         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 December 12, 2000 Session

             STATE OF TENNESSEE v. CARL PRESTON DURHAM

                Direct Appeal from the Criminal Court for Hamilton County
                Nos. 214467, 214469, and 214471   Stephen M. Bevil, Judge



                                 No. E1999-02640-CCA-R3-CD
                                        April 12, 2001

The defendant, Carl Preston Durham, was indicted for two counts of first degree murder
(premeditated and felony), aggravated robbery, and conspiracy to commit aggravated robbery in
connection with the murder of the victim, Rene Earl Cabirac, Sr. After a nine-day trial, verdicts of
guilt were rendered on all four charges. At the conclusion of the guilt phase of the trial, the trial
court merged the defendant's two first degree murder convictions and the jury sentenced the
defendant to life imprisonment without the possibility of parole. The trial court found the defendant
to be a career offender and imposed a concurrent sentence of 30 years for the aggravated robbery and
a consecutive sentence of 15 years for the conspiracy. The effective sentence is, therefore, life
without the possibility of parole plus fifteen years. Because there was no prejudicial error, the
convictions and sentences are affirmed; however, because the trial court failed to indicate on the
judgment form a merger of the felony murder and the premeditated murder, the judgment is modified
to reflect a single conviction for first degree murder.

            Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed as Modified.

GARY R. WADE, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and
NORMA MCGEE OGLE , JJ., joined.

A. Christian Lanier, III (on appeal), and Edward T. Landis (at trial), Chattanooga, Tennessee, for the
appellant, Carl Preston Durham.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
William Cox, District Attorney General; and Thomas J. Evans, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

       In this appeal as of right, the defendant raises the following issues:

       1.      whether the evidence is sufficient;
       2.      whether the trial court erred by allowing Staci Price, the wife of co-defendant David
               Eric Price, to testify over co-defendant Price's assertion of the marital privilege;
       3.      whether the trial court erred by excluding photographs of Staci Price engaged in
               sexual relations with a police officer;
       4.      whether the trial court erred by allowing testimony regarding the defendant's previous
               criminal history;
       5.      whether the trial judge erred by failing to recuse;
       6.      whether the trial court erred during voir dire by failing to excuse two jurors for cause;
       7.      whether the state committed prosecutorial misconduct by failing to grant the
               defendant immunity and by misplacing certain evidence;
       8.      whether the trial court erred by failing to sever the trial from that of co-defendant
               Price;
       9.      whether the trial court erred by failing to grant a change of venue;
       10.     whether the trial failed to grant the defense a sufficient number of peremptory
               challenges;
       11.     whether the trial court erred by failing to provide the defendant with a list of
               prospective jurors prior to voir dire;
       12.     whether the state violated Batson v. Kentucky, 476 U.S. 79 (1986), during jury
               selection;
       13.     whether the trial court erred by admitting photographs of the body;
       14.     whether the trial court erred by allowing the state to use pretrial statements to refresh
               the recollections of two of its witnesses;
       15.     whether the trial court erred by failing to declare a mistrial after the state referred to
               the defendants as "murderers and thieves;"
       16.     whether the trial court erred in its instructions to the jury on the crime of first degree
               murder; and
       17.     whether the sentence for first degree murder is excessive and whether consecutive
               sentencing was proper.

        On several occasions prior to the robbery and murder of the victim, Rene Earl Cabirac, Sr.,
Staci Price, the wife of the co-defendant, David Eric Price, had heard the defendant say, "Let's go
rob Rene." On May 26 or 27 of 1996, she overheard the defendant and Price discuss robbing the
victim. According to Ms. Price, these discussions were always initiated by the defendant.

        On May 28, 1996, Ms. Price worked from 5:00 p.m. to 10:00 p.m. at Winn Dixie before
returning to the apartment she shared with her husband, their infant son, the defendant, and the
defendant's girlfriend, Jeannie Bliek. Ms. Bliek, who was caring for the child, was the only adult at
home. By 11:00 p.m., when Ms. Price left the apartment to return some movies to a Blockbuster
video store, neither the defendant nor Price had telephoned or returned to the apartment. Shortly
after Ms. Price's return from Blockbuster, the defendant returned, but soon left to look for Price, who
was supposed to meet him at a Goody's department store on Gunbarrel Road. Later, the defendant
telephoned to say that he had not found Price. He reported that he had driven by the victim's home
a couple of times, had seen the victim's dog running loose in the yard, and was beginning to get


                                                  -2-
anxious. At approximately 12:30 a.m., the defendant came back to the apartment to pick up Ms.
Bliek, who agreed to assist in the search.

        According to Ms. Price, her husband called the apartment shortly after Ms. Bliek left. Upon
learning that neither the defendant nor Ms. Bliek was at the apartment, Price asked her for a ride but
directed her not to bring their son. When Ms. Price arrived at the meeting area designated by Price,
she found him driving a gold-colored Jaguar that belonged to the victim. Price directed her to
follow, drove to a residence located behind a church, and parked the Jaguar. Price's clothing was
covered with blood. He explained that he had killed the victim's dog.

        Upon returning to the apartment, Price took a shower and his wife placed the bloody clothing
in the washing machine. Price was dressing when the defendant and Ms. Bliek returned to the
residence. When the defendant asked what had happened, Price replied that things had not
developed as planned. When the defendant learned about Price's bloody clothing, he retrieved the
clothing from the washing machine and placed the items in a plastic garbage bag. Because the
victim's car was parked in his neighborhood, the defendant suggested that they move it. The
defendant also directed Price to change into clothing that would be more appropriate for someone
driving a Jaguar automobile. When the two men left, the defendant was carrying a garbage bag
containing Price's bloody clothing. Later, they returned and informed Ms. Price that they had taken
the Jaguar to Dalton, Georgia, and left it in a hotel parking lot. The defendant also told her that he
had disposed of Price's clothes. Price assured the defendant that he had gotten most of the blood off
of the car and had removed any fingerprints.

         At trial, Ms. Price testified that her husband informed the defendant that he had gone to the
victim's residence and struck the victim on the head with the defendant's tire iron, but that the victim
merely put his hand on the back of his head and remained conscious. Price related that a struggle
ensued and that when he demanded to know the location of the Jaguar keys and conducted a search,
the victim attempted to hide in another room of the house. Price confessed that when he was unable
to find the keys, he kicked open the door where the victim was hiding and stabbed him to death with
a knife. Price revealed that he then poured lighter fluid on the victim's face and unsuccessfully
attempted to burn both the victim and the house.

        According to Ms. Price, her husband and the defendant returned to the victim's residence on
May 29. Because the defendant had driven his car past the victim's house several times the night
before, the two men, who were concerned about appearing "suspicious," obtained permission to use
Ms. Price's vehicle. They arrived back at the apartment with an array of stolen guns, jewelry, and
money, including rolled coins. The defendant kept the paper money, which amounted to
approximately $50. They disposed of the guns through the defendant's brother because "he knew
some connections." Ms. Price recalled that upon returning from the victim's residence, the defendant
stated that one of the victim's fists had been "clenched real tight like he had something in [it]." The
defendant related that he had tried to pry the victim's fist open, but was unable to do so. He advised
Price: "'I hope you didn't lose anything or him grab anything of yours with that hand because I could
not break it, I could not get his fist open for anything.'" That same afternoon, the defendant and Price


                                                  -3-
placed items that Price had handled while at the victim's home, including remote controls, garage
door openers, and paperwork from the Jaguar's glove box, into a small purple duffel bag belonging
to Ms. Price. The defendant stated that he was going to dispose of it and Ms. Price did not see the
duffel bag again.

        Ms. Price also recalled that her husband's friend, Kevin Green, was initially included in the
plan to rob the victim. When Green chose not to participate, however, the defendant threatened
Green in order to keep him quiet: "'Don't say an f-ing word to anybody or I'll kill you.'"

        According to Ms. Price, the defendant attempted to bribe her and her husband in order to
ensure that they did not report his involvement in the crime to police. She recalled that the defendant
agreed to give them his Camaro, to be used as a trade-in, plus $2000 cash to obtain a new vehicle.
On the day that the defendant was supposed to meet them at Economy Honda to complete the
transaction, however, the defendant never appeared.

        Craig Johnson of the Chattanooga Police Department photographed and videotaped the crime
scene. He testified that the body was found in the computer room of the residence. The victim was
missing a shoe and had a torn shirt with missing buttons. There was blood extending down the wall
of the hallway from the computer room into the television room. The victim's eyeglasses, missing
shoe, shirt buttons, and watchband were found in the television room. A finger from a latex glove
was found on a rug in the kitchen.

        The trial testimony of Staci Price was largely corroborated by that of Jeannie Bliek. Ms.
Bliek testified that on the evening the victim was killed, Ms. Price drove herself to work, leaving her
at the apartment with the defendant, co-defendant Price, and the Prices' infant son. She recalled that
the defendant and Price began discussing a robbery of the victim; Price proposed to obtain money
to pay the rent on the apartment, which was overdue. At approximately 8:00 or 9:00 p.m., the
defendant and Price left the apartment, taking a box of latex gloves with them. According to Ms.
Bliek, the defendant was to drive Price to the victim's residence. Ms. Bliek later learned that, along
the way, they used a pay telephone to call the victim "[t]o see if he was home." Ms. Bliek also later
learned that Kevin Green had agreed to accompany them, but "chickened out." Ms. Bliek
remembered that at approximately 10:00 or 10:30 p.m., Staci Price returned to the apartment.
Shortly thereafter, the defendant arrived to take Ms. Bliek to dinner. Ms. Bliek testified that the
defendant was scheduled to meet Price, who would be driving the victim's Jaguar, in the parking lot
of a Goody's department store at 1:15 a.m. After they ate dinner, the defendant dropped off Ms.
Bliek at the apartment. At approximately 2:00 a.m., the defendant called the apartment, explained
that Price had failed to appear at Goody's, and asked her assistance in searching for him. The two
drove to the victim's house and saw that the lights were on, the garage door was open, and the
victim's dog was running loose in the front yard. The victim's car was not there. Ms. Bliek described
the defendant at that time as nervous and scared.

      Unable to find Price, the defendant and Ms. Bliek drove to a pay telephone, called the
apartment, and learned that Price was there. When the defendant and Ms. Bliek arrived at the


                                                 -4-
apartment, Price was wearing the same clothing he had been wearing earlier in the day. Both his
clothing and his shoes were bloody. Ms. Bliek observed scratch marks on Price, as well as a knife
wound on his left arm and a bruise in the center of his chest. While Price took a shower, Ms. Price
put his clothing in the washing machine. Before the wash cycle was complete, however, they
removed the clothes and placed them in a plastic garbage bag. The defendant and Price then left to
take the victim's car to Dalton, Georgia. When they returned, they informed Ms. Bliek that they had
abandoned the stolen car in a motel parking lot with the windows rolled down so that it would be
found quickly.

        Ms. Bliek recalled that Price initially claimed that the blood on his clothing had come from
the victim's dog. After he and the defendant returned from Dalton, however, he confessed that he
had killed the victim. He revealed that he went to the victim's residence and visited with the victim
for awhile. Later, after the victim "caught [him] doing something," he struck the victim over the
head with a tire iron. Price related that he demanded the victim's car keys and that while he was
searching for them, the victim locked himself in his computer room. Price confessed that when he
was unable to find the keys, he kicked in the door to the computer room, stabbed the victim, and set
his face on fire.

        At trial, Ms. Bliek recalled that on the day following the murder, the defendant and Price
returned to the victim's residence to steal guns, jewelry, and money. They also removed things that
Price might have touched, such as remote controls and a cup. Price explained to Ms. Bliek that they
had used gloves while at the victim's home, but that one of his gloves had lost a finger. Price
informed her that he had taken money from the victim's front pocket and wallet. Ms. Bliek recalled
Price saying that the victim had to have been alive when he left on the previous night because his
body was in a different location the next day. The defendant sought the assistance of his brother in
disposing of the guns taken from the victim's residence. Price took the guns to the brother so they
could be sold in the projects. Ms. Bliek accompanied the defendant as he disposed of other items,
such as the remote controls and the cup, by placing them in a purple bag which he threw into a river
in Jasper. The defendant sold the victim's jewelry to his mother for $50 cash and partial forgiveness
of a debt.

