        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                        JULY 1996 SESSION
                                                  FILED
                                                    June 11, 1997

                                                  Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk

STATE OF TENNESSEE,        )       C.C.A. No. 02C01-9512-CR-00390
                           )
          Appellee,        )       SHELBY COUNTY
                           )
VS.                        )       Hon. Jon Kerry Blackwood, Judge
                           )
DERENZY TURNER and         )       (Felony Murder and Attempted
                           )        Aggravated Robbery)
VERNON WEST,               )       (Second Degree Murder)
                           )       Nos. 95-00953 and 95-0094
          Appellants.      )




FOR THE APPELLANTS:                FOR THE APPELLEE:

Turner:                            CHARLES W. BURSON
WILLIAM C. GOSNELL                 Attorney General and Reporter
3074 East Street
Memphis, TN 38128                  ROBIN L. HARRIS
                                   Assistant Attorney General
West:                              450 James Robertson Parkway
RANDALL B. TOLLEY                  Nashville, TN 37243-0493
242 Poplar Avenue
Memphis, TN 38103                  JOHN W. PIEROTTI
                                   District Attorney General

                                   REGINALD R. HENDERSON
                                   PHILLIP GERALD HARRIS
                                   Assistant District Attorneys General
                                   201 Poplar Avenue
                                   Suite 301
                                   Memphis, TN 38103-1947




OPINION FILED:__________________



AFFIRMED IN PART AND REVERSED IN PART



CORNELIA A. CLARK,
Special Judge
                                       OPINION

       Defendant Derenzy Turner was indicted for first degree premeditated murder,

murder in the perpetration of a robbery, and attempted aggravated robbery.

Defendant John Donald was indicted for the same offenses. Defendant Vernon

West was indicted for first degree premeditated murder and murder in the

perpetration of a robbery.      Donald’s case was severed from that of his co-

defendants. Defendants Turner and West were tried together.



       Turner was convicted by a jury of felony murder and attempted aggravated

robbery. He was sentenced to life with the possibility of parole on the murder

conviction and to five years for the attempted aggravated robbery conviction. West

was convicted of second degree murder and sentenced to twenty (20) years.1 Both

defendants have appealed as of right.



       Turner does not appeal his conviction for attempted aggravated robbery, but

raises for review six issues addressing the sufficiency of the evidence as to his

felony murder conviction. West raises seven issues for review: (1) sufficiency of the

evidence, (2) whether the jury properly considered the evidence of self defense and

the jury charge on that issue, (3) whether prosecutorial misconduct affected the

verdict, (4) whether trial counsel was ineffective in not calling John Donald, Jr. to the

stand and not moving for severance as to Derenzy Turner; (5) whether including the

word “defendants” in the charge of “criminal responsibility for the conduct of

another”, which was addressed only to co-defendant Turner, confused the jury to

the prejudice of West, (6) whether both co-defendants can be convicted of murder

when one bullet was the cause of death, and (7) whether West’s sentence of twenty

years is excessive. We reverse Turner’s conviction for felony murder, but affirm the

judgment of the trial court in all other respects.

                                           I.


       1
        At the close of the state’s proof the trial judge granted a judgment of
acquittal for West on the charge of felony murder.

                                           2
       We begin with a brief recitation of the facts. The unusual fact pattern is

determinative of some issues in this case. In particular, the question of who fired

the fatal shot was contested strenuously at trial.



       On the day of the murder Vernon West was carrying a 9-mm. Glock handgun

belonging to his fiancee’s nephew. He had possession of the gun because his

fiancee and her sister had asked him to hold it to keep the nephew out of trouble.

West carried the gun underneath the seat in his truck, intending to place it

eventually in his mother’s safe.



       West stopped at Southland Mall to have cleaned several gold chains that he

wore around his neck. Keenan Washington was the shop owner who cleaned the

chains. While waiting for the work to be performed, both West and Washington

were invited by another individual to attend a concert. West accepted, but waited

for Washington to finish his work.



       According to Katrina Bates, Derenzy Turner and John Donald, who were

friends, first saw West at the mall. They noticed the gold chains he wore, and

began making plans to follow West and rob him of the chains. West noticed them

there, but did not know them.



       After Washington’s store closed, he and West left the mall and went to Red

Lobster, where West’s sister worked, to park West’s truck. At that time West took

the 9-mm. gun from his truck because he did not want to leave it at a place where

he knew break-ins had occurred. He carried it with him. While in the parking lot,

West noticed a black car loitering nearby.



