author: JAMES CURWOOD WITT, JR., J.,

text:
    STATE of Tennessee v. Monqueze L. SUMMERS.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Jan. 14, 2004 Session.
    Sept. 15, 2004.
    Application for Permission to Appeal Denied by Supreme Court Jan. 18, 2005.

      James L. Weatherly, Nashville, Tennessee, for the Appellant, Monqueze L. Summers.
    Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and James H. Todd, Assistant District Attorney General, for the Appellee, State of Tennessee.
   OPINION

JAMES CURWOOD WITT, JR., J.,

delivered the opinion of the court,

in which JOSEPH M. TIPTON and JOHN EVERETT WILLIAMS, JJ., joined.

The case before us concerns the untimely death of Montrell Mason and the aggravated robbery of Clinton Anderson and Christopher Fears. The defendant stands convicted of Mason’s felony murder in the perpetration of robbery, two counts of aggravated robbery, and weapon possession. We affirm the convictions and sentences.

The evidence at trial was highly controverted, and various witnesses for the prosecution and the defense testified in sharp conflict to one another. The state’s case relied in significant part on the testimony of Jarquis Hendricks, who testified that on the evening of August 13, 1999, he was with the defendant and some of his other acquaintances at a Teen Night at 328 Performance Hall in Nashville. While there, Hendricks and Renaldo Clay got into a disagreement with the victim and some of the victim’s friends, although the incident was resolved and Hendricks and the victim gave each other some “dap,” meaning that they shook hands. Several minutes later, Hendricks was outside when the defendant came out of the club. The defendant, who had not been part of the disagreement in which Hendricks and the victim had been involved, was upset and said that he had been “ganged” inside. The defendant said, “I’m gonna burn one of 'em. I’m going to show them I ain’t no ho [sic].”

According to Hendricks’ testimony, Re-naldo Clay, the defendant, and Hendricks found a ride to the University Court housing development with someone named Bobby and an unidentified passenger. The defendant went to his sister’s house and returned with Orlando Bass in about ten minutes, while Hendricks and Clay stayed behind in the driveway. The defendant proposed that they return to 328 Performance Hall. Bass, Clay, Hendricks, and the defendant got into the defendant’s sister’s car. On the way back to the club, the defendant, who was driving, took out a gun and checked the clip.

When the group arrived in the area of 828 Performance Hall, they saw the young men with whom there had been an earlier disagreement. Although the chronology is somewhat imprecise, Hendricks saw Bass with a gun in his hand. The defendant asked Bass what type of weapon it was, and then the defendant and Bass switched weapons with each other. Hendricks claimed that the three other men walked toward the other group of men, although he stayed behind. The defendant and Clay were holding guns at their sides. Hendricks returned to the car and sat in the driver’s seat because he thought “they were robbing ‘em or something was fixing to happen, probably.” After two or three minutes, Clay and Bass returned and got into the car. Hendricks then heard a gunshot. He turned and saw a second shot being fired by the defendant. The defendant returned to the car and said that he thought he hit one of them. The group then drove to University Court.

A detective who interviewed Hendricks shortly after the crimes testified about several inconsistencies between Hendricks’ testimony and his prior statement, including that Hendricks had previously claimed to have seen the defendant walking back toward the car when shots were fired. Additionally, Hendricks had said that an individual named Rico had been present.

Cy-Silvia Jordan, who at the time of the crimes was the defendant’s brother’s girlfriend, testified for the state. Jordan was present at a home in University Court on the night of the victim’s death. She testified that the defendant came to the home, said that “a bunch of Lischey guys were causing a problem,” and asked his brother for a gun. The defendant left with a .45 handgun.

Jordan admitted on cross-examination that she was testifying as part of a plea agreement relative to a charge of especially aggravated robbery. She likewise admitted that she had been a psychiatric inpatient and was taking Haldol and Co-gentin. Further, she admitted that she had not initially contacted the police with the information and that she had only done so after a disagreement with Shaun Summers, the defendant’s brother.

Various police officers provided testimony that after they were summoned to the scene, they found the deceased victim in the driver’s seat of a yellow Oldsmobile parked in front of a building at Fourth Avenue and Lee Street. The victim had been shot in the back of the head. The doors were open and the brake lights were on. The back passenger side window was shattered, and the driver’s side rear tire was flat. A nine millimeter shell casing and a copper jacket were recovered.

Christopher Fears testified that he had been a friend of the victim and had been with the victim the night of his death. He had been riding in a car with the victim, Clinton Anderson, and Elton Price in heavy, backed-up traffic when the victim accidentally dropped $100 out the window. The victim got out of the car to get his money. Fears heard someone shooting into the air. Price said he was going to get a pistol, and the victim took the wheel. They traveled a short distance further and parked. They got out of the car, and the victim talked to a group of people, of whom the defendant was one. Three or four of these individuals had handguns and robbed Fears. He denied that the defendant was one of the robbers, although he said that the defendant had a gun at his side. Fears claimed that although Mason had about $1,000, Mason was not robbed.

Clinton Anderson did not testify for the state. His mother did testify outside the jury’s presence, however, and claimed that after arriving at the courthouse on the first day of the defendant’s trial, her son told her that he was “stressed” and was leaving town.

The court admitted a tape of Anderson’s prior testimony in a juvenile court hearing, in which Anderson recounted that he had been with a group of men, including the victim, on the night of the victim’s death. They went to a club and then went riding around. Anderson was initially riding around with Elton Price, and they picked up the victim. The victim dropped a $100 bill, and someone picked it up and talked to the victim. Anderson recounted in ambiguous terms that there was an argument and shooting into the air. Apparently, the three men got out of the car during this incident. They then returned to the car. The defendant said that they had “ganged” him in the club and told them to “lay things out.” Anderson said that he and Fears emptied their pockets. Someone other than the defendant picked up the contents, and no one handed any of Anderson’s money to the defendant. The victim did not drop anything from his pocket, and the defendant said that the victim was “cool.” Anderson claimed that neither he nor any of his companions had a weapon, but he saw at least one weapon in the group — the one the defendant was pointing at the victim. He thought he saw other weapons that were pointed down, but he was not sure how many. Anderson claimed that the victim told him to go get the victim’s gun. Anderson and Fears walked away, and as Anderson approached Elton Price, he heard two gunshots. Anderson and Price went back to the location of the robbery, and they discovered the victim in the car with a gunshot wound to the head.

To counter the state’s proof, the defendant began his case-in-chief with the testimony of his brother, Shawn Summers. The defendant’s brother recounted that he had a tempestuous relationship with Cy-Silvia Jordan, who he characterized as controlling and mentally unstable. He claimed that Jordan threatened that if he broke up with her, she would seek revenge by making untrue statements to the authorities about the defendant’s criminal charges. He claimed that she ultimately did just that, although she later apologized and said she thought it was a joke. He said that the he that Jordan told was that someone came to the home on the night of the crimes and retrieved a gun.

Shawanda Summers, who is the defendant’s sister, testified that she was alone on her porch at University Court in the early morning hours of August 14, 1999 when the defendant, Renaldo Clay, and Jarquis Hendricks came up the stairs. She overheard the defendant ask Clay why he started shooting, to which Clay replied, “They was trying to jump me in the club.”

The defendant testified. He admitted that in 1999 he had a gun that he kept at his sister’s house. He claimed that he needed it for protection because he lived in a violent area. He testified that on the evening of August 13, 1999, he had Rico Halliburton drop him off at 328 Performance Hall. Halliburton left to have his hair braided, and the defendant stayed at the club for a few hours. While there, he saw Renaldo Clay and Jarquis Hendricks. The defendant denied that he got into a fight at the club, and he likewise denied that anyone threatened or attacked him.

At about 11 p.m., the defendant began looking for a ride because Halliburton had not yet returned. He saw Clay and Hendricks outside the club and decided to look for a ride to University Court with them. Hendricks arranged for someone named Bobby to give them a ride. The defendant denied that he made any statement about getting a gun to hurt someone while in Bobby’s vehicle. After they arrived at University Court, Bass, Hendricks, Halliburton, Clay, and the defendant left in Halliburton’s car to go to another club. The defendant admitted that while at University Court, he retrieved his gun in case someone tried to rob him, although he denied making a statement that he was going to “burn” anyone.