         Kevin Green confirmed the testimony of Staci Price and Jeannie Bliek regarding his aborted
role in the plan to rob the victim. Green testified that the defendant and Price arrived at his
apartment between 9:00 and 10:00 p.m. on the night of the murder. When the defendant asked
whether he wanted to participate in the robbery, Green initially agreed and the defendant began
drawing up a plan for the three of them. Later, however, Green backed out because he had a "bad
feeling." He recalled that the defendant and Price assured him that they had "no hard feelings."
Price did ask Green to call his apartment at 12:30 a.m. to make sure that all had gone well. Green
testified that he telephoned the apartment at 12:30 a.m. and spoke with Staci Price, who informed
him that her husband was not there. Two days after the murder, Green recalled asking co-defendant
Price whether anything had gone wrong. Price responded in the affirmative. He then suggested that
Green watch the news to find out what had happened. Green videotaped the newscast that evening
and took it to Price's apartment the next day. Before watching the tape, Price repeatedly talked about


                                                 -5-
the victim in the past tense. Ultimately, he said, "Rene's dead, dude." The defendant and Ms. Bliek,
who had been drinking at a bar, arrived in time to watch the videotape. The defendant drew a pistol,
waved it towards Green's head, and warned him not to say anything. Neither the defendant nor Price
provided Green with any details of the murder.

        Green testified that sometime after police had conducted a search of Price's apartment, he and
Price smoked marijuana together. Green recalled that Price told him that the victim was not
supposed to be home and that "when he went inside, [the victim] saw him and he got caught, and he
just panicked, figured he was busted and said he just snapped." When Green asked about the murder
weapon, Price merely stated that it was gone. Later, Green overheard the defendant ask Price about
the knife; Price answered that it was in a cemetery, buried under the "I" on a tombstone of one of
his relatives. Green testified that he and the defendant went to the cemetery and tried to locate the
knife, but were unsuccessful. Green also recalled that he had been at the victim's residence on two
occasions in early 1996. On one of these occasions, he saw Price steal three rings at the direction
of the defendant. Green described the defendant as having some type of control over Price.
According to Green, the victim had a video camera in his bedroom and caught the theft on tape.
Because the tape displayed only the back of the thief, the victim suspected the defendant of the
crime. When the victim told the defendant's wife that he wanted the rings back or else he would
press charges, the rings were returned.

       On cross-examination by the defense, Green admitted that he had given conflicting
statements to the police. He contended that he had done so out of fear of the defendant.

        Dr. Charles Harlan, who performed the autopsy, concluded that the victim had been stabbed
twenty-three times. The multiple stab wounds to the chest had caused death. Dr. Harlan determined
that the victim sustained numerous other injuries both before and after death. It was his opinion that
the wounds were inflicted in the following order:

       (1) defensive wounds to hands and arms – less than one hour before death;
       (2) head wounds (including brain contusion) – five to twenty minutes before death;
       (3) chest wounds – within five minutes of death; and
       (4) flash burns to face – after death.

        Detective Gary Gaskill of the major crimes division of the Hamilton County Sheriff's
Department, first became involved in the investigation on the day the body was found. He testified
that he interviewed Staci Price, Jeanie Bliek, and Kevin Green on several different occasions. The
defendant drove Ms. Bliek to the sheriff's department for the initial interview. She first claimed that
she, the defendant, and Eric and Staci Price had been at home watching movies on the evening of
the murder. On the next day, after receiving a telephone call from Ms. Bliek's ex-husband, Detective
Gaskill took Ms. Bliek into protective custody. Based on the information then provided by Ms.
Bliek, he obtained a search warrant for the Prices' apartment. Later, Ms. Bliek took Detective
Gaskill to River Canyon Road in Marion County, where, she claimed, the defendant had disposed



                                                 -6-
of the purple duffel bag. The bag and its contents were found downstream. Detective Gaskill also
searched the defendant's car but could not find a tire tool.

        At some point in the investigation, the defendant agreed to cooperate with Detective Gaskill.
Afterward, in several meetings with co-defendant Price, the defendant wore a body wire. After the
second monitored conversation, Detective Gaskill went to the Tennessee-Georgia Memorial
Cemetery in search of the murder weapon, but was unable to find it. When he ultimately arrested
Price for the crime, Price told him that he had killed the victim because "pressure had made him do
it." When he advised Price that his attempt to steam clean his tennis shoes had not removed all of
the victim's blood, Price responded that he "didn't think it did." On cross-examination, Detective
Gaskill acknowledged that he had inspected the defendant's shoes on June 4 and found that their
soles did not match any of the bloody shoe prints found in the victim's computer room. He also
admitted that a search of the defendant's mother's home yielded no items stolen from the victim and
conceded that the defendant's fingerprints were not found in either the victim's home or car.
Detective Gaskill recalled that he had been told about an Exxon gasoline receipt that would have
demonstrated the defendant's whereabouts on the night of the murder. He testified that he had never
received such a receipt.

       Alan Beard, a Chattanooga attorney, testified on behalf of the defendant. He recalled that
he had been hired by the defendant in approximately June 1996, when the defendant was
"negotiating" with the investigating detectives. He also recalled that the defendant had provided him
with a gasoline receipt and that he had delivered it to Detective Gaskill.

        The defendant's ex-wife, Shelly Durham, testified that the defendant called her on the
evening of the murder and that she agreed to meet him at Northgate. She recalled that she met the
defendant sometime between 7:00 and 9:00 p.m. and that they must have stayed "late" because they
saw Northgate close. Using her mother's credit card, Ms. Durham purchased gasoline for the
defendant's car at a nearby Exxon station. Ms. Durham also testified that after the murder, she called
the home of co-defendant Price's parents on behalf of the defendant. While attempting to set up a
meeting between the defendant and Price, she informed Price that the defendant was nervous. She
recalled Price's reply: "Tell [the defendant] he doesn't have anything to worry about, he didn't do
anything." On cross-examination, Ms. Durham acknowledged that her mother's credit card bill,
which she had not produced at trial, would have reflected the Exxon charge on the evening of the
murder.

        John Durham, the defendant's brother, testified that he did not obtain guns from the
defendant's apartment. He denied having sold them at a crack house and also denied that Price had
ever taken him anywhere to sell guns.

         Co-defendant David Eric Price claimed that on the day of the murder, he took his wife to
work at 5:00 or 5:30 in the afternoon and then returned to their apartment. At 7:30 or 8:00 p.m., he
left his son with Jeannie Bliek and accompanied the defendant to Kevin Green's apartment. He
contended that the defendant had discovered that the victim was supposed to be out of town and


                                                 -7-
suggested a burglary of his residence. Price asserted that the defendant asked Green to participate
in the theft, but Green declined. He recalled that after leaving Green's apartment, the defendant
wanted to drive by the victim's house to determine whether he was at home. When they did so, they
observed lights in the house. Price claimed that he and the defendant then returned to their
apartment, arriving at approximately 9:30 p.m. Price testified that he picked up his wife at her place
of employment at 10:00 p.m. He stated that afterward, the two deposited some money in the night
deposit box, stopped at a Taco Bell, and returned to their apartment by 11:00 p.m. The defendant
and Ms. Bliek had departed in the interim. Price claimed that he then drove to Blockbuster Video
to return movies, returned to his apartment, and watched television until bedtime. According to
Price, he was later awakened by knocking at the door. When he answered, he found the defendant,
whom he described as covered in blood. Price contended that the defendant took a shower,
explained that things did not "go right" at the victim's residence, and asked Price to help pick up
some things there. Price claimed that he and the defendant drove to the victim's house between 4:30
and 5:00 a.m. He stated that upon their arrival, the defendant informed him that the victim's Jaguar
was in the garage and that the keys were on the console. Price contended that the defendant asked
him to follow in the Jaguar and that they drove to Dalton, Georgia. He testified that he parked the
Jaguar in a motel parking lot and left the windows open and that on the return trip, the defendant
acknowledged that he had "lost his cool" and "gone off." Price claimed that the defendant warned
him not to reveal the circumstances, else he would harm his wife and child.

        Price testified that when he and the defendant arrived back at the apartment at about 7:00
a.m., he called his employer to report that he would not be at work because he did not have a
babysitter for his son. He claimed that later, when the defendant asked him to return to the victim's
residence, he declined. He explained that he drove to the victim's residence only when the defendant
again threatened his family. When they arrived at about 11:00 a.m. or noon, the defendant had latex
gloves for the men to wear. Price acknowledged that he found a number of guns downstairs and
admitted loading the weapons into his car. Price stated that when he re-entered the house, he walked
upstairs and saw blood in the television room. He claimed that at that point, the defendant emerged
from the victim's bedroom carrying several items in his hands and directed him to kick open the
computer room door, whereupon he found the body of the victim. Price claimed that when they
returned to the apartment the defendant acknowledged having killed the victim in a fight after having
been discovered during a theft.

       The defendant did not testify at trial. At the conclusion of their deliberations, the jury found
both the defendant and the co-defendant guilty on all counts.1




         1
          The defendant's case w as severed from that of co-defend ant Price for purp oses of appeal. Co -defe ndan t Price 's
case has already proceeded to conclusion on direct appeal. This court affirmed the judgment of the trial court, as
modified, to reflect a m erger of th e defend ant's two first d egree m urder co nvictions , on July 2 5, 2000 . See State v.
David Eric Price, No. E1999-02684-CCA-R3-CD (Tenn. Crim. App., at Knoxville, July 25, 2000). The Tennessee
Supreme Court denied co-defendant Price's application for permission to appeal on February 26, 2001 (Tenn. 200 1).



                                                             -8-
                                                    I

         Initially, the defendant claims that the evidence is insufficient to support his convictions and
his first degree murder sentence of life without the possibility of parole. The defendant asserts that
his convictions are not consistent with the evidence and that the state's witnesses were not credible.
In our view, however, the evidence supports the jury's verdict, including the defendant's sentence of
life without the possibility of parole.

         On appeal, the state is entitled to the strongest legitimate view of the evidence and all
inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978).
The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of
conflicts in the evidence are matters entrusted exclusively to the jury as the trier of fact. Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). 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). This court may neither reweigh nor reevaluate the
evidence; nor may this court substitute its inferences for those drawn by the trier of fact. Liakas v.
State, 199 Tenn. 298, 286 S.W.2d 856, 859 (Tenn. 1956). The evidence is sufficient when a rational
trier of fact could conclude that the defendant is guilty beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307 (1979). When there is a challenge to the sufficiency of the evidence, the
defendant has the burden of demonstrating that the evidence is not sufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

       The defendant was convicted of first degree murder, aggravated robbery, and conspiracy to
commit aggravated robbery. The crime of first degree murder is defined in Tenn. Code Ann. § 39-
13-202:

                 (a) First Degree murder is:
                 (1) A premeditated and intentional killing of another;
                 (2) A killing of another committed in the perpetration of or attempt to
        perpetrate any . . . robbery, burglary, theft, . . . .
                 (b) No culpable mental state is required for conviction under subdivision
        (a)(2) . . . except the intent to commit the enumerated offenses or acts in such
        subdivisions.
                                            *       *          *
                 (d) As used in subdivision (a)(1) "premeditation" is an act done after the
        exercise of reflection and judgment. "Premeditation" means that the intent to kill
        must have been formed prior to the act itself. It is not necessary that the purpose to
        kill pre-exist in the mind of the accused for any definite period of time. The mental
        state of the accused at the time the accused allegedly decided to kill must be carefully
        considered in order to determine whether the accused was sufficiently free from
        excitement and passion as to be capable of premeditation.



