Opinion
No. M1999-02532-CCA-R3-CD.
Filed April 5, 2002.
Appeal from the Criminal Court for Davidson County; No. 93-C-1345; Seth Norman, Judge.
Affirmed.
Dwight E. Scott, Nashville, Tennessee (on appeal), and Ross Alderman and David Siegel, Assistant Public Defenders, for the appellant, Mario A. Pendergrass.
Paul G. Summers, Attorney General Reporter; Elizabeth T. Ryan, Assistant Attorney General; and Kymberly Haas and Charles Carpenter, Assistant District Attorneys General, for the appellee, the State of Tennessee.
Gary R. Wade, P.J., delivered the opinion of the court, in which David G. Hayes and Jerry L. Smith, JJ., joined.
The defendant, Mario Pendergrass, was convicted in a bench trial of premeditated murder, felony murder, especially aggravated kidnapping, and especially aggravated robbery. See Tenn. Code Ann. §§ 39-13-202, -305; -403. The trial court merged the two first degree murder convictions and ordered consecutive sentences of life with the possibility of parole for the murder and 22 years each for the kidnapping and robbery. The effective sentence is, therefore, life plus 44 years. In this appeal of right, the defendant argues (1) that the evidence was insufficient; (2) that his kidnapping conviction violates double jeopardy because detention of the victim was incidental to the robbery; (3) that the trial court erred by failing to suppress his statements to police; (4) that the trial court erred by announcing its verdict immediately after the evidence without time for deliberation; (5) that the trial court erred by failing to dismiss due to the state's failure to provide a speedy trial; (6) that the waiver of jury trial was not voluntarily and intelligently made; (7) that the kidnapping and robbery sentences are excessive; and (8) that the trial court erred by ordering consecutive sentences. The judgments are affirmed.
OPINION
In April of 1993, Donald Crockett, Sr., a former professional wrestler who used the name "Pretty Boy Michael Rose," was employed as a taxi driver in Nashville. On the evening of April 19, someone called and requested a taxi, but instructed the dispatcher not to send number 15, the cab driven by Crockett. Initially, Crockett suspected that the caller was a previous passenger who owed him money. Moments later, however, the same person called back and said, "Don't send Mike Rose." Crockett, curious about the identity of the caller, drove to the dispatch point at a Krystal restaurant at the corner of Dickerson and Trinity Lane. When he arrived, he observed two men at a telephone booth, one of whom he recognized as Lorenzo Ensley, and the other of whom he identified at trial as the defendant. Crockett described the defendant, whom he did not know, as having a shaved head with "a little bitty ball on the back." He testified that when he asked Ensley why they did not want to ride in his cab, Ensley responded, "`Well, I didn't want to get you in no more trouble.'" Crockett, who explained that he interpreted the comment to mean that illegal drugs were involved, then called the dispatcher and requested another cab. The victim, Robert Glen Pruitt, was dispatched in his taxi. He arrived at the Krystal at approximately 10:30 p.m.
Later that evening, a security device in the victim's taxi alerted the other cab drivers of trouble. When activated, the security device shut down all radio communications other than those from the distressed driver. Crockett overheard a reference to Stevens Lane and Clarksville Highway and drove to that location. Neither the victim nor his cab was there at the time of his arrival. Crockett then drove to a "drug house" on Douglas and inquired as to the whereabouts of Ensley. When he learned that Ensley had been staying at the Colony Motel, Crockett drove to the motel. Police officers were already on the scene and instructed Crockett to leave after he confronted Ensley. The victim's cab was located the following morning near Ewing Lane. Later, the victim's body was found in a field at Brick Church Lane.
Crockett acknowledged that he had never seen the defendant prior to the night in question and had not overheard any conversations between Ensley and the defendant while at the Krystal restaurant. He maintained that he warned Ensley not to hurt any of his fellow cab drivers because Ensley appeared to be "high." While conceding that he was not "one hundred percent certain" at the time of his initial identification of the defendant, he testified, "If there's a God in heaven, that's the man."
Bernadette Mitchell often rode in the victim's cab when she could not get a ride home from work. On the evening of the victim's abduction between 10:30 and 11:00 p.m., Ms. Mitchell was at the Krystal on the corner of Dickerson and Trinity with a friend when the defendant and another man approached their car and asked for a ride. She recalled that the defendant did all of the talking and that the other individual stood in the background. When Ms. Mitchell explained that she would not provide the transportation because she did not know them, the defendant replied, "I am Mario Pendergrass. Now you know my name." At that point, the victim arrived in his taxi and, upon seeing Ms. Mitchell, joked that because she worked at a Taco Bell, she should not eat at a Krystal. The defendant and his companion then got into the cab and left. After seeing news of the murder on the next day's 5:30 a.m. broadcast, Ms. Mitchell called the police and told them of her encounter with the defendant and the victim.
Detective Clinton Vogel of the Metro Police Department's murder squad investigated the crime. During the early morning hours of April 20, the victim's taxi was found off of Ewing Lane on a dead-end street hidden behind a closed business. After speaking with Donald Crockett, Detective Vogel went to the Colony Motel to talk to Lorenzo Ensley. The detective testified that Crockett arrived later and identified Ensley. Although the defendant was in the same hotel room as Ensley, Detective Vogel did not speak directly with him at that time. There were other occupants in Ensley's motel room. When asked about their activities the night before, one of the occupants stated that they had been watching television in the motel room. The defendant made no response.
Detective Vogel testified that the body of the victim had a gaping wound to the left side of his head. The location of the blood indicated that the victim had been shot in the field where the body was found. The detective also described a series of lacerations that he observed on the victim's left index finger. The victim's pockets appeared to have been turned inside out and no money was found on the body. Later, his wallet was found among his personal belongings. The following day, Detective Vogel returned to the Colony Motel. The defendant, Ensley, and a few other individuals were there. Ensley directed Detective Vogel and Detective Ed Moran to two vacant lots in Parkwood subdivision where they recovered a sawed-off single-shot 12-gauge shotgun. A single spent shell was in the barrel of the gun.
Detective Vogel acknowledged that Crockett had initially told police that he left the Krystal restaurant before the victim arrived. He also admitted that of the four men in the room at the Colony Motel, one of whom was the defendant, Crockett could initially identify only Ensley.
Tellas Ensley testified that in April of 1993, he lived at the Colony Motel with his two younger brothers, Lorenzo and Timothy Ensley, and the defendant. He stated that he used to sell drugs on Dickerson Road and that he became acquainted with the victim by riding in his cab. According to Tellas Ensley, he learned of the victim's disappearance when Crockett came to the motel and asked if he had heard anything. He testified that the defendant and Lorenzo Ensley returned to the motel between 9:45 and 11:30 p.m. that evening. Later, while they were watching a movie, a special news bulletin announced that a taxi driver had been killed. In response to the news report, Lorenzo Ensley remarked, "It wasn't worth it." The defendant replied that if he was "going down," Lorenzo Ensley was going with him. According to Tellas Ensley, the defendant then explained that he killed the victim because he did not have enough money for the cab fare, which was $12 to $13. The defendant then admitted that he had removed the victim from the cab and shot him in the head. After making the remarks, the defendant left the room for three to five minutes and then came back with a shotgun and a pistol. Ensley recalled that the defendant then threatened to kill everyone in the room if anything was said about the crime. Later, when the police had left the motel, both the defendant and Lorenzo Ensley asked Tellas Ensley to inform police that they had been in the room at the time of the murder.
