         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 4, 2005

           STATE OF TENNESSEE v. ANTONIO SAULSBERRY
                     Appeal from the Criminal Court for Shelby County
                     No. 95-07823 & 95-07824 Joseph B. Dailey, Judge



                 No. W2005-00316-CCA-R9-CD - Filed September 11, 2006


A Shelby County jury convicted the defendant of first degree premeditated murder, especially
aggravated robbery and conspiracy to commit aggravated robbery. This Court reversed the
defendant’s conviction for first degree premeditated murder on direct appeal and remanded for a
retrial on the defendant’s two charges of felony murder. Prior to his retrial, the defendant filed a
motion stating that his prosecution for the felony murder charges is a violation of the principles of
double jeopardy. The trial court denied the defendant’s motion. The defendant now brings an
interlocutory appeal to determine whether the principles of double jeopardy bar a trial on the two
felony murder charges. We find that a retrial on the felony murder charges would not constitute
double jeopardy and affirm the decision of the trial court.


      Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Trial Court Affirmed.

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN E.
GLENN , JJ., joined.

Charles E. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Antonio Saulsberry

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Bobby Carter, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

       We repeat the underlying facts as recited by this Court on the defendant’s direct appeal:


              The record in this case reveals a cast of five criminal actors: Claude Sharkey,
       Clashaun (“Shaun”) Sharkey, Kevin Wilson, Defendant Franklin Howard, and
Defendant Antonio Saulsberry. Defendant Saulsberry was employed at the restaurant
prior to January 28, 1995, the date of this incident. According to the proof at trial,
Claude, Shaun, Wilson, and Saulsberry discussed robbing T.G.I. Friday’s restaurant
(“Friday’s”) the day before the crime. In the early morning hours of January 28,
1995, after the restaurant closed business for the prior night, Claude, Shaun, Wilson,
and Howard drove to Friday’s and waited in the back parking lot.

        Friday’s dishwasher John Wong exited the restaurant through its back door
to dispose of the night’s garbage, and the perpetrators used this opportunity to enter
the building. Wong heard one man say, “Shoot the mother . . .,” referring to Wong.
He was pushed from behind with a gun and ordered to lie down on the ground, and
he complied.

        Claude, Shaun, Wilson, and Howard continued through the back area of the
restaurant toward the manager’s office, where they encountered bartender Preston
Shea. Shea saw four armed men with ski masks walking toward him and screaming.
He was knocked to the ground by one perpetrator outside the manager’s office. At
least two men entered the office and screamed, “Give me the money,” and “Where’s
the f__king money.” Shea responded by holding up his wallet and pleading, “Please,
God, take the money and go.” He heard bags of money being passed from person to
person above his head and heard one man say, “Shoot his ass.” Shea then heard a
shot from the manager’s office, where the perpetrators had already taken the money
from the victim, Gene Frieling.

        Wong, remaining on the floor during the disturbance, also heard one of the
perpetrators demand, “Give me the money--give me the money,” and he heard
Frieling say, “Take it, take it, take it.” Wong heard “[o]ne explosion then two--the
two that I heard, it was like two in one--the swiftness of it that followed behind--one
behind the other.” Then Frieling said, “Jesus Christ, he shot me, he shot me.”

        Shea had been repeatedly kicked during this episode, and as the men left the
office, he was shot three times--twice in the leg and once in his lower back, through
his bladder and intestines. He then crawled into the office and called 911, but he was
too injured to stay with the telephone. As he fell back to the floor, Wong took the
telephone and finished the 911 call.

        Jessica Hoard, a server at Friday’s, also testified for the State. Hoard was the
only other employee still present on the morning of January 28, and she was in the
dining room of the restaurant when the perpetrators arrived. One of the men ordered
her to walk into the kitchen and commanded, “Get on the floor before I shoot you.”
She heard one person say, “Where’s the money,” a couple of times, and she then
heard at least two gunshots. When she believed the perpetrators were gone and she
could safely stand up, Hoard helped John Wong attend to the wounded Frieling and


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       Shea. Because Frieling was only barely breathing, the two uninjured employees
       decided to lift him from a prone position to an upright position. Frieling remained
       in this sitting, slumped posture until he was found by police and determined dead.
       An autopsy revealed that the cause of death was a gunshot wound to the heart.


State v. Antonio L. Saulsberry, No. 02C01-9710-CR-00406, 1998 WL 892281, at *2-3 (Tenn. Crim.
App., at Jackson, Dec. 21, 1998), Rev’d by State v. Howard, 30 s.W.3d 271 (Tenn. 2000).

