         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                             JUNE SESSION, 1998

                                                                  FILED
STATE OF TENNESSEE,              )    C.C.A. NO. 02C01-9710-CR-00406
                                 )                         December 21, 1998
      Appellee,                  )
                                 )                                Cecil Crowson, Jr.
                                                                  Appellate C ourt Clerk
                                 )    SHELBY COUNTY
VS.                              )
                                 )    HON. JOSEPH B. DAILEY
ANTONIO L. SAULSBERRY            )    JUDGE
& FRANKLIN C. HOWARD,            )
                                 )
      Appellants.                )    (First Degree Murder; Aggravated
                                 )    Rob bery)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:                    FOR THE APPELLEE:

STEFFEN G. SCHREINER                  JOHN KNOX WALKUP
Attorney for App ellant Saulsbe rry   Attorney General and Reporter
295 Washington Avenue, Suite 3
Memphis, TN 38103                     PETER M. COUGHLAN
                                      Assistant Attorney General
JOSEPH S. OZMENT                      425 5th Avenu e North
Attorney for App ellant Howard        Nashville, TN 37243
217 Exchange Avenue
Memphis, TN 38103                     WILLIAM L. GIBBONS
                                      District Attorney General
JAMES V. BALL
Attorney for App ellant Howard        TER RELL L. HAR RIS
217 Exchange Avenue                   J. ROBERT CARTER
Memphis, TN 38103                     PHILL IP GE RALD HAR RIS
                                      Assistant District Attorneys General
                                      Criminal Justice Complex, Suite 301
                                      201 Poplar Street
                                      Memphis, TN 38103


OPINION FILED ________________________

AFFIRMED IN PART; REVERSED IN PART; REMANDED

PAUL G. SUMMERS, JUDGE
                                        OPINION

         The Defe ndan ts, Anto nio L. Saulsberry and Franklin C. Howard, pursuant

to Tennessee Rule of Appellate Procedure 3(b), appe al as o f right the ir

convictions for first degree premeditated murder, esp ecially aggravated robbery,

and conspiracy to commit aggravated robbery. In addition, Defendants appeal

the trial court’s application of consecutive sentencing. These convictions arose

from the robbery of a Memphis T.G.I. F riday’s resta urant an d the m urder of its

mana ger, Ge ne Frieling .



         Defen dants present ten as signm ents o f error: (1 ) the trial c ourt er roneo usly

admitted a photograph of the deceased victim; (2) the evidence was insufficient

to show premeditation or intent for first degree murde r; (3) crimina l respons ibility

for first degree premeditated murder is not supported by the proof and the trial

court erroneous ly charged the jury on crimina l responsibility; (4) the trial court

erron eous ly charged the jury on the elements of first degree premeditated

murder; (5) the trial court failed to charge the jury of the nee d for mo ral certainty

to convict; (6) the trial court failed to instruct the jury that a prio r inconsistent

statement could be considered for impeachment purposes only; (7) the trial court

erron eous ly admitted a videotape of the crime scene and commented on the

portion of tape not sho wn to the jury; (8) the errors made by the trial court amount

to cumulative error, requiring a new trial; (9) the trial court erroneously imposed

consecu tive sentences; and (10) the trial court failed to grant a necessary mistrial

based upon an alleged discovery violation by the State.1




1
    In the interest of clarity, we address these points of alleged error in a different order.

                                                 -2-
      Defen dants were indicted by the Shelby County Grand Jury in July of 1995

on charges of premeditated murder in violation of Tennessee Code Annotated §

39-13-202(a )(1), murder committed during the perpetration of a robbery in

violation of § 39-13-202(a)(2), murder committed in perpetration of a burgla ry in

violation of § 39-13-20 2(a)(2), espec ially aggrava ted robb ery in violation of § 39-

13-403, and conspiracy to commit a felony in violation of § 39-12-103.

Defen dants were convicted by a jury on February 14, 1997, of first degree

premeditated murd er, esp ecially a ggrav ated ro bbery , and c onsp iracy to c omm it

aggrava ted robb ery.



       Following a sentencing hearing, the trial court sentenced Defendant

Saulsberry as a Range II offender to forty years for especially aggra vated robbe ry

and ten years for conspiracy. Defendant Howard was sentenced as a Range I

offender to twenty-five years for especially aggravated robbery and six years for

conspiracy. The trial court ordered all sentences, including life imprison ment, to

run con secutively.



                        I. SUFFICIENCY OF THE EVIDENCE

       In their second and third issues, Defendants maintain that the evidence

presen ted was insufficient to convict them of first degree prem editated mu rder,

by either a theory of direct lia bility or a theory of criminal responsibility for the

conduct of another. In partic ular, D efend ants c laim th at the “r ecord is devo id of

any evidence indicating premeditation or deliberation.”          Following a careful

exam ination of the re cord, w e con clude that the State d id not present evidence

sufficient to permit a jury to con vict Saulsberry of prem editated mu rder, but we

affirm the premeditated murder conviction of Howard.

