           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                        FEBRUARY 1997 SESSION
                                                   FILED
                                                      July 25, 1997

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 02C01-9605-CR-00170
           Appellee,            )
                                )    SHELBY COUNTY
VS.                             )
                                )    HON. JOSEPH B. BROWN, JR.,
KEVIN B. BURNS,                 )    JUDGE
                                )
           Appellant.           )    (First-degree murder death penalty;
                                )     attempted felony murder)


FOR THE APPELLANT:                   FOR THE APPELLEE:


GLENN I. WRIGHT                      JOHN KNOX WALKUP
200 Jefferson Ave.                   Attorney General & Reporter
Suite 800
Memphis, TN 38103                    DARIAN B. TAYLOR
                                     Asst. Attorney General
WILLIAM L. JOHNSON                   450 James Robertson Pkwy.
50 N. Front St.                      Nashville, TN 37243-0493
Suite 1150
Memphis, TN 38103                    JOHN W. PIEROTTI
                                     District Attorney General

                                     THOMAS D. HENDERSON
                                               -and-
                                     JOHN WHEELER CAMPBELL
                                     Asst. District Attorneys General
                                     201 Poplar Ave.
                                     Memphis, TN 38103




OPINION FILED:____________________



CONVICTIONS FOR FIRST-DEGREE MURDER AND DEATH PENALTY
AFFIRMED; CONVICTIONS FOR ATTEMPTED FELONY MURDER REVERSED
AND REMANDED

JOHN H. PEAY,
Judge
                                        OPINION



              The defendant was indicted on two counts of murder in the perpetration of

a robbery (felony murder), two counts of premeditated murder, two counts of attempted

first-degree murder during the perpetration of a robbery (attempted felony murder) and

two counts of attempted premeditated first-degree murder. A jury convicted him of two

counts of felony murder and two counts of attempted felony murder. After a hearing, the

jury sentenced the defendant to death for one of the murders and to life imprisonment

for the other murder. He was sentenced to twenty-five years for each of the attempted

felony murders. In this appeal as of right, he raises the following issues:


                 I.   The sufficiency of the convicting evidence;

                II.   The trial court’s refusal to suppress his statement;

               III.   The trial court’s instruction to the jury on flight;

               IV.    The validity of his convictions for attempted felony murder;

               V.     The trial court’s failure to grant a mistrial upon sobbing in the
                      courtroom;

                VI. The admissibility of a crime scene photograph;

               VII. The trial court’s responses to questions from the jury during
                    its deliberations;

              VIII. The sufficiency of the evidence in support of the death
                    penalty;

                IX. Whether the death penalty was properly imposed in light of
                    the defendant’s role in the crime;

               X.     Whether the victims’ mothers were properly permitted to testify
                      during the sentencing hearing as to the impact of the murders;
                      and

                XI. The constitutionality of Tennessee’s death penalty statutes.


Following our review of the record in this matter, we affirm the defendant’s first-degree

murder convictions and sentences, reverse and dismiss his convictions for attempted

felony murder, and remand this matter for retrial of two counts of attempted premeditated

                                              2
first-degree murder.



                                         FACTS

              The proof at trial established that on April 20, 1992, at approximately 3:15

in the afternoon, Eric Thomas, Damond Dawson, Tommie Blackman and Tracey Johnson

gathered at Dawson’s house in a residential neighborhood in East Memphis. The four

men ranged in age from sixteen to twenty-one years old. They sat in Dawson’s sedan

while it was parked in his driveway, the front of the car facing and perpendicular to the

street. Dawson sat in the driver’s seat, Johnson in the front passenger seat, Thomas

behind Dawson in the back seat and Blackman in the back seat behind Johnson. While

they sat there, they smoked some marijuana and drank some gin. Johnson’s mother

testified that she had seen her son wearing a jewelry chain that morning.



              Thomas testified that, five or ten minutes after they had been in the car,

Carlito Adams and another male walked up to its passenger side. The other male pulled

out a pistol. Carlito Adams exchanged some words with Blackman and told him to get

out of the car. Blackman initially refused, then got out of the car and began running.

Thomas testified that Carlito Adams had then said, “Get him.” At that point, according

to Thomas, three or four more men “came from around the bushes and shot at

[Blackman] about six or seven times.” On cross-examination, however, Thomas stated

that he had seen only one person actually fire at Blackman as he ran away.



              Thomas testified that he, Dawson and Johnson had remained in the car

while the men then surrounded it, pointed pistols at them and robbed them, taking money

from him and jewelry from Johnson and Dawson. After taking these items, according to

Thomas, the men had begun shooting at them, hitting him in the chest and stomach.

Thomas testified that they had also been shooting Dawson and Johnson and he had

decided to “lay down and try to play dead.” At some point, he testified, “they ran off, and

                                            3
I thought that was it. And then I heard some footsteps coming back, so I laid back there

again, and somebody came back and started shooting back again.” On this return visit,

Thomas testified, two people had shot on his side of the car, hitting him in the upper leg

and shooting Dawson again. Someone said, “We got <em,” and the assailants then left.

When Thomas rose from his position, he saw Dawson “messed up pretty bad in the front

seat.” When he looked across the street, he saw Johnson “lying with his head on the

sidewalk and his body -- the rest of his body in the street.”



                Thomas testified that Carlito Adams had been the only assailant he had

recognized. However, on April 22, 1992, detectives showed him a photographic spread

from which he identified number five as the person who had shot him.1 He also testified

that this same person had taken his money and shot someone else. Thomas testified

that none of the occupants of the car had had any guns or knives.



                On cross-examination, Thomas admitted to having initially told the police

that Carlito Adams had shot him. He explained that he had given the police Adams’

name when they arrived on the scene and while he was still in the car after having been

shot. He testified that Adams had been “the only person I knew on the scene, and I

thought I was gonna die. And the only way I was going to get them to come to justice

was to call out the only name that I knew at that time, which was Carlito Adams.”



                Tommie Blackman also testified at trial. He stated that, while he and his

three friends had sat in Dawson’s car, Carlito Adams and another man came up to the

passenger side of the car. Adams asked him to get out, Dawson told him not to, and the

other male pulled a pistol and went to the driver’s side of the car. When the other male

passed in front of the car going to the driver’s side, Blackman pushed the door open,


        1
          Thom as did not make an in-court identification of the defendant. And while no proof was
introduced as to the name of the person whose photograph was identified as “number five,” an FBI
age nt testified that the ph otog raph app eare d to be of the de fendan t.

                                                   4
hitting Adams and knocking him down. Blackman then got out of the car and ran behind

it toward the house. He heard Adams yell and turned to see two or three other men

coming from behind the bushes beside the driveway pointing pistols and shooting.

Blackman continued to run to the house, eventually making it inside. He testified that he

had continued to hear shooting after he was in the house. He received a minor bullet

wound to his right arm as he ran. Blackman also testified that he had recently gotten into

an argument with Adams while they were playing basketball.



              Eric Dewayne Jones was fourteen in April 1992 and lived across the street

from Dawson. On the day of the murders, he was playing basketball in Dawson’s yard

with a couple of other boys. He testified that, as he had been on his way back home and

approaching the front of Dawson’s house, he saw some men holding a gun on Dawson,

Blackman, Johnson and Thomas as they sat in Dawson’s car. He testified that he had

seen “about three of them,” recognizing only Carlito Adams. He testified that he had

“stopped in my tracks, and [Blackman] was running my way.” As Blackman approached

him, Jones testified, he told him to run. Jones did so, preceding Blackman as they ran

toward the house. He testified that, as they had run, someone had shot at them “several

times.” He further testified that, while he and Blackman had been running, the boys with

whom he had been playing basketball were also several feet away, in the line of fire.



               After he had reached the house, Jones testified, he heard seven or eight

more shots. He also testified that, about two seconds before Blackman came running at

him, he had heard the man standing at Dawson’s door with a pistol say “Drop it off” and

that the men inside the car had been “cooperating, taking off the jewelry and money out

[of] their pockets.”



                Mary Jones, Eric Jones’ mother, lived in the house directly across the

street from Dawson’s. She testified that, on the afternoon of April 20, 1992, she had

                                            5
heard a gunshot and went to look out her door to see what was happening. As she

looked out, she saw two men running up Dawson’s driveway toward the car in which

Dawson and the others were sitting. She testified that these two men had had their guns

“down” as they were running. However, “as they approached the car, the one on the

driver’s side, he walked up to the car and started shooting.” She testified that she had

also seen another man run up to the passenger side of the car “with a gun in his hand.