       West and Washington next stopped at a liquor store. They then traveled to

the Dodge Store, a service station and convenience market. Washington went into

the station and West went to the outside restroom. According to him, as he exited

the bathroom, John Donald appeared, pointed a pistol at his head, and attempted

to steal his gold chains. At that point Turner drove up to West and Donald in a

                                         3
black Beretta and told Donald to “put the gun up”, apparently because too many

people could see what was happening. There was also an elderly man on the

scene, who tried to proceed to his car. West attempted to move to the car with the

elderly man, but Donald followed him. West then got in the car with the elderly

man, who stopped the vehicle. Donald approached West again. West picked him

up and slammed him down on the hood of the car, continuing to hold him down.

Somehow Donald got loose, took his right hand, and flipped his own gun back over

his head. West believes it landed somewhere in the parking lot.



      Once the altercation was over, West went to Washington’s car. Donald went

toward the Beretta. West was frightened. He did not go into the store to get help.

When he found that the keys were not in the ignition and that Washington had not

returned, he used a speed loader to load the seventeen-bullet, 9-mm. weapon.

According to West, he then walked toward the store to find Washington.



      While West and Donald were fighting near the bathroom, the victim, Vicki

McKinney, and her children were leaving the Dodge Store and entering their car.

Daughter Kenya, who was thirteen, was in the front passenger seat. She saw West

and Donald wrestling. She also saw West leave and load his gun. She saw him

walk first to the back of the car, then toward another area, and then he started

shooting. She testified that it was West who shot first and that the driver of the

black Beretta only returned fire. A gunfight ensued between West and someone

inside the Beretta.



      A little boy apparently informed a store security guard of the altercation going

on outside the store. The security guard, Tyrone Simpson, went to investigate and

got within arm’s length of West. He saw West get a 9-mm. Glock from his car and

start shooting at the Beretta. He shot until he emptied his gun. Simpson also

observed 9-mm. shell casings after the cars left the lot. Simpson testified that the


                                         4
shots returned came from a smaller caliber gun. Simpson never actually saw shots

fired from the black Beretta.



       Michael Sims also testified for the state that West shot first. Sims saw West

(whom he identified as the man with the 9-mm.) get his gun from his car and then

saw him shoot over the McKinney car. He used the McKinney car as a shield when

an individual in the Beretta returned fire. He moved with the car as it moved. Sims

assumed that the person with the 9-mm. fired the most shots because he emptied

his gun out.



       As the shooting continued, the Beretta began to move across the parking lot

as though exiting.



       Vicki McKinney started her car and attempted to drive out of the Dodge

parking lot at about the same time the Beretta was leaving. She drove her car

across the path of the Beretta and into the middle of the exchange of gunfire. She

was shot in the left temple during the shootout, and crashed her car into a pole on

the street a short distance away. She never regained consciousness, and died

several days later in the hospital.



       Kenya McKinney testified that her mother was facing forward when she was

shot and that West was behind them. Kenya said she never ducked, but she did

turn her head as she looked around the scene. She did not see Vernon West ever

point a gun directly at her mother on the left side of the car, but acknowledged that

he also continued to move around. She did not observe him every second.



       A major issue between the two defendants concerned who fired the fatal

bullet. The bullet came from a 9-mm. gun. There were no bullet holes found in the

McKinney car itself. West’s gun was a 9-mm., and, according to the ballistics


                                         5
expert, the markings on the fatal bullet were very similar to those found in West’s

gun. However, the bullet recovered from the body was too mangled to determine

absolutely if it had come from his gun. Nine shell casings from West’s gun were

found on the pavement. West told officers that the only gun shooting back at him

was probably either a .22 or .25 caliber pistol. No other 9-mm. weapons were

recovered.



       Bryan Kelly, a navy veteran with weapons training, testified for West that he

was present and heard shots that sounded like those of a 9-mm. gun coming from

the black Beretta. He saw West run for cover. He never saw or heard him fire a

gun. He never actually saw who fired any shots. On cross examination he admitted

he never came forward to provide this information to the police. He first met West

when they were in jail at the same time, and provided him the same information

about which he testified at trial.



