          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE         FILED
                          OCTOBER 1997 SESSION
                                                     December 12, 1997

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,                    )
                                       )   NO. 01C01-9701-CC-00004
      Appellee,                        )
                                       )   MAURY COUNTY
VS.                                    )
                                       )   HON. JAMES L. WEATHERFORD,
WILLIAM EDWARD WATKINS                 )   JUDGE
and JONATHAN DAVIS,                    )
                                       )   (Felony Murder and
      Appellants.                      )   Attempted Aggravated Robbery)



FOR APPELLANT WATKINS:                     FOR THE APPELLEE:

SHARA ANN FLACY (at trial)                 JOHN KNOX WALKUP
District Public Defender                   Attorney General and Reporter

WILLIAM C. BRIGHT (at trial)               ELIZABETH B. MARNEY
209 W. Madison Street                      Assistant Attorney General
P.O. Box 1208                              450 James Robertson Parkway
Pulaski, TN 38478-1208                     Nashville, TN 37243-0493

JOHN E. HERBISON (on appeal)               T. MICHAEL BOTTOMS
2016 Eighth Avenue South                   District Attorney General
Nashville, TN 37204
                                           ROBERT C. SANDERS
FOR APPELLANT DAVIS:                       Assistant District Attorney General
                                           10 Public Square
DICK CLARK (at trial)                      P.O. Box 1619
3354 Perimeter Hill Drive, Suite 112       Columbia, TN 38402-1619
Nashville, TN 37211

GUY R. DOTSON (at trial)
102 S. Maple Street
Murfreesboro, TN 37130-3530

GARY M. HOWELL (on appeal)
P.O. Box 442
Columbia, TN 38402-0442



OPINION FILED:


AFFIRMED


JOE G. RILEY,
JUDGE
                                         OPINION



       The defendants, William Edward Watkins and Jonathan Davis,1 appeal jury

convictions for one (1) count of attempted aggravated robbery and two (2) counts

of first degree felony murder. Both defendants were sentenced to life imprisonment

for each count of felony murder and three (3) years for the attempted aggravated

robbery. The trial court ordered that the sentences run consecutively. On appeal,

Watkins presents the following issues for our review:

       (1)      whether there was a fatal variance in the indictment and
                proof as to the name of the victim of the attempted
                aggravated robbery;

       (2)      whether the trial court erred in admitting his post-arrest
                statement after an illegal arrest;

       (3)      whether the trial court erred in denying defendant’s
                motion to sever defendants;

       (4)      whether the trial court erred in failing to instruct the jury
                on second degree murder as a lesser included offense
                of felony murder; and

       (5)      whether the trial court erred in imposing consecutive
                sentences.

Davis joins in the severance and sentencing issues and raises three further issues

for our consideration: (1) whether the trial court erred in accepting his transfer from

juvenile court to be tried as an adult; (2) whether the trial court erred in admitting his

post-arrest statement; and (3) whether the evidence was sufficient to support a

finding that he was sane at the time of the offenses.

       We affirm the judgment of the trial court.



                                          FACTS



       On March 28, 1994, Watkins borrowed a gun from Lamont Orr. He met

some friends at Columbia Gardens Apartments, and they began discussing a

proposed plan to rob the Richland Inn. Davis approached the group and agreed to



       1
           Defendant Davis’ name is also spelled “Jonathon” in various court documents.

                                             2
rob the Richland Inn. Watkins gave Davis the .22 caliber handgun and a ski mask,

and they both walked towards the motel. The others in the group decided that they

did not want to participate in any criminal activity and stayed behind.

         Elwood Sinson, a guest at the Richland Inn, was meeting a business

associate in his room on the ground floor. As he was waiting for his associate to

open the door, he saw Davis jump from a brick wall on the side of the parking lot

and walk towards him. Davis quickened his speed and aimed the gun at Sinson

and said, “your money or your life.” Sinson was able to get inside the motel room

before Davis could do anything further.

