        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                            JULY SESSION, 1997          April 23, 1999

                                                    Cecil W. Crowson
STATE OF TENNESSEE,           )                   Appellate Court Clerk
                                   C.C.A. NO. 01C01-9604-CR-00162
                              )
      Appellee,               )
                              )
                              )    DAVIDSON COUNTY
VS.                           )
                              )    HON. J. RANDALL WYATT, JR.
JASPER D. LEWIS,              )    JUDGE
                              )
      Appe llant.             )    (Direct Appeal; First Degree Murder
                              )    and One Cou nt of Rob bery)




FOR THE APPELLANT:                 FOR THE APPELLEE:

JEFFREY A. DEVASHER                JOHN KNOX WALKUP
Assistant Public Defender          Attorney General and Reporter
(On A ppea l)
                                   KAREN M. YACUZZO
DAVID BAKER                        Assistant Attorney General
Assistant Public Defender          425 5th Avenue N.
(At Tr ial)                        Nashville, TN 37243

JEFFERSON T. DORSEY                VICTOR S. JOHNSON
Assistant Public Defender          District Attorney General
(At Tr ial)
1202 Stahlman Building             KATRIN MILLER
Nashville, TN 37201                Assistant District Attorney
                                   222 Se cond A venue, N orth
                                   Suite 500
                                   Nashville, TN 37201



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


       On September 14, 1995, a Davidson County jury convicted Appellant

Jasper D. Lewis of one count of first degree murder and one count of robbery.

The trial court subsequently sentenced Appellant as a Range I standard offender

to consecutive terms of life imprisonment for the first degree murder conviction

and five years for the robbery convic tion.          Ap pellan t challe nges both h is

convictions and his sentences, raising the following issues:

       1) whether the evidence is sufficient to support Appellant’s convictions for
       first degree mu rder and robb ery;
       2) whether the trial court should have suppressed a statement that
       Appellant made to police;
       3) whether the trial court s hould have suppressed the pre-trial identification
       of Appellant by one of the State’s witnesses;
       4) whethe r the trial court erred when it instructed the jury about the
       minimum number of years that Appellant would have to serve for each
       offense before h e would becom e eligible for p arole;
       5) whether the trial court imposed an excessive sentence for the robbery
       conviction; and
       6) whether the trial court erred when it ordered the sentences to be served
       consecu tively.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                      I. FACTS




       Daniel McK ell testified that on October 28, 1994, he and Fernando

Johnson were s itting in fro nt of an apartm ent bu ilding o n Buc hana n Stre et in

Nashville, Ten ness ee, with som e othe r individuals. Jo hnso n even tually left th is

group and joined Appellant and Sam Hall in a dice game about thirty to forty feet

away from M cKell. Appellant was wearing dark clothing and he had black and

white beads in his hair.



                                           -2-
       McK ell testified that wh ile he w as talk ing to some other individuals, he

heard som e gun shots . Wh en Mc Kell looked in the direction of the dice game, he

saw Appellant shoot Johnson, who was o n his knee s sho oting d ice. Mc Kell

heard a total o f four or five sho ts. At this point, McKell ran to the other side of the

apartm ent buildin g.



       McK ell testified that later that night, he gave the police a description of

Appe llant. A few days later, McKell identified the photographs of Appellant and

Hall out of two groups of photographs that were shown to him by the police.

McK ell also testified that he could not remember whether he had seen

Appe llant’s photograph on television before he identified the photograph of

Appe llant show n to him b y the police .



       Robert Davidson, Jr., testified that he was about twenty feet away from the

dice game when the shooting occurred. Davidson estimated that Johnson had

been p laying dice for thirty to forty-five m inutes be fore he w as sho t.



       Samuel Hall testified that he and Appellant dro ve to the apartments on

Buchanan Street at some time around 9:30 p.m. on the night of the shooting.

Hall, Appe llant, Johnson, and Quenton Carrethers eventually began playing a

game of dice. During the dice game, Johnson won some money from Ap pellant.

Hall testified that Johnson and App ellant were eng aging in “regular trash talk”

during th e dice ga me.



       Hall testified that while Johnson was on his knees picking up the money on

the ground in front of him, Appellant shot Johnson in the head. Appellant then

                                            -3-
shot Johnson four times in the back and then to ok m oney th at was in Joh nson ’s

hand. At this point, Hall ran back to the car that he had driven to the apartment

building. After Hall had driven about three blocks from the scene of the shooting,

he saw A ppella nt. App ellant th en go t in the c ar and Hall drove to Appe llant’s

girlfriend ’s residence. Hall testified that when he stated that Appellant had killed

Johnson, Appella nt replied, “I a in’t worried a bout it. Tha t’s just one less nigger

I have to worry abo ut.”



      Hall testified that when he and Appe llant arriv ed at A ppella nt’s girlfriend ’s

residence, Appellant changed his clothes, took the beads out of his hair, and then

washed his gun and the money that he had taken from Johnson. After Appellant

reloaded his gun, Hall and Johnson went to another friend’s h ouse whe re

Appellant aske d som eone to call his grand moth er. Ap pellan t and H all then went

back to App ellant’s girlfriend’s residence where Appe llant m et his m other a nd his

mothe r drove him away in h er car.



