        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        AUGUST SESSION, 1998
                                                            FILED
                                                        December 29, 1998
STATE OF TENNESSEE,         )   C.C.A. NO. 02C01-9711-CR-00439
                                                     Cecil Crowson, Jr.
                            )                               Appellate C ourt Clerk
      Appellee,             )
                            )
                            )   SHELBY COUNTY
VS.                         )
                            )   HON. CHRIS CRAFT
KIMBERLY WILLIAMS,          )   JUDGE
                            )
      Appe llant.           )   (Direct Appeal - First Degree M urder)




FOR THE APPELLANT:              FOR THE APPELLEE:

EDWARD G. THOMPSON              JOHN KNOX WALKUP
Assistant Public Defender       Attorney General and Reporter
200 Jefferson, Suite 725
Memphis, TN 38103               MARVIN E. CLEMENTS, JR.
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                WILLIAM L. GIBBONS
                                District Attorney General

                                JERRY R. KITCHEN
                                DANIEL S. BYER
                                District Attorney General
                                201 Poplar Street
                                Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


       On February 27, 1997, a She lby Co unty jur y conv icted A ppella nt Kim berly

W illiams of first degree murder, especially aggravated kidnapping, aggravated

robbery, attempted a ggravated rob bery, two counts of aggravated assault, and

two counts of aggravated burglary. Following a sentencing hearing on March 17

and 26, 199 7, the trial cou rt impos ed a total s entenc e of life imprisonment plus

twenty-three years. Appellant challenges his sentence for each convic tion as well

as his conviction for first degree murder, raising the following issues:



       1) wheth er the evidence was sufficient to sup port the conviction for first
       degree m urder:
       2) whether the trial court properly applied various enhancement factors to
       Appellant’s sentences;
       3) whether the trial court properly sentenced Appellant to a longer term of
       imprisonment than his co-defendant; and
       4) whether the trial court properly denied Appellant’s motion for a list of the
       State’s witnesses for the sentencing hearing.


After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                      I. FACTS




       On February 27, 1996, at app roxim ately 1:00 a.m., Coleman Dickson, who

had b een s leepin g on th e floor n ext to his daughter, was awakened by Rodney

Jeffries, who was pointing a black n ine millim eter pistol a t Dickso n’s head . When

Jeffries asked “Wh ere is the dope at,” Dickson resp onded tha t he did not have

any drugs in h is apartm ent. App ellant then entered the apa rtment a nd tied up

Dickson and th en blin dfolde d him . Dicks on su bseq uently told the two me n where



                                           -2-
his .357 handgun was hidden and Appellant then retrieved the gun and loaded

it. The two men also took $70, a gold chain, a ring, a pager, and some keys from

Dickso n.



      When Dickson told them that he had previously purchased marijuana from

his neighbor, Appellant and Jeffries decided to enter the neigh bor’s apa rtment.

The two men then cut the bonds on Dickson’s feet and took him across the hall,

despite his pleading to be left with his children and his statement that he was

afraid that if he went into the other apartment he would be shot by whoever was

in it. Appellant then kicked in the back door of the neighbor’s apartment and

Dickson, who was still blindfolded and had his hands tied behind his back, was

shoved in first. Dickson remained blindfolded during all of the subs equen t events

in the sec ond ap artmen t.




      Gwe ndolin Pam plin was in bed with Artelia Anderson when she heard the

gunmen kick in the door to her apa rtment a nd yell “Po lice, that [sic] is a b ust.”

Before they co uld go out the bedroom door, one of the gunmen brought Tabitha

Todd into the bedroom while holding a gun to her back.            After the second

gunman entered the bed room, th ey ordered everyone to lay on the floor and

began asking for drugs and mo ney. After Anderson said that they didn’t have any

drugs o r mone y, Appe llant took A nderso n out of the bedroo m.



      As Appellant was taking Anderson out of the bedroom, Anderson broke

free and attemp ted to lock himself in the bathroom. Jeffries then left the bedroom

and joined Appellant. Appellant then kicked open the bathroom door and began

hitting Anderson in the head with the .357 handgun. Todd testified that during

                                         -3-
this time, one of the gunmen yelled “Put him in the bath—put this nigger in the

bathtub so we can shoot him” and “Look a t my face , nigger, be fore I kill you.”

