State of Tennessee v. Jermaine Hughey ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 7, 2006
STATE OF TENNESSEE v. JERMAINE HUGHEY
Appeal from the Criminal Court for Shelby County
Nos. 03-00283, 03-00284 Joseph B. Dailey, Judge
No. W2004-01074-CCA-R3-CD - Filed July 18, 2006
The defendant, Jermaine Hughey, was convicted of four counts of aggravated robbery, a Class B
felony, and four counts of attempted aggravated robbery, a Class C felony. The trial court sentenced
the defendant as a Range I, standard offender to eleven years for each aggravated robbery conviction
and five years for each attempted aggravated robbery conviction. The trial court ordered (1) that in
Case No. 03-00283, the three attempted aggravated robbery sentences be served concurrently to each
other and consecutively to the aggravated robbery sentence, for a total sentence of sixteen years; (2)
that in Case No. 03-00284, the three aggravated robbery and one attempted robbery sentences be
served concurrently to each other, for a total sentence of eleven years; and (3) that the sentences in
Case No. 03-00284 be served consecutively to the sentences in Case No. 03-00283, for an effective
sentence of twenty-seven years in the Department of Correction. The defendant appeals claiming:
(1) that the evidence was insufficient to support the verdict, (2) that the trial court erred in allowing
the interpreter to participate in the trial, (3) that the trial court erred in allowing a witness’s testimony
and in not allowing the defendant to cross-examine witnesses about their immigrant status, (4) that
the prosecutor made improper comments about the defendant’s right to testify, (5) that the trial court
erred in its instructions to the jury on lesser included offenses, and (6) that the trial court erred in
sentencing. We affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE, J., joined.
Mark Albert Mesler, II, Memphis, Tennessee (on appeal), and Leslie Irwin Ballin, Memphis,
Tennessee (at trial), for the appellant, Jermaine Hughey.
Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Stephen Patrick Jones, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
This case relates to the defendant’s robbery of victims at an apartment complex on two
different occasions. A Shelby County Grand Jury indicted the defendant on the following counts:
Case No. 03-00283 - Robbery on August 9, 2002
Count Offense Victim1
1 Agg. Rob. - Weapon Tirado
2 Agg. Rob. - Fear Tirado
3 Agg. Rob. - Weapon J. Torres
4 Agg. Rob. - Fear J. Torres
5 Agg. Rob. - Weapon E. Torres
6 Agg. Rob. - Fear E. Torres
7 Attp. Agg. Rob. - Weapon Gutierrez
Case No. 03-00284 - Robbery on August 30, 2002
Count Offense Victim
1 Agg. Rob. - Weapon Villapando
2 Agg. Rob. - Fear Villapando
3 Agg. Rob. - Weapon Gutierrez
4 Agg. Rob. - Fear Gutierrez
5 Agg. Rob. - Weapon J. Torres
6 Agg. Rob. - Fear J. Torres
7 Agg. Rob. - Weapon E. Torres
8 Agg. Rob. - Fear E. Torres
At the trial, Sylvia Merediz worked as an interpreter for the witnesses who did not speak
English. Ms. Merediz translated for Elpidio Aaron Savin Torres, Jose Yahir Cerda Gutierrez, and
Jose Miguel Savin Torres.
Elpidio Aaron Savin Torres testified that he had lived in Memphis for three years and was
from Mexico but was not an American citizen. He said that in August 2002, he was the victim of
two robberies at his brother’s apartment. He said that on August 9, 2002, between 11:00 a.m. and
noon, he went to his brother’s apartment to ask him about finding work. He said that he was in the
bedroom with his brother, Jose Miguel Savin Torres, and that his sister-in-law, Maria Conception
Tirado, was in the bathroom or kitchen. He said that his brother-in-law, Jose Yahir Cerda Gutierrez,
was at the apartment and that Mr. Gutierrez told him he was going outside to smoke a cigarette. He
said he was standing up to go outside with Mr. Gutierrez when he heard Mr. Gutierrez say, “We are
f----- up. They want our money.”
1
In the indictments, the victims are referred to as Maria Tirado, Jose Savin, Eldidio [sic] Savin, Jose Cerda, and
Carlos Villapando. W e will refer to the victims by the names they stated when testifying: Maria Conception Tirado, Jose
Miguel Savin Torres, Elpidio Aaron Savin Torres, Jose Yahir Cerda Gutierrez, and Carlos Villapando.
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Elpidio Torres testified that a man with a small black gun told them to go inside and told his
sister-in-law to come into the room. He said the man told them to get on the ground because “I
believe he didn’t want us to see him.” He said that the man said, “Give me your wallet,” and that
he took out his wallet and showed the man it contained no money before giving the man ten dollars
from his pocket. He said the man also took his cell phone and was pointing the gun at him. He said
his sister-in-law spoke English and told the man they did not have any money because they were not
working at the time. He said the man told them he was leaving and was going to count to ten. He
said that as the man was counting and closing the door, his sister-in-law called the police. He said
he did not recognize the man who robbed him at the time of the robbery. He said he was able to get
a good look at the man inside the apartment and could see the man’s face. He said that the man
touched the door handle as he was leaving the apartment and that the police took fingerprints from
the door handle. He said his sister-in-law translated for him when the police arrived.
Elpidio Torres testified that he again saw the man who robbed him on August 30, 2002,
around 5:30 to 6:30 p.m., when the man robbed him a second time. He said that he and his brother
were outside his brother’s apartment talking to a neighbor about the previous robbery and that his
brother was washing his truck. He said that he saw two black men and that he said, “Oh, oh, here
they come again. They’re either going to rob us or they’re after us.” He said that he knew it was the
same man who had robbed him previously when he saw the man coming toward him and that he had
no doubt it was the same man. He said that the man he recognized had a gun and that the other man
did not have a weapon. He said the two men approached him, his brother, Mr. Gutierrez, and the
neighbor who had been asking about the previous robbery. He said the two men frisked them and
asked for their money. He said that he threw his wallet and that the robbers took seven or eight
dollars. He said the man with the gun pointed it at him while the other man went through his
pockets. He said he was fearful because “these things happen all the time. Sometimes they take your
money and they still kill you.” He said his sister-in-law was inside the apartment, and they told her
to call the police. He identified the defendant in the courtroom as the man who robbed him twice.
Elpidio Torres testified that he saw the defendant after the second robbery when he and Mr.
Gutierrez were in the parking lot of the apartment complex. He said that he saw the defendant walk
over to the park and that he told his brother and sister-in-law that he had seen the man who robbed
him twice. He said that a friend, Nacho, drove his brother and sister-in-law over to the park but that
he did not go with them. He said that he did not see the police make an arrest and that he was not
asked to identify anyone at the time. He said he gave a statement to the police and identified the
defendant from two photographs. He said an interpreter who worked at the police department
translated for him. He said he had no doubt the man he identified in the photograph, the defendant,
was the man who robbed him.
On cross-examination, Elpidio Torres acknowledged he had testified he “glanced” four times
at the defendant inside his brother’s apartment. He said he also watched the defendant out of the
corner of his eye. He said he saw the robber face-to-face when the robber was coming in but only
saw a profile of the robber when he was picking up their wallets. He acknowledged his sister-in-law
translated for him when the police asked him to describe the robber after the first robbery. He
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acknowledged he told his brother and sister-in-law the man who robbed them was in the park with
a cell phone and told them where to look.
Elpidio Torres acknowledged he went with his brother and sister-in-law to the police station
to look at some photographs on September 6, 2002. He said that he identified the photograph of the
defendant and that he was not present when his sister-in-law viewed the photographs and made an
identification. He said his sister-in-law had not gone over his statement with him. He acknowledged
that the day before he testified at the trial, he told his brother and sister-in-law that the defendant was
“free” and not in jail because he had seen the defendant walking in the hallway. He denied talking
to Mr. Gutierrez about identifying someone in court. He acknowledged the defendant was the only
black man sitting in the courtroom where the accused normally would sit.
On re-direct examination, Elpidio Torres testified that he met with the assistant district
attorney and Ms. Merediz, the interpreter, to discuss his testimony but that no one else was in the
room. He said he and Mr. Gutierrez had seen the defendant in the hallway the day before while there
was a break in the trial. He said that he recognized the defendant at the preliminary hearing and that
he identified the defendant because he recognized the defendant as the man who robbed him and not
because he was the man in the photograph he was shown.