The group of young men tried to get into 328 Performance Hall, but a police officer would not admit some of them. They began walking toward an establishment called The Club. Someone, perhaps Hendricks, moved the car. Hendricks had to use the bathroom, and the rest of the group walked up the street and waited for Hendricks on the corner. While they were doing so, they heard two gunshots. The defendant and Clay took out their guns. The defendant held his gun at his side. A yellow car pulled up and backed in where the defendant and his group were assembled. Christopher Fears, Clinton Anderson, and Montrell Mason, the victim, were in the car. Clay told everyone to “lay it down.” The defendant admitted that both he and Clay still had their guns out. The defendant claimed he intervened and told Clay that Mason was “cool” and that he was not going to let Clay rob his friend Mason. He said that this angered Clay, although Clay complied and backed off. The defendant said he did not see any money taken from Fears or Anderson. The defendant had a friendly conversation with Mason, and Fears and Anderson departed. The defendant claimed that he walked away, leaving Mason, Bass, Halliburton, and Clay. As he got around a corner, he heard two gunshots in rapid succession. The defendant jumped into the car that Halliburton had been driving, where he found Hendricks behind the wheel. They drove up an alley, and Clay got inside. On the way back to University Court, Clay and the defendant got into an argument when the defendant asked Clay whether he was the person who feed shots and Clay said that he was. The defendant inquired why Clay had done this, and Clay responded that they tried to “gang” him in the club. The defendant testified that Halliburton and Bass were also upset with Clay, although Hendricks did not appear to be so.

When they reached University Court, Halliburton and Bass drove back to the scene to see whether Mason was okay. Hendricks, Clay, and the defendant walked to the defendant’s sister’s house. The defendant claimed that he admonished Clay that he did not have to shoot Mason. The defendant denied that he was the one who shot Mason, and he likewise denied any involvement in a robbery of Anderson and Fears.

After receiving this proof, the jury found the defendant not guilty of premeditated murder but guilty of felony murder, two counts of aggravated robbery, and possession of a deadly weapon. The court imposed a life sentence for the felony murder conviction, and in the sentencing hearing that followed, the court ordered ten-year sentences for the aggravated robbery convictions and a one-year sentence for the weapon offense, with the latter three sentences to be served concurrently to each other but consecutively to the murder sentence, for an effective sentence of life plus ten years. The defendant then filed this appeal.

Sufficiency

The defendant assails the sufficiency of the evidence underlying his convictions of felony murder and aggravated robbery. When an accused challenges the sufficiency of the convicting evidence, this court must review the record to determine if the evidence adduced at trial is sufficient “to support the finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R.App. P. 13(e). This rule is applicable to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn.Crim.App.1990), overruled in part by State v. Hooper, 29 S.W.3d 1 (Tenn.2000).

In determining the sufficiency of the convicting evidence, this court does not reweigh or re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim.App.1990). Nor may this court substitute its inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the state the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978).

Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact, not this court. Id. In State v. Grace, 493 S.W.2d 474, 476 (Tenn.1973), our supreme court said, “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.”

Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused, as the appellant, has the burden in this court of illustrating why the evidence is insufficient to support the verdicts returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). This court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the facts contained in the record are insufficient, as a matter of law, for a rational trier of fact to find that the accused is guilty beyond a reasonable doubt. Id.

With respect to the felony-murder conviction, the defendant argues that the proof does not support a jury finding of robbery of Montrell Mason. He claims that the jury’s rejection of the premeditated murder count necessarily implies that the jury rejected the premise that the defendant fired the fatal shot, and because there is not sufficient proof of a robbery of Mason, a conviction of felony murder in perpetration of robbery cannot lie. We disagree that the proof is lacking.

First of all, the jury’s rejection of the premeditated murder count does not mean that the jury did not believe that the defendant fired the fatal shot; it simply means that the jury had a reasonable doubt as to whether he did so intentionally and with premeditation.

Second, felony murder is “[a] killing of another committed in the perpetration of or attempt to perpetrate any ... robbery....” Tenn. Code Ann. §39-13-202(a)(2) (2003). The indictment charges the defendant with killing Mason during the perpetration of or attempt to perpetrate “a robbery.” The indictment does not specify that the robbery was of Mason. In the light most favorable to the state, the evidence presented demonstrates that the defendant committed robbery of or at least attempted to rob Christopher Fears and Clinton Anderson, and in the course of perpetrating those crimes, Montrell Mason was shot. In order for us to conclude that no rational jury could reach this conclusion, we would be required to discredit portions of the state’s evidence, and we are not free to make credibility assessments contrary to those made by the trier of fact. See, e.g., Cabbage, 571 S.W.2d at 835. Specifically, the state presented evidence via Clinton Anderson’s prior testimony, in which he claimed that the defendant, who had a weapon, told Fears and Anderson to “lay things out.” In response, they emptied their pockets, and someone other than the defendant picked up the contents. Mason told Fears and Anderson to go get his gun from Elton Price, and the two walked away and then heard two gunshots. When they returned to the scene, they found the mortally wounded victim.

Alternatively, there is evidence that supports the defendant’s guilt on a theory of criminal responsibility. See Tenn.Code Ann. § 39-11-402(2) (2003) (A person is criminally responsible for the crime committed by another if “[ajcting 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[.]”). Other witnesses placed the defendant at the scene with a weapon in his hand, although their testimony did not identify the defendant as the actor who demanded or collected pocket contents from Fears and Anderson. The defendant himself admitted that he was present and was displaying a weapon when Renaldo Clay attempted to rob Anderson, Fears, and Mason, although he claimed that he intervened to prevent Clay from taking anything from Mason. The defendant did not make a similar claim he attempted to prevent a robbery of Anderson or Fears; he merely said that he did not see any money being taken from them. Given the defendant’s association with Clay in these circumstances, the jury was within its province in finding the defendant guilty of felony murder based upon the predicate crime of robbery via a theory of criminal responsibility.

The defendant also challenges the sufficiency of the evidence to support his separate convictions of aggravated robbery of Fears and Anderson. Aggravated robbery, as relevant here, is “the intentional or knowing theft of property from the person of another by violence or putting the person in fear” which is “accomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon[.]” Id. §§ 39-13-401(a) (2003) (robbery); 39-13-402(a)(l) (2003) (aggravated robbery). As discussed above, the evidence viewed in the light most favorable to the state demonstrates that the defendant, armed with a handgun, demanded that Fears and Anderson “lay things out” and that someone in the defendant’s group took the items that the victims surrendered. That this evidence was controverted at trial is not fatal to the state’s case; the jury chose to accredit this evidence over that to the contrary, and we may not revisit questions of credibility on appellate review.

For these reasons, we reject the defendant’s challenges to the sufficiency of the convicting evidence for the felony murder and aggravated robbery convictions.

Judicial Use Immunity—

Rico Halliburton

In a novel issue, the defendant claims that the lower court erred in denying his bid for judicial use immunity for prospective witness Rico Halliburton. Relying heavily on the Third Circuit case of Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980), the defendant contends that due process required that the court grant use immunity for Halliburton. As the defendant correctly notes, this is an issue of first impression in Tennessee.

Halliburton invoked his Fifth Amendment privilege when questioned about the crimes for which the defendant was on trial. The defense anticipated that if immunized, Halliburton would testify that he was present at the time the victim was shot and saw Renaldo Clay, not the defendant, fire the fatal shot. The defense based this expectation on Halliburton’s pri- or statement to law enforcement authorities to this effect. As a second, less preferable alternative to use immunity, the defense initially proposed that it be allowed to introduce a videotape of Halliburton’s prior statement. The court denied the defendant’s bid for use immunity for Halliburton but ruled that the videotape could be admitted and encouraged the parties to agree on which portion of the tape was relevant. The parties were unable to reach an agreement, and the defense withdrew its request to admit the tape while attempting to reserve its objection to the court’s ruling relative to use immunity.

Use immunity generally refers to a federal prosecutor’s discretionary authority to grant a witness immunity from prosecution based upon his compelled testimony, when doing so is in the public interest. See 18 U.S.C. §§ 6002 et seq United States v. Mohney, 949 F.2d 1397, 1401 (6th Cir.1991). Some states have recognized use immunity as a matter of state law. See generally Robert M. Schoenhaus, Prosecutor’s Power to Grant Prosecution Witness Immunity from Prosecution, 4 A.L.R.4th 1221. In Tennessee, immunity agreements are enforceable via principles of contract law. State v. Howington, 907 S.W.2d 403 (Tenn.1995).

The criminal defendant has no discretion of his own to immunize those witnesses who might offer favorable testimony for the defense were it not for their own concerns about self-incrimination. It is foreseeable that in certain situations, the prosecution’s power to grant immunity to its witnesses, without the defense having companion power for immunizing its witnesses, might result in the prosecution having the ability to intentionally distort the fact-finding process, or at a minimum, having far superior access to evidence as compared with the defense. See Mohney, 949 F.2d at 1402. Thus, some jurisdictions have recognized either or both of two theories by which use immunity may be conferred upon defense witnesses — when it is necessary so that the defendant may mount an effective defense and/or when it is necessary to overcome prosecutorial misconduct. See United States v. Pennell, 737 F.2d 521, 526 (6th Cir.1984). The basis for such a grant of immunity is due process. Id. at 526-27.

