procedures described in Momon v. State, 18 S.W.3d 152, 162-64 (Tenn.
1999), and the defense rested without offering any proof.

      Each side presented closing arguments. During the State’s rebuttal argument, the
defendant made two objections, which were overruled by the trial court. As the transcript
provides:

       [General Morante]: Now, let’s talk some about Raymond Pirtle, because there
       isn’t any question that he is at the center of this case. Let’s talk about the deal.
       There is no deal. I have told Mr. Pirtle that if he testifies truthfully, not if he

                                              -17-
       makes me happy as [defense counsel] wants to make it sound, but if he
       testified truthfully I, the State, will consider that in determining if he will get
       some sort of reduced offer and I am here to tell you that that is exactly what I
       am going to do.

       [Defense counsel objects and is overruled by the trial court.]

       [General Morante]: I am here to tell you that he does not have a deal, but he
       was promised consideration and what that means is it will be considered, if in
       fact he testifies truthfully it will be considered in his favor and you know
       what? Sometimes we have to do that. It doesn’t mean that the person who
       comes in here and testifies even if he testifies truthfully is going to walk, that
       is not what it means.

       [Defense counsel]: Your honor, I am going to object to that.

       [Trial Court]: You cannot get into what it is, but she can make an argument in
       rebuttle –

       [Defense counsel]: Yes sir.

       [Trial Court]: – to what you suggested, [defense counsel], and so continue on,
       please.

Following this interchange the prosecution finished its rebuttal without further objection.

       The following day the trial court instructed the jury and the case was submitted. The
jury deliberated for the remainder of that day, took a break for the evening, and returned to
deliberate the following day. At 2:03 p.m. on February 12, 2008, the jury returned with a
verdict on Count I of guilty of the lesser-included offense of facilitation to commit felony
murder, and on Count II guilty as charged of attempted especially aggravated robbery.

        The defendant was sentenced on March 12, 2010. At the sentencing hearing, the trial
court heard testimony from Mr. Hugh Coleman, an investigator for the District Attorney’s
Office, who testified that he had researched the employment history of the defendant and was
unable to locate any record of the defendant’s having been employed. Ms. Vicki Choisser,
the officer who had prepared the defendant’s presentence report, also testified. Ms. Choisser
testified that the defendant told her he had worked at a construction company called Triple
J, but she had been unable to locate that company for purposes of verifying his employment.
She further testified that the defendant claimed to have worked other places as well but

                                              -18-
would not tell her when or where. On cross-examination, Ms. Choisser stated that in her
experience there are many construction companies whose information is not readily
available. In addition, the victim’s brother, the victim’s sister, and the victim’s mother each
testified as to the tremendous loss their family and the victim’s children had suffered as a
result of the victim’s murder.

        In response, the defendant called another one of his brothers, Mr. Rodney Buford, to
testify on his behalf. Mr. Rodney Buford testified that the defendant had been whipped by
his mother, his grandmother, and his step-dad when he was growing up. Mr. Rodney Buford
testified that the defendant would cry during these spankings, which were sometimes
administered with switches or belts. Mr. Rodney Buford also testified that the defendant had
a different father from the other children in the family and was sometimes treated poorly or
not permitted to attend family gatherings for this reason. In addition, the defendant was born
with a defect in his leg and had always been self-conscious about his short height, suffering
from something “sort of like the Neapolitan complex.” The witness testified that the
defendant was not a heartless person but that he never stood a chance growing up in such a
dysfunctional family. He testified that he had been in prison himself for the last twenty-one
years for felony murder. On cross-examination, the witness testified that he had not taught
the defendant how to commit aggravated robberies and that robbery was not the family
business.

        The defendant also presented the testimony of Mr. Bobby Hancock, his biological
father. Mr. Hancock testified that he was not involved in the defendant’s life until the
defendant was around twenty years old. He testified that the defendant came and visited him
frequently and spoke about his work, including construction work and a job at a sports bar.
He testified that the defendant was never unruly or disrespectful and seemed concerned that
his children not follow in his footsteps.

        Following this, the defendant made a statement in allocution. The defendant
apologized to the family of the victim for the tragic accident and asked them to forgive him
for his negligent and irresponsible actions. He told his family that he loved them. He stated
that he did not feel that he should be held responsible as a facilitator of the crime – he did not
feel that was just, and he requested that the court not use his past mistakes as a rope to bind
him because he did not intend for any of the things that happened to occur. Following this
testimony the court heard arguments from the parties.

        The State argued that the defendant should be sentenced as a Range II offender. In
addition, the State argued that numerous enhancement factors were applicable: (1) that the
defendant had a history of criminal convictions beyond that necessary to establish his range;
(2) that he was the leader of an offense involving two or more criminal actors; (3) that he had

                                               -19-
no hesitation about committing a crime when the risk to human life was high; and (4) that he
was an adult who provided an illegal drug to a minor. The State also requested consecutive
sentencing on the grounds that (1) the defendant was a career criminal who had knowingly
devoted his life to criminal acts as a major source of livelihood, and (2) the defendant was
a dangerous offender whose behavior indicated little or no regard for human life.

       The defense argued that the defendant should not be sentenced consecutively because
he was found guilty of only facilitation of felony murder, and thus the State was essentially
“asking that the same underlying felony that this individual was found guilty of facilitating
be run consecutive to that facilitation of first degree murder.” Concerning the enhancement
factors suggested by the State, the defendant argued that his sentence could not be enhanced
on the grounds that he had no hesitation about committing a crime when the risk to human
life was high because the risk to human life posed by the defendant’s acts was already
inherent in the elements of the offenses of which he stood convicted. The defendant also
submitted various mitigating factors but did not elaborate on these at the hearing.

         After hearing the parties’ arguments, the trial court summarized the evidence received
at trial and at the sentencing hearing. The trial court rejected all but one of the defendant’s
proffered mitigating factors – including the factors involving playing a minor role in the
commission of the offense and having steady employment. The trial court did find that the
defendant came from a dysfunctional family and had an abusive background but gave this
factor little weight in light of the defendant’s age and the fact that the abuse had occurred so
long ago. The trial court applied two enhancement factors. The trial court found that the
defendant had a history of criminal convictions above that necessary to establish his range,
stating that “[h]e has been getting charged and convicted of misdemeanors and felonies for
over twenty years, just over and over.” The trial court also found that the defendant was a
leader in the commission of the offenses, based on the fact that he was twenty years older
than the shooter and there was testimony that he had driven the younger individuals around.
The trial court found that these two enhancement factors significantly outweighed the
mitigating factors.