      Joyce Baker, Appellant’s mother, testified that on the night of the shooting,

she took a gun away from Appellant. Bak er threw the gu n in a dum pster the next

day, but she eventually contacted the police and assisted them in recovering the

gun. Baker also testified that on the night of the shooting, she advised Appellant

to travel to Indiana to stay with his father. When Baker later learned that a

warrant had been issued for Appe llant’s arrest, s he ca lled Ap pellan t and to ld him

to come back to Nashville. After Appellant returned to Nashville, Baker took h im

to police h eadqu arters.




                                          -4-
       Detective Brad Putnam of the Metro Police Department testified that he

was present when police officers recovered a .380 automatic handgun from a

dump ster on O ctober 3 0, 1994 .



       Agent Tomm y Heflin of the Tennessee Bureau of Investigation testified that

he had compared the shell casings and bullets found at the scene of the shooting

and the bullets recovered from the body of Johnson with the .380 automatic

handgun. Agent Heflin concluded that the bullets and casings were fired from the

gun.



       Detective Mike S mith o f the Me tro Po lice De partm ent tes tified that on

October 30, 19 94, Ap pellan t’s mother brought Appellant to police headquarters.

Smith then advised Appellant of his constitutional rights and Ap pellant ag reed to

waive his rig hts and make a statem ent.



       In the statement that he gave to police, Appellant initially claimed that

someone else had killed Johnson after Appellant quit playing dice and walked

away. However, Appellant eventually admitted that he shot Johnson with a .380

autom atic handgun. Appellant also admitted that after he shot Johnson, he took

John son’s money that was on the ground. Appellant stated that although he and

Johnson called each other names, Johnson never threatened him. Appellant also

stated that although he accused Johnson of cheating during the dice game, that

was not why he shot Johnson. Appellant stated that he did not know why he shot

Johns on.




                                        -5-
                      II. SUFFICIENCY OF THE EVIDENCE




       Appellant contends that evidence is insufficient to support his convictions

for first degree murder and robbery. We disagree.



       When an appellant challenges the sufficie ncy of th e evide nce, th is Court

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s w itnesses and res olves all co nflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused

is originally cloaked with a p resump tion of innocenc e, a jury verdict remo ves this

presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913,

914 (Tenn. 1982). Hence, on appeal, the burden of proof re sts with Ap pellant to

demo nstrate the insufficie ncy of the convicting evidenc e. Id. On appeal, “the

[S]tate is entitled to th e strong est legitimate view of th e evide nce a s well a s all

reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere

the sufficiency of the evidence is contested on appeal, the relevant question for

the reviewing court is whether any ra tional trier of fact could have found the

accused guilty of every element of the offens e beyon d a reas onable doubt.

Jackson v. Virgin ia, 443 U.S . 307, 319 , 99 S. C t. 2781, 2 789, 61 L. Ed. 2d 560

(1979). In conducting o ur evaluation of the c onvicting evidence, this Cour t is

precluded from reweighing or reconsidering the evide nce. State v. Morgan, 929

S.W.2d 380, 38 3 (Ten n. Crim. A pp. 1996).          More over, this Court may not

substitute its own infe rences “for those d rawn by the trier of fact from

circumstantial evidence.” State v. Matthews 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Finally, Rule 13(e) of the Tennessee Rules of Appellate Pro cedure

                                           -6-
provides, “findings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier

of fact beyo nd a rea sonab le doub t.”



                          A. First Degree Murder Conviction




        Appellant contends tha t the evid ence is insuffic ient to s uppo rt his

conviction for first degree murder because the State failed to establish that he

killed John son with p remed itation and deliberatio n.



        When Johnson was killed in 1994, T ennes see’s first de gree m urder sta tute

provided that “[f]irst degree murd er is: [a]n intentional, premeditated and

deliberate killing of another.”             Ten n. Code A nn. § 39-13-2 02 (1994). 1

Premeditation requires a showing of a previously formed design or intent to kill.

State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). Deliberation requires that the

offense be committed with cool purpose, free of the pass ions of the mom ent. Id.

Although premeditation “may be formed in an instant, deliberation requires some

period of reflection, during which the mind is ‘free from the influence of

excitement, or passion.’” State v. Brown, 836 S.W.2d 530, 538 (Tenn. 1992)

(citation omitted). While it remains true that no specific length of time is required

for the formation of a cool, dispassionate intent to kill, more than a “split-second”

of reflectio n is req uired in order to satisfy th e elem ents o f prem editation and

deliberatio n. Id. at 543.




        1
         A 1995 ame ndm ent elim inated de liberation as an elem ent of first de gree m urder. See Tenn.
Code Ann. § 39-13-202(a)(1) (Supp. 1998) (“First degree murder is: A premeditated and intentional killing
of another.”).

                                                 -7-
      The eleme nts of premeditation and deliberation are questions for the jury

which may be established by proof of the circumstances surrounding the killing.