Anderson then begged the gunmen not to kill him. After a scuffle, one of the

gunmen said “Shoot that nigger,” and shots were fired. Jeffries testified that

Appe llant shot tw ice and th en Jeffries shot twice .



          An autopsy revealed that A nderson was shot once in the back and once

in the thigh, with both shots severing major arteries. The autopsy also revealed

that Ander son ha d sustain ed seve ral injuries to his head that were co nsistent w ith

his being stru ck seve ral times w ith a pistol. The cause of Anderson’s death was

multiple g unsho t wound s.



                              II. SUFFICIENCY OF THE EVIDENCE




          Appellant contends that the evidence was insufficient to supp ort his

conviction for first degree murder. Specifically, Appellant does not contend that

the eviden ce is insufficien t to prov e that h e killed A nders on, Ap pellan t mere ly

contends that the evidence was in sufficie nt for a re ason able jury to find him guilty

of “intentional deliberate premeditated murder.” Initially, we note th at App ellant’s

argument that there was no proof of delib eration is irreleva nt. Th e crim es in th is

case were committed after the 1995 amendment that eliminated deliberation as

an eleme nt of first deg ree mu rder. See Tenn. Code Ann. § 39-13-202(a)(1)

(Supp. 1998) (“F irst degree murde r is: A prem editated a nd intentional killing of

another.”). 1



          1
           The record indicates that the trial court used the proper standard when it instructed the jury on first degree
murder.

                                                         -4-
       When an appellant challenges the sufficiency of the evidence, this C ourt

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State's witnesses and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839

S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a

presumption of innocence, a jury verdict removes this presumption and replaces

it with one of gu ilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,

on appeal, the burden of proof rests with Appellant to demonstrate the

insufficiency of the con victing evide nce. Id. On appe al, “the [S]tate is entitled to

the strongest legitimate view of the evid ence as well as all reasonable and

legitimate inference s that ma y be draw n therefro m.” Id. (citing State v. Cabbage,

571 S.W .2d 832, 83 5 (Te nn. 19 78)). W here th e suffic iency o f the evid ence is

contested on appe al, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reasonable doubt.           Harris , 839 S.W .2d at 75; Jackson v.

Virginia, 443 U .S. 307, 3 19, 99 S . Ct. 2781 , 2789, 61 L. Ed.2d 560 (19 79). In

conducting our evaluation of the convicting evidence, this Court is precluded from

reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). M oreover , this Cou rt may no t substitute its own inferences “for those

drawn by the trier of fact from circum stantial evidence.” Id. at 779. Finally, Rule

13(e) of the Te nnes see R ules o f Appe llate Pro cedu re prov ides, “fin dings of guilt

in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact beyond a

reasonab le doubt.” See also Matthews, 805 S.W.2d at 780.

                                           -5-
       Although premeditation requires that “the intent to kill must have been

formed prior to the act itself,” “[i]t is not necessary that the purpose to kill pre-exist

in the mind of the accu sed for a ny definite p eriod of tim e.” Ten n. Cod e Ann. §

30-13-202(d) (Supp. 1998). The element of premeditation is a question for the

jury and may be inferred from the circumstances surroun ding the k illing. State

v. Gentry, 881 S.W .2d 1, 3 (T enn. C rim. App . 1993).



       Looking at the facts in the present case in the light most favorable to the

state, as we a re require d to do, w e conc lude that th e eviden ce is sufficie nt to

support the jury's finding of premeditation. Indeed, the evidence showed that

both Appellant and Jeffries were armed when they kicked in the door and entered

the apartment were the killing occurred.            After Anderson broke free and

attempted to lock himself in the bathroom, Appellant kicked open the bathroom

door and began hitting Anderson in the head with the .357 handgun. Todd

testified that du ring this time, one of the gunmen yelled “Put him in the bath—put

this nigger in the bathtub so we can shoot him” and “Look at my face, nigger,

before I kill you.” Anderson then begged the gunmen not to kill him. Todd,

Pamplin, and D ickson all testifie d that they heard one of the gunmen give an

order to shoot A nderso n before the shots were fired . Clearly, a reasona ble jury

could infer from this sequ ence o f events tha t Appella nt had tim e to reflect on what

he was doing before he shot Anderson and thus, that his actions were intentional

and pre medita ted. This issue ha s no m erit.