Don Carman, a TBI agent specializing in forensic firearm identification, described the shotgun recovered by police as functional and capable of firing 12-gauge shells. He was unable to determine whether the shell recovered by police was fired by the shotgun. Because the weapon had been left outside, the likelihood of positive identification was lessened. Agent Carman stated, however, that both the shell and the wadding discovered next to the body were consistent with the type of ammunition used by the weapon.
James Robert Goodman, an officer with the identification section of the Metro Police Department, investigated the murder scene. While he was photographing the area, he found shotgun wadding "right next" to the victim. Officer Goodman testified that he also found human tissue in the area surrounding the body. In his opinion, the victim had been killed where police found the body.
Steve Stone, who is also an officer with the Metro Police Department identification section, testified that he investigated the area where the victim's taxi cab was located. He stated that the cab was towed to a secure garage where it was processed inside and out for fingerprints. According to Stone, latent prints of the defendant were on the driver's side trunk deck (fingerprints) and the driver's side rear quarter panel (a partial palm print).
James Patterson, an acquaintance of the defendant who was living in the Colony Motel at the time of the murder, recalled that he was "sitting around getting high" with Tim and Lamont Ensley when Lorenzo Ensley and the defendant arrived. Patterson testified that when Lorenzo made a joking remark to his brother Tim about killing someone, the defendant responded by striking the television and instructing Lorenzo that he "need[ed] to stop bullshitting." According to Patterson, the defendant then told Lorenzo that if he was "going down," Lorenzo was going with him. Later, the defendant warned Patterson, "Don't let nothing we talked about leave the room."
Patterson acknowledged that he had omitted important facts when interviewed by investigators for the state and the defense. He admitted that he had used cocaine "off and on" for approximately fifteen years and acknowledged that he had spent the day of the murder smoking marijuana, drinking beer, and using cocaine. Patterson estimated that he used cocaine approximately ten times that day and admitted that he engaged in such use two to three times per week. He testified that he may have used cocaine before testifying for the state. Patterson denied having used cocaine the morning of his cross-examination by the defense but conceded that he may have been "high" the preceding evening. He denied buying drugs from the Ensleys and maintained that he merely shared drugs with them.
Larry Flair of the Metro Police Department, the lead detective assigned to the murder, learned at 2:00 a.m. following the murder that the defendant's fingerprints were on the victim's cab. At approximately 7:00 a.m., he and two other detectives questioned the defendant at the Colony Motel. The defendant claimed that "he had been there all night and didn't know anything about it." Afterward, the defendant was arrested and advised of his Miranda rights. Upon his arrival at the Criminal Justice Center, the defendant was advised of his rights a second time. Detective Flair testified that the defendant then waived his rights and admitted his involvement in the abduction of the victim. Detective Flair recalled that the defendant claimed that he and Lorenzo Ensley went several places in the victim's cab and that Ensley left the cab, returned with a shotgun, and said, "Just don't say anything." The defendant stated that Ensley robbed the victim, forced him into the trunk, drove to a remote location, and shot him. At trial, Detective Flair testified that he did not record the interview and that the defendant agreed to repeat the interview on videotape. After moving to the interview room and going over the Miranda form, however, the defendant asked to speak with an attorney. The detective ceased the interview.
Detective Terry McElroy investigated the scene where the body was discovered. He found no money in the victim's possession. Later on the morning following the murder, Detective McElroy accompanied Detective Flair to the Colony Motel. He recalled that the defendant initially denied any knowledge of or involvement in the murder. Detective McElroy, who confirmed that the defendant was advised of his Miranda rights first at the motel and later at the Criminal Justice Center, asserted that the defendant provided details of the crime. According to McElroy, the defendant maintained that after he and Lorenzo Ensley got into the victim's cab, they went to the residence of Ensley's relative, where Ensley obtained a sawed-off shotgun. The defendant acknowledged that they drew the weapon and forced the victim into the trunk of the cab. The defendant stated that after driving around for a while, they stopped along Brick Church Lane and removed the victim from the trunk. According to the defendant, Ensley then walked the victim into a field and shot him; upon his return, Ensley handed the weapon to the defendant and instructed him to remove the shell casing. The defendant claimed that he was unable to do so and they decided to dispose of the weapon with the shell casing. He stated that they then abandoned the cab and returned to the motel. Detective McElroy acknowledged that the defendant's statement was not recorded and testified that the defendant initially agreed to repeat his statement on videotape, but changed his mind and requested counsel after being advised of his Miranda rights a third time. Detective McElroy testified that after the interview ended he overheard the defendant acknowledge to his mother that he was present when the victim was killed. He also overheard the defendant and his mother discussing the disposal of the weapon.
Three days after the murder, Detective McElroy learned through another officer that the defendant wanted to speak with him. One and one-half hours later, a Davidson County Sheriff's Deputy paged Detective McElroy a second time at the request of the defendant. When he returned from Rutherford County that evening, Detective McElroy met with the defendant at the jail. The defendant signed a specially prepared form acknowledging that he had had no contact with the detective since the initial interview and that the second meeting was made of his own free will and not the result of any threat or promise. After receiving Miranda warnings, the defendant executed a written waiver and made a recorded statement. The defendant stated that on the evening of the murder, he was at the Colony Motel with Lorenzo Ensley and others when they were told to "vacate the premises [be]cause there were too many people." After unsuccessfully attempting to make contact with Lorenzo Ensley's brother, he and Ensley walked to a nearby Amoco station to use a pay telephone. The defendant claimed that he called his mother and that Ensley used a second pay telephone to call for a cab. At that point, the defendant informed Ensley that he did not have money for a cab and agreed to Ensley's suggestion that they accept the ride and escape without paying. The defendant claimed that when the cab arrived, Ensley and the driver acted as though they knew one another. The cab left and when the defendant asked why, Ensley replied that he knew the cab driver. Later, the defendant saw the same cab driver at the Krystal and heard the cab driver warn Ensley, "[J]ust don't kill my friend." The defendant told Detective McElroy that the first cab driver then left and, later, the victim arrived.
The defendant also informed Detective McElroy that he and Ensley initially went to the home of Ensley's aunt. When they left, the defendant noticed a gun slide out of Ensley's sleeve. The defendant stated that he inquired about the weapon and Ensley instructed him to be quiet. The defendant claimed that when Ensley held the gun to the victim's head, he begged Ensley to let the victim go. The defendant contended that Ensley ordered the victim to stop the cab and, after assuring the defendant that "everything [was] cool," put the victim in the trunk. The defendant asserted that he continued to beg Ensley not to kill the victim and that Ensley assured him that he would not. He stated that Ensley eventually stopped the cab in a dark area, got the victim out of the trunk, and pointed the gun at him. The defendant told Detective McElroy that he heard a gunshot and then saw the victim lying on the ground with gravel on his face. He said that Ensley returned to the cab and instructed him to wipe his fingerprints "off of everything." According to the defendant, Ensley told him to remove the spent shell from the shotgun. When he was unable to do so, Ensley stopped the cab and directed him to get out and hide the gun. Ensley then drove to a remote location and abandoned the car. The defendant maintained that he had seen Ensley with the gun several days before the shooting. He also implicated Ensley in the robberies of a local convenience store and motel, as well as in the homicide of another taxi driver.