       Ivan Thomas testified for West that someone in the black Beretta shot first,

and that all the shots fired on both sides sounded as though they came from a 9-

mm. gun. He also said West was never on the left side of the Beretta. He heard

a total of eight or nine shots. On cross examination Thomas admitted that he was

more than fifty yards from the site of the shooting at all times.           He also

acknowledged that he gave            a statement to the police immediately after the

shooting. In that statement he said West fired the first shots. He also said the

shooter from the Beretta was probably using a .380 because he shot fourteen times,

and that there was only one person in the Beretta. He also said there was a

passenger in West’s Malibu. He further admitted that he incorrectly stated on which

side of the body the victim was shot.



       West testified on direct examination that his location was different from

where shell casings from his gun were found. He had no idea what gun John

Donald used in the attempted robbery. West said he never saw the McKinney car.

                                             6
He was not certain about the caliber of the gun returning fire from the Beretta. He

admitted during cross examination that in his earlier statement to police he said the

return fire came from a .22 or a .25 pistol.



                                          II.

       Although defendant Turner raises six issues raised on appeal, all allege

essentially the same concern - that the facts presented in this case are not sufficient

to warrant a finding that Turner is guilty of first degree murder in the perpetration of

a robbery or attempted robbery. West also challenges the sufficiency of the

evidence by which he was convicted of second degree murder.



       When an accused challenges the sufficiency of the evidence, we must review

the evidence in the light most favorable to the prosecution in determining whether

“any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979). We do not reweigh or reevaluate the evidence and

are required to afford the state the strongest legitimate view of the proof contained

in the record as well as all reasonable and legitimate inferences which may be

drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions

concerning the credibility of witnesses, the weight and value to be given to the

evidence, as well as factual issues raised by the evidence are resolved by the trier

of fact, not this court. Id.



       A guilty verdict rendered by the jury and approved by the trial judge accredits

the testimony of the witnesses for the state, and a presumption of guilt replaces the

presumption of innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

Because a verdict of guilty removes the presumption of innocence and replaces it

with a presumption of guilt, the accused has the burden in this court of illustrating

why the evidence is insufficient to support the verdict returned by the trier of fact.

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a



                                           7
guilty verdict for lack of sufficient evidence unless the facts contained in the record

and any inferences which may be drawn from the facts are insufficient, as a matter

of law, for a rational trier of fact to find the defendant guilty beyond a reasonable

doubt. Id.



                                     A. Turner

       To support a conviction for felony murder, the state must prove that Derenzy

Turner recklessly killed another person in the perpetration of or attempt to

perpetrate a robbery.     T.C.A. §39-13-202(a)(2). Robbery is defined as “the

intentional or knowing theft of property from the person of another by violence or

putting the person in fear”. T.C.A. §39-13-401(a). Aggravated robbery is robbery

accomplished with a deadly weapon. T.C.A. §39-13-402(1). A criminal attempt

occurs when a defendant, with the culpability required for the underlying offense,

acts with intent to complete a course of action or to cause a result that would

constitute the underlying offense, and the conduct constitutes a substantial step

toward the commission of the offense. T.C.A. §39-12-101(a)(3). Finally, a party is

criminally responsible for an offense committed by another if, acting with requisite

intent to promote or assist the commission of the offense, or to benefit in the

proceeds or results of the offense, the person solicits, directs, aids, or attempts to

aid another person to commit the offense. T.C.A. §39-11-402(2).



       Turner argues that his conviction cannot stand because, to sustain a

conviction for first degree felony murder, the killing must have been done in

pursuance of, rather than collateral to, the robbery. State v. Severs, 759 S.W.2d

935, 938 (Tenn. Crim. App. 1988). The death of the victim must have had a close

connection with the felony and not be separate, distinct, and independent from it.

Id.; Farmer v. State, 201 Tenn. 107, 296 S.W.2d 879, 833 (1956). The issue is

whether the death results from a natural and probable or foreseeable consequence

of the defendant’s action in committing the underlying felony. However, when one

enters into a scheme with another to commit one of the felonies enumerated in the



                                          8
statutes and death ensues, both defendants are responsible for the death

regardless of who actually committed the murder. State v. Brown, 756 S.W.2d 700

(Tenn. Crim. App. 1988), cert. denied, 498 U.S. 834, 111 S.Ct. 102, 112 L.Ed.2d 73

(1990).



       Turner does not attempt to argue that acts committed by fleeing felons after

the commission of the felony may not constitute felony murder. He argues instead

that the theory of proximate cause in relation to felony murder is limited to acts

committed by the accused or his accomplices in the underlying felony, which

actually produced the death. State v. Severs, 759 S.W.2d 935, 938 (Tenn. Crim.