The defendant in the case at bar asks us to hold, as a matter of due process, that the trial court erred in failing to order use immunity for Rico Halliburton so that the defendant might present evidence via Halliburton’s testimony that Renaldo Clay, not the defendant, shot the victim. He asks that the court recognize judicial use immunity under the effective defense theory, and he does not make a claim of prosecuto-rial misconduct.

Although the existence of use immunity for defense witnesses in Tennessee is an intriguing one, we are not inclined to resolve the question given the facts of the case at bar. We are unpersuaded that the defendant has demonstrated that his due process rights were infringed upon by the absence of Halliburton’s testimony. Thus, even if defense-benefitted use immunity were established in Tennessee, the defendant has not presented facts which would support its application in his case.

Tennessee law provides guidance for review of claims of violation of a criminal defendant’s constitutional right to present a defense. The factors to be considered are whether

1. the excluded evidence is critical to the defense;

2. the evidence bears sufficient indicia of reliability; and

3. the interest supporting exclusion of the evidence is substantially important.

State v. Brown, 29 S.W.3d 427, 433-34 (Tenn.2000) (citing Chambers v. Mississippi 410 U.S. 284, 298-301, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)); see also State v. Powers, 101 S.W.3d 383, 397 (Tenn.), cert. denied, 538 U.S. 1038, 123 S.Ct. 2083, 155 L.Ed.2d 1071 (2003).

In the present case, the defendant cannot satisfy these prerequisites to establishing a constitutional claim; therefore, his bid for judicial use immunity for Halliburton must fail. We are not persuaded that the evidence is critical to the defense. The defendant posits that the Halliburton’s anticipated testimony was “clearly exculpatory to [the defendant] Summers ... and placed responsibility for the murder of Montrell Mason squarely at the feet of co-defendant, Renaldo Clay.” At trial, defense counsel summarized the anticipated testimony from Halliburton as follows, “That he [Halliburton] was there, that he was part of everything that happened, that Monqueze Summers did not rob anybody, that the shots were fired by Renaldo Clay, not by Monqueze Summers.” The evidence the defense sought to introduce via Halliburton’s testimony, however, was also available via introduction of Halliburton’s prior videotaped statement. The court ruled that the relevant portions of this tape could be admitted, but the defense withdrew its request for admission when it was unable to agree with the prosecution about which parts of the tape were relevant. Also, the defendant presented other evidence, both from his testimony and from other sources, that he neither robbed Fears and Anderson nor shot Mason. Cf. Powers, 101 S.W.3d at 397 (no due process deprivation where trial court’s ruling did not amount to blanket exclusion of evidence relative to a particular topic). In fact, the jury at least partially rejected the state’s case against the defendant by acquitting him of premeditated murder.

Having determined that the excluded evidence was not critical to the defense, we need not conduct further analysis of the Chambers factors. The court committed no error in denying use immunity.

Admission of Clinton Anderson’s Juvenile Court Testimony

The defendant claims that the trial court erred in admitting the audiotaped prior testimony of Clinton Anderson from an earlier hearing in juvenile court. The court admitted this evidence under Tennessee Rule of Evidence 804, the rule governing hearsay exceptions for admission of prior statements of unavailable witnesses. The testimony contained on the tape generally inculpated the defendant as having taken part in a robbery of both Anderson and Christopher Fears. He also identified the defendant as one of three armed individuals at the scene of the robbery, although Anderson did not identify the defendant as the shooter. He claimed he left the scene after the robbery, heard shots, and returned to find the victim mortally wounded. Anderson testified he did not see who fired the shots.

Clinton Anderson initially appeared on the first day of the trial, but he did not return the second day, and he could not be found despite the state’s efforts to locate him. According to testimony received in a jury-out hearing from Anderson’s mother, her son told her on the first day of trial that he was leaving town, and she did not know his whereabouts. A victim/witness advocate in the district attorney’s office testified that Anderson’s mother told her that Anderson had reported that he was feeling anxious about testifying, was leaving town, and did not reveal his intended destination. The victim/witness advocate testified that she doubted that Anderson had been subpoenaed. A court officer testified that he had subpoenaed Anderson by mail, and the subpoena had not been returned by the postal service. Both an investigator from the district attorney’s office and a police detective testified about the attempts they made to find Anderson since his disappearance. Anderson’s attorney testified that she had spoken with Anderson two times since his disappearance and had advised him of the significance of his nonappearance. According to counsel, Anderson expressed his intent to remain incommunicado.

On appellate review, the trial court’s determination of admissibility will not be reversed unless the court abused its discretion in admitting or excluding the challenged evidence. See, e.g., State v. Biglee, 885 S.W.2d 797, 806 (Tenn.1994). As correctly argued by the defendant, admission of former testimony is governed by Tennessee Rule of Evidence 804, which provides a hearsay exception for the former testimony of a declarant who is unavailable as a witness if the testimony was “given as a witness at another hearing of the same or a different proceeding or in a deposition taken in compliance with the law in the course of the same or another proceeding, if the party against whom the testimony is now offered had both an opportunity and a similar motive to develop the testimony by direct, cross, or redirect examination.” Tenn. R. Evid. 804(b)(1). Before such testimony will be admitted, however, the proponent must establish that the witness “[i]s absent from the hearing and the proponent of [the] statement has been unable to procure the declarant’s attendance by process.” Tenn. R. Evid. 804(a)(5). Further, in cases such as the one at bar in which the prosecution seeks to offer the former testimony of an unavailable witness, the state must establish two prerequisites in order to satisfy the defendant’s constitutional right of confrontation. First, the state must show that the declarant is truly unavailable after good faith efforts to obtain his presence, and second, that the evidence carries its own indicia of reliability. State v. Arnold, 719 S.W.2d 543, 548 (Tenn.Crim.App.1986) (stating the rule of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). With respect to the latter requirement, the United States Supreme Court has recently said that reliability of a prior testimonial statement is shown exclusively via cross-examination. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The defendant in the case at bar posits that Clinton Anderson was not unavailable as that term is contemplated by Rule 804 because he was never subpoenaed and because defense counsel did not have a similar motive to cross-examine him in the juvenile court hearing as would have existed had Anderson testified at trial. First, we reject the defendant’s claim that Anderson was not an unavailable witness. Although the record does not resolve the question whether Anderson was ever actually served with a subpoena, it is clear that Anderson was aware of the proceedings and that the state sought to introduce his testimony. Moreover, it is undisputed that he intentionally absented himself from the proceedings and took steps to keep the state from discovering his whereabouts. The state presented evidence of its agents’ efforts to locate the witness. Anderson’s attorney counseled him about the importance of coming to court, but he persisted in his refusal to do so. These facts all support a finding that the state made good faith efforts to locate the witness but was unable to do so. Given these facts, the presence or absence of a subpoena appears irrelevant.

Likewise, the evidence presented demonstrates that Anderson’s former testimony was reliable. The defendant had a similar motive and opportunity in the juvenile court proceeding to develop Anderson’s testimony through cross-examination. The proceeding in question was the defendant’s transfer hearing, at which one of the issues was whether there were reasonable grounds to believe that the defendant committed the alleged acts. See Tenn.Code Ann. § 37-l-134(a)(3) (2001).

Given these circumstances, we hold that the lower court acted within its discretion in admitting Clinton Anderson’s prior testimony based upon his unavailability to the state at the time of trial.

Jury Instructions — Intentional and Knowing

The defendant also claims that the trial court erred in its jury instructions because it gave all of the alternative definitions of the mental states of intentionally and knowingly, rather than only those which applied to the crimes on trial. He claims that he was deprived of his constitutional right to a unanimous verdict and that the effect of the instructions as given was to lower the government’s burden of proof.

The defendant claims that robbery is a crime defined by the conduct involved, as opposed to the result of that conduct. For this reason, he claims harmful error attended his convictions of felony murder predicated upon robbery and aggravated robbery.