Jose Yahir Cerda Gutierrez testified that he was from Mexico and had lived in Memphis for
three and one-half years. He said that on August 9, 2002, he was living in an apartment with Ms.
Tirado and Jose Torres, and Elpidio Torres was visiting. He said he went outside to smoke and saw
a black man come from behind a car. He said that he first saw the man from about five to six meters
away and that the man told him, “Give me your money,” in English. He said that he was bending
down and that the man pointed the gun at his head. He said he stood up, and the man reached into
his pockets and took one dollar. He demonstrated how the man pushed him inside with the gun
pointed at him. He said the man threw him onto the floor and asked for the other three victims’
wallets. He said the man checked the other victims for money but only took money and a cell phone
from Elpidio Torres. He said that he had never seen the robber before the robbery but that he saw
the robber’s face both inside and outside of the apartment.
Mr. Gutierrez testified that he saw the robber again when he was robbed a second time
outside his apartment. He said he, Jose Torres, Elpidio Torres, and a neighbor were outside the
apartment standing at the back of a truck. He said that he saw the defendant and another man come
from the front of the truck and that the defendant had a gun. He said he recognized the defendant
as the same man who had robbed him previously. He said the defendant pointed the gun at them
while the other man checked their pockets. He said they took twenty dollars from him and took
money from two of the other victims. He said that after they took the money, the two men walked
away behind the apartment complex.
Mr. Gutierrez testified that he saw the defendant three or four days after the second robbery
when the defendant walked in front of the car in which Mr. Gutierrez was riding. He said that the
defendant was with three other people and that he walked to the park near the apartment complex.
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He said he was approximately five to six meters away from the defendant and was surprised to see
him. He said that Elpidio Torres told Ms. Tirado and Jose Torres about seeing the defendant and that
he remained at the apartment while they went to see if it was the man who robbed them. He said he
did not see the police arrest the defendant and was not asked to identify him at the apartment
complex. He said that he gave a statement to the police at the police station and that an interpreter
who worked at the office translated for him. He said the police officers showed him a photograph
lineup with several pictures on one page and showed him an individual photograph. He said he was
able to identify the man who robbed him because he would never forget him. He identified the
defendant at the trial as the man who robbed him on both occasions. He said he was one “hundred
percent” sure the defendant was the man who robbed him twice.
On cross-examination, Mr. Gutierrez testified that he had never seen the defendant before
the first robbery. He said Elpidio Torres told Jose Torres and Ms. Tirado that they had seen the black
man who robbed them in the park but did not say anything else to describe him. He acknowledged
he identified the defendant’s photograph on September 6, 2002. He also acknowledged a police
officer showed him a six-photograph lineup on September 10, 2002, at his apartment. He
acknowledged he told the police officer he was not sure if the picture he selected was the second
robber from the second robbery. He acknowledged he identified the defendant at a previous hearing
but was unable to identify the other robber. He said he was one-hundred percent sure the defendant
was the man who robbed him.
Memphis Police Officer Patricia Turnmire testified that she worked for the crime-scene unit
and that on August 9, 2002, between 11:20 a.m. and noon, she went to the Waterstone Landing
Apartments to investigate a home invasion. She said she took photographs of the scene and
fingerprinted the doorknob but found no fingerprints.
Memphis Police Sergeant Joseph Pearlman testified that he investigated two robberies on
August 9 and 30, 2002, occurring at the same location. He said Ms. Tirado said she thought the
robber lived in the apartment complex because she thought she had seen him before. He said he later
received a telephone call from Ms. Tirado who said she had seen the man who robbed them. He said
that he told her to watch the man until the police could get there and that she called back to say the
police had arrested the man. He said they called the victims and asked them to come into the robbery
office to give statements. He said that a clerk in the robbery office spoke Spanish and translated for
them and that the victims were separated when they gave their statements and made photograph
identifications. He said they showed the victims a single photograph because Ms. Tirado had
identified the defendant to the police as the man who had robbed them. He said the photograph
lineup shown to the victims contained a photograph of Deverance Bledsoe, the co-defendant, in the
second robbery. He said the gun was never recovered from either robbery.
On cross-examination, Sergeant Pearlman acknowledged that he could have shown the
victims a photograph lineup with the defendant instead of a single photograph but did not. He
acknowledged he wrote in his report that Ms. Tirado, Jose Torres, and Mr. Gutierrez identified the
defendant as the male who robbed them when the police arrived at the park. He said that when he
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made the report, he asked Ms. Tirado if the other three victims had seen the person who was arrested
and that Ms. Tirado said they had. He acknowledged he relied on Officer Cartwright’s report on the
first robbery to make his report. He acknowledged that he obtained a search warrant to search the
defendant’s apartment but that they did not find any money or weapons.
Memphis Police Officer John Morris testified that on September 2, 2002, around 4:00 p.m.,
he arrested the defendant after one of the victims called the police and reported seeing the man who
robbed her. He said that he went to the Waterstone Landing Apartments and that a park was in the
apartment complex. He said that he saw a black male that matched the description he had received
over the radio and that he stopped the man and asked for his identification. He said that he called
Sergeant Pearlman and that Sergeant Pearlman was talking to the victim. He said that the victim said
she could see them and that the man they had was the person who robbed her. He said that he
arrested the man and that he did not take the man over to the witness. He identified the defendant
as the man he arrested. On cross-examination, Officer Morris acknowledged the defendant did not
have a gun on him when he was arrested.
Memphis Police Officer Timothy Reynolds testified that he arrested the defendant for the
second robbery at the defendant’s apartment at Waterstone Apartments. He said that Deverance
Bledsoe was there when the defendant was arrested but that he did not arrest Mr. Bledsoe until a
week or two later. Officer Reynolds acknowledged that the defendant did not have a gun on his
person and that he did not see a gun in plain view in the defendant’s apartment.
Jose Miguel Savin Torres testified that he was from Baja, California, and southern Mexico
and that he spoke a little English. He said that he lived in Memphis for approximately three and a
half years and that he was robbed twice. He said that the first robbery occurred at his apartment on
a Friday between 11:00 a.m. and noon and that his wife, his brother, and Mr. Gutierrez were there.
He said he was in his bedroom when he saw Mr. Gutierrez walk in with “his face of fear.” He said
that a man with a gun asked for their wallets and that he threw his wallet on the floor. He said the
robber picked it up, saw there was no money in it, and said, “I want money.” He said the robber took
money and a cell phone from his brother. He said he was looking at the robber the entire time until
the robber told him to lie on the floor. He said that after the robber left, he called 9-1-1 and said, “I
need help.” He said he told the operator a man with a gun was inside his house. He said he gave the
phone to his wife after the operator asked him a question he did not understand.
Jose Torres testified that he saw the robber again a week or two later when he was robbed
a second time. He said that the robbery occurred around 6:00 p.m., that he was outside cleaning his
truck, and that it was light outside. He said he, his brother, Mr. Gutierrez, and Mr. Villapando, were
talking about the first robbery. He said the man who robbed him came up to them carrying a gun and
told them to give him their money. He said that another man was with the robber and that the other
man checked their pockets. He said he recognized the man with the gun as the man who had robbed
him previously. He said the robbers took money from him.
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Jose Torres testified that he again saw the man who robbed them at the park in his apartment.
He said that his brother told him, “He’s at the park,” and that he recognized the man from the two
robberies when he saw him in the park. He said his wife called the police on her cell phone and gave
them a description of the man. He said he saw the police stop the man. He said that he went to the
police station with the other victims to give a statement but that when he gave his statement only the
police officer and a translator were there. He said that he spoke to the assistant district attorney the
day before he testified and that his wife translated for him because Ms. Merediz was not there. He
identified the defendant in the courtroom as the man who robbed him twice.
On cross-examination, Jose Torres acknowledged that he did not see money taken from Mr.
Gutierrez during the first robbery. He said money was taken from his brother during the first
robbery. He acknowledged his brother told him the man who robbed them was in the park and told
him how the man was dressed. He said that he saw the police arrest the defendant and that he and
his wife drove past the defendant while he was being arrested.