And he shot [Johnson] once in the chest. And the other guy that was on the driver’s side,

he was shooting [Dawson] several times. And after he stopped for awhile, he walked

around in front of the car with the gun pointed, and he slowly walked on back around on

the driver’s side again and started shooting some more.” She testified that Dawson’s car

had been “directly facing my driveway and door” and that she could see who was sitting

in the car.



              On cross-examination, Ms. Jones admitted that she had been unable to

identify the shooters from a photo spread shortly after the shooting. However, she

explained this as a result of the photos being out of date. On redirect, she stated

unequivocally that she recognized the defendant as “the one that shot [Dawson],” and

that he had been the person who had shot, gone to the front of the car, returned and shot

again. She further stated on recross that she had gotten “a real good look in his face” as

he ran toward her after the shooting.



              Kenneth Alan Shackelford, a Memphis police officer, testified that he had

arrived on the crime scene so soon after the shooting that he “could still smell gunpowder

in the air from the guns going off.” He found Johnson lying face down at the sidewalk,

already dead. He checked the car, found Dawson and Thomas still alive, and called

ambulances. He testified that he had checked the car and found no weapons in it.

Officer Frederick Louis Sansom also testified that he had found no weapons in the car,

but had found numerous cartridge casings in and near the car and one bullet in the car.

                                            6
He further testified that he had observed Johnson’s body and that he had seen no watch

or jewelry on it. No weapons were found at the crime scene.



             FBI agent Scott M. Bakken testified that, in June 1992, his office in Chicago

had received a request from the Memphis FBI office to locate and apprehend the

defendant.   Subsequent to that request, he and several other agents located the

defendant at the apartment building where the defendant’s brother and sister lived and

took him into custody. He testified that the defendant had cooperated and presented no

problem. When the defendant was delivered to the FBI office in Chicago, he was turned

over to agents John Landman and Lee W. Harbaugh.



             Agent Lee W. Harbaugh testified that the defendant had been advised of

his rights in his presence and that the defendant had signed a waiver of those rights.

Agent Harbaugh also signed the waiver as a witness. He testified that the defendant had

been very cooperative and that, after signing the waiver of rights form, the defendant

gave him a statement about the shooting. According to agent Harbaugh’s testimony, the

defendant’s account of the events was as follows:

             The defendant had been living in West Memphis when he received
             a phone call from Kevin Shaw telling him that four men had jumped
             Shaw’s cousin in East Memphis, Tennessee. The defendant and
             another man went to Shaw’s residence where they met Shaw and
             two other men. Shaw explained that the five of them were going to
             go fight the men who had jumped his cousin. The five men then left
             in two cars and drove to a residential area in East Memphis. When
             they got out of the cars, Shaw and two of the other men pulled out
             handguns. Shaw had two extra handguns which he gave to the
             defendant and the fifth man. The defendant asked Shaw what the
             guns were for and was told that the four men they were going to fight
             would be armed. The five men then began to walk toward Dawson’s
             car. A short distance from the car, the defendant and two of the men
             stopped while Shaw and the fifth man continued toward the car.
             Shaw appeared to be conversing with one of the men in the car. The
             defendant then heard a gunshot, one of the men got out of the car
             and began running, and Shaw and the other man at the car began
             shooting at the man running away. Right after that, the defendant
             stepped toward the driveway and, from about ten to twenty feet, fired
             the handgun he had been given at the man running away. The
             defendant fired at this man three times as he ran across the yard.

                                               7
                Then there was a lot of shooting. He then ran back to the cars in
                which they had arrived. The rest of the men ran back as well, and
                they all left the scene in their cars. When the defendant later learned
                that there had been a shooting in East Memphis, he thought it might
                have been the one in which he had been involved. He then got a
                friend of his to give him a ride to Chicago where his brother and sister
                lived.2

Agent Harbaugh further testified that the photograph identified by Eric Thomas from the

photo spread appeared to be of the defendant.



                 Dr. O’Brian Cleary Smith performed the autopsies on Johnson and Dawson.

He testified that Johnson had been shot once in the chest with the bullet going through

the heart and into the left lung. He testified that, with this type of wound, a person could

live some minutes, maintain consciousness and be capable of moving for some amount

of time. He testified that this gunshot wound had caused Johnson’s death. Dr. Smith

testified that Dawson had received five gunshot wounds: one to the left upper arm, one

in the left chest, two on the side of the left buttock and one on the left hip. He further

testified that Dawson had died “as a result of multiple gunshot wounds.”



                 The defendant offered no proof.




        2
          This is not a verbatim account of Agent Harbaugh’s trial testimony. It is indented in this opinion
solely as a matter of reading convenience.

                                                     8
                                       ANALYSIS

                         I. SUFFICIENCY OF THE EVIDENCE

              The defendant first challenges the sufficiency of the evidence on which his

murder convictions are based. When a defendant challenges the sufficiency of the

convicting evidence, we must review the evidence in the light most favorable to the

prosecution in determining whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979). We do not reweigh or re-evaluate the evidence and are required

to afford the State the strongest legitimate view of the proof contained in the record as

well as all reasonable and legitimate inferences which may be drawn therefrom. State

v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



              Questions concerning the credibility of witnesses, the weight and value to

be given to the evidence, as well as factual issues raised by the evidence are resolved

by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict

rendered by the jury and approved by the trial judge accredits the testimony of the

witnesses for the State, and a presumption of guilt replaces the presumption of

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



              These murders were committed on April 20, 1992. At that time, the form

of first-degree murder known as “felony murder” consisted of “[a] reckless killing of

another committed in the perpetration of, or attempt to perpetrate any first degree

murder, arson, rape, robbery, burglary, theft, kidnapping or aircraft piracy.” T.C.A. § 39-

13-202(a)(2) (1991 Repl). In this case, the murders were committed in the perpetration

of a robbery. Robbery is “the intentional or knowing theft of property from the person of

another by violence or putting the person in fear.” T.C.A. § 39-13-401(a) (1991 Repl).

Furthermore, a person is criminally responsible for the conduct of another when the

person, “[a]cting with intent to promote or assist the commission of the offense, or to

                                            9
benefit in the proceeds or results of the offense, . . . solicits, directs, aids, or attempts to

aid another person to commit the offense.” T.C.A. § 39-11-402(2) (1991 Repl).



               In his statement to agent Harbaugh, the defendant indicated that he had

accompanied Shaw and three other men to the scene of the crime and that their intent

had been to confront the people who had “jumped” Shaw’s cousin. Once they arrived in

the general proximity, Shaw gave the defendant a handgun. Nothing in the record

demonstrates that the defendant refused the weapon or was forced to carry it. The

defendant further indicated in his statement that he had willingly walked toward Dawson’s

car and that he subsequently shot three times in the direction of the fleeing occupant.

Thus, since there appears to be no doubt that the defendant was present at the scene

of the crime, the pivotal question becomes whether the proof was sufficient to support a

finding that he killed Dawson and Johnson in the perpetration of a robbery and/or that he

was criminally responsible for the conduct of another in this respect.



               The record establishes that Johnson, Dawson and Thomas were robbed

as they sat in Dawson’s car, and that they were all shot as soon as the robbery was

complete. Thomas testified that Carlito Adams and several other individuals had

surrounded the car, “[p]ulled out their pistols, had their pistols aimed at us. Took money

from me; took jewelry from [Johnson]; took jewelry from [Dawson].” Upon being asked

what happened next, he testified, “they opened fire, and they started shooting us.”

Shortly after the shootings, Thomas identified one of the assailants from a photo spread.

He testified at trial that this had been the man who had taken his property and then shot

him. Although Thomas did not make an in-court identification of the defendant, this photo

spread was provided to the jury members and they were able to determine with their own

eyes whether or not the photo was of the defendant. Moreover, agent Harbaugh testified

that the photo appeared to be of the defendant. Thus, the jury could properly have

concluded from Thomas’ testimony alone that the defendant participated in the robbery

                                              10
and shot at the car’s occupants. However, the jury also had before it Mary Jones’

testimony that she had seen the defendant shoot Dawson, that she had been “looking

right at him” and that “[a]s [the defendant] was running down the driveway, after he

finished shooting [Dawson], that’s when I got a real good look in his face.” And Eric

Jones’ testimony corroborated Thomas’ testimony that Thomas, Johnson and Dawson

had all been robbed and then fired upon. Johnson’s mother testified that she had seen

her son wearing a jewelry chain the morning of his murder. When he was found by the

police, immediately after the shooting occurred, there was no jewelry.



