         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    January 23, 2001 Session

                STATE OF TENNESSEE v. DAVID SCARBROUGH

                   Direct Appeal from the Criminal Court for Knox County
                            No. 62279B     Ray L. Jenkins, Judge


                                   No. E1998-00931-CCA-R3-CD
                                           July 11, 2001

The defendant, David Scarbrough, was convicted of two counts of felony murder, two counts of
theft, and aggravated burglary. The trial court imposed sentences of life imprisonment with the
possibility of parole for each of the murders, a sentence of six years for the aggravated burglary and
sentences of 11 months, 29 days for each of the thefts. All sentences are to be served consecutively.
In this appeal of right, the defendant presents the following issues for review: (1) Whether the
evidence was sufficient to support the convictions; (2) whether the defendant’s statement to police
was made knowingly and voluntarily; (3) whether the trial court erred by denying the defendant’s
challenge for cause of a juror; (4) whether the trial court erred by denying defendant’s motion for
continuance; (5) whether the trial court erred by refusing a jury instruction on facilitation of felony
murder; (6) whether the trial court erred by admitting photographs of the crime scene; (7) whether
the trial court erred by refusing to permit a private investigator to testify; (8) whether the trial court
properly refused to allow the testimony of a psychologist during the guilt phase of trial; (9) whether
the sentences were excessive; and (10) whether the trial court erred by denying the defendant’s
motion for a writ of error coram nobis based on newly discovered evidence. Because the trial court
erred by failing to instruct on the lesser included offense of facilitation of felony murder and because
such error was not harmless beyond a reasonable doubt, the felony murder convictions are reversed
and the causes are remanded for a new trial. The remaining convictions are affirmed.

 Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed in Part and Reversed in Part.

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and NORMA
MCGEE OGLE , JJ., joined.

Leslie M. Jeffress and James H. Varner, Jr., Knoxville, Tennessee, for the appellant, David
Scarbrough.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney
General; Randall E. Nichols, District Attorney General; William Crabtree, Assistant District
Attorney General; and Jo Helm, Assistant District Attorney General, for the appellee, State of
Tennessee.
                                            OPINION

        Shortly before 5:00 p.m. on February 4, 1995, Lieutenant Darrell Johnson of the Knox
County Sheriff’s Department was directed to investigate a double homicide at the residence of the
victims, Lester and Carol Dotts, on Russfield Drive in Knox County. When he arrived at the scene,
Lt. Johnson observed multiple gunshot wounds to each of the bodies. The screen door to the porch
had been cut, a window pane had been broken, and the interior of the house had been ransacked.
There were six .9 mm rounds recovered in the bedroom where Mr. Dotts’s body was discovered.
Lt. Johnson testified that one .9 mm round was recovered from Mr. Dotts’s body, two from the bed
rail and mattress, and two from underneath the carpet. There was a .9 mm round at the foot of the
bed and a .38 caliber bullet on the floor. In the den area where Mrs. Dotts’s body was found, police
recovered a .9 mm round from the hallway, one from the bathroom scales, and one from the hall
closet. The last .9 mm round, which traveled the length of the house, was found in the
exercise/sewing room. Police also recovered nine shell casings from a .9 mm semiautomatic
weapon. Lt. Johnson testified that six shell casings were found near Mrs. Dotts’s body and three
were found near Mr. Dotts’s body. During the course of the investigation, Johnson came into contact
with 13-year-old Harley Watts. Watts, who had been arrested for stealing cars, gave a statement to
police which implicated the defendant and Thomas Gagne in the murders.

        At trial, Watts, who by then had pled guilty in juvenile court to burglary and two counts of
murder, testified that he was "riding around" Knoxville late at night with Gagne and the defendant,
looking to break into parked automobiles. He recalled that Gagne drove to a "rich" neighborhood,
stated his intention to burglarize one of the homes, and parked his vehicle at a dead-end street. He
stated that Gagne and the defendant left the vehicle and he remained inside. When they hurriedly
returned to the car about 30 minutes later, the defendant was carrying a .9 mm semiautomatic pistol,
which he handed to Gagne as they drove away. Gagne then remarked, "somebody came out on [me]
and [I] started shooting." According to Watts, Gagne later threw something out the window.

       Dr. Sandra K. Elkins, Knox County Medical Examiner, testified that Mr. Dotts sustained five
gunshot wounds and Mrs. Dotts was shot at least seven times. It was her opinion that both were
alive when their wounds were inflicted.

        Robert Edward Brykalski, the victims’ son-in-law, testified that when he inventoried the
victims’ house after the crime, he discovered that several items were missing. Mr. Dotts’s billfold,
Mrs. Dotts’s purse, and some 200 to 300 blank checks could not be found. Police later recovered
the billfold and purse a short distance from the victims’ house. Brykalski also testified that the
victims were planning to go out to a restaurant on the night before their bodies were discovered, but
had not left the house by 6:30 p.m.

        John Raymond Jacobs, a rebuttal witness for the state, testified that he worked with the
defendant at U-Haul truck rentals in the summer of 1996. He claimed that sometime after the
murders, he and some other employees were telling "war stories" when the defendant admitted to
killing a couple in West Knoxville.


                                                -2-
       Some five days after the crime, police arrested the defendant and charged him with
possession of a .9 mm gun.1 While the weapon, which was tested by the FBI, was not identified as
the gun used in the homicides, the defendant, after consulting with his attorney at that time, Jeff
Hagood, provided the police with an incriminating statement.

        In his initial statement to law enforcement officials, the defendant acknowledged that he was
with Gagne and Watts on the night of the murders. He stated that Gagne drove to the victims’
neighborhood in order to "pick up some stuff" for his father. The defendant, who said he was
smoking marijuana with Gagne at the time, speculated that they were looking for drugs. He claimed
that Gagne, who had a nickel-plated .9 mm gun between the seats, stopped the car near the victims’
residence and turned off the lights. The defendant stated that he and Watts remained in the vehicle
while Gagne stepped outside and looked around for about five minutes. He described Watts as the
"front watchman" who stayed in the car. While acknowledging that he and Gagne then walked to
the rear of the victims’ house, the defendant maintained that he stayed outside the residence in order
to "watch" the backyard. He contended that he did not see how Gagne gained entry. The defendant
recalled that some 15 minutes later, he heard a gunshot and "took off running" to the car. He
suspected that Gagne had been shot. The defendant told police that he heard more gunshots as he
ran toward the car, where he sat for "a minute." Gagne, he claimed, was right behind. They drove
away without turning on the lights. The defendant recalled that Gagne remarked, "I had to do it."
According to the defendant, Gagne drove Watts to his residence, removed the license tag from the
car, and, presumably, added another in its place. In a second statement, the defendant admitted that
he was in possession of the .9 mm gun when he left the vehicle. He claimed, however, that he gave
the weapon to Gagne before they reached the victims’ house.

        At trial, the defendant denied any participation in the crime. He testified that he was
pressured to give his statements to police because attorney Hagood had informed him that he would
not be charged with murder if he cooperated. He explained that he had learned the details he
reported to the police from Watts’s statement and from newspaper articles. He testified that on the
night of the murders, he and Kasey Keirsey, his girlfriend, were visiting his cousin, Michelle Bizak,
and her husband Phillip. The defendant contended that he arrived at the Bizaks’ house at about 8:00
p.m. and stayed until about 10:30 p.m. He claimed that he met Watts for the first time four days
later.

        Ms. Keirsey testified that she and the defendant had visited the Bizaks, but she could not
remember the date. On cross-examination, however, she acknowledged that she could not have been
with the defendant on the night of the murders because a calendar that she kept at that time indicated
that she had gone to a school basketball game with two friends.




        1
          The defendant was also charged with three counts of auto theft, three misdemeanor counts of possessing a
weapo n, simple possession of mariju ana, and possession of drug paraph ernalia. Th e charge s were later d ismissed.

                                                        -3-
       Christy Ledford, one of Ms. Keirsey’s friends, confirmed that the two had attended a school
basketball game together on the night of the murder, February 3, 1995. She testified that she
remembered the date because it was "Flannel Night" during the school’s Spirit Week.

        Both Phillip and Michelle Bizak testified that they remembered Ms. Keirsey and the
defendant visiting their home. Neither could recall if the visit occurred on February 3, a Friday
night, or February 4, a Saturday night.

        The jury returned verdicts of guilt. Afterward, the trial court denied a motion for new trial
and the defendant filed a notice of appeal. Eleven months later, the defendant petitioned the trial
court for a writ of error coram nobis based upon the statement of Robert Manning, a Tennessee
inmate, who confessed to the burglary and murder of the victims. In his statement, Manning also
implicated Eric Steyer, a Michigan inmate. At the hearing, however, Manning declined to answer
any questions concerning the crimes. Steyer, who was also called as a witness, testified that he had
never committed a criminal offense with Manning. Shannon Langdon, Steyer’s wife, testified that
Steyer had informed her that he and Manning did burglarize and murder the victims. Steyer denied
having made the statement. The trial court denied the writ of error coram nobis and the defendant
appealed. This court granted a motion to consolidate the appeals.

                                                    I

        Initially, the defendant asserts that there was insufficient evidence to support his convictions
for felony murder, aggravated burglary and theft. He maintains that, given the lack of physical
evidence and the various discrepancies in the testimony, a rational trier of fact could not have found
him guilty beyond a reasonable doubt on any charge. We disagree.

         On appeal, the state is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light most favorable
to the state, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
A guilty verdict, approved by the trial judge, accredits the testimony of the witnesses for the state
and resolves all conflicts in the proof in favor of the state's theory. State v. Hatchett, 560 S.W.2d
627, 630 (Tenn. 1978).