         The Shelby County Grand Jury indicted the defendant and his co-defendant, Franklin
Howard, in July of 1995 on premeditated murder, murder committed in the perpetration of a robbery,
murder committed in the perpetration of a burglary, especially aggravated robbery, and conspiracy
to commit a felony. At the conclusion of a jury trial, they were convicted of first degree
premeditated murder, especially aggravated robbery and conspiracy to commit aggravated robbery.
The jury sentenced the defendants to life imprisonment for the premeditated murder convictions and
the trial court sentenced the defendant as a Range II offender to forty years for especially aggravated
robbery and ten years for conspiracy. The trial court sentenced Howard as a Range I offender to
twenty-five years for especially aggravated robbery and six years for conspiracy. In both cases the
trial court ordered that all sentences, including the life imprisonment, be served consecutively.

        Both the defendant and Howard then appealed their convictions and sentences to this Court.
A panel reversed the defendant’s conviction for premeditated murder stating, “Defendant
Saulsberry’s conviction for first degree murder is not supported by sufficient evidence, and such
conviction is therefore reversed and his case is remanded for a new trial on the charge of felony
murder as alleged in Counts 2 and 3 of the indictment.” Antonio L. Saulsberry, 1998 WL 892281
at *18. The panel affirmed the especially aggravated robbery and conspiracy convictions for both
defendants, as well as, Howard’s murder conviction. Id.

        The defendant did not appeal this Court’s decision to the Tennessee Supreme Court. Instead,
he filed a post-conviction petition attacking his robbery and conspiracy convictions. Antonio L.
Saulsberry v. State, No. W2002-02538-CCA-R3-PC, 2004 WL 239767, at *1 (Tenn. Crim. App.,
at Jackson, Feb. 6, 2004), perm. app. denied, (Tenn. June 1, 2004). The defendant argued that his
counsel at trial was ineffective and he had been denied second-tier review. Id. The post-conviction
court denied the defendant’s petition, and he appealed to this Court. Id. We dismissed the
defendant’s appeal because his petition was filed outside the one year statute of limitations. Id. at
*4.

        In the meantime, Howard appealed this Court’s affirmance of his convictions to our supreme
court. On appeal, our supreme court reversed Howard’s conviction of first degree premeditated
murder because the jury had not been instructed on “the natural and probable consequences rule.”
State v. Howard, 30 S.W.3d 271, 277-78 (Tenn. 2000). Upon remand, Howard was convicted of
first degree premeditated murder and two modes of felony murder. State v. Franklin Howard, No.
W2002-01680-CCA-R3-CD, 2004 WL 2715346, at *4 (Tenn. Crim. App., at Jackson, Nov. 18,


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2004), perm. app. denied, (Tenn. Mar. 21, 2005) (not for citation). The trial court merged all the
murder verdicts into one and sentenced Howard to life in prison. Id. Howard then appealed his
convictions from his trial on remand. On appeal, this Court vacated the felony murder convictions
on the basis of double jeopardy. Id. at *11-12. We then affirmed Howard’s conviction for
premeditated murder and his consecutive sentences. Id. at *16.

        Following this Court’s decision on Howard’s appeal from remand, on December 17, 2004,
the defendant filed a Motion to Dismiss Prosecution Based on Double Jeopardy. The trial court
conducted a hearing on January 10, 2005 and denied the motion. On January 21, 2005, the defendant
filed a Motion for a Rule 9 Interlocutory Appeal. The trial court granted the motion, and this Court
did as well and this is the case that is now on appeal.


                                             ANALYSIS

       The defendant argues on appeal that a retrial of the defendant on felony murder charges
would violate the state and federal double jeopardy provisions. The Double Jeopardy Clause[s] of
both the United States and Tennessee Constitutions state[ ] that no person shall be twice put in
jeopardy of life or limb for the same offense. U.S. Const. amend. 5; Tenn. Const. art. I, § 10. The
clause has been interpreted to include the following protections: “It protects against a second
prosecution for the same offense after acquittal. It protects against a second prosecution for the same
offense after conviction. And it protects against multiple punishments for the same offense.” North
Carolina v. Pearce, 395 U.S. 711, 717 (1969); State v. Phillips, 924 S.W.2d 662, 664 (Tenn. 1996).

        The defendant bases his argument on this Court’s decision in State v. Franklin Howard, No.
W2002-01680-CCA-R3-CD, 2004 WL 2715346 (Tenn. Crim. App., at Jackson, Nov. 18, 2004),
perm. app. denied, (Tenn. March 21, 2005) (not for citation). In Franklin Howard, we addressed
Howard’s direct appeal from his trial upon remand. Upon remand, Howard was convicted of first
degree premeditated murder and felony murder. Franklin Howard, 2004 WL 2715346, at *1. At his
trial upon remand, Howard was tried for first-degree premeditated murder, felony murder committed
in the perpetration of a robbery and felony murder in the perpetration of a burglary. Id. at *11.
Howard was convicted for all three. Id. On this direct appeal from these convictions, one of his
issues was whether the second trial should have been barred due to double jeopardy concerns. Id.
at *1. We stated that jeopardy attached for the felony murder charges in the first trial and, therefore,
Howard’s subsequent convictions for the two felony murder charges must be vacated because of a
double jeopardy problem. Id. at *12.