State v. Bland, 958 S.W.2d 651, 660 (Tenn . 1997); State v. Bord is, 905 S.W.2d

214, 222 (T enn. C rim. App. 1995). Tennessee courts have delineated several

circumstances that may be indicative of premeditation and deliberation, including

the use of a d eadly we apon u pon an unarm ed victim, Brown, 836 S.W.2d at 841;

facts from wh ich mo tive may b e inferred , Bord is, 905 S.W .2d at 222 ; and

calmn ess imm ediately afte r the killing, Bland, 958 S.W .2d at 660 .



      Considering the proof in the reco rd in the light most favorable to the State,

as we are required to do, we hold that the evidence is sufficient to establish

preme ditation and deliberation. First, the record indicates that Johnson was

unarmed when Appellant shot him with an automatic handgun. In addition,

McK ell and Hall both testified that Johnson was on his knees when Appellant

shot him. F urther , the rec ord ind icates that Ap pellant placed his gun either

against or very near Johnson’s h ead wh en he s hot him . Secon d, the Sta te

introduced evidence from which a jury could infer that Appellant had a motive for

killing Johnson. The record ind icates tha t during the thirty to forty-five m inute

dice game, Johnson won most of the bets and took money from several people,

including Appella nt. In add ition, Ha ll testified that after Appellant shot Johnson,

Appellant took Joh nson’s m oney tha t was on the grou nd. In fact, Appellant

admitted in his statem ent to the p olice that a fter he sho t Johnson, he took

John son’s money that was on the ground. A rational jury could infer from these

facts that Appellant had killed Johnson in order to take his money. Third, the

record indicates that imme diately after th e killing, App ellant was calm. Indeed,

Hall testified that when he picked up Appellant s hortly a fter the k illing an d told

                                         -8-
Appellant that Johnson was dead, A ppellant re plied, “I ain’t wo rried abo ut it.

That’s just one less nigger I have to worry about.” Shortly thereafter, Appellant

went to his girlfriend ’s resid ence , chan ged h is clothe s, took the be ads o ut of his

hair, washed the blood off his gun and the money that he had taken from

Johnson, and the n went w ith Hall to the residenc e of ano ther friend. In short, a

rational jury could conclude from these circumstances that App ellant dec ided to

kill Johnson and then reflected on that decision with cool purpose for some period

that was at least more than a “split-second” before he shot and killed Johnson.

This issu e has n o merit.



                              B. Robbery Conviction




       Appellant conten ds that th e evidenc e is insu fficient to supp ort his

conviction for robbery. Under T ennesse e Code A nnotated se ction 39-13-40 1(a),

“[r]obbery is the intentional or kno wing theft of prope rty from the person of

another by violence or putting the person in fear.” Tenn. Code. Ann. § 39-13-

401(a) (1994). Appellant cla ims th at the e videnc e is insu fficient to convic t him

under this statute because the only evidence tha t he had taken anything from

Johnson came from the testimony o f Hall, and this testimon y was contradicted

by Hall’s previous statement to police.



       The general rule in Tenn essee is that “co ntradictory statem ents by a

witness in connection with the same fact cancel each other.” State v. Matthews,

888 S.W.2d 446, 450 (Tenn. Crim. App. 1993) (citations omitted). However,

“[t]his rule of cancellation applies only when inconsistency in a witness’ testimony




                                           -9-
is unexplained and when neither version of his testimony is corroborated by other

evidence.” Id. (citation omitted).



      Initially, we no te that it is not clear that Hall’s testimony at trial and his pre-

trial statement to police were contradictory. The record indicates that during

Hall’s direct examination, the following colloquy occurred:

            A: He went into the bedroom. When he went to the bedroom, he
      went to go get som e cloth es, to c hang e his clothes. Then he went into the
      bathroom to wash his gu n and was h the mon ey.
            Q: W ashing the gu n and was hing the mo ney?
            A: Yes, sir.
            Q: W hat mo ney are yo u talking a bout?
            A: The money that he took from Fernando Johnson.
            Q: W hen did he do tha t?
            A: Wh en he w as— when h e shot him in the hea d, he sho t him like
      four more times in the b ack. H e flippe d him over an d wen t inside his
      pockets.
            Q: And was there money in Fernando’s pockets?
            A: Yes, sir.
            Q: How did you se e that?
            A: Because when he was pulling it out, the only thing I seen was,
      you know, there was some money in front of him, the money he was
      counting. Then he had some money in his pocket. So I seen him when he
      grabbed the money in his hand. Then I seen him when he wa s goin g
      through his pock ets.

The record also indicates that the following colloquy occurred during the cross-

examination of Detective Smith:

             Q: So S am H all told yo u that h e did not see—if you remember back
      and think about it, he told you that he did not see Jasper Lewis take
      anything or go through the victim’s pockets.
             A: I’m sorry. I stand to be corre cted, sir. You confuse d me. I
      thought Hall himself said he didn’t rummage through the pockets, but he
      said that—he said that Jasper rolled Fernando over and w ent thro ugh h is
      pockets.
             Q: It’s true, is it not, Detective, that in th at tape d state men t, Sam Hall
      told you he did not see Jasper Lewis take any money from Fernando
      Johnson.
             A: You know, I ha ven’t liste ned to that tap ed sta teme nt in a w hile.
      This is a summary. Now, as far as the money, I don’t know. Going
      through his pocket, I’m—I’m sure I’m correct by my transcripts here. So
      if—if the answer is I don’t have any indication here of money being taken.
      Just going through his pockets.