         After the failed robbery attempt at the Richland Inn, Watkins and Davis

decided to rob Lamont Orr. They went to Orr’s trailer, where he lived with his

girlfriend, Elizabeth Smith. Orr left with them when Watkins and Davis told him that

they were going to participate in a cocaine transaction. Orr drove Watkins and

Davis to the parking lot of Brown’s School. Upon arrival at the parking lot, Davis

without any provocation shot Orr in the head. Orr was also shot a second time in

the head and died as a result of these wounds. Although Orr was seen with 15-20

rocks of crack cocaine earlier that day, no drugs were found on his person after his

death.

         Because Smith had seen Orr leave with them, Watkins and Davis returned

to the trailer. Smith was fatally shot once in the head. Earlier that evening, Smith

was seen with $100. No money was found at the trailer after the homicide, and

there was also evidence that some cocaine was missing from the trailer. Davis was

subsequently seen wearing rings which he claimed he had taken from Smith.

         Watkins was arrested two days later on an unrelated forgery charge. After

being questioned on the murders, Watkins gave a statement implicating himself and

Davis in the attempted robbery of Sinson and the homicides of Orr and Smith.

Davis subsequently confessed to the crimes as well.



         After a joint jury trial, both defendants were convicted of one (1) count of

attempted aggravated robbery and two (2) counts of first degree felony murder. For



                                          3
both defendants, the trial court imposed consecutive sentences of life imprisonment

for each count of felony murder and three (3) years for attempted aggravated

robbery. From these convictions and sentences, defendants bring this appeal.



      WATKINS - FATAL VARIANCE IN THE INDICTMENT AND PROOF



      Watkins contends that the evidence of the victim’s name at trial differs

substantially from that alleged in the indictment, and the variance is fatal. The

indictment alleged that the victim of the attempted aggravated robbery         was

“Edward Sensor.” At trial, the state presented proof that the victim’s name was

actually “Elwood Sinson.” The state announced prior to Sinson’s testimony that his

name was incorrectly listed on the indictment. Neither defendant objected.

      This issue was not presented in Watkins’ motion for new trial. This failure

waives appellate review. Tenn. R. App. P. 3(e); see State v. Walker, 910 S.W.2d

381, 386 (Tenn. 1995).

      Nevertheless, this issue is without merit. In order for a variance between the

indictment and the proof to be fatal, the variance must be both material and

prejudicial to the defendant. State v. Mayes, 854 S.W.2d 638, 640-41 (Tenn. 1993);

State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984). A variance is not material

“where the allegations and proof substantially correspond, the variance is not of a

character which could have misled the defendant at trial and is not such as to

deprive the accused of his right to be protected against another prosecution for the

same offense.” State v. Moss, 662 S.W.2d at 592. The defendant has failed to

demonstrate that the variance between the indictment and the proof was material.

Moreover, defendant has not shown that he was prejudiced by the discrepancy in

the victim’s name.



                     WATKINS - ADMISSION OF STATEMENT



      In his next assignment of error, Watkins claims that the trial court erred in


                                         4
admitting his post-arrest statement into evidence at trial. He asserts that he was

illegally arrested in his grandmother’s home without a search warrant. See Steagald

v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). Therefore,

he urges that his confession was “fruit of the poisonous tree” and should have been

suppressed.

       In a pre-trial hearing, Watkins moved to suppress his statement on the

ground that he was illegally arrested without an arrest warrant. After he presented

his evidence in favor of the motion to suppress, defense counsel acknowledged that

there was an arrest warrant, withdrew his Fourth Amendment ground and

proceeded on whether or not the confession was voluntary. The need for a search

warrant was not raised in the trial court.

       Watkins did not raise this issue in his motion for new trial. Therefore, the

issue is waived. Tenn. R. App. P. 3(e). Moreover, the abandonment of the issue

in the motion to suppress would serve as a waiver of the issue as well.2 See Tenn.

R. App. P. 36(a).

       This issue has been waived.



            WATKINS AND DAVIS - SEVERANCE OF DEFENDANTS



       Watkins and Davis both contend that the trial court erred in denying their

respective motions to sever their trials.         Each defendant claims that he was

prejudiced by the admission of his codefendant’s post-arrest statement at trial.