Unfortunately for the defendant, in State v. Jarret A. Guy, No. M2002-02473-CCA-R3-CD, slip op. at 7-9, 2004 WL 1056065 (Tenn.Crim.App., Jackson, May 11, 2004), another panel of this court affirmed facilitation of premeditated murder, felony murder, and robbery convictions which the defendant had challenged on the same basis as the defendant in this case. In pertinent part, that panel held:

With regard to the defendant’s convictions for felony murder and robbery, it is well-established that the required mental state for felony murder is the intent to commit the underlying felony. See Tenn.Code Ann. § 39-13-202(b); State v. Ely, 48 S.W.3d 710, 721 (Tenn.2001). The underlying felony in this case was robbery. “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(a). This court has held that robbery is not strictly a result of conduct crime. See State v. Marcus Webb, No. W2002-00614-CCA-R3-CD, 2003 WL 214451, 2003 Tenn.Crim.App. LEXIS 68, (Tenn.Crim.App., at Jackson, Jan. 29, 2003). In Marcus Webb, the panel reasoned that “the knowing mens rea of robbery refers to the ‘knowing theft.’ The knowing mens rea of theft refers to ‘knowingly obtaining] or exercising] control over the property.’ The focus of the proscribed conduct is not upon its result.” 2003 WL 214451 at ⅜4, 2003 Tenn.Crim.App. LEXIS 68 at ⅞11 (citations omitted). Further examination of the robbery statute establishes that not only must the defendant knowingly obtain or exercise control over property to be guilty of theft, and thus robbery, he must also intend to deprive the owner of the property. See Tenn.Code Ann. § 39-14-103. Intent to deprive the owner of property would require knowledge that the defendant is not the owner of the property. In consequence, to be guilty of robbery, an accused must intend to engage in certain conduct, obtaining or exercising control over property; he must intend a certain result, the deprivation of the property; and he must be aware that certain circumstances exist, that he is not the owner of the property. Cf. State v. Hershel David Standridge, No. M202-01699-CCA-R3-CD[, 2003 WL 22243249, 2003 Tenn.Crim.App. LEXIS 828] (Tenn.Crim.App., at Knoxville, Sept. 30, 2003) (holding that theft is not a result-of-conduct offense because the conduct is criminal due to the circumstances surrounding the taking of the property of another). In our view, each definition of both intentional and knowing would be relevant for the jury’s consideration of this offense. Accordingly, the trial court did not err by providing the result-of-conduct and nature-of-conduct definitions of “intentional” and did not err by providing the result-of-conduct, nature-of-conduct, and nature-of-circumstances definitions of “knowing.”

Jarret Guy, slip op. at 8; see also State v. Kevin L. Lawrence, No. W2001-02638-CCA-R3-CD, slip op. at 5 n. 6, 2003 WL 22318461 (Tenn.Crim.App., Jackson, Oct. 9, 2003) (trial court did not err in giving all three definitions of knowing relative to crime of robbery as predicate felony for felony murder), perm. app. granted (Tenn. Mar. 8, 2004). Upon consideration, we are compelled by the logic of Jarret Guy and find it dispositive of the issue raised in the case at bar. Thus, the lower court did not err in its jury instructions relative to the definitions of the intentional and knowing mental states.

Consecutive Sentencing

Finally, we come to the defendant’s sentencing challenge. He claims that he should not have received consecutive sentencing. He also briefly, without discussion, contends that he should have received minimum sentences for the aggravated robbery offenses.

The lower court sentenced the defendant to ten-year terms for the two aggravated robbery convictions and one year for the weapon conviction. The court imposed these sentences to run concurrently to each other and consecutively to the life sentence for the felony murder conviction, for an effective sentence of life plus ten years. The court’s rationale in ordering consecutive sentencing was that the defendant was on probation at the time he committed the offenses. See TenmCode Ann. § 40-35-115(b)(6) (2003).

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 of the record with a presumption that the determinations made by the trial court are correct. Tenn.Code Ann. § 40-35^01(d) (2003). 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). “The burden of showing that the sentence is improper is upon the appellant.” Id. In the event the record fails to demonstrate the required consideration by the trial court, review of the sentence is purely de novo. Id. If appellate review reflects the trial court properly considered all relevant factors and its findings of fact are adequately supported by the record, this court must affirm the sentence, “even if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.Crim.App.1991).

In making its sentencing determination, the trial court, at the conclusion of the sentencing hearing, determines the range of sentence and then determines the specific sentence and the propriety of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the 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 involved; (5) evidence and information offered by the parties on the enhancement and mitigating factors; (6) any statements the defendant wishes to make in the defendant’s behalf about sentencing; and (7) the potential for rehabilitation or treatment. Tenn.Code Ann. §§ 40-35-210(a), (b) (2003); 40-35-103(5) (2003); State v. Holland, 860 S.W.2d 53, 60 (Tenn.Crim.App.1993).

In the present case, the trial court followed the sentencing procedures set out in the statute; we afford its determination presumptive correctness. We thus begin our review with that deference in mind.

We are mindful of the United States Supreme Court’s recent decision in Blakely v. Washington, 542 U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in which the High Court said that other than when based on the fact of a prior conviction, a judicially imposed sentence cannot exceed the maximum sentence statutorily allowed “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant” unless the facts relied upon for enhancement are found to exist beyond a reasonable doubt by a jury. Id. 542 U.S. at-, 124 S.Ct. at 2537 (emphasis omitted) (“[T]he relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”) Although Blakely clearly applies to individual length-of-sentence determinations, it is unclear at the present time whether Blakely applies to consecutive sentencing.

Upon attempting to conduct an appellate review of the defendant’s sentences, we have been hampered by the absence of the presentence report from the appellate record. As we have remarked on many occasions, it is the appellant’s duty to include those things in the appellate record which are necessary to convey a fair, accurate, and complete account of what transpired in the trial court relative to the issues raised on appeal. See Tenn. R.App. P. 24; State v. Troutman, 979 S.W.2d 271, 274 (Tenn.1998). The presentence report is evidence which is considered by the trial court and therefore is necessary to convey a fair, accurate, and complete account of the proceedings below. See Tenn.Code Ann. § 40-35-210(b) (2003); State v. Johnny Parker, No. 03C01-9307-CR-00214, 1994 WL 665192 (Tenn.Crim.App., Knoxville, Nov. 22, 1994) (sentencing issue waived in absence of presentence report). In the absence of an adequate record on appeal, this court must presume that the trial court’s rulings were supported by sufficient evidence. State v. Oody, 823 S.W.2d 554, 559 (Tenn.Crim.App.1991).

For these reasons, we affirm the judgment of the lower court.

      . In his brief, the defendant bases his sufficiency argument in part on the trial court’s jury instructions that the predicate felony for a finding of guilt of felony murder was the robbery of Mason. Although the defendant has accurately portrayed the jury instructions given by the trial court, the instructions were more narrow in this respect than called for by the indictment. However, to the extent that the instruction may be viewed as error, we have no hesitation in concluding that it was harmless beyond a reasonable doubt. The jury was fully instructed on the offenses of felony murder and robbery. The jury found the defendant guilty of two counts of aggravated robbery of Clinton Anderson and Christopher Fears. According to the evidence, if a robbery of Mason was attempted at all, it occurred at the same time and in the same manner as the robberies of Anderson and Fears. Cf. State v. Teel, 793 S.W.2d 236, 249-50 (Tenn.1990) (trial court’s failure to instruct jury on underlying felony of rape was harmless error beyond reasonable doubt in guilt phase of first degree murder trial where jury found defendant guilty of both premeditated murder and felony murder and later found after receiving complete instructions in sentencing phase of trial that victim had been murdered in perpetration of rape).

      . In the former situation, the court would order the prosecutor to confer immunity on the prospective defense witness, whereas in the latter situation, the court itself would exercise its inherent authority to confer the immunity to effectuate the defendant’s compulsory process right. See Virgin Islands v. Smith, 615 F.2d 964, 969 (3d Cir.1980).

      . It is worth noting that with respect to the felony murder count, it matters not whether the defendant was the shooter, so long as the homicide occurred during the course of perpetrating the underlying felony. See generally Tenn.Code Ann. § 40-35-202(a)(2) (2003); State v. Utley, 928 S.W.2d 448, 451 (Tenn.Crim.App.1995). To the extent that the defendant may claim that the evidence should have been admitted in order to avoid constitutional error relative to the premeditated murder count, any such error, even if it occurred, must be considered harmless given that the defendant was acquitted of this count. See Powers, 101 S.W.3d at 397-98 (constitutional claim that defendant was denied opportunity to present meaningful defense subject to harmless error analysis). Further, there was evidence from which the jury could, and perhaps did, conclude that the defendant was guilty of the two counts of aggravated robbery, whether or not they believed the defendant himself was the one who held a gun on the victims and told them to "lay it down.” With respect to the weapon possession count, the defendant himself admitted that he was in possession of a handgun and had it out of his pants when, according to the defendant, Re-naldo Clay robbed Fears and Anderson. Halliburton’s testimony, even if fully accredited by the jury, would not remove the defendant from the scene or from involvement with the group of young men of which Halliburton claimed that he, Renaldo Clay, and the defendant were a part.