                                          -10-
             Q: All right. Well, I believe wh at— what S am H all told yo u, isn’t it
       correct, that—that Jasper, according to Sam, rolled him over, but didn’t see
       him take any money out of the pockets?
             A: Apparently so.
             Q: Okay. So the answer is yes.
             A: Yes.

       Contrary to Appellant’s assertion, this evidence merely establishes that

Hall’s testimon y at trial was s omew hat incon sistent with Dete ctive S mith’s written

summ ary of Hall’s pre-trial statement, not that Hall actually made a contradictory

statem ent. Wh en Sm ith testifie d, he d id not have Hall’s actual statement and

thus, Smith could only testify that the summary did not contain “any indication .

. . of money being taken.” Further, when Hall was asked about his pre-trial

statement during cross-examination, he denied telling the police that Appellant

did not take any money from Johnson.



       Further, even if th is evide nce h ad es tablish ed tha t Hall had made two

contradictory statements, the statements would not cancel each other out

because Hall’s testimony that he saw Appellant take Johnson’s money that was

on the ground was corroborated by other evidence . See id. Indeed, Appellant

admitted to police in his pre-trial statement that after he shot Johnson, he took

Johns on’s m oney tha t was on the grou nd.



       Finally, Appe llant co ntend s that th e evide nce is insufficient because Hall’s

testimony was c ontrad icted b y other witnes ses w ho tes tified tha t they sa w Ha ll,

and not Appellant, rummaging through Johnson’s pockets.               However, “[t]he

credibility of the witnesses, the weight to be given their testimony, and the

reconciliation of conflicts in the evide nce are matters entruste d exclusive ly to the




                                          -11-
jury as the triers of fact.” State v. Cribbs, 967 S.W .2d 773, 793 (Tenn. 199 8).

The jury obvious ly believed H all. This issu e has n o merit.



                 III. APPELLANT’S PRE-TRIAL STATEMENT




      Appellant conte nds th at the tria l court e rred w hen it denied his motio n to

suppre ss the pre -trial statem ent that he made to police. Specifically, Appellant

claims that his statement was inadmissible under the Fifth Amendment to the

United States Constitution and Article I, Section 9 of the Tennessee Constitution

because the statement was given involuntarily. We disagree.



      The Fifth Amend ment to the Unite d States Constitu tion provide s in part that

“no person . . . shall be compelled in any criminal case to be a witness against

himse lf.” U.S. Cons t. amend. V . Similarly, Article I, Section 9 of the Tennessee

Constitution states that “in all criminal prosecutions, the accused . . . shall not be

compelled to give evidence against himself.” Tenn . Const. art. I, § 9. Howe ver,

an accused m ay waive this right against s elf-incrimin ation. Miranda v. Arizona,

384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 1 6 L.Ed.2 d 694 (1 966). In Miranda, the

United States Supreme Court held that a suspect

      must be warn ed prior to a ny ques tioning that he ha s the rig ht to rem ain
      silent, that anything he says can be used against him in a court of law, that
      he has the right to the presence of an attorney, and that if he cannot afford
      an attorney one will be appointed for him prior to any questioning if he so
      desires.

384 U.S. at 479, 86 S.Ct. at 1630. The Supreme Court held that a suspect may

know ingly and intelligently waive the right against self-incrimination only after

being apprised of these rig hts. Id. Acco rdingly , a con stitution al waiver of the

right against self-incrimination req uires the a ccused to mak e an intellige nt,

                                         -12-
knowing, and voluntary waiver of the rights afforded b y Miranda. Id. 384 U.S. at

444, 86 S.C t. at 161 2. A co urt ma y conc lude th at a de fenda nt volun tarily waived

his rights if, unde r the totality of the circumstances, the court determines that the

waiver was uncoerced and that the defendant understood the consequences of

waiver. State v. Stephenson, 878 S.W.2d 530, 545 (Tenn. 1994) (citations

omitted).



       At the suppres sion hearing, D etective Smith testified that before Appellant

made his statement, Smith read Appellant’s constitutional rights to him. Smith

testified that Appellant then stated that he understood his rights and he signed

a waiver of rights form. Appellant testified that Sm ith read his constitution al rights

to him, bu t he claim ed that he did not un derstan d his rights .



       Appellant claims that his statement was involuntary because he was under

the influence of marijua na whe n he ga ve the sta tement. Although Appellant

testified that he had used marijuana at 6:00 or 7:00 a.m. on the day that he made

the statem ent, he adm itted tha t he ne ver told Smith about this drug use when he

made his statem ent at 4:40 p.m. When asked whether he was still intoxicated

when he made the statement, Appellant replied that he still had “some

symptoms” and he was depressed. However, Smith testified that Appellant

stated that he was not under the influence of drugs and he did not appear to be

under the influence of alcohol or drugs when he made the statement. After

listening to this testimony, the trial court stated th at even if it was true that

Appellant had smoked marijuana at 7:00 a.m. on the day that he made the

statem ent, there was no basis for finding that Appellant was still under the

influence of marijua na whe n he m ade the statem ent.