                                                  -9-
Tenn. Code Ann. § 39-13-202(a) – (b), (d) (Supp. 1995). Robbery is defined as "the intentional or
knowing theft of property from the person of another by violence or putting the person in fear."
Tenn. Code Ann. § 39-13-401(a) (1991). A robbery becomes aggravated under the following
circumstances:

              (a) Aggravated robbery is robbery as defined in § 39-13-401:
              (1) Accomplished with a deadly weapon or by display of any article used or
       fashioned to lead the victim to reasonably believe it to be a deadly weapon; or
              (2) Where the victim suffers serious bodily injury.

Tenn. Code Ann. § 39-13-402(a) (1991).

        There is ample evidence in the record to support the defendant's convictions for first degree
murder and aggravated robbery. Kevin Green testified that on the evening of the murder, the
defendant and co-defendant Price had formulated a plan to rob the victim. Staci Price testified that
co-defendant Price admitted entering the victim's residence and attacking the victim with a tire tool
provided by the defendant. She stated that Price could not find the victim's car keys, armed himself
with one of the victim's kitchen knives, and forcibly entered a locked room in which the victim had
taken refuge. Ms. Price testified that her husband continued his attack and then left the residence
in the victim's Jaguar automobile. There was considerable evidence in this joint trial that Price
intentionally and premeditatedly killed the victim and that the murder was committed during the
perpetration of an aggravated robbery. Because Price used deadly weapons, a tire iron and a knife,
during the robbery of the victim, the evidence is sufficient to support the aggravated robbery
conviction.

        The main thrust of the defendant's argument is that the evidence is insufficient to support his
convictions because co-defendant Price was solely responsible for the robbery and murder. The
defendant asserts that the proof did not establish that he entered the victim's residence or participated
in the killing of the victim. He points to the fact that his blood was not found in the victim's
residence or car and the fact that his shoe prints did not match any of those found by police in the
victim's residence. Nevertheless, a person may be held criminally responsible for an offense
committed by another if, "[a]cting with intent to promote or assist the commission of the offense,
or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts
to aid another person to commit the offense." Tenn. Code Ann. § 39-11-402(1) (1991). Here, there
was evidence that the defendant devised the plan to rob the victim; provided transportation to the
victim's home for co-defendant Price; armed Price with a tire tool; arranged to meet Price after the
robbery; returned to the victim's residence with Price; stole various items of value from the victim's
home; profited from the disposal of the victim's stolen property; and concealed evidence of the
crime. Under these circumstances, the evidence is sufficient to establish that the defendant was
criminally responsible for the actions of Price. Moreover, co-defendant Price blamed the defendant
for the robbery and murder. While the jury more likely than not accredited the versions of events
provided by Ms. Price and Ms. Bliek (especially in view of the conspiracy convictions), its verdict



                                                  -10-
was general and the testimony offered by Price, as corroborated by other circumstances, would have
been sufficient to establish that the defendant was primarily responsible for the murder.

       The inchoate offense of conspiracy is defined in Tenn. Code Ann. § 39-12-103:

               (a) The offense of conspiracy is committed if two (2) or more people, each
       having the culpable mental state required for the offense which is the object of the
       conspiracy and each acting for the purpose of promoting or facilitating commission
       of an offense, agree that one (1) or more of them will engage in conduct which
       constitutes such offense.
                                         *        *       *
               (e)(1) Conspiracy is a continuing course of conduct which terminates when
       the objectives of the conspiracy are completed or the agreement that they be
       completed is abandoned by the person and by those with whom the person conspired.
       The objectives of the conspiracy include, but are not limited to, escape from the
       crime, distribution of the proceeds of the crime, and measures, other than silence, for
       concealing the crime or obstructing justice in relation to it.

Tenn. Code Ann. § 39-12-103(a), (e)(1) (1991). In our view, the evidence presented is sufficient to
support a finding beyond a reasonable doubt that the defendant was guilty of conspiracy to commit
aggravated robbery. There was testimony that the defendant and co-defendant Price planned to "rob"
the victim on the evening of the murder. Jeannie Bliek testified that both the defendant and co-
defendant Price admitted calling the victim from a pay phone prior to the commission of the crime
in order to determine whether he was home. Moreover, co-defendant Price testified that he and the
defendant had driven past the victim's home and observed lights on inside at approximately 8:30 or
9:00 p.m. on the evening of the murder. Co-defendant Price's possession of a tire iron when he
entered the residence implies that he anticipated a confrontation. Nothing in the record suggests that
the tire iron was ever intended to be used for any purpose other than a possible assault.

       Additionally, the defendant contends that the evidence does not support his sentence of life
without parole. Specifically, he argues that all of the aggravating circumstances applied to his
murder sentence should have been applied solely to co-defendant Price. In our view, the jury's
sentence was proper.

        When a defendant is convicted of first degree murder in a case in which the state is not
seeking the death penalty, two sentencing options exist: life imprisonment and life imprisonment
without the possibility of parole. Tenn. Code Ann. § 39-13-204 (Supp. 1995). A life sentence is
mandatory if, at the conclusion of the sentencing hearing, the finder of fact concludes that the state
has not proven any statutory aggravating circumstances beyond a reasonable doubt. Tenn. Code
Ann. § 39-13-204(f)(1) (Supp. 1995). If the finder of fact determines that the state has proven one
or more statutory aggravating circumstances, but concludes that the circumstances do not outweigh
the mitigating circumstances beyond a reasonable doubt, a sentence of either life imprisonment or
life imprisonment without the possibility of parole may be imposed. Tenn. Code Ann. §


                                                -11-
39-13-204(f)(2) (2000 Supp.). In determining which sentence to impose, the statute directs that the
fact finder must "weigh and consider" the aggravating and mitigating circumstances. Id. The statute
does not require the finder of fact to determine that the aggravating circumstances outweigh the
mitigating circumstances by any specific level of proof in order to impose a sentence of life
imprisonment without the possibility of parole. Id.

       In recognition of the substantial discretion afforded the finder of fact in determining which
sentence to impose, the statute governing appellate review declares that "[a] sentence of
imprisonment for life without the possibility of parole shall be considered appropriate if the state
proved beyond a reasonable doubt at least one (1) statutory aggravating circumstance contained in
§ 39-13-204(i), and the sentence was not otherwise imposed arbitrarily, so as to constitute a gross
abuse of . . . discretion ." Tenn. Code Ann. § 39-13-207(g). A misapplication of an aggravating
circumstance in a life without parole case is not a constitutional violation because there is no death
sentence. State v. Harris, 989 S.W.2d 307, 317 (Tenn. 1999).

        Although this case is not a capital case, the same aggravating circumstances necessary for
the implementation of the death penalty must be considered. See State v. Stacy Dewayne Ramsey,
No. 01C01-9412-CC-00408 (Tenn. Crim. App., at Nashville, May 19, 1998), perm. app. denied,
(Tenn., Jan. 25, 1999) (upholding the vicarious application of the avoiding arrest or prosecution
aggravating circumstance with regard to a life without parole sentence because the defendant actively
participated in the planning and nature of the killing). In determining whether any of the aggravating
circumstances applied to co-defendant Price's murder sentence might be vicariously applied to that
of the defendant, the court must consider, under the guidelines of Tison v. Arizona, 481 U.S. 137,
158 (1987), whether the defendant's degree of participation in the felony was "major" and whether
he displayed "reckless indifference to human life." If so, a particular aggravating circumstance may
be applied. Whether a statutory aggravating circumstance might vicariously apply also depends upon
the specific language of the statute. State v. Johnson, ___ S.W.3d ___, No. W1997-00024-SC-R11-
PD, slip op. at 11-12 (Tenn. Jan. 19, 2001). Some aggravating circumstances address the nature and
circumstances of the crime; others pertain to the particular conduct of the defendant in reference to
the crime. See generally Tenn. Code Ann. § 39-13-204(i)(1) through (14).

       In this case, the trial court charged the jury with four aggravating circumstances under Tenn.
Code Ann. § 39-13-204(i) that could be applied in determining the murder sentences of both co-
defendant Price and the defendant:

       (5)     that the murder was especially heinous, atrocious, or cruel in that it involved torture
               or serious physical abuse beyond that necessary to produce death;
       (6)     that the murder was committed for the purpose of avoiding, interfering with, or
               preventing a lawful arrest or prosecution of the defendant or another;
       (7)     that the murder was knowingly committed, solicited, directed, or aided by the
               defendant, while the defendant had a substantial role in committing or attempting to
               commit a robbery; and
       (13)    that the defendant knowingly mutilated the body of the victim after death.


                                                -12-
Tenn. Code Ann. § 39-13-204(i)(5) – (7), (13) (Supp. 1995). The jury, however, found and applied
only Tenn. Code Ann. § 39-13-204(i)(5), (6), and (7). The jury was also charged with three
mitigating circumstances to be applied:

         (1)      that the defendant was an accomplice in a murder committed by another person and
                  the defendant's participation was relatively minor;
         (2)      the youth of the defendant at the time of the crime; and
         (3)      any other mitigating factor which was raised by the evidence produced by either the
                  prosecution or the defense at either the guilt or sentencing hearing.

Tenn. Code Ann. § 39-13-204(j)(5), (7), (9) (Supp. 1995).

        In our view, the defendant's degree of participation in the robbery of the victim was "major"
and the defendant's actions displayed "reckless indifference to human life." See Tison, 481 U.S. at
158. The defendant participated in the development of the robbery plan, provided transportation and
a weapon to co-defendant Price in the commission of the crimes, and profited from the illegal acts.
Moreover, he was prominently involved in the disposal of inculpatory evidence. In these
circumstances, any particular aggravating circumstance may be applied, depending upon the specific
language of the statute. Here, there was sufficient evidence for the jury to apply aggravating
circumstances (5), (6), and (7) in the determination of the sentence.

         Recently, in Owens v. State, 13 S.W.3d 742, 763 (Tenn. Crim. App. 1999), this court ruled
that the “especially heinous, atrocious, or cruel” aggravating circumstance is vicariously applicable2
to a defendant who did not actually kill the victim. This court observed that “the vicarious
application of an aggravating circumstance, where statutorily permissible, does not trespass upon the
mandates of either the Eighth Amendment of the United States Constitution or Article 1, Section 16
of the Tennessee Constitution.” Id. at 760. This court further observed as follows:

         The plain language of this provision, “read in context of the entire statute, without
         any forced or subtle construction which would extend or limit its meaning, . . . clearly
         focuses on the murder itself and not the defendant’s own actions or intent. . . . After
         examination of this issue, we conclude that it was the legislature’s intent that the
         (i)(5) aggravator impute liability upon a defendant for conduct for which he or she
         is criminally responsible. This aggravator, by its plain language, clearly encompasses
         consideration of the nature and circumstances of the crime itself, which would permit
         such a vicarious application. . . . The emphasis in the (i)(5) aggravator is on the
         manner of killing, not on the defendant’s actual participation.




         2
           For purposes of analysis, it is our inference that the jury found that co-defendant Price committed the actual
killing of the victim. As indicated, however, there is evidence in the record upon which the jury could have found that
the defen dant actu ally com mitted the killing and that co-de fendan t Price assisted in the crime s.

                                                         -13-
Id. at 763 (emphasis in original) (citations omitted). Thus, the trial court properly instructed the jury
that this aggravator could be considered in the determination of the sentence and the nature of the
killing warranted vicarious application.

        Likewise, the trial court properly instructed the jury on the application of Tenn. Code Ann.
§ 39-13-204(i)(6), that the murder was committed to avoid, interfere with, or prevent a lawful arrest
or prosecution. Unlike the (i)(5) aggravator, the (i)(6) circumstance does focus on the intent of the
killer. Nevertheless, the plain language of this statute recognizes that one other than the killer may
profit from that intent: “The murder was committed for the purpose of avoiding, interfering with,
or preventing a lawful arrest or prosecution of the defendant or another.” Tenn. Code Ann. § 39-13-
204(i)(6). It is our view that the legislature intended the aggravating circumstance to be applied
where, as here, the murder was committed pursuant to a conspiracy, all members of the conspiracy
would have benefitted from the crime, and the defendant was a conspirator. In this case, the
defendant was convicted of first degree murder for a killing committed pursuant to a conspiracy in
which there were two or more participants. The jury found that the (i)(6) aggravator was applicable
to the sentence of co-defendant Price. The actions of co-defendant Price in attempting to conceal
the crime by killing the victim were in furtherance of the conspiracy. Furthermore, the conspiracy
continued beyond the time of the murder. The defendant and Price returned to the victim’s residence
not only to steal personal property but also to remove any items which might contain Price's finger
prints. The defendant and co-defendant Price then worked together to dispose of the stolen goods
and to further conceal evidence of the crimes. Had they been successful in avoiding arrest or
prosecution, each would have benefitted. Thus, the (i)(6) aggravating circumstance was properly
applied.