       Before the state presented its proof, the trial court determined that the

confession of each defendant would be admissible at trial. However, the trial court,



       2
         We do not imply that an arrest of a defendant, pursuant to an arrest warrant, that
occurs within another person’s residence, without a search warrant, is illegal as to the
arrested defendant. Steagald concerned the rights of the residential owner, not the arrested
person. An arrest warrant alone is sufficient to enter the dwelling in which the suspect lives
when there is reason to believe he is present. Payton v. New York, 445 U.S. 573, 603, 100
S.Ct. 1371, 63 L. Ed 2d 639 (1980).

       We also note the issue of consent to enter the premises was not litigated during the
motion to suppress. The record implies that the police were given consent to enter the home
of Watkins’ grandmother.

                                              5
under the authority of State v. Porterfield, 746 S.W.2d 441, 446 (Tenn. 1988), ruled

that portions of each statement which exposed the other defendant to an increased

risk of conviction should be redacted. Nevertheless, the redacted versions of each

defendant’s statement admitted at trial still implicated the other defendant in the

crimes.

                                           A.

       Tenn. R. Crim. P. 14(c) governs the granting or denial of a severance of

defendants. The decision as to whether or not to grant a severance is left to the

sound discretion of the trial judge, and this decision will not be disturbed unless the

defendant is unfairly or unduly prejudiced. See State v. Coleman, 619 S.W.2d 112,

116 (Tenn. 1981); State v. Woods, 806 S.W.2d 205, 211 (Tenn. Crim. App. 1990);

State v. Kyger, 787 S.W.2d 13, 20 (Tenn. Crim. App. 1989); State v. Hodgkinson,

778 S.W.2d 54, 61 (Tenn. Crim. App. 1989); State v. Wiseman, 643 S.W.2d 354,

362 (Tenn. Crim. App. 1982). Stated in another manner, a trial court will not be

found to have abused its discretion in denying a severance unless “the defendant

was clearly prejudiced to the point that the trial court’s discretion ended and the

granting of [a] severance became a judicial duty.” State v. Burton, 751 S.W.2d 440,

447 (Tenn. Crim. App. 1988) (quoting Hunter v. State, 222 Tenn. 672, 682, 440

S.W.2d 1, 6 (1969)).

                                           B.

       In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476

(1968), the Supreme Court held that an inculpatory confession of a nontestifying

codefendant is not admissible in a joint trial with a defendant who has not confessed

his participation in the crime. In a later decision, a plurality of the Court held that an

“interlocking” confession of a nontestifying codefendant with proper limiting

instructions would not offend the defendant’s rights under the Sixth and Fourteenth

Amendments to the United States Constitution. Parker v. Randolph, 442 U.S. 62,

99 S.Ct. 2132, 60 L.Ed.2d 713 (1979).

       The ruling in Parker v. Randolph based upon “interlocking” confessions was

later undercut by the Court’s decision in Cruz v. New York, 481 U.S. 186, 107 S.Ct.


                                            6
1714, 95 L.Ed.2d 162 (1987). In Cruz, the Court held that the Confrontation Clause

of the Sixth Amendment bars the admission, in a joint criminal trial, of a

nontestifying codefendant’s confession which incriminates the defendant and which

is not directly admissible against the defendant.3 481 U.S. at 193. This is true even

if the jury is instructed not to consider the codefendant’s confession against the

defendant, and even if the defendant’s own confession is admitted against him. Id.

       However, a defendant’s confession may be considered at trial in order to

assess “whether his codefendant’s statements are supported by sufficient ‘indicia

of reliability’ to be directly admissible against him (assuming the ‘unavailability’ of

the codefendant) despite the lack of opportunity for cross-examination”4 and “may

be considered on appeal in assessing whether any Confrontation Clause violation

was harmless.” Id. at 194 (emphasis added). This holding was followed by our

Supreme Court in State v. Porterfield, 746 S.W.2d at 446, and this Court in State

v. Cameron, 909 S.W.2d 836, 852-53 (Tenn. Crim. App. 1995).

       In the case sub judice, the trial court erred in admitting those portions of the

statement of each defendant that implicated the other defendant in the crimes.