                                          -13-
       Appellant also claims that his statement was involuntary because it was

coerced. Appellant testified that Detective Smith told him that if he did not give

the police something to help their case, they would charge Appellant’s mother as

an accessory to murder. Appellant also testified that during a five minute break

that was not rec orded , Smith remin ded h im tha t murd er carr ied a p ossib le penalty

of death. However, Smith testified that there was never an unrecorded fiv e

minute break in the interview and he denied e ven men tioning the death penalty.

Smith also denied that he ever threatened to charge Appellant’s mother as an

accessory. After listenin g to this testim ony, the trial c ourt foun d that Sm ith had

never mentio ned the death pena lty or thre atene d to ch arge A ppella nt’s mother.

Thus, the trial c ourt fou nd tha t unde r the tota lity of the c ircum stanc es, Ap pellan t’s

statem ent was voluntarily m ade afte r a valid waive r of his rights.



       “[A] trial cou rt’s findin gs of fact in a supp ressio n hea ring will b e uph eld

unless the evidence p repondera tes otherwise.” State v. Odom, 928 S.W.2d 18,

23 (T enn. 1 996). T he evid ence in this case does not preponderate against the

trial court’s find ings. Th is issue ha s no m erit.



IV. PRE-TRIAL IDENTIFICATION OF APPELLANT BY A STATE WITNESS




       Appellant contends that the trial court erred when it denied his motion to

suppress the pre -trial identification of Appellant by McKell. Specifically, Appellant

claims that the identification was inadmissible because the identification

procedures used by the police were unduly suggestive. We disagree.




                                             -14-
         The United States Supreme Court has stated that due process is violated

if an identification procedure was so suggestive as to give rise to “a very

substantial likelihood of irreparable m isidentification.” Simmons v. United States,

390 U.S. 37 7, 384, 8 8 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). However, the

Supreme Court has also stated that even when pre-trial identification procedures

are found to be s ugge stive, ou t-of-co urt and in-cou rt identific ations may s till be

admis sible if the ide ntification wa s reliable. Neil v. Biggers, 409 U.S. 188, 199,

93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). It is the likelihood of misidentification

that violates du e proce ss and renders the identifica tion inadm issible. Id. In Neil,

the Supreme Court listed the factors to be considered in determining whether the

identification was too unreliable to be admitted into evidence:

         1. the opportunity of the witness to view the criminal at the time of the
crime;
         2.   the   witness’ degree of attention at the time of the crime;
         3.   the   accuracy of the witness’ prior description;
         4.   the   level of certainty demonstrated at the confrontation;
         5.   the   length of time between the crime and the confrontation.

409 U.S. at 199–200, 93 S.Ct. at 382.



         Initially, Appellant argues that the ph otograp hic line-up used b y McKe ll to

identify Appellant was improperly suggestive because the photograph of

Appellant is the on ly one in which the subject is wearing a red shirt. We cannot

agree that the photographic line-up was unduly suggestive merely because

Appellant was the only subject wearing a red shirt. We have reviewed the

photo graph ic array sho wn to M cKell, and although Appella nt is the only man

wearing a red shirt, we note that no one color predominates. Indeed, the

photo graph ic line-up consists of three men wearing navy blue or black shirts, two

men wearing white shirts, and one man wearing a red sh irt. In add ition, all six



                                            -15-
men are African-A merica n, appe ar to be of the same age, and have similar facial

features. Thus, we agree with the trial court that although it may have been

prefer able if all six men had been wearing the same color shirt, the fact that they

were not does not mean that the line-up was unduly su ggestive . See State v.

Edwards, 868 S.W.2d 682, 694 (Tenn. Crim. App. 1993) (stating that “a lineup

would be considered unduly suggestive only when the other participants were

grossly dissimilar” to the d efendant) (citation om itted).



       Appellant also argues th at the photogra phic line-up was unduly sugg estive

because it contained the same photograph of Appellant that McKell had seen on

television before he was shown the line-up. However, the record indicates that

although Appellant introduced evidence at the suppress ion hea ring that a

photograph of Appellant was shown on television, Appellant failed to introduce

evidence at the hearing showing that it was the same photograph that was used

in the line-up. Although Appellant introduced evidence at trial that it was the

same photograph, the trial court accredited McKell’s testimony that he had not

seen the photograph on television, even though McKell’s mother testified that she

believed that he ha d seen it.



       Even if the photographic line-up could be considered impro perly

suggestive, evidence of the identification by McKell would still be admissible

under the test set forth by the Supreme Cour t in Neil. First, the record indicates

that McKell had a good opportunity to view Appellant at the time of the shooting.