                                           -6-
                         III. APPELLANT’S SENTENCE




      Appellant contends that the trial court made several errors in determining

his senten ce. Spe cifically, Appellant contends that the trial court misapplied

several enhancement factors.          Under Tennessee law, “[w]hen reviewing

sentencing issues . . . including the granting or denial of proba tion and th e length

of sentence, the appellate co urt shall conduct a de novo review on the record of

such issues.    Such review shall be conducted with a presumption that the

determinations made by the co urt from which the appea l is taken are correct.”

Tenn. Code Ann. § 40-35-401(d) (1997).             “However, the presumption of

correctness which accompanies the trial court's action is conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circu mstance s.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). “The defendant has the burden of demonstrating that the

sentence is im proper.” Id.



      A portion of the Sentencing Reform Act of 1989, codified at Tennessee

Code Annotated § 40-3 5-210 , estab lished a num ber of s pecific procedures to be

followed in sentencing. This section mandates the court's consideration of the

following:



      (1) The evidence, if any, received at the trial and the sentencing hearing;
      (2) [t]he presentenc e report; (3) [t]he principles of sentencing and
      argum ents as to sentencing alternatives;            (4) [t]he nature and
      characteristics of the criminal conduct involved; (5) [e]vidence and
      information offered by the parties on the enhancement and mitigating
      factors in §§ 40-35-113 and 40-35-114; and (6 ) [a]ny statement the
      defend ant wishe s to ma ke in his ow n beha lf about se ntencing .




                                         -7-
Tenn. Code Ann. § 40-35-210 (1997). In addition, this section provides that the

minimum sentence within the range is the presump tive sentence. If there are

enhancing and mitigating factors, the court must start at the minimum sentence

in the range and enhance the sentence as appropriate for the enhancement

factors and then reduce the sentence within the range as appropriate for the

mitiga ting factors.   If there are no mitigating factors, the court may set the

sentence above the minimum in that range but still within the range. The weight

to be given each factor is left to the discretion of the trial judge . State v. Shelton,

854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Act further provides that

“[w]henever the co urt imp oses a sen tence , it shall p lace on the record either

orally or in writing, what enhancement or mitig ating fa ctors it fo und, if a ny, as w ell

as findings of fact as requ ired by § 4 0-35-20 9.” Ten n. Cod e Ann. § 40-35-2 10(f)

(1997). Because of the importance of enhancing and mitigating factors under the

sentencing guidelines, even the abse nce o f these factors mus t be rec orded if

none are found. Tenn. Code Ann. § 40-35-210 (1997) comment. These findings

by the trial judg e mu st be re corde d in ord er to allo w an a dequ ate rev iew on

appe al. In addition, “[w]hen imposing sentences for multiple offenses, the trial

court must make separate findings as to which enhancement and mitigating

factors apply to which convic tions.” State v. C hristophe r Blocke tt, No. 02C01-

9509-CC-00258, 1996 W L 4176 59, at *4 (T enn. C rim. App., Jackson, July 26,

1996) (citing State v. Chrisman, 885 S.W.2d 834, 839 (Tenn. Crim. App . 1994).

Because the record indica tes that the trial court cons idered the sentencing

principles and all relevant facts and circumstances, our review of Appellants’

sentences is de novo with a presumption of correctness.




                                            -8-
         In determining the sentence for each of Appellant’s convictions, the trial

court found that the only mitigating factor that applied was the fact that Appellant

assisted the autho rities in locating Jeffries. See Tenn. Code Ann. § 40-35-113(9)

(1997). The c ourt ga ve little we ight to th is facto r beca use A ppella nt did th is only

after he had been arrested and he essentially tried to blame everything on

Jeffries. We agree th at no evid ence w as pres ented to suppo rt a finding that any

other m itigating facto rs were p resent.



