          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                             MAY SESSION, 1999
                                                               FILED
                                                               September 7, 1999
STATE OF TENNESSEE,                  )   C.C.A. NO. 02C01-9806-CR-00165
                                     )                     Cecil Crowson, Jr.
                                                          Appellate Court Clerk
            Appellee,                )   SHELBY COUNTY
                                     )
V.                                   )   HON. CAROLYN WADE BLACKETT,
                                     )   JUDGE
REDONNA T. HANNA and                 )
BER NARD O C. L ANE,                 )   (FIRST DEGREE MURDER; ESPECIALLY
                                     )   AGGRAVATED ROBBERY; AGGRAVATED
            Appellants.              )   ROBBERY; AGGRAVATED BURGLARY




FOR THE APPELLANTS:                       FOR THE APPELLEE:

A. C. WHARTON                             PAUL G. SUMMERS
District Public Defender                  Attorney General & Reporter
Counsel for Defendant Hanna
                                          R. STEPHEN JOBE
W. MARK WARD                              Assistant Attorney General
Assistant Public Defender                 2nd Floor, Cordell Hull Building
Counsel for Defendant Hanna               425 Fifth Avenue North
Criminal Justice Center, Suite 201        Nashville, TN 37243
201 Poplar Avenue
Memphis, TN 38103                         JOH N W. P IERO TTI
                                          District Attorn ey Ge neral

PATRICIA A. ODELL                         PAUL F. GOODMAN
Counsel for Defendant Lane                Assistant District Attorney General
50 North Front Street, Suite 780
Memphis, TN 38103                         MICHAEL H. LEAVITT
                                          Assistant District Attorney General
                                          Criminal Justice Center, Suite 301
                                          201 Poplar Avenue
                                          Memphis, TN 38103

OPINION FILED ________________________

CONVICTIONS AFFIRM ED; REMANDED T O TRIAL
COURT FOR ENTRY OF CORRECT JUDGMENTS

THOMAS T. WOODALL, JUDGE
                                   OPINION
       The Defendants, Redonna T. Hanna and Bernardo C. Lane, appeal as of right

from their multip le con victions in the S helby C ounty Crim inal Co urt. In this appe al,

Defendant Hanna presents the following three issues for review:

        I.    Whether the evide nce wa s sufficient to identify Defendant
              Hanna as the perpetrator of the crimes;

        II.   Whether the trial court erred in denying Defendant
              Han na’s motion to suppress his confession a s involuntary;
              and

       III.   Whether the convictions for both first degree felony
              murder and premeditated first degree murder violated
              Defendant Hanna’s double jeopardy rights.

Defendant Lane presents the following two issues for review:

        I.    Whether the evidence was su fficient to identify Defendant
              Lane as the perpetrator of the crimes; and

        II.   Whether the conv ictions for both fir st degree felony
              murder and premeditated first degree murder violated
              Defendant Lane’s double jeopardy rights.

After a careful review of the record, we affirm a ll convictions of both Defendants.

Howeve r, since there is not a judgment in the record reflecting the conviction and

sentence of Defendant Lane for first degree murder (either premeditated or felony

murder), this cause is remanded to the trial court to enter an appropriate judgment

reflecting the conviction and sentence of life imprisonment of Defendant Lane for first

degree murder, including the merger of two convictions into the one judgment for

first degree murder. Defendant Hanna’s case is remanded for the trial court to enter

an appropriate judgment reflecting a conviction of first degree murder and sentence

of life imprisonment and noting that the two convictions of first degree murder w ere

merge d into one judgm ent.




