Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs July 19, 2017
from the Criminal Court for Davidson County No. 2015-B-1422
Mark J. Fishburn, Judge
defendant, Erick Tenaz, appeals his Davidson County Criminal
Court guilty-pleaded conviction of conspiracy to commit
second degree murder, claiming only that the trial court
erred by ordering that he serve his entire nine-year sentence
in confinement. Discerning no error, we affirm.
R. App. P. 3; Judgment of the Criminal Court Affirmed
E. Scott, Nashville, Tennessee, for the appellant, Erick
Herbert H. Slatery III, Attorney General and Reporter;
Courtney N. Orr, Assistant Attorney General; Glenn R. Funk,
District Attorney General; and Jan Norman, Assistant District
Attorney General, for the appellee, State of Tennessee.
Curwood Witt, Jr., J., delivered the opinion of the court, in
which John Everett Williams and Timothy L. Easter, JJ.,
CURWOOD WITT, JR., JUDGE
charged with three counts of attempted first degree murder
and one count of felony murder, the defendant pleaded guilty
to a single count of conspiracy to commit second degree
murder as a Range I offender, with the length and manner of
service of the sentence to be determined by the trial court
following a sentencing hearing. The defendant failed to
include a copy of his own guilty plea submission hearing in
the record. He did, however, exhibit to the sentencing
hearing and include in the record on appeal a transcript of
the hearing for his co-defendant, Sergio Baeza, in which the
State summarized the facts of the offenses as follows:
[T]he State's proof would have been that in the early
morning hours of Sunday, September 8th, 2013, Sergio Baeza,
[the defendant], Issac Tenaz and Luis Diaz [sic] drove to
Club Cielo, which is an after-hours nightclub, it is located
at 15115 Old Hickory Boulevard. Surveillance video shows all
four men arrive at the club together in a black Honda Accord
around 4 o'clock a.m. All four of the men are standing
outside of the club near the entrance. And they arrive about
4:00 a.m., they go inside the club, they spend a little bit
of time in the club, and then sometime later they're
standing outside the club near the entrance when Issac Tenaz
appears to get into a verbal confrontation with a male black.
During this confrontation, the surveillance video shows Rafi
Shalizi swing a Grey Goose bottle and hit Issac Tenaz over
the head causing a fairly deep laceration, immediately after
this, Mr. Baeza, [the defendant], Issac Tenaz and Mr. Lopez
run from the club, and they run back to the black Honda
Accord, which they had parked in front of the Porter Paints
parking lot. The club security outside the club immediately
maces an entire group of individuals because of this
incident, Rafi Shalizi is one of the people in the area when
the security officers sprayed the mace. Shivon A[bd]ullatif,
Nej[y]ar Osman, Priscilla Hernandez all go to aid Mr. Shalizi
who is suffering from the effects of the mace, and they walk
to an area to the right of the front entrance of the club
where Mr. Shalizi lays on the ground. Shivon Abdullatif, Mr.
Osman and Ms. Hernandez also began to suffer the effects of
the mace and they are standing, bent over in the immediate
area of Mr. Shalizi, who is lying on the ground.
Surveillance video from businesses in the area, as well as
statements given by both [the defendant] and Issac Tenaz
indicate that when Mr. Baeza, both Tenaz brothers and Mr.
Lopez reached the black Honda Accord in the nearby parking
lot that [the defendant] got into the driver's seat, Luis
Lopez got into the front passenger's seat, Issac Tenaz
got in the back passenger's seat, and Sergio Baeza got
into the back seat behind the driver.
Surveillance video also shows that when the black Honda
Accord is turned on, the headlights immediately come on, the
car is backed up, and then the headlights are turned off.
[The defendant], who is the driver of the car, drives toward
the front entrance of Club Cielo, but is stopped by traffic
of others driving in and out of the area. Once their vehicle
reaches the area where Mr. Shalizi, Shivon Abdullatif,
[Nejyar] Osman and Priscilla Hernandez are lying, standing
and bent over, the surveillance video shows muzzle flashes
coming from the driver's side of the black Honda Accord.
[The defendant] and Issac Tenaz both told detectives in
interviews that Sergio Baeza fired multiple shots out of the
car at that group of people. Nej[y]ar Osman was struck once
in the hip and Shivon Abdullatif was shot eight times and
those gunshots resulted in his death.
There were approximately nine 40-caliber cartridge casings,
which were found at the scene. There was also a 40-caliber
magazine and cartridges that were later found by detectives
in [the defendant's] bedroom and there was a nine
millimeter magazine located in Issac Tenaz's bedroom,
neither of the guns were located.
Baeza then told the court that, as he and his co-defendants
started to drive away from the club, they "seen
them" and "just ended up shooting them" for
"[r]etaliation for what they did, basically." Mr.
Baeza stated that the defendant had provided him with the
handgun earlier in the night. According to Mr. Baeza, he
asked the group in the car, "'What you want me to
do, you want me to go ahead and do something, '" and
both the defendant and Issac Tenaz responded, "'Do
what you want to do, do what you wanna do.'" Mr.
Baeza testified that, following the shooting, he gave the gun