App. 1988). Since the jury apparently found that West, the intended victim of the

robbery, fired the fatal bullet, he contends he cannot be held responsible.



       In Severs this court discussed at some length the “agency” theory of felony

murder. We upheld a trial court’s dismissal of a conviction of first-degree felony

murder because the victim of the attempted larceny was the person who actually

killed the defendant’s co-perpetrator. This court held that the felony-murder rule

may not be applied if a killing is attributable to the act of one other than the

defendant or those associated with him in the original unlawful enterprise. Id..,

citing People v. Washington, 62 Cal.2d 777, 44 Cal. Rptr. 442, 402 P.2d 130 (1965).

To sustain a conviction for felony murder, the death in question must result from the

effort to perpetrate rather than the effort to thwart the felony. Id.



       Although we do not necessarily agree with the Severs analysis, we concede

that Severs would require a reversal of the felony murder conviction if the killing of

Ms. McKinney by the intended robbery victim is deemed to be collateral to the

attempted aggravated robbery. That is not the case here. In finding West guilty of

second degree murder, the jury determined that the attempted robbery ended

before West went back to his car, loaded his weapon, and began firing. The murder

was not committed in pursuance of the earlier attempted robbery but as a separate,



                                           9
knowing act.    Accordingly, though on a different basis, we reverse Turner’s

conviction for felony murder.



       Turner has not appealed his conviction for attempt to commit aggravated

robbery. That conviction stands.



                                       B. West

       The bases on which West challenges the sufficiency of the evidence to

support his conviction of second degree murder are different. He contends first that

since the original police investigation concluded that Turner and Donald had caused

the death of McKinney, he cannot now be held liable. West cites no authority to

support his position and no such authority exists. At the time the initial investigation

was done, the murder weapon had not been identified. At that time West had not

turned in his gun or made a statement to police. Subsequent investigation did

identify West’s gun as providing the fatal bullet, and did identify witnesses who saw

West shoot first. Many murder investigations begin with a focus on one suspect,

only to shift as other evidence is gathered.



       West next contends that he is not the person who fired the fatal bullet. He

relies primarily on testimony from Kenya McKinney that she never saw West point

the gun directly at her mother, and from other persons who stated that West was

on the right side of the car during much of the shootout. West also argues that the

evidence is insufficient because all witnesses did not testify that he shot directly at

the victim, and because the ballistics report was inconclusive.



       However, the testimony was not consistent about where West was at all

times during the shooting. He used the victim’s car as a shield and shot through

and around it. As the car drove out of the parking lot it passed directly between the

two shooters. West’s 9-mm. gun is the only one of that caliber actually identified at

the scene, and is most probably the source of the fatal bullet.



                                          10
       The evidence adduced at trial was sufficient to support a finding by a rational

trier of fact that defendant West, using a 9-mm. weapon from which the deadly

bullet probably came, utilized Vicki McKinney’s car as a shield and shot through it

or around it while initiating a shootout with persons from whom he had successfully

escaped after they attempted to rob him. He continued to shoot at the car as the

victim tried to drive away. The jury found that he committed a knowing killing of

another. See T.C.A. §39-13-210(a)(1). The evidence supports that verdict. This

issue is without merit.



                                         III.



       West next asserts in his next five issues that:

             (1)     the jury did not properly consider the defense of self-
       defense.

              (2)   prosecutorial misconduct occurred when the prosecutors
       (a) “coached” Kenya McKinney’s testimony, (b) failed to interview
       other witnesses once they decided to blame him for the killing, and (c)
       made improper statements during closing arguments.

               (3)    his trial counsel provided ineffective assistance of
       counsel because she failed to move for a severance from Turner and
       failed to call John Donald, Turner’s co-defendant on the attempted
       robbery charge.

             (4)    the jury charge on “criminal responsibility for the conduct
       of another” was confusing and prejudicial because it uses the word
       “defendants” in the plural, but applied only to Derenzy Turner; and

             (5)   he cannot be convicted of a one-bullet homicide
       because both co-defendants have been convicted of some form of
       homicide and because that would create “too much culpability in this
       homicide”.



These issues were not raised in the motion for new trial, thereby denying the trial

judge an opportunity to address or correct them. See T.R.A.P. 36(a). Procedurally,

then, these issues have been waived. T.R.A.P. 3(e); State v. Walker, 910 S.W.2d

381, 388 (Tenn. 1995); State v. Williams, 920 S.W.2d 247, 257 (Tenn. Crim. App.