                                            -2-
       The Defendants were indicted on three counts of aggravated robbery, one

count of especially aggravated robbery, one c ount of espe cially aggravated bu rglary,

one count of first degree felony m urder, and one count of first degree premeditated

murder. A jury found both Defendants guilty as charged on all counts. However,

with the agre emen t of the State , the trial court g ranted D efenda nts’ motions fo r

judgment of acquittal with respect to the e specially aggrava ted burglary count and

instead entered judgment finding them guilty of the lesser included offense of

aggravated burglary. The trial court sentenced both Defend ants to ten (10) yea rs

for each aggrava ted robb ery convic tion, twenty (20) years for especially aggravated

robbery, three (3) years for aggravated burglary, and life imprisonment for first

degree m urder. At the sentencing hearing, the trial judge noted that although she

would accept the jury’s verdicts for both first degree felony murder and first degree

premeditated murde r, she wo uld non etheless merge the two co nvictions for

sentencing purposes and enter only one sentence of life imprisonment for first

degree murde r for each Defen dant. Both Defendants were sentenced as Range I

Standard Offenders, and all sentences were ordered to be served concurrently.

Andre Hamilton was also tried along with the Defendants Hanna and Lane , but his

case is not a p art of this appe al.



                                 Sum mary o f the Fac ts



       The facts in this case reveal that on December 27, 1993, there was a home

invasion at 6858 Birch Run Lan e in Memphis, Tennessee, during which four

individuals were robbe d. The four victim s were Billy Mo sley, his wife Artis Mosley,

their daughter Danyale Davis, and their son Kenn eth Mosley. D uring the robbe ry,

Kenn eth Mosley was shot once in the back and killed. Police developed the

                                           -3-
following four suspects in the crimes: Defendant H anna, De fendant Lan e, Andre

Ham ilton, and D errick Co leman .



Motion to Suppress

      During the cour se of the in vestigation , police elicited statem ents from

Defendant Hanna and Andre Hamilton. Both Defendant Hanna and Hamilton

subs eque ntly filed motions to suppress those statements. At the hearing, Sergeant

Charles Richardson of the Shelby County Sheriff’s Department testified. Sergeant

Richardson had actually retired from the Sheriff’s Department by the time of the

hearing. He testified that on December 31, 1993, four days after the crim es, Andre

Hamilton came to the police station ac comp anied b y his mo ther to give a state ment.

Prior to Hamilton’s interview, police had spoken with Derrick Coleman who had

mentioned the names of both Hamilton and Defendant Hanna. Hamilton’s statement

also led p olice to be lieve that D efenda nt Han na was involved in th e crime .



      Hanna voluntarily ap peared at the police station the following d ay, January,

1, 1994, to give a statement. Sergeant Richardson informed Hanna that the officer

had learned that he m ight have been involved in a robbery and homicide during

which Kenneth Mosley was shot and killed. Richardson testified that he read Hanna

his Miranda rights and that Han na agre ed to be question ed.              Acc ording to

Richardson, he made no threats or promises to Hanna and did not coerce him in any

way. Hanna was an adult at the time of questioning.



      On cross-examination at the suppression hearing, Sergeant Richardson

testified that he may have told Defendant Hanna that Andre Hamilton and Derrick

Coleman had already turned themselves in to the police. He also admitted that

                                           -4-
Hanna stated that he had n ot com e to talk with the police earlier because he was

scared. However, according to Sergeant Richardson, Hanna did not appear scared

during the interview, nor did he appear to be under the influence of drugs or alco hol.



      Defendant Hanna testified in his own behalf at the suppression hearing. He

stated that the police had come to his mother’s home looking for him on December

31, 1993, but that he was not there. Sergeant Richardson left a business card, and

Hanna called to arrange a meeting on the following day. Hanna further testified that

both Andre Hamilton and Derrick Coleman had telephoned him to let him know that

they had give n statem ents. According to H anna , he wa s han dcuffe d to a c hair

during the interview. He also said that Sergeant Richardson cut off the tape recorder

during the interview to tell him what to say, but he could not identify where Sergeant

Richardson had d one s o from lookin g at his statement at the hearing. Defendant

Hanna testified that Sergeant Richardson told him if he would say that Defendant

Lane had been the trigger man as Andre Hamilton and Derrick Coleman had said,

then he (Hanna) would be allowed to go home. Hanna also said that he does not

read very well and that he was scared during the interview. The trial court denied

Defen dant H anna’s motion to suppre ss.