        The last aggravating circumstance applied by the jury is defined in Tenn. Code Ann. § 39-13-
204(7): that the murder was knowingly committed, solicited, directed, or aided by the defendant,
while the defendant had a substantial role in committing or attempting to commit a robbery. In our
view, the defendant’s conduct qualified as substantial. He planned the robbery and assisted in its
commission. The defendant provided Price with a tire iron which was used as a weapon against the
victim.

        Only one aggravating circumstance is necessary to warrant a sentence of life imprisonment
without parole. In our view, the jury did not abuse its discretion by the application of any of the
three aggravating circumstances at issue. See Tenn. Code Ann. § 39-13-207(g).

                                                   II

        The defendant next claims that the trial court erred by admitting the testimony of Staci Price
over co-defendant Price's assertion of the marital communications privilege. The state maintains that
the defendant lacks standing to raise this issue. We agree with the state.

       The statute defining Tennessee's marital communications privilege specifically provides for
invocation of the privilege by either spouse involved in the confidential communications:


                                                  -14-
       In either a civil or criminal proceeding, confidential communications between
       married persons are privileged and inadmissible if either spouse objects. . . .

Tenn. Code Ann. § 24-1-201(b) (Supp. 1999) (emphasis added). The statute makes no reference to
the assertion of the privilege by third parties.

        The defendant argues that he should have standing to raise the marital communications
privilege issue because he was tried as a co-defendant of Price, who was a holder of the privilege.
He cites no authority, however, in support of his argument. In our view, an expansion of the marital
communications privilege to this extent would do little to advance the privilege's goal of fostering
"the sacredness of the home and the peace of families." See McCormick v. State, 135 Tenn. 218,
186 S.W. 95, 97 (1916). Moreover, even if this court were to determine that the defendant had
standing to raise this privilege issue, the waiver doctrine would apply due to the defendant's failure
to object to Staci Price's testimony at trial. See Tenn. R. App. P. 36(a). This issue is without merit.

                                                  III

       The defendant next asserts that the trial court erred by excluding photographs of Staci Price
engaged in sexual relations with a police officer. He completely fails to address this issue in his
brief. Absent any citation to the record, supportive authority, or argument, the issue is waived.
Tenn. Ct. Crim. App. R. 10(b).

                                                  IV

       As his fourth issue, the defendant contends that the trial court erred by admitting a portion
of his recorded conversation with co-defendant Price wherein Price makes reference to the
defendant's prior criminal history. He argues that the statement was admitted in violation of Rule
609 of the Tennessee Rules of Evidence. In response, the state maintains that the defendant has
waived the issue by failing to file a pre-trial motion to suppress the recording.

        Initially, the statement that is the basis for the claim of error was actually made by the
defendant, not by co-defendant Price. During a conversation at Standifer Gap Park shortly after the
murder, the defendant, who was at that point cooperating with the sheriff's department in the
investigation, attempted to elicit inculpatory statements from co-defendant Price. The following is
an excerpt from the exchange:

       DURHAM:
       You're a murderer, Eric, and you scare me. Do you understand what I'm saying. I've
       had friends that were murderers before, dude, but we were in the penitentiary
       together, you know what I'm saying.

       PRICE:
       (unintelligible) if you never talk to me again, I'll understand.


                                                 -15-
       Because the evidence of the defendant's prior criminal history was not offered to impeach the
defendant, Tennessee Rule of Evidence 609 is not applicable. See Tenn. R. Evid. 609(a) ("For
purposes of attacking the credibility of a witness, evidence that the witness has been convicted of
a crime may be admitted . . . ."). Rather, this issue is controlled by Tennessee Rule of Evidence 404,
which provides in pertinent part as follows:

               (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts
       is not admissible to prove the character of a person in order to show action in
       conformity with the character trait. It may, however, be admissible for other
       purposes. The conditions which must be satisfied before allowing such evidence are:
               (1) The court upon request must hold a hearing outside the jury's presence;
               (2) The court must determine that a material issue exists other than conduct
       conforming with a character trait and must upon request state on the record the
       material issue, the ruling, and the reasons for admitting the evidence; and
               (3) The court must exclude the evidence if its probative value is outweighed
       by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

        Generally, this rule is one of exclusion but there are, as stated, exceptions. See State v.
Parton, 694 S.W.2d 299 (Tenn. 1985); Bunch v. State, 605 S.W.2d 227 (Tenn. 1980); see also State
v. Rickman, 876 S.W.2d 824 (Tenn. 1994). Most authorities suggest that trial courts take a
"restrictive approach of 404(b) . . . because 'other act' evidence carries a significant potential for
unfairly influencing a jury." Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[8][e] (4th ed.
2000). That perhaps best explains the traditional posture of the courts that any testimony of prior
bad acts by a defendant, when used as substantive evidence of guilt of the crime on trial, is not
usually permissible. Parton, 694 S.W.2d at 302-03. The exceptions to the rule are when the evidence
is offered to prove the motive of the defendant, his identity, his intent, the absence of mistake,
opportunity, or a common scheme or plan. Bunch, 605 S.W.2d at 229. Our supreme court has stated
as follows:

       [I]f evidence that the defendant has committed a crime separate and distinct from the
       one on trial is relevant to some matter actually in issue in the case on trial, and if its
       probative value as evidence is not outweighed by its prejudicial effect upon the
       defendant, then such evidence may be properly admitted.

State v. Howell, 868 S.W.2d 238, 254 (Tenn. 1993); see also State v. Zagorski, 701 S.W.2d 808
(Tenn. 1985); State v. Taylor, 669 S.W.2d 694 (Tenn. Crim. App. 1983). When the trial court
substantially complies with the requirements of Rule 404(b), we review the trial court's
determination for an abuse of discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

       Initially, this issue has not been waived. While the defendant did not file a pre-trial motion
to suppress the recording, he sought to exclude that portion of the recording pertaining to his prior


                                                 -16-
criminal history. Defense counsel raised the issue when the state proffered the recording into
evidence. Tennessee Rule of Evidence 404(b) contemplates the resolution of such issues in a jury-
out proceeding in advance of the admission of the evidence.

       The following exchange took place during the trial but out of the presence of the jury:

               [DEFENSE COUNSEL]: I guess I was a little bit asleep at the wheel. That
       next line obviously is bothersome to me, Eric [Price] says about my client being in
       the penitentiary. I guess I was asleep at [the] wheel when I read through the thing
       and just missed that completely. I'm not sure what we can do about it now.
               THE COURT: I think it's just a part of the conversation. As part of that
       conversation, it is admissible. It may be prejudiced, but it is admissible.

Although the defendant was entitled to a jury-out hearing on the admissibility of the evidence, he
did not seek one. In our view, the evidence that the defendant had previously been in the penitentiary
should have been excluded. It was not relevant to any of the issues involved in the trial and it had
no probative value whatsoever. Moreover, the defendant's statement, along with co-defendant Price's
response, could have been redacted from both the recording and the transcript.

        Any error, however, was harmless in the context of the entire trial. The most that could have
been gleaned from the statement was that the defendant had been previously incarcerated. No further
information regarding the defendant's criminal history was presented. The statement was a single
line in a lengthy recording. Proof of guilt was overwhelming. Thus, the defendant is not entitled
to relief on this issue. See Tenn. R. Crim. P. 52(a); State v. Carlos Demetrius Harris, No. E2000-
00718-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Jan. 4, 2001) (holding that any error in failing
to redact detective's remark regarding defendant's suspended license from defendant's statement was
harmless).

                                                 V

        Next, the defendant contends that the trial judge, who had approved 30 guilty pleas entered
by the defendant in 1991, should have recused himself due to bias. In response, the state correctly
points out that the record offers no suggestion of partiality on the part of the trial judge.

        Article VI, § 11 of the Tennessee Constitution provides that "[n]o Judge of the Supreme or
Inferior Courts shall preside on the trial of any cause in the event of which he may be interested . .
. ." The right to a fair trial by an impartial judge is further guaranteed by Article I, § 17 of the
Tennessee Constitution, as well as by the Due Process Clause of the United States Constitution.
State v. Benson, 973 S.W.2d 202, 205 (Tenn. 1998); see also In re Throneberry, 754 S.W.2d 633,
636 (Tenn. Crim. App. 1988). "[T]he denial of [the] right to an impartial judge defies analysis by
harmless error standards and requires automatic reversal." Benson, 973 S.W.2d at 208.




                                                -17-
        "The general rule is that a trial judge should recuse himself whenever his impartiality can
reasonably be in question." State v. Cash, 867 S.W.2d 741, 749 (Tenn. Crim. App. 1993). A trial
judge's denial of a motion to recuse will be upheld absent a showing of abuse of discretion. Id.

         Initially, the record in this case demonstrates that while the defendant had approximately 35
prior convictions for aggravated burglary and theft, only four of those convictions were entered in
1991. Furthermore, the defendant failed to file a motion to recuse prior to trial. Thus, he has waived
his right to challenge the trial judge's qualification to hear the case. See Woodson v. State, 608
S.W.2d 591, 593 (Tenn. Crim. App. 1980). Finally, the defendant has failed to cite any specific
instances of bias on the part of the trial judge. He does not direct this court to any improper rulings,
remarks, or conduct by the trial judge that could be attributed to partiality. See State v. Hurley, 876
S.W.2d 57, 64 (Tenn. 1993). In our view, the record simply does not support the petitioner's claim
of bias.

                                                   VI

       The defendant next asserts that the trial court erred during jury selection by failing to excuse
for cause prospective Jurors Voccio and Lang, both of whom served on the petit jury. The state
contends that the defendant waived any objections to these two jurors by failing to issue challenges
during the selection process.

         Article I, Section 9 of the Tennessee Constitution guarantees "the right to . . . a speedy public
trial[] by an impartial jury." "The right of 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." A party may challenge a
prospective juror for cause on any ground provided by law or if the "prospective juror's exposure to
potentially prejudicial information makes the person unacceptable as a juror." Tenn. R. Crim. P.
24(b). 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 a clear showing of an abuse
of discretion." Burns v. State, 591 S.W.2d 780, 782 (Tenn. Crim. App. 1979).

        Initially, the state is correct in its assertion that the defendant waived the issue. "[A]
defendant must not only exhaust his peremptory challenges, but he must also challenge or offer to
challenge an additional prospective juror in order to complain on appeal that the trial judge's error
in refusing to excuse for cause rendered his jury not impartial." State v. Doelman, 620 S.W.2d 96,
100 (Tenn. Crim. App. 1981). Here, while the defendant used all of his peremptory challenges, he
neither challenged nor offered to challenge either Juror Voccio or Juror Lang. Thus, he simply failed
to preserve the issue.

       Nevertheless, the defendant asserts that Juror Voccio should have been excused for cause
because she previously dated police officers:


                                                  -18-
               [COUNSEL FOR THE STATE]: All right. Is there anyone on the jury who
       either yourself, close friend, or relative have been involved in law enforcement as
       being an officer?
                                           *       *       *
               PROSPECTIVE JUROR VOCCIO: I think – I'm not sure if I completely
       understood your question, but I have several friends who are attorneys and I used to
       date police officers way back when, so . . .
               [COUNSEL FOR THE STATE]: All right. Any reason that's going to affect
       your ability to sit on this case, bias, prejudice one way or the other?
               PROSPECTIVE JUROR VOCCIO: No.
               [COUNSEL FOR THE STATE]: You may have bias or prejudice about
       lawyers, but I'm more concerned about police officers because I don't think any of us
       are going to be testifying.
               PROSPECTIVE JUROR VOCCIO: No, sir.