I
Initially, the defendant asserts that the evidence was insufficient to support his convictions. He argues that the state failed to show that he possessed the requisite mental intent for each offense and that he planned or voluntarily participated in the offenses.
On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the trier of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn.Crim.App. 1978). When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn.R.App.P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt against a defendant removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Here, the findings of the trial judge carry the same weight as a jury verdict.State v. Tate, 615 S.W.2d 161, 162 (Tenn.Crim.App. 1981).
Here, the trial judge found the defendant guilty of both premeditated and felony murder. The latter was merged into the former so there is one judgment of conviction for first degree murder. At the time of the offense, the crime of first degree murder was defined as follows:
(a) First degree murder is:
(1) An intentional, premeditated and deliberate killing of another; or
(2) A reckless killing of another committed in the perpetration of, or attempt to perpetrate any . . . robbery . . . .
Tenn. Code Ann. § 39-13-202(a)(1) — (2) (Supp. 1992). Tennessee Code Annotated § 39-13-201 provided in pertinent part as follows:
(b) The following definitions apply in this part:
(1) "Deliberate act" means one performed with a cool purpose; and
(2) "Premeditated act" means one done after the exercise of reflection and judgment. Premeditation may include instances of homicide committed by poison or by lying in wait.
Tenn. Code Ann. § 39-13-201(b) (1991).
The proof at trial demonstrated that Lorenzo Ensley called for a taxi cab from a pay telephone at a Krystal restaurant and that the defendant agreed to share the cab and escape without paying the driver. The victim responded. Two witnesses, Donald Crockett, Sr., and Bernadette Mitchell, to whom the defendant introduced himself by name, testified that the defendant and Ensley left the Krystal in the victim's cab. There was proof that the murder weapon was then obtained at the residence of Ensley's aunt. The defendant admitted to officers that he was present when Ensley robbed the victim at gunpoint prior to placing him in the trunk of the vehicle. There was evidence that when the victim was removed from the trunk, he was escorted into a field and shot in the head, execution-style. The trial court found that the victim had raised his left hand in an attempt to ward off the shot. Although the defendant maintained to police that Ensley singlehandedly committed the crimes, testimony and physical evidence demonstrated otherwise. Tellas Ensley testified that he heard the defendant admit that he removed the victim from the cab and shot him. The defendant's fingerprints were found on the trunk deck. The defendant admitted to police that he helped dispose of the murder weapon. It is our view that the fact finder acted within its prerogative in determining beyond a reasonable doubt that the defendant possessed the requisite mental intent.
A person commits especially aggravated kidnapping when he commits false imprisonment "with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon." Tenn. Code Ann. § 39-13-305(a)(1) (1991). False imprisonment is defined as follows:
A person commits the offense of false imprisonment who knowingly removes or confines another unlawfully so as to interfere substantially with the other's liberty.
Tenn. Code Ann. § 39-13-302(a) (1991). Here, the defendant admitted that he was present when the victim was forced into the trunk of the taxi at gunpoint. Ensley and the defendant were the sole occupants of the cab while the victim was locked in the trunk. The defendant's fingerprints were found on the trunk deck. In our view, a rational fact-finder could have found beyond a reasonable doubt that the defendant was guilty of each of the elements required for especially aggravated kidnapping.
Robbery is "the intentional or knowing theft of property from the person of another by violence or putting the person in fear." Tenn. Code Ann. § 39-13-401 (1991). Robbery becomes especially aggravated when it is accomplished with a deadly weapon and the victim suffers serious bodily injury. Tenn. Code Ann. § 39-13-403 (1991). "Serious bodily injury" is bodily injury involving a substantial risk of death, protracted unconsciousness, extreme physical pain, protracted or obvious disfigurement, or protracted loss or substantial impairment of a function of a bodily member. Tenn. Code Ann. § 39-11-106(a)(33) (1991). Although the defendant acknowledged that a weapon was used, he blamed Ensley for the robbery of the victim's cash. A person may be held criminally responsible for an offense committed by another if, "[a]cting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense." Tenn. Code Ann. § 39-11-402(1) (1991). Mere presence during the commission of a crime is not sufficient. "Presence and companionship with the perpetrator of a felony before and after the commission of the offense are circumstances from which one's participation in the crime may be inferred." State v. Ball, 973 S.W.2d 288, 293 (Tenn.Crim.App. 1998). One need not complete any particular act or take physical part in the crime. Id. According to his statements to police, the defendant joined in the plan to steal the use of the taxi. The request was for a taxi driver other than Crockett, who was a professional wrestler. The defendant encouraged the victim to cooperate with Ensley. There was circumstantial evidence that he helped subdue the victim in the trunk. The defendant assisted in disposing of the weapon. He remained in the company of Ensley after the crime. In our view, this evidence was sufficient.
II
Next, the defendant argues that his especially aggravated kidnapping conviction violates either due process or double jeopardy principles because any confinement of the victim was essentially incidental to the especially aggravated robbery. The claim is based upon the holding inState v. Anthony, 817 S.W.2d 299 (Tenn. 1991). In Anthony, our supreme court acknowledged that a period of confinement of the victim frequently accompanies such crimes as robbery and rape and established that whether a separate kidnapping conviction can be supported depends upon "whether the confinement, movement, or detention [was] essentially incidental to the accompanying felony . . . ." 817 S.W.2d at 305. The defendant asserts that the confinement of the victim was necessary to the robbery, arguing that there was "no other way to effectuate the robbery . . . other than driving [the victim] to some place where the deed could be accomplished undetected."
In State v. Dixon, our high court clarified its ruling in Anthony:
Anthony and its progeny, however, are not meant to provide the rapist a free kidnapping merely because he also committed rape. The Anthony decision should only prevent the injustice which would occur if a defendant could be convicted of kidnapping where the only restraint utilized was that necessary to complete the act of rape or robbery. Accordingly, any restraint in addition to that which is necessary to consummate rape or robbery may support a separate conviction for kidnapping.
957 S.W.2d 532, 534-35 (Tenn. 1997). Where the confinement is beyond that necessary for the accompanying felony, the next inquiry is whether it (1) prevented the victim from summoning help; (2) lessened the defendant's risk of detection; or (3) created a significant danger or increased the victim's risk of harm. Id. at 535.
In our view, the confinement of the victim in this instance was beyond that necessary for the commission of the robbery. After the robbery, Ensley and the defendant forced the victim into the trunk of his vehicle, thereby lessening their risk of detection and increasing the victim's risk of harm. The defendant acknowledged to police that he and Ensley "drove around for a while" with the victim in the trunk. In State v. Claude Douglas Copeland, No. 01C01-9410-CR-00366, slip op. at pp. 8-9 (Tenn.Crim.App., at Nashville, Sept. 27, 1995), a panel of this court, under similar circumstances, approved of separate convictions for robbery and kidnapping with intent to commit robbery:
[T]he defendant's conduct of . . . forcing [the victim] in the trunk substantially increased the victim's risk of harm. If the defendant had only wanted to steal the victim's wallet and car, he could have left him on the street where he robbed him. It is evident from these facts that the robbery could have been completed without forcing the victim into . . . the trunk at knife point. Thus, the kidnapping was not incidental to the robbery but rather in addition to the robbery.