Trial Testimony

      The facts presented at trial revealed that in December 1993, Billy Mosley lived

with his wife Ar tis Mos ley, his son K enne th Mo sley, an d his ste pdau ghter D anyale

Davis at 6858 Birch Run Lane in Me mph is, Tennessee.               On the evening of

December 27, 199 3, he an d Ms. M osley ha d gone to bed and Kenneth Mosley had

gone out bowling and/or to a wrestling match. Kenneth returned home between

10:00 and 10:30 p.m. Shortly thereafter, Billy Mosley heard a loud “bump” and then

                                           -5-
he heard screaming in the house. Billy Mosley got ou t of bed , and a s he o pene d his

bedroom door, a man put a gun in his face a nd told him to get back in the bedroom.

Kenn eth Mosle y also to ld his da d to retu rn to his bedro om. D uring th is time , Billy

Mosley heard someone yelling to Kenneth Mosley, “Where’s the money, where’s the

damn dope.”      Billy Mosley and his wife retrea ted to th e bath room off of the ir

bedro om. T hey the n hea rd a sin gle gunshot and Mrs. Mosley ran out of the room.

Billy Mosley heard someone yell a t his wife to get d own o n the flo or. Sh ortly

thereafter, he heard someone say, “We’ve been in this house too long, let’s get out

of here.” Billy Mosley em erged a sh ort time later to find Kenneth Mosley lying on the

floor face down, having been shot in the back. He also noticed that his front door

had been broken down.



       Billy Mosley discovered that his wallet and pager, which had been on the

dresser in his bedroom , were missing. He testified that Kenneth Mosley looked as

if he had be en search ed becau se his clothes w ere “open,” and his pants pocke ts

were turned ins ide out. M osley wa s unab le to find the je welry whic h Kenn eth Mosley

norm ally wore. A gallon jug of coins that had been on the floor at the front door was

also missing. Mr. Mosley testified that he had once overheard an argument between

Kenn eth Mosle y and a n individ ual called “Nardo.” Although Billy Mosley was not

very familiar with Nardo, he testified that Nardo had once come to the house and left

a note for Kenneth. However, he could no t remem ber the e xact date of Nardo ’s visit.

The note, which was admitted at trial, stated the following:

              Say ma[]n you need to call me soon as po ssible because
              I don’t know what you pulling. [I] told you I was on my way
              and you said y ou was not going no w[h]e re. I’m not asking
              you no more. It’s been a straight month and this is last
              time. Don’t ta ke this as a [threat]. You just need [to] stop
              playing. I’m not playing n o more. [pho ne num ber]”



                                            -6-
      On cross-examination, Billy Mosley stated that he only caught a glimpse of the

man who put a gun in his face. That man had nothing covering his face. Mosley

also testified that he was not harmed during the incident. He said that the gunshot

came after the intruders had been in the house approximately five minutes.



      Artis Mosley, Kenneth’s mother, testified to much of the same events as her

husband. She said that she heard her daughter say, “Please don’t hurt me,” and

that she then ran out o f the bathro om an d bedro om to the living room. A man then

put a gun in her face and instru cted he r to lie down on the floor. One of the intrud ers

had a towel covering his face. She observed her son lying on the floor. She saw

another man with a gun ransacking an adjacent bedroo m. T he man with a towel

over his face took Mrs. Mosley’s rings from her fingers. Mrs. Mosley testified further

that Nardo had called their house on several occasions. She said that the voice of

the ma n with a tow el over his fa ce sou nded like that of Na rdo.



      Dan yale Davis, Kenneth’s stepsister, testified that she had discovered she

was pregnant earlier on the day of the home invasion. She stated that she was on

the telephone in her bedroom when she heard the loud crash that night. She went

to her bedroom door and as she reached it, the door was thrown open and she saw

a man with a towel over his face holding a gun. The man took money from her purse

and proceeded to move her about the house, instructing her to “find the dope

mone y.” Ms. Davis asked the ma n not to hu rt her bec ause s he was pregna nt, and

the man replied, “well, find the dope money.” They proceeded through the house

looking for money, and as they did so, Ms. Davis saw Kenneth Mosley lying on the

floor with a m an stan ding ove r him ho lding a gu n.