Juror Voccio, a female, did not indicate any bias in favor of police officers or any prejudice against
the defense. "Way back when" suggests that her dates with any officers had occurred well before
the trial in this case. By the time of trial, she was married to an estimator employed by Standard
Iron. The record simply does not support any basis for disqualification.

         The defendant's challenge to Juror Lang also lacks merit. In this appeal, the defendant asserts
that he "is convinced that he 'bounced'" Juror Lang from Diamonds & Lace Showbar, where he was
employed prior to the murder. The record, however, is devoid of any suggestion of such an
occurrence. Juror Lang did not voice any recognition of the defendant when asked about any prior
acquaintance. The defendant did not offer testimony out of the prospective jury's presence that he
had had a prior negative interaction with Juror Lang. The only mention of the defendant's alleged
encounter with Juror Lang at Diamonds & Lace is in his appellate brief. Information contained in
a brief is not a part of the appellate record. See, e.g., State v. Matthews, 805 S.W.2d 776, 783-84
(Tenn. Crim. App. 1990). Because it is the duty of the appellant to supply an adequate record for
a determination on the merits, and because the record is not adequate on this issue, the defendant
cannot be granted relief. See State v. Coolidge, 915 S.W.2d 820, 826 (Tenn. Crim. App. 1995),
overruled on other grounds by State v. Troutman, 979 S.W.2d 271 (Tenn. 1998).

                                                  VII

         The defendant next contends that his convictions must be reversed due to prosecutorial
misconduct prior to trial. The defendant alleges that the state violated its agreement to grant
immunity, misplaced the defendant's gasoline receipt acquired on the night of the murder, and lost
five of seven tapes that the defendant made of his conversations with co-defendant Price. The state
argues that the record is insufficient to support the existence of the immunity agreement, the gasoline
receipt, or the tapes.




                                                 -19-
        In State v. Howington, 907 S.W.2d 403, 408 (Tenn. 1995), our supreme court overruled prior
case law on immunity and held "that an agreement between a prosecutor and a defendant is . . .
enforceable under the law of contracts" unless there has been a material breach by the defendant.
The initial burden is on the defendant to show the existence of the agreement by a preponderance
of the evidence. Id. at 409; see also State v. Jacobs, 919 S.W.2d 639, 643 (Tenn. Crim. App. 1995).
The burden then shifts to the state to show, beyond a reasonable doubt, why the agreement is invalid
or otherwise unenforceable. Howington, 907 S.W.2d at 409; Jacobs, 919 S.W.2d at 643.

        As a preliminary matter, the defendant has waived the immunity issue by failing to insist on
performance by the close of the state's proof. See David Louis Raybin, Tennessee Criminal Practice
and Procedure § 12.3 (1984). Nevertheless, this issue is without merit. The defendant admits that
the agreement that he now seeks to enforce was never reduced to writing. Furthermore, he has been
unable to point out any evidence that would support the existence of an oral immunity agreement.
Because the defendant has failed to carry his burden of proof, that any such agreement was in place,
there is no basis for this claim.

        Next, this court must address the claim that the state was guilty of malicious prosecution by
losing or misplacing evidence. In the landmark case of Brady v. Maryland, 373 U.S. 83 (1963), the
United States Supreme Court ruled that a prosecutor has a duty to furnish exculpatory evidence to
the defendant upon request. Exculpatory evidence may pertain to the guilt or innocence of the
accused and/or the punishment which may be imposed if the accused is convicted of the crime. State
v. Marshall, 845 S.W.2d 228, 232 (Tenn. Crim. App. 1992). Any "suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the evidence is material
either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Brady,
373 U.S. at 87. Thus, the duty to provide arises when the evidence is material, the evidence is
favorable for the defense, and a proper request for production is made by the defendant. See United
States v. Bagley, 473 U.S. 667, 675 (1985); Strouth v. State, 755 S .W.2d 819, 828 (Tenn. Crim.
App. 1986). Even in the absence of a specific request, the prosecution has a constitutional duty to
turn over exculpatory evidence that would raise a reasonable doubt about a defendant's guilt. United
States v. Agurs, 427 U.S. 97, 110 (1976).

       In Arizona v. Youngblood, 488 U.S. 51 (1988), the United States Supreme Court held that
a criminal defendant must show bad faith on the part of the state in order to establish a denial of due
process for failure to preserve potentially useful evidence. In State v. Ferguson, 2 S.W.3d 912, 917
(Tenn. 1999), however, where the police lost a videotape of the defendant's field sobriety tests, our
supreme court rejected the bad faith requirement articulated in Youngblood. Our high court
concluded that the due process principles of the Tennessee Constitution are broader than those
enunciated in the United States Constitution and that fundamental fairness, as an element of due
process, requires that the state's failure to preserve evidence which could be favorable to the
defendant be evaluated in the context of the entire record. Id. at 916-17. The balancing test is based
upon the following factors:

       (1) whether the state had a duty to preserve the evidence;


                                                 -20-
        (2) the degree of negligence involved;
        (3) the significance of the destroyed evidence, considered in light of the probative value and
        reliability of secondary or substitute evidence that remains available; and
        (4) the sufficiency of the other evidence against the defendant.

Id. at 917. If a trial without the lost or destroyed evidence would be unfair, the trial court may
dismiss the charges, provide a jury instruction, or take other steps necessary to protect the defendant's
right to a fair trial. Id. In Ferguson, our supreme court ultimately determined that the defendant had
not been deprived of his right to a fair trial by the loss of the videotape. Id. at 918

         Here, for several reasons, the state's loss of the gasoline receipt and the additional recordings
of the defendant's conversations with co-defendant Price did not deprive the defendant of a fair trial.
Initially, the gasoline receipt may never have been transferred to the state's custody. Although
Attorney Alan Beard testified that he had provided the receipt to Detective Gary Gaskill, Detective
Gaskill denied ever having received it. Additionally, the credit card bill of the defendant's ex-wife's
mother would have also reflected the charge. The defendant apparently made no effort to obtain and
produce the statement, either from Exxon or from his ex-mother-in-law. Finally, even if the state
had custody of the receipt and a duty to preserve it, there was other evidence to support the
defendant's alibi defense. The defendant's ex-wife testified that she met the defendant at Northgate
on the evening of the murder and purchased gasoline for his vehicle at a nearby Exxon using her
mother's credit card. In our view, proof of the gasoline purchase, while supportive of the alibi claim,
was not critical. Other evidence of the purchase was presented by the defense. The nature of the
proof, even if accredited by the jury, did not qualify as an absolute alibi. Most importantly, the
evidence of the defendant's guilt was simply overwhelming.

        As to the claim of lost recordings, there is simply no evidence in the record to support the
assertion that the state lost five of seven audiotapes that it had made of conversations with co-
defendant Price. While Detective Gaskill acknowledged that the officers' recording equipment had
failed during one of the face-to-face meetings between the defendant and co-defendant Price, the
record does not contain any reference to any lost recordings. Thus, the existence of the recordings
and the nature of their contents are left to speculation. Furthermore, in the recordings played at trial,
the co-defendant Price confesses to killing the victim. Given that circumstance, the additional
recordings could not have served to further exculpate the defendant. In summary, there was simply
inadequate proof that the state was guilty of prosecutorial misconduct or that the defendant was
deprived of his right to a fair trial thereby.

                                                  VIII

        Next, the defendant asserts that the trial court erred by failing to sever his trial from that of
co-defendant Price. The defendant argues that he was prejudiced by the testimony presented by Staci
Price and co-defendant Price. He also argues that he was denied a fair trial because his defense and
that of his co-defendant were "mutually antagonistic."



                                                  -21-
       The grant or denial of a motion for severance of defendants is a matter that rests within the
sound discretion of the trial court, and this court will not disturb the trial court's ruling absent clear
abuse of that discretion. State v. Burton, 751 S.W.2d 440, 447 (Tenn. Crim. App. 1988). Rule 14
of the Tennessee Rules of Criminal Procedure governs severance of defendants and provides in
pertinent part as follows:

               (2) The court, on motion of the State or on motion of the defendant other
        than under subdivision (c)(1), shall grant a severance of defendants if:
                       (i) before trial, it is deemed necessary to protect a defendant's right
               to a speedy trial or it is deemed appropriate to promote a fair determination
               of the guilt or innocence of one or more defendants; or
                       (ii) during trial, with consent of the defendant to be severed, it is
               deemed necessary to achieve a fair determination of the guilt or innocence of
               one or more defendants.

Tenn. R. Crim. P. 14(c)(2). Where a motion for severance has been denied, the test to be applied
by this court in determining whether the trial court abused its discretion is whether the defendant was
"clearly prejudiced" in his defense as a result of being tried with his co-defendant:

        The record must demonstrate that "the defendant was clearly prejudiced to the point
        that the trial court's discretion ended and the granting of [a] severance became a
        judicial duty," before an accused is entitled to a reversal of his conviction.

Burton, 751 S.W.2d at 447 (citations omitted).

        Initially, the defendant claims that as a result of his being jointly tried with co-defendant
Price, the jury was able to hear the testimony of Staci Price, which "adversely impact[ed]" him. The
testimony of Staci Price, however, would have been admissible against the defendant even if his trial
had been severed from that of co-defendant Price. See Tenn. R. Evid. 803(1.2) (admitting out-of-
court statements of party-opponent and co-conspirators of party-opponent). The defendant also
claims that because of the failure to sever, co-defendant Price attempted to introduce evidence of his
prior criminal history. This argument, however, overlooks the fact that the trial court prohibited co-
defendant Price from doing so. Thus, there was no prejudice to the defendant.

        The defendant also asserts that the trial court should have severed his trial from that of co-
defendant Price because their defenses were "mutually antagonistic and hostile." In our view,
however, the contentiousness between the two defendants was not sufficient to deprive the defendant
of "a fair determination of [his] guilt or innocence." See Tenn. R. Crim. P. 14(c)(2)(ii); see also
Zafiro v. United States, 506 U.S. 534, 538 (1993) (holding that "[m]utually antagonistic defenses
are not prejudicial per se"). First, all of the evidence introduced against the defendant in this trial
would have been admissible against him in a separate trial, including the testimony of co-defendant
Price. "[A] severance need not be granted where the evidence which was introduced could have
been admitted against [the defendant] in a separate trial." State v. Little, 854 S.W.2d 643, 648


                                                  -22-
(Tenn. Crim. App. 1992); see also State v. Hammonds, 616 S.W.2d 890, 896 (Tenn. Crim. App.
1981). Additionally, the trial court instructed the jury to give separate consideration to each
defendant. The jury is presumed to have followed this charge. State v. Barton, 626 S.W.2d 296, 298
(Tenn. Crim. App. 1981); see also State v. Kyger, 787 S.W.2d 13, 20 (Tenn. Crim. App. 1989)
(holding that there was no error in failure to sever where the trial court instructed the jury to consider
the evidence against each defendant individually).

                                                   IX

        The defendant next asserts that the trial court erred by denying his motion for a change of
venue. The motion was based on an article describing the circumstances of the offense that appeared
in The Chattanooga Times on the morning the trial began. The article ended by stating that, "Price
has no criminal record. Durham has a record of at least 30 charges of theft, burglary and aggravated
burglary."

        The pertinent portion of Tennessee Rule of Criminal Procedure 21 provides as follows:
"[V]enue may be changed . . . if it appears to the court that, due to undue excitement against the
defendant in the county where the offense was committed or any other cause, a fair trial probably
could not be had." Tenn. R. Crim. P. 21(a). Whether to grant or deny a motion for change of venue
is a matter of judicial discretion. Rippy v. State, 550 S.W.2d 636, 638 (Tenn. 1977). The appellate
court will not interfere with the exercise of discretion absent clear abuse. State v. Melson, 638
S.W.2d 342, 360 (Tenn. 1982). The ultimate test is whether the jurors who actually sat and rendered
verdicts were prejudiced by the pretrial publicity. State v. Garland, 617 S.W.2d 176, 187 (Tenn.
Crim. App. 1981). The burden of proof is on the defendant. See Adams v. State, 563 S.W.2d 804
(Tenn. Crim. App. 1978). Prejudice will not be presumed on the mere showing that there was
considerable pretrial publicity. Dobbert v. Florida, 432 U.S. 282, 303 (1977); State v. Kyger, 787
S.W.2d 13, 19 (Tenn. Crim. App. 1989).