                                          -3-
         Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings

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

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

reasonab le doubt.” Ten n. R. App. P. 1 3(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insu fficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963);

see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (Tenn . 1977)); State v. Tug gle, 639 S.W.2d 913, 914 (T enn. 19 82); Holt v.

State, 357 S.W .2d 57, 61 (T enn. 1962 ).



         In its review of the evidence, an appellate court must afford the State “the

strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate

inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-

weigh or re-evaluate the evidenc e” in the rec ord belo w. Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836)). Likew ise, should the review ing court

find particular conflicts in the trial testimony, the court must resolve them in favor

of the jury ve rdict or trial cou rt judgm ent. See Tug gle, 639 S.W.2d at 914.



         The record in this case reveals a cast of five criminal actors: Claude

Sharkey, Clashaun (“Shaun”) Sharkey, Kevin Wilson, Defendant Franklin

Howard, and Defe ndant Anto nio Saulsbe rry.2                 Defendant Saulsberry was




2
    The State joined all five men in the same indictment but tried them separately.

                                              -4-
employed at the restaurant prior to January 28, 1995, the date o f this inciden t.

According to the p roof at tr ial, 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 bac k parking lot.



       Friday ’s dishwasher John Wong exited the restaurant through its back door

to dispo se of th e nigh t’s garbag e, and the perpetra tors used this oppo rtunity 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 comp lied.



       Claude, Shaun, Wilson, and Howard continued through the back area of

the restaurant towa rd the man ager’s office, where they encountered bartender

Preston Shea . Shea saw four armed men3 with sk i mas ks wa lking to ward h im

and screaming. He was knocked to the ground by one perpetrator outside the

manager’s office. At least two men entered the office and screa med, “Give me

the money,” and “Where’s the f__king money.” Shea responded by holding up

his wallet and pleading, “Please, God, take the mo ney 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.



3
  Defendant Howard denied entering the restaurant and denied being armed; however, it is
undisputed that no one else drove to the scene with Claude, Shaun, Wilson, and Howard.

                                          -5-
      Wong, remaining on the floor during the disturbance, also heard one of the

perpetrators demand, “Give me the money—give me the money,” an d 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 swiftne ss of it that foll owed

behind—one behind the other.” Then Frieling said, “Jesus Christ, he shot me,

he shot m e.”



       Shea had been repea tedly kic ked d uring th is episode , and as th e 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, W ong too k the telep hone a nd finishe d the 91 1 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 wa lk into the kitc hen and commanded, “Get on the floor

before I shoot you.” She heard one person say, “W here’s the m oney,” a coup le

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 w ound ed Frie ling an d She a. Bec ause 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 g unsho t wound to the hea rt.




                                          -6-
      On Februa ry 9, 1995 , Defendant Saulsberry made a statement to police

recounting his invo lvement in the e vents preced ing the robbery:

      It was first brought up o n my way h ome a d ay before the rob bery.
      Me, Claud e, Sha un, an d Kev in [W ilson] were in Claude’s car. He
      was taking me h ome from the neighbo rhood. And , we were
      smoking “bud” (marijuana) on our way home. And, ah, Claude said,
      “Hey, what’s up with Friday’s”? I said, what do you mean what’s up
      - you’re ready to start w orking there? Then , he sa id, “Nall, man,
      nall, man, I’m talking about hitting that joint.” I said, man, you’re
      crazy than a motherf__ker. The n, he s aid, “N all, nigg er, I’m
      serious!”. So, we d idn’t say an ything else about tha t. When we got
      to my house, we sat in the car on the parking lot outside my house.
      Then, “Little Kevin” s aid, “W hat tim e the joint closes”? And, I said,
      at one (1) o’clock A.M. Then, Claude had showed me a silver gun.
      And, I said, hurry up and get me out of here. I got out of the car and
      Shaun got out with me. Then, I said, Shaun, man, is that boy
      serio us? Shaun said, “Yes , man, h e’s broke , man”. I sa id, man,
      y’all can try that dumb shit if you want too [sic], but I ain’t got nothing
      to do with it. B asically, that’s it, really.



      Saulsberry denied telling anyone where the safe was located within the

restaurant or how much money would be available there, but he admitted

informing Claude, Shaun, and Wilson how to gain entry from the back of the

restaura nt. The State introduced testimony that Sauls berry w as ultim ately pa id

$50 for his role in the rob bery a nd tha t he wa s dissa tisfied w ith this

amou nt—fa cts that Saulsberry disputed in his statement.            It is undisputed,

however, that Saulsberry was not present at T.G.I. Friday’s the night of the

robbery and m urder.