        The trial court found that the defendant was a Range II offender and sentenced him
to forty years – at the high end of his range – on his Class A felony conviction for facilitation
of felony murder. The trial court sentenced him to the maximum sentence, twenty years, on
his Class B attempted especially aggravated robbery conviction, stating that it was
“unbelievable” that such a serious crime should be committed “over this little pack of
cigarettes and just a few dollars.” The trial court ordered these sentences to be served
consecutively based on the fact that the defendant was a professional criminal as described
in Tennessee Code Annotated section 40-35-115.



                                              -20-
       The defendant filed a timely motion for new trial raising numerous claims. The trial
court issued an order denying the motion for a new trial on June 11, 2010. The defendant
filed a timely notice of appeal on July 12, 2010. After carefully reviewing the parties’
arguments and submissions, our decision follows.

                                          ANALYSIS

        The defendant raises numerous challenges to his convictions and sentences. He
claims that the evidence is insufficient to support his convictions. He claims that the trial
court erred by failing to suppress the statements he made to police on the evening of the
shooting because they were the fruits of an unlawful arrest. He claims that the trial court
erred by permitting Mr. Pirtle to testify that the defendant and his co-defendants
contemplated additional robberies and committed an additional robbery on the day of the
shooting. He claims that the trial court erred by permitting the prosecutor to vouch for the
credibility of Mr. Pirtle in closing arguments. He claims that the trial court erred by failing
to merge his two convictions. Finally, he claims his overall sentence was excessive and
raises a variety of challenges to his sentencing. We find each of these claims to be without
merit.

                                                I.

        The defendant claims that the evidence is insufficient to support his convictions for
several different reasons. He claims that there is no proof in the record that establishes his
mens rea with respect to his facilitation of felony murder conviction. Concerning his
attempted especially aggravated robbery conviction, he claims that there is no evidence that
he solicited, directed, aided, or attempted to aid another in the commission of that offense,
as required to satisfy the relevant statute establishing his criminal responsibility for another’s
conduct. Finally, he claims that his convictions rest solely on the uncorroborated testimony
of his accomplice, Mr. Pirtle. However, after carefully reviewing the record, we conclude
that sufficient evidence was presented to support each of his convictions.

        When a defendant challenges the sufficiency of the evidence to support his
convictions, the ultimate question is “whether, after reviewing the evidence in the light most
favorable to the State, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011); see also
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). A jury’s verdict of
guilt strips the defendant of his presumption of innocence and raises a presumption of guilt.
Sisk, 343 S.W.3d at 65. Because the jury is tasked with the primary responsibility of
“assess[ing] the credibility of the witnesses . . . address[ing] the weight to be given their
testimony, and . . . reconcil[ing] any conflicts in the proof,” its decisions concerning these

                                              -21-
matters will not be revisited on appeal. Id. “[T]he criminal defendant bears the burden on
appeal of showing that the evidence was legally insufficient to sustain a guilty verdict.” Id.
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The defendant in this case
has failed to meet that burden.

                                              A.

        The defendant was convicted of facilitation of the commission of first degree (felony)
murder. In order to be guilty of the crime of facilitation of a felony, the person must
“knowingly furnish[] substantial assistance in the commission of the felony” to another while
“knowing that [the individual] intends to commit [the] specific felony.” T.C.A. §
39-11-403(a) (2008). Facilitation of a felony is punished one classification lower than the
underlying felony. T.C.A. § 39-11-403(b). To commit facilitation, the individual need not
possess the higer level of mens rea necessary to establish the greater culpability of direct
criminal responsibility for the conduct of another, viz., “[a]cting with intent to promote or
assist the commission of the offense, or to benefit in the proceeds or results of the offense,
the person solicits, directs, aids, or attempts to aid another person to commit the offense.”
T.C.A. § 39-11-402(2).

        The particular felony underlying this defendant’s facilitation conviction, first degree
(felony) murder, is defined as “[a] killing of another committed in the perpetration of or
attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary,
theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child,
aggravated rape of a child or aircraft piracy.” T.C.A. § 39-13-202(a)(2). “No culpable
mental state is required for conviction under subdivision (a)(2) . . . except the intent to
commit the enumerated offenses or acts in those subdivisions.” The particular offense that
serves as the basis for the underlying felony murder charge is attempted especially
aggravated robbery. A crime is attempted when an individual, “acting with the kind of
culpability otherwise required for the offense . . . [a]cts with intent to complete a course of
action or cause a result that would constitute the offense, under the circumstances
surrounding the conduct as the person believes them to be, and the conduct constitutes a
substantial step toward the commission of the offense.” T.C.A. § 39-12-101(c). “Robbery
is the intentional or knowing theft of property from the person of another by violence or
putting the person in fear.” T.C.A. § 39-13-401.              Robbery is aggravated if it is
“accomplished 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 “the victim suffers serious
bodily injury.” T.C.A. § 39-13-402. Robbery is especially aggravated if it is
“[a]ccomplished with a deadly weapon . . . and . . . the victim suffers serious bodily injury.”
T.C.A. § 39-13-403.



                                              -22-
       Thus, to establish that the defendant was guilty of facilitation of felony murder, the
State was required to prove that the defendant knew that an individual intended to attempt
to commit a robbery, that the defendant furnished substantial assistance to that individual,
and that person was killed during the attempted perpetration of that robbery. There is ample
evidence in the record to support each of these elements.

        Standing alone, the testimony of Mr. Pirtle supports the jury’s conclusion with respect
to all of the necessary elements of the offense. With respect to the actus reus required by
statute, Mr. Pirtle testified that the defendant drove him, the defendant’s brother, and the
defendant’s two sons to an area near a car wash for purposes of attempting to rob an
individual. The defendant’s act of driving to the crime scene provided substantial assistance
to the others in the performance of the attempted robbery. Moreover, Mr. Pirtle’s testimony
would support a conclusion by a reasonable jury that the defendant provided further
assistance by planning the robbery, casing the area, and then acting as a lookout and getaway
driver for the group.