Maria Conception Tirado testified that she spoke both English and Spanish. She said that
she had lived in Memphis and that she was the victim of a robbery. She said that Mr. Gutierrez
walked into the apartment with someone behind him and that she thought he needed someone to
translate for him. She said that when the black man turned, she saw he had a gun pointed at Mr.
Gutierrez’ ribs. She said the lighting in the apartment was clear, the blinds were open, and the lamp
was on. She said the man told her to go into the kitchen, then called her into the hall, pushed her into
the bedroom, and told her to lie on the floor. She said she told the man she could not lie on the floor
because she was eight and a half months pregnant. She said that the man said, “Give me your f------
money” and that he had the gun pointed at them. She said the man took money and a cell phone
from Elpidio Torres but did not take anything from anyone else in the room. She said the man may
have taken something from Mr. Gutierrez when they were outside. She said that before leaving, the
man said, “Count to ten, close your eyes, and do not say anything.” She said that her husband called
9-1-1 and that she grabbed the phone from him once she heard the man leave the apartment. She
said she was able to see the robber when he first walked in and during the robbery when she was two
feet from him. She said that she recognized the robber from the apartment complex and that she told
the police she had seen him around the apartments before.
Ms. Tirado testified that two or three weeks after the robbery, her husband, Jose Torres, ran
into the house, locked the door, and said, “They robbed us again. Please call 9-1-1. It’s the same
guy.” She said that two days after her husband was robbed the second time, Elpidio Torres told her,
“The guy is in the park.” She said her brother told her the man was wearing a brown shirt. She said
that she and her husband went to the park in a friend’s car and that she saw a group of men. She said
that she looked at the man in the brown shirt and that she recognized him from the first robbery. She
said she called 9-1-1 from a cell phone and gave the operator the report number for the robbery. She
said that the police came and that she saw the police arrest the man. She said that she also called
Sergeant Pearlman and that Sergeant Pearlman told her to give the police a sign that they had the
right man. She said she gave a sign to one of the officers when they drove past the police car. She
said that Sergeant Pearlman asked if she was sure it was the man and that she said she was.
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Ms. Tirado testified that she gave a statement at the police station and that she was not with
the other victims when she gave the statement. She said she did not translate for the other victims
at the police station. She said she did translate during the week of the trial for the assistant district
attorney when he was going over her husband’s statement with her husband. She identified the
defendant in the courtroom as the man who robbed her. On cross-examination, Ms. Tirado testified
that she stared at the defendant for approximately five minutes while he was in the park until she
knew he was the robber.
Before charging the jury, the trial court reduced six of the charges.
Case No. 03-00283 - Robbery on August 9, 2002
Count Charged Offense Reduced To
1 Agg. Rob. - Weapon Attp. Agg. Rob. - Weapon
2 Agg. Rob. - Fear Attp. Agg. Rob. - Fear
3 Agg. Rob. - Weapon Attp. Agg. Rob. - Weapon
4 Agg. Rob. - Fear Attp. Agg. Rob. - Fear
Case No. 03-00284 - Robbery on August 30, 2002
Count Offense Reduced To
1 Agg. Rob. - Weapon Attp. Agg. Rob. - Weapon
2 Agg. Rob. - Fear Attp. Agg. Rob. - Fear
The jury found the defendant guilty of all counts. The trial court merged seven of the counts into
other counts.
Case No. 03-00283 - Robbery on August 9, 2002
Count Offense Charged to Jury Verdict Merged Sentence
1 Attp. Agg. Rob. - Weapon Guilty 5 years
2 Attp. Agg. Rob. - Fear Guilty Into Count 1
3 Attp. Agg. Rob. - Weapon Guilty 5 years
4 Attp. Agg. Rob. - Fear Guilty Into Count 3
5 Agg. Rob. - Weapon Guilty 11 years
6 Agg. Rob. - Fear Guilty Into Count 5
7 Attp. Agg. Rob. - Weapon Guilty 5 years
Case No. 03-00284 - Robbery August 30, 2002
Count Offense Charged to Jury Verdict Merged Sentence
1 Attp. Agg. Rob. - Weapon Guilty 5 years
2 Attp. Agg. Rob. - Fear Guilty Into Count 1
3 Agg. Rob. - Weapon Guilty 11 years
4 Agg. Rob. - Fear Guilty Into Count 3
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5 Agg. Rob. - Weapon Guilty 11 years
6 Agg. Rob. - Fear Guilty Into Count 5
7 Agg. Rob. - Weapon Guilty 11 years
8 Agg. Rob. - Fear Guilty Into Count 7
The trial court ordered the sentences in Counts 1, 3, and 7 to be served concurrently to each other
and consecutively to Count 5, for an effective sentence of sixteen years in Case No. 03-00283. The
trial court ordered the sentences in Counts 1, 3, 5, and 7 to be served concurrently to each other, for
an effective sentence of eleven years in Case No. 03-00284. The trial court ordered the sixteen-year
sentence in Case No. 03-00283 to be served consecutively to the eleven-year sentence in Case No.
03-00284, for a total sentence of twenty-seven years to be served as a Range I, standard offender.
I. SUFFICIENCY OF THE EVIDENCE
The defendant contends that no rational trier of fact could conclude the defendant is guilty
beyond a reasonable doubt. The defendant asserts that no physical evidence existed and that a gun
was never located. He asserts the police found no evidence of the crimes in the defendant’s
apartment. He asserts several of the victims had trouble remembering how many perpetrators were
involved in the first robbery. He asserts Sergeant Pearlman’s reports state the victims were all on
the porch during the first robbery, which differs from the testimony of the victims. He asserts the
victims were together when they reported the crime, identified the defendant, and made their
statements.
The state responds that the evidence was sufficient for a rational juror to find the defendant
guilty beyond a reasonable doubt. The state notes that the four victims testified that the defendant
robbed or attempted to rob them at gunpoint. The state argues that although minor differences
existed in their testimony, the testimony was very similar, giving credibility to the state’s version of
the events. The state argues physical evidence is not a necessary prerequisite to find that sufficient
evidence existed for the jury to find beyond a reasonable doubt that the defendant was guilty.
Our standard of review when the defendant questions the sufficiency of the evidence on
appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence; rather, we presume that the jury has resolved all conflicts in the testimony and drawn
all reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility are resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
Aggravated robbery, as it applies to the facts of this case, is the “intentional or knowing theft
of property from the person of another by violence or putting the person in fear” and “[a]ccomplished
with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably
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believe it to be a deadly weapon.” T.C.A. §§ 39-13-401, -402. To convict the defendant of the
attempted aggravated robbery offenses, the state must prove that the defendant “[i]ntentionally
engages in action or causes a result that would constitute [aggravated robbery] if the circumstances
surrounding the conduct were as the person believes them to be.” T.C.A. § 39-12-101(a)(1).
In the light most favorable to the state, the record supports the jury’s verdicts that the
defendant was guilty of aggravated robberies and attempted aggravated robberies on both occasions.
The four victims of the first robbery testified that the defendant came into their apartment, pointed
a gun at them, told them to lie on the floor, and demanded their money. The evidence showed the
defendant took ten dollars and a cell phone from Elpidio Torres during the first robbery.
Additionally, three of the four victims from the second robbery testified that the defendant and
another man approached them outside the apartment. The evidence showed the defendant had a gun
and pointed the gun at the victims during the second robbery while his accomplice checked the
victims’ pockets. Elpidio Torres testified the defendant took seven or eight dollars from him during
the second robbery. Mr. Gutierrez testified the defendant took twenty dollars from him during the
second robbery. Jose Torres testified that the defendant took money from him during the second
robbery and that the defendant demanded money at gunpoint from Mr. Villapando, the fourth victim
who did not testify. Elpidio Torres, Mr. Gutierrez, and Jose Torres testified they recognized the
defendant during the second robbery as the man who had robbed them previously. They, along with
Ms. Tirado, recognized the defendant when they saw him at the park of the apartment complex and
called the police. We conclude that the evidence was sufficient for a rational juror to find beyond
a reasonable doubt that the defendant committed the offenses of aggravated robbery of Elpidio
Torres and attempted aggravated robbery of Mr. Gutierrez, Jose Torres, and Ms. Tirado in Case No.