      Defendant Howard was present at the crime scene, and his statement to

police on Februa ry 7, 1995 , related eve nts at the re stauran t:

      I was riding with them [Claude , Shaun , and W ilson]. Claude said he
      said man we nee d to go on and do that. I was sleeping in the back
      seat and I h eard h im say we need to go on and do this right. So we
      rode up to T.G.I. Friday’s and sat up there in the back part behind
      the Steakh ouse R estaura nt and w e went o n and walked up there.

                                         -7-
       I stayed all the way in the back and they ran in the restaruant [sic]
       and I heard some shots fired so I ran to the car and they ran to the
       car and Kevin [Wilson] said I shot him man I shot him . So we le ft
       and went back to Claude’s house and then w e just stayed over the re
       until the m orning ca me an d I told him to take m e hom e.

According to Howard’s statement, Claude, Shaun, and Wilson were armed when

they entered the res taurant. After the robb ery, Howard received a portion of the

procee ds, althou gh the a moun t is disputed .



       W hile we agree with both the State and Defendants that this is quite a

typical felony murder prosecution, we cannot agree with the State that the

evidence supports a ve rdict of premed itated murde r against Sau lsberry. 4 To

support finding s of pre med itation a nd de liberatio n, the S tate relies on

circum stantial evid ence, sp ecifically:

       Given the perp etrators’ co mm ands to each o ther to shoot the
       employees, the murder of the manager after he had done everything
       asked of him, and Shea’s testimony that they came back, stood over
       him and shot him three times after he had give n them his wallet, a
       rational jury could find that the pe rpetrators deliberate ly went into the
       restaurant with a plan.



       In our view, more is required to sustain a conviction for first degree

premeditated murder rather than felony m urder. See State v. West, 844 S.W.2d

144, 147-48 (Tenn . 1992); State v. Brown, 836 S.W.2d 530, 540-43 (Tenn.

1992); State v. Boyd, 909 S.W .2d 50 (T enn. C rim. App . 1995). Cf. State v. Leroy

Hall, C.C.A . No. 03C0 1-9303 -CR-0 0065, H amilton C ounty (T enn. C rim. App .,

Knoxville, Dec. 30, 1996), aff’d by partial incorporation, State v. Hall, 958 S.W.2d



4
  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,     S.W.2d       Appendix (Tenn. 1998).

                                             -8-
679, 703-06 (Te nn. 199 7); State v. Frank W hitmore, C.C.A. No. 03C01-9404-CR-

00141, Bloun t County (Te nn. C rim. A pp., Kn oxville, June 19, 1997). Because

this crime was c omm itted prio r to our le gislatu re’s m odification of the eleme nts

of premeditated murder, we must analyze these facts under prior law requiring

deliberatio n as an eleme nt of the offe nse.



      In State v. Brown, our supreme court re-examined premeditation and

deliberation, recognizing that over time, “prosecutors and ju dges had a ppare ntly

fallen into the error of commingling these two elements by using the terms

interchan geably.”   836 S.W.2d at 539.         According to the Brown court, this

perception constituted a “substantial departure from the traditional law of

homicide”—a departure which prompted the legislature to redraft the first degree

murder statute to define preme ditation an d delibera tion. Id. at 542. As defined

by statute, a premeditated act was “one done after the exercise of reflection and

judgm ent,” and a deliberate act was “one performed with a cool purpo se.” Id.

(quoting former T enn. C ode An n. § 39-1 3-201(b )).



      In light of this legislative clarification and what the Brown court perceived

to be persistent infidelity to the historical foundation of first degree murder, the

court emphatically rejected an amalgamation of the two formerly distinct mental

states. Id. at 543. In addition, the court stated:

      [W]e think it is time to rec ognize . . . that “[m]ore than a split-second
      intention to kill is required to constitute preme ditation,” wh ich “by its
      very nature is not instantaneous, but requires some time inte rval.”
             . . . [I]t is now abundantly clear that the deliberation n ecessary
      to establish first-degree murde r canno t be formed in an in stant. It
      requires proof . . . that the homicide was “committed with a ‘cool
      purpos e’ and w ithout pas sion or pro vocation . . . .”




                                          -9-
Id. (quoting Sentencing Commission Comments to former § 39-13-201(b))

(alterations in originals).    In Brown, the defendant’s premeditated murder

conviction could not stand where the State offered circumstantial proof “that the

defendant acted maliciously toward the child, in the heat of passion or anger, and

without adequate provocation.” Id. (footnote om itted). Furthermore , the court

refused to find that repeated blows to the victim can alone support an inference

of prem editation o r deliberatio n. See id.