See also Arthur R. Turner v. State, No. 01C01-9707-CR-00274 (Tenn.Crim.App., at Nashville, Sept. 23, 1998) (holding that victim's confinement went beyond that necessary to complete robbery and rape where defendant "chose to lock the victim in the car trunk for hours at a time"); State v. Randall Scott, No. 01C01-9307-CR-00240 (Tenn.Crim.App., at Nashville, Jan. 5, 1996) ("That the victim was locked for hours in the trunk of her car, eventually bound, gagged, beaten, and left to die was significantly independent of the robbery.").
III
The defendant next maintains that the trial court erred by failing to suppress his statements to police. He contends that because he did not receive proper Miranda warnings and because his statements were induced by promises of help, the evidence should not have been admitted at trial.
The trial court's determination with regard to the voluntariness and, consequently, the admissibility of the defendant's statements is binding on appeal unless the evidence preponderates against it. State v. Goforth, 678 S.W.2d 477, 479 (Tenn.Crim.App. 1984). The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . ." U.S. Const. amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that the Fifth Amendment's protection against compulsory self-incrimination is applicable to the states through the Fourteenth Amendment). Article I, Section 9 of the Tennessee Constitution provides that "in all criminal prosecutions, the accused . . . shall not be compelled to give evidence against himself." Tenn. Const. art. I, § 9. "The significant difference between these two provisions is that the test of voluntariness for confessions under Article I, § 9 is broader and more protective of individual rights than the test of voluntariness under the Fifth Amendment." State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992).
Generally, one must affirmatively invoke these constitutional protections. An exception arises, however, when a government agent makes a custodial interrogation. Statements made during the course of a custodial police interrogation are inadmissible at trial unless the state establishes that the defendant was advised of his right to remain silent and his right to counsel and that the defendant then waived those rights. Miranda v. Arizona, 384 U.S. 436, 471-75 (1966); see also Dickerson v. United States, 530 U.S. 428, 444 (2000); Stansbury v. California, 511 U.S. 318, 322 (1994). Miranda requires that, prior to interrogation, police inform the defendant as follows: (1) He has the right to remain silent; (2) any statement that he makes may be used against him; (3) he has the right to the presence of an attorney; and (4) if he cannot hire an attorney, one will be appointed prior to the interrogation, if he so desires. Miranda, 384 U.S. at 444. A defendant's rights to counsel and against self-incrimination may be waived as long as the waiver is made voluntarily, knowingly, and intelligently. Id. at 478; State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992). In order for an accused to effect a waiver, he must be adequately appraised of his right to remain silent and the consequence of deciding to abandon it. State v. Stephenson, 878 S.W.2d 530, 544-45 (Tenn. 1994). In determining whether a confession was voluntary and knowing, the totality of the circumstances must be examined. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997).
Prior to trial, the defendant filed a motion to suppress the statements that he had made to Detectives Flair and McElroy, arguing that they were not knowing and voluntary. While the record is somewhat disjointed on this issue, the trial court apparently heard testimony on the subject from the defendant and his mother, Carolyn Pendergrass about six months after the murder. The defendant testified that during the early morning hours of April 20, 1994, detectives arrived at the Colony Motel and requested permission to search the room that he shared with the Ensleys. He stated that they consented to the search and that he told a detective that they had been at the Waffle House. Later that morning, the defendant answered a knock at the door to find a number of detectives with their weapons drawn. He testified that he was taken outside and placed in the front seat of a police car with Detective Flair. When questioned about the offense, the defendant maintained that he had no knowledge of it. The defendant stated that Detective Flair later removed him from the car, read him his rights, and handcuffed him in response to a page that he received on his beeper. He recalled that at the police station, he initially advised Detective Flair that he was going to make a statement. When the detective returned with a tape recorder, however, he chose instead to ask for an attorney. The defendant adamantly denied having made any statements at the station prior to that time. He stated that he was then left alone until Detective McElroy and his mother arrived. According to the defendant, his mother encouraged him to speak to the detectives, but when he tried to do so, Detective McElroy gave him a calling card and declined the request. He testified that on the 24th, he called Detective McElroy because he wanted to get out of jail. Detective McElroy and the defendant's mother met with the defendant that evening and his mother told him that "it would be in [his] best interest to . . . go ahead and talk." The defendant acknowledged that at that point his mother left and, after signing a written waiver, he made a statement to Detective McElroy.
Upon questioning by the state, the defendant acknowledged that he had been to Juvenile Court multiple times, that he had been convicted of two felonies as an adult, and that he had spent time in the penitentiary. He admitted that he understood his rights as Detective Flair had read them to him at the motel, that he had had his rights read to him numerous times, and that he was "well aware" that he had a right to an appointed attorney in this case.
Carolyn Pendergrass testified that Detective McElroy telephoned her on April 20 and inquired about the whereabouts of the defendant. She stated that Detective McElroy called for her again and that she went to the police station in response. Ms. Pendergrass recalled that while there, Detective McElroy advised her that the defendant was not cooperating. She testified that she went over some "papers" with the defendant and told him that he needed to be honest and cooperate. According to Ms. Pendergrass, Detective McElroy called her the following Saturday to tell her that the defendant was going to make a statement and that she could see him if she wished.
The trial court denied the motion to suppress, finding that both the statement made by the defendant at the police station and the one made to Detective McElroy were constitutionally sound:
It's pretty clear . . . before anything significant happened, he was given his rights, and it's apparent to me that he understood his rights. . . . [I]t appears that he may have some difficulty reading these forms and . . . his initial refusal to sign the form may have been on that account. And, I think he was probably very wise in not signing it until . . . somebody with better reading skills that he trusted could . . . go over it with him, which apparently his mother did . . . .
* * *
Having said all that, I think . . . you've got a statement made by a person who was fully aware of his rights against self-incrimination and rights to an attorney. And, after due and considerable consideration he decided he wanted to make a statement. And, without being coer[c]ed he initiated the . . . contact with the police. . . .
Later, in the context of a hearing on the state's notice of intent to seek the death penalty, the trial court questioned the fairness of the notice but confirmed its earlier finding that the defendant's statements were knowing and voluntary:
I held when we had the hearing before that the course . . . of the dealings with [the defendant] made it very clear that he understood his right not to confess. I don't think there is any question about that, and that the confession was voluntary.
* * *
I have previously ruled that the confession is admissible. . . . I focused . . . on the defendant's very clear understanding of his right not to say anything, which is exhibited . . . throughout the dealings that he and Detective McElroy had. It's clear that he understood that he didn't have to say anything.