03-00283 and aggravated robbery of Elpidio Torres, Mr. Gutierrez, and Jose Torres and attempted
aggravated robbery of Mr. Villapando in Case No. 03-00284. The defendant is not entitled to relief
on this issue.
II. INTERPRETER
The defendant contends that the trial court erred in allowing the Spanish interpreter to
participate in the trial because the interpreter had participated in pretrial meetings with the assistant
district attorney and witnesses. The defendant asserts that he asked to call the interpreter as a witness
to make a record of his complaint about her participation in the trial and to discuss her expected
compensation but that his request was denied. The defendant notes that Canon 3 of Rule 41 of the
Tennessee Rules of the Supreme Court states an interpreter “shall be impartial and unbiased and
shall refrain from conduct that may give an appearance of bias.” He claims the interpreter’s meeting
with the assistant district attorney and the witnesses before the trial interfered with the objectivity
of the interpreter under Canon 3. He also argues that the interpreter should have declared in open
court the conflict and allowed the trial court to determine if she could serve.
The state responds that the trial court did not abuse its discretion in denying the defendant’s
motion for a mistrial. The state asserts the defendant failed to specify what actions by the interpreter
were improper. The state argues that the only possible conflict the interpreter could have had was
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that she was “involved in pretrial conferences with the state” and that although she did not disclose
this alleged conflict, the trial court determined the interpreter could serve in this case. The state also
contends that no rule exists barring an interpreter from assisting either party and serving as the
official court interpreter.
At the conclusion of Elpidio Torres’ testimony, the defendant requested a mistrial because
it “doesn’t feel right to have the official interpreter to be involved in pretrial conferences with the
state,” and it violates the defendant’s due process rights. The trial court found that
[I]n a perfect world, the state has its own employee that serves as an
interpreter, but she [left] the office
....
[The interpreter] - is a - in fact the only, at the present time,
state-certified court interpreter - is an extremely professional
individual and has taken an oath to translate accurately to the best of
her ability, and I have absolutely no reason, whatsoever, to suspect
that she would not do so. And I guess the jury, at this point, knows
that she assisted [the assistant district attorney] yesterday in the
translation in the pretrial matters, but that’s, I think, fairly
inconsequential in the whole scheme of things[.]
Canon 3 of Rule 41 of the Tennessee Rules of the Supreme Court addresses the impartiality
and avoidance of conflicts of interest for foreign language interpreters in Tennessee courts. It states
in pertinent part that
Whenever an interpreter has an actual or apparent conflict of interest,
the interpreter shall declare in open court before appointment such
conflict and let the court determine whether the interpreter may serve
in the case.
Tenn. Sup. Ct. R. 41, Canon 3.
The trial court’s appointment of an interpreter for a witness in a criminal case is a matter for
the trial court’s discretion and is subject to reversal only for an abuse of discretion. State v. Millsaps,
30 S.W.3d 364, 370 (Tenn. Crim. App. 2000). “[A]n appellate court should find an abuse of
discretion when it appears that a trial court applied an incorrect legal standard, or reached a decision
which is against logic or reasoning that caused an injustice to the party complaining.” State v.
Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (applying abuse of discretion standard on trial court’s
decision not to allow expert to testify). A defendant contending that a translation was inaccurate
must prove prejudice, and this court will not speculate about the accuracy of the translation.
Millsaps, 30 S.W.3d at 370.
-11-
The interpreter in this case should have disclosed to the trial court that she had translated for
the assistant district attorney during pretrial meetings with the victims. However, the record reflects
that the trial court addressed the possible conflict after the testimony of the first witness. We
acknowledge that the defense attorney asked the trial court to allow him to make a record of the
interpreter’s involvement of the proceedings and that the trial court denied the request. However,
the defense attorney first raised the issue at the end of the day on November 19, 2003, when he
objected because something “didn’t feel right” and did not state why the defendant would be
prejudiced by the interpreter translating during the trial. The trial court ruled on the objection and
placed its findings in the record. It was not until the end of the next day on November 20, 2003, that
the defense counsel requested to be able to make a record of the interpreter’s involvement, and by
that time, two more Spanish-speaking victims had testified. The trial court found the interpreter was
the only state certified interpreter, she had taken an oath to translate truthfully, and the court had no
reason to believe she was not translating truthfully. Additionally, the defendant has not
demonstrated or even alleged the translation was inaccurate. We conclude the trial court did not
abuse its discretion in allowing the interpreter to translate at the trial.
III. WITNESS TESTIMONY
The defendant contends that the trial court erred in allowing Elpidio Torres to testify about
other robberies involving Hispanic victims and to testify about the defendant’s state of mind. The
defendant also contends the trial court erred by not allowing the defendant to question witnesses
about their status in this country. The state asserts the trial court committed no error in allowing the
testimony of Elpidio Torres. It also asserts the trial court properly sustained the state’s objection to
the defendant’s asking Elpidio Torres if he was in the United States on a current work visa.
A. Testimony by Elpidio Torres
The defendant asserts the trial court erred in allowing Elpidio Torres to testify that he
“believe[d] [the defendant] didn’t want us to see him” and that “I didn’t want to look at him because
I didn’t think he wanted me to look at him,” because these statements called for speculation. He also
asserts the trial court erred in allowing Elpidio Torres to testify that at the time of the robbery, he was
feeling “fear - what one feels because these things happen all the time. Sometimes they take your
money and they still kill you.” He asserts that the comments became increasingly prejudicial and
that the trial court’s allowing the statements led the witness to believe that he was allowed to answer
questions inappropriately. He asserts that Elpidio Torres answered in response to a question on
cross-examination that “it’s not wasting my time because this has happened to a lot of us
Mexicans/Hispanics,” and that this comment was not appropriate or relevant and was made to
inflame the jury.
The state contends that the trial court did not err concerning the testimony of Elpidio Torres.
The state asserts the witness testified about his own state of mind, not the defendant’s, when he said
he believed the defendant did not want them to look at him. The state also asserts the witness’s
statement that robbers sometimes kill victims was relevant because the witness’s believing that made
-12-
it more likely that he was placed in fear. The state asserts that if the trial court erred in allowing
either of these two statements, the error was harmless beyond a reasonable doubt given the weight
of the evidence. The state asserts the defendant waived the issue regarding the statement by the
witness that “this happened to a lot of us Mexicans” for failing to object, failing to ask for it to be
stricken from the record, failing to ask for a curative instruction, and failing to request a mistrial.
According to Rule 401 of the Tennessee Rules of Evidence, 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 probable or less probable than it would be without the evidence.” Relevant evidence may still
be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403. The trial court has discretion
in determining if evidence meets the test for relevancy. State v. Forbes, 918 S.W.2d 431, 449 (Tenn.
Crim. App. 1995). Assessing the probative value and danger of unfair prejudice regarding the
evidence also falls within the trial court’s discretion. State v. Burlison, 868 S.W.2d 713, 720-21
(Tenn. Crim. App. 1993). This court will only reverse a trial court’s decision if the trial court abused
that discretion. State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995).
We first note that the defendant failed to take any corrective action or to object to Elpidio
Torres’ statement during cross-examination that “this happened to a lot of us Mexicans.” Therefore,
he has waived this issue. See T.R.A.P. 36(a) (relief is not required if a party “failed to take whatever
action was reasonably available to prevent or nullify the harmful effect of the error”).
The defendant contests the evidence relating to Elpidio Torres’ testimony regarding his belief
that the defendant did not want him or the other victims to look at the defendant. The state asked
Elpidio Torres how he felt when he saw the robber with the gun, asked why he gave the defendant
his money, and asked about his ability to see the defendant during the robbery. The victim
responded that “I believe he didn’t want us to see him” and that “I didn’t want to look at him because
I didn’t think he wanted me to look at him.” The record reflects the defendant’s attorney objected
the first time “to what he believes.” The trial court overruled the objection. The record reflects the
witness was explaining why he did not want to look at the defendant and was not testifying to the
defendant’s state of mind. We conclude that the testimony was relevant to the witness’s description
of the robbery and his ability to see the defendant and that the trial court did not abuse its discretion
in allowing the testimony.