              Taken in the light most favorable to the State, this proof was more than

sufficient to establish beyond a reasonable doubt that the defendant had participated in

a robbery of Thomas, Johnson and Dawson and that, immediately following the robbery,

he shot and killed Dawson. And although there was no direct proof that the defendant

shot at and killed Johnson, the evidence established that Johnson had been shot while

in the car following the robbery in which the defendant participated. Thus, although one

or more of the other men surrounding the car and robbing its occupants may have

actually fired the bullet that killed Johnson, the defendant remains responsible for

Johnson’s murder:

              The Tennessee offense [of felony murder during the perpetration of
              a robbery] extends both to the killer and his accomplices. A
              defendant who is a willing and active participant in a robbery
              becomes accountable for all of the consequences flowing from the
              robbery and may be convicted of first-degree murder where a co-
              perpetrator of the felony is the actual killer.

State v. Middlebrooks, 840 S.W.2d 317, 336 (Tenn. 1992).



              The felony murder statute dealt with in Middlebrooks was slightly different

from the one at issue in this case, providing, “Every murder . . . committed in the

perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape,

robbery, burglary, larceny, kidnapping, aircraft piracy, or the unlawful throwing, placing


                                           11
or discharging of a destructive device or bomb, is murder in the first degree.” T.C.A.

§ 39-2-202(a) (1982). In 1989, the statute was amended to provide that the killing in the

perpetration of the enumerated felonies be “reckless.” T.C.A. § 39-13-202(a)(2) (1989

Supp). “Reckless” in turn refers to a person who, although aware of a substantial and

unjustifiable risk that a person or persons will be killed as a result of his conduct,

nevertheless consciously disregards that risk and engages in the conduct. See T.C.A.

§ 39-11-106(31) (1991 Repl). This Court has previously held that this addition of the

word “reckless” to the felony murder statute “does not alter the principle that an

accomplice to the underlying felony may also be guilty of felony murder even though the

killing has been committed by a co-felon. The jury need only find that the defendant was

a participant in the perpetration of the underlying felony and that his conduct as to the

killing was <reckless.’ ” State v. Timothy D. Harris, C.C.A. No. 02C01-9211-CR-00258,

Shelby County (Tenn. Crim. App. filed April 13, 1994, at Jackson), rev’d on other grounds

(1996).   And, as our Supreme Court noted in Middlebrooks, “one who purposely

undertakes a felony that results in a death, almost always can be found reckless.” 840

S.W.2d at 345.



              In this case, the strongest legitimate view of the proof in favor of the State

is that the defendant approached Dawson’s car with a loaded pistol, participated in a

robbery in which other armed individuals were also participating, and then shot several

times into the car. The defendant’s actions satisfy the statutory definition of “reckless.”

Accordingly, the proof at trial was sufficient to prove beyond a reasonable doubt that the

defendant murdered Dawson in the perpetration of a robbery, and that he was criminally

responsible for Johnson’s murder in the perpetration of the same robbery.              Both

convictions are supported by the evidence and this issue is therefore without merit.



                 II. SUPPRESSION OF DEFENDANT’S STATEMENT

              The defendant next complains that the trial court erred when it denied his

                                            12
motion to suppress his statement. The defendant was apprehended in Chicago by FBI

agents. He testified at the suppression hearing that he had been read his rights when

he was first arrested and handcuffed. He also testified that he had understood his rights

before making his statement, that he had not been promised anything in return for his

statement, and that he had not been threatened into making his statement. However,

when asked at the suppression hearing, “you knew you didn’t have to talk to [the

agent]?”, the defendant responded, “I didn’t really understand, but I did because he was

asking me questions.” This is the crux of the defendant’s contention that he did not waive

his constitutional rights freely and voluntarily.



              It is the duty of the trial judge to determine the voluntariness and the

admissibility of a defendant’s pre-trial statement. State v. Pursley, 550 S.W.2d 949, 952

(Tenn. 1977). Moreover, the trial court’s determination that a confession was given

knowingly and voluntarily is binding on the appellate courts unless the appellant can show

that the evidence preponderates against the trial court’s ruling. State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996). In the instant case, the defendant has failed to demonstrate

how the evidence preponderates against the trial court’s ruling.



              At the conclusion of the testimony at the suppression hearing, the trial court

stated the following:

              The defendant says the person that handcuffed him gave him his
              rights on the scene -- he didn’t read them from a card, but he said
              them to him. He said he understood his rights. He doesn’t
              remember all of them, but he knows that he was advised, <You have
              a right to remain silent and anything you say can and will be used
              against you.’

              He doesn’t recall the one about right to counsel, as is complained of
              in the motion; but he, too, does not deny that he was not [sic] told
              this. He admits, freely, that he was advised of his rights when he
              was initially handcuffed. Through his own statement, he was advised
              of his rights; he understood them; he’s a high-school graduate; he
              was not coerced; he was not pressured; he was not threatened;
              nobody promised him anything.


                                                    13
              ....

              But from what the court has . . . seen here, it would appear that, on
              all fours, the defendant freely and voluntarily, understandingly,
              knowingly, advisedly, and intelligently waived his rights free from any
              coercion, threats, pressures of any kind that would have induced him
              or caused him to have abandoned his rights.

              He claims he understood them, and from his testimony, the court
              would have to find that even if his recall is more accurate than that of
              Agent Landman, through his own evidence, the statement that is
              purportedly given by the defendant to Agent Landman would be
              admissible into evidence. The motion to suppress, respectfully, will
              be denied.

This ruling by the trial court was proper. Although he claims in his brief that he “did not

understand his rights,” the defendant admitted during the suppression hearing that he

had understood the waiver form and that he had freely and voluntarily talked to the

agents. There is nothing before this Court which preponderates against the trial court’s

findings. Accordingly, this issue is without merit.



                            III. INSTRUCTION ON FLIGHT

              In his next issue, the defendant contends that the trial court erred when it

instructed the jury on flight. He further contends that this error was not harmless because

of the “heavy emphasis” the prosecutor placed on it during closing argument. We

disagree and find this issue to be without merit.



              Agent Harbaugh testified that, in his statement, the defendant had admitted

to leaving the crime scene immediately after the shootings. Later, he heard something

about a shooting in East Memphis and thought it might be the one in which he had been

involved. He then left his residence and went to Chicago where he remained until he was

apprehended by the FBI in June 1992. He now contends that a jury instruction on flight

was not warranted because he “never committed any act of hiding out, evasion or

concealment of his person in the community.”




                                            14
                 The defendant misapprehends the circumstances necessary to justify a jury

instruction on flight. This Court has previously recognized that there is evidence sufficient

to support a jury instruction on flight where there is proof of “ <both a leaving the scene

of the difficulty and a subsequent hiding out, evasion, or concealment in the community,

or a leaving of the community for parts unknown.’ ” State v. Payton, 782 S.W.2d 490,

498 (Tenn. Crim. App. 1989) (citations omitted) (emphasis added). And the trial court in

this case charged the jury accordingly, stating, inter alia,

                 The law makes no nice or refined distinction as to the manner or
                 method of a flight; it may be open, or it may be a hurried or
                 concealed departure, or it may be a concealment within the
                 jurisdiction; however, it takes both the leaving the scene of the
                 difficulty and a subsequent hiding out, evasion, or concealment in the
                 community, or a leaving of the community for parts unknown, to
                 constitute flight.

(emphasis added). Here, the defendant both ran from the crime scene and subsequently

left his home in West Memphis for Chicago. Such evidence supported a jury instruction

on flight, and the trial court did not err in so instructing the jury. This issue is without

merit.3



                              IV. ATTEMPTED FELONY MURDER

                 In addition to being convicted of two counts of felony murder, the defendant

was convicted of two counts of attempted felony murder. The State correctly concedes

that attempted felony murder does not constitute a crime in Tennessee. State v.

Kimbrough, 924 S.W.2d 888, 892 (Tenn. 1996). Accordingly, we reverse and dismiss

those two convictions. However, we are left with the issue of whether the defendant may

now be retried on the charges of attempted premeditated murder. The precise issue is

whether a defendant may be retried under an alternative count on which the jury made

no finding where the count of which the defendant was convicted fails to state an offense.

We find this issue to be a matter of first impression in Tennessee.


          3
        Our ruling that the trial court’s instruction to the jury on flight was not error renders moot the
defendant’s contention that the “error” was not harmless.