        A person commits the offense of aggravated burglary when he enters a habitation with intent
to commit a felony, theft or assault. Tenn. Code Ann. § 39-14-403(a) (1997). A person commits
first degree felony murder when he commits a killing in the perpetration of or attempt to perpetrate
any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse or
aircraft piracy. Tenn. Code Ann. § 39-13-202(a)(2) (1997). A person commits theft when he


                                                  -4-
knowingly obtains or exercises control over property without the owner's consent and with the intent
to deprive the owner of the property. Tenn. Code Ann. § 39-14-103 (1997).

         Here, there was proof that the victims sustained multiple gunshot wounds. Authorities found
numerous shell casings and spent bullets from a .9 mm gun next to the bodies. Lieutenant Johnson
testified that the screen door at the rear of the house had been torn or cut, that a window frame had
been knocked inside, and that the victims’ house had been "ransacked." Watts testified that the
defendant and Gagne left the vehicle together after Gagne had announced that they were going to
break into a house. About one-half hour later, when the defendant and Gagne hurriedly returned to
the car, the defendant was holding a .9 mm gun. The defendant acknowledged to police that he left
the vehicle with the .9 mm gun, provided Gagne with the weapon, and then watched the backyard
as Gagne entered the Dotts's residence. He heard at least one gunshot before returning to the car.
While the defendant claimed at trial that he was at his cousin’s house with Ms. Keirsey on the night
of the murders, his alibi witnesses could not fully corroborate his claim. In fact, both Ms. Keirsey
and her friend, Christy Ledford, testified that Ms. Keirsey could not have been with the defendant
on the night of the murder because she was at a school basketball game.

         Taking the facts in a light most favorable to the state, it is our conclusion that a rational trier
of fact could have found that the defendant intended to break into the victims’ residence and, at the
very least, acted as a lookout with full knowledge that Gagne was burglarizing the victims’ home.
In either event, the defendant could be held accountable for the burglary. Items of value were
removed from the Dotts's residence. Furthermore, a rational trier of fact could have found that the
victims were killed in the perpetration of that offense. Those murders were, in our view, a natural
and probable consequence of the underlying felony. Moreover, immediately after the murders, the
defendant was seen in possession of a .9 mm weapon. There were six .9 mm rounds and three .9 mm
shell casings recovered near the body of Mr. Dotts. At least four .9 mm rounds and six .9 mm shell
casings were recovered near the body of Mrs. Dotts. All of these circumstances suggested that the
defendant may have actually participated in the murders.

         The defendant also argues that the testimony of Watts should have been discredited because
it was riddled with inconsistencies. In particular, he maintains that it was unlikely that the testimony
of Watts was accurate because Dr. Elkins testified that the victims had eaten a full meal no less than
two hours prior to their deaths and because Watts testified that the defendant committed the crimes
at around 2:00 a.m. The defendant reasons that because Brykalski testified that the victims were
planning to go out for dinner shortly after 6:30 p.m., it is unlikely that an elderly couple would have
waited to eat dinner until near midnight. While this evidence was not necessarily inconsistent, the
jury has the prerogative to resolve conflicting testimony. In this case, it did so in favor of the state's
theory. In our view, a rational trier of fact could have appropriately returned guilty verdicts on each
of the charges.

                                                     II

         Next, the defendant argues that his statements to police should have been suppressed by the
trial court. He contends that the statements were not made knowingly and voluntarily because of the

                                                    -5-
ineffective assistance of his counsel. He also contends that the statements should be excluded
because they were provided in exchange for a false promise of leniency.

        It is the duty of the trial judge to determine the voluntariness and the admissibility of a
defendant's pretrial statement. State v. Pursley, 550 S.W.2d 949, 952 (Tenn. 1977). The trial court's
determination that a confession was given knowingly and voluntarily is binding on the appellate
courts unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). Questions about witness credibility and "resolution of conflicts in the evidence are matters
entrusted to the trial judge." Id. Testimony presented at trial may be considered by an appellate
court in deciding the propriety of the trial court's ruling on a motion to suppress. State v. Henning,
975 S.W.2d 290, 299 (Tenn. 1998). If the "greater weight" of the evidence supports the court's
ruling, it will be upheld. Id. Yet, this court must conduct a de novo review of the trial court's
application of law to fact. State v. Bridges, 963 S.W.2d 487 (Tenn. 1997); State v. Yeargan, 958
S.W.2d 626 (Tenn. 1997).

        In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court ruled that
before a custodial interrogation, police officers must advise a defendant of the right to remain silent
and the right to counsel. If these warnings are not given, any statement elicited from a defendant is
not admissible in trial. Dickerson v. United States, 530 U.S. 428, 444 (2000); Stansbury v.
California, 511 U.S. 318, 322 (1994). A defendant's rights to counsel and against self-incrimination
may be waived as long as the waiver is made "voluntarily, knowingly, and intelligently." Miranda,
384 U.S. at 479; State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992). In order for an accused
to effect a waiver, he must be adequately appraised of his right to remain silent and the consequence
of deciding to abandon it. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). In determining
whether a confession was voluntary and knowing, the totality of the circumstances must be
examined. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997).

        At the suppression hearing, the defendant’s first attorney, Jeff Hagood, testified that he was
contacted by a deputy from the sheriff’s department who informed him that the defendant was a
suspect in the murder of the victims; he then "passed on" the information to the defendant, who
denied any involvement. Attorney Hagood testified that he later requested a meeting with the
defendant and his parents when he learned that a juvenile had implicated the defendant in the
murders. In meetings which included his parents, the defendant acknowledged that he was with
Gagne and Watts on the night of the murders, but he claimed that he only "watched" the backyard.
The attorney testified that he then talked with the prosecutor’s office about leniency in exchange for
a statement. While nothing specific was ever resolved, he concluded that the defendant would be
given "consideration" if he gave a truthful statement. Attorney Hagood, who was present during
each of the defendant’s two statements, testified that he believed "consideration" meant something
less than a murder charge. The defendant was advised of his Miranda rights and executed a waiver.

       At the suppression hearing, Assistant District Attorney William Crabtree testified that neither
he nor others in his office offered to "take care" of the defendant. He confirmed, however, that he
informed the defendant that he would be given consideration in exchange for help in solving the
murders. Randall E. Nichols, District Attorney General, testified that he met with the defendant and

                                                 -6-
made it known that if the defendant cooperated and gave a truthful statement, the sentencing judge
would be informed of his cooperation. He maintained, however, that he neither used the term
"leniency" nor discussed possible immunity.

        At the hearing, the defendant testified that he made the statement to police because his
attorney believed that "it was in [his] best interest." It was the defendant's belief that he would be
given a "substantial amount" of leniency and would not be charged with murder. On cross-
examination, however, the defendant admitted that he could not identify anyone who had represented
that he would not be charged with murder if he gave a truthful statement.

        Initially, the defendant argues that his statements came as the result of mistaken advice from
his counsel. He maintains that counsel’s advice to give a truthful statement to police was erroneous
because the statement provided the necessary corroboration of accomplice testimony. The defendant
contended that his counsel had failed to conduct any investigation before offering such unwise
advice.

       In denying the motion to suppress, the trial court ruled as follows:

       [During] the first statement . . . [t]he defendant was not in custody and was not
       restrained. . . . [T]he second statement was given in the office of the defendant’s
       attorney. Again there was no arrest.

                Under the totality of the circumstances, whether the statements given were
        true or false makes no difference. The fact remains that both were voluntary.

                There was no action on the part of the State physically or mentally coercing
        the defendant. If the . . . information given by the defendant to his attorney resulted
        in erroneous advice, he at least is partially responsible.

               The result is that the statements are admissible.

        We must concur. First, the evidence does not preponderate against the trial court’s
determination that the defendant’s waiver was voluntary. The defendant was not in custody when
he made the statements to police. In Miranda, the United States Supreme Court limited its holding
to "custodial interrogation." Miranda, 384 U.S. at 478-79. The Court defined the phrase "custodial
interrogation" as "questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way." Id. at 444. A person
is "in custody" within the meaning of Miranda if there has been "a ‘formal arrest or restraint on
freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S.
1121, 1125 (1983) (citation omitted). The Court has refused to extend the holding in Miranda to
non-custodial interrogations. See Oregon v. Mathiason, 429 U.S. 492 (1977) (holding that an
accused’s confession was admissible because there was no indication that the questioning took place
in a context where his freedom to depart was restricted in any way); see also Beheler, 463 U.S. at
1124-25 (noting that the ultimate inquiry is simply whether there is a "formal arrest or restraint on

                                                 -7-
freedom of movement" of the degree associated with a formal arrest). Here, the defendant was not
arrested until long after his statements and there is no evidence that he was ever restrained or
coerced. Even if there had been a custodial interrogation, the record establishes that the defendant
read his Miranda rights before making each statement and waived those rights after consultation with
his attorney.

         Second, the record does not support the defendant’s claim that his attorney gave erroneous
advice. Attorney Hagood testified that after he learned that Watts had implicated the defendant, he
met with the defendant and his parents on several occasions. He testified that the defendant
maintained his innocence until he learned from the sheriff that Gagne was going to make a statement
implicating the defendant. The record indicates that Attorney Hagood then advised the defendant
that if Watts’s statement was accurate, he should consider making a truthful statement to police. The
next day, the defendant acknowledged to his attorney that he was involved in the crimes. Attorney
Hagood testified that it was the defendant’s decision to give each statement. The record does not
support the defendant’s claim that someone in the district attorney’s office promised him that he
would not be charged with murder if he gave a truthful statement. Even if the district attorney had
promised to consider leniency, that would have necessarily depended upon the extent of his
involvement in the crimes and the degree of his candor in talks with the investigating officers.