However, when each defendant’s confession is viewed by itself in conjunction with

the other evidence presented, excluding the codefendant’s confession, the evidence

of guilt as to each defendant is overwhelming. We, therefore, conclude that the

Bruton error was harmless. See State v. Porterfield, 746 S.W.2d at 446; State v.

Cameron, 909 S.W.2d at 853; Tenn. R. App. P. 36(b).

                                          C.

       Watkins further contends that Davis’ confession was inadmissible because

it was hearsay, and no hearsay exception applies. This issue was not presented

in the motion for new trial and is waived. Tenn. R. App. P. 3(e). Furthermore, as

stated above, its admission was harmless as to Watkins. Tenn. R. App. P. 36(b).

                                          D.



       3
        See Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), as to
evidence directly admissible against the defendant.
       4
           See Lee v. Illinois, supra.

                                          7
       Watkins argues that he was further prejudiced because the trial court’s

redactions of his statement violated the rule of completeness. See State v.

Robinson, 622 S.W.2d 62,71 (Tenn. Crim. App. 1981). After a review of the entire

statement, we find that Watkins has not shown how “fairness” required the

admission of his entire statement. See Tenn. R. Evid. 106. There is nothing in the

excluded portions of Watkins’ statement which would mitigate his involvement in the

crimes. Furthermore, the jury was not misled as to his involvement in the crimes.

In short, he has not demonstrated how he was prejudiced by the redactions. At

most, this was harmless errror. See State v. Robinson, 622 S.W.2d at 71.

                                          E.

       In support of his contention that the trial court erred in denying the motion to

sever the defendants, Davis also argues that relevant portions of his statement were

redacted. He also claims that he was prejudiced by the introduction of evidence

that Watkins had escaped from jail.

       Defendant has failed to make appropriate references to the record and has

failed to cite authority to support his argument. Therefore, this issue is waived.

Tenn. Crim. App. Rule 10(b); State v. Turner, 919 S.W.2d 346, 358 (Tenn. Crim.

App. 1995); State v. Hill, 875 S.W.2d 278, 283-84 (Tenn. Crim. App. 1993); State

v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988); see also Tenn. R. App.

P. 27(a)(7) and (g).

       Furthermore, defendant has not shown how he was prejudiced by these

alleged errors.



    WATKINS - FAILURE TO INSTRUCT ON SECOND DEGREE MURDER



       Watkins asserts that the trial court erred in failing to instruct the jury on

second degree murder. He maintains that second degree murder is a lesser grade

of felony murder pursuant to State v. Trusty, 919 S.W.2d 305 (Tenn. 1996). He

claims that the trial court had a mandatory duty to charge the jury on lesser grades

or classes of the charged offense as supported by the evidence, without any


                                          8
request by the defendant to do so.          See Tenn. Code Ann. § 40-18-110(a).

Therefore, he insists that the failure to charge the jury on second degree murder

warrants a reversal and a new trial.

       This issue was not presented to the trial court in the motion for new trial.

Therefore, the issue is waived. Tenn. R. App. P. 3(e).



                 DAVIS - ACCEPTANCE FOR TRIAL AS ADULT



       Davis claims that the trial court erred in accepting his transfer from juvenile

court to be tried as an adult. He argues that he sufficiently raised the issue of his

mental illness. He maintains that once the issue of mental illness is raised, the

state must prove that the defendant is not committable to an institution. He urges

that the state did not carry its burden; therefore, he should have been tried as a

juvenile.

       A juvenile may be transferred from juvenile court to be tried as an adult if the

court finds that there are reasonable grounds to believe that: (1) the child committed

the delinquent act; (2) the child is “not committable to an institution for the mentally

retarded or mentally ill”; and (3) “the interests of the community require that the child

be put under legal restraint or discipline.” Tenn. Code Ann. § 37-1-134(a)(4).

       At the acceptance hearing conducted pursuant to Tenn. Code Ann. § 37-1-

159(d), both the state and Davis presented psychological proof. The state’s expert

testified that he saw no evidence that Davis was mentally retarded or suffered from

mental illness. The defense expert diagnosed Davis with situational depression and

described him as having “paranoid tendencies.” However, the defense expert

further testified that she found that Davis was not committable to an institution for

the mentally retarded or mentally ill.