Next, the defendant contests the evidence relating to Elpidio Torres’ testimony regarding
robberies of other Hispanics. In response to the prosecutor’s question, “What were you feeling?”
Elpidio Torres responded, “It was fear - what one feels because these things happen all the time.
Sometimes they take your money and they still kill you.” The defendant objected “to what they do
other times.” The trial court overruled the objection “to the extent it satisfies one of the elements
of the offense.” Fear is one of the elements of aggravated robbery. See T.C.A. §§ 39-13-401, -402.
Fear may be presumed from facts indicating sufficient cause for fear. Sloan v. State, 491 S.W.2d
858, 861 (Tenn. Crim. App. 1972). The witness responded to the question by stating he felt fear
-13-
and explained why he felt the fear. We conclude that this testimony was relevant to explain the
witness’s fear and that the trial court did not abuse its discretion in allowing this testimony.
B. Immigrant Status of Witnesses
The defendant contends the trial court erred by not allowing the defendant to question
witnesses about their status in this country because the question had a good faith basis and was
relevant to prior bad acts of the witnesses. He argues that if a person is legally in the country, it is
probative of truthfulness, because if the person is here illegally, he or she is “lying everyday.” He
asserts the trial court failed to conduct a hearing outside the presence of the jury as required by the
rule.
The state asserts that the defendant did not request a jury-out hearing on this issue. The state
argues the witnesses’ work status in the United States was not relevant under Rule 401 of the
Tennessee Rules of Evidence. The state asserts that because the defendant failed to request a jury-
out hearing, “neither the State nor this Court knows” if Elpidio Torres was in the country illegally.
The state also argues that an immigrant’s illegal work status is not probative of truthfulness. The
state compares an illegal work status to criminal trespass, which this court has stated does not
involve dishonesty. See State v. Philpott, 882 S.W.2d 394, 403 n.16 (Tenn. Crim. App. 1994). The
state asserts the defendant failed to cite any authority in which a court has found that a witness’s
illegal status in the United States was probative of the witness’s character for truthfulness. The state
contends that if the trial court did err, the error was harmless beyond a reasonable doubt.
The record reflects that on cross-examination the defendant’s attorney asked Elpidio Torres,
“Are you here on a current work visa?” The prosecutor asked to approach the judge, and a bench
conference was held.
[STATE]: Object to relevance.
[DEFENDANT]: It was made relevant by [the state] asking if he
was a citizen.
[STATE]: It goes to explain his language. The purpose
he’s here and whether or not he’s legal or not
is irrelevant.
[DEFENDANT]: He can explain language by asking the
question, “Do you speak English?”
[COURT]: I agree with that, and I agree that the question
regarding citizenship may not have been
relevant, but there was no objection to that,
-14-
and I don’t see any relevance to going any
deeper into it.
[DEFENDANT]: But I say it’s now become relevant based on
the direct examination -
[COURT]: Well, had there been an objection at the time,
I might have sustained it - in all likelihood I
would have sustained it; but at this point, I
just don’t think it’s relevant, and I’ll sustain -
[DEFENDANT]: And I apologize if I didn’t make my point
clear. I didn’t object, and I’m not suggesting
that I’m objecting now; but because the state
put it into relevance, and that is the reason I
want to ask about his status here is because
[the state] asked, on direct, whether or not he
was a citizen of this country.
[COURT]: And he said he was not. There’s no need to
go any further.
“The propriety, scope, manner and control of the cross-examination of witnesses . . . rests
within the sound discretion of the trial court.” State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim.
App. 1995); see also Coffee v. State, 216 S.W.2d 702, 703 (Tenn. 1948). Furthermore, “a
defendant’s right to confrontation does not preclude a trial court from imposing limits upon
cross-examination which take into account such factors as harassment, prejudice, issue confusion,
witness safety, or merely repetitive or marginally relevant interrogation.” State v. Reid, 882 S.W.2d
423, 430 (Tenn. Crim. App. 1994). This court will not disturb the limits that a trial court has placed
upon cross-examination unless the court has unreasonably restricted the right. Dishman, 915 S.W.2d
at 463; see State v. Fowler, 373 S.W.2d 460, 466 (Tenn. 1963).
According to Rule 401 of the Tennessee Rules of Evidence, 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 probable or less probable than it would be without the evidence.” “All relevant evidence is
admissible . . . . Evidence which is not relevant is not admissible.” See Tenn. R. Evid. 402.
Relevant evidence may still be excluded “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403. A
trial court has the discretion to determine if evidence meets the test for relevancy. Forbes, 918
S.W.2d at 449.
Pursuant to Rule 608(b) of the Tennessee Rules of Evidence, specific instances of conduct
may be used to impeach a witness during cross-examination if the conduct is probative of the
-15-
witness’s character for truthfulness or untruthfulness. Before a witness can be questioned about the
specific instance of conduct, the trial court, upon request, must hold a hearing to determine if “the
alleged conduct has probative value and that a reasonable factual basis exists for the inquiry.” Tenn.
R. Evid. 608(b)(1).
We first note that the defendant did not request that the trial court conduct a hearing to
determine the probative value of Elpidio Torres’ immigration status and that it was the defendant’s
responsibility to request such a hearing. Additionally, the defendant did not argue that Elpidio
Torres’ immigrant status was probative of truthfulness but simply argued that it was relevant based
on the witness’s direct examination. The defendant now argues on appeal that this evidence was
relevant under Rule 608 because it was probative of the witness’s truthfulness. “As a general rule,
a party may not litigate an issue on one ground, abandon that ground post-trial, and assert a new basis
or ground on appeal.” State v. Leach, 148 S.W.3d 42, 55 (Tenn. 2004). The trial court concluded
that the witness’s immigrant status in this country was not relevant to the issues on trial. We cannot
conclude that the trial court abused its discretion. The defendant is not entitled to relief on this issue.
IV. PROSECUTOR’S STATEMENTS
The defendant contends the trial court erred in allowing the prosecutor to make improper
comments during voir dire and in closing arguments. The state responds that the trial court did not
err in allowing the state’s comments during voir dire about the defendant’s right to testify or in
allowing the prosecutor’s statements in closing argument.
A. Voir Dire
The defendant contends the trial court erred by allowing the prosecutor to make improper
comments during the voir dire process about the defendant’s right not to testify. He claims that any
adverse comment made by the prosecutor upon failure of the defendant to testify constitutes a
violation of the defendant’s rights. He contends the violation is reversible error unless the trial judge
requires counsel to stop and properly instructs the jury.
The state responds that the trial court properly allowed the prosecutor to make comments
during voir dire that the defendant was not required to testify at the trial. The state asserts that the
defendant did not contemporaneously object to the prosecutor’s comments and did not ask the court
for a curative instruction. The state argues that the comment was harmless beyond a reasonable
doubt given the context in which it was made. It asserts the prosecutor’s intent in making the
statement was to impress on the jury that if the defendant chose to testify, his credibility should be
judged the same as any other witness. The state asserts the defendant objected only after the
prosecutor mentioned the defendant’s right to testify three times. The state asserts the trial court
charged the jury before deliberations about the defendant’s right not to testify.
During voir dire, the assistant district attorney made the following statements regarding the
defendant’s right not to testify:
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The defendant doesn’t have to prove anything. Does
everybody agree that’s fair.
....
That the defendant shouldn’t have to prove he’s innocent?
....
Does that mean he can’t put on proof?
....
No. He doesn’t have the burden of proof. He doesn’t have
to prove anything, but that doesn’t mean he can’t put on proof.
....
If the defense puts on proof - calls witnesses to the stand - do
you use different rules for judging the witnesses’ - their witnesses’
credibility than you do for the State of Tennessee’s witnesses? Do
you use different rules? No. You use the same rules for judging the
credibility of witnesses for both sides.
....
The defense doesn’t have to put on any proof. The defendant
doesn’t have to testify. Judge Dailey will tell you what you already
know, I submit. Has anybody ever heard that - the right to remain
silent?
....
I submit the defendant does not have to testify, and Judge
Dailey will tell you what the law is. If he doesn’t, you cannot hold
that against him because he doesn’t have the burden of proof. That’s
fair, right?
....