        Had it been erroneous for his attorney to advise cooperation with the police due to a lack of
independent investigation, the defendant's Fifth Amendment right to counsel was not implicated
because the interrogations were not custodial. See Edwards v. Arizona, 451 U.S. 477, 81-82 (1981);
State v. Huddleston, 924 S.W.2d 666, 669 (Tenn. 1996). Nor had the defendant's right to counsel
under the Sixth Amendment attached. A defendant's Sixth Amendment right to effective assistance
of counsel attaches when "formal adversary judicial proceedings" begin. Moore v. Illinois, 434 U.S.
220 (1977); Kirby v. Illinois, 406 U.S. 682 (1972). In this state, the initiation of adversary
proceedings begins with a formal charge such as an arrest warrant, indictment, or presentment, or,
in cases where there is no formal warrant, a preliminary hearing. State v. Bryan, 990 S.W.2d 231,
239 (Tenn. 1998) (citing State v. Mitchell, 593 S.W.2d 280 (Tenn.), cert. denied, 449 U.S. 845
(1980)). A defendant cannot prevail on an ineffective assistance of counsel claim when the
constitutional right has not attached. See Wainwright v. Torna, 455 U.S. 586 (1982). Here, the
defendant had not been charged at the time he gave the statements to the investigating officers.

        The defendant next contends that his statement was not made voluntarily because it came as
the result of promises of leniency. In addressing the state’s offer of "leniency," the trial court held
as follows:

       [T]he State v. Baker case, 931 S.W.2d 232, at page 236 . . . seems to have brought
       the law together. . . . The Court states: "In order to render the statement involuntary,
       the defendant must have been ‘gripped by the hope of leniency’ and, as a result, was
       not able to choose freely and rationally among the courses available to him . . . . The
       offer of leniency must be clearly understood to be a guarantee, and the defendant’s
       will to resist must have been critically impaired . . . . From all of this, we conclude


                                                 -8-
       that any promise of benefit was of a general nature and did not overcome his ‘free
       and rational choice.’ "
               I think that’s exactly the situation we have here, resulting in the denial of the
       motion to suppress.

        We agree. There is no proof that the defendant was ever offered a specific favorable plea
proposal in exchange for his statements. District Attorney Nichols described "consideration" as
merely informing the sentencing judge of the defendant’s cooperation. The defendant’s attorney,
who had hoped for a more formal agreement, nevertheless confirmed that the district attorney’s
office had never offered a specific agreement. To render a statement involuntary, an offer of
leniency must be clearly understood to be a guarantee and the defendant's will to resist must have
been critically impaired. State v. Baker, 931 S.W.2d 232, 235 (Tenn. Crim. App. 1996). The
evidence here did not rise to that standard.

                                                  III

        Next, the defendant claims that the trial court erred by refusing to remove a juror for cause.
He claims that Juror Sheely should have been excused because of her exposure to potentially
prejudicial information and her inability to fairly consider the evidence. Defense counsel moved
to strike Juror Sheeley after the following series of questions and answers:

       [DEFENSE COUNSEL]: When did you first learn about the crime that we’re talking
       about here? Do you recall?

       MS. SHEELEY: . . . I don’t know how long I’ve been reading [about] it.

       [DEFENSE COUNSEL]: Okay. What do you recall specifically, if you recall
       anything specifically, about the case?

       MS. SHEELEY: That someone went in this house and killed these older people .
                                            ***
       [DEFENSE COUNSEL]:. . . [O]ther than Mr. Gagne, are you aware of any other
       persons who are – have been suspected in this case, know who they are?

       MS. SHEELEY: No, no.
                                     ***
       [DEFENSE COUNSEL]: Anyway, from what you’ve read, have you reached any
       kind of conclusion about –

       MS. SHEELEY: No.

       [DEFENSE COUNSEL]: – these people, about whether they might be guilty or not
       guilty?


                                                 -9-
         MS. SHEELEY: No.

        Following the examination of juror Sheeley, which was out of the presence of prospective
jurors, questions were posed to the entire panel:

         [DEFENSE COUNSEL]:. . . You’ve already heard from [the prosecutor] that you’re
         going to hear a videotaped statement from [the defendant] . . . . We expect to present
         proof, ladies and gentlemen, that that statement, when made, wasn’t accurate, that
         that statement today isn’t accurate . . . . Is there anybody that, knowing that [the
         defendant] made a statement to the authorities different from what you’re going to
         hear from some of our evidence in this case, that on that basis alone would say, I
         don’t think I can consider the other evidence? . . .

         MS. SHEELEY[]: I can consider it, but I would be very sceptable (sic) of it. That’s
         the word I was thinking of.
                                              ***
         [DEFENSE COUNSEL]: So – Ms. Sheeley . . . are you saying it would take a lot of
         proof to convince you differently?
                                              ***
         M[S]. SHEELEY: (Nodded affirmatively)
                                              ***
         [DEFENSE COUNSEL]: Ms. Sheeley, can you . . . [c]onsider all that evidence
         before you make up your mind?

         MS. SHEELEY: Yes.
                                                  ***
         [DEFENSE COUNSEL]: . . . How many of you feel you’d be more inclined to
         believe a police officer, a Sheriff’s deputy, than you would someone else who gets
         up and testifies?

         MS. SHEELEY: I’ve been taught to respect policemen, since I was just little.
                                                    ***
         [DEFENSE COUNSEL]: Well, I expect the judge is going to charge that you must
         consider all of the testimony of the witnesses and not give anybody any special
         weight, other than that which you believe it should be given. If the judge were to tell
         that they’re not entitled to any special weight just because of their employment, could
         you follow that law?

         MS. SHEELEY: (No verbal response.)2



         2
            A bench conference at the end of this questioning indicated that the trial judge considered the juror’s answer
to be an a ffirmative response .

                                                          -10-
          Article 1, section 9 of the Tennessee Constitution guarantees "the right . . . to a speedy public
trial . . . [by] an impartial jury." "The challenge for cause was designed to exclude from the jury
triers whose bias or prejudice rendered them unfit. . . ." Manning v. State, 155 Tenn. 266, 292 S.W.
451, 455 (1927). Rule 24(b) of the Tennessee Rules of Criminal Procedure provides that "[i]f the
trial judge, after examination of any juror, is of the opinion that grounds for challenge for cause are
present, the judge shall excuse that juror from the trial of the case. . . ." One party may challenge a
prospective juror for cause if the "prospective juror's exposure to potentially prejudicial information
makes the person unacceptable as a juror." Tenn. R. Crim. P. 24(b)(2). The rule further provides
as follows:

        Both the degree of exposure and the prospective juror's testimony as to his or her
        state of mind shall be considered in determining acceptability. A prospective juror
        who states that he or she will be unable to overcome preconceptions shall be subject
        to challenge for cause no matter how slight the exposure. If the prospective juror has
        seen or heard and remembers information that will be developed in the course of
        trial, or that may be inadmissible but is not so prejudicial as to create a substantial
        risk that his or her judgment will be affected, the prospective juror's acceptability
        shall depend on whether the testimony as to impartiality is believed. If the
        prospective juror admits to having formed an opinion, he or she shall be subject to
        challenge for cause unless the examination shows unequivocally that the prospective
        juror can be impartial.

Id.

        Juror qualification rests within the discretion of the trial court and "the trial judge's finding
a juror to be qualified will not be disturbed on review except on the clear showing of an abuse of
discretion." Burns v. State, 591 S.W.2d 780, 782 (Tenn. Crim. App. 1979).

        Although jurors may be excluded for cause if they have formed an opinion which will prevent
impartiality, "[j]urors need not be totally ignorant of the facts of the case on which they sit [and even]
the formation of an opinion on the merits will not disqualify a juror if [the juror] can lay aside [his
or her] opinion and render a verdict based on the evidence presented in court." State v. Howell, 868
S.W.2d 238, 249 (Tenn. 1993). The United States Supreme Court has made the following
observation:

         In these days of swift, widespread and diverse methods of communication, an
        important case can be expected to arouse the interest of the public in the vicinity, and
        scarcely any of those best qualified to serve as jurors will not have formed some
        impression or opinion as to the merits of the case. This is particularly true in
        criminal cases. To hold that the mere existence of any preconceived notion as to the
        guilt or innocence of an accused, without more, is sufficient to rebut the presumption
        of a prospective juror's impartiality would be to establish an impossible standard.

Irvin v. Dowd, 366 U.S. 717, 722-23 (1961).

                                                   -11-
       Thus, so long as a juror can set aside any previously formed opinions and render a verdict
based upon the evidence presented in court, the juror may properly participate in the case. Id. While
juror Sheeley initially indicated that she had read about the murder of the victims and Gagne's
involvement in the newspaper, she also asserted that she had no knowledge of the defendant's alleged
involvement and had formed no opinion about his guilt.

       The defendant also argues that juror Sheeley should have been removed because of the
following exchange:

       [PROSECUTOR]: . . . And can you also tell the judge that you wouldn’t
       communicate [the newspaper] information to your fellow jurors?

       MS. SHEELEY: I wouldn’t – I would do what you tell me to.

       [PROSECUTOR]: Thank you very much.

       MS. SHEELEY: Or try to.

        The defendant maintains that the response that the juror would "try" not to reveal information
to fellow jurors was not unequivocal or resolute. The juror’s initial response, however, to the
prosecutor’s question establishes that she understood her obligation not to pass along her information
to the other jurors. Her qualification of that statement by the use of the word "try" would not,
standing alone, warrant exclusion from the jury for cause.