Initially, this court may consider the entire record, including the evidence submitted at trial, in reviewing the correctness of the trial court's ruling. State v. Henning, 975 S.W.2d 290, 297 (Tenn. 1998). At trial, Detectives Flair and McElroy testified to three separate statements made by the defendant: (1) a statement that he had no knowledge of the crimes, made at the Colony Motel; (2) a statement that he was present during the commission of the offenses, made at the police station; and (3) a more detailed version of the second statement, recorded at the jail. With regard to the circumstances of the first, Detective Flair testified as follows:
About seven o'clock, myself, along with other detectives, went to the room that [the defendant] and Ensley [occupied]. We entered the room. I had conversation with [the defendant]. Identified myself. Expressed to him I'd like to speak with him about [the victim's] violent death. He stated that he had been there all night and didn't know anything about it.
That's when . . . I asked [the defendant] is he could step outside. There was four or five other people in the room, and I wanted to talk to Mr. Pendergrass . . . .
Detective McElroy likewise testified that he was present when the defendant was advised of his Miranda rights at the Colony Motel and that the defendant then denied any knowledge of the victim's murder. In our view, the trial court properly admitted all three of the defendant's statements. The first statement was made immediately after Detective Flair's introduction of himself and explanation of his presence, when the defendant was still in his hotel room with several other individuals. The defendant had not yet been taken into police custody.
There is no indication that the defendant's remaining two statements were involuntary or otherwise coerced. Detectives advised the defendant of his Miranda rights twice before he admitted his involvement in the crimes: once at the Colony Motel and once at police headquarters. Although the police may have offered to "help" the defendant in return for his cooperation, there was no evidence of a promise of leniency and no specific guarantees. See State v. Kelly, 603 S.W.2d 726 (Tenn. 1980); State v. Johnson, 765 S.W.2d 780, 782 (Tenn.Crim.App. 1988). Additionally, while the defendant's mother encouraged him to "talk with [the police], to tell them what had happened," the record does not reflect that she excessively pressured the defendant. Accordingly, the defendant is not entitled to relief on this issue.
IV
Next, the defendant argues that the trial judge who conducted the bench trial and acted as fact-finder violated his right to a fair and impartial "jury" by "summarily announc[ing] . . . guilty verdict[s] without deliberating at all." The state responds that the length of the trial court's deliberation does not affect the validity of the verdicts.
"The length of time that a [fact-finder] deliberates has no bearing on the strength or correctness of their conclusions or the validity of their verdict." Anglin v. State, 553 S.W.2d 616, 620 (Tenn.Crim.App. 1977);see also Wheeler v. State, 415 S.W.2d 121, 127 (Tenn. 1967) (holding that jury's brief period of deliberation was not sufficient to demonstrate passion or caprice). Here, the state and the defense submitted the case to the trial court for final disposition without making closing arguments. At that point, the trial court announced its findings:
All right. Well, I have listened attentively to this case, and these are the things that I find with regard to Count Number One. There's no question that premeditation must exist in the mind before this matter occurred. The Court cannot get over the fact that Mr. Crockett went to the Krystal and Mr. Crockett was told that he should leave because they didn't want to see him hurt or didn't want to — something to the words of him not wanting to be hurt.
Now, then, I come along with the proof of Mr. Ensley and Mr. Patterson, and I weight that and give that some credit. But you go on further with regard to premeditation, and you look at what [the defendant] told the detective. And that is something that the Court has in its mind, too. If this robbery occurred, and then if this individual, the deceased, was placed in the trunk after the robbery occurred, then why did they go to Brick Church Lane unless there was premeditation in their minds.
I find the defendant guilty of Count One, first-degree murder. I find the defendant guilty of Count Two, . . . felony murder, perpetration of a robbery. I find the defendant guilty of Count Three, which was the kidnapping count, I believe. And I find the defendant guilty of Count Four, which is the robbery count.
While the trial judge was prepared to announce the verdicts just after the defense rested, it does not necessarily follow that he failed to consider the entirety of the proof. In proper context, the trial judge rendered the verdict after having just overruled a defense motion for a judgment of acquittal at the close of the state's proof. The defendant did not testify and offered no proof in his own behalf. The Michigan Court of Appeals observed as follows under similar circumstances:
We are unaware of any rule requiring a minimum length of time for deliberation by the trial court as trier of fact, nor does defendant cite any. We decline to impose any such minimum-time rule. We see no good purpose to be served by a requirement that a trial court pause for a longer period of time than needed by that particular judge and pretend to reflect on a case that has already been reflected on sufficiently for the trial court to fairly decide the case. Absent a demonstration to the contrary, we presume that the proceedings were proper and that the trial court discharged its duties in a constitutional manner.
People v. Purcell, 435 N.W.2d 782, 784 (Mich.Ct.App. 1989) (citation omitted). In our view, the trial court did not err by rendering verdicts immediately after the close of the proof.
V
The defendant next asserts that the trial court erred by denying his motion to dismiss on speedy trial grounds. The state contends that it was not the sole cause of the delay and argues that the defendant cannot show prejudice.
The right to a speedy trial is, of course, constitutionally based. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. Rule 48 of the Tennessee Rules of Criminal Procedure provides as follows:
If there is unnecessary delay in presenting the charge to a grand jury against a defendant who has been held to answer to the trial court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, presentment, information or complaint.
Tenn. R. Crim. P. 48(b); see also Tenn. Code Ann. § 40-14-101.
In State v. Bishop, 493 S.W.2d 81 (Tenn. 1973), our supreme court adopted a four-factor analysis for determining whether one has been denied his entitlement to a speedy trial. Adopting a test first established in Barker v. Wingo, 407 U.S. 514 (1972), our high court created a balancing test based upon the following factors:
(1) the length of the delay[;]
(2) the reason for the delay[;]
(3) whether the defendant asserted a claim to his right[;] and
(4) whether [the] defendant was prejudiced by the delay.
Bishop, 493 S.W.2d at 84. The length of the delay is a triggering mechanism. Until there is some delay which is presumptively prejudicial, characterized in some federal and state cases as being from one to two years, there is no necessity for inquiry into the other factors. Barker, 407 U.S. at 530. Prejudice, the most important of the considerations, is assessed in light of three interests to the defendant: (1) to prevent oppressive pretrial incarceration; (2) to minimize the anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Id. at 532. "Serious crimes are . . . expected to take longer than `ordinary street crime [s].'" State v. Thomas, 818 S.W.2d 350, 362 (Tenn.Crim.App. 1991) (quoting Barker, 407 U.S. at 531) (alteration in original). Some courts have held that "a two-year delay is not inordinately long." Thomas, 818 S.W.2d at 363. Other courts, however, have found that a delay of one year or longer "marks the point at which courts deem the delay unreasonable enough to trigger the Barker inquiry." Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992). Because there was a five-year delay from the defendant's arrest until his trial, this court must consider the other factors.