1995). Due to the gravity of the case we have considered the issues on the merits.

See Walker, 910 S.W.2d at 388. The first, fourth, and fifth issues are clearly



                                         11
without merit. We will discuss briefly the allegations of prosecutorial misconduct

and ineffective assistance of counsel.



                                         IV.

      West alleges three ways in which prosecutorial misconduct adversely

affected the verdict in his case: (1) coaching a young witness; (2) failing to

investigate statements of two witnesses who suggested someone in the Beretta had

a 9-mm. weapon; and (3) making closing arguments laden with “innuendo, antics,

facts not in the record, and misstatements of law”. The test to be applied by

appellate courts in reviewing instances of prosecutorial misconduct is “whether the

improper conduct could have affected the verdict to the prejudice of the defendant”.

Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965).



      During the cross-examination of Kenya McKinney, West’s attorney

questioned her about a prior inconsistent statement she gave police, and about

whether her change in testimony was based on pressure from the prosecutor:



             Q.     . . . And last year when you gave your statement
             you were asked which one of them was firing from this
             vehicle and you said the passenger in the front seat.
             Do you remember that?

             A.     Yes.

             Q.     Okay. Did you say that?

             A.     Yes.

             Q.     Is that true?

             A.     I don’t know which one it was.

             Q.    Do you know why you would have said that last
             year?

             A.     No.

             Q.    Has someone talked to you since you gave this
             statement and said maybe that wasn’t true?

              A.   Maybe what wasn’t true? What you just read?
              Yes.



                                         12
              Q.    Who’s talked to you and said maybe that wasn’t
              true?

              A.     Him.

              Q.     Who are you pointing to?

              A.     Him.

              Q.    Mr. Henderson? This man right here? The
              prosecutor?

              A.     Yes.

              Q.    Okay. Did he talk to you about maybe what you
              said wasn’t correct?

              A.     Yes.

              Q.     Is that why you are saying today you don’t know?

              A.     No.



The phraseology “has someone ... said maybe [the earlier statement] wasn’t true”

came from the attorney, not the thirteen-year-old witness. The witness testified she

did not change her testimony because of that conversation. On redirect, the

following exchange occurred:



              BY MR. HENDERSON


              Q.     Kenya, when we spoke with you, did we tell you
              that what you need to do is come up here and tell the
              truth?

              A.     Yes.

              Q.     Have you done that?

              A.     Yes.

              MR. HENDERSON: No further questions.



It can hardly be prosecutorial misconduct for the district attorney general to ask a

young witness to be sure her testimony is correct or truthful. There is no indication

in this record that the district attorney general asked this witness to testify

untruthfully. This issue is without merit.



                                         13
         West next contends that his right to a fair trial was violated because the state

focused on proof that the fatal bullet came from his 9-mm. gun. He contends the

state had a duty to call Brian Kelly and Ivan Thomas as witnesses because their

testimony was favorable to him. He does not complain that their existence was

withheld from him; in fact, he admits that he met Kelly in jail and sent him to his own

attorney first. Both witnesses were called by West at trial, and their testimony was

fully presented to the jury. Thomas’ testimony at trial was inconsistent with the

statement he originally gave to police. Kelly never fully explained why he did not go

to the police with his information. West’s only discernible complaint is that the

prosecutor should have credited the trial testimony of those witnesses more.



         It is without question that the state is not required to call any particular

witness or to use all witnesses equally available to both sides, except when the

state knowingly conceals a witness with exculpatory testimony. Hicks v. State, 539

S.W.2d 58 (Tenn. Crim. App. 1976); Wright v. State, 512 S.W.2d 650, 656 (Tenn.

Crim. App. 1974). The state did not attempt to conceal these witnesses. This issue

is without merit.



         West last contends that the prosecution’s closing argument contained

several instances of misconduct. In determining whether statements made in

closing argument constitute reversible error, it is necessary to determine whether

the statements were improper and, if so, whether the impropriety affected the

verdict. State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). We are guided by

such factors as the intent of the prosecutor in light of the facts and circumstances

of the case, the strength or weakness of the evidence, the curative measures, if

any, undertaken by the trial court in response to the conduct, and the cumulative

effect of the conduct. Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App.

1976).