                                                     15
               A defendant may be retried for an offense when his conviction is set aside

because of an error in the proceedings rather than because the State failed in its effort

to prove him guilty. Burks v. United States, 437 U.S. 1 (1978); State v. Hutcherson, 790

S.W.2d 532, 535 (Tenn. 1990). For instance, retrial is appropriate where the conviction

is reversed due to the “incorrect receipt or rejection of evidence, incorrect instructions,

or prosecutorial misconduct.” Burks v. United States, 437 U.S. 1, 15 (1978). Similarly,

a defendant may be reindicted and tried on other offenses where his conviction is

reversed because the underlying statute is later deemed unconstitutional. State v. Hale,

840 S.W.2d 307, 308 (Tenn. 1992). In the instant case, the defendant’s convictions for

attempted felony murder are being reversed because our Supreme Court has ruled that

no such offense exists. That is, due to a fundamental error in the proceedings, the

defendant was tried for a crime which is impossible to commit. Obviously, he cannot be

retried for attempted felony murder. We must determine, then, whether he can be retried

for attempted premeditated first-degree murder. We hold that Burns has been neither

convicted nor acquitted of these crimes and principles of double jeopardy do not

therefore prohibit his retrial.



               Burns was indicted for both attempted felony murder and attempted

premeditated first-degree murder, and both counts were sent to the jury. However, the

trial court instructed the jury in this case to first consider Count 1 of the indictments which

charged the offense of attempted felony murder. The jury was instructed that if they

found the defendant guilty of attempted felony murder, they would so report. The jury

was further instructed that if they found the defendant not guilty of that offense, they

would then proceed to inquire as to his guilt of attempted premeditated first-degree

murder as charged in Count 2 of the indictments. In other words, the jury was not to

consider attempted premeditated first-degree murder if they found the defendant guilty

of attempted felony murder.

                                              16
              Typically, when a jury is given a multi-count charge and returns a special

verdict convicting the defendant of one of the charges but which is silent as to the other

charges, the defendant is deemed acquitted of the other charges. See, e.g., Conner v.

State, 531 S.W.2d 119,126 (Tenn. Crim. App. 1975). The State is then prohibited from

retrying the defendant on the acquitted charges even if the conviction is later reversed.

Id. As this Court held in State v. Arnold, however, “we are of the opinion that this rule is

not applicable to the situation involved in the present case.” 637 S.W.2d 891, 895 (Tenn.

Crim. App. 1982).



              In Arnold, each of the defendants had been charged with a conspiracy to

engage in the protracted and repeated sales of controlled substances, with being a

habitual drug offender, and with specific drug transactions as separate and additional

offenses. The controlling statute (and the jury instructions) limited the jury to finding the

defendants guilty of either being habitual drug offenders or of committing the specific

drug deals, but not both. The jury found each of the defendants guilty of being a habitual

drug offender. On appeal, this Court found the evidence to have been insufficient to

support the habitual drug offender convictions. Nevertheless, the case was remanded

for a new trial on the specific drug transactions.



              In so holding, this Court acknowledged the general rule that “a special

verdict upon one count of an indictment operates as an acquittal upon the other counts

to which the jury did not respond.” Arnold, 637 S.W.2d at 895. In distinguishing the case

before it, this Court reasoned that

              [i]mplicit in the jury’s verdict finding the appellants guilty
              under the first count of being habitual drug offenders is a
              finding of their guilt of the transactions separately charged in
              the fourth and fifth counts; yet, because of the restrictions in
              the statute, the jury, once it found the appellants guilty under
              the first count, was precluded from reporting a verdict of guilt
              on the separate offenses charged in the fourth and fifth
              counts.


                                             17
                 Therefore, we conclude that because of the restrictive
                 language contained in the habitual drug offender statute, the
                 jury’s failure to report a verdict on the fourth and fifth counts
                 did not operate as a verdict of acquittal on those charges,
                 and a remand for trial on those counts would be in order.

Arnold, 637 S.W.2d at 895. Although we are not dealing with a statutory restriction in the

case sub judice, we find the trial court’s instructions to the jury to have operated to the

same effect. Once the jury found Burns guilty of attempted felony murder, its instructions

were to move on and make no report on the charges of attempted premeditated murder

and its lesser offenses. Yet, implicit in the convictions for attempted felony murder was

a finding that the defendant had indeed attempted to kill two people. While we cannot

know whether the jury would have convicted the defendant of attempted premeditated

murder or one of its lesser offenses had it been given the opportunity to consider those

charges, the evidence was certainly sufficient for it to have done so.



                 The United States Supreme Court has also spoken on implied acquittals,

finding them to bar retrial under the federal Double Jeopardy Clause4 when the jury has

been given “a full opportunity to return a verdict” on a charge and instead found the

defendant guilty of a lesser charge. Price v. Georgia, 398 U.S. 323, 329 (1970)(footnote

omitted). See also Green v. United States, 355 U.S. 184 (1957). That is, “[o]nly where

the jury is given the full opportunity to return a verdict either on the greater or,

alternatively, on the lesser included offense does the doctrine of implied acquittal obtain.”

United States v. Reed, 617 F.Supp. 792, 800 (D.C.Md. 1985) (emphasis in original).

While we realize that attempted premeditated murder is not a lesser offense of attempted

felony murder, we are convinced that the same analysis is appropriate. See Schiro v.

Farley, 510 U.S. 222, __, 114 S.Ct. 783, 792 (1994) (“The failure to return a verdict does

not have collateral estoppel effect . . . unless the record establishes that the issue was

actually and necessarily decided in the defendant’s favor.”) Here, the jury was not given

the full opportunity to return a verdict either on attempted felony murder or, alternatively,

       4
           U.S. Const. amend. V.

                                               18
on attempted premeditated murder and its lesser offenses. Because the jury was not

given that opportunity, its verdict did not necessarily resolve in Burns’ favor the issue of

his guilt of the alternative crimes and the doctrine of implied acquittal should not apply. 5



                  Finally, our Supreme Court has made it clear that a defendant may be

retried for lesser offenses following reversal of his or her conviction for the greater

offense. State v. Maupin, 859 S.W.2d 313, 317 (Tenn. 1993). In Maupin, the defendant

had been charged in a single count indictment with aiding and abetting first-degree

murder of a child resulting from repeated child abuse. The jury was charged with the

indicted offense as well as with the lesser offenses of aiding and abetting second-degree

murder, aiding and abetting aggravated child abuse and aiding and abetting child abuse.

nThe jury convicted the defendant of the aiding and abetting first-degree murder charge.

However, the statute creating that grade of first-degree murder, T.C.A. § 39-2-

202(a)(2)(Supp. 1988), was later found unconstitutional. State v. Hale, 840 S.W.2d 307

(Tenn. 1992). Accordingly, our Supreme Court reversed Maupin’s conviction but ruled

that she could be retried on the lesser offenses. In so holding, the Court stated:

                  Maupin was not acquitted of any of the lesser offenses as the
                  jury was not required to pass judgment upon them.
                  ...


         5
           Cf. Saylor v. Cornelius, 845 F.2d 1401 (6th Cir. 1988). In Saylor, the defendant had been
indicted on one count of murder, which count encompassed m urder as a principal, as an accomplice,
and by conspiracy. The trial court instructed the jury only on the theory of the defendant’s involvement
as a conspirator. The prosecution did not object to the instructions nor request a charge on accomplice
liability. Th e jury convicted th e de fendan t and the conviction was late r reve rsed for insufficient e viden ce.
Although there was “con siderable evidence ” sup porting the defe nda nt’s role as a n ac com plice, the 6th
Circuit Court of Appea ls held that double jeopardy principles barred retrial on that ground. The C ourt
stated, “Once the jury returned its verdict, the failure to instruct on the acco m plice liability theory
term inated Saylor’s je opardy . . . . T o deny this pro positio n would m ean that th e prosecution could
proceed on several theories of liability throughout a trial, and, simply by withholding instructions on any
one of the m , rese rve that theory for re trial at a later date.” 845 F.2d at 1404. T he C ourt late r limited its
holding in Saylor, sta ting that its s ignificance was “lim ited by the unusual situa tion we were addressing in
that case: because of prosecutorial absent-mindedness, Mr. Saylor’s trial ended without an acquittal or
a conviction on a charg e that had been properly presented in an indictment and em phasized at trial.”
U.S. v. D avis, 873 F.2d 900, 906 (6th Cir. 1989). This case is clearly distinguishable from Saylor,
although both cases involve unfortunate jury instructions. In Saylor, the trial court’s action was the
functional equivalent of a dismissal of the accomplice theory, in which the prosecution acquiesced. The
defendant, on the other hand, had objected to proceeding on the conspiracy theory. In the present case,
the trial court did submit the alternative count to the jury but, in effect, relieved it of its duty to consider
that count upon its finding Burns guilty of attempted felony murder. The prosecution was in no way
trying to “reserve a theory” for later use in the event the jury acquitted the defendant of attempted felony
m urde r.

                                                        19
              [D]ouble jeopardy should not bar a retrial when the trier of
              fact does not pass upon lesser offenses one way or the
              other. There having been no factual resolution of Maupin’s
              guilt or innocence on the lesser offenses, she can be tried for
              those offenses without violating double jeopardy.
              ...
              We find no double jeopardy impediment in allowing Maupin,
              like Hale, to be tried for lesser offenses simply because she
              was convicted of the greater offense under a flawed statute.