Does that mean he can’t testify? No.
-17-
The defense attorney then asked the court for a bench conference and objected to the “last few
questions about does it mean he doesn’t need - can’t testify - doesn’t have to testify - tends to
comment on the shifting of the burden of proof.” The trial court told the defense attorney, “You can
certainly - if you feel as though it’s been misstated, you can clarify when you get up to address the
jury.” The assistant district attorney then continued in his voir dire stating that
The state has the burden of proof, and the defense doesn’t have to put
on any proof. The defendant doesn’t have to testify. He doesn’t.
You cannot hold that against him. If he does choose to testify, do you
use different rules to judge his credibility? No. Does he get bonus
points for taking the stand when he doesn’t have to? No. You use
the same rules for both sides.
Prosecutorial misconduct does not constitute reversible error unless the outcome was affected
to the defendant’s prejudice. State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001). In Judge v. State,
539 S.W.2d 340, 344 (Tenn. Crim. App. 1976), this court set out the following considerations for
determining if the prosecutor’s conduct could have improperly prejudiced the defendant and affected
the verdict:
1. The conduct complained of viewed in context and in light of the
facts and circumstances of the case.
2. The curative measures undertaken by the court and the
prosecution.
3. The intent of the prosecutor in making the improper statement.
4. The cumulative effect of the improper conduct and any other
errors in the record.
5. The relative strength or weakness of the case.
See also State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (approving these factors in determining
if the misconduct resulted in reversible error).
The prosecutor’s comments during voir dire were not improper. The prosecutor’s statements
were made to determine if the potential jurors could weigh the credibility of the defendant’s
testimony, if he testified, in the same way it would weigh any other witness’s credibility.
Additionally, the trial court gave the jury an instruction regarding the defendant’s right not to testify
in the jury charge. We conclude the trial court did not err in allowing the prosecutor’s statements
during voir dire. The defendant is not entitled to relief on this issue.
-18-
B. Closing Argument
The defendant also contends the trial court erred by allowing the state to argue in closing that
“this happens to Mexicans all the time,” because the argument had no legitimate purpose and could
only serve to inflame the jury. He asserts the state’s closing argument asked the jury to consider
helping Hispanic victims vindicate the crimes committed against them. He claims that the intent of
the prosecutor was improper and that the cumulative effect of the errors at the trial is undeniable.
The state argues that the trial court did not abuse its discretion in overruling the defendant’s
objection to the prosecutor’s closing argument about the testimony of Elpidio Torres. The state
asserts the defendant did not make a specific objection and did not seek a curative instruction during
the closing argument. The state asserts the prosecutor’s sole intent in making the statements was to
remind the jury how serious Elpidio Torres viewed the crimes committed against him and the other
victims. The state also asserts the case against the defendant was very strong and argues that if the
prosecutor’s statements are determined to have been improper, they did not affect the verdict to the
defendant’s detriment. The state asserts that its finding the lesser included offenses in four of the
charges reflects that the jury was not “so inflamed” that it spared the defendant no mercy.
During the state’s rebuttal in closing argument, the prosecutor argued that
[The defendant’s attorney] asked, “Why are we here?” He
asked, “Why are you all here?” . . . why are [the victims] here?
They’re not making any money being here either. They’re not able to
work and earn money while they’re sitting here out in the witness
room waiting day after day after day to come in here. What do they
have to gain from this?
[Elpidio Torres] told you - when [the defendant’s attorney]
asked him, “Don’t you think this is serious?” He said, “Yes, this is
serious. This is serious because we’re seeking justice because this
happens to us all the time.”
The defendant’s attorney then said, “Object. Your Honor.” The trial court immediately responded,
“Overruled.” The prosecutor continued arguing that
“This happens to us Mexicans all the time.” And they’re not just
wanting to get anybody, because they didn’t - to spite their chance.
They’re wanting to hold those responsible that are responsible - the
people - or the person in this case - him- that they told you, without
any doubt in their mind, the guy with the gun from both occasions.
Shortly after the defendant’s objection, the trial court sent the jury out of the courtroom for
a recess. The trial court explained its reasoning in overruling the defendant’s objection.
-19-
Just to elaborate a little bit on my ruling on this last objection. I
didn’t really want to interrupt the argument as it was going on, but I
did see [the defendant’s attorney] -
So in the event [the defendant] is convicted and this matter
goes up, the reason why I thought his argument was entirely
appropriate is that in rebuttal or response what [the defendant’s
attorney] had argued; that “Use your common sense. Why would
anyone who lives in this apartment complex rob someone not only
once but why would they rob them twice and then just hang out three
days later in the same apartment complex where the victims were
known to live. And I think it’s a perfectly reasonable inference from
the facts and the testimony in the case that common sense would
suggest that the victims are Hispanic and may be easy prey - whose
employment status may not be certain - who may be reluctant to
report - who may have cash on Fridays; that under these
circumstances, it may well make common sense. It’s up to the jury
to determine, but I think that’s an appropriate response by the state to
what was argued by the defense.
The Tennessee Supreme Court has recognized that “argument of counsel is a valuable
privilege that should not be unduly restricted.” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975).
Attorneys have great leeway in arguing before a jury, and the trial court’s broad discretion in
controlling their arguments will be reversed only upon an abuse of discretion. Terry v. State, 46
S.W.3d 147, 156 (Tenn. 2001). However, closing argument must be “temperate, must be predicated
on evidence introduced during the trial of the case, and must be pertinent to the issues being tried.”
Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976).
The record reveals that the defense attorney argued in his closing argument that the defendant
would not have committed a crime in the apartment complex where he lived because he would be
seen there on a regular basis. The prosecutor repeated the testimony of Elpidio Torres that, “This
happens to us Mexicans all the time,” to rebut the defense’s argument that common sense tells you
the defendant would not have committed the crime in his own apartment complex. The trial court
overruled the defendant’s objection and did not give a curative instruction during the closing
argument. However, the trial court did instruct the jury that “[s]tatements, arguments, and remarks
of counsel are intended to help you in understanding the evidence and applying the law, but they are
not evidence. If any statements are made that you believe are not supported by the evidence, you
should disregard them.” Additionally, taking the statement in context with all of the proof and the
arguments, we cannot say that the statement affected the verdict. The defendant is not entitled to
relief on this issue.
-20-
V. LESSER INCLUDED OFFENSES
The defendant contends that the trial court erred in refusing to charge the jury with theft of
property as a lesser included offense of aggravated robbery because the facts supported the
instruction. The defendant claims he was not required to request the instruction in writing. The state
concedes theft of property is a lesser included offense of aggravated robbery. The state asserts that
the defendant presented no evidence contesting the fact that a deadly weapon was used in the
robberies and that there was overwhelming proof a gun was used. The state contends that the trial
court’s failure to instruct the jury as to theft of property as a lesser included offense of aggravated
robbery was harmless beyond a reasonable doubt.
The record reflects that the defendant requested the jury instruction on theft of property in
open court and that he did not make the request in writing. The trial court denied the defendant’s
request to charge theft of property as a lesser included offense stating that
Well, I’m not going to for several reasons. It wasn’t requested
in writing as the rules now require. And since this case, from the
outset, has been one involving the question of identity - there was
even a statement from [the defendant’s attorney], respectfully, early
on to the jury that the defense is not contesting that these people were
robbed. The only question is one of identity; that under any of the
case law - any reasonable examination of what should be charged,
nothing below robbery would be appropriate factually[.]
In criminal cases, the trial court has the duty to charge the jury on all of the law that applies
to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). Tennessee Code
Annotated section 40-18-110(c) provides
Notwithstanding any other provision of law to the contrary, when the
defendant fails to request the instruction of a lesser included offense
as required by this section, such instruction is waived. Absent a
written request, the failure of a trial judge to instruct the jury on any
lesser included offense may not be presented as a ground for relief
either in a motion for a new trial or on appeal.
In State v. Page, our supreme court held that Tennessee Code Annotated section 40-18-110(c) does
not violate a defendant’s right to trial by jury. 184 S.W.3d 223, 231 (Tenn. 2006). The court also
held “that by failing to request such an instruction, the defendant waived his right to seek plenary
appellate review of the issue.” Id. However, the statute does not preclude plain error review. Id.
at 230-31.