The second Barker factor, the reason for the delay, generally falls into four categories: (1) intentional delay by the state to gain a tactical advantage or harass the defendant; (2) negligence; (3) delay necessary to effectively prosecute the case; and (4) delay caused by or acquiesced in by the defendant. State v. Wood, 924 S.W.2d 342, 346-47 (Tenn. 1996). Intentional delay to gain undue advantage or harass the defendant weighs heavily against the state, while delay through the state's negligence is given slighter weight. The third type of delay, that which is necessary to prosecute the case, does not weigh in favor of or against either party, while delay caused by the defendant weighs against the defendant. Id. Here, there is no indication that the delay was the fault of either the state or the defendant. The trial date was initially continued at the request of the state so that the assistant district attorney could undergo surgery. Although the defendant complains that the surgery was elective, there is no indication that the procedure was part of a plan to harass or gain a tactical advantage over the defendant. The second continuance resulted from the state's extraordinary appeal to this court of a ruling by the trial court suppressing the defendant's pre-trial statements unless the state dropped its demand for the death penalty. See Tenn.R.App.P. 10(a) (providing for grant of extraordinary appeal where "lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review. The issue was resolved in favor of the state. See State v. Mario Pendergrass, No. 01C01-9504-CR-00121 (Tenn.Crim.App., at Nashville, Feb. 28, 1997). In our view, the delay was necessary. This factor weighs in favor of the state.
The third factor is the timing of the defendant's assertion of his speedy trial right. Of course, the defendant is under no duty to bring himself to trial. In consequence, the absence of a demand for a speedy trial does not amount to a waiver of the issue. Bishop, 493 S.W.2d at 84. Nonetheless, the timeliness of the demand is a factor to be considered when determining whether the defendant has been denied his right to a speedy trial. Id. Here, the defendant filed a motion on July 17, 1997, asserting his speedy trial right just after this court had remanded the case back to the trial court in the interlocutory appeal. The defendant asserts that he could not have asserted the right earlier because the trial court lacked jurisdiction during the appeal. We do observe, however, that the defendant had not asserted the right during the more than one and one-half years between his arrest and the second continuance. The trial was held almost exactly one year after the remand. That the right was asserted favors the defense position.
Finally, this court must consider what prejudice, if any, the defendant suffered because of the delay. Citing Doggett, the defendant invites this court to assume prejudice based on the length of the delay. Given the unique procedural history of this case, however, we decline to do so. The defendant concedes that his speedy trial motion relied heavily on the unavailability of mitigation witnesses, a point rendered moot by the state's withdrawal of it's death penalty notice. The record otherwise contains little more than bare accusations by the defendant that he was prejudiced by the death of Lorenzo Ensley's brother, Timothy, prior to trial and by his own pretrial incarceration. The defendant maintains that Timothy Ensley would have offered testimony that he had previously seen his brother with the murder weapon, that the Ensleys were drug dealers, and that the Ensleys knew Donald Crockett, Sr., and the victim. In our view, that testimony would have been cumulative of other proof. Thus, no prejudice to the defense resulted from the delay. Overall, the Barker factors weigh favorably for the state. The defendant was not denied his right to a speedy trial.
VI
Next, the defendant asserts that the waiver of his right to jury trial was neither knowingly nor voluntarily made.
The right to a trial by jury is well documented. See U.S. Const. amend. VI; Tenn. Const. art. I, § 6. It may, however, be waived.Patton v. United States, 281 U.S. 276, 312 (1930); State v. Bobo, 814 S.W.2d 353, 359 (Tenn. 1991). Tennessee Rule of Criminal Procedure 23 addresses a defendant's right to trial by jury, along with the waiver thereof:
In all criminal cases except small offenses, trial shall be by jury unless the defendant waives a jury trial in writing with the approval of the court and the consent of the district attorney general. The defendant may waive jury trial at any time before the jury is sworn.
"If the defendant sees fit to waive this right, it is permissible provided the waiver is made in accordance with the safeguards provided by the constitution and implementing statutes or rules of criminal procedure." Bobo, 814 S.W.2d at 359.
Initially, the record contains a waiver of jury trial form signed by the defendant on July 1, 1998, and witnessed by his counsel, Ross Alderman. The waiver contains the following acknowledgments:
4. I have had numerous discussions, in person and by telephone, with one or both of [my] lawyers concerning my case. I have attended several hearings concerning issues in this case, at some of which I have testified, and have seen my attorneys represent my interests in court. I have discussed with my attorneys the charges against me, the evidence the [s]tate could offer in my case and the witnesses and evidence I could offer in my case, as well as legal matters concerning my case. I have discussed with my attorneys the [s]tate's notice that it will seek the death penalty in my case, how this would affect my trial, and what steps my attorneys will take to prevent the [s]tate from seeking or obtaining the death penalty in this case.
5. I understand that I have the right, under both the U.S. and Tennessee [C]onstitutions, to have my case tried before a jury, and to have a jury decide whether there is sufficient evidence to convict me of the charges I face and, should such a jury conclude that I am guilty of first degree murder, to decide the penalty for this offense.
6. I understand that if I waive, or give up, my right to have this case tried by a jury and instead have a judge decide whether there is sufficient evidence to convict me of the charges I face, the [s]tate . . . will strike or dismiss its notice of intent to seek the death penalty, and that the death penalty will then not be a possible penalty in my case.
7. I understand that by waiving or giving up my right to have this case tried by a jury I am agreeing to have a judge decide whether there is sufficient evidence to convict me of the charges I face.
At the hearing on the motion for new trial, Attorney Ross Alderman testified that he represented the defendant from his 1993 arrest until after the filing of his motion for new trial in 1998. He stated that the defendant's waiver of jury trial form was executed approximately one month before his bench trial in early August of 1998. Alderman acknowledged that in return for the waiver, the state withdrew its notice of intent to seek the death penalty. He testified that he discussed with the defendant the specific advantages and disadvantages of a jury trial versus a bench trial: (1) that the emotional impact of the evidence would be reduced if the judge were the trier of fact; and (2) that a bench trial might reduce the volume of evidence offered by the state. Attorney Alderman testified that he and the defendant had discussed the jury selection process and the requirement of a unanimous verdict "a lot" over the five-year course of his representation. He stated that during the month prior to trial, he and other lawyers in his office had several conversations with the defendant wherein "[the defendant] would be equivocating about a trial and whether in fact to waive the jury." He explained that each time, the attorneys discussed the various pros and cons with the defendant. Alderman testified that on the morning of trial, he understood that the defendant wanted to proceed without a jury. He acknowledged that he and the defendant expected the trial court to consider ratification of the waiver before proceeding to trial and that the defendant had indicated that he wanted to make a statement on the issue. According to Attorney Alderman, the defendant never informed the trial judge that he did not want to proceed with a bench trial. It was Attorney Alderman's opinion that it was in the defendant's best interests to waive a jury trial.
The defendant claimed that he discussed waiver of his right to jury trial with his attorneys several times, but not on the day of trial. While he acknowledged that his attorneys had discussed with him jury composition and his right to be involved in jury selection, he denied receiving advice of the requirement that the jury's verdict be unanimous. The defendant recalled having discussed two specific advantages of a bench trial over a jury trial: (1) that the trial judge would be more "lenient" than the jury in viewing the evidence; and (2) that the trial judge might be prejudiced against the prosecutor. He acknowledged that he had signed the waiver of rights form and contended that afterwards, he had changed his mind several times and had so advised his attorneys on at least three occasions. The defendant admitted that on the morning of trial, he unequivocally expressed his desire to go forward without a jury, but maintained that he did so only to avoid further delay. When asked about the state's withdrawal of its death penalty notice in exchange for his jury waiver, he answered, "I should have [gone] forward with the death penalty from the beginning, It's really nothing to fear when you're in prison proving your innocence. . . ."