859 S.W.2d at 318-19.



              Similarly, in the case at bar, the jury was not required to pass on the

alternative counts of attempted premeditated murder and its lesser offenses and there

has therefore been no factual resolution of the defendant’s guilt or innocence of those

crimes. Indeed, the only factual resolution made by the jury on the attempted murder

counts was that the defendant did attempt to murder two people. Analogously to Maupin,

the defendant in this case was convicted of an offense under a flawed legal interpretation

of the attempt and felony murder statutes. The jury was not given an opportunity to

convict Burns of the cognizable crimes of attempted premeditated murder or its lesser

offenses. Double jeopardy should not, therefore, bar his retrial for these offenses.

Accordingly we hold that this matter is to be remanded for the defendant to be retried on

two counts of attempted premeditated murder.




                                           20
                               V. SPECTATOR DISPLAY

              The defendant also contends that he should be given a new trial because

of an “outburst” by members of the victims’ families during testimony. He argues that this

“outburst” was “prejudicial and designed to gain the jurors’ sympathy.” However, upon

his lawyer’s objection, the trial court found as follows:

              What you have here is two individuals involved -- the mothers of the
              deceased two individuals. It was not a great outburst. It was
              something the court would characterize more as a sob, and that was
              closely contiguous with testimony that the deceased, [Johnson],
              somehow got out of the car; he stopped to see if traffic was coming --
              car was coming; he got across the street; he was holding his hands
              out. The witness demonstrated saying “Help me, help me,” then he
              stumbled and fell. At that point, I believe one of the ladies, who was
              a parent of that deceased, and one other who was the parent of the
              other deceased, got up and left the courtroom. They didn’t slam the
              door or anything like that. I wouldn’t say there was a great hubbub
              or anything like that. One of them sobbed. I would not say it was a
              particularly loud one. It was noticeable, but that’s about it.

              ....

              I don’t think it’s unexpected by any of the jurors that someone would
              not have some emotional reaction to a description of their child.

              ...

              Under the circumstances, as they exist right now, the court does not
              think it’s something that’s going on, on an on-going basis. It does not
              appear to be any calculated display of histrionics or anything like that
              for the purpose of influencing the jury or soliciting or eliciting their
              passions.

              ....

              It was not anything that was done overtly. It was a sob, and the
              parties immediately removed themselves without undue display when
              their emotions got out of control. Now, I don’t believe there are going
              to be any other witnesses that would testify to being eyewitnesses to
              these events. So, I don’t think the problem is going to rise again.

              ...

              I don’t think that the behavior exhibited by the two ladies in question
              is outrageous or anything like that or particularly offensive. I don’t
              think it’s likely to happen again, so I don’t think we will have any
              further problem. But in any event, looking at the jury’s reaction -- I
              always do that -- it did not appear that they were unduly disturbed by
              the thing.




                                                21
              We first note that defense counsel did not move for a mistrial at the time

this incident occurred. Rather, he objected and requested that the mothers remove

themselves from the courtroom if the testimony was “going to be too painful for them to

sit [there] without an outburst.” Defendant then raised for the first time in his motion for

new trial the argument, again presented here, that the trial court should have sua sponte

granted a mistrial.



              We disagree. As this Court has stated earlier,

              The entry of a mistrial is appropriate when the trial cannot continue,
              or, if the trial does continue, a miscarriage of justice will occur.

              Whether an occurrence during the course of a trial warrants the entry
              of a mistrial is a matter which addresses itself to the sound discretion
              of the trial court; and this Court will not interfere with the exercise of
              this discretion absent clear abuse appearing on the face of the
              record.

State v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). In McPherson, the

defendant was on trial for aggravated rape. In recounting the crime on the witness stand,

the victim became upset. The court called a recess, but before the jury had left the room,

the victim-witness coordinator for the district attorney’s office came into the courtroom

and began hugging the victim. The defendant requested a mistrial, which the trial court

denied on the grounds that it was “ <satisfied beyond a reasonable doubt that it did not

change the outcome of [the] trial.’ ” Id.    This Court affirmed the trial court’s decision,

finding no abuse of discretion. Similarly, in State v. Adkins, the minor victim became

upset and cried while on the witness stand in an aggravated sexual battery case. The

jury was not sent out of the courtroom until two to four minutes had passed. On appeal,

the defendant contended that he was entitled to a mistrial and new trial on this basis.

Our Supreme Court held, “We do not believe the behavior of the witness was so

prejudicial that the defendant could not receive a fair trial. . . . The granting of a mistrial

is within the discretion of the trial court. A reviewing court will not disturb that action

absent a finding of abuse of that discretion.” 786 S.W.2d 642, 644 (Tenn. 1990).


                                             22
              In the instant case, although no motion for mistrial was made, it is clear

from the court’s remarks in response to defense counsel’s objection that it had

determined the defendant suffered no prejudice from the victims’ mothers’ conduct.

Defense counsel declined to request a curative instruction and appeared satisfied with

the trial court’s response to his objection. No abuse of discretion has been demonstrated

in the trial court’s refusal to declare a mistrial sua sponte. This issue is without merit.



                          VI. ADMISSION OF PHOTOGRAPH

              In his next issue, the defendant contends that the trial court erred by

admitting into evidence a photograph of the driver’s seat in which Dawson had been

sitting. The photograph depicts bloodstains on the seat as well as a small amount of

unidentified material which the defendant describes as “what could be considered guts.”

He argues that the photograph was not probative of any issue and that it was prejudicial

and served merely to “inflame the jury.” The State responds that the photograph was

offered in order to prove that Dawson “did not have a weapon in the front seat, and to

show the force from the close range shots that threw [him] over to the armrest, where he

bled considerably.” At trial and upon the defendant’s objection to the introduction of this

photograph, the trial court found,

              There is some smearing of blood. I don’t believe -- well, in the court’s
              opinion, looking at that, it’s not unduly prejudicial. It doesn’t elicit
              any particular revulsion in light of what’s commonly on television for
              adult viewing these days. . . . It’s not particularly bloody. Now, I don’t
              think any adults or any ordinary jury is going to get particularly
              revolted or so distressed by looking at some moderate to small
              amount of dried blood on a front seat.

              Under our rules of evidence, the test for determining whether evidence is

“relevant” is easy to pass: “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence” is relevant. Tenn. R. Evid. 401. As the

State points out in its brief, the defendant had been charged with premeditated first-

degree murder. In order to prove this offense, the State had to prove that the defendant

                                             23
killed Dawson intentionally, deliberately and with premeditation. See T.C.A.

§ 39-13-202(a)(1) (1989 Supp). The amount of blood depicted in the photograph,

together with the implied position of the victim’s body, satisfies the definition of relevant

evidence insofar as tending to prove that the defendant shot Dawson intentionally and/or

deliberately. That is, the photograph was probative as to the effect of the gunshots upon

Dawson’s body and, therefore, as to the issue of whether the defendant shot him

accidentally or intentionally and/or deliberately. The photograph was also probative as

to the State’s theory of how the victim was killed. Therefore, we disagree with the

defendant that the photograph was not relevant.



                While relevant, a photograph may be excluded “if its probative value is

substantially outweighed by the danger of unfair prejudice.”                  Tenn. R. Evid. 403.

However, this balancing test is committed to the sound discretion of the trial court, and

its decision will not be disturbed on appeal absent a showing of clear abuse of discretion.

State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994). No such showing has been

made here. This issue is accordingly without merit.6



              VII. TRIAL COURT’S RESPONSE TO JUROR QUESTIONS

                In his next issue, the defendant asserts that the trial court erred in its

response to the jury when the jury asked certain questions during its deliberations in the

penalty phase of the trial. Those questions propounded by the jury to the trial court were

as follows:

                (1)     How many years for life?

                (2)     What does <life sentence’ mean?

                (3)     Can we ask for life without parole? Can we stipulate life plus
                        so many years?

                (4)     Can we ask for consecutive life sentences?

        6
           Even if the photograph were not relevant, we deem its admission to have been harmless error
in light of the other evidence a gainst the defe nda nt.

                                                      24
              (5)     What does it mean if you’re sentenced to death and life?

In response to these questions, the trial court stated, “All right. You’re directed to refer

to the charges and instructions that are contained in the jacket. Thank you. You may

retire to continue your deliberations.” The defendant contends that the questions posed

indicated that the jury was considering improper matters, and that the trial court “should

have directed the jury that the questions posed were not proper considerations in the

determination of the sentence.” The defendant concedes that there is no authority for the

requirement that the trial court give this direction prior to referring the jury to the charge

and instructions given initially. The State responds, first, that this issue is waived

because the defendant did not object to the trial court’s response to the jury’s questions

at the time it was given, and second, that the trial court’s response was proper and that

this issue is therefore without merit even if we should consider it.