         Our Supreme Court has observed that “argument of counsel is a valuable



                                           14
privilege that should not be unduly restricted. Our courts seek to give great latitude

to counsel in expressing their views of the case to the jury”. Smith v. State, 527

S.W.2d 737, 739 (Tenn. 1975). See also State v. Bigbee, 885 S.W.2d 797, 809

(Tenn. 1994).



       West’s argument on this point continues to focus on the assistant district

attorney general’s statements about premeditation, and his emphasis of West’s

liability over that of Turner. Since the jury convicted West only of the lesser offense

of second degree murder, and convicted Turner of first degree (felony) murder, it

seems clear this argument did not prejudice West.



       As to more specific complaints, West notes that the prosecutors in both the

opening and closing portions of their arguments said, “This is the Dodge Store . . .

this ain’t Doge City at high noon . . .”. In the opening portion of the statement, the

prosecutors said:



                It’s not acceptable behavior to ride around with a loaded
                gun and to come into a parking lot full of people. And
                you know it’s full of people. This is the Dodge Store on
                a Friday night on Elvis Presley in 1994. This ain’t
                Dodge City at high noon in 1854. Maybe that was
                acceptable then, but it ain’t now. Why? Because
                innocent people get killed. Innocent people like Ms.
                Vicki McKinney.



No contemporaneous objection was made to this argument. In fact, during her own

closing, West’s counsel made the following responsive remarks:



                        . . . This is a -- I am not sure what Mr. Henderson
                said. This isn’t Dodge City in 1880. I think Mr. Harris at
                one point said this isn’t Abilene, Kansas. Can’t just
                have shootouts on parking lots. People going to get
                killed. Going to be having this all the time.

                I tell you what, it’s not Abilene, Kansas, in 1880.
                Because if it was and two people went out and acted in
                the manner that John Donald and Derenzy Turner did,
                they would have been hung on the spot. They didn’t
                put up with that kind of behavior. And people had a


                                           15
              right to defend themselves. People still have the right
              to defend themselves if they are placed in a situation
              beyond their control.

              This is not some vigilante thing where Vernon West
              went and took the law into his own hands. . . .



The prosecutor then responded in rebuttal as follows:



              Ladies and Gentlemen of the Jury, where we are today
              is at a pivotal crossroads. As Ms. Skahan pointed out,
              this isn’t Dodge City. It isn’t whatever in 1880.

              The use and possession of guns is ingrained in our
              heritage. People used to have to have guns. That’s
              how they defended themselves. They walked out and
              they shot a buffalo. They needed them. They were
              going up the Chisholm Trail riding with a guy named
              Beryl Goodnight. They could have been attacked by
              Comanches or whatever. Or rustlers. They couldn’t
              ride a hundred and fifty miles to --

              MS. SKAHAN: Your Honor, I object. This is outside the
              record.

              MR. HARRIS: She argued to that, Your Honor, about
              they would have strung somebody up in 1990 or 1880
              or whatever.

              THE COURT: All right. Just don’t go too far, sir.

              MR. HARRIS: The point is this, ladies and gentlemen,
              that’s ingrained in our life, the possession of firearms.
              It is. The possession of firearms.

              But we are here today in 1995. Times are different. In
              1850--1880 in Dodge City, they didn’t have 911. They
              didn’t have gas stations, with people pulling up. They
              didn’t have 9 millimeter. Glocks that can fire seventeen
              shots in five seconds.



When taken in context, it appears that all three attorneys utilized the example of the

“lawless” Old West to make points in their arguments. The objection made by

defense counsel appeared to concern not the example itself, but counsel’s detailed

recitation of particular facts about a particular individual traveling on the Chisholm

Trail. The objection was not repeated during the last, simple reference to Dodge

City in 1880. We do not find this colorful use of language to be misconduct on the

part of the prosecutors.


                                         16
       As to the other statements objected to on appeal by the appellant, only a few

were objected to during the trial. None were raised in the motion for new trial. It is

well settled that without a contemporaneous objection to a prosecutor’s statements,

the error is waived. State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996);

State v. Sutton, 562 S.W.2d 820, 825 (Tenn. 1978). We have carefully reviewed

the record, and find no misconduct during argument that might have affected the

jury’s verdict to the defendant’s detriment.



       The issue concerning prosecutorial misconduct is without merit.



                                         V.

       While ineffective assistance of counsel claims may be raised on direct appeal

merely on the record, such a practice is “fraught with peril”. State v. Beard, No.