                                           -7-
      Following the shooting, Ms. Davis was shown two photo arrays by Sergeant

Richardson. She identified Defendan t Hanna in one of the arrays and Defendant

Lane in the o ther on e. She further identifie d both Defendants in court as the

perpetrators. However, Ms. Davis was unable to say who actually shot K enneth

Mosley. Ms. Davis also identified Kenneth Mosley’s address book at trial. That

address book had a listing for Nardo and phone number next to h is name. That

number match ed the tele phone numb er on the note left with B illy Mosley fo r Kenn eth

Mosley.



      Sergeant Richardson testified that he learned that the telephone number listed

beside the nam e Nard o in Ken neth Mosley’s address book and on the note left for

Kenn eth Mosley, b elonge d to a pag er register ed to De fendant Lane. While at

Defendant Lane’s home, the police called the number and observed a pager come

vibrating out from under a chest of drawers. Defendant Lane admitted that the pager

was his.



      Sergeant Richardson also explained that he took statements from Defendant

Hanna and A ndre H amilto n. Ham ilton indica ted that it was Hanna and Lane who

entered the Mosley home. He also indicated the purpose of going to the Mosley

home was to ge t mone y. After waiting in the car for a time, Hamilton and Derrick

Cole man approached the home. As they did so, they heard a gunshot. Hamilton

then returned back to the vehicle. Defendant Hanna’s statement indicated that

Hanna was indeed inside the Mosley home. According to Defendant Hanna, he was

in a back room when he h eard a gunsho t. Defendant H anna adm itted that they were

all going to split the mo ney, but stated tha t he did not find any m oney.




                                          -8-
      Sergeant Richardson also retrieved live .380 caliber Winchester ammunition

from Defendant Hann a’s reside nce. During the course of an interview with Derrick

Coleman, Sergeant Richardson learned that a .380 handgun was missing from the

Coleman household. Coleman’s mother gave Sergeant Richardson ammunition

from the spare clip to the gun. Sergeant Richardson sent this ammunition to the

Tennessee Bure au of In vestiga tion for te sting aga inst the bullet recovered from

Kenn eth Mosley’s body and the spent shell recovered from the Mosley home.

Defendant Hanna admitted to having possessed a .380 handgun on the night of the

shooting. Sergeant Richardson also testified that a towel matching the description

of the one worn by one of the intruders was recovered from the vehicle driven by

Andre Ham ilton on the night of the shooting .



      Robert Royse, a forensic scientist with the T BI, testified concerning firearms

identification testing. Royse testified that the bullet recovered from Kenneth Mosley

was a .380 auto bullet, and that the spent shell casing recovered from the Mosley

home was a .380 auto Winchester shell. Royse further testified that two live rounds

of ammunition also went to him for testing and that they were .380 auto W inchester.



      Dr. Jerry Francisco testified that Kenneth Mosley died from a single gunshot

wound to the back which tore throug h his major org ans and s evered his ao rta. Dr.

Francisco stated that he found no drugs or alcoh ol in Kenneth Mosley’s system. The

distance of the g unshot wa s greater than tw o feet from Ke nneth Mo sley’s body.



      Defendant Hanna offered no proof at trial. Defendant Lane offered only the

testimony of Pau l Dalhauser, a genetic testing expert. Dalhauser testified that he

attemp ted to perform D NA te sting o n the to wel rec overe d from Andr e Ham ilton’s

                                         -9-
vehicle. However, the towel did not contain enough DNA for analysis, so the test

was inconclusive.



                                        I. Identity

                       (Defen dants H anna a nd Lan e’s Issue I)



      In their first issue on appeal, both Defendants argue that the evidence was

legally insufficient to suppo rt their convic tions.     Spe cifically, both D efenda nts

contend that the proof of the identity of the perpetrators was insufficient. They argue

that the Sta te’s pro of did n ot esta blish th at they w ere the individuals who intruded

the Mosley home and committed the offenses therein.



       When an accused challenges the sufficiency of the convicting evidence, the

standard is whether, after reviewing the evidence in the light most favorable to the

prosection, any rational trier of fact could have found the essential elements of the

crime beyond a reaso nable d oubt. Jackson v. Virgin ia, 443 U.S. 30 7, 319 (1979 ).