              We agree with the State on both counts. As a general rule, “[a] party

cannot witness misconduct on the part of the court, await the result of the verdict, and

then, if it is against him or her, object to the alleged misconduct.” State v. Tune, 872

S.W.2d 922, 930 (Tenn. Crim. App. 1993). The trial court in this case took the questions

from the jury after recalling counsel, the defendant, the court reporter and the jury back

into open court in order to take the matter up on the record. Thus, defense counsel had

every opportunity to object at the time the trial court gave its response. Defense counsel

chose not to do so. The defendant will not now be heard to complain. See T.R.A.P.

36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party

responsible for an error or who failed to take whatever action was reasonably available

to prevent or nullify the harmful effect of an error.”)



              Even if the defendant had not waived this “error,” however, this issue has

no merit. As the defendant acknowledges, the trial court followed the proper method of

fielding the jury’s questions. See State v. Mays, 677 S.W.2d 476, 479 (Tenn. Crim. App.

                                             25
1984) (“The proper method of fielding questions propounded by the jury during

deliberations is to recall the jury, counsel, the defendant(s), and the court reporter back

into open court and to take the matter up on the record.”) Additionally, contrary to the

defendant’s contention, the trial court responded properly to the jury’s inquiry. See, e.g.,

State v. Johnson, 698 S.W.2d 631 (Tenn. 1985). In Johnson, a capital case, our

Supreme Court addressed a situation in which one of the jurors had asked questions

regarding parole during voir dire. The Court stated, “the preferable response to a juror’s

inquiry about parole is to instruct the jury to limit their deliberations to the instructions

given them at the close of the evidence.” Id. at 633. That is exactly what the trial court

did in this case. In State v. Smith, 857 S.W.2d 1 (Tenn. 1993), another capital case, our

Supreme Court again addressed the proper response to jury inquiries about sentencing

and parole. The trial court had refused to supplement its original instructions. The

defendant argued that information about parole eligibility might operate as mitigating

evidence and the trial court’s refusal to give additional instructions “somehow create[d]

a non-statutory aggravating factor of future dangerousness.” 857 S.W.2d at 11. The

Court rejected this argument, opining “that to provide a jury with the sort of information

requested by defendant could result in sentences of death based on sheer speculation

and on factors other than those enumerated in T.C.A. § 39-2-203 and sanctioned under

either [the Tennessee or United States] Constitution.” Id. The trial court did not err in its

response to the jury’s questions in this case, and this issue is therefore without merit.



                 VIII. SUFFICIENCY OF AGGRAVATOR EVIDENCE

              The jury sentenced the defendant to death for the felony murder of Damond

Dawson, finding as an aggravating circumstance that he had knowingly created a great

risk of death to two or more persons other than the victim murdered during the act of

murder. See T.C.A. § 39-13-204(i)(3) (1991 Repl). The defendant contends that the

evidence was insufficient to support this aggravating circumstance, alleging that “no facts

were introduced during the trial to prove that [he] knowingly created a risk of death to two

                                             26
or more persons.” However, the proof at trial established that the defendant shot

Damond Dawson repeatedly, from close range, while Dawson sat in a stationary car with

two other people. The risk to these two other people is more than obvious.7 The

defendant’s contention that he did not “knowingly” create this risk is ludicrous. A person

acts “knowingly” with respect to his conduct when he is aware of the nature of his

conduct. T.C.A. § 39-11-302(b)(1991 Repl). The proof at trial established that the

defendant pointed a loaded pistol into a car in which three people sat, fired the pistol into

the car several times, walked away and then walked back and shot some more.8 Clearly,

the defendant was “aware” of the “nature of his conduct.” This issue is wholly without

merit.9



                 The defendant also argues that the State improperly relied on the attempted

felony murder convictions during its closing argument during the penalty phase of the

trial. Specifically, he contends that, “In support of this aggravating circumstance, the

State argued that the two (2) companion convictions for criminal attempt felony murder

established this aggravating circumstance.” The defendant then cites a portion of the

prosecutor’s closing argument referencing the attempted murder verdicts. However, the

record reveals the entirety of the prosecutor’s argument in support of this aggravating


          7
          The defendant was also convicted of the felony murder of one of these two other people (“the
Johnson felony murder”). However, because there is no duplication between the elements of felony
m urder and the ag gravator for putting two or mo re other people at great risk of death du ring the mu rder,
the John son felony murde r con viction d oes not create a bar to us ing the facts on w hich it is base d to
prove an aggravating circumstance in support of the death penalty for the Dawson felony murder. That
is, no Middlebrooks-type error is thereb y com m itted. Cf. State v. Middlebrooks, 840 S.W .2d 317, 346
(Tenn . 1992) (when defe nda nt is co nvicte d of felony murde r, the fe lony m urde r agg rava tor, T.C.A .
§ 39 -13-204 (i)(7), m ay not b e us ed a s an agg rava ting circ um stan ce in s upp ort of th e de ath pena lty
because, due to the broad definition of felony murder and the duplicating language of the felony murder
aggravating circumstance, there is no narrowing of the class of death-eligible defendants as required by
the federal and Tennessee constitutions). Nor is a double jeopardy problem thereby created: in using
the same facts (together with the presence of the third occupant in the car) to establish both the
Johnson felony murder conviction and the aggravating circumstance for the Dawson felony murder, the
defend ant is n ot being pu nished tw ice for the s am e crim e.

          8
           The defendant’s own statement also indicates that he shot at Blackman while Eric Jones and
two other boys were in the line of fire. However, because we deem the aggravator to have been
suffic iently proven by the defendant’s shots into the car, we decline to address the issue of w hethe r this
prior conduct by the defenda nt occurred “during the ac t of mu rder” as required by the aggravator.

          9
        W e also note that the other assailants surrounding the car were put at great risk from the
defendant’s bullets.

                                                       27
factor on initial closing argument as follows:

                  In this particular case, the state has alleged that there are two
                  aggravating factors, and I’m going to talk about them briefly. Both of
                  them have been proven, I submit, by proof that is put on during the
                  guilt phase of the trial; and the judge will instruct you that you may
                  use what proof has been put on in the trial to consider at this phase
                  of the trial -- in sentencing -- both as to aggravating factors and as to
                  any mitigating factors also.

                  ....

                  Now, the two aggravating factors that we intend to go into -- or that
                  the state submits ha[ve] been proven to you is, first of all, that the
                  defendant caused risk of great bodily harm to two or more other
                  persons other than the intended victims of this crime.

                  Now, what we’re talking about is when Mr. Blackman was running
                  from the car, Eric Jones was in the way of the shooting. Eric Jones
                  confronted Tommie Blackman as he ran from the car and was caught
                  in this gunfire. Now, fortunately he wasn’t hit.

                  But also there were three other young men playing basketball on the
                  side of the yard. All three of those young men were also caught in
                  the gunfire of the individual shooting at Tommie Blackman. That is
                  risk of death or great bodily injury to persons other than the intended
                  victims in this case.

                  Now, we’ve proven there were four persons -- in addition to Tommie
                  Blackman, there were four persons10 that were in the line of fire.
                  That is one of the aggravating factors in this case, ladies and
                  gentlemen.

And then on final closing argument:

                  [As to the] risk of death to two or more people. How about -- how
                  about Eric Thomas who caught three rounds in his body fired not by
                  one of [the defendant’s] co-defendants but by that man right there.
                  He shot him and shot him and shot him. That’s a pretty good risk of
                  death. How about Tommie Blackman who’s running? There’s a risk
                  of death to two people right there, not even counting the children
                  playing basketball. We haven’t proven a risk of death to two or more
                  people? My God, you’ve returned a verdict that he attempted to
                  murder two other people. It is established, beyond a reasonable
                  doubt, and already been found as a verdict that there was a risk of
                  death to two or more people.

It is this very latter portion of the prosecutor’s closing argument about which the

defendant now complains.



         10
          In fac t, Eric Jone s tes tified that he had b een playing b ask etba ll with two other b oys, no t three.
Thus, in addition to Blackm an, there were three other persons in the line of fire, not four as argued by
the State. This error in reciting the facts during argument was harmless.

                                                        28
              We first note that the defendant raised no objection to the prosecution’s

argument at trial. Accordingly, any argument of prosecutorial misconduct has been

waived. State v. Killebrew, 760 S.W.2d 228, 231 n.11 (Tenn. Crim. App. 1988); T.R.A.P.