03C01-9502-CR-00044 (Tenn. Crim. App., Knoxville, September 26, 1996), quoting

Wallace v. State, No. 01C01-9308-CC-00275 (Tenn. Crim. App., Nashville,

September 15, 1994). This is because without an evidentiary hearing it is virtually

impossible to demonstrate prejudice as required to prove such claims. Strickland

v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). Without

proof, we can only speculate as to counsel’s reasoning for her actions.



       Under the Sixth Amendment, when a claim of ineffective assistance of

counsel is made, the burden is upon the petitioner to show (1) that counsel’s

performance was deficient and (2) that the deficiency was prejudicial in terms of

rendering a reasonable probability that the result of the trial was unreliable or the

proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The Strickland standard has been

applied, as well, to the right to counsel under Article I, Section 9 of the Tennessee

Constitution. State v. Melson, 772 S.W.2d 417, 419 n. 2 (Tenn.), cert. denied, 493

U.S. 874, 107 L.Ed.2d 164, 110 S.Ct. 211 (1989).




                                         17
       The standard for determining competency of counsel in Tennessee was first

articulated in Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). We note that the

approach to the issue of the ineffective assistance of counsel does not have to start

with an analysis of an attorney’s conduct. If prejudice is not shown, we need not

seek to determine validity of the allegations about deficient performance. Strickland

v. Washington, 466 U.S. at 697, 104 S.Ct. at 2069.



       Rule 8(c), Tennessee Rules of Criminal Procedure, provides that two or more

defendants may be joined in the same indictment, presentment or information if

each of the defendants is charged with accountability for each offense or if the

offenses charged were part of a common scheme or plan or so closely connected

in respect to time, place and occasion that it would be difficult to separate proof of

one charge from proof of the others. A trial judge may, however, grant a severance

prior to trial if “. . . it is deemed appropriate to promote a fair determination of the

guilt or innocence of one or more defendants”. Tenn. R. Crim. Pro. 14(c)(2)(i).

Severance may also be granted if an out-of-court statement of a co-defendant

makes reference to the defendant but is not admissible against him.           Tenn. R.

Crim. Pro. 14(c)(1)(iii).




       The trials of these two co-defendants involved identical facts and witnesses.

The peculiar facts made it extremely difficult to separate proof about one defendant

or charge from proof of another.         There were no problematic co-defendant

statements. No legal basis exists to conclude that a pretrial motion to sever would

have been granted.          Therefore the failure to file such a motion does not

demonstrate prejudice under Strickland, and the failure to move for a severance

does not establish ineffective assistance of counsel.



       West also complains about his attorney’s failure to call John Donald, the

severed co-defendant, to testify. However, he acknowledges in his brief that there



                                          18
is “no way to forecast whether John Donald, Jr. would have taken his Fifth

Amendment privileges, testified or had to answer some questions”.                The

presentation of this argument highlights the reason why ineffective assistance of

counsel claims should normally be raised by petition for post-conviction relief. A

trial court usually must hear such a witness in order for the appellant to establish

that the failure to call the witness denied critical evidence to the prejudice of the

defendant. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

Neither the trial court nor this court can speculate on what a witness’ testimony

might have been if introduced by defense counsel. Id. West has not met his

burden of proof. This issue is without merit.



                                         VI.

         Finally, West contends that his twenty-year sentence for second degree

murder is excessive. This issue also was not raised in the motion for new trial.

However, we choose to address it on the merits.



         The sentence range for a Class A felony is fifteen (15) to twenty-five (25)

years. The presumptive sentence for the defendant is the minimum sentence in the

range before enhancement or mitigating factors are considered.2 The trial court in

this case sentenced the defendant to twenty (20) years, which is in the middle of the

range.



         When an accused challenges the length, range, or manner of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. §40-35-401(d). If our review reflects that the trial court followed the

statutory sentencing procedure, imposed a lawful sentence after giving due



         2
        T.C.A. §40-35-210. The crime occurred August 26, 1994. The defendant
was sentenced July 21, 1995. Effective July 1, 1995, for crimes committed after
that date, the presumptive sentence for a Class A felony is the mid-point of the
range if there are no enhancement or mitigating factors.