This standard is applicable to findings of guilt predicated upon direct evidence,

circumstantial evidence or a combination of direct and circumstantial evidence.

State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the

State is entitled to th e strongest legitimate view of the evidence and all inferences

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a

verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, th e acc used has th e burd en in th is court of illustrating why the

evidence is insufficient to suppo rt the verdict re turned b y the trier of fact. State v.

Williams, 914 S.W.2d 940, 945 (Tenn. Crim. App. 1995) (citing State v. Tug gle, 639

S.W.2d 913, 914 (Tenn. 1982)); State v. Grace, 493 S.W.2d 474, 476 (T enn. 1973 ).

                                           -10-
      Questions concerning the credibility of the witnesses, the weight and value to

be given the evidence, as well as all factual issues raised by the evide nce, are

resolved by the trier of fact, no t this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 198 7). Nor ma y this court

reweig h or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdic t

approved by the trial judge accredits the State’s witnesses and resolve s all conflicts

in favor of the State. Grace, 493 S.W.2d at 476.



      Moreover, a criminal offense may be established exclusively by circumstantial

evidence. Duchac v. State, 505 S.W .2d 237 (Tenn . 1973); State v. Jones, 901

S.W.2d 393, 39 6 (Ten n. Crim. A pp. 199 5); State v. Lequire , 634 S.W.2d 608 (Tenn.

Crim. App. 1981). However, before an accused may be convicted of a criminal

offense based upon circumstantial evidence alone, the facts and circumstances

"must be so stro ng and cogen t as to exclud e beyo nd a re ason able doubt every other

reaso nable hypothe sis save g uilt of the defe ndant." State v. Crawfo rd, 225 Tenn.

478, 470 S.W .2d 610 (1971); Jones, 901 S.W.2d at 396. In other words, "[a] web of

guilt must be woven around the defendant from which he cannot escape and from

which facts and circumstances the jury could draw no other reasonable inference

save the guilt of the defendant beyond a reaso nable d oubt." Crawford, 470 S.W.2d

at 613; State v. McAfee, 737 S.W .2d 304 , 306 (T enn. C rim. App . 1987).



      In the case sub judice, the State offered sufficient evidence establishing

Defen dants as the perpetrators of the crimes. Artis Mosley testified that the voice

of the man with a towel over his face sounded like that of the individual identified as

Nardo (Defen dant Lane).      K enneth Mosley’s addres s book was ad mitted into

evidence and it contained a telephone number next to the name Nardo. Upon

                                         -11-
investigation, police learned that the phone numbe r was registered to a pager

belonging to Defen dant La ne.         Furth ermor e, Dan yale Da vis identified b oth

Defen dants from photo arrays shown to her by Sergeant Richardson two days after

the crime s. At trial, M s. Dav is aga in identified both Defen dants as the p erpetrators

in her home. Moreover, Defendant Hanna’s own statement to police indicated that

he was in fact present at the Mosley home during the crimes. It is well-established

that the identification of a defendant as the perpetrator of the offense for which he

is on trial is a question of fact for determination by the jury. State v. Strickland, 885

S.W.2d 85, 87 (T enn. C rim. App . 1993), perm . to app eal de nied (Tenn. 199 4).

Further, the identifica tion testimony of a victim is, by itse lf, sufficient to su pport a

conviction. Id. Dany ale Davis’ identification of both D efendants a s the perpetrato rs

is thus sufficient alone to support the convictions in the case. This issue is without

merit.




                                 II. Motion to Suppress

                             (Defen dant H anna’s Issue II)



         In his second iss ue on app eal, Defenda nt Hanna argues that the trial court

erred in denying the motion to suppress his statement to police. Defendant Hanna

contends that this statement was not voluntary and was coerced from him with the

prom ise tha t he co uld go home if he identified Defendant Lane as the trigger man.

Defendant Hanna also points out that his youth (he was 18 years old at the time of

the statement) and his lack of formal education affected his decision to make a

statem ent.