       The trial court specifically found that Davis was not “suffering from mental

illness and he’s not subject to commitment to any institution.” We find that the

record supports the findings of the trial court that Davis was not committable.

Moreover, the trial court found and the record supports that Davis committed the



                                           9
“delinquent act as alleged,” and that the interests of the community required that

Davis be put under legal restraint or discipline. The trial court properly accepted

Davis to be tried as an adult.

       This issue is without merit.



                      DAVIS - ADMISSION OF STATEMENT



       Davis next claims that the trial court erred in allowing his post-arrest

statement to be introduced at trial. He bases this argument on two premises: (1) his

statement was taken in violation of Tenn. R. Juv. P. 7(d), and (2) he did not

knowingly and voluntarily waive his rights due to his mental state.

                                           A.

       Rule 7(d) of the Tennessee Rules of Juvenile Procedure provides, in

pertinent part:

       If feasible, a parent or guardian should be present during questioning.
       In any event, no child having been placed in and present in a
       detention facility shall be interrogated concerning an alleged violation
       of law unless the child intelligently waives in writing the right to remain
       silent.

Davis contends that his parents were at the police station while he was being

questioned, but the officers would not allow him to see his parents.

       However, it is well-settled that the failure to follow this rule will not exclude

the introduction of a validly obtained confession in a trial in criminal court. Coyler

v. State, 577 S.W.2d 460, 463 (Tenn. 1979); State v. Turnmire, 762 S.W.2d 893,

896-97 (Tenn. Crim. App. 1988); State v. Walker, 729 S.W.2d 272, 274 (Tenn.

Crim. App. 1986); see also Raybin, Tennessee Criminal Practice and Procedure §

8.12 (1984). Therefore, the only inquiry becomes whether the confession was the

result of a knowing and intelligent waiver of Davis’ constitutional rights. See State

v. Lundy, 808 S.W.2d 444, 446 (Tenn. 1991).

                                           B.

       The record of the suppression hearing is sparse. Neither the defendant nor

the officer who took the confession testified. The only persons who actually testified


                                           10
were a clinical psychologist, defendant’s mother and defendant’s step-father.

However, other documentation was admitted into evidence.

       Davis was two (2) months shy of his eighteenth birthday when he was taken

into custody and interrogated. The subjects of the suppression hearing were two

(2) separate confessions by Davis; namely, a written confession taken at 6:47 p.m.

on March 30, 1994, and a tape recorded confession beginning at 8:14 p.m. that

same day and ending at 8:35 p.m. There is no issue as to Davis having been

advised of his constitutional rights. The issue is whether Davis’ mental state

prevented his confession from being voluntary.

       A clinical psychologist, who evaluated Davis in August 1995, some one and

one-half (1½) years after the confession, opined that Davis was a paranoid

schizophrenic functioning in the low average range of overall intelligence. He

further opined that Davis had serious relationship problems and conflict with

authority; was suggestible, gullible and confused; had a learning disability; suffered

from delusions and hallucinations; lacked emotional self-control; and was distrustful.

In an atmosphere of interrogation, the psychologist believed Davis would be fearful

of being exploited and would have a desire to escape the situation. In light of Davis’

mental capabilities, the psychologist did not believe Davis would understand the

consequences of confessing and waiving his constitutional rights.

       Also admitted at the suppression hearing were the results of an evaluation

of Davis performed by the Forensic Services Division of Middle Tennessee Mental

Health Institute in March 1995, approximately one (1) year after the confession. As

a result of this evaluation, Davis was found capable of adequately defending himself

in a court of law in that he understood the charges against him and possible

consequences and was able to advise counsel and participate in his own defense.

The evaluation concluded that a defense of insanity could not be supported and,

further, that Davis did not meet the standards for commitment to a mental health

institute.