        Although the defendant states in his brief that there was extensive pre-trial publicity, the only
evidence in the record is the newspaper article published the first morning of trial. At the beginning
of voir dire, the trial court questioned the prospective jurors as to whether they had read the article.
Two prospective jurors indicated that they had and the trial court excused them. The two stated that
they had not discussed the article with any of the other prospective jurors. Other jurors recalled
hearing about the murder at the time that it occurred, but indicated that their knowledge was only
general and would not affect their verdicts. In short, there is nothing in the record to suggest that the
trial court abused its discretion in denying a change of venue.

                                                   X

      The defendant next complains that the trial court erred by not granting the defense a sufficient
number of peremptory challenges. We disagree.

        Tenn. Code Ann. § 40-18-118 provides:


                                                  -23-
                Peremptory challenges. – Notwithstanding any other provision of law or rule
       of court to the contrary, in any case in which a defendant is charged with an offense
       punishable by death, such defendant is entitled to fifteen (15) peremptory challenges
       and the state is entitled to fifteen (15) peremptory challenges for each such defendant.
       If the offense charged is punishable by imprisonment for more than one (1) year but
       not by death, each defendant is entitled to eight (8) peremptory challenges, and the
       state is entitled to eight (8) peremptory challenges for each defendant. If the offense
       charged is punishable by imprisonment for less than one (1) year or by fine, or both,
       each side is entitled to three (3) peremptory challenges for each defendant.

See also Tenn. R. Crim. P. 24(d).

        Here, the state did not seek the death penalty. The trial court allowed each defendant 10
peremptory challenges, eight plus one for each alternate being selected. In State v. Atkins, 681
S.W.2d 571 (Tenn. Crim. App. 1984), this court concluded that when the state does not seek the
death penalty, the defendant is entitled to only eight peremptory challenges. There was no error in
this instance.

                                                 XI

        Next, the defendant contends that he should be granted a new trial because he was not
provided with a prospective juror list prior to the commencement of voir dire. Because the defendant
failed to object to the irregularity before the jury was sworn and because the defendant was not
prejudiced by the delay, there was no error.

        Tenn. Code Ann. § 22-2-306 requires Davidson and Hamilton County criminal and circuit
court clerks to publish a jury list as soon as it is drawn and the jury panel has been summoned:

               (a) Immediately upon the drawing of the jury list and as soon as the jury panel
       has been summoned and selected either by personal service or mail in accordance
       with § 22-2-305, the clerks of the criminal and circuit courts or the jury
       commissioners shall publish a true copy of the jury list, and a copy of the jury list
       shall be posted in the clerk's office for public inspection. In addition thereto, the
       clerks of the criminal and circuit courts or the jury commissioners shall cause to be
       made at least two hundred fifty (250) copies of the jury list, which copies shall be
       placed in the clerk's office and available for general distribution to the members of
       the bar and to all other interested parties. Notwithstanding the provisions of any
       private act to the contrary, the provisions of this subsection shall apply only to the
       counties of Davidson and Hamilton.

Tenn. Code Ann. § 22-2-306(a). The purpose of this requirement is "to provide notice to the public
that a venire has been selected. It promotes confidence in the judicial process by subjecting the
process to public scrutiny. Public disclosure provides scrutiny which further secures that proper


                                                -24-
juror selection methods will be used." State v. Lynn, 924 S.W.2d 892, 897 (Tenn. 1996). When
there has been a failure to comply with this requirement, a defendant seeking relief must demonstrate
either actual prejudice or a flagrant, unreasonable, and unnecessary deviation. Id. at 894; State v.
Gary Thomas Moore, No. 01C01-9711-CC-00545 (Tenn. Crim. App., at Nashville, Oct. 22, 1999).

         While the defendant complains that he "was not provided a juror list in the first hour of voir
dire," the record does not support the claim. There was no proof presented that the Hamilton County
Criminal Court Clerk failed to publish or post the jury list or to make copies thereof available for
distribution. Even if there had been a violation of the statute, the defendant would not be entitled
to relief because he failed to object prior to the jury's being sworn. See Tenn. Code Ann. § 22-2-313
("In the absence of fraud, no irregularity with respect to the provisions of this part . . . shall affect
. . . the validity of any verdict rendered by a trial jury unless such irregularity has been specially
pointed out and exceptions taken thereto before the jury is sworn.").

         In addition to the statutory mandate, the Tennessee Rules of Criminal Procedure require that
a jury list be provided to the parties after the summoned jurors have responded to a questionnaire:

        Upon request, the parties shall be furnished with a list of members of the jury panel,
        containing the following information with respect to each: name, address,
        occupation, name of spouse, occupation of spouse. The list shall also state whether
        each prospective juror has previously served on a criminal court jury; however, that
        information need not be provided prior to the day of trial.

Tenn. R. Crim. P. 24(g). This list is not the same as the statutory jury panel list that must be
published and posted. Lynn, 924 S.W.2d at 897. The purpose of this list is to "make voir dire more
efficient by providing basic information before counsel questions individual jurors." Id. Any failure
to furnish the list to trial counsel is not a basis for reversal unless the defendant can establish
prejudice in consequence thereof. State v. Harris, 839 S.W.2d 54, 66 (Tenn. 1992); State v.
Cameron, 909 S.W.2d 836, 849 (Tenn. Crim. App. 1995).

      The record does not establish when or if defense counsel requested a Rule 24(g) juror list.
Counsel for co-defendant Price made the only reference to the list:

        THE COURT: I see, yes. Anything else?
        [COUNSEL FOR CO-DEFENDANT PRICE]: We're just waiting for a jury list. She
        says it's not ready yet.
        THE COURT: Well, we'll go ahead and get started on it. We'll put them in the box,
        do all we can.

Nor does the record establish when defense counsel ultimately received the list. The defendant's
brief, which includes an assertion that the list was not provided "until one (1) hour into the voir dire,"
is the only indication as to when the information was supplied.



                                                  -25-
        Defense counsel did not make a contemporaneous objection to the initiation of voir dire
without a juror list. Moreover, the defendant has failed to establish how he was prejudiced by the
untimely provision of the list. That is, during voir dire, defense counsel was not prevented from
acquiring information that would typically be included in a Rule 24(g) juror list. There were no time
restraints upon the questioning of the venire. Nor did the state gain any sort of advantage by a late
distribution of the list. Finally, any information contained in the defendant's brief does not serve to
supplement the trial record. See, e.g., Matthews, 805 S.W.2d at 783-84. For all of these reasons,
the defendant cannot be granted relief. See Coolidge, 915 S.W.2d at 826.

                                                  XII

        Next, the defendant asserts that his convictions should be reversed because the state
purposefully used its peremptory challenges to exclude black prospective jurors. The state argues
that there was no constitutional violation because the prosecutor provided neutral reasons for its
challenges to black jurors.

        In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that the
prosecutor's use of peremptory challenges to intentionally exclude jurors of the defendant's race
violated the defendant's right to equal protection under the Fourteenth Amendment to the United
States Constitution. See also Tenn. Const. art. I, § 9. In Powers v. Ohio, 499 U.S. 400 (1991), the
Supreme Court upheld the principles of Batson but eliminated the requirement that the defendant and
the wrongfully excluded juror be of the same race in order for there to be an equal protection claim.
See State v. Ellison, 841 S.W.2d 824, 826 (Tenn. 1992).

        When a defendant is able to establish a prima facie case of purposeful discrimination against
a prospective juror based on race, the prosecution must then come forward with a race-neutral
explanation for the challenge of the juror. Batson, 476 U.S. at 97. The explanation does not have
to rise to the level of justifying a challenge for cause, so long as the explanation is based on a
characteristic of the juror other than race and is not pretextual. That is, the state must "'articulate a
neutral explanation related to the particular case . . . .'" Ellison, 841 S.W.2d at 827 (quoting Batson,
476 U.S. at 98). It is the court's responsibility to determine whether there has been a purposeful
discrimination on the part of the state. Batson, 476 U.S. at 98; State v. Bell, 745 S.W.2d 858, 867,
after remand, 759 S.W.2d 651, 654 (Tenn. 1988). "[T]he exercise of even one peremptory challenge
in a purposefully discriminatory manner would violate equal protection." Ellison, 841 S.W.2d at
827. If the court determines that a race-neutral reason did not exist, the conviction must be reversed.
Id. at 826; see also Batson, 476 U.S. at 100.

        The defendant must show that "relevant circumstances raise an inference that the prosecutor
used [a discriminatory peremptory challenge] practice to exclude . . . veniremen from the petit jury
on account of their race." Batson, 476 U.S. at 96. A trial court must look to the "totality of the
relevant facts" to determine whether the state's use of peremptory challenges gives rise to an
inference of discriminatory purpose. Bell, 759 S.W.2d at 653. In State v. Turner, our supreme court
clarified that peremptory challenges could be utilized by both the state and the defense in an effort


                                                  -26-
to eliminate jurors perceived to be biased or unsympathetic: "Peremptory strikes, by definition, may
be exercised for any reason unless that reason is specifically prohibited by legislation or by judicial
decision." 879 S.W.2d 819, 821 (Tenn. 1994).

        The defendant did not voice an objection to the state's use of its peremptory challenges during
jury selection. The issue is, therefore, waived. See Tenn. R. App. P. 36(a). Counsel for co-
defendant Price did, however, raise two Batson objections:

               [COUNSEL FOR CO-DEFENDANT PRICE]: If Your Honor please, I'll raise
       a Batson question. I think the state waited and dismissed two black females, and I
       don't think they – well, I raise a Batson question on that. I think they're
       discriminatory by that challenge.
               [ASSISTANT DISTRICT ATTORNEY]: I'm wanting males on the jury. I
       liked the prospective jurors better than those. I took a white female off with this
       same challenge. If the Court feels there's a showing at this point in time, I have other
       reasons for excusing the two black ladies that I took off.
               THE COURT: Let's see. We can put this on the record later, but go ahead at
       this time and tell me your reasons for –
               [ASSISTANT DISTRICT ATTORNEY]: Number one, the state likes the
       prospective jurors that now went in the box better than the jurors that were up there.
       I excused the – these three ladies. The all had minor children. I've got two witnesses
       that have minor children that are dancers, and I'm not sure that the females who have
       younger minor children will identify correctly with respect to my two witnesses.
       These are two very essential witnesses, and those are the reasons that I took those
       ladies off. It had nothing to do with their race.
               THE COURT: All right. You said among the reasons. What are the other
       reasons? You talking about Ms. Thornton and Ms. –
               [COUNSEL FOR CO-DEFENDANT PRICE]: My only position is, Your
       Honor, I've got the scheme, I don't have it before you there, that he's purposely
       getting blacks off the jury, especially female blacks, but anyway I raise –
               [ASSISTANT DISTRICT ATTORNEY]: The Court needs to point out . . .
       there are currently . . . black women on the jury and there are black men on the jury.
                                           *       *       *
               THE COURT: I find there's no showing of systematic exclusion of any
       particular group or particular minority group based on your responses and based on
       the composition of the jury at this time, as well as based on the other jurors that were
       excused by both the defense and the state, so let the objection be overruled.
                                           *       *       *
               [COUNSEL FOR CO-DEFENDANT PRICE]: If Your Honor please, I think
       there's a systematic exclusion of blacks, especially black females by the state, and I
       object under Batson.
               [ASSISTANT DISTRICT ATTORNEY]: No. I want . . . Juror Phillips, No.
       39, on this jury. She sat on a jury before, she's been in a rape case before. I wanted


                                                 -27-
       her as a juror. It was a process of elimination with respect to the others. I think I like
       more males on this jury. . . . [B]ut in any event, by process of elimination, . . . the last
       juror I just took off. What was her number?
                THE COURT: 29, Garner.
                [ASSISTANT DISTRICT ATTORNEY]: She's single, she works at a daycare
       center, I believe. I don't – again, I think I've got a problem with her relating to a
       couple of dancers who have young children, and I – and of all the ones, I didn't
       necessarily dislike her, but the ones that were left there as opposed to who had to get
       – who I had to excuse to get to Ms. Phillips, I chose her. It didn't have anything to
       do with race.
                THE COURT: All right. I think, of course –
                [COUNSEL FOR CO-DEFENDANT PRICE]: Well, may I just respond to
       that? Yes, it has something to do with race. You know, I understand what he's
       doing. He's getting rid of black females because he wants middle class whites.
                [ASSISTANT DISTRICT ATTORNEY]: No, I don't.
                THE COURT: Wait, I don't need any argument. I know your respective
       positions.
                                            *       *      *
                THE COURT: Of course, the record will reflect that there are three black
       females still on the jury: No. 24, Connie Dallas; No. 64, Bernadette Evans; and No.
       70, Renikka Bullard. I don't find that there's any systematic exclusion.