36(a). Even if the defendant’s objection had not been waived, however, the prosecutor’s

argument, when taken in its entirety, was not improper. The prosecutor told the jury,

correctly, that it could rely on evidence which had been admitted during the guilt phase

of the trial. He then went on to argue a couple of different ways in which he thought the

proof supported the aggravating factor. He did not emphasize one over the other. He

did not tell the jury that its verdicts of attempted felony murder meant that the aggravating

factor had already been established or that it did not have to follow the trial court’s

instructions about its duty to determine the existence of one or more aggravating factors.

And the court did not instruct the jury that its attempted murder verdicts constituted or

were the equivalent of a finding of the aggravating factor.



              Moreover, the jury did not have to accept the prosecutor’s interpretations

of the evidence: it was free to interpret the evidence in any way it chose within the context

of the court’s instructions on the aggravating factor. Indeed, the State did not make the

easiest argument in support of this factor: that by repeatedly firing a pistol into a car in

which three people sit, the shooter clearly creates a risk of death to every occupant of the

car and possibly those outside in the immediate area. This argument is without merit.



                       IX. PROPRIETY OF DEATH SENTENCE

              The defendant next contends that “his role was minor in this case, and as

such, requires reversal of the death sentence.” We first note that the death penalty in this

case was imposed for the defendant’s felony murder of Damond Dawson. We also note,

as set forth above, that the evidence was sufficient to support the jury’s verdict that the

defendant murdered Dawson in the perpetration of a robbery. The defendant’s role in

this crime, as determined by the jury, was hardly “minor.”

                                             29
              The defendant argues that, since he was under the impression he was

joining the other assailants to participate in a fight, and that he had no knowledge of the

robbery or intent to commit it, the sentence imposed is disproportionate to his culpability,

relying on Enmund v. Florida, 458 U.S. 782 (1982), and State v. Branam, 855 S.W.2d

563 (Tenn. 1993). In Branam, our Supreme Court outlined the controlling law addressing

the defendant’s claim, construing Enmund in the process:

              In Enmund v. Florida, . . . the United States Supreme Court held that
              death is a disproportionate penalty and, therefore, constitutes cruel
              and unusual punishment under the Eighth Amendment, where it is
              imposed against a defendant <solely for participation in a robbery in
              which another robber takes life,’ without proof that the defendant
              himself attempted or intended to kill, or intended that lethal force be
              used. This constitutional standard was refined by the Court in Tison
              v. Arizona . . . in which it was held that the Eighth Amendment does
              not prohibit the death penalty in the case of a defendant whose
              participation in a felony that results in murder is major and whose
              mental state at the time is one of reckless indifference to the value
              of human life -- even though the proof fails to show intent to kill.

855 S.W.2d at 570.



              The defendant’s argument on this issue assumes that the evidence was

insufficient to prove that he is guilty of felony murder. As is seen above, however, the

evidence does sufficiently prove his guilt. Even if the defendant did not actually shoot

Dawson, as the evidence indicates, the defendant’s own statement that he shot several

times at Blackman demonstrated that he “attempted or intended to kill, or intended that

lethal force be used.” At the very least, this represents a “reckless indifference to the

value of human life.” This issue is therefore without merit.



              We deem it appropriate to consider within the context of this issue the

propriety of the defendant’s death sentence in light of the determinations which our

legislature requires this Court to make in every direct appeal of death penalty cases. That

is, we must determine whether the defendant’s sentence of death was imposed in any

arbitrary fashion; whether the evidence supports the jury’s finding of the aggravating


                                            30
circumstance; whether the evidence supports the jury’s finding that the aggravating

circumstance outweighs the mitigating circumstances; and whether the defendant’s death

sentence is excessive or disproportionate to the penalty imposed in similar cases,

considering both the nature of the crime and the defendant. T.C.A. § 39-13-206(c)(1)

(1996 Supp).



               As set forth above, we have determined that the evidence supports the jury’s

finding of the aggravating circumstance that the defendant knowingly created a great risk

of death to two or more persons, other than Dawson, during his murder of Dawson. The

evidence also supports the jury’s finding that this aggravating circumstance outweighed

the mitigating circumstances offered during the penalty phase of the trial. 11 We further

find, based upon our review of the entire record of this cause, that the sentence of death

was not imposed in any arbitrary fashion. Finally, we have determined that the death

sentence in this case is neither excessive nor disproportionate to the penalty imposed in

similar cases, considering the nature of this felony murder and the defendant.12



                                 X. VICTIM IMPACT EVIDENCE

               In his penultimate issue, the defendant claims that the testimony of the

victims’ mothers during the penalty phase of the trial about the impact of the victims’

deaths was irrelevant to any sentencing determination, highly inflammatory and admitted

in violation of Tennessee’s death penalty statutes; Tennessee’s Rule of Evidence 403;

Article 1, §§ 8 and 16 of the Tennessee Constitution; and the Eighth and Fourteenth

Amendments to the United States Constitution, and that his death sentence ought



        11
           The m itigation proof consisted of the defendant’s parents’ testimony that he was a “good son”
and that they loved him; his brother’s testimony that the defendant had been a good employee and that
he had never known the defendant to be violent; testimony that the defendant had attended church
services regu larly; and that he had bee n we ll behaved in jail.

        12
           The statutorily required determination that the death penalty was not imp osed in an arbitrary
fashion was made without the benefit of the “Report of Trial Judge in Capital Cases” as required by our
Supreme Court in its Rule 12. The absence of this report does not prevent us from conducting the
requ ired review. See State v. Cazes, 875 S.W .2d 253, 270 (T enn. 1994).

                                                   31
therefore be set aside. We disagree.

              Under our death penalty statutes, during the sentencing proceeding
              evidence may be presented as to any matter that the court deems
              relevant to the punishment and may include, but not be limited to, the
              nature and circumstances of the crime; the defendant’s character,
              background history, and physical condition; any evidence tending to
              establish or rebut the aggravating circumstances enumerated
              [herein]; and any evidence tending to establish or rebut any
              mitigating factors. Any such evidence which the court deems to have
              probative value on the issue of punishment may be received
              regardless of its admissibility under the rules of evidence; provided,
              that the defendant is accorded a fair opportunity to rebut any hearsay
              statements so admitted. However, this subsection shall not be
              construed to authorize the introduction of any evidence secured in
              violation of the constitution of the United States or of the state of
              Tennessee.

T.C.A. § 39-13-204(c) (emphasis added). Given the plain language of this statute, the

defendant’s argument that victim impact evidence is inadmissible under Tennessee Rule

of Evidence 403 is misplaced. If the evidence is properly admissible under this statute,

its inadmissibility under our rules of evidence is inapposite. If it is not properly admissible

under this statute, then its inadmissibility under 403 is simply redundant. See also State

v. Odom, 928 S.W.2d 18, 28 (Tenn. 1996) (“This statute expressly exempts evidence

adduced in capital sentencing proceedings from the usual evidentiary rules.”)



              In 1979, our Supreme Court construed identical language in the then-

current capital sentencing provisions of our Code in Cozzolino v. State, 584 S.W.2d 765

(Tenn. 1979). It held:

              On its face section (c) would seem to permit the introduction of
              evidence <relevant to the punishment’ in addition to that <tending to
              establish or rebut the aggravating circumstances’ or <tending to
              establish or rebut any mitigating factors.’ However, this interpretation
              is one that we cannot accept. When the statute is considered as a
              whole, it is clear that the only issues that the jury may properly
              consider in reaching a decision on the sentence to be imposed are
              whether the State has established one or more of the aggravating
              circumstances beyond a reasonable doubt and, if so, whether any
              mitigating factors have been shown that would outweigh those
              aggravating circumstances. Any evidence that does not go to the
              proof of one or the other of those issues is irrelevant to the jury’s
              deliberation. We cannot believe that the legislature intended that
              irrelevant evidence be placed before the jury, fraught as such a
              procedure would be with the <substantial risk that [the death penalty]

                                                  32
              would be inflicted in an arbitrary or capricious manner,’ Gregg v.
              Georgia, 428 U.S. 153, 188, 96 Sup. Ct. 2909, 2932, 49 L.Ed.2d 859
              (1979), i.e., on the basis of factors other than those deemed by the
              legislature to be proper predicates for the sentencing determination.
              We think that a better interpretation of TCA § 39-2404(c), and one
              more in keeping with both the sense of the entire statute and the
              mandate of the United States Supreme Court, see, e.g., Gregg v.
              Georgia, supra; Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57
              L.Ed.2d 973 (1978), is that evidence is relevant to the punishment,
              and thus admissible, only if it is relevant to an aggravating
              circumstance, or to a mitigating factor raised by the defendant.