       Documentation was also introduced relating to an evaluation performed on

May 25, 1994, by The Adolescent Center of the Children and Youth Programs of



                                         11
Middle Tennessee Mental Health Institute.            This evaluation was performed

approximately two (2) months after the confession. Davis was found to be alert and

oriented, yet suffered from paranoid thoughts and was suspicious of others. His full

scale IQ was 92, which placed him within the average range of intelligence. He

read at a 12.9 grade level and did math at a 6th grade level. He was thought to be

a risk of harm to himself and others; however, he did not meet standards for

commitment to an institution for the mentally ill.

       Defendant’s mother testified that Davis appeared to be in “a state of shock”

and “in a daze” when she saw him at the police station on the night of the

interrogation. She did not believe he understood what he was doing.

       Davis’ step-father testified that he and his wife were allowed to talk to Davis

at the police station. Davis was able to relate to them what had happened and

understood why he was there. Davis appeared to be nervous, but the step-father

did not see anything particularly wrong with him on that occasion.

       The written confession was in the handwriting of Davis. It is concise,

understandable and details the basic facts relating to the homicides.

       Likewise, the tape recorded statement of Davis gives a very clear, detailed

accounting of the attempted robbery and the two (2) homicides. There is nothing

in the statement to indicate that Davis did not understand what he was doing.



       At the conclusion of the hearing on the motion to suppress, the trial court

found that the confessions were freely, voluntarily and understandingly made. The

motion to suppress was overruled.

                                         C.

       The trial court’s determination at the suppression hearing that the

confessions were voluntary is presumptively correct on appeal.              State v.

Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). This determination is conclusive

unless the evidence in the record preponderates against that finding. State v.

Smith, 933 S.W.2d 450, 455 (Tenn. 1996); State v. Kelly, 603 S.W.2d 726, 729

(Tenn. 1980).



                                         12
         The test of voluntariness for confessions under Article I, § 9 of the

Tennessee Constitution is broad and more protective of individual rights than under

the Fifth Amendment to the United States Constitution. State v. Stephenson, 878

S.W.2d at 544. In Tennessee, the particular circumstances of each case must be

examined as a whole. State v. Smith, 933 S.W.2d at 455; Monts v. State, 218

Tenn. 31, 400 S.W.2d 722, 733 (1966). The fact that one suffers from certain

mental deficiencies does not necessarily prevent that person from understanding

and waiving constitutional rights. See generally, State v. Middlebrooks, 840 S.W.2d

317, 327 (Tenn. 1992); IV Wharton’s Criminal Evidence § 643, p. 169 (14th ed.

1987).

                                         D.

         After a careful examination of the record, we conclude that the evidence

does not preponderate against the trial court’s findings that the confessions were

voluntarily given. Certainly, the testimony suggests that Davis indeed had certain

mental deficiencies; however, these deficiencies do not establish that his

confessions were involuntary.

         This issue is without merit.




                                   DAVIS - SANITY



         In his next assignment of error, Davis challenges the sufficiency of the

evidence regarding his sanity. He argues that the state did not prove beyond a

reasonable doubt that he was sane at the time of the commission of the offenses.

                                         A.

         At the time of the commission of these offenses, insanity was a defense to

prosecution if “at the time of such conduct, as a result of mental disease or defect,

the [defendant] lacked substantial capacity either to appreciate the wrongfulness of

[his or her] conduct or to conform that conduct to the requirements of the law.”




                                         13
Tenn. Code Ann. § 39-11-501(a)(1991). 5 There was a presumption, rebuttable in

nature, that the defendant in a criminal proceeding was sane. State v. Jackson, 890

S.W.2d 436, 440 (Tenn. 1994). The defendant had the initial burden of showing

that sanity was an issue. State v. Sparks, 891 S.W.2d 607, 615 (Tenn. 1995).

However, if evidence was adduced during trial which raised a reasonable doubt as

to the defendant’s sanity, then sanity of the defendant became an element of the

crime which the state had to prove beyond a reasonable doubt. Id. at 615-16

(quoting Graham v. State, 547 S.W.2d 531, 544 (Tenn. 1977)).

       In order to prove sanity, the state was required to prove:

       (1) the defendant was not “suffering from a mental illness at the time
       of the commission of the crime,” or

       (2) the illness proved did not “prevent his knowing the wrongfulness
       of the act” and did not “render him substantially incapable of
       conforming his conduct to the requirements of the law he is charged
       with violating.”