In State v. Burns, 6 S.W.3d 453 (Tenn. 1999), our supreme court adopted a modified version
of the Model Penal Code in order to determine what constitutes a lesser included offense:
-21-
An offense is a lesser-included offense if:
(a) all of its statutory elements are included within the statutory
elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it
contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of
culpability; and/or
(2) a less serious harm or risk of harm to the same
person, property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense
that otherwise meets the definition of lesser-included
offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an
offense that otherwise meets the definition of
lesser-included offense in part (a) or (b); or
(3) solicitation to commit the offense charged or an
offense that otherwise meets the definition of
lesser-included offense in part (a) or (b).
Burns, 6 S.W.3d at 466-67.
If an offense is a lesser included offense, then the trial court must conduct the following
two-step analysis in order to determine if the lesser included offense instruction should be given:
First, the trial court must determine whether any evidence exists that
reasonable minds could accept as to the lesser-included offense. In
making this determination, the trial court must view the evidence
liberally in the light most favorable to the existence of the
lesser-included offense without making any judgments on the
credibility of such evidence. Second, the trial court must determine
if the evidence, viewed in this light, is legally sufficient to support a
conviction for the lesser-included offense.
Id. at 469.
-22-
Theft of property occurs when a “person commits theft of property if, with intent to deprive
the owner of property, the person knowingly obtains or exercises control over the property without
the owner’s effective consent.” T.C.A. § 39-14-103. Theft of property is a lesser included offense
of aggravated robbery under part (a) of the Burns test. See State v. Bowles, 52 S.W.3d 69, 79-80
(Tenn. 2001) (holding that theft is a lesser included offense of robbery); State v. Lewis, 36 S.W.3d
88, 99-100 (Tenn. Crim. App. 2000) (stating theft of property is a Burns part (a) lesser included
offense of attempted robbery); State v. Curtis Buford, No. W2003-00370-CCA-R3-CD, Shelby
County, slip op. at 7 (Tenn. Crim. App. Mar. 2, 2004), app. denied (Tenn. Sept. 13, 2004) (theft of
property is included in the definition of aggravated robbery and is a lesser included offense).
“Evidence sufficient to warrant an instruction on the greater offense will also support an
instruction on a lesser offense under part (a) of the Burns test. In proving the greater offense, the
State necessarily has proven the lesser offense because all of the statutory elements of the lesser
offense are included in the greater.” State v. Richmond, 90 S.W.3d 648, 660 (Tenn. 2002). The
trial court must give a lesser included offense instruction that is supported by the evidence even if
the instruction would be inconsistent with the theories of the state and defense. State v. Allen, 69
S.W.3d 181, 187-88 (Tenn. 2002). Therefore, the trial court erred in failing to give an instruction
on the lesser included offense of theft of property.
If a trial court improperly omits a lesser included offense instruction, then constitutional
harmless error analysis applies and this court must determine if the error did not affect the outcome
of the trial beyond a reasonable doubt. State v. Ely, 48 S.W.3d 710, 725 (Tenn. 2001). “In making
this determination, a reviewing court should conduct a thorough examination of the record, including
the evidence presented at trial, the defendant’s theory of defense, and the verdict returned by the
jury.” Allen, 69 S.W.3d at 191.
The supreme court has held that when a jury convicts on the greater offense to the exclusion
of the immediately lesser included offense, the error in failing to instruct will normally be harmless
beyond a reasonable doubt. State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998). The trial court
instructed the jury on the charged offenses of aggravated robbery and the immediately lesser included
offense of robbery. The jury chose to convict the defendant of the greater offenses. Therefore,
consideration of the trial court’s error is not necessary to do substantial justice, and the defendant
is not entitled to relief on this issue.
VI. SENTENCING
The defendant contends that the trial court erred in applying enhancement factors and in
ordering consecutive sentencing. The state responds that the defendant waived review of sentencing
for failing to include in the record a copy of the presentence report and copies of the letters written
on the defendant’s behalf. It asserts the state made it clear it was relying on the presentence report,
referring to it five times during the sentencing hearing. It asserts the defendant has the burden of
showing that sentencing is improper and must provide this court with all the materials it must have
to conduct a de novo review. The state also argues the trial court properly sentenced the defendant.
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At the sentencing hearing, Memphis Police Detective Miguel Aguila testified that in the last
few years, targeting Hispanics to be victims of crimes had become common. He said that
approximately eighty percent of the home invasion robberies he had investigated involved Hispanic
victims. He said the language barrier created special problems in catching and prosecuting the
suspects. He said Hispanic victims were reluctant to report crimes because they had difficulty in
communicating. He said he had investigated some cases where the victims were victimized two,
three, or four times. He said that there was “a percentage of illegal residents” in Memphis and that
they were hesitant to call the police because they were afraid of deportation. He said that the
majority of Hispanic victims save the money they get paid once a week and that at the end of the
month, they mail the money to their families in Mexico. He said the members of the Hispanic
community were being targeted because of their racial and language differences.
The state told the trial court it would rely on the defendant’s presentence report and did not
present any further proof. The presentence report was not introduced as an exhibit. The presentence
report also has not been included in the record. The defendant submitted thirteen letters written on
behalf of the defendant to the trial court but did not enter those letters as exhibits. The letters also
have not been included in the record.
Appellate review of sentencing is de novo on the record with a presumption that the trial
court’s determinations are correct. T.C.A. § 40-35-401(d) (2003).2 As the Sentencing Commission
Comments to this section note, the burden is now on the appealing party to show that the sentencing
is improper. This means that if the trial court followed the statutory sentencing procedure, made
findings of fact that are adequately supported in the record, and gave due consideration and proper
weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act,
we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, “the presumption of correctness which accompanies the trial court’s action is
conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). In this respect, for the purpose of meaningful appellate review,
the trial court must place on the record its reasons for arriving at the
final sentencing decision, identify the mitigating and enhancement
factors found, state the specific facts supporting each enhancement
factor found, and articulate how the mitigating and enhancement
factors have been evaluated and balanced in determining the sentence.
T.C.A. § 40-35-210(f) (1990).
2
W e note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35-102,
-114, -210, and -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 5, 6, 8. However, the amended code sections are
inapplicable to the defendant’s appeal.
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State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994). Also, in conducting a de novo review, we must
consider (1) the evidence, if any, received at the trial and sentencing hearing, (2) the presentence
report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and
characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any
statement that the defendant made on his own behalf, and (7) the potential for rehabilitation or
treatment. T.C.A. §§ 40-35-102, -103, -210 (2003); see Ashby, 823 S.W.2d at 168; State v. Moss,
727 S.W.2d 229, 236-37 (Tenn. 1986).
The sentence to be imposed by the trial court is presumptively the minimum in the range for
a Class B felony or Class C felony unless there are enhancement factors present. T.C.A. §
40-35-210(c) (2003). Procedurally, the trial court is to increase the sentence within the range based
upon the existence of enhancement factors and, then, reduce the sentence as appropriate for any
mitigating factors. T.C.A. § 40-35-210(d), (e) (2003). The weight to be afforded an existing factor
is left to the trial court’s discretion as long as it complies with the purposes and principles of the
1989 Sentencing Act and its findings are adequately supported by the record. T.C.A. § 40-35-210
(2003), Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at
169.
Initially we note that the defendant has hampered our de novo review by failing to include
the presentence report in the record on appeal. It is incumbent upon the appellant to prepare a record
that conveys a fair, accurate, and complete account of what transpired relative to the issues on
appeal. T.R.A.P. 24(b); State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). This rule applies to
sentencing hearings. State v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim. App. 1987). In the absence
of an appropriate record, we must presume that the trial court’s determinations are correct. See, e.g.,
State v. Meeks, 779 S.W.2d 394, 397 (Tenn. Crim. App. 1988); Beech, 744 S.W.2d at 588.
A. Application of Enhancement and Mitigating Factors
The defendant asserts the trial court imposed an excessive sentence because he had a minimal
criminal history. He acknowledges the trial court considered the enhancement and mitigating factors
submitted by the parties but asserts the trial court did not apply the sentencing principles. The
defendant asserts that he had only two prior simple possession of marijuana charges. The defendant
asserts the trial court erred in applying enhancement factor (3), that the defendant was “a leader in
the commission of the offense involving two (2) or more actors,” to both robberies. See T.C.A. §
40-35-114(3). The state asserts the trial court correctly applied the three enhancement factors.