      . At one time, there was a third requirement, that the evidence not be crucial or devastating. See State v. Henderson, 554 S.W.2d 117, 119 (Tenn.1977). More recent caselaw seems to have disposed of this third requirement. See, e.g., State v. Grover Jesse Campbell, No. 1113, slip op. at 6 n. 2, 1989 WL 153899, *2 (Tenn.Crim.App., Knoxville, Dec. 20, 1989) (noting supreme court’s denial of permissive appeal in two cases in which court of criminal appeals had dispensed with "crucial and devastating” rule); see also Arnold, 719 S.W.2d at 548 ("crucial and devastating” rule inapplicable where right of confrontation has been satisfied). The rules of evidence make no mention of this additional requirement.

      . Roberts has recently been overruled. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).


source: Caselaw Access Project

author: DAVID H. WELLES, J.,

license: Public Domain

text:
    STATE of Tennessee v. Jonathan ABERNATHY, Jr.
    Court of Criminal Appeals of Tennessee, at Nashville.
    March 9, 2004 Session.
    April 21, 2004.
    Application for Permission to Appeal Denied by Supreme Court Nov. 15, 2004.

      Stanley K. Pierehoski, Lawrenceburg, Tennessee, for the appellant, Jonathan Abernathy, Jr.
    Paul G. Summers, Attorney General and Reporter; Richard Dunavant, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.
   OPINION

DAVID H. WELLES, J.,

delivered the opinion of the court,

in which JERRY L. SMITH and NORMA McGEE OGLE, JJ., joined.

The Defendant, Jonathan Abernathy, Jr., was convicted by a jury of tampering with evidence. In this appeal, the Defendant argues that the trial court erred by not suppressing testimony of police officers regarding the actions they witnessed the Defendant take during their search of his residence. He contends that the search was illegal because the search warrant that the officers executed at his residence was invalid; therefore, the officers should have been precluded from testifying as to what they witnessed while they were at the Defendant’s residence. We affirm the judgment of the trial court.

On March 1, 2002, a search warrant was issued in Giles County authorizing the search of the mobile home at 551 Cherry Street in Pulaski, the Defendant’s residence. The issuance of the warrant was based on information received by Officer L.C. Gill of the Pulaski Police Department from an informant that the Defendant was selling cocaine from the residence. That same day, police officers executed the search warrant at the Defendant’s house. At the time the warrant was executed, the Defendant was at home with his brother, his son, and his uncle. Officer Gill secured the individuals in the kitchen of the residence, then brought in a dog trained to detect illegal drugs. The dog alerted the officers to a general location, and the officers began to search for drugs. The Defendant was being disruptive, so the officers placed him in a back bedroom. On the bedroom floor, Officer Gill found a small rock-like substance, which a forensic chemist with the Tennessee Bureau of Investigation determined to contain cocaine.

Subsequently, one of the officers who was searching the bathroom yelled for Officer Gill. The officer was looking in the commode, and Officer Gill saw that there was a plastic bag wrapped in toilet paper in the commode. Joey Turner, the officer who discovered the bag, testified that the bag appeared to contain crack cocaine. The Defendant said, “[T]hat ain’t no dope.” Then the Defendant lunged between the officers, reached into the toilet bowl, grabbed the bag wrapped in toilet paper, and “put it in his mouth.” The officers began to struggle with the Defendant, and he began choking. Blood was coming from his mouth and nose. During the struggle, the Defendant kicked the bathroom door, which hit Officer Brandon Beard in the head, causing it to bleed. Though the officers had placed the Defendant in handcuffs, they took off the restraints because he was “going limp” and appeared to be having trouble getting air. When they took off the handcuffs and put the Defendant on the floor, he “jumped up, dove for the commode, and he put his head in the commode and flushed it about the same time.” Although the officers tried to get the plastic bag, by this time the Defendant had spit it into the toilet and flushed it and it was too late. The officers called the sewer system to have the lines flushed, but the bag was never found. Based on this evidence, the Defendant was indicted for possession of cocaine, tampering with evidence, and assault. After a jury trial, he was acquitted on the possession of cocaine and assault charges, but was convicted of tampering with evidence.

The sole issue in this direct appeal is whether the trial court erred by not suppressing the officers’ testimony regarding the Defendant attempting to swallow and finally flushing the bag down the toilet. The Defendant argues that the court did so err because the affidavit supporting the search warrant was inadequate to support a finding of probable cause; therefore, the officers’ testimony constituted the fruit of an unlawful search.

An affidavit has historically been viewed as an indispensable prerequisite to the issuance of a search warrant in Tennessee. See Tenn.Code Ann. § 40-6-103. The affidavit must set forth on its face facts which establish probable cause before a search warrant may issue. See id. § 40-6-104; Tenn. R.Crim. P. 41(c). Probable cause to support the issuance of the warrant must appear in the affidavit, and judicial review of the existence of probable cause will not include looking to other evidence provided to or known by the issuing magistrate or possessed by the affiant. See State v. Moon, 841 S.W.2d 336, 338 (Tenn.Crim.App.1992). Also, essential to the process of obtaining a search warrant is the requirement that the affidavit recite sufficient underlying facts and circumstances to enable the issuing magistrate to “perform his detached function and not serve merely as a rubber stamp for the police.” United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

In State v. Jacumin, 778 S.W.2d 430 (Tenn.1989), the Tennessee Supreme Court rejected the totality of the circumstances approach adopted by the Supreme Court of the United States in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), for determining probable cause in affidavits based on informant allegations. Our supreme court held that, under the Tennessee Constitution, probable cause would be determined by the Aguilar-Spinelli two-pronged test. See Jacumin, 778 S.W.2d at 436. That test requires the establishment of the basis of knowledge and the veracity of the informant supplying hearsay information. See id. at 432. The basis of knowledge prong requires that the affidavit contain facts from which the magistrate may determine that the informant had a basis for the claim regarding criminal conduct or contraband. See id.; see also Moon, 841 S.W.2d at 338. The veracity prong requires that the affidavit contain facts from which the magistrate may determine either the inherent credibility of the informant or the reliability of the information provided. See Jacumin, 778 S.W.2d at 432; see also Moon, 841 S.W.2d at 338.

While our supreme court cautioned against “hyperteehnical” applications of the two-pronged test, this test is the standard by which probable cause will be measured to determine whether the issuance' of a search warrant is proper under Article I, Section 7 of the Tennessee Constitution. Jacumin, 778 S.W.2d at 436.

We conclude that the affidavit upon which the judge relied in issuing the search warrant was not defective. After stating that he believed the Defendant possessed cocaine and other contraband at his residence, Officer Gill averred that

his reasons for such belief are that within the last seventy-two hours an individual who is working with the affiant has been at [the Defendant’s residence] and seen crack cocaine being stored and sold. On this occasion the informant was present when [the Defendant] went inside the residence and retrieved several rocks of crack cocaine and sold them to an unidentified individual.
The informant is familiar with the sale and packaging of crack cocaine. The informant has provided information in the past which has lead to the seizure of money associated with the sale of illegal narcotics, the seizure of illegal narcotics and the arrest of more than seven individuals that were involved in the sale of illegal narcotics.

After explaining in the affidavit that the Defendant had a reputation for and had been previously arrested and indicted for selling illegal drugs, Officer Gill stated that he believed the information provided by the informant “to be true and correct.”

The affidavit satisfies both prongs of the Aguilar-Spinelli test. With respect to the basis of knowledge prong, the affidavit alleges that the informant has seen crack cocaine being stored and sold at the residence. The affidavit further states that the informant witnessed the Defendant go inside his house and emerge with crack cocaine, which he then sold. This sufficiently demonstrates the basis of the informant’s knowledge of the Defendant’s criminal activity. With respect to the veracity prong, the affidavit states that, in the past, the informant’s information has led to the seizure of illegal drugs and drug money and the arrest of seven people who were involved in the sale of illegal drugs. Officer Gill also states in the affidavit that he believed the information to be true and correct. This sufficiently demonstrates the credibility of the information given by the informant. Therefore, both prongs of the Aguilar-Spinelli test have been satisfied, and the affidavit supports a finding of probable cause for the issuance of the search warrant. The trial court did not err by denying the Defendant’s motion to suppress the testimony of the officers based upon an illegal search.