      In State v. West, decided just six m onths after Brown, the suprem e court

considered a case much like the one at bar. 844 S.W.2d 144 (Tenn. 1992). The

State argued that the de fendan t’s emotio nal state a nd action s after the

crime— calmnes s, failure to tell others about the crime, and concealment of the

murder weapo n—in dicated p remed itation and deliberatio n. Id. at 148. Rejecting

this argument, the court explained, “The element of premeditation requires a

previo usly formed design or intent to kill. . . . Deliberation, on the other hand,

requires that the killing b e done with a coo l purpose —in oth er words , that the

killer be free from the passions of the mom ent.” Id. at 147 (cita tions om itted); see

State v. Boyd , 909 S.W .2d 50, 54 -55 (Te nn. Crim . App. 19 95).



      The West court d ecline d to rec ogniz e con cealm ent of evidence after a

crime as probative of intent held prior to the crime, stating, “One who kills another

in a passionate rage may dispose of the weapon when reason returns just as

readily as the cool, dispassionate killer.” 844 S.W.2d at 148. W hile the court

acknowledged that proof of calm ness after a crime may be plausible evidence of

preme ditation an d delibera tion, it failed to find any evidence material to show a

calm emotional s tate an d note d that th e defe ndan t’s beh avior ind icated simp ly

                                         -10-
“indifference to the victim and fea r of detection.” Id. Finally, the court rejected

the State’s theory that the defendant left the scen e of a hea ted argu ment w ith the

victim, obta ined his g un at ho me, an d went b ack to the scene to kill the victim:

       W hile the sta te’s the ory m ay be tr ue, it rem ains only a theory,
       because the pros ecution has no evidence to support it. No one
       witnessed the defendant’s retrieval of a gun, nor does any
       circumstantial eviden ce exis t to sup port this theory. . . . Thus, a jury
       would have to engage in pure speculation to conclude that the
       defendant had re turned to his hous e in order to get a gun with which
       to shoot [the victim]. Although the jury is permitted to disbelieve the
       defen dant’s testimony, it may not construct a theory based on no
       eviden ce at a ll.

Id.



       In the case at bar, we find no evidence—direct or circumstantial—sufficient

to perm it a jury to fin d prem editatio n and delibe ration o n the p art of A ntonio

Sauls berry, who wa s not eve n prese nt when the mu rder was comm itted. The

record clearly reveals that Antonio Saulsberry did not participate in the actual

robbery; therefore, his conviction must be based upon criminal responsibility for

the con duct of the shoote r, rather tha n direct liability.



       By statute, crim inal respo nsibility require s that a de fendan t, “[a]cting with

intent to prom ote or as sist the commission of the offense, or to benefit in the

proceeds or results of the offense, . . . solicits, d irects, a ids, or a ttemp ts to aid

another pe rson to com mit the offense.” T enn. Cod e Ann. § 39 -11-402(2). The

record contains some evidence which, if believed by the jury, would at best

support an inference that Saulsberry (1) aided a robbery, with the intent th at a

robbery be committed; and (2) intended or expected to receive some proceeds

from the robbery. The record does not, however, contain any evidence that

Saulsberry intended to assist in the commission of a mu rder, intend ed that a

                                          -11-
murder take place, or intend ed to bene fit in the proceeds or re sults of a murd er,

whatever they may be. There is no evidence tending to show an intention, or

even an expe ctation, prio r to the rob bery, th at mu rder w ould facilitate the robbery.



       Although the State directs our attention to Saulsberry’s statement, in which

he recalls that Claude S harkey s howed him a silve r gun, to de mons trate

Saulsberry knew a nd intend ed that a m urder oc cur; we b elieve this evidence

tends to show only that Saulsberry knew an armed robbery could occur. Next,

the State points to Claude’s statement to Saulsberry, “I’m talking about hitting

that joint.” Here again, we find no evidence to support knowledge of any act

other than robbery, much less intent for any other act to occur. Though murder

is a consequence of many armed robberies, a finding of intent in this case

requires “pure speculation” of the type warned against in West.               We again

emphasize that our focus is on whether the e vidence is sufficient to su pport

convictions for premed itated first degree m urder, rather than felony m urder.

Saulsberry’s premeditated murder conviction is reversed.



       Likewise, with res pect to Frank lin How ard, the Defe ndan t argue s that a ll

circumstantial evidence presented by the State to show premeditation and

deliberation is probative only of an intent to rob. The State produced evidence

sufficient to perm it a jury to fin d that H oward particip ated in the robbery by

entering Friday ’s resta urant c arrying a weapon, though this testimony was

disputed. The State offered no proof, however, that Howard murdered the victim

in this case, Gene Frieling . In fact, th e only gun found in Howard’s possession

was conc lusively determined not to match shells and bullet fragments recovered.




                                          -12-
Therefore, Howard’s conviction must also be based upon his criminal

respon sibility for the co nduct o f the shoo ter.