In our view, the defendant made a valid waiver of his right to trial by jury. The state's agreement to withdraw its death notice was a significant and appropriate motivation. Although the defendant testified that he reconsidered his decision in the weeks between his signing of the waiver form in July and his August trial, the record establishes that, on the morning of trial, he chose a bench proceeding absent a jury. That his decision was motivated by a desire to proceed immediately rather than waiting until a later date does not render his choice involuntary.
VII
The defendant next claims that his aggravated robbery and especially aggravated kidnapping sentences are excessive. The state disagrees.
When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption 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); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn.Crim.App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.
Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn.Crim.App. 1987).
At the time of the offense, the presumptive sentence for a Class A felony was the minimum within the range if there were no enhancement or mitigating factors. See Tenn. Code Ann. § 40-35-210(c) (1990); cf. Tenn. Code Ann. § 40-35-210(c) (Supp. 2000) (making the presumptive sentence for a Class A felony the midpoint in the range). If there were enhancement factors but no mitigating factors, the trial court could set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d) (1990). A sentence involving both enhancement and mitigating factors required an assignment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-210(e) (1990). The sentence would then be reduced within the range by any weight assigned to the mitigating factors present. Id.
At the sentencing hearing, the state presented the testimony of Jimmy W. Pruitt, the victim's brother. The defense offered no proof. After hearing the arguments of counsel, the trial court found the following enhancement factors applicable to both convictions: (1) that the defendant has a previous history of criminal convictions; (2) that the defendant was a leader in an offense involving two or more criminal actors; and (3) that the defendant treated or allowed the victim to be treated with unusual cruelty. See Tenn. Code Ann. § 40-35-114(1), (2), (5). No mitigating factors were applied. The trial court then sentenced the defendant as a Range I standard offender to 22 years each, seven years above the minimum and three years below the maximum, for the especially aggravated kidnapping and the especially aggravated robbery.
Initially, the defendant contends that the trial court erroneously applied each of the three enhancement factors. With regard to enhancement factor (1), he maintains that there was no proof of any prior convictions presented at trial or at the sentencing hearing. While the record indicates that the presentence report was filed, it is not included in the record. Our consideration of the presentence report is mandatory.See Tenn. Code Ann. § 40-35-210(b)(2). The record does, however, contain judgments confirming that the defendant was previously convicted of aggravated burglary and attempted aggravated robbery. This is sufficient to support the trial court's application of enhancement factor (1).
The defendant next asserts that enhancement factor (2) was erroneously applied because the proof at trial demonstrated that Lorenzo Ensley was the leader during the offense. He argues that Ensley arranged for the taxi cab, chose the driver, and obtained the shotgun used during the crimes. There is no evidence in the record that the defendant planned or directed the robbery or the kidnapping offenses. See State v. Freeman, 943 S.W.2d 25, 30 (Tenn.Crim.App. 1996). Although Tennessee Code Annotated § 40-35-114(2) does not require that the defendant be the sole leader, the facts presented do not warrant the application of that factor to the defendant's kidnapping and robbery sentences.
The defendant argues that enhancement factor (5), that the defendant treated the victim or allowed the victim to be treated with unusual cruelty, should not have been applied because there was no cruelty over and above that necessarily attendant to the crimes. Recently, in State v. Arnett, our supreme court held that before enhancement factor (5) may be applied, the facts must support a "finding of cruelty under the statute `over and above' what is required to sustain a conviction for [the] offense." 49 S.W.3d 250, 258-59 (Tenn. 2001); see also State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997) (holding that facts must "support a finding of `exceptional cruelty' that `demonstrates a culpability distinct from and appreciably greater than that incident to' the crime"); State v. Embry, 915 S.W.2d 451, 456 (Tenn.Crim.App. 1995) (holding that enhancement factor (5) "requires a finding of cruelty over and above that inherently attendant to the crime"). The trial court "`should state what actions of the defendant, apart from the elements of the offense, constituted "exceptional cruelty."'" Poole, 945 S.W.2d at 98 (quoting State v. Goodwin, 909 S.W.2d 35, 45 (Tenn.Crim.App. 1995)). This rule is intended to "avoid enhancing the length of [a] sentence based on factors the [l]egislature took into consideration when establishing the range of punishment for the offense." Id. Exceptional cruelty is "usually found in cases of abuse or torture." State v. Williams, 920 S.W.2d 247, 259 (Tenn.Crim.App. 1995). Here, the trial court did not identify the actions of the defendant upon which it relied to support the application of enhancement factor (5). Yet, the record does support application of the factor. There is evidence that the victim was forced into the trunk at gunpoint and left there while the defendant and Ensley "drove around" for an unspecified period of time. Thereafter, the victim was removed from the trunk, escorted into a field, and shot in the head execution-style while he begged for his life. In our view, this amounts to cruelty over and above that necessary for the offenses. See State v. Paul Dennis Reid, Jr., No. M1999-00803-CCA-R3-DD (Tenn.Crim.App., at Nashville, May 31, 2001) (affirming application of enhancement factor (5) where victims experienced mental anguish while awaiting their executions). Thus, the trial court did not err by applying this factor.
The defendant also contends that the trial court erred by refusing to apply several mitigating factors. First, he argues that the trial court should have applied mitigating factor (4), that the defendant played a minor role in the commission of the offense. See Tenn. Code Ann. § 40-35-113(4). The trial court properly rejected this factor. Although the evidence does not support a finding that the defendant was "a leader" in the offense, it is clear that he played a significant role. Next, he asserts that the trial court should have applied mitigating factor (6), that because of youth or old age, the defendant lacked substantial judgment in committing the offense. See Tenn. Code Ann. § 40-35-113(6). At the time of the offenses, the defendant was 21 years old, had at least two prior convictions, and had been previously incarcerated for those crimes. In our view, this factor was not applicable. Third, the defendant maintains that the trial court erred by failing to apply mitigating factor (9), that the defendant assisted the authorities in locating or recovering any property or person involved in the crime. See Tenn. Code Ann. § 40-35-113(9). After giving a statement to Detective McElroy, the defendant implicated Lorenzo Ensley in other crimes. Because, however, there is no indication that the information was of any assistance to authorities, that mitigating factor is not triggered. Next, the defendant asserts that the trial court should have applied mitigating factor (11), that it was unlikely that a sustained intent to violate the law motivated the defendant's criminal conduct, because he did not know a robbery or kidnapping was about to occur. See Tenn. Code Ann. § 40-35-113(11). In our view, though, the record does not support this factor. Prior to any of the offenses, the defendant and Lorenzo Ensley made specific plans to steal taxi services. Because they made several stops in the taxi and drove around after placing the victim in the trunk, the offenses took time to complete. Finally, the defendant argues that the trial court erred by failing to consider, under catch-all mitigating factor (13), that he acted under duress. See Tenn. Code Ann. § 40-35-113(13). The record, however, does not support application of this factor.