        The defendant also argues that the juror was biased because she stated that it would take "a
lot of proof" to convince her that the defendant’s evidence was true and that she would be more
susceptible to testimony from police officers. The trial court ruled that the juror had resolved any
concern about her partiality when she specifically agreed to discharge her duties in accordance with
the instructions. The juror also acknowledged her duty to consider all of the evidence before making
up her mind and provided assurances that she had no opinion as to guilt. In our view, the trial court
did not err by declining to remove the juror for cause.

                                                 IV

       Next, the defendant argues that the trial court erred by denying his motion for continuance.
He maintains that the trial court should have granted an adjournment in order to locate a missing
witness.

       About a month before trial, the defendant moved for a continuance, arguing as follows:

       Counsel have been recently advised by a potential witness that persons other than the
       defendant were involved in the alleged burglary and murders which are the subjects
       of this case. During the past ten days, this witness has provided specific details


                                                -12-
       concerning the crime scene, some of which were not made available to the public but
       upon review of discovery provided by the State, have proved accurate.

        After the suppression hearing, the trial court denied the defendant's continuance motion on
the basis that the defendant had failed to establish justification therefor. Near the close of the
defendant’s proof, defense counsel moved for an extended recess because the Knox County Sheriff’s
Department had been unable to locate Shannon Langdon, who had informed both defense
investigators and law enforcement officials that her husband, Eric Steyer, and Robert Manning had
committed the burglary and the murders. The defense asked that the trial court adjourn the
proceedings in order to go through the necessary procedures to transport Steyer, who was
incarcerated in a Michigan prison. The defense also sought the opportunity to require Langdon’s
appearance as a witness in the event Steyer either refused to testify on Fifth Amendment grounds or
denied involvement in the crimes. The trial court ruled that the motion was late and deficient.

        The grant or denial of a continuance motion rests within the sound discretion of the trial
judge. His determination will not be overturned unless there is a clear showing of abuse of that
discretion. Woods v. State, 552 S.W.2d 782 (Tenn. Crim. App. 1977); Frazier v. State, 466 S.W.2d
535 (Tenn. Crim. App. 1970). When there has been lack of diligence or neglect on the part of the
moving party, the motion for continuance should be overruled. State v. Jefferson, 529 S.W.2d 674
(Tenn. 1975). A reversal is warranted only when the failure to continue results in an unfair trial and
a different result might reasonably have been reached had the continuance been granted. Maxwell
v. State, 501 S.W.2d 577 (Tenn. Crim. App. 1973).

        When seeking a continuance due to the unavailability of a witness or evidence, the defendant
must file a written motion setting forth the basis for the continuance and must file an affidavit
alleging:

       (a) the substance of the facts that the [defendant] expects to prove through the
       unavailable witness or evidence, (b) sufficient facts to establish the relevance and
       materiality of the testimony or the evidence, (c) the testimony of the witness or
       evidence would be admissible, if available, (d) the testimony or evidence is not
       merely cumulative to other evidence, (e) the witness or evidence will be available at
       a later date, and (f) diligence was exercised to obtain the presence of the witness or
       evidence.

State v. Bennett, 798 S.W.2d 783, 787-88 (Tenn. Crim. App. 1990) (footnotes omitted). "As a
general rule, mere conclusory allegations or opinions, standing alone, are insufficient to support the
granting of a continuance." Id. at 788.

        At the outset, it is unclear whether the defendant challenges the denial of the pretrial motion
for continuance or the denial of a similar motion which occurred during the latter stages of trial. In
either case, we cannot say that the trial court abused its discretion. The defendant’s pretrial motion
was not accompanied by an affidavit setting forth the facts the defendant intended to prove through


                                                 -13-
the unavailable witness, sufficient facts to establish the admissibility of any testimony, or the
witness’s availability at a later date.

        We are also unpersuaded by the argument in support of the motion for adjournment.
According to defense counsel, Langdon had indicated that if called to testify, she would exercise her
right to remain silent. There is no indication in the record as to how long it would take to locate
Langdon, whether her testimony would have been available if she were located, or the quantity or
quality of her testimony. Furthermore, the defendant knew about Steyer long before trial and knew
that he was in a Michigan prison. There is, however, no evidence that the defendant ever took the
necessary steps under Tennessee Code Annotated § 40-17-211 (which details the procedure whereby
prisoners can be witnesses if they are confined in another state) to call Steyer as a witness in this
case. Finally, the record also suggests that even if Steyer had been called as a witness, he would
have denied any involvement in the burglary and homicides. Thus, the trial court did not abuse its
discretion.

                                                   V

        Next, the defendant contends that the trial court erred by failing to instruct the jury on the
lesser included offense of facilitation of felony murder. He argues that the evidence would have
been sufficient to support conviction.

        The trial judge has a duty to give a complete charge of the law applicable to the facts of the
case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). There is an obligation "to charge the
jury as to all of the law of each offense included in the indictment, without any request on the part
of the defendant to do so." Tenn. Code Ann. § 40-18-110(a). Pursuant to our statute and case law
interpretations, defendants are entitled to jury instructions on all lesser offenses for which the
evidence would support conviction. Complete instructions allow the jury to determine among each
alternative the appropriate offense, if any, for conviction and to more evenly balance the rights of
the defendant and the state. It is only when the record is devoid of evidence to support an inference
of guilt of the lesser offense that the trial court is relieved of the responsibility to charge the lesser
crime. Stephenson, 878 S.W.2d at 549-50; State v. Boyd, 797 S.W.2d 589, 593 (Tenn. 1990).

        First degree felony murder is the killing of another committed in the perpetration of or the
attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping,
aggravated child abuse or aircraft piracy. Tenn. Code Ann. § 39-13-202(a)(2) (1997). Facilitation
occurs when a person, knowing that another intends to commit a specific felony, but without the
intent required for criminal responsibility under § 39-11-402(2), knowingly furnishes substantial
assistance in the commission of the felony. Tenn. Code Ann. § 39-11-403(a) (1997). Facilitation
of an offense is, as a matter of law, a lesser included offense of the offense charged. State v. Burns,
6 S.W.3d 453, 464 (Tenn. 1999).

        The guiding principle in determining whether to instruct on a particular lesser included
offense is that if there is evidence in the record from which the jury could have concluded that the
lesser included offense was committed, there must be an instruction for the offense. See Johnson

                                                  -14-
v. State, 531 S.W.2d 558, 559 (Tenn. 1975). In Burns, our supreme court adopted a two-step process
in determining whether the evidence justifies a jury instruction on a lesser included offense:

        First, the trial court must determine whether any evidence exists that reasonable
        minds could accept as to the lesser-included offense. In making this determination,
        the trial court must view the evidence liberally in the light most favorable to the
        existence of the lesser-included offense without making any judgements on the
        credibility of such evidence. Second, the trial court must determine if the evidence,
        viewed in this light, is legally sufficient to support a conviction for the
        lesser-included offense.

Burns, 6 S.W.3d at 469.

         Here, the trial court held that there was no proof to justify a charge of facilitation of felony
murder because the defendant claimed alibi as his defense. It is our conclusion, however, that the
evidence meets both the first and second prongs of the Burns test. In his statement to police, the
defendant admitted that he went onto the victims’ property because Gagne intended to pick up
something for his father. The defendant acknowledged that Gagne parked away from the victims’
driveway, "behind the bushes." He admitted that he was in possession of a .9 mm gun when the two
left the car. After giving Gagne the weapon, he "watched" the backyard while Gagne made his way
inside the residence. The defendant insisted that he did not enter the residence and could not see
Gagne break inside. Viewing this in the light most favorable to the defendant and without making
judgments on credibility, it is our assessment that reasonable minds could have rejected the alibi
defense and accepted this statement as sufficient evidence of the lesser included offense of
facilitation. Facilitation requires that a person know that another intends to commit a specific felony
and that he knowingly furnish substantial assistance in the commission of the felony. See Tenn.
Code Ann. § 39-11-403(a) (1997). Here, the crime took place at night in an upscale neighborhood.
The defendant, who made no mention of whether he was aware of Gagne’s intentions, acknowledged
that he accompanied Gagne into the backyard and acted as a lookout while Gagne apparently went
inside. Viewed liberally, as required by law, it is our conclusion that there was evidence of
facilitation and that the evidence would have been legally sufficient to support a conviction for the
lesser included offense. While an alternative theory of "criminal responsibility [for] knowingly
furnish[ing] substantial assistance" in the felony, see Tenn. Code Ann. § 39-11-403(a), is
inconsistent with an alibi defense, it is the duty of the jury to ascertain the facts and determine the
credibility of the witnesses. Trial courts should not remove that fact-finding responsibility from the
jury.

         Even though the defendant challenged the admissibility of his pre-trial statement, refuted the
veracity of its content, and claimed an alibi, the statement was submitted to the jury as an important
part of the state's proof-in-chief. It is the exclusive duty of the jury to resolve conflicting accounts
in the testimony and it is the jury's prerogative, when the proof is sufficient, to render a guilty verdict
on either the crime charged or its lesser included offense. The trial court did not allow the jury to
consider its various options. Because the evidence here would have supported a conviction either


                                                   -15-
for felony murder, the charge in the indictment, or for facilitation of felony murder, this court must
conclude that there was error.

        In State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998), our supreme court indicated that
the right to instructions on lesser offenses was based upon the statutory requirement. Little reference
was made to whether the right was also founded in our state constitution. In consequence, the high
court directed that any error in the omission of a lesser included offense would be subject to the
following harmless error analysis:

        Reversal is required if the error affirmatively appears to have affected the result of
        the trial on the merits, or in other words, reversal is required if the error more
        probably than not affected the judgment to the defendant’s prejudice.

Id.