The trial court found that the following enhancement factors applied: (2) the defendant had
a previous history of criminal convictions or criminal behavior, (3) the defendant was the leader in
the commission of the offense, and (23) the defendant intentionally selected the victims in whole or
in part because of the defendant’s “belief or perception regarding the race . . . national origin,
ancestry or gender” of the victims. See T.C.A. § 40-35-114(2), (3), (23). The trial court applied
enhancement factor (2) based upon proof that the defendant “does have a previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate range.”
In applying enhancement factor (3), the trial court found the defendant was “obviously the one that
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set up the robbery and targeted these victims because he was the one who robbed them three or four
weeks earlier.” In applying enhancement factor (23), the trial court found this factor to be the most
important of all the enhancement factors based on the testimony that had been presented at the
sentencing hearing.
The defendant presented three mitigating factors for consideration by the trial court: (1) the
defendant’s conduct did not threaten or cause bodily injury; (6) the defendant, because of his youth
lacked substantial judgment in committing the offense; and (13) the defendant had a minimal
criminal history. See T.C.A. § 40-35-113(1), (6), (13). The trial court rejected all three mitigating
factors. The trial court found the defendant did not qualify as a youth because he was twenty-one
or twenty-two years old. It found that although shots were not fired, shots were threatened, and the
victims’ lives were threatened. The trial court made no specific finding on the minimal criminal
history not being a mitigating factor.
With regard to enhancement factor (2), that the defendant had a history of criminal
convictions or criminal behavior, we must presume that the trial court’s application was proper
because of the absence of the defendant’s presentence report from the record. With regard to
enhancement factor (23), that the defendant selected the victims based on their race or national
origin, the defendant did not assert that this enhancement factor was incorrectly applied. The state
presented evidence at the sentencing hearing about Hispanics being the targets of robberies. The
record reflects the defendant lived in the same apartment complex and targeted these particular
victims on two different occasions. The trial court stated that
But the obvious counter to that is he did go back and rob the
same people a second time because they were Hispanic, because he
knew or thought he knew, he felt that they wouldn’t report it and he
would be home free because they were Hispanic.
We conclude that enhancement factor (23) was properly applied by the trial court.
With regard to enhancement factor (3), that the defendant was the leader in the commission
of the offense, the defendant contends the trial court should not have applied this factor to the first
robbery. We agree with the defendant that this factor does not apply to the first robbery. The trial
court found that the three enhancement factors applied and applied the three factors to all
convictions. The trial court did not distinguish between the convictions for the first robbery in Case
No. 03-00283 and the convictions for the second robbery in Case No. 03-00284. All four of the
victims testified that one man, the defendant, robbed them on the first occasion. We conclude
enhancement factor (3) does not apply to Case No. 03-00283.
We conclude that the mitigating factors (1), (6), and (13) do not apply in this case. The
defendant did threaten serious bodily injury by pointing a gun at the victims and demanding the
victims give them money, therefore, mitigating factor (1) does not apply. See State v. William
Ramsey, No. M2001-02735-CCA-R3-CD, Warren County, slip op. at 19 (Tenn. Crim. App. July 15,
2003) (concluding mitigating factor (1) did not apply in an aggravated robbery case when the co-
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defendant threatened the victim’s life with a knife). With regard to mitigating factor (6), that
because of defendant’s youth he lacked substantial judgment in committing the offense, the record
reflects the defendant was twenty-four years old when he committed the robberies. We have no
other information regarding the defendant’s education, experience, or mental health because the
presentence report was not included in the record. Therefore, we must presume that the trial court’s
rejection of mitigating factor (6) was correct. With regard to mitigating factor (13), that the
defendant had a minimal criminal history, we also must presume that the trial court’s rejection of
mitigating factor (13) was proper because of the absence of the defendant’s presentence report from
the record.
We conclude that the trial court properly applied the enhancement factors to the conviction
arising from the second robbery in Case No. 03-00284. However, we conclude that the trial court
improperly applied enhancement factor (3) to the convictions arising from the first robbery in Case
No. 03-00283. We note that the trial court stressed that enhancement factor (23) was the most
important of the three enhancement factors it applied and that the trial court did not say how much
weight it gave to the other two factors. Because the presentence report was not included in the
record on appeal, we are unable to conduct a full de novo review of the sentences in Case No. 03-
00283. In the absence of an appropriate record, we must presume that the trial court’s
determinations are correct. See e.g., Meeks, 779 S.W.2d at 397; Beech, 744 S.W.2d at 588. The
defendant is not entitled to relief on this issue.
B. Consecutive Sentencing
The defendant acknowledges it is hard to argue that the two cases should not run
consecutively but asserts the trial court erred in ordering the aggravated robbery in Case No. 03-
00283 of the first indictment to run consecutively to all the other sentences. He contends that the
trial court erred in finding the defendant was a dangerous offender whose actions indicated little or
no regard for human life and that the trial court did not consider the fact that no shots were fired and
no one was injured. He argues that there was nothing extraordinary about the crimes and that the
defendant has no history to lead the trial court to believe consecutive sentencing is necessary to
protect the public.
The state contends the trial court properly sentenced the defendant. It argues that the trial
court properly found the defendant was a dangerous offender whose behavior indicates little or no
regard for human life and that consecutive sentencing was reasonably related to the severity of the
offenses and necessary to protect the public. See State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn.
1995).
The trial court found that the two cases No. 03-00283 and No. 03-00284 should be served
consecutively because the defendant was a dangerous criminal and from a public policy standpoint
the cases should be consecutive. It stated that
[F]actoring in what I think is a clear and fair conclusion from the
facts of this case, factoring in the fact that he targeted these people
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because they were Hispanics and certainly targeted them the second
time for that reason, this makes him a particularly dangerous
offender.
....
I think that makes him a particularly dangerous offender to be
of a mind-set to commit this type of offense against these victims,
same place, same place where he lives, short period of time. I think
in my opinion makes this factor apply.
And then the remaining two factors, consecutive sentences
reasonably relate to the severity of the offenses and are necessary in
order to protect the public from further serious conduct by this
defendant. I think they apply as well when you read the transcript and
review the facts of this case and the unique circumstances of the
victims.
. . . If a person were allowed to commit an aggravated robbery
and then go commit another one and commit another one and commit
another one and serve concurrent time for it all, then there would be
no deterrent at all from committing additional offenses.
The trial court also found that the three attempted aggravated robbery convictions should be served
consecutively to the aggravated robbery conviction in Case No. 03-00283. The trial court stated that
[T]he one instance in which I think should be consecutive time is that
first offense where he confronted [the victim] on the outside smoking
a cigarette and forced him at gunpoint to go back inside the
apartment. He could have completed his robbery then and there and
left. But he elected to force this man back into the apartment where
these many people were and continue the robbery. So I think that that
offense should be served for the same reason as I indicated with
regard to the two sets of offenses consecutively.
The defendant acknowledges, “it is hard to argue that separate incidents should not be
sentenced in a consecutive manner.” The defendant robbed four victims at gunpoint and later robbed
three of the same victims again at gunpoint. During the first robbery, the defendant forced Mr.
Gutierrez inside the apartment. He told the victims, including a pregnant woman, to lie down on the
floor and demanded their money. During the second robbery, the defendant, along with an
accomplice, walked up to the four victims in the middle of the apartment complex’s parking lot. The
defendant pointed a gun at the victims while his accomplice went through the victims’ pockets. The
trial court noted the “brazenness” and “arrogance” involved in robbing people living in his own
apartment complex where he knew the victims would see him again. The trial court found that the
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defendant was a dangerous offender, that consecutive sentencing reasonably relates to the severity
of this offense, and that the defendant needs to be incarcerated to protect society from his future
criminal conduct. We agree. The defendant is not entitled to relief on this issue.
CONCLUSION
Based upon the foregoing and the record as a whole, we affirm the judgments of the trial
court.
___________________________________
JOSEPH M. TIPTON, JUDGE
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