        Concerning mens rea, the jury was free to conclude that the defendant was aware that
the individuals he was assisting intended to commit a robbery based on Mr. Pirtle’s testimony
that: (1) one of the defendant’s sons cocked a gun while they were riding in the car; (2) the
defendant drove the group to numerous locations looking for stores or individuals to rob; and
(3) the defendant was present while the group had various discussions and arguments over
potential targets along the way. Indeed, Mr. Pirtle’s testimony might have sufficed to support
a jury’s conclusion that the defendant was guilty of the greater crime of felony murder as a
principal – on the grounds of criminal responsibility for the conduct of another – in that Mr.
Pirtle testified that the defendant additionally incited the group to commit robberies on
several occasions, became angry when they failed to do so, and personally selected several
of the group’s targets and attempted targets. However, the jury was free to credit certain
portions of Mr. Pirtle’s testimony while rejecting others and apparently did so in this case.

       Mr. Pirtle’s testimony was corroborated in numerous respects by the testimony of
other witnesses and forensic evidence. Witnesses in the area heard shots and saw the
defendant’s SUV leave the area of the shooting after three individuals jumped inside. The
defendant himself acknowledged being at the crime scene and giving a ride to three
individuals, two of whom were later identified as individuals who had fled the scene of the
crime. Fingerprints from several of the suspects were found on or near the doors of
defendant’s SUV. All of this evidence supports the jury’s conclusion that the defendant
provided substantial assistance to individuals that he knew intended to attempt a robbery.
Considered as a whole, the defendant has failed to carry his burden of showing that no
reasonable jury could have found the essential elements of the offense of facilitation to
commit felony murder beyond a reasonable doubt.

                                             -23-
                                              B.

        The defendant also challenges his conviction of attempted especially aggravated
robbery. However, the same evidence that supports his conviction for facilitation of felony
murder also supports the jury’s conclusion that he was guilty of attempted especially
aggravated robbery on the grounds of criminally responsibility for the conduct of others. As
discussed above, Mr. Pirtle’s testimony supports a reasonable jury’s conclusion that the
defendant incited the group to commit robberies (and further became angry when they failed
to follow his instructions) while providing them substantial assistance in the commission of
the robberies by driving them to various locations and giving them advice. This would
suffice to establish the defendant’s responsibility for the criminal actions committed by the
other members of the group.

        Nonetheless, the defendant argues that the evidence is insufficient to establish that he
committed attempted especially aggravated robbery on two different grounds. First, he
claims that there is no evidence in the record establishing that Kevin Buford Junior attempted
to rob the victim. In this regard, the defendant cites Mr. Pirtle’s testimony given on cross-
examination to the effect that he did not hear Kevin Buford Junior demand money from the
victim, nor did he see the victim give Kevin Buford Junior any money. However, the
absence of these specific pieces of potential evidence is of little significance in light of the
considerable evidence, provided by Mr. Pirtle during his direct testimony, supporting a
conclusion that he, Kevin Buford Junior, and the defendant intended to rob the victim on the
day in question, and in fact attempted to do so. At most, these concessions made by Mr.
Pirtle on cross-examination would suffice to raise a conflict between the inferences to be
drawn from the evidence presented at trial – but an appellate court reviewing a sufficiency
of the evidence claim may not revisit issues concerning the resolution of conflicts in the
evidence or the inferences to be drawn from it, as these tasks remain exclusively the province
of the jury. Sisk, 343 S.W.3d at 65. In any event, even if the defendant was correct in his
contention that Kevin Buford Junior never demanded any money and the victim never gave
anything of value to him, these facts do not disprove attempted robbery – they are consistent
with a conclusion that a robbery was attempted but failed at an early stage.

       The defendant’s second argument is that there is no evidence establishing his mens
rea with respect to the attempted robbery. In this regard, the defendant argues that the
undisputed evidence showed that he was sitting across the street in his vehicle at the time the
robbery occurred, and he argues that the law is clear that a defendant’s mere presence in the
area during the commission of a crime is insufficient to support a conviction under a theory
of criminal responsibility – citing State v. Sherman, 266 S.W.3d 395, 408 (Tenn. 2008).
However, the defendant’s argument simply ignores all of the other evidence that was
presented in this case (including the remainder of Mr. Pirtle’s testimony), which supports a

                                              -24-
conclusion that the defendant was not merely “in the area” but intended, planned, and incited
the attempted robbery from start to finish – in addition to participating in the attempted
robbery directly by driving the group to the crime scene and acting as a lookout and getaway
driver.
        The defendant also urges the evidence is insufficient to establish his mens rea because
“the jury, by finding [the defendant] guilty of the lesser included offense of facilitation of
felony murder in count 1, determined that he did not have the intent required for criminal
responsibility.” This argument must fail because it is based on an apparent inconsistency
between the jury’s verdicts on a multiple count indictment. Inconsistent jury verdicts are an
accepted fact of our legal system and have never, standing alone, provided any legal basis
for a challenging the sufficiency of the evidence used to convict a defendant. See, e.g., State
v. Emmett LeJuan Harvell and Bardell Nelson Joseph, No. M2009-01168-CCA-R3-CD,
2010 Tenn. Crim. App. LEXIS 1004, at ** 10-13 (Tenn. Crim. App. Nov. 29, 2010). As this
court has explained:
        Consistency in verdicts for multiple count indictments is unnecessary as each
        count is a separate indictment. Therein lies the essential reasoning. An
        acquittal on one count cannot be considered res judicata to another count even
        though both counts stem from the same criminal transaction. This Court will
        not upset a seemingly inconsistent verdict by speculating as to the jury's
        reasoning if we are satisfied that the evidence establishes guilt of the offense
        upon which the conviction was returned.

State v. Gennoe, 851 S.W.2d 833, 836 (Tenn. Crim. App. 1992). Reviewing the record as
a whole, the evidence amply supports a reasonable jury’s conclusion that the defendant was
guilty of attempted especially aggravated robbery.

                                               C.