        The defendant argues that because he and Howard were originally tried together by the same
jury and subject to the same jury instructions, the same analysis should apply to his trial upon
remand. He argues that jeopardy also attached with regard to the two felony murder charges in his
original trial. However, the Tennessee Supreme Court has designated Franklin Howard, as “Not for
Citation.” Rule 4(F)(1) of the Rules of the Supreme Court of Tennessee states, “If an application
for permission to appeal is hereafter denied by this Court with a “Not for Citation” designation, the


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opinion of the intermediate appellate court has no precedential value.” Therefore, we are unable to
rely upon this Court’s analysis with regard to the double jeopardy questions raised in Franklin
Howard, even though the defendant was tried in the same original trial.

       In the defendant’s direct appeal, this Court included language in a footnote regarding whether
he could be tried on the felony murder charges. The panel stated:

       Nor, however, can we agree that Saulsberry cannot be retried for felony murder,
       although this issue is not before us. The jury was strictly instructed to cease
       deliberations upon finding Defendants guilty of premeditated murder. When the jury
       found them guilty of premeditated murder, it did not render any further verdicts on
       homicide charges. This does not equate to an acquittal. State v. Burns, [979] S.W.2d
       [276] Appendix (Tenn. 1998).

Antonio L. Saulsberry, 1998 WL 892281, at *4 n.4. In Howard’s direct appeal to our supreme court
this issue of sequential jury instructions leading to potential double jeopardy issues was addressed
in a footnote. Our supreme court stated:

       While it was not error for the trial court to deliver sequential jury instructions, see
       Harris v. State, 947 S.W.2d 156, 175 (Tenn. Crim. App. 1996), we have previously
       urged trial courts to allow juries to consider all theories of first-degree murder. See
       State v. Cribbs, 967 S.W.2d 773, 787-88 (Tenn. 1998[)]; Carter v. State, 958 S.W.2d
       620, 624-25 n.6 (Tenn. 1997). We are compelled to emphasize this point again: a
       trial court should instruct a jury to render a verdict as to each count of a multiple
       count indictment which requires specific jury findings on different theories of
       first-degree murder. If the jury does return a verdict of guilt on more than one theory
       of first-degree murder, the court may merge the offenses and impose a single
       judgment of conviction. See State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim.
       App. 1997). The benefits of instructing the jury in this manner are important. First,
       the double jeopardy problem of retrying a defendant after a subsequent appellate
       opinion reverses a conviction as unsupported by evidence is precluded. Second, the
       State will have a basis to protect other convictions to which it may be entitled. Third,
       in light of our decision in State v. Middlebrooks, 840 S.W.2d 317 (1992), a jury
       verdict on each charged offense will allow the State to use the felony murder
       aggravator as an aggravating circumstance in sentencing. See State v. Hall, 958
       S.W.2d 679, 692-93 (Tenn. 1997).


Howard, 30 S.W.3d at 274-75 n.4. This language in part led to this Court’s analysis of Howard’s
felony murder conviction upon remand in Franklin Howard. This Court was attempting to solve the
double jeopardy “problem.” Franklin Howard, 2004 WL 2715346. at *12.




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        Despite the reference to the potential double jeopardy problem in this situation, our supreme
court, as well as this Court, has allowed defendants to be retried on charges that were not reached
by the jury when sequential instructions on the charges were given. State v. Madkins, 989 S.W.2d
697, 699 (Tenn. 1999); State v. Burns, 979 S.W.2d 276, 291 (Tenn. 1998) (attaching this Court’s
direct appeal opinion as an appendix); State v. John E. Parnell, No. W1999-00562-CCA-R3-CD,
2001 WL 124526, at *6 (Tenn. Crim. App. at Jackson, Feb. 6, 2001); State v. David William Smith,
No. 03C01-9809-CR-00344, 2000 WL 210378, at *6 (Tenn. Crim. App. at Knoxville, Feb. 24,
2000).


        In the defendant’s original trial, the trial court instructed the jury to begin their consideration
with first degree premeditated murder. If the jury did not find the defendant guilty of premeditated
murder, they were then to move on to the felony murder charges. At the original trial, the jury found
the defendant of first degree premeditated murder. Therefore, the presumption is that the jury never
considered whether the defendant was guilty of either of the felony murder charges. As stated above,
there are no double jeopardy concerns where the jury instructions are given sequentially and there
is a presumption that the jury followed the instructions given by the trial court. See Madkins, 989
S.W.2d at 699; Burns, 979 S.W.2d at 291; John E. Parnell, 2001 WL 124526, at *6; David William
Smith, 2000 WL 210378, at *6. Therefore, we conclude that there would be no double jeopardy
concerns with a retrial of the defendant on the felony murder charges. For this reason, this issue is
without merit.


                                            CONCLUSION


        For the foregoing reasons, we affirm the judgment of the trial court.



                                                 ___________________________________
                                                 JERRY L. SMITH, JUDGE




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