State v. Allen

259 S.W.3d 671

STATE of Tennessee v. Anthony ALLEN and State of Tennessee v. Eric Lumpkin.¹

No. W2006-01080-SC-R11-CD.

No. W2005-02805-SC-R11-CD.

Supreme Court of Tennessee, at Jackson.

April 2, 2008 Session.

June 24, 2008.

William D. Massey, Lorna S. McClusky, and Massey McClusky, Memphis, Tennessee, for the appellants, Anthony Allen and Eric Lumpkin; Thomas E. Hansom, Memphis, Tennessee, for the appellant, Eric Lumpkin (at trial).

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and William S. Crossnoe, Assistant District Attorney General, for the appellee, State of Tennessee, in State v. Allen.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee and Stacy McEndree, Assistant District Attorneys General, for the appellee, State of Tennessee, in State v. Lumpkin.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and JANICE M. HOLDER, GARY R. WADE, and WILLIAM C. KOCH, JR., JJ., joined.

We granted permission to appeal in these consolidated cases to determine whether Tennessee's consecutive sentencing scheme passes constitutional muster under the holdings of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We also address the "physical facts rule" in Defendant Lumpkin's case. We hold that the trial courts' imposition of consecutive sentences in these cases did not violate the Defendants' federal constitutional rights. We also hold that the physical facts rule does not require the reversal of Defendant Lumpkin's convictions. Accordingly, we affirm the judgments of the Court of Criminal Appeals in both cases.

FACTUAL AND PROCEDURAL BACKGROUND

I. Defendant Allen

A jury convicted Defendant Allen of multiple counts of aggravated rape and aggravated robbery. These convictions arose out of three incidents in which Defendant Allen participated with the same cohort. On December 19, 1999, the two men entered an establishment named "Brandy's" where they accosted two women with a gun, robbing and raping them. On December 20, 1999, the men entered "Southern Belles" with guns drawn and raped and robbed at gunpoint three women. On January 14, 2000, the two men visited the Flamingo Club. They enticed two women into their car and then drew guns. The men drove to a hotel room where the men robbed and raped the two women at gunpoint.

On direct appeal, the Court of Criminal Appeals reversed and remanded for a new trial one of the aggravated rape convictions; affirmed the remaining four aggravated rape and seven aggravated robbery convictions; and remanded for resentencing on those offenses. See State v. Allen, No. W2004-01085-CCA-R3-CD, 2005 WL 1606350 (Tenn.Crim.App. July 8, 2005).² On remand, the trial court sentenced Defendant Allen to an effective term of 104 years by ordering some of Defendant Allen's sentences to run consecutively. Specifically, the trial court imposed consecutive sentences after finding that Defendant Allen's "extensive criminal activity justifies the administration of a consecutive sentence," basing this finding on the offenses for which he was being sentenced. The trial court also determined Defendant Allen to be "a dangerous offender," making the following written findings:

After considering the statutory criteria and the purposes and principles of consecutive sentencing, the Court finds that the defendant is a dangerous offender according to the definition stated in Tenn.Code Ann. § 40-35-115(b)(4). The defendant systematically terrorized a number of females over the course of a month. He demoralized, robbed, and raped these women with an absolute disregard for human life which was made obvious by his unprovoked actions. What female was to be victimized was unimportant to the defendant. His random acts demonstrate that he did not hesitate to commit a crime in which the risk to human life was high. The defendant's conduct clearly satisfies the condition stated in Tenn.Code Ann. § 40-35-115(b)(4), therefore, the defendant is a dangerous offender.

The trial court also found specifically that the effective term of 104 years reasonably related to the severity of the crimes Defendant Allen committed and that consecutive sentences were necessary to protect the public from further crime by Defendant Allen.

Defendant Allen appealed from his resentencing on the grounds that the trial court's imposition of consecutive sentences violates the Sixth Amendment as interpreted by the Supreme Court in Apprendi and its progeny. Defendant Allen does not challenge the trial court's findings of fact, but rather the court's authority to make them and use them to impose consecutive sentences. The Court of Criminal Appeals affirmed Defendant Allen's sentences.