       Finally, the defendant challenges his conviction on the grounds that the evidence
necessary to support the jury’s conclusion that he had pre-existing knowledge that his co-
defendants intended to attempt a robbery on the day in question consists solely of the
uncorroborated and unreliable testimony of his accomplice, Mr. Pirtle. However, the
corroboration requirement concerning accomplice testimony does not require corroboration
with respect to each element of the offense charged. See, e.g., Sherrill v. State, 321 S.W.2d
811, 815 (Tenn. 1959) (“[C]orroboration need not of itself be adequate to support a
conviction.”). Rather, the longstanding rule is that corroborating evidence must only
“connect, or tend to connect the defendant with the commission of the crime charged.” Id.
The corroborating evidence, taken by itself, must: (1) “lead[] to the inference . . . that a crime
had been committed,” and (2) “connect the defendant with the commission of the crime
charged” by including “some fact establishing the defendant’s identity.” State v. Bigbee, 885

                                              -25-
S.W.2d 797, 803 (Tenn. 1994). The corroborating evidence may be direct evidence or
entirely circumstantial. See Sherrill, 321 S.W.2d at 815. Moreover, the evidence “need not
be conclusive,” and when considered by itself may be “slight and entitled . . . to but little
consideration.” Bigbee, 885 S.W.2d at 803.

        After reviewing the record, we are satisfied that the State presented sufficient
independent corroborating evidence for a reasonable jury to be able to infer that the crimes
at issue were committed and that the defendant was connected to them. First, the State
presented abundant direct and circumstantial evidence that an attempted especially
aggravated robbery occurred – and that a felony murder also occurred when the victim died
as a result of this attempt. Police investigators and medical personnel testified that they
responded to a reported shooting on the night in question and found the victim unresponsive
and bleeding on the ground. Spent bullet casings were found on the ground nearby, along
with a twenty dollar bill and a lottery ticket. A videotape taken by a nearby surveillance
camera shows an individual being followed by two individuals through a parking lot. A short
time later, that tape shows the same individual returning before one of the two individuals
attempts to grab him from behind and appears to shoot him as he tries to run away. By
presenting this and other evidence, the State sufficiently corroborated Mr. Pirtle’s testimony
that the crimes at issue actually occurred.

        Second, the State presented sufficient corroborating evidence linking the defendant
to the crimes. In an interview with police, the defendant admitted that: (1) he had been the
sole person in control of his SUV on the day in question; (2) he was present at the crime
scene and was behind the wheel of his SUV at the time of the shooting; (3) he was aware that
a shooting had occurred; and (4) he had given a ride to individuals who ran to his car after
he heard the shots fired. Even absent his own statements, there was significant evidence
linking this specific defendant to the crimes. Witnesses saw three individuals fleeing the
scene of the shooting jump into an SUV, and one witness saw and recorded that SUV’s
license plate number. A computer search of that license plate number conducted by police
revealed that the SUV was registered to the defendant. One witness was later able to identify
two of the three individuals fleeing the scene from photo lineups. Fingerprints belonging to
several individuals were found on the outside of the defendant’s SUV by forensic examiners.
All but one of the individuals whom witnesses identified as jumping into the defendant’s
SUV at the crime scene and/or whose fingerprints were found on the outside of the
defendant’s SUV on the day of the shooting were related to the defendant by blood.
Although this evidence is circumstantial, all of it specifically identifies the defendant as an
individual linked to the crimes. The law of concerning corroboration of accomplice
testimony requires no more.

       Because the evidence presented by the State raises an inference that the crimes

                                             -26-
attested to by the defendant’s accomplice in fact occurred and tends to connect the defendant
to those crimes, the corroboration requirement is fully satisfied. The defendant’s claim is
therefore denied.

                                              II.

        Next, the defendant claims that the trial court erred by failing to suppress the
statements he made to police on the evening of the shooting. We disagree. A trial court’s
findings of fact at a suppression hearing are subject to deference and will be upheld on
appeal unless the evidence preponderates against them. See State v. Odom, 928 S.W.2d 18,
23 (Tenn. 1996). A trial court’s application of the law to the facts is reviewed de novo. See
State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Our review of the record leads us to the
conclusion that the trial court correctly determined that the defendant’s statements – which
he intended to be exculpatory – were voluntary and were not obtained by exploitation of any
illegal detention.

        Both federal and state constitutions protect an individual’s right to be free of
unreasonable searches and seizures. See U.S. C ONST. A MEND IV (“The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable cause. . . .”);
C ONSTITUTION OF T ENNESSEE, Art. I, sec. 7 (“[P]eople shall be secure in their persons,
houses, papers and possessions, from unreasonable searches and seizures. . . .”). “[U]nder
both the federal and state constitutions, a warrantless search or seizure is presumed
unreasonable, and evidence discovered as a result thereof is subject to suppression unless the
State demonstrates that the search or seizure was conducted pursuant to one of the narrowly
defined exceptions to the warrant requirement.” State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997).

       “Temporary detention of individuals during the stop of an automobile by the police,
even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’”
for constitutional purposes. Whren v. United States, 517 U.S. 806, 809-810 (1996); see also
e.g. State v. Vineyard, 958 S.W.2d at 730, 734 (Tenn. 1997) (“Without question, the
temporary detention of individuals during the stop of a vehicle by police, even if only for a
brief period and for a limited purpose, constitutes a ‘seizure’ which implicates the protection
of both the state and federal constitutional provisions.”). However, if police have a
reasonable suspicion that the individuals in the vehicle are armed or have committed or are
about to commit an offense, the individuals may be temporarily detained by police in a
manner consistent with constitutional strictures pursuant to the well-known “Terry” or
“investigative” stop. Terry v. Ohio, 392 U.S. 1, 27 (1968); see also State v. Simpson, 968
S.W.2d 776, 780 (Tenn. 1998) (“[A]n investigatory stop is constitutionally permissible if the

                                              -27-
officer has a reasonable suspicion, supported by specific and articulable facts, that a criminal
offense has been or is about to be committed [and a] frisk is [permissible] if the police officer
has a reasonable suspicion supported by specific and articulable facts that the suspect is
armed.”). The police in this case apparently intended their detention of the defendant to be
justified pursuant to this exception to the warrant requirement.