In sum, enhancement factors (1) and (5), that the defendant has a previous history of criminal convictions in addition to those necessary to establish the appropriate range and that the defendant treated or allowed a victim to be treated with exceptional cruelty, are applicable to the defendant's especially aggravated kidnapping and especially aggravated robbery sentences. No mitigating factors are applicable. Especially aggravated kidnapping and especially aggravated robbery are Class A felonies. Tenn. Code Ann. §§ 39-13-305(b)(1), -403(b). At the time of the offenses, a Range I sentence for a Class A felony was 15 to 25 years. Tenn. Code Ann. § 40-35-112(a)(1) (1990). Here, the trial court increased each of the defendant's sentences by seven years based on the application of three enhancement factors. While only two of the enhancement factors were properly applied, a mid- to high-range sentence is warranted by the weight of the remaining enhancement factors. The 22-year sentences are appropriate.
VIII
Finally, the defendant asserts that the trial court erred by ordering that his kidnapping and robbery sentences be served consecutively to one another and to his murder sentence.
Prior to the enactment of the Criminal Sentencing Reform Act of 1989, the limited classifications for the imposition of consecutive sentences were set out in Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court ruled that aggravating circumstances must be present before placement in any one of the classifications. Later, inState v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the court established an additional category for those defendants convicted of two or more statutory offenses involving sexual abuse of minors. There were, however, additional words of caution:
[C]onsecutive sentences should not routinely be imposed . . . and . . . the aggregate maximum of consecutive terms must be reasonably related to the severity of the offenses involved.
Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary language. Tenn. Code Ann. § 40-35-115, Sentencing Commission Comments. The 1989 Act is, in essence, the codification of the holdings in Gray and Taylor; consecutive sentences may be imposed in the discretion of the trial court only upon a determination that one or more of the following criteria exist:
The first four criteria are found in Gray. A fifth category inGray, based on a specific number of prior felony convictions, may enhance the sentence range but is no longer a listed criterion. See Tenn. Code Ann. § 40-35-115, Sentencing Commission Comments.
(1) The defendant is a professional criminal who has knowingly devoted himself to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences;
(4) The defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed while on probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
In Gray, our supreme court ruled that before consecutive sentencing could be imposed upon the dangerous offender, considered the most subjective of the classifications and the most difficult to apply, other conditions must be present: (a) that the crimes involved aggravating circumstances; (b) that consecutive sentences are a necessary means to protect the public from the defendant; and (c) that the term reasonably relates to the severity of the offenses. In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high court reaffirmed those principles, holding that consecutive sentences cannot be required of the dangerous offender "unless the terms reasonably relate to the severity of the offenses committed and are necessary in order to protect the public (society) from further criminal acts by those persons who resort to aggravated criminal conduct." The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutive sentencing adopted in State v. Woods, 814 S.W.2d 378, 380 (Tenn.Crim.App. 1991), described sentencing as a "human process that neither can nor should be reduced to a set of fixed and mechanical rules." Wilkerson, 905 S.W.2d at 938.
The length of the sentence, when consecutive in nature, must be "justly deserved in relation to the seriousness of the offense," Tenn. Code Ann. § 40-35-102(1), and "no greater than that deserved" under the circumstances, Tenn. Code Ann. § 40-35-103(2); State v. Lane, 3 S.W.3d 456 (Tenn. 1999).
In ordering the defendant's sentences to be served consecutively, the trial court made the following findings:
With regard to section 40-35-115, multiple convictions, the [c]ourt finds that the defendant is a professional criminal, who has knowingly devoted himself to criminal acts as a major source of his livelihood.
The [c]ourt further finds that the defendant is an offender whose record of criminal activity is extensive. And the [c]ourt further finds that this individual is particularly dangerous. He goes back to the motel room and jokes with regard to the offense he has committed.
Initially, the trial court found that the defendant is a professional criminal who has knowingly devoted his life to criminal acts as a major source of livelihood and is an offender whose record of criminal activity is extensive. See Tenn. Code Ann. § 40-35-115(b)(1) — (2). Because the presentence report is not before this court, the record is inadequate for our review with regard to these findings. See Tenn. Code Ann. § 40-35-210(b)(2). In the absence of an adequate record on appeal, this court must ordinarily presume that the trial court's rulings are supported by sufficient evidence. State v. Oody, 823 S.W.2d 554, 559 (Tenn.Crim.App. 1991). Here, the defendant, who was only 21 years of age at the time of the offenses, had at least two prior convictions — one for aggravated burglary and one for attempted aggravated robbery. He had, in fact, just gotten out of prison only several days prior to the victim's murder.
In determining that the defendant also qualified for consecutive sentencing on the grounds that he is a dangerous offender, the trial court failed to specifically find that an extended sentence reasonably relates to the severity of the offenses and is necessary to protect the public against further criminal conduct by the defendant. The record, however, establishes that consecutive sentencing is warranted. The defendant and Ensley initiated an armed robbery in a moving vehicle, thereby endangering not only the victim and themselves, but also any surrounding drivers and pedestrians. See State v. Horace Demon Pulliam, No. M2001-00417-CCA-R3-CD (Tenn.Crim.App., at Nashville, Jan. 23, 2002). Rather than releasing the victim, the defendant and Ensley simply placed him in the trunk, then killed him. The defendant bragged about the crimes upon returning the Colony Motel and threatened to harm anyone who reported his involvement in the crime to authorities. In our view, the defendant's behavior demonstrates little or no regard for human life and no hesitation about committing a crime in which the risk to human life is high.
Further, at the time of the offenses, the defendant had two prior convictions for crimes involving violence — aggravated burglary and attempted aggravated robbery. There were two separate victims involved. The defendant, who received concurrent sentences of four years for each crime, was released from confinement on April 12, 1993, only one week prior to committing the offenses in this case. See State v. Lavender, 967 S.W.2d 803, 809 (Tenn. 1998) (upholding consecutive sentencing on dangerous offender grounds where, among other things, defendants "[had] prior criminal records and . . . served jail or prison sentences for past offenses which obviously have not deterred them from continuing to commit crimes"); State v. Anthony Leon Moore, No. W2000-02862-CCA-R3-CD (Tenn.Crim.App., at Jackson, Feb. 11, 2002) (upholding consecutive sentencing on dangerous offender grounds where defendant had been out of prison "for only three and one-half months" before committing aggravated robbery and aggravated burglary). Moreover, the defendant has shown no remorse for these crimes or for the victim's death. See State v. Pike, 987 S.W.2d 904 app. (Tenn. 1998) (approving consecutive sentencing on dangerous offender grounds where, among other things, defendant showed no remorse for crimes). Consecutive sentencing is, in our view, necessary to protect the public.
Finally, the effective sentence of life plus 44 years is also warranted by the severity of the offenses. The defendant accompanied Lorenzo Ensley in robbing, kidnapping, and murdering a taxi driver. See Timothy Allen Moore, No. M2000-02933-CCA-R3-C.D. (Tenn.Crim.App., at Nashville, Jan. 11, 2002) ("[Armed robbery] is a very serious crime, against which little protection is possible, and those who commit armed robberies upon innocent merchants are, almost by definition, `dangerous offenders.'"). The victim was held at gunpoint while driving a commercial vehicle on public roads and then locked into the trunk of the vehicle for an undetermined period of time. He was executed at close range while he begged for his life. The weapon used was an illegal sawed-off 12-gauge shotgun. In our view, the defendant qualifies as a dangerous offender.
Accordingly, the judgments of the trial court are affirmed.