State v. Jackson, 890 S.W.2d at 440 (quoting State v. Clayton, 656 S.W.2d 344,

351 (Tenn. 1983)).




                                           B.

       At the conclusion of the state’s proof, Davis presented evidence from two

psychologists and a licensed counselor.         Pat Fitzpatrick, a counselor at the

Chattanooga Counseling Clinic, testified that Davis was extremely paranoid. Dr.

Alden Kline, a licensed clinical psychologist, described Davis as “actively psychotic,”

anxious, tense, paranoid and experiencing auditory and visual hallucinations. Dr.

Kline diagnosed him with a “schizophrenic reaction, a paranoid type.” Dr. Kline

concluded that Davis’ schizophrenia would have impaired his judgment.                Dr.

Kenneth Anchor, a psychologist, also diagnosed Davis as a paranoid schizophrenic,

characterized by hallucinations and delusions. Dr. Anchor further testified that this

mental illness was such as to prevent Davis from knowing the wrongfulness of his



       5
        Tenn. Code Ann. § 39-11-501 was amended in 1995 to make insanity an affirmative
defense requiring clear and convincing evidence. The test for insanity was also modified.

                                           14
actions and rendered him incapable of conforming his conduct to the requirements

of the law.

       On rebuttal, the state presented testimony from Dr. Amen Azema. He

testified that Davis was not suffering from mental illness, and an insanity defense

could not be supported. Specifically, Dr. Azema stated that Davis could appreciate

the wrongfulness of his behavior and could conform his behavior to society and the

law. He testified that Dr. Anchor relied upon invalid test results for his diagnosis.

       Lynn Daniels, a licensed clinical social worker, found no evidence that Davis

was experiencing any thought disorder. Dr. Palmeda Taylor testified that she

conducted a personality inventory test on Davis to determine if he was suffering

from a mental disease. Her results were invalid in that she found Davis was

“making a conscience [sic] attempt to impress poorly, or . . . to ‘fake bad.’”

                                         C.

       Once Davis and the state had presented their proof, the issue of sanity was

a question for the jury to determine. They were able to weigh and assess the

credibility of the expert witnesses on both sides. The jury was properly instructed

on the insanity defense. We find that the evidence supports the jury’s finding that

Davis was sane at the time of the commission of the offenses.

       This issue is without merit.



              WATKINS AND DAVIS - CONSECUTIVE SENTENCING



       Both defendants contend that the trial court erred in ordering that their

sentences run consecutively. Davis claims that the trial court improperly relied upon

enhancement factors submitted by the state. Watkins argues that the court did not

give proper consideration to consecutive sentencing criteria as outlined by State v.

Wilkerson, 905 S.W.2d 933 (Tenn. 1995).

                                         A.

       This Court’s review of the sentences imposed by the trial court is de novo

with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d).               This


                                         15
presumption is conditioned upon an affirmative showing in the record that the trial

judge considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden is upon the

appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-

401(d) Sentencing Commission Comments.

       Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115. A

court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that one or more of the required statutory criteria

exist. State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Furthermore,

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 conduct by the offender; and (3) are congruent with the

general principles of sentencing. State v. Wilkerson, 905 S.W.2d at 939.

                                         B.

       The trial court found that both defendants were dangerous offenders “whose

behavior indicates little or no regard for human life, and no hesitation about

committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-

35-115(b)(4). We agree.

       Our de novo review further indicates that consecutive sentencing is

necessary to protect the public from further criminal conduct by both defendants.

We also find that the sentences are congruent with the general principles of

sentencing.    Although the trial court did not make the findings required by

Wilkerson, we find that these factors are present under our power of de novo

review. State v. Adams, 859 S.W.2d 359 (Tenn. Crim. App. 1993). Consecutive

sentencing is appropriate.

       This issue is without merit.



                                  CONCLUSION



       For the foregoing reasons, the judgment of the trial court is affirmed.


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                                     JOE G. RILEY, JUDGE



CONCUR:




JOE B. JONES, PRESIDING JUDGE




WILLIAM M. BARKER, JUDGE




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