         The trial court also found tha t at least two of the enh ancem ent factors listed

in Tennessee Code Annotated § 40-35-1 14 ap plied to each of App ellant’s

convictions. First, the court found that factor (1) applied because Appellant had

a previous history of criminal convictions or behavior. Appellant argues that the

trial court erred when it applied this factor because it found by a preponderance

of the evidence that Appellant had previously participated in a similar home

invasion robbery. 2           He ar gues that the trial cou rt’s reliance on this criminal

episode violates his constitutional rights because he had not yet been convicted

of the offense in a jury trial. This argument has no merit. The Tennessee

Supreme Court ha s held tha t a trial court may utilize criminal behavior shown by

preponderance of the evidence to enhance sentence, without violating due

process rights u nder th e fede ral or sta te con stitutions. State v. Carico, 968

S.W.2d 280, 2 87 (T enn. 1 998). In additio n, App ellant had prior convictions for



         2
          Initially, Appella nt argues that the re was not en ough pro of for the trial cou rt to conclud e by a
preponderance of the evidence that he was involved in the previous robbery. However, the record indicates that
Clifton Jackson testified that he was with Appellant and another man when they went to a residence, kicked down the
door, identified themselves as police, and entered the residence for the purpose of stealing drugs and money. At
some point, Jackson was shot. Foxy Branch, who was living at that apartment at the time, testified that three men
broke into the apartme nt, that numero us gunshots w ere fired, and that after the incide nt there was b lood eve rywhere.
Donald Ross of the Memphis Police Department testified that Appellant had admitted taking two men to this location
on the night in question. This is clearly enough proof for the trial court to conclude by a preponderance of the
evidence that Appe llant was involve d in this previo us criminal act.

                                                        -9-
driving on a suspended license and simple assault. Thus, the trial court was

clearly correct in applying factor (1) to th e sen tence s for all o f Appe llant’s

convictions.



       The trial court also applied factor (8), that the defendant has a previous

history of unwillingness to c omply with con ditions of release into the comm unity,

to all of Appe llant’s conv ictions. See Tenn. C ode Ann . § 40-35-114 (8) (1997).

Howeve r, the court did not give this factor much weight because it involved a

misdemeanor sentence. Appellant does not challenge the application of this

factor an d we ag ree that the trial court wa s correc t in applying it.



       The trial court found that enhancement factor (2) applied to the convictions

for the aggravated robbery and especially aggravated kidnapping of Dickson

because Appellant was the leader in those two offen ses. See Tenn. Code Ann.

§ 40-35-114(2) (1997). The court based its decision on the fact that Appellant

had stated in his pre-trial confession that he was the one who tied Dickson up,

took his necklace, and intended to take him across the hall to the other robb ery.

The court also based its decision on other evidence which established that

Appellant was the one who took Dickson’s gun. Appellant argues that the fact

that Jeffries was the one who drove the car to the apartment and was the one

who entered Dickson’s apartment first shows that Appellant was not the leader.

W e disagree. This Court has stated that “enhancement for being a leader in the

commission of an offense does not require that the defendant be the sole leader

but only that he be ‘a’ leader.” State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim.

App. 1993)     Further, “[b]oth of two criminal actors may be ‘a leader in the

commission of an offense.’” Id. Indeed, this Court found in Hicks that while the

                                          -10-
co-defendant led the preparation, the defendant clearly led the perpetration and

thus, both were leaders in the commission of aggravated robbery.          Id. Thus,

even if Jeffries led the preparation, as Appellant apparently claims, the trial court

could still conclude that Appellant was the leader in the perpetration of the

offenses against D ickson.         B ecaus e we m ust review the trial c ourt’s

determ ination that Appellant was a leader in these two offenses with a

presumption of correctness, we conc lude th at the tria l court w as co rrect in

applying factor (2).



         The trial court found that enhancement factor (9), that Appellant possessed

a firearm during the commission of an offense, only applied to the aggravated

burglary of Pam plin’s apa rtment. See Tenn. Code Ann. § 40-35-11 4(9) (1997).