                                           -12-
       An appe llate co urt sho uld up hold a trial court’s decisio n on a m otion to

suppress, unless the evidence in the record preponderates against the finding.

State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). Questions of credibility of

witnesses, the weight and value of the evidence, and resolution of conflicts in the

evidence are matters entrusted to the trial judge as the trier of fact. State v. Odom,

928 S.W.2d 18, 23 (Ten n. 199 6). Th e party preva iling in the trial cour t is entitled to

the strong est leg itimate view of th e evidence, as well as all reasonable and

legitimate inference s that ma y be draw n from th e eviden ce. Id.



       The United States Suprem e Court has interpreted the Fifth A mendm ent in part

to require that an in crimin ating s tatem ent or c onfes sion b e freely and vo luntarily

given in order to be admissible. This even applies to statements obtained after the

proper Miranda warnings have b een issu ed. See State v. Kelly, 603 S.W.2d 726

(Tenn. 1980).    S tateme nts and confessions not made as a result of custodial

interroga tions mu st also be voluntary to be adm issible. See Arizona v. Fulima nte,

499 U.S. 279, 286-88, 111 S. Ct. 1246, 125 2-53, 113 L. E d. 2d 302 (19 91). It must

not be extracted by “any sort of threats or violence, nor obtained by any direct or

implied promis es, howeve r slight, nor b y the exertio n of any im proper in fluence.”

Bram v. United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 187, 42 L. Ed. 568

(1897) (citation omitted) . Moreover, due process requires that confessions tendered

in response to either physical or psychological coercion be suppressed. Rogers. v.

Richmond, 365 U.S. 534, 540-41, 81 S. Ct. 735, 739, 5 L. Ed. 2d 760 (1961); Kelly,

603 S.W.2d at 728-29. This has evolved into the “totality of circumstances” test to

determine whethe r a confe ssion is vo luntary. Fulima nte, 499 U.S. at 285-87, 111

S. Ct. at 125 1-52; State v. Crump, 834 S.W .2d 265 , 271 (T enn.), cert. denied, 506

U.S. 905, 11 3 S. Ct. 298, 12 1 L. Ed. 2d 22 1 (1992).

                                           -13-
       The voluntariness test un der the Ten ness ee Co nstitutio n has been held to be

more protective of individual rights than the test under the United States

Constitution. See State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). For the

relinquishment of rights to be effective, Defenda nt must have personal awareness

of both the n ature of the right and th e cons equen ces of ab andon ing his righ ts. See

id. at 544-45 . Additiona lly, his statem ents can not be the result of intim idation,

coercion or dece ption. Id. at 544. In determining whether the statements w ere

voluntary, the reviewing court looks at the totality of the circumstances surrounding

the relinqu ishme nt of the righ t. Id. at 545.



        The trial court found that the statemen ts were ma de voluntarily. W e have

studied the evidence, and considering the totality of the circumstances, we cannot

conclude that the trial court erre d by den ying De fendan t’s motion to supp ress o n this

issue. Again, the court’s determination that the statements were given knowingly

and voluntarily is binding upon the appellate courts unless the defendant establishes

that the evidence in the record preponderates against the trial court’s ruling.

Henning, 975 S.W.2d at 299.



       In the instant case, Sergeant Charles Richardson testified that Defendant

Hanna voluntarily appeared at the police station for questioning.             Hanna had

previously learned that both Andre Hamilton and Derrick Coleman had given

statem ents to police. S ergean t Richard son inform ed De fendan t of the purpose of

the questioning and Hanna signed a Miranda rights w aiver fo rm afte r being read h is

rights. According to Sergeant Richardson, Hanna did not appear scared during the

intervie w and did no t appe ar to be unde r the influ ence of drug s or alc ohol.




                                           -14-
         Defendant Hanna testified at the hearing that he was handcuffe d to a c hair

during the interview and that he was scared.                  He further said that Sergeant

Richardson actually cut off the tape recorder during the interview in orde r to tell him

exactly what to say. On cross-examination, however, Hanna was unable to pinpoint

in his statement where Sergeant Richardson had actually cut off the tape recorder.