        However, the investigative stop afforded by Terry permits only the temporary
detention of an individual for limited investigative purposes. While the precise boundaries
of a lawful Terry stop may be (and often are) the subject of spirited debate, the trial court
found that these boundaries were exceeded when the police transported the defendant to the
police station and questioned him throughout the night and into the next morning. The State
does not challenge this conclusion on appeal. The parties also agree that a full scale arrest
must be supported by probable cause, see, e.g., Brown v. Illinois, 422 U.S. 590, 602 (1975);
State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000), and that the trial court correctly
determined that the police did not have probable cause to arrest the defendant at whatever
point during the evening his lawful investigative detention expanded into an unlawful arrest.
Consequently, we will assume arguendo that his continued detention at the police station was
rendered unlawful by the time he was questioned and that any evidence resulting from this
illegal detention must be suppressed.

        The crucial question therefore becomes whether the statements the defendant made
to police at the station were evidence that resulted from his illegal arrest, viz., whether his
statements should be considered the “fruit of the poisonous tree,” as described in the well-
known doctrine articulated in Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).
“Under the ‘fruit of the poisonous tree’ analysis, the focus is on whether the evidence was
obtained by exploitation of the Fourth Amendment illegality.” State v. Huddleston, 924
S.W.2d 666, 674 (Tenn. 1996) (citing Wong Sun, 371 U.S. at 471 et seq.)). The overarching
concern that must be addressed is “whether the [defendant’s] statement was sufficiently an
act of free will to purge the primary taint of the unlawful invasion.” Id. (internal quotations
omitted). In discerning the answer to this question, courts must consider four factors,
collectively known as the Brown factors: “(1) the presence or absence of Miranda warnings;
(2) the temporal proximity of the arrest and the confession; (3) the presence of intervening
circumstances; and finally, of particular significance, (4) the purpose and flagrancy of the
official misconduct.” Id. at 674-75 (citing Brown v. Illinois, 422 U.S. 590, 603-604 (1975)).

       After considering these factors, we agree with the trial court that suppression of the
defendant’s statements is not required because the taint of his unlawful detention was
sufficiently attenuated by his exercise of free will when he made the statements to police.
Consideration of the first three factors weighs slightly in favor of the State. The trial court
found that the defendant was given his Miranda warnings twice – a finding to which we

                                              -28-
defer on appeal. In addition, the trial court found that several hours passed between the
defendant’s arrest and his subsequent statements. Consequently, the defendant’s statements
were not made in close temporal proximity to his illegal arrest. On the other hand, there do
not seem to have been any significant intervening circumstances between the time of the
defendant’s arrest and the time he was interviewed by police. The only event of any
significance – the defendant’s being taken to his house and waiting in a patrol car while it
was searched – may not have actually been “intervening” (depending on the precise point in
time that his detention became unlawful), and, in any event, is unlikely to lessen any taint
stemming from an unlawful arrest. With the exception of that one event, the record reflects
that the defendant was simply moved from place to place in a patrol car and taken to a police
station. He remained in continuous police custody throughout this period and did not speak
with anyone. Consequently, unlike the two prior factors, this factor would appear to weigh
in favor of the defendant.

        However, the most significant Brown factor – the flagrancy of the police misconduct
at issue, see Brown, 422 U.S. at 604 – again cuts in favor of the State. It appears from the
testimony contained in the record that the police never intended to arrest the defendant, but
rather sought to merely detain him for purposes of performing a lawful investigative stop.
The record supports the trial court’s conclusion that the police were not attempting to secure
a confession at the time of the defendant’s detention and his subsequent interview. Unlike
the illegal detention that led the United States Supreme Court to suppress a confession in
Brown itself, where the “impropriety of the arrest was obvious,” 422 U.S. at 605, this arrest
simply resulted from a mistaken assumption on the part of the police – that they could
constitutionally detain the defendant long enough to explore his connection to the individuals
seen entering his SUV at the crime scene to their full and complete satisfaction. Such
misconduct is not so flagrant as to compel suppression.

         Consequently, a weighing of the Brown factors leads to the conclusion that the
defendant’s statements were sufficiently the product of his own free will so as to purge the
taint of any illegal arrest. Moreover, in this case, the legal conclusion dictated by Brown is
confirmed by the presence of additional facts. The record reflects that the defendant never
requested to leave at any point during the time period he was in police custody. Furthermore,
the statements that the defendant made to police were intended to be exculpatory. While the
principle that exculpatory statements may be suppressed as fruits of the poisonous tree is a
concept as old as the doctrine itself, see Wong Sun, 371 U.S. at 487 (rejecting the
government’s argument that certain statements should be admissible because they were
ostensibly exculpatory), the overarching picture painted by this record is not one of a
defendant coerced into making an involuntary confession – or indeed any sort of statement
at all – to the police as a result of some pressure or trauma resulting from an illegal detention.



                                              -29-
        Because we conclude that the defendant’s statements to police did not result from his
illegal detention, we conclude that the trial court committed no error by allowing their
admission. Consequently, we need not address the State’s argument that any error committed
by the trial court was harmless. The defendant’s claim is denied.

                                               III.

        The defendant claims that the trial court erred by allowing Mr. Pirtle to testify that the
defendant and his co-defendants were involved in another robbery (that of “Little E,” Mr.
Pirtle’s drug dealer) and contemplated numerous other additional robberies on the day of the
shooting. However, we believe that the trial court was well within its discretion in permitting
this testimony.

        Generally, the “[a]dmission of evidence is entrusted to the sound discretion of the trial
court, and a trial court’s ruling on evidence will be disturbed only upon a clear showing of
abuse of discretion.” State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004). A trial court
abuses its discretion only if it applies the wrong legal standard or makes an illogical decision
that causes injustice to the aggrieved party. See id. In this case, the defendant has failed to
carry his burden of demonstrating that the trial court committed either form of error when it
permitted Mr. Pirtle to testify concerning the entire course of criminal conduct committed
by the defendant and his co-defendants on the day in question.