Cozzolino, 584 S.W.2d at 767-68 (emphasis added). We note, however, that the

evidence challenged as irrelevant in Cozzolino was proof that the defendant had

committed subsequent crimes. Victim impact evidence was not at issue.



              Our Supreme Court has neither overruled nor modified its decision in

Cozzolino. It has, however, since indicated that, even where “technically irrelevant,”

victim impact considerations may be relevant to a defendant’s “personal responsibility

and moral guilt.” State v. Payne, 791 S.W.2d 10, 18 and 19 (Tenn. 1990), aff’d 501 U.S.

808 (1991). In Payne, the Court considered the brutal stabbing murders of a young

mother and her daughter and the simultaneous stabbing of the woman’s young son.

Admitted into evidence was the grandmother’s testimony that the young son “cries for his

mom. He doesn’t seem to understand why she doesn’t come home. And he cries for his

sister Lacie. He come to me many times during the week and asks me, Grandmama, do

you miss my Lacie. And I tell yes. He says, I’m worried bout my Lacie.” On appeal, the

Court was not faced with the argument that this statement was not properly admissible

under Tennessee’s death penalty statute, but rather the defendant argued that the

testimony violated his constitutional rights under Booth v. Maryland, 482 U.S. 496 (1987).

The Court held that, “[w]hile technically irrelevant, that statement did not create a

constitutionally unacceptable risk of an arbitrary imposition of the death penalty, and was

harmless beyond a reasonable doubt.” Payne, 791 S.W.2d at 18. The Court made no

reference to either Cozzolino or the statutory language construed therein.




                                            33
             Also at issue in Payne was the prosecutor’s use of victim impact concerns

in his argument to the jury. In response to the defendant’s assertion that the State’s

closing argument violated his Eighth Amendment rights, our Supreme Court stated:

             We are of the opinion that the prosecutor’s argument is relevant to
             this defendant’s personal responsibility and moral guilt. When a
             person deliberately picks a butcher knife out of a kitchen drawer and
             proceeds to stab to death a twenty-eight year old mother, her two
             and one-half year old daughter and her three and one-half year old
             son, in the same room, the physical and mental condition of the boy
             he left for dead is surely relevant in determining his
             <blameworthiness.’

             It is an affront to the civilized members of the human race to say that
             at sentencing in a capital case, a parade of witnesses may praise the
             background, character and good deeds of Defendant (as was done
             in this case), without limitation as to relevancy, but nothing may be
             said that bears upon the character of, or the harm imposed, upon the
             victims.

             ....

             [W]e are of the opinion that assuming the argument here violated the
             Eighth Amendment, as interpreted by the United States Supreme
             Court, we think it subject to harmless error analysis. . . [and] the
             State’s argument was harmless beyond a reasonable doubt.

Payne, 791 S.W.2d at 19.



             On appeal, the United States Supreme Court affirmed our Supreme Court’s

holding in Payne, thereby overruling its earlier Booth decision. Specifically, the United

States Supreme Court held in Payne that,

             if the State chooses to permit the admission of victim impact
             evidence and prosecutorial argument on that subject, the Eighth
             Amendment erects no per se bar. A State may legitimately conclude
             that evidence about the victim and about the impact of the murder on
             the victim’s family is relevant to the jury’s decision as to whether or
             not the death penalty should be imposed. There is no reason to treat
             such evidence differently than other relevant evidence is treated.

Payne v. Tennessee, 501 U.S. 808, 827 (1991).



             It is difficult to reconcile our Supreme Court’s decisions in Cozzolino and

Payne. While the Payne Court was not presented with the issue of the admissibility of


                                           34
the victim impact evidence under the death penalty statute, it certainly had the power to

comment upon the issue had it chosen to do so. See T.R.A.P. 13(b). See also State v.

Bigbee, 885 S.W.2d 797, 808 (Tenn. 1994) (victim impact evidence challenged on

constitutional grounds found harmless; no reference to the death penalty statute or

Cozzolino). Moreover, when again presented with the issue of prosecutorial argument

focusing on victim impact in State v. Shepherd, our Supreme Court held “Such victim-

impact argument is not improper,” citing Payne: although it went on to caution the State

“to utilize such arguments advisedly.” 902 S.W.2d 895, 907-08 (Tenn. 1995). It appears,

then, that the Court is not anxious to find victim impact evidence inadmissible; and, even

when it is “technically” so, the Court appears prone to find its admission harmless.



              In the present case, the State called the mothers of the two murdered

victims to testify during the sentencing phase of the trial. Dawson’s mother testified that

the shootings had had a negative effect on the neighborhood, making her neighbors

“scared to look out the door;” that she had had to buy another house because she

couldn’t continue to live in the one in which her son had lived; that everything had

changed and her life would never be the same; that she is now divorced; and that she

“sure would like to know what it feels like to feel happy again -- just to feel happy.”

Johnson’s mother testified that, since her son’s death, “It’s been hard to let go. I know I

can’t see Tracey anymore. A day don’t pass I don’t shed a tear.” She also testified about

the effects of her son’s death on her other children, her father and Tracey’s young

daughter.



              In light of Cozzolino, we find ourselves constrained to hold that this

evidence was “technically irrelevant.” However, following our Supreme Court’s lead in

Payne, we also find that its admission did not create a constitutionally unacceptable risk

of an arbitrary imposition of the death penalty and was harmless beyond a reasonable

doubt. The jury found as the sole aggravator that the defendant had knowingly created

                                            35
a great risk of death to two or more persons other than the murder victim during the act

of murder. There was more than sufficient proof on this point to support the jury’s finding.

Moreover, the trial judge correctly instructed the jury as to the aggravating factors at

issue, telling them that he had

              read to you the aggravating circumstances which the law requires
              you to consider if you find, beyond a reasonable doubt, that the
              evidence was established. You should not take into account any
              other facts or circumstances as the basis for deciding whether the
              death penalty would be appropriate punishment in this case, except
              as such fact[s] and circumstances may establish mitigating
              circumstances or factors.

(emphasis added). Thus, the jury was instructed to not consider the victim impact

evidence in deciding whether to impose the death penalty. A jury is presumed to follow

its instructions. See, e.g., State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App.

1985).



              With respect to the defendant’s arguments that the admission of the

evidence was unconstitutional, the discussion above demonstrates that there is no per

se Eighth Amendment bar to the admissibility of victim impact evidence. And because

we find the admission of the evidence in this case to have been harmless error, we also

find that the evidence did not render the defendant’s trial fundamentally unfair in violation

of his due process rights under the Fourteenth Amendment. Cf. Payne v. Tennessee,

501 U.S. 808, 831 (1991). (If such victim impact evidence so infects the sentencing

hearing as to render it fundamentally unfair, the defendant may take appropriate relief

under the due process clause.) (O’Connor, J., concurring). Finally, the defendant has

cited us to no authority holding that Article I, Sections 8 and 16 of the Tennessee

Constitution afford him any greater protection. Accordingly, this issue is without merit.



                   XI. CONSTITUTIONALITY OF DEATH PENALTY

              In his last contention, the defendant maintains that Tennessee’s death

penalty statutes are unconstitutional. He acknowledges that his challenges have been

                                             36
rejected by our Supreme Court, but reserves the issues for later review. This Court is,

of course, bound by our Supreme Court’s prior holdings that Tennessee’s death penalty

statutes are constitutional. Accordingly, we hold without further discussion these issues

to be meritless. See, e.g., State v. Smith, 893 S.W.2d 908 (Tenn. 1994), cert. denied,

__ U.S. __ (1995); State v. Brimmer, 876 S.W.2d 75 (Tenn. 1994), cert. denied, __ U.S.

__ (1994); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994), cert. denied, __ U.S. __

(1995); State v. Smith, 857 S.W.2d 1 (Tenn. 1993), cert. denied, 510 U.S. 996 (1993);

State v. Black, 815 S.W.2d 166 (Tenn. 1991); State v. Boyd, 797 S.W.2d 589 (Tenn.

1990), cert. denied, 498 U.S. 1074 (1991); State v. Teel, 793 S.W.2d 236 (Tenn. 1990),

cert. denied, 498 U.S. 1007 (1990); State v. Thompson, 768 S.W.2d 239 (Tenn. 1989),

cert. denied, 497 U.S. 1031 (1990).



             The defendant’s convictions for attempted felony murder are reversed and

dismissed and this cause is remanded for further proceedings on the two counts of

attempted premeditated murder. The judgment below is otherwise affirmed.



                                                ______________________________
                                                JOHN H. PEAY, Judge


CONCUR:



______________________________
JOE B. JONES, Judge



______________________________
JOE G. RILEY, Judge




                                           37