McK ell testified that he initially observed Appellant for fifteen to thirty minutes and

he then periodically observed Appellant for another hour while Appellant was

playing dice. McKell also testified that although it was night, there was a bright

                                          -16-
light in the area . Second, the record indicates that McKell was paying attention

to Appellant on the night of the shooting. Although McKell admitted that he had

no real reason to pay attention to Appellant before the shoo ting oc curred , McK ell

denied that he never g ot a good look at Appellant. Third, the record indicates

that M cKell had give n an ac curate d escription of Appe llant. Indeed, the rec ord

indicates that on the night of the shooting, McKell told the police that the shooter

had braids with be ads in them , was w earing dark c lothes , and h ad da rker sk in

than the other m an he w as with. The record also ind icates that Mc Kell ga ve this

description before Appellant’s photograph was shown on television. Fourth, the

record indicates that McKell identified Appellant’s photograph as soon as the line-

up was shown to him. Finally , the record indicates that the identification was

reliable because it took place only five days after the shoo ting. See, e.g., State

v. Strickland, 885 S .W .2d 85 , 88 (T enn. C rim. A pp. 19 93 ) (ho lding that

identification that took place one week after the crime w as reliable ). In short, we

hold that the photographic line-up was not so suggestive that introduction of

evidence about McKell’s identification of Appellant’s photograph and McK ell’s

subsequent in-court identification of Appe llant viola ted du e proc ess. T his issue

has no merit.



                           V. JURY INSTRUCTIONS




      Appellant contends tha t the trial court erred when it instructed the jury

pursuant to Tennessee Code Annotated section 40-35-201 about the time period

that Appellant would be required to serve before he would be eligible for parole.

Specifically, Appellant claims that section 40-35-201 is un constitution al. W e

disagree.

                                        -17-
       The record indicates that before trial, Appellant filed several motions

requesting jury instructions about the possible range of punishment for each of

the charged offenses as well as all lesser included offenses. At the same time

Appellant filed these motions, Appellant also filed a motion stating that the trial

court shou ld not instruct the jury about parole eligibility pursuant to section 40-35-

201 becau se that se ction was uncon stitutional.        In resp onse to App ellant’s

motion, the trial court cautioned Appellant that the requested instructions about

range of punishment would require the court to comply with section 40-35-201

and also instru ct the jury ab out paro le eligibility. At the close of trial, the court

instructed the jury about both the possible range of punishment and parole

eligibility for the va rious offen ses.



       When John son w as killed in 1994, Tennessee Code Annotated section 40-

35-201 provided , in relevant p art:

       (b)(1) In all contested criminal cases, except for capital crimes which are
       governed by the procedures contained in §§ 39-13-204 and 39-13-205,
       upon the motion o f either party, filed with the court prior to the selection of
       the jury, the court s hall charge the possible penalties for the offense
       charged and all lesser included offenses.
              (2)(A) (i) When a charge as to possible penalties has been requested
              pursuant to sub division (b)(1), th e judg e sha ll also include in the
              instructions for the jury to weigh and consider the me aning o f a
              sentence of imprisonment fo r the offense charged and any lesser
              included offens es. Su ch inst ruction shall include an app roximate
              calculation of the minimum number of years a person senten ced to
              imprisonment for the offense charged and lesser included offenses
              must serve before reach ing su ch pe rson’s earliest rele ase eligib ility
              date. Such calculation shall include such factors as the release
              eligibility percentage established by § 40-35-501, maximum and
              minimum sentence reduction credits authorized by § 41-21-236 and
              the governo r’s powe r to reduce prison overcr owdin g purs uant to title
              41, chapter 1, part 5, if applicable.
                      (ii) Such instruction s to the jury shall also include a statement
                      that whether a defendant is actually released from
                      incarceration on the date w hen s uch d efend ant is first eligible
                      for release is a discre tionary decision m ade by the bo ard of
                      paroles based upon many factors, and that such board has

                                          -18-
                        the authority to re quire the defendant to serve the en tire
                        senten ce imp osed b y the cou rt.
                 (B) O n an a nnua l basis, th e dep artme nt of co rrection shall provide
                 each judge exercis ing crim inal trial court jurisdiction with the
                 approximate calculation required in subdivision (2)(A). Such
                 calculation shall be b roken d own to s how the effect of each fa ctor
                 used in makin g such calculation . If the calculation provided by the
                 department to the judges changes because of a change in the law
                 or correctional policy, court intervention, the governor's prison
                 overcrowding policy or any other such circumstance, the department
                 shall send a revised calculation to the judges as such changes
                 occur.

Tenn. Code A nn. § 40-35-2 01 (1994). 2 Appellant con tends that this statute is

unconstitutional because it is unco nstitutio nally va gue, it vio lates d ue pro cess , it

deprives defendants of impartial juries, and it constitutes an unconstitutional

attempt by the legislature to exercise judicial powers. However, the Tennessee

Supreme Court has previously analyzed and rejected identical arguments. See

State v. King, 973 S.W .2d 586 (Te nn. 1998).                             Inde ed, the suprem e court

spec ifically held that this statute was not unco nstitutiona lly vague, id. at 590; that

an instruction under this statute did not violate due process by misleading the

jury, id. at 592; that an instruction under this statute did not violate due process

by depriving the defen dant of an impartial jur y, id. at 588 n.4; and that this statu te

does not violate the Separation of Powers Clause of the Tennessee Constitution,

id. at 592. T his issue has no merit.