        Evidence is relevant if it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more or less probable,” Tenn. R. Evid. 401,
and, as a general rule, all relevant evidence is admissible unless a particular constitutional
provision, statute, or rule excludes it, see Tenn. R. Evid. 402. A specific rule does prohibit
the use of evidence that a defendant has committed other crimes or wrongs for the particular
purpose of proving a defect in the defendant’s character and actions in conformity therewith.
See Tenn. R. Evid. 404(b). However, that same rule expressly provides that evidence of such
prior bad acts “may . . . be admissible for other purposes,” id., and provides a procedure that
trial courts must follow before admitting such evidence. Evidence concerning prior bad acts
may not be admitted, regardless of its intended purpose, if “its probative value is outweighed
by the danger of unfair prejudice.” Tenn. R. Evid. 404(b)(4). The defendant has failed to
establish that the trial court misapplied any of these rules or otherwise acted illogically when
it denied his motion in limine concerning Mr. Pirtle’s testimony.

        The defendant does not allege that the trial court failed to follow the proper
procedures prior to reaching its decision or that it applied incorrect legal standards in
concluding that Mr. Pirtle’s testimony was admissible. Rather, the defendant challenges only
the trial court’s conclusions: (1) that Mr. Pirtle’s testimony was offered for the proper

                                              -30-
purposes of proving the defendant’s intent and for providing important contextual
background to the crimes, and (2) that the probative value of his testimony outweighed the
prejudice posed to the defendant. See id. However, we believe that the trial court’s
conclusions with respect to these issues were not illogical. To the contrary, these conclusions
were fully supported by the record.

        The law is well established that evidence concerning a defendant’s prior bad acts may
be admissible for purposes of proving the defendant’s intent. See State v. McCary, 922
S.W.2d 511, 514 (Tenn. 1996). Absent Mr. Pirtle’s testimony about the group’s activities
throughout the day, the jury might have been left with the erroneous impression that the three
individuals who attempted to rob the victim had misinterpreted the defendant’s words and
actions in the minutes immediately preceding the robbery attempt or that the defendant’s
statement “now I got 15 minutes to do a robbery before I go and pick up my wife from work”
was made purely in jest. When considered in light of Mr. Pirtle’s testimony concerning the
earlier robbery and attempted robberies, however, it becomes significantly more plausible
that what otherwise might appear to be a dearth of specific instructions concerning this
particular victim’s robbery can be attributed to the fact that, by the time it occurred, each
member of the group already knew what they intended to do and how they intended to do it.

       Consequently, the trial court’s conclusions concerning the relevance of Mr. Pirtle’s
testimony were not illogical. Neither was its decision regarding the relative weight of the
probative value of this testimony in relation to its potential prejudice. The trial court
acknowledged that Mr. Pirtle’s testimony posed some risk of prejudice to the defendant but
reasoned that this prejudicial effect could be limited by an appropriate jury instruction – an
instruction that the trial court in fact provided. In contrast, the trial court found that the
probative value of this evidence was extremely high, and for the reasons discussed above,
our review of the record leads us to agree. The trial court’s conclusion that the probative
value of the Mr. Pirtle’s testimony outweighed its potential for prejudice is both logical and
supported by the record.

       Because the defendant has failed to demonstrate that the trial court applied an
incorrect legal standard or reached an illogical result, he has failed to demonstrate any abuse
of discretion. His claim that the trial court erred by admitting Mr. Pirtle’s testimony
concerning the defendant’s earlier robbery and attempted robberies on the day of the shooting
is denied.

                                             IV.

      The defendant claims that the trial court erred by permitting the prosecutor to
improperly vouch for the credibility of Mr. Pirtle during closing argument. However, the

                                             -31-
defendant failed to include this issue in his motion for a new trial. Pursuant to Tennessee
Rule of Appellate Procedure 3(e), a defendant waives any issue relating to an “action
committed or occurring during the trial . . . or other ground upon which a new trial is sought”
unless the defendant raises such issue in a motion for a new trial. His claim is waived
accordingly.

                                               V.

         The defendant claims that the trial court erred by failing to merge his convictions for
facilitation of felony murder and attempted especially aggravated robbery. He claims that
separate convictions for both offenses violates his protections against double jeopardy as
guaranteed by the Fifth Amendment of the United States Constitution (“[N]o person shall .
. . be subject for the same offense to be twice put in jeopardy of life or limb.”), as applied to
the States through the Fourteenth Amendment, and Article I, section 10 of the Tennessee
Constitution (“[N]o person shall, for the same offence, be twice put in jeopardy of life or
limb.”), on the grounds that his separate convictions act to impose multiple punishments for
the same offense. In this regard, the defendant cites State v. Denton, 938 S.W.3d 373, 381
(Tenn. 1996), in which the Tennessee Supreme Court listed multiple factors for courts to
consider in determining whether separate convictions violate double jeopardy principles.
These factors included “an analysis . . . of the evidence used to prove the offenses,” “whether
there were multiple victims or discrete acts,” and “a comparison of the purposes of the
respective statutes.” Id. The defendant urges that consideration of these factors compels the
conclusion that his convictions should be merged because “the State used the same evidence
to support the defendant’s dual convictions,” the offense involved “a single victim and a
single discrete act,” and “both the felony murder statute and the especially aggravated
robbery statute have the same purpose.”

        However, after this case was submitted, the Tennessee Supreme Court decided State
v. Nigel Kavic Watkins, No. M2009-00348-SC-R11-CD, 2012 Tenn. LEXIS 154, at *4
(Tenn. Mar. 9, 2012), and State v. Lonnie Cross, No. E2008-02792-SC-R11-CD, 2012 Tenn.
LEXIS 155, at **15-22 (Tenn. March 9, 2012). In these cases, the Tennessee Supreme Court
overruled Denton and adopted a straightforward Blockburger analysis for purposes of
resolving “multiple description” double jeopardy claims (i.e. cases in which defendants have
received multiple convictions under different statutes for the same discrete act). Under the
Blockburger test, courts must compare the statutory elements of the offenses at issue in order
to determine whether merger is required if the offenses involve the same transaction or
occurrence. See Blockburger v. United States, 284 U.S. 299, 303-05 (1932). As the
Blockberger court explained, if a defendant’s single act or transaction potentially violates two
different statutes, “the test to be applied to determine whether there are two offenses or only
one, is whether each provision requires proof of a fact which the other does not.” Id. at 304.