Appellant does not challenge the application of this factor and we agree that it

was correctly applied because use of a firearm is not an element of the offense

of aggravated burglary. See State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App.

1997).



         The trial court found that enhancement factors (10) and (16), that Appellant

had no hesitation in committing a crime when the risk to human life was high and

that the crime was committed under circumstances under which the potential for

bodily injury to the victim was great, applied only to the especially aggravated

kidnapping of Dickson. See Tenn . Code Ann. § 4 0-35-11 4(10), (16 ) (1997). It

is true that generally, a court could not apply these factors to enhance a sentence

for especially aggravated kidnapping conviction because a high risk of death or

bodily injury is inherent in the offense. See State v. Claybrooks, 910 S.W.2d 868,

872 (Tenn. Crim. App. 1994) (“Although not a designated element of the offense,

                                         -11-
any en hanc eme nt facto r which is inherent in the offense itself may not be used

to increase the defendant’s sentence.”). However, the Tennessee Supreme

Court has stated that enhancement factors which are inherent in the nature of the

offense may be applied to the sentence if they “demonstrate a culpability distinct

from and appreciab ly greater that incident to the crime.” State v. Poo le, 645

S.W .2d 93, 98 (Tenn . 1997). In this case, the trial court expressly stated that it

was not relying on Appellant’s use of a gun when it found th at these factors

applied. The co urt stated th at it found tha t these factors applied because

Appellant and Jeffrie s had taken Dicks on ou t of his a partm ent an d throw n him

into the second apartmen t knowing that the re might be gunfire. We agree. By

forcing Dickson into the second apartment ahead of themselves, knowing that

there was a g reat pos sibility that he w ould be shot, Appellant and Jeffries

demonstrated “culpability dis tinct from and appre ciably greater than” that inherent

in the crime itself. Dickso n had a lready be en sub jected to risk of death or bodily

harm when he was tied up at gunpoint and taken out of his apartment into the

hall.    By thro wing him into the second apartment ahead of themselves and

leaving him partially tied up while shots were being fired, Appellant and Jeffries

greatly increased this risk beyond what w as ne cess ary to co mple te the e spec ially

aggravated kidnapping. The trial court correctly ap plied facto rs (10) an d (16) to

the sentence for this offense.3



         In short, Appellant has not m et his burden o f showing that the trial court

misapplied any enhancement factors. In addition, we cannot say that the trial


         3
          Even if the facts had not demonstrated a culpability distinct from and appreciably greater than that incident
to the crime, the trial court could still have applied theses factors because “[b]oth factors may be applied in situations
where individuals other than the victim are in the area and are subject to injury.” State v. Sims, 909 S.W.2d 46, 50
(Tenn. Crim. App. 1995). In this case, Dickson’s young daughter could easily have been injured during the
kidnapp ing of her father a nd subseq uent shooting in the next do or apartm ent.

                                                        -12-
court abused its discretion in determining the length of each sentence.4 This

issue ha s no m erit.



                                  IV. DISPARITY IN SENTENCES




         Appellant conte nds th at his sentence should be reduced because the trial

court did not comply with the Sentencing Reform Act of 1989 when it sentenced

him to a longer term of imprisonment than co-defendant Jeffries.5 Appellant cites

the case of State v. Jenk ins, 733 S.W.2d 528 (Tenn. Crim. App. 1987), as

support for this pro position. While it is true that this Court did state that the

disparity in sentences in that case should be eliminated, this was because the

disparity was unjustified. Id. at 533. Indeed, this Court has stated that under the

1989 A ct, “



         [A] case-by-case approach to sentencing underlies this Act as a
         fundamental policy. An individual crimin al is sentenced based on the
         nature of the offense and the totality of the circumstances in which it was
         committed, including the defendant’s background. Any case-by-case
         approach will embody discretion, since all of the appropria te factors and
         circumstances must be weighed and considered as a whole for the
         disposition of each ca se. But, [inequalities in sentences that are unrelated
         to a purpose of this chapter should be avoided. The implication is that,
         while more u niformity of s entenc es is one goal of the Act . . . some justified
         disparity or inequality in sentences necessarily results from a case-by-case