        In our view, the trial court correctly overruled the Batson objections made by counsel for co-
defendant Price. In response to each objection, the assistant district attorney articulated a race-
neutral reason for dismissing the black prospective jurors. Moreover, at the time that the trial court
overruled the second objection, one-fourth of the jury consisted of black women. While this court
cannot discern the racial makeup of the remainder of the jury, the assistant district attorney's
comments established that there was also more than one black man on the jury. Had the defendant
presented the issue, our ruling would have been favorable to the state. Thus, the issue is without
merit.

                                                  XIII

        The defendant next asserts that the trial court should not have allowed the state to introduce
photographs of the crime scene and the body. He argues that the probative value was outweighed
by the danger of unfair prejudice. See Tenn. R. Evid. 403.

        The admissibility of photographs is discretionary with the trial court. A ruling will not be
disturbed on appeal absent a clear abuse of discretion. State v. Zirkle, 910 S.W.2d 874, 888 (Tenn.
Crim. App. 1995). In order to be admissible, photographs must be relevant and their probative value
must not substantially outweigh any danger of unfair prejudice. Tenn. R. Evid. 403; State v. Banks,
564 S.W.2d 947, 950-51 (Tenn. 1978). The term "unfair prejudice" has been defined as "[a]n undue
tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional


                                                  -28-
one." Banks, 564 S.W.2d at 951. Autopsy photos should be particularly scrutinized because "they
present an even more horrifying sight and show the body in an altered condition." Id.

        In State v. Collins, 986 S.W.2d 13 (Tenn. Crim. App. 1998), the defendant asserted on appeal
that the trial court erred by admitting a number of color photographs of the infant victim. In
determining that the trial court had erroneously admitted the photographs, this court stressed that the
ultimate consideration with regard to their admissibility was one of fairness:

       Photographs made during or after an autopsy should be scrutinized and examined
       prior to being shown to the jury. If other considerations substantially outweigh the
       probative value of the evidence, it should be excluded. In State v. Banks, . . . our
       supreme court recognized "the inherently prejudicial character of 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 .
       . . whether they were taken before the corpse was moved . . . [and] the inadequacy of
       the testimonial evidence in relating the facts to the jury" are appropriate factors.

       The term "unfair prejudice" has been defined as "[a]n undue tendency to suggest
       decision on an improper basis, commonly . . . an emotional one." One authority
       characterizes evidence that is unfairly prejudicial as that designed to appeal to the
       sympathy, sense of horror, or instinct to punish.

       The issue, in our view, is one of simple fairness. Prejudice becomes unfair when the
       primary purpose of the evidence at issue is to elicit emotions of "bias, sympathy,
       hatred, contempt, retribution, or horror." Murder is an absolutely reprehensible
       crime. Yet our criminal justice system is designed to establish a forum for
       unimpaired reason, not emotional reaction. Evidence which only appeals to
       sympathies, conveys a sense of horror, or engenders an instinct to punish should be
       excluded.

Id. at 19-20 (citations omitted).

        Here, the trial court allowed twenty-two of the thirty-four photographs of the body proffered
by the state. Specifically, the trial court allowed the state to introduce the following photographs:

       Exhibit 2 – Depiction of victim's body at crime scene;
       Exhibit 4 – Depiction of room in which victim's body was found, including victim's
       legs and feet, which were not injured during the attack;
       Exhibit 8 – Close-up depiction of victim's chest wounds, taken at crime scene;
       Exhibit 9 – Close-up depiction of wounds on victim's left hand, taken at crime scene;
       Exhibit 10 – Close-up depiction of wound on victim's left forearm, taken at crime
       scene;


                                                 -29-
       Exhibit 11 – Close-up depiction of wounds on victim's right hand, taken at crime
       scene;
       Exhibit 13 – Close-up depiction of wounds on victim's right forearm, taken by
       medical examiner;
       Exhibit 14 – Close-up depiction of wounds to victim's torso, taken by medical
       examiner;
       Exhibit 16 – Close-up depiction of wound on victim's back, taken by medical
       examiner;
       Exhibits 17 – 21 – Close-up depictions of wounds on palms and backs of victim's
       hands, taken by medical examiner;
       Exhibit 22 – Close-up depiction of sole of victim's left shoe, taken by medical
       examiner;
       Exhibit 23 – Close-up depiction of flash burn on victim's face, taken by medical
       examiner;
       Exhibit 24 – Depiction of wounds on victim's torso and head, taken by medical
       examiner;
       Exhibit 25 – Close-up depiction of wounds to top of victim's head, taken by medical
       examiner;
       Exhibit 27 – Close-up depiction of wounds on victim's left forearm, taken by medical
       examiner;
       Exhibit 28 – Depiction of wounds on victim's right forearm, including view of
       victim's chest, taken by medical examiner;
       Exhibit 32 – Close-up depiction of wound on victim's back, taken by medical
       examiner; and
       Exhibit 34 – Close-up depiction of wound on victim's back, taken by medical
       examiner.

The trial court excluded those crime scene photos that would have been duplicative of Exhibit 2 and
those that showed the face of the victim. The trial court also excluded those photos taken during the
medical examination that were either duplicative or that showed the face of the victim. A
photograph of the victim in a semi-fetal position was also excluded.

        In our view, the number of photographs of the body could have and should have been further
reduced. There were still a number of photographs allowed into evidence that were essentially the
same as others that were also introduced. The photographs were relevant because the state had to
prove intent and premeditation, elements which may be inferred from the manner and extent of the
attack on the victim. State v. Banks, 564 S.W.2d 947, 950 (Tenn. 1978). The medical examiner
used the photos to illustrate his testimony, rather than describing in detail each of the twenty-three
stab wounds sustained by the victim. That lessened the degree of prejudice. Prior to trial, there was
a hearing on the admissibility of the photos. The trial court scrutinized each photograph offered by
the state. Exhibits 23 and 24 are the only photographs showing the face of the victim. Because the
body had been washed by the medical examiner and the eyes and mouth were shut, the photos were
not particularly gruesome. A number of crime scene photos which showed the entire body of the


                                                -30-
victim were excluded. The trial court allowed only one to be admitted. Exhibit 2, perhaps the most
gruesome of the crime scene photographs admitted by the trial court, is mitigated somewhat by the
fact that the victim's face is turned away from the camera.

        The autopsy photographs are unpleasant because they show wounds to an elderly victim; but
they are not unusually gory. The majority of the photos were taken after the body was washed. Each
photo appears to have been taken prior to the initiation of any internal examination. Exhibit 23
shows the flash burns to the face, yet other head wounds are covered by bandaging. In summary,
while the number of photographs admitted should have been reduced due to duplication of content,
any error committed by the excess was harmless in view of the overwhelming evidence of the
defendant's guilt.

         The defendant further argues that the trial court erred by admitting photographs of "property
at the crime scene." He fails to explain, however, how such photographs were "too graphic" or how
their probative value was substantially outweighed by the danger of unfair prejudice. Thus, the
argument does not afford the defendant relief.

        Finally, the defendant challenges the trial court's admission of a videotape of the crime scene.
The admissibility of the videotape is governed by the same standards applicable to the admissibility
of the photographs of the victim's body. See State v. Cauthern, 967 S.W.2d 726 (Tenn. 1998). In
our view, the potential for prejudice does not outweigh the probative value. The body is shown
briefly and only from a distance. The videotape does not include any close-ups of the victim.

                                                  XIV

         The defendant next asserts that the trial court erred by allowing the state to refresh the
recollection of two of its witnesses, Jeanie Bliek and Kevin Green, by using statements they had
provided to investigating officers. The defendant contends that the court allowed the witnesses to
use the statements prior to the state's having demonstrated a need to refresh their recollections. It
is the state's position that any error in use of the statements would have been harmless.

       Rule 612 of our Rules of Evidence, which governs the use of writings to refresh a testifying
witness's memory, provides as follows:

        If a witness uses a writing while testifying to refresh memory for the purpose of
        testifying, an adverse party is entitled to inspect it, to cross-examine the witness
        thereon, and to introduce in evidence those portions which relate to the testimony of
        the witness. If it is claimed that the writing contains matters not related to the subject
        matter of the testimony, the court shall examine the writing in camera, excise any
        portions not so related, and order delivery of the remainder to the party entitled
        thereto. Any portion withheld over objections shall be preserved and made available
        to the appellate court in the event of appeal. If a writing is not produced or delivered
        pursuant to order under this rule, the court shall make any order justice requires; in


                                                  -31-
        criminal cases when the prosecution elects not to comply, the order shall be one
        striking the testimony or, if the court in its discretion determines that the interests of
        justice so require, declaring a mistrial.

Tenn. R. Evid. 612. The proper procedure for refreshing the memory of a witness is included in the
Advisory Commission Comments on the rule:

        Only if a witness's memory requires refreshing should a writing be used by the
        witness. The direct examiner should lay a foundation for necessity, show the witness
        the writing, take back the writing, and ask the witness to testify from refreshed
        memory.

Tenn. R. Evid. 612, Advisory Commission Comments.

         Prior to using a writing to refresh a testifying witness's recollection pursuant to Rule 612, an
attorney must show that the witness's memory requires refreshing and that the writing will be useful
in that regard. See Tenn. R. Evid. 612, Advisory Commission Comments; State v. Mathis, 969
S.W.2d 418, 421 (Tenn. Crim. App. 1997) ("At the point [the witness] was shown the statement, it
had not been established that his memory needed refreshing. Accordingly, the evidence at the time
of its admission did not qualify under Rule 612."). During the direct examination of witness Bliek,
the state directed her to look at the transcript of her recorded statement on three separate occasions
without first establishing that she was having difficulty recalling the events about which she was
being questioned:

        Q       All right. Did he tell you how Eric was supposed to get to Goody's at 1:15?
        A       No, he didn't say.
        Q       All right. I want [you to] look a page 5 of your statement.
                                           *       *      *
        Q       Did they say anything – did they say anything at that time about the condition
        of the car?
        A       It was the same.
        Q       All right. Would you look at page 18 of your statement.
                                           *       *      *
        Q       I didn't mean did they tear it up. Did they say anything about the car?
        A       They said that there was blood in it.
        Q       All right. Anything else?
        A       No.
        Q       Again, look at page 18 of your statement.

There were similar incidents during the questioning of witness Green.

      It was error for the trial court to allow the state to examine witnesses Bliek and Green in this
manner. The state must establish a proper foundation before being allowed to refresh a witness's


                                                  -32-
recollections with written documents. It is apparent, however, from a review of the overall testimony
of each witness that the error did not affect either the substance of their testimony or the results of
the trial. In consequence, a new trial would not be warranted on this ground. See Tenn. R. App. P.
36(b).