         In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998), the defendant, who was charged with
premeditated first degree murder, was willing to gamble on an "all or nothing" verdict by asking the
trial judge not to charge the lesser included offense of second degree murder; the trial judge refused
and the defendant was convicted on that lesser crime. While our supreme court affirmed that second
degree murder conviction, its opinion emphasized the mandate of the statute requiring trial courts
to "instruct the jury on all lesser offenses if the evidence introduced at trial is legally sufficient to
support a conviction of the lesser offense." Id. at 593. Our supreme court also acknowledged that
a "purpose of the statute is to protect the right to trial by jury by instructing the jury on the elements
of all offenses embraced by the indictment [and to] facilitate[] the overall truth-seeking function of
the process." Id. If the failure to charge a lesser included offense was an error of constitutional
dimension, as Bolden implied, the proper question would have been whether the error was harmless
beyond a reasonable doubt. In State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000), however, our
supreme court followed the rationale in Williams and held that reversal was required only "if the
error affirmatively affected the result of trial, or if the error more probably than not affected the
judgment to the defendant’s prejudice." The high court concluded that the trial court’s failure to
instruct misdemeanor assault as a lesser included offense of the primary charge, aggravated sexual
battery, was harmless error under Tenn. R. Crim. P. 52(a).

        Recently, in State v. Ely, our supreme court clarified the holding in Williams and ruled that
the failure to charge a lesser included offense indeed qualifies as an error of constitutional
proportion:

        [T]he right of trial by jury is of constitutional dimension [as] evidenced by its
        embodiment in Article I, section 6 of the Tennessee Constitution, which states, "the
        right of trial by jury shall remain inviolate." Accordingly, we hold that this
        constitutional right is violated when the jury is not permitted to consider all offenses
        supported by the evidence.



                                                  -16-
Ely, slip op. at 17 (emphasis in original). Our high court directed that in reviewing error arising from
a failure to charge one or more lesser included offenses, "the proper inquiry for an appellate court
is whether the error is harmless beyond a reasonable doubt." Id.

         By use of the Williams standard, we would have concluded that the trial court's failure to
charge facilitation of felony murder did not affect the verdict to the prejudice of the defendant.
Under the traditional constitutional error standard set forth in Ely, however, this court cannot
conclude that the error was harmless beyond a reasonable doubt. Had the jury been instructed on
facilitation to commit murder, the evidence would have been sufficient, as previously indicated, to
support a verdict of guilt. In his statement to police, the defendant maintained that while Watts was
a "front watchman," he stayed in the backyard and acted as a lookout for Gagne who walked toward
the victims' residence. The defendant claimed that Gagne was there to participate in a drug
transaction. The circumstances suggested a burglary. The defendant implied that he was surprised
to hear gunshots and, out of fear, quickly retreated to the getaway vehicle. He told police that Gagne
claimed to have fired shots only because "somebody came out on him." The term "moral certainty"
is often described as required to resolve reasonable doubt. Workman v. Bell, 178 F.3d 759 (6th Cir.
1998); Coe v. Bell, 161 F.3d 320 (6th Cir. 1998). By the use of the reasonable doubt standard, this
court could not declare with moral certainty that the jury, if properly instructed, would not have
returned a guilty verdict for facilitation of felony murder. See Chapman v. California, 386 U.S. 18
(1967).

        A concurring opinion authored by Chief Justice Rehnquist in Sullivan v. Louisiana describes
the duty of the appellate court in circumstances where there is constitutional error:

       [T]he reviewing court is usually left only with the record developed at trial to
       determine whether it is possible to say beyond a reasonable doubt that the error did
       not contribute to the jury's verdict. . . . [A]ny time an appellate court conducts
       harmless-error review it necessarily engages in some speculation as to the jury's
       decisionmaking process; for in the end no judge can know for certain what factors
       led to the jury's verdict.

508 U.S. 275, 283 (1993) (Rehnquist, J., concurring).

        In Fahey v. Connecticut, 375 U.S. 85 (1963), our highest court observed that the real question
when there is a constitutional violation is whether there is "a reasonable possibility" that error might
have contributed to the conviction. In Chapman, our Supreme Court approved of that language and
further concluded that when constitutional error had occurred, appellate courts had the obligation
"to declare a belief that it was harmless beyond a reasonable doubt." 386 U.S. at 24. If allowed the
alternative, facilitation of first degree murder, there is a "reasonable possibility" that the jury may
have convicted on that offense. While perhaps not entirely probable under these facts, there is that
rational possibility. Accordingly, the defendant is entitled to a new trial.




                                                 -17-
                                                  VI

        Next, the defendant claims that the trial court abused its discretion by allowing certain
photographs to be introduced into evidence. He specifically argues that "gory" photographs of the
crime scene introduced by Officer Johnson should not have been admitted because any probative
value they possessed was substantially outweighed by the danger of unfair prejudice.

       Evidence is relevant if it has "any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence." Tenn. R. Evid. 401. Rule 403 of the Tennessee Rules of Evidence, however,
provides that relevant evidence may be excluded in certain situations:

        Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of
        Time. Although relevant, evidence may be excluded if its probative value is
        substantially outweighed by the danger of unfair prejudice, confusion of the issues,
        or misleading the jury, or by considerations of undue delay, waste of time, or
        needless presentation of cumulative evidence.

       Simply because a photograph is prejudicial does not mean that it must be excluded as a
matter of law. See State v. Gentry, 881 S .W.2d 1, 6 (Tenn. Crim. App. 1993). The court must still
determine the relevance of the photograph and weigh its probative value against any undue prejudice.

         In State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978), our supreme court recognized "the
inherently prejudicial character of the photographic depictions of a murder victim . . . ." In adopting
Federal Rule of Evidence 403 as its test for admissibility, the court suggested a variety of factors for
consideration by the trial judge. The "value of photographs as evidence, . . . their accuracy and
clarity, . . . [and] the inadequacy of testimonial evidence in relating the facts to the jury" are
appropriate factors. Id. The admissibility of relevant photographs of the victim is within the sound
discretion of the trial judge and his or her ruling will not be disturbed on appeal absent a clear
showing of an abuse of that discretion. Id. at 949.

         Initially, the record establishes that this defendant objected only to those photographs that
dealt with the bloody clothing of the victims, 10 of the 32 photographs introduced during Officer
Johnson’s testimony. Failure to make a contemporaneous objection to the other 22 photos is a
waiver of the issue on appeal. See Tenn. R. App. P. 36(a); State v. Killebrew, 760 S.W.2d 228, 235
(Tenn. Crim. App. 1988). The 10 photographs to which the defendant objected were not included
in the record on appeal. It is the defendant's responsibility to present a fair, accurate, and complete
record for review, else the issue is waived. State v. Galloway, 696 S.W.2d 364 (Tenn. 1985); State
v. Bunch, 646 S.W.2d 158 (Tenn. 1983). Any error due to the admission of the 32 photographs has,
therefore, been waived.




                                                 -18-
                                                VII

        Next, the defendant argues that John Edward Rucker, a private investigator, should have
been allowed to testify. He submits that he should have been allowed to rebut testimony offered
by an alibi witness in order to establish the actual date that the defendant and Ms. Keirsey visited
the Bizaks.

        At trial, Ms. Keirsey testified that she visited the defendant's cousin’s home in February
of 1995 with the defendant, but could not remember the exact date. On cross-examination, Ms.
Keirsey reviewed her activities calendar and concluded that she was at a school basketball game
with friends on the night of the murders. After the Bizaks testified that they were uncertain of
the exact date that the defendant and Ms. Keirsey came to their house, the defendant called
Rucker as a witness. The state objected. During the bench conference, defense counsel explained
that Rucker would testify regarding Ms. Keirsey's previous statement to him that she was with
the defendant at the Bizaks' house on the night of February 3, 1995. Because Ms. Keirsey had
not been asked about the statement, the trial court sustained the objection.

       In our view, the trial court correctly excluded Rucker's testimony. Generally, extrinsic
evidence of a prior inconsistent statement is inadmissible except under the terms of Tennessee
Rule of Evidence 613, which provides in pertinent part as follows:

              Extrinsic evidence of a prior inconsistent statement by a witness is not
       admissible unless the witness is afforded an opportunity to explain or deny the
       same and the opposite party is afforded an opportunity to interrogate the witness
       thereon, or the interests of justice otherwise require. . . .

Tenn. R. Evid. 613(b); see also State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982). The purpose
of Rule 613(b) is to allow introduction of otherwise inadmissible extrinsic evidence for
impeachment. State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998). A prior inconsistent
statement introduced for purposes of impeachment may be considered only on the issue of
credibility and not as substantive evidence. Reece, 637 S.W.2d at 861. Extrinsic evidence of a
prior inconsistent statement remains inadmissible when a witness unequivocally acknowledges
having made the prior statement. Martin, 964 S.W.2d at 567. When presented with a prior
inconsistent statement a "witness has several possible responses: the witness can admit, deny, or
not remember making all or part of the statements." Neil P. Cohen et al., Tennessee Law of
Evidence § 6.13[5][a] (4th ed. 2000). If the witness admits making the prior inconsistent
statement, any extrinsic proof of the statement would be cumulative. Id.

        At trial, defense counsel did not question Ms. Keirsey about her prior inconsistent
statement to Rucker. She had no opportunity, therefore, to admit, deny, or otherwise explain the
statement. Likewise, the state was not afforded an opportunity to interrogate Ms. Keirsey about
the statement. The requirements of Tennessee Rule of Evidence 613(b) are clear. Because they
were not met in this case, the trial court properly excluded Rucker's testimony.