Furthermore, even if the affidavit did not support a finding of probable cause, the trial court did not err by allowing the officers to testify as to the actions they witnessed the Defendant take regarding the bag in the toilet. This Court has previously held that evidence of a defendant’s “criminal conduct committed subsequent to an illegal arrest, or even as a result thereof, should not be suppressible under the exclusionary rule.” State v. Jerry Wayne Elliott, No. W1999-00361-CCA-R3-CD, 2001 WL 13233, at *2 (Tenn.Crim.App., Jackson, Jan. 5, 2001). The court in Elliott cited United States v. Sprinkle, 106 F.3d 613 (4th Cir.1997), in which the Court of Appeals held that evidence of new criminal acts committed subsequent to an illegal stop and seizure constitutes an exception to the “fruit of the poisonous tree” doctrine. See id. at 619. “There is a strong policy reason for holding that a new and distinct crime, even if triggered by an illegal stop, is a sufficient intervening event to provide independent grounds for arrest.” Id. (citing United States v. Bai ley, 691 F.2d 1009, 1017 (11th Cir.1982)). “A contrary rule would virtually immunize a defendant from prosecution for all crimes he might commit that have a sufficient causal connection to the police misconduct.” Bailey, 691 F.2d at 1017. In State v. Robert Lee Mallard, No. M2000-00351-CCA-R3-CD, 2001 WL 178461, at *4 (Tenn.Crim.App., Nashville, Feb. 23, 2001), this Court held that even if the seizure of the defendant was unconstitutional, the police had probable cause to arrest him for tampering with evidence when he raised his closed hand to his mouth in an attempt to swallow something after an officer told him to stop. The court reasoned:

An illegal stop, arrest or seizure does not justify the total exclusion of whatever takes place after the illegal stop, seizure or arrest. This conclusion is especially true when applied to crimes committed subsequent to the illegal stop, seizure, or arrest. Such evidence is not obtained as a direct result of exploitation of a constitutionally infirm stop, arrest, or seizure. For instance, if an officer makes an illegal stop of a motor vehicle, and the driver of that vehicle subsequently gets out of his or her car and assaults the officer, prosecution for the assault, and any evidence seized as a result of an arrest for the assault, should not be suppressible even though there was an illegal stop of a vehicle.

Id.

We find the reasoning in these cases persuasive. Here, even if the search of the Defendant’s residence was illegal, his destruction of evidence was a sufficient intervening event to remove any “taint” of the illegal search. The police officers were justified in arresting him for this crime, and the trial court did not err by allowing the officers to testify as to the Defendant’s illegal conduct.

The judgment of the trial court is affirmed.

      . See Tenn.Code Ann. § 39-16-503.

      . Unfortunately for the Defendant, the water in the toilet was "discolored” by urine.


author: JERRY L. SMITH, J.,

text:
    Mack A. O’BANER v. STATE of Tennessee.
    Court of Criminal Appeals of Tennessee, at Jackson.
    May 4, 2004 Session.
    June 8, 2004.
    Application for Permission to Appeal Denied by Supreme Court Nov. 15, 2004.

      Claiborne H. Ferguson, Memphis, Tennessee for the appellant, Mack A. O’Baner.
    Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General, for the appellee, State of Tennessee.
   OPINION

JERRY L. SMITH, J.,

delivered the opinion of the court,

in which JOSEPH M. TIPTON, and JAMES CURWOOD WITT, JR., JJ., joined.

The petitioner, Mack A. O’Baner, was convicted by a Shelby County jury of the offense of first degree murder. He was sentenced to life imprisonment. On direct appeal this Court affirmed the convictions. See State v. Mack A. O’Baner, No. W2001-00815-CCA-R3-CD, 2002 WL 1482685 Shelby County, (filed March 15, 2002, at Jackson). On February 6, 2003, the petitioner filed a post-conviction petition alleging that his due process rights were violated by a jury instruction on second degree murder which failed to specify that second degree murder committed through a “knowing killing of another” was strictly a “result-of-conduct offense.” See State v. Page, 81 S.W.3d 781, 790 (Tenn.Crim.App. 2002). The petition also alleged that his trial and appellate counsel were ineffective in failing to challenge the jury instructions given as being violative of the holding in Page. The trial court summarily dismissed the petition finding inter alia that, because he was convicted of first degree murder the petitioner could not establish prejudice as a result of his claims. After a review of the record and the applicable authorities we affirm the judgment of the trial court.

Factual Background

Trial Evidence

As summarized by this Court in the direct appeal of this case the evidence supporting the petitioner’s conviction is as follows:

In December of 1997, the Defendant married Cassaundra Mason, the victim in this case. One month later, they separated. They were divorced in April of 1998. Approximately a year later, the two resumed a casual romantic relationship. The victim worked at Corporate Express in Memphis, and around 2:00 p.m. on January 12, 2000, two of the victim’s co-workers observed the Defendant circling through the company parking lot in his small black car prior to the victim’s arrival.
When the victim arrived at work, she briefly conversed with co-workers and then went to retrieve something from her car. A few minutes later, several employees heard two quick gunshots followed by several more. Two witnesses ran to the parking lot and saw the victim lying injured on the pavement and a small black car slowly driving away. At 2:50 p.m., the Defendant entered the East Precinct of the Memphis Police Department and informed officers that he “just shot [his] wife.” When asked why he shot the victim, the Defendant replied:
I came to a point that I had to make a decision and I made it. She knows what it’s about and so do I. I feel sorry for people that are killed in car and plane crashes, but I don’t feel sorry for Cassaundra.
[The Petitioner] then told police that they would find the gun he used in his car which was parked outside of the station.
Dr. Cynthia Gardner, the Shelby County Medical Examiner, testified that the victim was shot eight times. Dr. Gardner stated that the bullets injured vital organs and caused massive bleeding which ultimately led to the victim’s death. Tennessee Bureau of Investigation Officer Don Carmen testified that the bullets recovered from Ms. Mason’s body were all fired from the gun found in the Defendant’s car.
The Defendant contended at trial that he recently ended his relationship with the victim. He stated that Ms. Mason was angry with him due to his relationship with another woman. The Defendant testified that, on January 12 while the two were talking in the Corporate Express parking lot, Ms. Mason charged him while wielding a box cutter, and he shot her in self-defense. The Defendant further stated that he did not remember how many shots he fired at the victim. The Defendant never mentioned Ms. Mason’s alleged aggression to the police, and no box cutter was found at the scene.

State v. O’Baner, No. W2001-00815-CCA-R3-CD, 2002 WL 1482685, at *1 (Tenn.Crim.App. Mar.15, 2002) (no app. filed).

Post-Conviction Proceeding

As noted the petitioner’s post-conviction petition raised allegations of due process deprivations and deficient representation of counsel centering around a lack of any challenge at trial or on direct appeal to the jury instructions for second degree murder which failed ala State v. Page supra, to specify that a second degree murder was a “result-of-conduct offense.” Also, as noted, the trial court summarily dismissed the petition. We hold that a summary dismissal was proper under the circumstances.

Tennessee Code Annotated section 40-30-106(f) provides in pertinent part with respect to post-conviction relief petitions:

Upon receipt of a petition in proper form, or upon receipt of an amended petition, the court shall examine the allegations of fact in the petition. If the facts alleged, taken as true, fail to show that the petitioner is entitled to relief ..., the petition shall be dismissed.

Similarly, the Rules of the Tennessee Supreme Court regarding post-conviction petitions provides:

In the event the court concludes after the preliminary review that a colorable claim is not asserted by the petition, the court shall enter an order dismissing the petition or an order requiring that the petition be amended.

Rule 28, § 6(B)(4)(a), Rules of the Supreme Court.

In this case there is no allegation that the petition was dismissed without an opportunity to amend or denied counsel, rather the only issue is whether the petition states a colorable claim requiring a hearing. See Burnett v. State, 92 S.W.3d 403 (Tenn.2002). A “colorable claim” is presumably a claim that, if proven, would render the petitioner’s conviction or sentence “void or voidable because of the abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Id. at 407; Tenn.Code Ann. § 40-30-203 (1997).

We hold that the petition in the instant case failed to establish a colorable claim because this Court has consistently held that any error in jury instructions under State v. Page, supra., is harmless beyond a reasonable doubt where, as in the instant case, the defendant is convicted of first degree murder. This Court has reasoned that where the jury has concluded beyond a reasonable doubt that the defendant has “premeditated” or formed a preconceived design to assist or commit a murder the issue of intent to cause death is clearly resolved in favor of the State. State v. Hill, 118 S.W.3d 380, 386 (Tenn.Crim.App.2002); State v. Douglas Marshall Mathis, No. W2001-02291 CCA-R3-CD, 2004 WL 392710 (Tenn.Crim.App. at Nashville, March 3, 2004); State v. Robert Faulkner, No. W2001-02614-CCA-R3-DD, 2003 WL 22220341 (Tenn.Crim.App. at Jackson, Sept. 26, 2003). Thus, in the instant case, because the petitioner was convicted of first degree, premeditated murder, any failure of the trial court to adequately instruct the jury under Page was harmless beyond a reasonable doubt. It necessarily follows that because of the jury’s first degree murder verdict counsel’s failure to raise the Page issue either at trial or on appeal could not have prejudiced the petitioner. See Strickland v. Washington, 466 U.S. 668, 690-94, 104 S.Ct. 2052, 2054, 80 L.Ed.2d 674 (1984); Burnett v. State, 92 S.W.3d at 408 (holding that in order to establish a constitutional claim of ineffective assistance of counsel, counsel’s allegedly deficient performance must have had a prejudicial effect on the outcome of the petitioner’s case.)