                                   VI. LENGTH OF SENTENCE




        2
        A 1998 amendment rewrote subsection (b) to provide:
       In all contested criminal cases, except for capital crimes which are governed by the procedures
       contained in §§ 39-13-204 and 39-13-205, and as necessary to comply with the Constitution of
       Ten nes see , article VI, se ction 14, a nd § 4 0-35 -301 , the ju dge shall n ot ins truct the ju ry, nor shall
       the attorneys be permitted to comment at any time to the jury, on possible penalties for the
       offense charged nor all lesser included offenses.
 Tenn. Code An n. § 40-35-201(b) (Supp. 1998 ).

                                                       -19-
      Appellant contends tha t the trial court erroneously sentenced him to a

longer term than he deserves for the robbery conviction. We disagree.



      “When reviewing senten cing issu es . . . including the granting or denial of

probation and the length of sentence, the appellate cou rt shall conduc t a de novo

review on the record of such issues. Such review shall be conducted with a

presumption that the determinations made by the co urt from which the ap peal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, the

presum ption of correc tness which acco mpa nies th e trial co urt’s ac tion is

cond itioned upon the affirma tive showing in the re cord that the trial court

considered the sentencing principles and all rele vant facts a nd circum stance s.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must cons ider all the evidence, the presentence report, the sentencing principles,

the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s

statements, the nature and character of the offense, and the defendant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169.             “The defendant has the burden of

demonstrating that the sentence is imprope r.” Id. Beca use th e reco rd in this

case indicates that the trial court did n ot properly cons ider the sentencing

principles and all releva nt facts and c ircum stanc es, ou r review is de novo without

a presumption of correctness.



      Initially, we note that robb ery is a Cla ss C felo ny. See Tenn . Code Ann.

§ 39-17-401(b) (1997). The sentence for a Range I offender convicted of a Class

C felony is between three and six years. Tenn. Code Ann. § 40-35-112(a)(3)

(1997). When there are enhancement but no mitigating factors, the court may

                                         -20-
set the sentence above the minimum within the applicable sentencing range.

Tenn. Code Ann. § 40-35-210(d) (1997).              When both enhancement and

mitigating factors are applicable to a sentence, the cour t is directed to begin w ith

the minimum sentence, enhance the sentence within the range as appropriate for

the enhancement factors, and then reduce the sentence within the range as

approp riate for the m itigating facto rs. Tenn . Code Ann. § 40-35-210(e) (1997).



       In sentencing Appellant to a term of five years for his robbery conviction,

the trial court determined that enhancement factor (1) applied because Appellant

had a previous history of criminal convictions or behavior in addition to those

necessa ry to establish the app ropriate ra nge, tha t enhan ceme nt factor (4) applie d

because the victim of the offense was particularly vulnerable due to age, and that

enhancement factor (8) applied be cause Ap pellant had a p revious history of

unwillingness to com ply with the condition s of a sen tence invo lving releas e into

the community.      See Tenn. C ode Ann . § 40-35-114 (1), (4), & (8) (1997).

Although the rec ord is not en tirely clear, the trial court apparently determined that

none of the enumerated mitigating factors of Tennessee Code Annotated section

40-35-1 13 app lied.



       Appellant does not challenge the application of enh ancem ent factor (1),

and we co nclud e that it w as co rrectly applied. Indeed , the record indicates that

Appellant has previous convictions for attempted burglary, driving on a revoked

license, reckless driving, a weapons offense, and two con victions for th eft. W e

conclude in o ur de novo review tha t this factor is e ntitled to sign ificant weig ht.




                                          -21-
       Appellant similarly does not challenge the application of enhancement

factor (8), and we also agree that this factor was correctly applied. Indeed, the

record indicates that Appellant has previously violated the terms of probation and

that violation resulted in the revoc ation of his probatio n.



       Appellant does challe nge the trial court’s application of enhancement factor

(4). Specifically, Appellant contends that this factor should not have been applied

because other th an his age of fifteen years, there was no proof that Johnson had

any particular vulnerability. We conc lude th at the tria l court e rred w hen it applied

enhancement factor (4). As stated by this court in State v. Butler, 900 S.W.2d

305, 31 3 (Ten n. Crim. A pp. 199 4),

       [A] victim is particu larly vulner able w ithin the mea ning o f this enhancement
       factor when the victim lacks the ability to resist the commission of the
       crime due to age, a physic al con dition, o r a me ntal co ndition . A victim is
       also particu larly vulnerab le when his or her a bility to summons assistance
       is impaired; or the victim does not have the capacity to testify against the
       perpetrator of the c rime. Howe ver, a finding that one of these conditions
       exists does n ot, as a m atter of law, m ean tha t this facto r is auto matic ally
       considered. The appellant must have taken advantage of one or more of
       these condition s during th e com mission of the crime . The state had the
       burden of establish ing the lim itations tha t render th e victim “particu larly
       vulnerable.” The state also had the burden of establishing that the
       condition which rende red the victim “p articula rly vulnerable” was a factor
       in the commission of the offense.

Here, the state fa iled to meet its burden. There is no proof in the record that

John son’s age h ad an y effect o n his ability to resist commission of the robbery,

on his ability to summon help, or his ability to testify against Appellant if he had

not been k illed. Further, there is no proof that Appellant took advantage of

John son’s age or any other condition when he shot him in the head and to ok his

money. See, e.g., id. (holding that enhancement factor (4) did not apply in a

murder case because the victim’s age had nothing to do with resisting the

unexpecte d firing of a gun).