                                                -19-
       The state also argued that Rucker should not be allowed to testify because he was in the
courtroom during testimony. At the request of the defendant, the trial court had ordered
sequestration of the witnesses before voir dire. Although the defendant maintained that Rucker
was not present during Ms. Keirsey’s testimony, the trial court did not allow him to testify:

       The [sequestration] rule doesn’t say anything about compartmentalizing the
       testimony so as to permit one witness to stay in during testimony he’s not going to
       contradict.
                                                 ***
       [W]here the parties insist on sequestration of the witnesses, they are charged with the
       responsibility of keeping their witnesses outside the courtroom.

        Rule 615 of the Tennessee Rules of Evidence provides:

                At the request of a party the court shall order witnesses, including rebuttal
        witnesses, excluded at trial or other adjudicatory hearing. In the court's discretion,
        the requested sequestration may be effective before voir dire, but in any event shall
        be effective before opening statements. The court shall order all persons not to
        disclose by any means to excluded witnesses any live trial testimony or exhibits
        created in the courtroom by a witness. This rule does not authorize exclusion of (1)
        a party who is a natural person, or (2) a person designated by counsel for a party that
        is not a natural person, or (3) a person whose presence is shown by a party to be
        essential to the presentation of the party's cause. This rule does not forbid testimony
        of a witness called at the rebuttal stage of a hearing if, in the court's discretion,
        counsel is genuinely surprised and demonstrates a need for rebuttal testimony from
        an unsequestered witness.

        The sequestration rule prevents witnesses from hearing testimony of other witnesses and
subsequently adjusting testimony. See State v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992). Various
sanctions exist for violations of the rule. A trial judge may declare a mistrial or preclude a witness
from testifying in the most egregious cases. State v. Anthony, 836 S.W.2d 600, 605 (Tenn. Crim.
App. 1992). However, the witness may be cross-examined regarding the violation and the jury may
be instructed to consider the violation in assessing the witness's testimony. Id. When the issue of
a violation of the "rule" is raised on appeal, this court considers the seriousness of the violation and
the prejudice, if any, suffered by the defendant. Harris, 839 S.W.2d at 68-69; Anthony, 836 S.W.2d
at 605.

        Here, Rucker was called as a witness in order to rebut Ms. Keirsey’s testimony concerning
the date of the visit to the Bizaks' home. According to Rule 615 of the Tennessee Rules of Evidence,
a trial court can make an exception to the sequestration rule for rebuttal witnesses. Such an
exception, however, requires a dual showing of genuine surprise and demonstrable need. See Tenn.
R. Evid. 615, Advisory Commission Comment. In our view, the defendant has shown both. During
the bench conference, the defendant maintained that Ms. Keirsey’s testimony, which included
reference to her calendar, came as a surprise and that prior to her testimony, he had no plans to call

                                                 -20-
Rucker as a witness. It is also clear that there was a demonstrable need for Rucker’s testimony,
because Ms. Keirsey’s expected testimony was material to the defendant’s alibi. We cannot say,
however, that the trial court’s refusal to let Rucker testify was prejudicial in light of other
overwhelming evidence, including the testimony of the Bizaks, the testimony of Watts, the
defendant’s statements to police and the testimony of Christy Ledford, Ms. Keirsey’s friend, who
confirmed that she attended the school basketball game with Ms. Keirsey on the night of the
murders. Reversal is required only if the error affirmatively appears to have affected the result of
the trial on the merits, or, in other words, reversal is required if the error more probably than not
affected the judgment to the defendant's prejudice. See Tenn. R. Crim. P. 52(a); see Tenn. R. App.
P. 36(b).

                                                 VIII

       Next, the defendant argues that the trial court erred by excluding the testimony of Harold
Wagner, a clinical psychologist, regarding his mental state. In particular, the defendant argues that
the psychologist’s testimony would have substantially assisted the jury to understand why the
defendant had made false statements to the police. In response, the state maintains that the
determination of the weight and credibility of the defendant’s testimony is a matter entrusted
exclusively to the trier of fact, that the jury needed no assistance, and that the trial court properly
excluded the testimony.

        According to the defendant, the psychologist was expected to testify that the defendant
tended to follow the lead of a strong male personality, which would have "assisted" the jury in
understanding why he made false statements to police. The defendant did not make a proffer of the
psychologist’s testimony because Dr. Wagner refused to provide the state with the materials he used
in reaching the evaluation.

        Our supreme court addressed an analogous issue in State v. Ballard, 855 S.W.2d 557 (Tenn.
1993). In Ballard, the court held that expert testimony offered by the state concerning symptoms of
post-traumatic stress syndrome exhibited by victims of child abuse was inadmissible. Id. at 563. In
reaching this conclusion the court reasoned as follows:

               In the context of the criminal trial, expert scientific testimony solicits the
       danger of undue prejudice or confusing the issues or misleading the jury because of
       its aura of special reliability and trustworthiness. This "special aura" of expert
       scientific testimony, especially testimony concerning personality profiles of sexually
       abused children, may lead a jury to abandon its responsibility as fact finder and adopt
       the judgment of the expert. Such evidence carries strong potential to prejudice a
       defendant's cause by encouraging a jury to conclude that because the children have
       been identified by an expert to exhibit behavior consistent with post-traumatic stress
       syndrome, brought on by sexual abuse, then it is more likely that the defendant
       committed the crime. Testimony that children exhibit symptoms or characteristics
       of post-traumatic stress syndrome should not suffice to confirm the fact of sexual
       abuse. The symptoms of the syndrome are "not like a fingerprint in that it can clearly

                                                 -21-
        identify the perpetrator of a crime." Expert testimony of this type invades the
        province of the jury to decide on the credibility of witnesses.

Id. at 561-62 (citations omitted).

         Similarly, in State v. Coley, 32 S.W.3d 831 (Tenn. 2000), our supreme court ruled that the
trial court properly excluded expert testimony, proffered by the defendant, concerning the reliability
of eyewitness testimony. It concluded that such testimony was inadmissible per se, as it was of a
general nature rather than specific to a particular eyewitness, and was designed to influence the jury’s
assessment of the credibility of witnesses. Id. at 834.

         In State v. Shuck, 953 S.W.2d 662 (Tenn. 1997), our supreme court ruled that the trial court's
exclusion of expert testimony regarding the defendant's susceptibility to being led by others was
reversible error. In Shuck, however, the proffered expert testimony was relevant to the defense of
entrapment. Our supreme court distinguished expert testimony relating to witness credibility, which
"is not reliable proof as to the question of whether a defendant committed the specific crime of which
he or she is accused." Id. at 669; cf. State v. Hall, 958 S.W.2d 679, 689 (Tenn. 1997) (holding that
expert psychiatric testimony is admissible to establish that a defendant lacked the capacity to form
the requisite culpable mental state to commit the offense charged).

           Here, as in Ballard and Coley, this court is presented with testimony designed to affect the
jury's assessment of witness credibility. Using the Ballard rationale, expert testimony concerning
personality types "solicits the danger of undue prejudice or confusing the issues or misleading the
jury . . . ." Ballard, 855 S.W.2d at 561; see also Tenn. R. Evid. 403. In consequence, such testimony
might "lead a jury to abandon its responsibility as fact finder and adopt the judgment of the expert,"
rather than "assist" the jury in making its own determination of credibility. See id. In our view, the
exclusion of the testimony was proper.

                                                   IX

        Next, the defendant argues that the trial court erred in calculating the lengths of his sentences
for the aggravated burglary, six years, and for the two thefts, 11 months, 29 days each. When there
is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to
conduct a de novo review with a presumption that the determinations made by the trial court are
correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant facts
and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also State v. Jones, 883
S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate factors or otherwise fails to follow
the 1989 Sentencing Act, the presumption of correctness falls." State v. Shelton, 854 S.W.2d 116,
123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is
on the defendant to show the impropriety of the sentence.

       Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel

                                                  -22-
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in this case demonstrates
that the trial court made adequate findings of fact.

A. Aggravated Burglary

        In calculating the sentence for aggravated burglary, a Class C felony conviction, the
presumptive sentence is the minimum in the range if there are no enhancement or mitigating factors.
Tenn. Code Ann. § 40-35-210(c). If there are enhancement but no mitigating factors, the trial court
may set the sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-
210(d). A sentence involving both enhancement and mitigating factors requires an assignment of
relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann.
§ 40-35-210(e). The sentence must then be reduced within the range by any weight assigned to the
mitigating factors present. Id.

        For a Range I offender, the possible range for the offense of aggravated burglary is from three
to six years. Tenn. Code Ann. § 40-35-112(a)(3).

       The trial court found the following enhancement factors applicable to the aggravated burglary
offense:

        (1)     The defendant has a previous history of criminal convictions or criminal
                behavior in addition to those necessary to establish the appropriate range;
        (2)     The defendant was a leader in the commission of an offense involving two
                (2) or more criminal actors;
        (3)     The offense involved more than one (1) victim;
        (4)     A victim of the offense was particularly vulnerable because of age or physical
                or mental disability . . . ;
        (5)     The defendant treated or allowed a victim to be treated with exceptional
                cruelty during the commission of the offense;
        (6)     The personal injuries inflicted upon or the amount of damage to property
                sustained by or taken from the victim was particularly great;
                                                 ***
        (9)     The defendant possessed or employed a firearm, explosive device or other
                deadly weapon during the commission of the offense;
        (10)    The defendant had no hesitation about committing a crime when the risk to
                human life was high;
                                                 ***
        (12)    During the commission of the felony, the defendant willfully inflicted bodily
                injury upon another person, or the actions of the defendant resulted in the
                death of or serious bodily injury to a victim or a person other than the
                intended victim;

                                                  -23-
                                               ***
       (16)    The crime was committed under circumstances under which the potential for
               bodily injury to a victim was great[.]