         4
           The trial court imposed a sentence of twenty-three years for the especially aggravated kidnapping of
Dickson , ten years for the a ggravated robbery o f Dickson, a nd four year s for the aggra vated burg lary of Dickso n’s
apartment, with these three sentences to run concurrently. The trial court imposed a sentence of life imprisonment
for the first degree murder of Anderson, four years for the attempted aggravated robbery of Anderson, four years for
the aggravated assault of Todd, four years for the aggravated assault of Pamplin, and five years for the aggravated
burglary of Pamplin’s apartment, with these five sentences to run concurrently. The court then ordered the sentences
for the crimes against Dickson to run consecutive to the crimes against Anderson, Todd, and Pamplin, for an
effective sentenc e of life plus twenty-thre e years.

         5
           Jeffries was sentenced to three years for the attempted aggravated robbery of Anderson, eight years for the
aggravated robbery o f Dickson, thr ee years for the aggravated assault of To dd, three yea rs for the aggra vated assau lt
of Pamplin, three years for the aggravated burglary of Dickson’s apartment, three years for the aggravated burglary
of Pamplin’s apartment, fifteen years for the especially aggravated kidnapping of Dickson, and life imprisonment for
the first degree m urder of A nderson. A ll sentences we re ordere d to be serv ed conc urrently.

                                                        -13-
      method by which an offender receives the sentence he deserves but not
      a sentence greater than that . . . for the offense committed.


State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991) (quoting State

v. Moss, 727 S.W .2d 229 , 235–3 6 (Ten n. Crim. A pp. 198 6)). Thu s, not all

disparities in sentencing must be eliminated, only those that are unjustified

require elimination.



      In this case, the trial court gave several reasons why it was sentencing

Jeffries and Appellant to different terms of imprisonment. The court stated that

Appe llant’s case was “completely differen t” from that of J effries’ b ecau se in

Appellant’s case, the State had shown that Appellant had a previous history of

committing similar “crimes involving weapon s and dan ger.” Further, the co urt

stated that while “Jeffries is extremely remorseful and has done everything he

can to mak e up for w hat he d id,” “[Appellant’s] whole attitude during the trial was

one of ‘Mr. Jeffries did everything.’” The court also stated that while it believed

that Jeffries was “not a d ange r to soc iety,” Ap pellan t was “a n extre mely

dangerous person , and for that reason, he needed the appropriate sentencing

that he got to protect society from him.”         The court also found that the

enhancement factors in Jeffries case were “more than made up for by the fact

that he is so remorseful.” We cannot say that the trial court was wrong in making

these determinations. Indeed, “[t]he trial court, as the trier of fact at sentencing

hearings, has the opportunity to observe the manner and the demeanor of the

witnesses. Consequently, this Court gives great weight to the determinations

made by the trial court concerning the credibility of the witnesses; and this Cou rt

will not interfere with the trial court's findings of fact in this regard unless the

evidence conta ined in the record clearly prep ondera tes aga inst these findings.”

                                         -14-
State v. Melvin , 913 S.W.2d 195, 202 (Tenn. Crim. App. 19 95). In sho rt, we ho ld

that the trial court was justified in sentencing Appellant and Jeffries to different

terms o f imprison ment.



       In addition to justifiably imposing a longer term of imprisonment on

Appe llant, the trial court was also justified in ordering the consecutive sentencing

of Appellant.     Consecutive sentencing is governed by Tennessee Code

Annotated § 40-35- 115. T he trial c ourt m ay ord er con secu tive sen tencin g if it

finds that one or more o f the requ ired statuto ry criteria exist. State v. Black, 924