       The State argues that intent can be inferred from the general conduct o f

the perpetrators: comm ands b y one to shoot the employees of the restaurant, the

fact that the victim was killed d espite compliance with the robbery, and the fact

that Shea wa s shot desp ite giving them his w allet. Evidence regarding the

severity or cruelty of the act can be relevant to premeditation and deliberation on

the part of the principal a ctor. See State v. Brown, 836 S.W.2d 530, 541-42

(Tenn. 1992); State v. Lero y Hall, C.C.A. No. 03C01-9303-CR-00065, Hamilton

Coun ty (Tenn . Crim. A pp., Kno xville, Dec. 30 , 1996), aff’d by partial

incorporation, State v. Hall, 958 S.W .2d 679 , 705 (T enn. 19 97).



       In State v. Frank W hitmore, a principal’s actions cast a circumstantial

shadow of intent onto a companion, in the absence of direct evidence of the

com panio n’s intent p rior to the murd er— eviden ce su ch as an ag reem ent to k ill,

words of encou ragem ent, or assistance in preparatory operations with knowledge

that a murd er would occur. C.C.A. No. 03C0 1-9404 -CR-0 0141, B lount Co unty

(Tenn. Crim. App., Knoxville, June 19, 1997). In Wh itmore, a panel of this Co urt

affirmed the defendant’s conviction for premeditated murder based upon criminal

respon sibility where the evidence showed that the defendant drove with Williams,

the principal in the murder, to the victim’s home for the purpose of committing a

burglary and theft. The testimony indicated that the defendant and Williams

intended only to scare the victim with a knife carried by Williams—in fact, they

waited until they thought he had gone to bed before entering. However, the

evidence also revealed that, once inside the house, they encountered the victim,

                                          -13-
and William s bega n to fight with him. As the armed Williams wrestled for several

minutes with the victim, who was vigorously fighting back, the defendant moved

through the hou se sea rching for m oney. T he defe ndant m ade no attemp ts to

stop the struggle or disassociate himself from the enterprise at that point. From

this evidence, we believed the jury could have reasonably concluded that, once

the struggle bega n within the hom e, the defenda nt formed or shared or

acquie sced in th e intent tha t a murd er occu r.



       W e think the re solution o f Defend ant Howard’s criminal liability for

premeditated murder is governed by the T enne ssee Supr eme Cour t’s 1997 case

of State v. Carson, 950 S.W.2d 951 (Tenn. 1997). In Carson, the defen dant,

Gary, and Stover met to discuss robbing a TV repair store in Knoxville. The

defendant Carson had been in the store before. He described the layout and

where mone y could be found. Carson gave a weapon to each of his cohorts.

The trio drove to th e store. C arson w aited in the car while Gary and Stover

entered the store under a ruse that they needed to have a stereo repaired.



       Gary and Stover held two em ployees , Adam s and M cGah a, at gunp oint.

They forced the victims into a rear room , searche d them, and stole $130 from

Adams. Gary and Stover bound the victims with telephone cord, closed the do or,

and told the victims not to attempt to escape. They then fired three shots through

the door and almost hit the victims.



       Upon leaving the store, Gary and Stover were surprised to find the car and

Carson gone. They exchanged gunfire with police, and they fled. All three

culprits were later found and arrested.

                                         -14-
      Carson was charged like his codefendan ts. Gary an d Stove r pled gu ilty

and testified against Carson.        Although Carson did not testify, his police

statement admitted driving his co defend ants to the scene but denied knowledge

that a robbe ry would o ccur. He said he believed G ary and S tover were going to

the store to sell the gu ns they b rought.



      The jury found Carson guilty of aggravated robbery, aggra vated assa ult

(two counts), and felony reckless endangerment. Carson argued on appeal that

he lacked the culpable mental state for the offenses committed by his partners

in crime.



      Carson adopted the “natu ral and p robable conse quenc e” rule. See id. at

955. This rule is based on the premise that criminal aiders and a bettors shou ld

be respo nsible for crim es “the y have natura lly, prob ably an d fores eeab ly put in

motion .” Id. Carson’s convictions were all affirmed. The Court opined “that the

evidence was sufficient to find that the de fenda nt, havin g direc ted an d aide d in

the aggravated robbery with the intent to promote or benefit from its commission,

was crimin ally resp onsib le for all of the offenses committed by his codefendants,

to wit: aggravated a ssault and felon y reckless end angerm ent.” Id. at 956.



      W e are of the opinion that Carson dictates H oward’s criminal re spons ibility

for premeditated murder.       While in the parking lot and before entering the

restaura nt, one of the pe rpetrators stated , “Shoot th e moth er . . .,” referring to

W ong. All four perpetrators then entered the restaurant armed, acted with a

common purpose, committed acts of violence against various employees, shot

and wound ed one emplo yee, and sh ot and killed another.               Under these

                                         -15-
circumstances, Howa rd cann ot escap e crimina l respons ibility for prem editated

murder by claiming he did not share the criminal intent or premeditation with the

actual triggerman. Hence, we find the evidence sufficient to find How ard guilty

of prem editated m urder.