Tenn. Code Ann. § 40-35-114.

        The trial court determined that no mitigation factors were applicable.

        First, the defendant argues that the trial court misapplied enhancement factor (2), that the
defendant was a leader in the commission of an offense involving two or more criminal actors. The
defendant contends that there was no evidence to indicate that the defendant entered the victims’
house. We disagree. While circumstantial, there was evidence to suggest that the defendant actually
participated in the crimes. Police recovered rounds from two different guns, a .9 mm and a .38
caliber, as well as shell casings from a .9 mm weapon, within the victims’ residence. There was
testimony indicating that the defendant left the vehicle carrying the .9 mm and returned in possession
of the same weapon. While the defendant and Gagne went to the residence, a third person remained
in the car. Further, there is evidence that the defendant boasted of the crime to his co-worker,
Jacobs. All of this suggests that the defendant, while perhaps not the leader, was a leader in the
commission of the crimes.

        Second, the defendant argues that the trial court’s application of Tenn. Code. Ann. § 40-35-
114(3), that the aggravated burglary offense involved more than one victim, was erroneous. We
disagree. This factor may be properly applied to a sentence for aggravated burglary when more than
one victim was present at the time the crime was committed. See State v. Michael Wilson, Sean
Kevin Wilson and Kenneth Quilter, Jr., No. 01C01-9602-CC-00073 (Tenn. Crim. App. at Nashville,
July 31, 1997). Here, each of the victims was present when the burglary was committed. This factor
was properly applied.

        Third, the defendant argues that the trial court erred by applying Tenn. Code Ann. § 40-35-
114(4), that a victim of the offense was particularly vulnerable because of age or physical or mental
disability. Because the state did not present specific proof of the victims’ vulnerability or show that
it was a factor in the commission of the crime, we must agree. The vulnerability enhancement factor
relates more to the natural physical and mental limitations of the victim than to age. State v. Poole,
945 S.W.2d 93, 96 (Tenn. 1997). The state bears the burden of showing that specific limitations
made a victim particularly vulnerable or that the vulnerability was a factor in the commission of the
crime. Id. Here, there was only a showing that the victims were elderly. Proof of age, standing
alone, is insufficient to establish particular vulnerability. See State v. Collins, 986 S.W.2d 13 (Tenn.
Crim. App. 1998). Thus, Tenn. Code Ann. § 40-35-114(4) may not be applied to the aggravated
burglary offense.

        Fourth, the defendant maintains that the trial court erred by applying enhancement factor (5),
that he treated or allowed the victims to be treated with exceptional cruelty. He maintains that
because he never entered the house, it was impossible for him treat either of the victims with cruelty.
We disagree. Our supreme court has ruled that before this factor may be applied, the facts in the case

                                                 -24-
must "support a finding of 'exceptional cruelty' that 'demonstrates a culpability distinct from and
appreciably greater than that incident to'" the crime. Poole, 945 S.W.2d at 98. Here, there was
evidence that suggested the defendant entered the victims’ home. Each of the victims was killed by
a .9 mm weapon and the defendant returned from the scene with such a weapon. Furthermore,
because Mr. Dotts and Mrs. Dotts, each of whom were still living when each of the shots were fired,
sustained five and seven gunshot wounds respectively, there was evidence of exceptional cruelty.

        Fifth, the defendant argues that the trial court erred by applying Tenn. Code Ann. § 40-35-
114(6), that the personal injuries inflicted upon or the amount of damage to property sustained by
or taken from the victim was particularly great. He maintains that the factor should not apply,
because very little property was taken and no great damage was done to the victims’ house. Because
serious bodily injury resulting in death is not an element of aggravated burglary, the trial court
correctly applied the factor. See State v. Nix, 922 S.W.2d 894 (Tenn. Crim. App. 1995); see also
State v. Griffis, 964 S.W.2d 577 (Tenn. Crim. App. 1997).

         Sixth, the defendant maintains that the trial court erred by applying Tenn. Code Ann. § 40-
35-114(9), that the defendant possessed or employed a firearm, explosive device or other deadly
weapon during the commission of the offense. He argues that because he did not enter the house,
there was no evidence to support the application of the factor. We disagree. As noted earlier, there
was circumstantial evidence to indicate that the defendant did, in fact, enter the residence. Almost
all of the shots were fired from a .9 mm weapon. The defendant possessed a .9 mm weapon shortly
after the commission of the crimes.

        Seventh, the defendant contends that the trial court erred by applying Tenn. Code Ann. § 40-
35-114(10), that the defendant had no hesitation about committing a crime when the risk to human
life was high, and 40-35-114(16), that the crime was committed under circumstances where the
potential for bodily injury to a victim was great. Aggravated burglary is the burglary of a habitation.
Tenn. Code Ann. § 39-14-403. It is "aggravated" only because it is the burglary of a habitation as
opposed to some other type of structure. Id. As this court has previously ruled, aggravated burglary
carries a greater sentence than mere burglary. "In [enhancing the punishment for aggravated
burglary], the General Assembly recognized that the potential for bodily injury to the victim is great
when these crimes are committed. Thus, a trial court should not apply [enhancement] factor [(16)]
absent extraordinary circumstances." State v. Smith 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994).
Here, however, there were extraordinary circumstances. Two weapons were used during the course
of the burglary. Each of the weapons was discharged. The victims were killed as a result. In our
view, the factor was properly applied.

         Finally, the defendant argues that enhancement factor (12) should not have been applied
because there was no evidence that he willfully inflicted bodily injury upon another person or that
his actions resulted in the death of the victims. As previously stated, there is evidence to support
defendant’s conviction for aggravated burglary and for the deaths which occurred during the course
of that burglary. Because bodily injury is not an element of aggravated burglary, this issue is without
merit. See State v. Freeman, 943 S.W.2d 25 (Tenn. Crim. App. 1996).



                                                 -25-
        In summary, the trial court properly applied enhancement factors (1), (2), (3), (5), (6), (9),
(10), (12), and (16) to the defendant’s aggravated burglary sentence. The trial court misapplied
factor (4). The presumptive sentence for the conviction is three years, the minimum in the range.
Here, there were a multitude of enhancement factors. Despite the misapplication of factor (4), the
maximum sentence was warranted. In our view, the six-year sentence for the aggravated burglary
offense is appropriate.

B. Theft

        In misdemeanor sentencing, the court is required to provide the defendant with a reasonable
opportunity to be heard as to the length and manner of the sentence. The sentence must be specific
and consistent with the purposes of the 1989 Act. Tenn. Code Ann. § 40-35-302(a) -(b). No greater
than 75 percent of the sentence should be fixed for service by a misdemeanor offender; however, a
DUI offender may be required to serve the full one hundred percent of his sentence. Tenn. Code
Ann. § 40-35-302(d); Palmer v. State, 902 S.W.2d 391, 393-94 (Tenn. 1995). In determining the
percentage of the sentence to be served, the court must consider enhancement and mitigating factors
as well as the legislative purposes and principles related to sentencing. Tenn. Code Ann. § 40-35-
302(d).

        Upon service of the required percentage, the administrative agency governing rehabilitative
programs determines which among the lawful programs available is appropriate for the defendant.
The trial court retains the authority to place the defendant on probation either immediately or after
a term of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e) (Supp. 2000). The
legislature has encouraged courts to consider public or private agencies for probation supervision
prior to directing supervision by the Department of Correction. Tenn. Code Ann. § 40-35-302(f)
(Supp. 2000). The statutory scheme is designed to provide the trial court with continuing jurisdiction
and a wide latitude of flexibility in the misdemeanor case. The misdemeanant, unlike the felon, is
not entitled to the presumption of a minimum sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn.
Crim. App. 1994). Appellate review of misdemeanor sentencing is de novo with a presumption of
correctness. See State v. Troutman, 979 S.W.2d 271 (Tenn. 1998).

        The trial court applied the same enhancement factors to the theft convictions and imposed
terms of 11 months and 29 days, with a 75 percent release eligibility. As with his aggravated
burglary sentence, the defendant challenges the trial court’s application of certain enhancement
factors. Enhancement factor (3) would not apply since the defendant was convicted separately for
theft from each victim. See State v. McKnight, 900 S.W.2d 36, 54 (Tenn. Crim. App. 1994).
Because the state failed to establish particular vulnerability, as required, factor (4) does not apply.
All of the other enhancement factors applicable to the aggravated burglary sentence are also
applicable to the theft sentences. Even though enhancement factors (3) and (4) were misapplied,
however, the remaining enhancement factors would clearly justify the sentence imposed. The
circumstances warrant a sentence of 11 months and 29 days at 75 percent for each of the thefts.
C. Consecutive Sentences




                                                 -26-
       The defendant maintains that the trial court erred in ordering that his sentences be served
consecutively. He contends that he has no "extensive" criminal activity and that he is not a
dangerous offender.

        Prior to the enactment of the Criminal Sentencing Reform Act of 1989, the limited
classifications for the imposition of consecutive sentences were set out in Gray v. State, 538 S.W.2d
391, 393 (Tenn. 1976). In that case, our supreme court ruled that aggravating circumstances must
be present before placement in any one of the classifications. Later, in State v. Taylor, 739 S.W.2d
227 (Tenn. 1987), the court established an additional category for those defendants convicted of two
or more statutory offenses involving sexual abuse of minors. There were, however, additional words
of caution:

         [C]onsecutive sentences should not routinely be imposed . . . and . . . the aggregate
         maximum of consecutive terms must be reasonably related to the severity of the
         offenses involved.

Id. at 230.