                                         19
consideration and proper weight to the factors and principles set out under the

sentencing law, and made findings of fact that are adequately supported by the

record, then we may not modify the sentence even if we would have preferred a

different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



       However, “the presumption of correctness which accompanies the trial

court’s action is conditioned upon the affirmative showing in the record that the trial

court considered sentencing principles and all relevant facts and circumstances”.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose

of meaningful appellate review,


             the trial court must place on the record its reasons for arriving
       at the final sentencing decision, identify the mitigating and
       enhancement factors found, state the specific facts supporting each
       enhancement factor found, and articulate how the mitigating and
       enhancement factors have been evaluated and balanced in
       determining the sentence. T.C.A. §§40-35-210(f) (1990).


State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).



       In conducting a de novo review of a sentence, this court must consider:

       (a)    the evidence, if any, received at the trial and sentencing hearing;

       (b)    the presentence report;

       (c)    the principles of sentencing and arguments as to sentencing
              alternatives;

       (d)    the nature and characteristics of the criminal conduct involved;

       (e)    any statutory mitigatory or enhancement factors;

       (f)    any statement that the defendant made known on his own behalf; and

       (g)    the potential or lack of potential for rehabilitation or treatment.

Tenn. Code Ann. §§40-35-102, -103, and -210; see State v. Smith, 735 S.W.2d

859, 863 (Tenn. Crim. App. 1987). The burden is on the defendant to show that the

sentence was improper. Sentencing Commission Comments, Tenn. Code Ann.

§40-35-401(d).




                                          20
       In his brief West does not specify what mitigating factors the court failed to

find. The trial court did find as mitigating factors under T.C.A. §40-35-113 (2) that

the defendant acted under strong provocation and (9) that he assisted the

authorities in locating the persons who were involved in the crime.



       West also does not explain which enhancement factors he thinks were

improperly applied. His argument focuses on his contention that he was an

innocent bystander in these events. He recites that 400 community leaders signed

a petition stating that he acted in self-defense. He does not dispute the application

of the enhancement factors found by the trial court under T.C.A. §40-35-114:



              (1)   Defendant has a prior history of criminal convictions and
       criminal behavior.

              (9)    Defendant possessed a firearm during the commission
       of the offense.

                 (13)   The felony was committed while on probation.

             (16) The crime was committed under circumstances under
       which the potential for bodily injury to victims were great and


                 (17)   The person killed was someone other than the intended
       victim.



       All of the enhancing factors found by the trial court are applicable here.

Sentencing is within the discretion of the trial court, and the weight to be given any

particular enhancement or mitigating factor lies within the court’s discretion. State

v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986). Having found the existence of five

enhancement factors and only two mitigating factors, the trial judge acted within his

discretion in imposing a sentence of twenty years. This issue is without merit.



       For the reasons set forth above, the conviction of Derenzy Turner for first

degree felony murder is reversed and dismissed. His conviction for attempted

aggravated robbery is affirmed. The judgment of the trial court as to Vernon West

is affirmed in all respects.


                                          21
                                __________________________________
                                CORNELIA A. CLARK
                                SPECIAL JUDGE




CONCUR:


__________________________________
JOHN H. PEAY
JUDGE


__________________________________
DAVID H. WELLES
JUDGE




                               22
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                               JULY 1996 SESSION




STATE OF TENNESSEE,                 )      C.C.A. No. 02C01-9512-CR-00390
                                    )
              Appellee,             )      SHELBY COUNTY
                                    )
VS.                                 )      Hon. Jon Kerry Blackwood, Judge
                                    )
DERENZY TURNER and                  )      (Felony Murder and Attempted
                                           Aggravated Robbery)
VERNON WEST,                        )      (Second Degree Murder)
                                    )      Nos. 95-00953 and 95-0094
              Appellants.           )




                                     JUDGMENT



       Came the appellants, Derenzy Turner and Vernon West, by counsel and also
came the attorney general on behalf of the state, and this case was heard on the
record on appeal from the Criminal Court of Shelby County; and upon consideration
thereof, this court is of the opinion that there is reversible error as to the appellant
Turner’s conviction for murder in the perpetration of a robbery.

        It is, therefore, ordered and adjudged by this court that the judgment of the
trial court is affirmed as to the appellant Turner’s conviction for attempted
aggravated robbery and as to the appellant West’s conviction for second degree
murder. It is further ordered by the court, pursuant to the opinion filed in this cause
and incorporated herein, that the conviction of appellant Turner for murder in the
perpetration of a robbery is reversed and dismissed.

       Costs of this appeal will be borne two-thirds by the appellants and one-third
by the state.


                                           Per Curiam
                                           Peay, Welles, Clark