                            II. ADMISSION OF EVIDENCE

       In their first and seventh issues, Defendants contest the decision of the trial

court to adm it a photograph of the deceased victim and a videotape of the crime

scene made by police. They allege that admission of these pieces of evidence

was error, p rejudic ing the ir right to a fair trial. W e find n o error in the tria l court’s

decision to adm it this evidenc e.



                        A. Ph otogra ph of th e Dec ease d Victim

       The photograph to which Defendants object d epicts the victim after his

death, seated on the floor of the restaurant office. The photograph was taken by

police at the scene and introduced as an exhibit to testimony. Defendants argue

both that the probative value was substantially outweighed by its prejudicial value

and that its admission constituted the needless presentation of cumulative

evidence. Defendants claim that the only po ssible function of the evidence was

to inflame the jury. We disagree.



       Tennessee Rule of Evidence 403 governs Defendants’ claim: “Although

relevant, evidence may be excluded if its probative value is subs tantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evide nce.”                Te nn. R. E vid. 403.        In

                                             -16-
Tennessee, we have long “followed a policy of liberality in the admission of

evidenc e.” State v. Banks, 564 S.W .2d 947 , 949 (T enn. 19 78); see State v. Ode ll

Smith , C.C.A. No. 02C01-9707-CR-00259, Shelby County (Tenn. Crim. App.,

Jackson, Aug. 10, 1998). In this respect, the trial court is entrusted with wide

discretion to adm it or refus e a ten dered piece of evidence.           See State v.

Harbison, 704 S.W .2d 314 , 317 (T enn. 19 86); Banks, 564 S.W .2d at 949 .



      Our supreme court has prescribed factors for a trial judge to consider when

deciding whethe r to adm it a certain ph otograp h, including :

      the value of photographs as evidence, that is, their accuracy and
      clarity, and whether they were taken before the corpse was moved,
      if the position and location of the body when found is material; the
      inadequacy of testimonial evidence in relating the facts to the jury;
      and the need for the evide nce to estab lish a pr ima fa cie cas e of gu ilt
      or to rebut the defendant’s contentions.

Banks, 564 S.W .2d at 951 . Here, the photog raph wa s accura te and clear; and

although the victim had been moved, the photograph correctly depicted the

position in which he died and was found by police—he was still breathing when

moved. Furthermore, the photograph was not inflammatory or gruesome. No

blood w as evide nt, and no wound s were e xposed .



      Defendants’ claim that the value o f the ph otogra ph co uld on ly be to inflame

the jury is incorrect. The S tate presented three witnesse s to this crime, a ll of

whom testified extensively to the manner in which the events happened, including

the shoo ting of th e victim in his offic e and the m oving o f his body to perm it him

to breathe. The introduced photograph served to corroborate this testimony and

to bolster the credibility of the Sta te’s witnes ses. For this reason, the photograph




                                         -17-
was relevant yet not needlessly cumulative. See State v. Robinson, 930 S.W.2d

78, 84 (T enn. C rim. App . 1995).



                    B. Vid eotap e of Cr ime S cene and V ictim

      The same general policies should be considered by the trial court ruling on

admis sibility of a video tape. See State v. Bigbee, 885 S.W.2d 797, 807 (Tenn.

1994); State v. R onnie Michael C authern, C.C.A. No. 02C01-9506-CC-00164,

Gibson Coun ty (Tenn . Crim. A pp., Jack son, De c. 2, 1996 ), aff’d by partial

incorporation, State v. Cauthe rn, 967 S.W.2d 726, 743 (Tenn. 1998).           Our

supreme court has stated that “the admissibility of authentic, relevant videotapes

of the crime scene or victim is within the sound discretion of the trial judge, and

his ruling on the adm issibility of such evidence w ill not be overturned without a

clear showin g of abu se of disc retion.” State v. Van Tran, 864 S.W.2d 465, 477

(Tenn. 1993); see State v. McCary , 922 S.W.2d 511, 515 (Tenn. 1996) (in dicta).



      Although Defendant Saulsberry failed to raise this assignment of error in

his motion for new trial, we will address the issue with respect to both

Defendants. At trial, the State played a videotape for the jury containing scenes

of the restaurant shortly after the police arrived.      Defendants present no

argument for exclusion of the videotape, and we find no reason why the tape

would fail to satisfy Tennessee Rule of Evidence 401 for relevancy. Tenn. R.

Evid. 401 (“‘Relevant evidence’ means evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable or les s proba ble than it w ould be without the evidenc e.”). In

addition, we find no pre judice that wo uld substantially outweigh the pro bative

value of the videotap e. See Tenn . R. Evid. 40 3.