         The trial cou rt was fa ced w ith con flicting te stimony which presented a

credibility question for the trial judge . In its findin gs of fa ct, the tria l court s pecific ally

found that Defendant Hanna knowingly, voluntarily, and intelligently waived his

Miranda rights. Th e trial judge further state d that she was no t persuaded by

Han na’s testimony that he did not understand his rights. The trial cou rt spec ifically

found that she was not persuaded by Defendant’s testimony that he was promised

he could go home if he gave a statem ent. We have reviewed the record and find

that the evidence does not preponderate against the trial co urt’s ruling.                      See

Henning, 975 S .W .2d at 2 99. W e are u nable to gran t relief to D efend ant on this

issue.



                                     III. Double Jeopardy

              (Defen dant H anna’s Issue III an d Defe ndant L ane’s Iss ue II)



         Both Defe ndan ts argu e in this issue th at the ju ry’s finding of guilt as to bo th

preme ditated murder and felony murder violates double jeopardy principles.

Defen dants argue that the jury’s finding of guilt on the second count of the

indictment, charging first degre e preme ditated murd er, after it had already found guilt

as to the first count charging first degree felony m urder, constituted dou ble jeopardy.




                                                -15-
Defen dants contend that the trial court there fore imp roperly de nied their m otions to

set aside the verd ict of guilt as to first degree prem editated mu rder.



       W e find Defendants’ conte ntions to be w ithout m erit as a pane l of this Court

has previously held that a dual finding of guilt as to both premeditated and felony

murder does not violate double jeopardy protections. See State v. Addison, 973

S.W.2d 260 (Tenn. Crim. App. 1997), perm. to appeal denied (Tenn. 1998). In a

case involving a single killing where the jury has found the defendant guilty under

both theories of first degree prem editated mu rder and felony m urder, the trial court

shou ld acce pt both verdicts but en ter only one ju dgm ent of c onviction, thereby

merging the two verdic ts. Id. at 267; Carter v. S tate, 958 S.W.2d 620, 624-25 (Tenn.

1997). The single judgment of conviction should note the merger of the two cou nts

returned by the jury. See Addison, 973 S.W.2d at 267.



       In the case sub judice, the trial court attempted to follow the correct procedure.

At the sentencing hearing, the trial court noted that the Defendants had been

convicted of both first degree premeditated murder and first degree felony murde r.

In sentencing Defendants, however, the trial judge specifically noted that she was

merging the two counts as to each Defendant. Accordingly, each Defendant was

senten ced to a s ingle life term for the con viction of first de gree m urder.



       The State has noted in its brief that there are two judgments reflecting a

conviction of Defen dant H anna fo r first degree murde r. One o f these reflects a

conviction for felony murder in the perpetration of robbery and the other for

premeditated first degree murder. The State sub mits that one o f the judgm ents

mista kenly had Defendant’s Hanna’s name rather than Defenda nt Lane. Ho wever,

                                           -16-
each judgment lists Defendant Hanna’s date of birth and social security numbe r.

There is no judgment in the record on appeal reflecting a conviction of Defendant

Lane for either felony murder or first degree premeditated murd er in accordance

with the ve rdict of the jury .



              W e are also unable to find in the record any order as to either

Defendant reflecting tha t the conv ictions for first degree murde r were m erged. In

situations such as this, the a ppropriate proc edure is for the trial court to spe cifically

note the merger of two convictions of first degree murder in one judgment for each

Defendant reflecting a conviction of first degre e murd er. Addison, 973 S.W.2d at

267.



              W e affirm the convictions of Defendant Hanna and Defendant Lane for

the offenses for which they were found guilty by the jury.           Howeve r, we find it

necessa ry to remand this case to the trial court to enter a judgment a s to each

Defendant reflecting a conviction for first degree murder and specifically noting that

the two convictions for first degree m urder were merged into one judgment for each

Defen dant. Furtherm ore, the trial co urt is to enter an order s triking th e prev iously

entered judgments of first degree murder for Defendant Hanna.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge




CONCUR:



___________________________________

                                            -17-
JOHN H. PEAY, Judge


___________________________________
JOE G. RILEY, Judge




                               -18-