        The Sentencing Commission Comments adopted the cautionary language. Tenn. Code Ann.
§ 40-35-115, Sentencing Commission Comments. The 1989 Act is, in essence, the codification of
the holdings in Gray and Taylor; consecutive sentences may be imposed in the discretion of the trial
court only upon a determination that one or more of the following criteria3 exist:

         (1)      The defendant is a professional criminal who has knowingly devoted
                  [himself] to criminal acts as a major source of livelihood;
         (2)      The defendant is an offender whose record of criminal activity is extensive;
         (3)      The defendant is a dangerous mentally abnormal person so declared by a
                  competent psychiatrist who concludes as a result of an investigation prior to
                  sentencing that the defendant's criminal conduct has been characterized by a
                  pattern of repetitive or compulsive behavior with heedless indifference to
                  consequences;
         (4)      The defendant is a dangerous offender whose behavior indicates little or no
                  regard for human life, and no hesitation about committing a crime in which
                  the risk to human life is high;
         (5)      The defendant is convicted of two (2) or more statutory offenses involving
                  sexual abuse of a minor with consideration of the aggravating circumstances
                  arising from the relationship between the defendant and victim or victims, the
                  time span of defendant's undetected sexual activity, the nature and scope of
                  the sexual acts and the extent of the residual, physical and mental damage to
                  the victim or victims;

         3
          The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony
convictions, may enhance the sentence range but is no longer a listed criterion. See Tenn. Code Ann. § 40-35-115,
Sentencing Com mission Comme nts.

                                                         -27-
       (6)     The defendant is sentenced for an offense committed while on probation; or
       (7)     The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

        The length of the sentence, when consecutive in nature, must be "justly deserved in relation
to the seriousness of the offense," Tenn. Code Ann. § 40-35-102(1), and "no greater than that
deserved" under the circumstances, Tenn. Code Ann. § 40-35-103(2); see also State v. Lane, 3
S.W.3d 456 (Tenn. 1999).

       In imposing consecutive sentences, the trial court ruled as follows:

       The Court . . . finds that you . . . are a dangerous offender whose behavior indicates
       little or no regard for human life and no hesitation about committing a crime in which
       the risk to human life is high. The imposition of consecutive sentence[s] is necessary
       to protect the public against further criminal conduct by the defendant, and that
       consecutive sentences in this matter reasonably relate to the severity of the offense
       committed.

         In Gray, our supreme court ruled that consecutive sentencing could be imposed upon the
dangerous offender, considered the most subjective of the classifications and the most difficult to
apply, only when other conditions are present: (a) that the crimes involved aggravating
circumstances; (b) that consecutive sentences are a necessary means to protect the public from the
defendant; and (c) that the term reasonably relates to the severity of the offenses. In State v.
Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high court reaffirmed those principles, holding
that consecutive sentences cannot be required of the dangerous offender "unless the terms reasonably
relate[] to the severity of the offenses committed and are necessary in order to protect the public
(society) from further criminal acts by those persons who resort to aggravated criminal conduct."
The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutive
sentencing adopted in State v. Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described
sentencing as a "human process that neither can nor should be reduced to a set of fixed and
mechanical rules." Wilkerson, 905 S.W.2d at 938. The elements adopted in Wilkerson as required
for a finding of dangerous offender are as follows: that the sentences (1) are reasonably related to
the severity of the offenses committed; (2) serve to protect the public from further criminal conduct
by the offender; and (3) are congruent with general principles of sentencing. Id.

         The record supports the imposition of consecutive sentences. First, the term reasonably
relates to the severity of the offenses. Proof adduced at trial shows that the defendant was a willing
participant in a burglary in which two elderly victims were killed. Evidence established that Mr.
Dotts sustained five gunshot wounds and that Mrs. Dotts sustained at least seven gunshot wounds.
The evidence further shows that the defendant participated in the theft of Mrs. Dotts’s purse and Mr.
Dotts’s wallet and business checks. Second, the defendant, while having no prior convictions, does
have an extensive criminal history. At trial, the defendant admitted that he had "broke[n] into some
cars," stolen cars, and previously engaged in a shootout with Gagne. Some of the incidents resulted

                                                -28-
in arrests for three counts of auto theft, three misdemeanor charges of possessing a weapon, simple
possession of marijuana, and possession of drug paraphernalia. In our view, consecutive sentences
are necessary to protect the public against further criminal conduct. Finally, because of the severity
of the offenses and the aggravating circumstances involved, the imposition of consecutive sentences
is congruent with general principles of sentencing.

                                                  X

       As his final issue, the defendant contends that the trial court erred by dismissing his petition
for a writ of error coram nobis. He maintains that the trial court should have considered "newly
discovered" evidence, in particular, the statement of Robert Manning and the testimony of Shannon
Langdon.

        The history of error coram nobis was examined by our supreme court in State v. Mixon, 983
S.W.2d 661 (Tenn. 1999). In that case, our supreme court observed that the writ of error coram
nobis was developed at common law as a procedural mechanism to allow courts to provide relief at
a time when there was no motion for new trial and no right to appeal. Id. at 667 (citing Morgan
Prickett, Writ of Error Coram Nobis in California, 30 Santa Clara L. Rev. 1, 3 (1990)). The writ
permitted "a trial court to reopen and correct its judgment upon discovery of a substantial factual
error not appearing in the record which, if known at the time of judgment, would have prevented the
judgment from being pronounced. Id. (quoting John S. Gillig, Kentucky Post Conviction Remedies
and the Judicial Development of Kentucky Rule of Criminal Procedure 11.42, 83 Ky. L. J. 265, 320
(1994-95)). In order for a petitioner to qualify for relief, he had to demonstrate due diligence in
advancing the claim and seeking the remedy. Id.

        In 1858, our legislature enacted a statute which codified the procedure for seeking the writ
of error coram nobis, expanded the grounds upon which a claim for relief under the writ could be
based, and placed a time limitation upon its filings which provided that "'[t]he writ of error coram
nobis may be had within one year from the rendition of the judgment. . . .'" Id. (quoting Code 1858,
§ 3111; Jones v. Pearce, 59 Tenn. 281, 286 (1873)). At common law, the writ had been limited to
civil proceedings only. Id. at 668.

        In 1955, the writ of error coram nobis was extended to criminal proceedings. Id. The relief
available extended only to "'errors dehors the record and to matters that were not or could not have
been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ
of error, on writ of error, or in a habeas corpus proceeding.'" Id. (quoting 1955 Tenn. Pub. Acts 166).

        In 1971, the adoption of Rule 60 of the Tennessee Rules of Civil Procedure superseded the
statutory writ in civil cases. Id. The remedy remained in criminal proceedings. Id. Tennessee
Code Annotated § 40-26-105 (1997) provides as follows:

               There is hereby made available to convicted defendants in criminal cases a
       proceeding in the nature of a writ of error coram nobis, to be governed by the same
       rules and procedure applicable to the writ of error coram nobis in civil cases, except

                                                 -29-
        insofar as inconsistent herewith. Notice of the suing out of the writ shall be served
        on the district attorney general. No judge shall have authority to order the writ to
        operate as a supersedeas. The court shall have authority to order the person having
        custody of the petitioner to produce the petitioner in court for the hearing on the
        proceeding. The relief obtainable by this proceeding shall be confined to errors
        dehors the record and to matters that were not or could not have been litigated on the
        trial of the case, on the motion for a new trial, on appeal in the nature of a writ of
        error, on writ of error, or in a habeas corpus proceeding. Upon a showing by the
        defendant that the defendant was without fault in failing to present certain evidence
        at the proper time, a writ of error coram nobis will lie for subsequently or newly
        discovered evidence relating to matters which were litigated at the trial if the judge
        determines that such evidence may have resulted in a different judgment, had it been
        presented at the trial. The issue shall be tried by the court without the intervention
        of a jury, and if the decision be in favor of the petitioner, the judgment complained
        of shall be set aside and the defendant shall be granted a new trial in that cause. . . .

Id. (emphasis added.)

       In this case, the trial court denied the petition because it did "not cover material that is newly
discovered." The trial court observed that counsel had acknowledged the receipt of "information
from an individual named Shannon Langdon implicating Eric Steyer and Robert Manning in the
burglary of the residence of and the murder of Lester and Carol Dotts" prior to trial.

        The trial court concluded that "Shannon Langdon received the information she was testifying
to in January of 1996" and the trial did not take place until 1998:

        She testified that she discussed the matter throughly with attorneys for the
        defendant/petitioner prior to trial. This could hardly be subsequently or newly
        discovered evidence if known by this witness and related to the attorneys for the
        defendant/petitioner prior to trial.

               In addition, the witness Eric Steyer was available since he was in the custody
        of the Michigan Department of Corrections during and prior to trial which would
        rendered the hearsay testimony of Langdon inadmissible. The petitioner was hardly
        without fault in failing to present the Court with "newly discovered evidence" and
        should not be permitted to hold this information in abeyance through the trial and
        then present the same under the guise of a Writ of Error Coram Nobis.

         The trial court also concluded that Manning’s statement could be given no credibility, partly
because of his refusal to testify at the hearing; that Steyer denied any involvement in the crimes; and
that the testimony of Jean Lynn Brykalski, the victims’ daughter, established inconsistencies between
the crime scene and Manning's account of the events.




                                                  -30-
        The trial court also referred to the confession of Watts and the defendant’s own inculpatory
statements. Because the issues raised in the petition were available to the defense at the time of trial,
the trial court properly denied relief. A new trial would not be warranted on newly discovered
evidence.

        Accordingly, the defendant's felony murder convictions are reversed and the case is remanded
for a new trial thereon. The defendant's remaining convictions and sentences are affirmed.

                                                         ___________________________________
                                                         GARY R. WADE, PRESIDING JUDGE




                                                  -31-