                                       -18-
       Defenda nts argue that the trial court erred by announcing to the jury that

portions of the tape displaying removal of the victim’s body would not be shown

to them. D efendants claim that by informing the jury exactly what it would not

see, the trial judge prejudiced their right to a fair trial. We disagree and find no

error. The trial judge’s simple statement that the videotape showed removal of

the de ceas ed’s body co uld not ha ve com munic ated inform ation of a prejudicial

nature to the jury. Cf. Cauthern , 967 S.W.2d at 744 (affirming by incorporation

this Court’s decision that a videotape of police removing the defendant’s body

from the scene w as adm issible when it was relevant and w hen the prob ative

value did not outweigh the prejudicial value). Therefore, Defendants’ claim of

error rega rding ad mission of the pho tograph and vide otape a re withou t merit.



                              III. JURY INSTRUCTIONS

       In issues three through six, Defendants charge error in the instructions

given by the trial court to the jury. Beca use De fendan ts presen ted only the sixth

issue in their motions for new trial, we are permitted to c onsider the oth ers waived

as a matter of proce dure. See Tenn. R. App. P. 3(e). However, in the interest

of facilitatin g furthe r review of this case, an d beca use the State did not object, we

have examined all alleged erro rs. We c onclude tha t Defendan ts’ claims are

without m erit.



       Genera lly, a jury charge “should be considere d preju dicially e rrone ous if

it fails to fairly submit the legal issues or if it mis leads the jury a s to the applic able

law.” State v. Hodges, 944 S .W .2d 34 6, 352 (Ten n. 199 7) (citing Graham v.

State, 547 S.W.2d 531 (Tenn. 1977), and State v. Forbes, 918 S.W.2d 431, 447

(Tenn. Crim. App. 1995)). In addition, “[i]t is the duty of a trial judge to give a

                                            -19-
comp lete charge of the law a pplicable to the facts of a case .” State v. Harbison,

704 S.W.2d 314, 319 (Tenn. 1986) (citing State v. Thompson, 519 S.W.2d 789,

792 (Tenn . 1975)); see State v. Burkley, 804 S.W.2d 458, 461 (Tenn. Crim. App.

1990). This Court also stated in Burkley, “In delive ring its c harge , a cou rt shou ld

guard against an instruction which would withdraw from the jury’s consideration

any issue or evidence which they are entitled to consider.” 804 S.W.2d at 461.



                       A. Instructions on Premeditated Murder

       Defendants’ fourth issue assigns error to the trial court’s charge on first

degree premeditated murder for two reasons: (1) because the judge used the

phrase, “that the killing was inten tional,” rathe r than “tha t the defendant acted

intentionally”; and (2) because the element of deliberation was separated on the

page from the other elem ents of the offense . We find n o prejudicial error.



       Tennessee Pattern Jury Instruction 7.01(a ), the pr oper in structio n for this

case,5 reads, in re levant pa rt:

              For you to find the defendant guilty of this offense, the state
       must have proven beyond a reasonable doubt the existence of the
       following essential elements:
              (1) that the defend ant unlaw fully killed the a lleged victim ;
                                           and
              (2) that the defen dant ac ted intentio nally. A per son ac ts
       intentiona lly with respec t to the na ture of th e con duct o r to a res ult
       of the co nduc t when it is the pe rson’s conscious o bjective or desire
       to enga ge in the c onduc t or cause the resu lt;
                                           and
              (3) that the killing was deliberate. A deliberate act is one
       performed with a cool purpose;
                                           and
              (4) that the killing was p remed itated.




5
  Tennessee Pattern Jury Instruction 7.01(a) is the proper instruction for offenses committed
prior to July 1, 1995, the effective date of legislative changes to the statute.

                                            -20-
Tenn. Pattern Jury Instructions 7.01(a) (4th ed. 1995). Because Defendants’

latter argume nt concerns the visual impact of the instructions on the jury, we

reprint the relevant portion as written in this case:

              For you to find the defendant guilty of this offense, the sta te
       must have proven beyond a reasonable doubt the existence of the
       following essential elements:
              that the defendant unlawfully killed the alleged victim; and that
              the killing was intentiona l. A person acts inten tionally with
              respect to the nature of the c onduct or to a re sult of the
              conduct when it is the pe rson’s conscious o bjective or desire
              to engage in the conduct or cause the result; and
              that the killing wa s delibera te. A delib erate act is one
              performed with cool purpose; and
              that the killing was premeditated.



       Although the elements “that the killing was intentional” and “that the

defendant acted intentionally” do convey different meanings, we decline to find

the distinction s ubstan tial enoug h to misle ad the jury to Defendants’ prejudice.

Consideration of the first elem ent, “that the defendant unlaw fully killed the alleged

victim,” should have eliminated any confusion in the minds of the jurors.