Conclusion

In light of the foregoing it appears that the petition for post-conviction relief failed to state a colorable claim for relief and therefore summary dismissal was proper. The judgment of the post-conviction court is AFFIRMED.


author: JAMES CURWOOD WITT, JR., J., JOSEPH M. TIPTON, J.,

text:
    Robert McCHRISTIAN v. STATE of Tennessee.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Assigned on Briefs May 4, 2004.
    Sept. 15, 2004.
    No Permission to Appeal Applied for to the Supreme Court.

      Robert McChristian, Appellant, Pro Se.
    Paul G. Summers, Attorney General & Reporter; and Thomas E. Williams, III, Assistant Attorney General, for the Appel-lee, State of Tennessee.
   OPINION

JAMES CURWOOD WITT, JR., J.,

delivered the opinion of the court,

in which JERRY L. SMITH, J., joined. JOSEPH M. TIPTON, J., filed a concurring opinion.

The petitioner, Robert McChristian, appeals from a summary dismissal of his petition for habeas corpus relief. We affirm.

The petitioner sought habeas corpus relief in the Lauderdale County Circuit Court from his 1992 Giles County sentence for aggravated burglary. In the Giles County conviction proceeding, the petitioner had pleaded guilty to a Class C charge of aggravated burglary and agreed to a twelve-year, Range I sentence. In his ha-beas corpus petition, the petitioner alleges that he was unaware that the range of punishment for a standard, Range I offender in a Class C felony is three to six years. See Tenn.Code Ann. § 40-35-112(a)(3) (2003). The petitioner claimed that his twelve-year sentence was outside his applicable and designated sentencing range and renders his sentence void, such that he is entitled to habeas corpus relief. The court below, holding that the petitioner’s sentence fell with the broad range of sentences for Class C offenses, see id. § 40-35-lll(a)(3) (2003) (authorizing sentences for Class C offenses from a minimum of three years to a maximum of fifteen years), summarily dismissed the petition without appointing counsel and without conducting a hearing.

The legal issues raised in a habeas corpus proceeding are questions of law, and our review of questions of law is de novo. Hart v. State, 21 S.W.3d 901, 903 (Tenn.2000) (“[Wjhether to grant the petition [for habeas corpus relief] is a question of law that we review de novo.”); State v. Hill, 954 S.W.2d 725, 727 (Tenn.1997) (question of law reviewed on appeal de novo).

We begin with a review of habeas corpus law as it presently exists in Tennessee. Habeas corpus relief is available only when the aggrieved party’s conviction is void or the sentence has expired. See Archer v. State, 851 S.W.2d 157, 164 (Tenn.1993). The petitioner in the present case makes no allegation that his sentence has expired; he only claims that his sentence, and hence his conviction judgment, is void.

A void conviction is one which strikes at the jurisdictional integrity of the trial court. Id.; see State ex rel. Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn.1979); Passarella v. State, 891 S.W.2d 619, 627 (Tenn.Crim.App.1994). Because in this case the trial court apparently had jurisdiction over the actus reus, the subject matter, and the person of the petitioner, the petitioner’s jurisdictional issue is limited to the claim that the court was without authority to enter the judgment. See Anglin, 575 S.W.2d at 287 (“ ‘Jurisdiction’ in the sense here used, is not limited to jurisdiction of the person or of the subject matter but also includes lawful authority of the court to render the particular order or judgment whereby the petitioner has been imprisoned.”); see also Archer, 851 S.W.2d at 164; Passarella, 891 S.W.2d at 627.

The invalidity of the sentence itself, as well as the broader invalidity of the conviction, results in a void judgment and is a sufficient basis for habeas corpus relief. See Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn.2000) (a void sentence, as well as a void conviction, may result in a void judgment and be the subject of a habeas corpus proceeding). For an illegal sentence claim to support a claim for habe-as corpus relief, however, the illegality of the sentence must be egregious to the point of voidness. Cox v. State, 53 S.W.3d 287, 292 (Tenn.Crim.App.2001). Thus, mere clerical errors in the terms of a sentence may not give rise to a void judgment. See, e.g., Ronald W. Rice v. David Mills, No. E2003-00328-CCA-R3-PC, slip op. at 3-4, 2003 WL 21972930 (Tenn.Crim.App., Knoxville, Aug. 19, 2003) (trial court erred in designating on the judgment form that the petitioner was sentenced under the 1982 sentencing law, when the 1989 law applied to Rice’s case; the 1989 law was actually applied in Rice’s case, and the resulting sentence was “not void and the petitioner [was] not entitled to habeas corpus relief’), perm. app. denied (Tenn. 2004).

Relative to the egregiousness of the sentencing defect, our supreme court in McLaney v. Bell, 59 S.W.3d 90 (Tenn.2001), said that an “illegal” sentence equates to a “jurisdictional defect.” Id. at 92. However, in McConnell v. State, 12 S.W.3d 795, 798 (Tenn.2000), the supreme court said broadly, albeit in addressing plea-bargain negotiations that issues of “offender classification and release eligibility” are “non-jurisdictional.” See Hicks v. State, 945 S.W.2d 706 (Tenn.1997) (a plea bargained Range II sentence is valid when coupled with Range I release eligibility); Bland v. Dukes, 97 S.W.3d 133, 135 (Tenn.Crim.App.2002) (aggravated robbery sentence upheld, despite sentence length falling in range above petitioner’s range classification), perm. app. denied (Tenn.2002); State v. Terry, 755 S.W.2d 854, 855 (Tenn.Crim.App.1988) (applying 1982 sentencing law and upholding plea-bargained kidnapping sentence, the terms of which fit within the broad range of punishment for the offense class). Nevertheless, “[t]he 1989 Act establishes the outer limits within which [a sentence may be fashioned], and the courts are bound to respect those limits.” McConnell, 12 S.W.3d at 799; see, e.g., William Boyd v. State, No. E1999-02179-CCA-R3-PC, slip op. at 5-6, 2000 WL 1661526 (Tenn.Crim.App., Knoxville, Nov. 6, 2000) (100 percent release eligibility is beyond the outer limits of release eligibility percentage for even career offenders, and sentence is subject to habeas corpus attack); see also Stephenson, 28 S.W.3d at 911-12 (first-degree murder sentence expressed as life sentence without possibility of parole subject to habeas corpus relief when, at the time of the offense, a life sentence without the possibility of parole was not possible).

The sentence designated as Range I in the present case exceeds the six-year maximum sentence for a Range I offender in a Class C offense, see Tenn.Code Ann. § 40-35-112(a)(3) (2003), but the imposed sentence is less than the maximum, fifteen-year sentence for Class C offenses through the career offender-classification, see id. § 40—35—111(b)(3) (2003). Thus, the question squarely presented by the present case is whether the trial court had jurisdiction to impose an agreed-upon sentence the length of which exceeded the maximum sentence in the designated offender sentencing range but not the total maximum for the offense class.

Our law on this issue is at present somewhat muddled. William Boyd interpreted Hicks and State v. Mahler, 735 S.W.2d 226 (Tenn.1987), to mark the “outer limits” of the trial court’s jurisdiction at the maximum sentence for the offense class and struggled to reconcile these cases with McConnell’s statement that, although offender classification and release eligibility are non-jurisdictional, sentence length is jurisdictional. See William Boyd, slip op. at 4. Compare Mahler, 735 S.W.2d at 228 (approving sentence that was “within statutory limits fixed for the offense of murder in the second degree”) (emphasis added), with McConnell, 12 S.W.3d at 798 (characterizing Mahler as approving a sentence because it was “within the statutory limits fixed for a Range II offender ”) (emphasis added). In William Boyd, this court followed Mahler and Hicks — and distinguished McConnell — in essentially fixing the outer limits for purposes of sentence length at the maximum in the offense class. Moreover, this court followed William Boyd in Bland, a case in which an extra-range sentence was approved. See Bland, 97 S.W.3d at 135-36. As indicated above, the supreme court denied permission to appeal in Bland. In sum, we believe Bland and William Boyd provide the prevailing perspective on McConnell. From that perspective, the trial court in the present case had jurisdiction to impose the agreed-upon twelve-year sentence. That being the case, the sentence is not void and is not subject to collateral attack via a petition for writ of habeas corpus.

