         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 5, 2004

                 STATE OF TENNESSEE v. BERNARD J. HENRY

                      Appeal from the Criminal Court for Shelby County
                         No. 02-05634     Arthur T. Bennett, Judge


                   No. W2003-03045-CCA-R3-CD - Filed December 9, 2004


DAVID G. HAYES, Judge, separate concurring opinion.


       I join in affirming the defendant’s convictions and the majority’s conclusion that the
defendant’s sentences require modification.

        The majority opines that modification is compelled by the holding of Blakely v. Washington,
542 U.S. ___, 124 S.Ct. 2531 (2004). For those reasons expressed in State v. Carlos Eddings, No
W2003-02255-CCA-R3-CD (Tenn. Crim. App. at Jackson, June 2, 2004) (Hayes, J., dissenting), I
find any sentencing challenge under Blakely is now waived for failure to object to the sentencing
error at the trial level. Tenn. R. App. P. 36(a). Irrespective of the defendant’s reasons for not
objecting, it is abundantly clear that trial counsel may not forgo an objection to a trial defect “simply
because he thought objection would be futile.” Engle v. Isaac, 456 U.S. 107, 130 n.35, 102 S. Ct.
1558, 1573 n.35 (1982) (citations omitted). Futility cannot constitute cause if it means simply that
a claim was unacceptable to that particular court at that particular time. Id. Even a state court that
has previously rejected a constitutional argument may decide, upon reflection, that the contention
is valid. Id. at 130, 102 S. Ct. at 1573. Certainly the practice of presenting previously rejected
claims is clearly implanted in capital case litigation in this state. I see no valid reason to abandon
well-established rules of appellate procedure to accommodate an Apprendi/Blakely violation,
particularly in view of the Supreme Court’s recent decision in United States v. Cotton, 535 U.S. 625,
631-34, 122 S. Ct. 1781, 1785-87 (2002), which held, post-Apprendi, that the defendant’s claim of
right to a trial and finding by a jury on a fact to enhance the defendant’s sentence was forfeited
because it was not raised at trial. Nonetheless, after de novo review, I find that the trial court’s
application of enhancing factors (3), leader in the commission of the offense, (5) victim was
particularly vulnerable due to her age, and (6), victim’s treatment was exceptionally cruel, were
applied in error. The majority concludes, and I agree, that factor (7) is also inapplicable. Although
the proof supports the application of factor (16), abuse of a position of trust, I find that a sentence
of twenty years for each conviction is justified by the sentencing proof.



                                                                ______________________________
                                                                David G. Hayes, Judge