                                              -32-
“The Blockburger test requires an examination of the statutory elements in the abstract,
without regard to the proof offered at trial in support of the offenses.” Watkins, 2012 Tenn.
LEXIS 154, at *34. If “each statutory offense includes an element not contained in the other,
the offenses are distinct.” Id. at *38. “Where the offenses are distinct under Blockburger, the
legislature is presumed to have intended to allow the offenses to be punished separately,” and
federal and state double jeopardy protections are not violated. Id.

       The defendant concedes that facilitation of felony murder and attempted especially
aggravated robbery involve different elements and constitute distinct offenses under the
Blockburger test. Consequently, it is presumed that the legislature intended to allow the
offenses to be punished separately. While the Blockburger presumption “may be overcome
by explicit declarations of legislative intent,” id. at *39, the legislature has made no such
express declaration with respect to the crimes at issue. To the contrary, the legislature’s act
of passing separate statutes criminalizing felony murder, criminal attempt, and especially
aggravated robbery appears to be indicative of a desire to punish attempted thefts involving
violence separately and distinctly from any death resulting from such attempts.
Consequently, the defendant’s claim that the trial court erred by failing to merge his
convictions is denied.

                                             VI.

       The trial court sentenced the defendant as a Range II, multiple offender to forty years
for his facilitation of felony murder conviction and to a consecutive twenty years for his
attempted especially aggravated robbery conviction. The defendant claims that the trial court
erred by finding him to be a Range II offender, by imposing an excessive sentence with
respect to each count, and by ordering the sentences to be served consecutively. For reasons
discussed more fully below, after reviewing the record, we conclude that the trial court
committed an error in the sentencing process that compels this court to engage in a de novo
review of the defendant’s sentences. However, after conducting the requisite de novo
review, we conclude that the sentences imposed by the trial court were appropriate.
Moreover, we find no error in the trial court’s decision to order the defendant’s sentences to
be served consecutively. The defendant’s claims are denied accordingly.

       The burden of demonstrating that a sentence is erroneous is placed upon the appealing
party. State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008). “When a sentence is challenged,
‘the appellate court shall conduct a de novo review on the record of the issues . . . with a
presumption that the determinations made by the court from which the appeal is taken are
correct.’” Cross, 2012 Tenn LEXIS 155, at *33 (quoting T.C.A. § 40-35-401(d); § 40-
35-402(d)). The presumption that the sentencing court’s factual determinations are correct
“‘is conditioned upon the affirmative showing in the record that the trial court considered the

                                             -33-
sentencing principles and all relevant facts and circumstances.’” Carter, 254 S.W.3d at
344-45 (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). If “the trial court
applies inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails,” and our review becomes simply de
novo. Id. at 345.

                                               A.

        The defendant claims that the trial court erred by sentencing him as a Range II,
multiple offender. In response, the State concedes that the trial court applied an incorrect
legal standard in determining the defendant’s sentencing range. Although Tennessee Code
Annotated section 40-35-106(c) requires a sentencing court to determine that the defendant
is a multiple offender “beyond a reasonable doubt” before sentencing him in Range II, the
trial court’s written sentencing order states that the court found that the State had proved that
the defendant had been previously convicted of the two requisite felony convictions –
aggravated robbery and aggravated assault – “by a preponderance of the evidence.” Because
the trial court cited the incorrect legal standard in determining the defendant’s sentencing
range, we review the defendant’s sentences de novo with no presumption of correctness.
However, our de novo review of the record leads us to conclude beyond a reasonable doubt
that the defendant is a Range II, multiple offender, by virtue of having three prior qualifying
felony convictions.

        The state of the record concerning these convictions is slightly unusual. The transcript
of the sentencing hearing reflects that the State produced certified copies of three prior felony
convictions – two aggravated robberies and an aggravated assault – and displayed them to
opposing counsel and the trial court. Defense counsel examined these judgments, after
which the parties argued over issues such as whether the defendant’s two aggravated robbery
convictions could be counted separately if they occurred within twenty-four hours of each
other. When the trial court informed counsel to proceed with the hearing, defense counsel
reminded the court that the State had the burden of proving the defendant’s range beyond a
reasonable doubt, but the issue of the defendant’s range was not revisited until the court
passed sentence. During sentencing, the transcript reveals that the trial court considered the
three convictions, stating that the defendant “has had two prior aggravated robberies” and
“based on what I heard with these three convictions . . . this man is in range two.” The trial
court’s written sentencing order also expressly references these convictions, stating that the
trial court found that the defendant was a Range II, multiple offender, because the State had
demonstrated “that the Defendant has two prior convictions for Aggravated Robbery and one
prior conviction for Aggravated Assault.”

       However, the State apparently failed to enter certified copies of these prior

                                              -34-
convictions into evidence, and thus they were not initially part of the record on appeal. When
the defendant brought this fact to the State’s attention in his opening brief, the State promptly
filed a motion in the trial court to supplement the record with certified copies of the
defendant’s convictions. The trial court granted this motion by written order on June 1,
2011, explaining that “[t]his Court finds that the State did present copies of these convictions
at the sentencing hearing but failed to move them into evidence” and “[t]he Court did
consider these judgments in sentencing and they are properly included in the record.” This
court accepted the supplemental record from the trial court on June 13, 2011.


        The certified copies contained in the supplemental record bear the defendant’s name
and reflect that the defendant was convicted of aggravated assault, a Class C felony, on June
4, 2004, and two counts of aggravated robbery, Class B felonies, on January 1, 2000. These
certified copies serve as prima facie evidence that the defendant was convicted of the listed
offenses, see T.C.A. § 40-35-202(a), and the defendant has not attempted to rebut this
presumption.

       A defendant qualifies as a Range II, multiple offender, if, inter alia, the court finds
beyond a reasonable doubt that he has received “[a] minimum of two (2) but not more than
four (4) prior felony convictions within the conviction class, a higher class, or within the next
two (2) lower felony classes. . . .” T.C.A. § 40-35-106(a)(1). The defendant’s facilitation
of felony murder conviction is a Class A felony, and his attempted especially aggravated
robbery conviction is a Class B felony. Consequently, two prior convictions for Class C
felonies or above suffice to establish the defendant’s status as a Range II, multiple offender
with respect to both offenses.