S.W.2d 912, 91 7 (Ten n. Crim. A pp. 199 5). Furthe r, the court is required to

determine whether the consecutive sentences (1) are reasonably related to the

severity of the offenses committed; (2) serve to protect the public from further

criminal c onduc t by the offen der; and (3) are congruent with general principles

of senten cing. State v. Wilkerson, 905 S .W .2d 93 3, 939 (Ten n. 199 5). In this

case, the court found that the statute was satisfied because Appellant was a

dangerous offender whose behavior indicates little or no regard for human life

and he had no he sitation in com mitting an offense w hen the risk to hum an life

was high. See Tenn. Code Ann. § 40-34-115(4) (1997 ). The court b ased this

decision on the fact tha t Appe llant ha d no h esitatio n in com mitting the crim es in

this case after he had participated in the previous armed home invasion whe re

one of his acco mplices was sh ot.        The c ourt also fo und tha t consecutive

sentencing was reasonably related to the offenses committed because of the way

Appellant treated Anderson before he killed him and because armed home

invasion is “one of the mos t horrible crimes tha t can be com mitted.” The c ourt

also concluded that consecutive sentences would be the best way to protect

society.    Finally, although the trial court did not expressly state that it had

                                          -15-
considered whether consecutive sentences were congruent with the general

principles of sentencing, we conclude in our de novo review that this requirement

is satisfie d in this case . Thus , we ho ld that th e trial court did not abu se its

discretion when it imposed consecutive sentences on Appellant when it had not

done so with Jeffries.



              V. DENIAL OF APPELLANT’S PRE-TRIAL MOTION




       Appellant contends that the trial court erred when it denied his pre-trial

motion for a list of the State’s witnesses for the sentencing hearing. We agree.

In fact, the Tennessee Supreme Court held in State v. Buck, 670 S.W.2d 600,

606 (Tenn. 1984), that it was error for a trial court to overrule the defendant’s

objection to the testimony of two witnesses during the sentencing hearing

because the State had failed to list names of witnesses in response to the

defen dant’s pre-pretrial motion for discov ery. Fu rther, th is Cou rt has p reviou sly

stated that the S tate has a sta tutory duty to disclose the identity of the witnesses

it intends to use. State v. Taylor, 661 S.W.2d 695, 699 (Tenn. Crim. App . 1983);

State v. Ronald David Lee, No. 03C01-9410 -CR-0039, 1995 WL 39 5840, at *7

n.2 (Tenn . Crim. App., N ashville, July 6, 1995).



       Howeve r, the fac t that the trial cou rt erron eous ly denie d App ellant’s motion

does not me an that he is autom atically entitled to relief. Indee d, the State’s

statutory duty to disclose witness names is merely directory, not mand atory.

State v. Harris , 839 S.W .2d 54, 68 (Tenn . 1992). “The determination of whether

to allow [a n und isclose d] witne ss is left to the sound discretion of the trial judge.”

State v. Kendricks, 947 S.W .2d 875 , 883 (T enn. C rim. App . 1997). “A defendant

                                           -16-
will be entitled to relief for non disclosu re only if he o r she can demo nstrate

prejudice, bad faith, or undu e advantag e.” Id. Appellant has failed to show how

he was prejudiced by the nondisclosure of the names of witnesses to be called

at the sen tencing h earing. In his brie f, Appe llant on ly challenges the testimony

of the State’s witnesses regarding Appellant’s participation in another armed

robbery for which he was not convicted. However, the record reveals that

Appe llant’s trial counsel ably cross -examined these witness es. Further, there is

nothing in the record that indicates that Appellant’s trial counsel objected to the

testimony of these witness es on non disclosure ground s. Appella nt has faile d to

show what more he could or would have done if he had known the names of

these witnesses before trial. W hat Ap pellan t really appea rs to be co ncerne d with

is the substance of the w itness es’ tes timon y, not the fact tha t their names were

not disclos ed be fore tria l. How ever, “[I]n this con text, it is not the prejudice which

resulted from the witness’ testimony but the prejudice which resulted from

defen dant’s lack of notice which is re levant to es tablish pre judice.” Id. In short,

Appellant has failed to show that any prejudice resulted for nondisclosure and he

has not even alleged bad faith or undue advantage.               We see no abuse of

discretion by the trial judge in allowing these w itnesses to testify.



       Accordingly, the judgment of the trial court is AFFIRMED.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE




                                           -17-
CONCUR:



___________________________________
DAVID H. WELLES, JUDGE


___________________________________
JOHN K. BYERS, SENIOR JUDGE




                             -18-