                                          -22-
      Appellant also challenges the tria l court’s failure to apply any mitigating

factors to his sentence. Specifically, Appellant contends that mitigating factor (6)

applied in that Appe llant lac ked s ubsta ntial jud gme nt bec ause of his youth. See

Tenn. Code Ann. § 4 0-35-11 3(6) (199 7). Wh en de termin ing the applicability of

this mitigating factor, the sentencing c ourt should consider “the defendant’s age,

education, maturity, experience, mental capacity or development, and any other

pertinent circums tance ten ding to demonstrate the defendant’s ability or inability

to appreciate the nature of his con duct.” State v. Adams, 864 S.W.2d 31, 33

(Tenn. 1993). In support of his contention, Appellant merely states that he was

twenty years old at the time of the robbery. Appellant has failed to indicate how

his age or anything else affected his judgm ent when h e comm itted the robbery.

Indeed, the record indicates that Appellant is acquainted with the criminal justice

system and further, that he had the presence of mind to attem pt to co ver up his

involvement in the crime by altering his appearance, washing the money and the

gun, and reloading the gun to make it appear as though it had not been fired.

Thus, mitigating factor (6) was not applicable.



      The State conte nds th at the tria l court s hould have applied enhancement

factor (6) because the injuries to the victim were particularly great and

enhancement factor (9) because Appellant used a firearm in the commission of

the robbery. See Tenn. Code Ann. § 4 0-35-11 4(6), (9) (19 97). W e agree . It

goes without saying that de ath is a “particularly great” perso nal injury and further,

it is undisputed that Appellant used a gun when he committed the robbery.

Neither one of these factors is an element of or is inherent in the crime of

robbery.    See Tenn. C ode Ann . § 40-35-401 (a) (1997) (“Ro bbery is the

intentional or know ing theft of property from the person of another by violence or

                                         -23-
putting the pe rson in fear.”). Thus, we co nclude that the trial cou rt should have

applied enh ancem ent factors (6) and (9) to Appellant’s sen tence for robbe ry.



         In our de novo review, we conclude that four enhancement and no

mitigating factors apply to Appe llant’s se ntenc e for rob bery. T hus, w e hold that

a sentence of five years is entirely appropriate in this case. This issue has no

merit.



                        VII. CONSECUTIVE SENTENCING




         Appellant contends that the trial court erred when it ordered his sentences

to run consecutively. We disagree.



         Consec utive sentencing is g overned by T ennessee Code Annotated

section 40-35-115.      The trial court has the discretion to order consecu tive

sentencing if it finds that one or more of the requ ired statuto ry criteria exist. State

v. Black, 924 S.W .2d 912, 917 (Te nn. C rim. A pp. 19 95). Fu rther, th e cou rt is

required to determine whether the c onsecutive se ntences (1) a re reasona bly

related to the severity of the offenses committed; (2) serve to protec t the pu blic

from further criminal conduct by the offende r; and (3) are congruent with general

principles of senten cing. State v. Wilkerson, 905 S.W .2d 933, 939 (Tenn. 199 5).



         In imposing consecutive sentences, the trial court found that Appellant was

a dangerous offender whose behavior indicates little or no regard for hum an life

and who has no hesitation in comm itting a crime in which th e risk to hu man life




                                          -24-
is high. See Tenn. C ode Ann . § 40-35-115 (4) (1997). Specifically, the trial court

stated that

      [T]he act that was committed[,] that the Jury accepted and return ed the ir
      verdict on[,] has got to be one that would be done by a person whose
      behavior indicates little or no regard for human life and no hesitation about
      committing a crime in which the risk to human life is high. . . . [I]f a young
      man, kneeling down, rolling dice is shot one time in the head and four
      times in the back and le ft to die in a totally senseless, cruel[,] outrageous
      way, the person who does tha t[,] that this Jury fo und do es that[,] ha s to be
      a person who considers very little regard in connection with their behavior
      for hum an life.


      W e agree that this brutal murder of a young man who was merely engaged

in playing a game of dice demonstrates that Appellant is a dangerous offender

who has little or no regard for human life and has no hesitation about committing

a crime in which the risk to human life is high. Indeed, the record indicates that

Appellant placed his gun on or very near the top of Johnson’s head when

Johnson was kneeling on the ground and then shot Johnson once in the head

and four times in the back. Further, although the trial court made no express

finding, we conclud e in our de novo review that conse cutive sentence s are

necessa ry to protect the public from future criminal conduct of Appellant. Indeed,

Appe llant’s criminal record indicates that his criminal conduct has beco me m ore

and more serious over time. In addition, his callous comment that Johnson was

“just one less nigger [he had] to worry about” indicates that he poses a continuing

threat to the p ublic.   F inally, the cru el and sens eless nature of App ellant’s

conduct indica tes tha t cons ecutive sentences are reasonably related to the

severity of the offenses and are congruent with general principles of sentencing.

This issu e has n o merit.



      Accordingly, the judgment of the trial court is AFFIRMED.



                                        -25-
                         ____________________________________
                         JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
WILLIAM M. BARKER, SPECIAL JUDGE




                             -26-