       This Court finds that the certified copies of the defendant’s two prior Class B
aggravated robbery convictions and his prior Class C aggravated assault conviction, which
are now contained in the record, provide sufficient evidence to qualify the defendant as a
Range II, multiple offender beyond a reasonable doubt. In so concluding, we note that the
defendant argued before the trial court that his two aggravated robbery convictions should
count as a single conviction because they were committed in the same twenty-four hour
period. See T.C.A. 40-35-106(b)(4) (“[C]onvictions for multiple felonies committed within
the same twenty-four-hour period constitute one (1) conviction for the purpose of
determining prior convictions.”). However, this court has repeatedly held that convictions
for aggravated robbery are exempted from this rule. E.g., State v. Valentino L. Dyer, No.
E2010-02578-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 755, at **30-31 (Tenn. Crim.
App. Oct. 6, 2011); State v. Elmi Abdulahi Abdi, No. M2009-01614-CCA-R3-CD, 2010
Tenn. Crim. App. LEXIS 653, at **15-16 (Tenn. Crim. App. July 29, 2010). As this court
has explained, the general rule aggregating felonies committed within the same twenty-four-

                                              -35-
hour period provides an express exception for “convictions for which the statutory elements
include serious bodily injury, bodily injury, threatened serious bodily injury or threatened
bodily injury to the victim or victims. . . .” Id. Convictions for aggravated robbery, even
when based on the defendant’s use of a seemingly deadly weapon (rather than on the
defendant’s infliction of serious bodily injury on the victim, see T.C.A. § 39-13-402),
encompass the requisite statutory elements and fall within this exception because the
defendant’s use of such a weapon to commit theft by placing a person in fear (as required to
commit robbery, see T.C.A. § 39-13-401) inherently threatens the victim with, and places the
victim in fear of, bodily injury.

       Of course, even if this exception applied to the defendant’s two aggravated robbery
convictions, the certified copies contained in the record would still reflect the defendant’s
conviction of a Class B aggravated robbery and a Class C aggravated assault, and only two
qualifying felonies are required to establish the defendant’s status as a Range II, multiple
offender. Consequently, the defendant would be entitled to no relief.

                                             B.

        Next, the defendant challenges his sentence on each count as excessive. In this
regard, the defendant argues that the trial court erred in its findings concerning various
enhancement and mitigation factors. However, after considering the record in this case, the
appropriate sentencing principles, the enhancement and mitigating factors, the nature of the
criminal conduct at issue, the defendant’s potential for rehabilitation, and the other factors
mandated by statute, we believe that the sentences imposed by the trial court were
appropriate and were not excessive. See T.C.A. §§ 40-35-102; 40-35-103; 40-34-210(b).
We observe that the sentences imposed by the trial court were within the appropriate
sentencing range. A Range II offender convicted of a Class A felony may be sentenced to
twenty-five to forty years, see T.C.A. § 40-35-112(b)(1), and the defendant was sentenced
to forty years. A Range II offender convicted of a Class B felony may be sentenced to twelve
to twenty years, see T.C.A. § 40-35-112(b)(2), and the defendant was sentenced to twenty
years. Consequently, his sentence was not excessive in relation the legislature’s
determination of what constitutes an appropriate range of punishment for an individual with
his criminal background who commits such grave criminal behavior.

                                             C.

       The defendant also challenges the trial court’s judgment that he should serve his
sentences consecutively. “Whether sentences are to be served concurrently or consecutively
is primarily within the discretion of the trial court.” State v. Dorantes, 331 S.W.3d 370, 392
(Tenn. 2011). A trial court may order sentences to be served consecutively if, inter alia, the

                                             -36-
court determines by a preponderance of the evidence that “[t]he defendant is a professional
criminal who has knowingly devoted the defendant’s life to criminal acts as a major source
of livelihood” or “[t]he defendant is an offender whose record of criminal activity is
extensive.” T.C.A. §§ 40-35-115(b)(1), 40-35-115(b)(2). In this case, the trial court found
both factors to be applicable.

        In support of its finding that the defendant was a professional criminal, the trial court
cited the defendant’s extensive criminal history, his lack of any proof of employment, and
his use of his sons and family members to commit armed robberies. The defendant
challenges these facts as insufficient, urging that the State failed to present proof that he lived
on the illegal proceeds of his criminal behavior. We disagree. Although not cited by the trial
court at sentencing, there was evidence presented at trial that the defendant required the
proceeds of his illegal activities to meet his basic life needs and desires. Mr. Pirtle testified
that on the day of the shooting the defendant told the group that he could not afford to buy
gasoline for a return trip home unless the group committed a robbery; that they “ did not have
enough gas money to make it back to where we stayed at.” In addition, at the defendant’s
sentencing hearing, the defendant’s half-brother testified that he and his brothers “didn’t have
money” and “would try to . . . sneak off, steal things [and] try to make money just to go buy
clothing that we would like . . . stylish clothing. . . .” At that same hearing, the defendant’s
biological father testified that the defendant “could not keep a good job.” We conclude that
this and other evidence in the record amply suffices to support the trial court’s conclusion
that the defendant was a professional criminal who had devoted his life to criminal acts as
a major source of income.

       Even had the trial court erred in finding that the defendant was a professional
criminal, the trial court also found that the defendant had an extensive criminal record, and
the defendant does not challenge this finding on appeal. The record amply supports the trial
court’s conclusion. In addition to the prior felony convictions discussed above, the defendant
has numerous prior misdemeanor convictions, including multiple theft convictions and
convictions for resisting arrest, assault, escape, shoplifting, possession of unlawful drug
paraphernalia, and vandalism. The defendant has been convicted of at least one crime almost
every year of his life since he turned eighteen, with the exception of years when he was
incarcerated. The defendant’s extensive criminal record standing alone would fully suffice
to support the trial court’s decision to impose consecutive sentences.

       Considering the defendant’s sentencing as a whole, we concur with the trial court’s
assessment that a sixty year effective sentence “is the least severe measure necessary” to
“protect society by restraining a defendant [with] a long history of criminal conduct” and to
“avoid depreciating the seriousness of the offense[s].” T.C.A. §§ 40-35-103(1), 40-35-
103(4). Consequently, the defendant’s claim that the trial court erred by imposing

                                               -37-
consecutive sentences is denied, as is his claim that each sentence is excessive.

                                     CONCLUSION

       For the foregoing reasons, the judgments of the trial court are affirmed.




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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