II. Defendant Lumpkin

A jury convicted Defendant Lumpkin of one count of first degree premeditated murder; one count of attempted premeditated murder; and two counts of aggravated assault. A summary of the proof adduced at trial follows.

Leland and Bishop Tatum³ lived in the adjoining halves of a duplex at 895 Speed Street in Memphis, Tennessee. This duplex was located above street level and had a front porch with twelve steps leading down to the street level. Each side of the duplex had a door opening onto the front porch. Across the street lived Jerry Lumpkin, Defendant Eric Lumpkin's father. Jerry's residence also sat above street level and also had a front porch with several steps leading down to street level. Next door to Jerry lived Leland and Bishop's mother, Emma Tatum. Some years prior to the events giving rise to this trial, Bishop Tatum and Jerry Lumpkin quarreled. The feud had not been abandoned.

On the evening of July 19, 2003, Leland and Bishop Tatum were conversing on their front porch. A short time earlier, Defendant Lumpkin had asked Leland if Leland knew where to obtain some "dope" for Defendant Lumpkin to smoke. Leland ignored this query. While Leland and Bishop were on their porch, Defendant Lumpkin was across the street on his father's porch. Leland testified that Defendant Lumpkin called out and told Leland to "ask [Bishop] to come down the steps so [they] can fight." Leland and Bishop ignored him. Defendant Lumpkin repeated his challenge, adding "because I don't like him and never have." The two men again ignored the taunts. Defendant Lumpkin then walked across the street and began walking up the porch steps to where Leland and Bishop were standing. When Defendant Lumpkin reached the second step, Leland told him that he was "starting trouble" and that he needed "to turn around and go back to whatever [he] was doing, go back across the street." Jerry came across the street and "grabbed [Defendant Lumpkin] and took him back over there."

Emma Tatum then joined Leland and Bishop on their porch. One of the men called the police. While they were waiting for the police to arrive, a man Leland knew as "Mr. Johnson" came and picked Defendant Lumpkin up in a red car and drove him away.

The police arrived and spoke with Bishop for a few minutes. Leland testified that soon after the police left, he heard Jerry Lumpkin say into his cordless phone, "go get your gun." Jerry had walked down his porch steps and was passing by on his way up his driveway when Leland overheard Jerry's words. Hearing this alarmed Leland "a little."

Leland's wife joined the other three people on the Tatums' porch. While they were talking, Emma Tatum told them to "look" and pointed out that the same red car that had just left with Defendant Lumpkin was returning. Leland turned and looked and acknowledged that it was the same car. As the car drove down their street, Emma Tatum said, "look out you-all, he's got a gun." Leland testified that, as he

turned around and looked that's when the first shot was fired. And, the first shot was fired like near the driveway .... And the second shot was fired as though it's going almost near the house.... Then he fired the third shot.... But, that fourth shot, when he fired the fourth shot, my mother was trying to get into the house, she was pushing my brother inside the door then.

According to Leland, the fourth shot hit Emma Tatum because after that shot, he heard her "holler" that she had been hit. A fifth shot was fired. The car got to the corner and made a right turn and stopped. Leland testified that, as he was looking at Defendant Lumpkin, who was in the passenger seat of the red car, Defendant Lumpkin fired a sixth shot. Leland was approximately twenty-five feet from Defendant Lumpkin at this time. Defendant Lumpkin was not wearing a mask and Leland got "a good look" at him. After firing the sixth shot, the car in which Defendant Lumpkin was riding "proceeded on. And he left."

Leland stated that, "when he fired the first shot everybody was like in a panic, ... trying to run." As his mother and brother were trying to get inside the house through one door, he "had to push [his] wife down on the porch, push her down and hold the door open on [the other] side, holding the door so she could crawl inside the house." After he helped his wife get inside, he "was trying to run over to [his] mom to push her inside ... but [he] just didn't get there fast enough."

When asked where his mother was at the time she got shot, Leland testified:

She was, my mother was going inside the door. The door was open and when she got hit from that bullet she was standing up, she was pushing my brother inside during that time. Pushing him inside the house. She was on her way through the door, trying to get in. That's where she was at. She was trying to get in, she wasn't directly in the house, she was trying to get...