                                                 XV

        The defendant next contends that the trial court erred by failing to declare a mistrial when
the assistant district attorney referred to the defendant and co-defendant Price as "murderers and
thieves." The defendant, however, did not make a contemporaneous objection or move for a mistrial.
This issue, is, therefore, waived. See Tenn. R. App. P. 36(a). Nevertheless, the trial court did not
err.

         In general, closing argument is subject to the trial court's discretion. Counsel for both the
prosecution and the defense should be permitted wide latitude in arguing their cases to the jury.
State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994). Arguments must be temperate, predicated on
evidence introduced during the trial, relevant to the issues being tried, and not otherwise improper
under the facts or law. State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). Epithets
designed to appeal to the passion and bias of the jury are improper when used by the state to
characterize a defendant. Darden v. Wainwright, 477 U.S. 168, 179-80 (1986); State v. Cauthern,
967 S.W.2d 726, 737 (Tenn. 1998); State v. Bates, 804 S.W.2d 868, 881 (Tenn. 1991). The ultimate
test to determine if such misconduct is reversible error depends on whether it had a prejudicial effect
upon the verdict. Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965). In making that
determination, courts must consider five factors:

       (1) the conduct complained of in light of the facts and circumstances of the case;
       (2) the curative measures undertaken;
       (3) the intent of the prosecutor in making the improper remarks;
       (4) the cumulative effect of the improper conduct and any other errors in the record; and
       (5) the relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

        The assistant district attorney's comments in this case were as follows:

               MR. EVANS: Because that's how you test all the evidence that came from the
       witness stand. That's how you test David Eric Price's testimony. I told you in
       opening statement that the most damning part of this case comes from the very lips
       of the murderers and thieves, and that's what you heard.

In our view, the prosecutor's statement did not amount to misconduct. While the state should
generally avoid name calling during its closing, here the assistant district attorney was making
specific reference to the crimes for which the defendant and co-defendant Price were being tried.


                                                 -33-
The prosecutor's comments were specifically directed to the credibility of the testifying witnesses
and, in particular, co-defendant Price. The defendant, of course, did not testify at trial. While there
were no curative measures taken by the trial judge, the comments were relatively inconsequential
in the context of the entire trial and there were few errors in the conduct of the trial.

                                                  XVI

       The defendant next complains that the trial court's first degree murder instructions were
erroneous to the extent that they authorized verdicts of both premeditated and felony murder. The
defendant also asserts that the trial court inadequately defined "knowing" in the charge to the jury.

        Initially, the defendant does not cite any authority for the proposition that the trial court erred
by instructing the jury that it could return guilty verdicts on both of the first degree murder charges.
Thus, the issue has been waived. See Tenn. Ct. Crim. App. R. 10(b). Nevertheless, the principles
of double jeopardy were not violated by the verdicts of guilt as to both premeditated murder and
felony murder. The trial court did not enter a judgment on each verdict; instead, it merged the two
offenses and entered one judgment of guilt as to first degree murder. This court has previously
approved of this approach, and has determined that it does not violate the Double Jeopardy Clause
of the Tennessee Constitution:

        The Double Jeopardy Clause[s] of both the United States and Tennessee
        Constitutions state[] that no person shall be put in jeopardy of life or limb for the
        same offense. U.S. Const. amend. 5; Tenn. Const. art. I, § 10. The clause has been
        interpreted to include the following protections: "It protects against a second
        prosecution for the same offense after acquittal. It protects against a second
        prosecution for the same offense after conviction. And it protects against multiple
        punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89
        S. Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). State v. Phillips, 924 S.W.2d 662, 664
        (Tenn. 1996). It is the last protection that is of interest in this case.

        Although the jury returned guilty verdicts for both counts of first degree murder, the
        trial court entered only one judgment of conviction that imposed only one sentence
        of life imprisonment. Essentially, it is the judgment of conviction that provides the
        legal authority for the executive branch of government to incarcerate a person who
        is sentenced to confinement. See State v. Vasser, 870 S.W.2d 543, 546 (Tenn. Crim.
        App. 1993). In this sense, it includes the imposition of the sentence by which a
        defendant is punished. See Tenn. R. Crim. P. 32(e). Therefore, the trial court's entry
        of only one judgment of conviction imposing only one sentence of life imprisonment
        protects the defendant from receiving multiple punishments for the same offense. No
        double jeopardy peril exists.




                                                   -34-
State v. Addison, 973 S.W.2d 260, 266-67 (Tenn. Crim. App. 1997); see also State v. Cribbs, 967
S.W.2d 773, 787-88 (Tenn. 1998); State v. Zirkle, 910 S.W.2d 874, 889-90 (Tenn. Crim. App.
1995).

        The trial court did, however, fail to note on the judgment form that the two first degree
murder convictions had been merged. In State v. Redonna T. Hanna, No. 02C01-9806-CR-00165
(Tenn. Crim. App., at Jackson, Sept. 7, 1999), perm. app. denied, (Tenn., Apr. 10, 2000), this court
ruled as follows:

       In a case involving a single killing where the jury has found the defendant guilty
       under both theories of first degree premeditated murder and felony murder, the trial
       court should accept both verdicts but enter only one judgment of conviction, thereby
       merging the two verdicts. The single judgment of conviction should note the merger
       of the two counts returned by the jury.
                                          *       *        *
       In situations such as this, the appropriate procedure is for the trial court to
       specifically note the merger of two convictions of first degree murder in one
       judgment . . . reflecting a conviction of first degree murder.

The judgment of first degree murder entered by the trial court is, therefore, modified to show that
the defendant's convictions for premeditated murder and felony murder have been merged into one
judgment.

        The defendant did not raise the issue of the trial court's instruction defining the term
"knowing" in his motion for new trial. As such, it is technically waived. See Tenn. R. App. P. 3(e),
36(a). Nevertheless, we will consider its merits. See State v. Palmer, 10 S.W.3d 638, 645 (Tenn.
Crim. App. 1999) (addressing jury instruction challenge not included in motion for new trial because
"a jury instruction which did not accurately charge the requisite mental state would substantially
affect the defendant's rights" within the meaning of Tenn. R. Crim. P. 52(b)).

        The trial court has a duty "to give a complete charge of the law applicable to the facts of a
case." State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P. 30. "[A]
defendant has a constitutional right to a correct and complete charge of the law." State v. Teel, 793
S.W.2d 236, 249 (Tenn. 1990). Jury instructions must, however, be reviewed in the context of the
overall charge rather than in isolation. See State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App.
1994). Erroneous jury instructions require a reversal unless the error is harmless beyond a
reasonable doubt. See Welch v. State, 836 S.W.2d 586, 591 (Tenn. Crim. App. 1992).

       While charging the jury, the trial court defined "knowing" as follows:

               "Knowing." A person acts knowingly or with knowledge if that person acts
       with an awareness either, 1, that his or her conduct is of a particular nature or, 2, that
       a particular circumstance exists. A person acts knowingly with respect to a result of


                                                 -35-
        the person's conduct when the person is aware that the conduct is reasonably certain
        to cause the result. A defendant acts knowingly when he is aware of the conduct or
        is practically certain that the conduct will cause the result irrespective of his desire
        that the conduct or result will occur. The requirement of knowing is also established
        if it is shown that the defendant acted intentionally.

       Relying on State v. Eldridge, 951 S.W.2d 775 (Tenn. Crim. App. 1997), the defendant
complains that the charge was inadequate because it failed to require the jury to find that he intended
to commit second degree murder. The defendant's argument, however, overlooks the fact that the
challenged instruction in State v. Eldridge concerned attempted second degree murder. Criminal
attempt requires specific intent. See Tenn. Code Ann. § 39-12-101(a)(1). Here, the killing was
complete and the defendant was charged with second degree murder not attempt, as a lesser-included
offense. The trial court's instruction conformed with the statute. See Tenn. Code Ann. §§ 39-11-
106(a)(20) (Supp. 1995), 39-11-302(b) (1991). Thus, there was no error.

                                                  XVII

        Finally, the defendant asserts that the trial court erred by imposing an effective sentence of
life without the possibility of parole plus 15 years. He argues that the sentence is so excessive and
disproportionate as to constitute cruel and unusual punishment. See U.S. Const. amend. VIII. In our
view, the sentence imposed by the trial court was appropriate.

         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). "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. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

        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
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).

        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


                                                  -36-
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 this 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;
                 (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



         3
          The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony
convictions, may en hance th e sentenc e range b ut is no lon ger a listed cr iterion. See Tenn. Code Ann. § 40-35-115,
Sentencing C omm ission Comm ents.

                                                         -37-
deserved" under the circumstances, Tenn. Code Ann. § 40-35-103(2); State v. Lane, 3 S.W.3d 456
(Tenn. 1999).

        In Gray, our supreme court ruled that before consecutive sentencing could be imposed upon
a dangerous offender, considered the most subjective of the classifications and the most difficult to
apply, other conditions must be 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." Id.

        The defendant does not challenge the length of either his aggravated robbery or his
conspiracy sentence. The aggravated robbery sentence was ordered to be served concurrently to the
life without parole sentence set by the jury for the first degree murder conviction. Because this court
has approved the first degree murder sentence, the only issue remaining is the propriety of the
consecutive 15-year sentence for conspiracy to commit aggravated robbery.

       The trial court found that the defendant qualified for consecutive sentencing as a professional
criminal, as an offender whose record of criminal activity was extensive, and as a dangerous
offender:

               As to whether or not these sentences should run consecutively to one another
       or concurrently to one another and concurrent or consecutive to the first degree
       murder conviction, the Court . . . has considered all the evidence presented as well
       as 40-35-114 . . . [which] says, "If the defendant is convicted of more than one
       criminal offense the Court shall order sentences to run consecutively or concurrently
       as provided by the criteria in this section. The Court may order sentences to run
       consecutively if the Court finds by a preponderance of the evidence that one, the
       defendant is a professional criminal who has knowingly devoted himself to criminal
       acts as a major source of livelihood," and the Court does find that the State has
       proven by a preponderance of the evidence that this factor is true.

               It's sad in really the relatively short number of years that Mr. Durham has
       been on this earth he's basically made a career out of criminal activity. . . . Going
       back to his history as a juvenile in 1985 and continuing right on up until the time that
       he's an adult beginning with larceny cases and going on to grand larceny, petty
       larceny, auto theft, theft of property, burglary, even up to aggravated robbery and
       murder so the cases have gotten more serious as time has progressed . . . . [T]he


                                                 -38-
       defendant is a professional criminal who has knowingly devoted himself to criminal
       acts as a major source of livelihood. [T]he defendant is an offender whose record of
       criminal activity is extensive . . . based on the number of convictions that have been
       presented and going back even to convictions as a juvenile.

               [T]he Court also finds No. 4, that the defendant is a dangerous offender. His
       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. Any time a person
       commits or is engaged in any manner as an accomplice, as an aider or abetter or as
       a principal in an aggravated robbery, especially at nighttime, there's always a chance
       that human life is going to be at risk . . . . [The defendant] . . . shows a pattern of
       criminal behavior that indicates a reckless disregard for human life and a danger to
       others . . . .

        Because the trial court considered the applicable sentencing principles in ordering the
conspiracy sentence to be served consecutively to the first degree murder sentence, that order is
entitled to a presumption of correctness. The burden is on the defendant to rebut that presumption.

        The defendant contends that his sentence should be less than that of co-defendant Price
because he did not participate in the actual killing of the victim. He argues that his sentence is
disproportionate as to violate constitutional safeguards against cruel and unusual punishment. In our
view, the defendant's degree of participation in the crime was major. He developed the robbery plan,
provided the necessary transportation, and armed the co-defendant Price. The defendant shared in
the spoils of the crime and helped dispose of the evidence. Furthermore, Price had no prior criminal
history, while the defendant has a prior record which includes thirty-five aggravated burglary and
theft convictions. Finally, the defendant has not presented any authority for the proposition that a
sentence of life without parole plus 15 years is disproportionate for the offenses of first degree
murder, aggravated robbery, and conspiracy to commit aggravated robbery. Thus, the defendant's
effective sentence is not constitutionally infirm.

       Accordingly, the judgment of the trial court is affirmed, as modified.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




                                                -39-