We realize that the petitioner complains that he was unaware that a Range I offender for a Class C offense was subject to a maximum sentence of six years. In essence, this claim is one of an unknowing or involuntary guilty plea. A petition for habeas corpus relief is not the proper means for addressing a claim of an unknowing or involuntary guilty plea. Archer, 851 S.W.2d at 163. The proper method for making a collateral attack of this nature is a petition pursuant to the Post-Conviction Procedure Act. Id.; see Tenn. Code Ann. §§ 40-30-101 through 122 (2003). In the present case, however, we are without the option of treating the ha-beas corpus petition as an action for post-conviction relief because the post-conviction one-year statute of limitations bars post-conviction relief. Tenn.Code Ann. § 40-30-102 (2003).

For the foregoing reasons, the judgment below is affirmed. ■

JOSEPH M. TIPTON, J.,

concurring.

I concur in the majority opinion, but I question its rebanee upon the fact that our supreme court denied permission to appeal in Bland v. Dukes to validate Bland’s holding. Our supreme court has advised us not to attach significance to such a denial. See Meadows v. State, 849 S.W.2d 748, 752 (Tenn.1993).

Bland v. Dukes, 97 S.W.3d 133 (Tenn.Crim.App.2002), essentially interprets McConnell v. State, 12 S.W.3d 795 (Tenn.2000), narrowly for the purpose of reconciling facially contradictory cases. In State v. Terry, 755 S.W.2d 854 (Tenn.Crim.App.1988), pursuant to a plea agreement, the defendant was sentenced under the 1982 Sentencing Reform Act as a Range I, standard offender to ten years for kidnapping. The range of punishment for kidnapping was two to ten years with a Range I sentence being two to six years and a Range II sentence being six to ten years. The defendant then moved to correct the sentence, claiming that it was illegal. However, this court held the ten-year sentence to be legal because it was “within the statutory penalty for kidnapping.” Id. at 855.

In Joseph Harvey Cutright v. State, No. 02C01-9108-CC-00175, Henderson County, 1992 WL 56803 (Tenn.Crim.App. Mar. 25, 1992), app. denied (Tenn. Aug. 31, 1992), the petitioner pled guilty to second degree murder and was sentenced under the 1982 Sentencing Reform Act as a Range II offender to fifty years, even though the 1989 Sentencing Reform Act was in effect. Under the 1982 Act, a Range I sentence for second degree murder was ten to thirty-five years, and a Range II sentence was thirty-five years to life. The petitioner sought post-conviction relief arguing that his sentence was illegal. This court, relying on Terry, disagreed and held that the sentence was proper. Sbp op. at 5. However, in denying the petitioner’s application to appeal, the Tennessee Supreme Court remanded the case on the basis that the petitioner should have been sentenced under the 1989 Act. In addition, the court noted that the petitioner’s fifty-year sentence under the 1982 Act was a nullity because the maximum sentence a Range II offender could receive under the 1989 Act was forty years. See Joseph Harvey Outright v. State, 02C01-9018-CC-00175, Henderson County, 1992 WL 56803 (Tenn.Crim.App. Mar. 25, 1992) (order). In other words, the supreme court ignored the fact that the statutory maximum for second degree murder under the 1989 Act was sixty years. See T.C.A. § 40-35-111(d)(1).

In Hicks v. State, 945 S.W.2d 706 (Tenn.1997), pursuant to a plea agreement, the petitioner pled guilty to voluntary manslaughter, a Class C felony, and was sentenced under the 1989 Act as a Range II offender to ten years but with a Range I release ehgibility of thirty percent. Under the 1989 Act, a Range I sentencing range for a Class C felony is three to six years and for a Range II sentence is six to fifteen years. See T.C.A. § 40-35-112(a)(3), (b)(3). The opinion indicates that the petitioner was sentenced “to the Department of Correction for ten years as a Range I standard offender with a release eligibility of thirty percent.” Id. at 706. The petitioner sought post-conviction relief claiming that the “hybrid” sentence, combining one range of punishment with a different range for release eligibility, was illegal. Our supreme court disagreed, citing with approval and relying upon the reasoning in Terry. 945 S.W.2d at 707, 709. In its analysis, the court noted its order in Joseph Harvey Outright, but it limited the significance of that case by stating that Outright’s sentence had been improper because he was sentenced under the 1982 Act and not because the sentence had exceeded the range of punishment for a Range II offender. 945 S.W.2d at 708-09 & n. 9.

Then, in McConnell v. State, 12 S.W.3d 795 (Tenn.2000), the petitioner pled guilty to second degree murder, a Class A felony, and six counts of aggravated robbery, a Class B felony. Pursuant to a plea agreement, the trial court sentenced him in November 1990 under the 1982 Sentencing Act as a Range I offender to thirty-five years for the murder conviction, ten years each for five robbery counts, and thirty-five years for the sixth robbery count. The petitioner sought post-conviction relief from his two thirty-five-year sentences, arguing that they were improper because the range of punishment for a Range I offender under the 1989 Act was fifteen to twenty-five years for a Class A felony and eight to twelve years for a Class B felony. First, the court noted that sentences after November 1, 1989, were required to be sentenced under the provisions of the 1989 Act. 12 S.W.3d at 797; see T.C.A. § 40-35-117(b). In response to the state’s claim that, under Hicks the 1989 Act permitted the trial court to depart from the mandates of the 1989 Act, the court noted that Hicks had allowed for the mixing of an offender’s sentencing range with a different range for release eligibility but that Hicks did not “condone departures from the maximum and minimum sentencing guidelines imposed by the 1989 Act.” Id. at 798. Thus, the court concluded that the thirty-five-year sentences for a Range I offender were illegal. As the majority opinion notes, the court referred to the range of the offender, not the offense. In this regard, in a footnote, the supreme court revived its position in Joseph Harvey Outright despite the fact that Hicks had limited Outright’s significance. 12 S.W.3d at 799 n. 5. In a second footnote, the court further revived Outright by stating that although Terry had allowed “a plea bargain sentence that was in excess of the penalty imposed by statute, Terry had preceded Outright.” Id. at 799 n. 6. This implies that the court looked upon Terry with disfavor as opposed to Outright.

To summarize this line of cases, Hicks relies on Terry, which McConnell indicates is incorrect given Joseph Harvey Cutright, which is expressly limited by Hicks to a holding which is irrelevant to the issue. In this environment, this court decided Bland v. Dukes, 97 S.W.3d 133 (Tenn.Crim.App.2002), app. denied (Tenn.2002), in which the court was faced with a fifteen-year sentence as a Range I, standard offender for an aggravated robbery, a Class B felony, when the range of punishment for a Range I, Class B felon was only eight to twelve years. See T.C.A. § 40-35-112(a)(2). The petitioner relied on McConnell and the Joseph Harvey Outright order to claim that his sentence was illegal. However, in affirming the petitioner’s sentence, this court noted that McConnell had “cited Hicks with approval and affirmed that its decision did not alter ‘the ability of the State and defendants to use offender classification and release eligibility as subjects of plea bargain negotiations.’ ” Bland, 97 S.W.3d at 135 (quoting McConnell, 12 S.W.3d at 798). Given McConnell’s approval of Hicks, this court concluded that “the plea agreement in McConnell was nullified because it was expressed in terms of the 1982 Act, not because the number of years was outside the range.” Id. Bland is controlling authority until its holding is reversed or modified by a court of competent jurisdiction. Tenn. Sup.Ct. R. 4(H)(2)

From a historical perspective, I believe sources for “muddling” the “mixed” sentence issue were the judgment form provided under the 1982 Act and the early judgment form under the 1989 Act. Neither provided the means to reflect a mix of sentencing range and release eligibility percentage. For example, the 1982 Act judgment provided boxes to check for “Standard 30% Range 1” or “Persistent 35% Range 2,” while the 1989 judgment provided “Standard 30% Range 1” and “Multiple 35% Range 2.” Such is the case in the present case — although the sentence length was twelve years, the release eligibility at thirty percent required checking the “Standard 30% Range 1” box. See also Hicks, 945 S.W.2d at 706 (indicating that the sentence was reflected as a “Range 1 Standard offender with a release eligibility of thirty percent”). However, the judgment form now being provided pursuant to Tenn. Sup.Ct. R. 17 has a set of boxes for offender status and another set of boxes for release eligibility. With this form, offender status is not automatically tied to a particular release eligibility percentage. Thus, the problems we encounter in the present case should not exist under the new judgment form.

      . The petitioner has other convictions in which a seven-year sentence runs consecutively to the twelve-year sentence.