(Em phas is added.)      Clearly, conviction upon this particular instruction, as

opposed to criminal responsibility, requires a finding that the defendant hims elf

was the “triggerm an.”



       Second, we find no error in the visual appearance of the elements.

Though the second element—intent—contains a period prior to its explanation,

so does the third elem ent of d elibera tion. At a mere glanc e, the in structio n cou ld

be slightly c onfus ing to th e jury; bu t we find that eve n a ca reful rea ding is

unnecessary to clearly understand the instruction.



                          B. Instruc tion on M oral Cer tainty

                                          -21-
       Defen dants next com plain that the jury instruction on reasonable doubt

violated due pro cess pro tections. In their fifth is sue, b riefly cons isting o f a sing le

quote , Defendants contest the trial court’s use of Tennessee Pattern Jury

Instruction— Criminal (T.P .I.) 2.03(a). 6 Specifically, they argue that omission of

the term “moral certainty” reduced the jury’s perception of the degree of certainty

required to convict to a point less than that required by the Due Process Clause.

We find no violation of Defendants’ due process rights.



       “[T]he Constitu tion neithe r prohibits trial c ourts from defining reason able

doubt nor requires them to do so as a matter o f course.” Victor v. Nebraska, 511

U.S. 1, 5 (199 4). Furthermore, “so long as the court instructs the jury on the

necessity that the defendant’s guilt be proved beyond a reasonable doubt, the

Cons titution does not require that any particular form of words be used in

advising the jury of the governm ent’s burden o f proof.” Id. (citations omitted).

Therefore, it seems that, with respect to reasonable doubt, a trial court’s error

must typically be one of commission, rather than omission. There can be no

mistake in failing to employ distinctive words or phrases, so long as the charge

given is complete and accurate. Beca use w e find th at T.P .I. 2.03( a)— curren tly

the alternate reason able doubt jury instruction for this state—a ccurately conve ys

the level of certainty mandated by In re W inship, 397 U.S. 358, 364 (1970), we

conclude that absence of the term “moral certainty” is of no consequence.




6
  We also note that the single case used by Defendants to show error by the trial court, State
v. Derek Denton, C.C.A. No. 02C01-9409-CR-00186, Shelby County (Tenn. Crim. App.,
Jackson, Aug. 2, 1996), actually held that giving an instruction identical to the one in this case
was not error.

                                              -22-
       Our supreme court has e xpres sly perm itted the use o f “mor al certa inty” in

this state’s jury ins tructions. See Carter v. State, 958 S.W.2d 620, 626 (Tenn.

1997) (“The phrase is permissible if the context in which the instruction is given

‘clearly convey[s ] the jury's res ponsib ility to decide the verdict based on the fac ts

and law.’”) (quoting State v. Nich ols, 877 S.W .2d 722, 734 (Tenn. 199 4)). Cf.

Austin v. Bell, 126 F.3 d 843, 8 47 (6th C ir. 1997), cert. denied, 118 S. Ct. 1526

(1998) (also accepting a “moral certainty” instruction). We note carefully and

explicitly, however, that our supreme court has allowed use of the term, not

encouraged its use. But cf. State v. Jose Holmes, C.C.A. No. 02C01-9505-CR-

00154, Shelby County (Tenn. Crim. App., Jackson, Dec. 10, 1997); State v.

Derek Denton, C.C.A. No. 02C01-9409-CR-00186, Shelby County (Tenn. Crim.

App., Jackson, Aug. 2, 1996) (both expressing a preference for T.P.I. 2.03, rather

than T.P.I. 2.03(a )).



       Our courts have u pheld a “m oral certainty” jury instruction when confronted

with defendants’ arguments that the instruction itself, when given, permits a level

of proof lower tha n that con stitutionally req uired for co nviction. See Carter, 958

S.W.2d at 625-2 6; Nicho ls, 877 S.W .2d at 734 (u se of “moral certainty”

perm issible when context further explained reasonab le dou bt and prope rly

reflected evidentiary certainty); Pettyjohn v. State, 885 S.W.2d 364, 365-66

(Tenn. Crim. A pp. 199 4); State v. Hallock, 875 S.W.2d 285, 294 (Tenn. Crim.

App. 1993); see also Amy K . Collignon , Note, Searching for an Acceptable

Rea sona ble Doub t Jury Ins truction in Light of Victor v. Nebraska, 40 St. Louis U.

L.J. 145, 171 (1996) (“[A]lthough the Supreme Court hesitated upon the

accep tability of phrases su ch as ‘mora l certainty’ . . . , interpreting courts have




                                          -23-
gleaned only that the instruction must pass constitutional muster having been

read as a whole .”).



       Now, howeve r, these pa rticular De fendan ts com plain that failure to provide

a “moral certainty” instruction also encourages conviction upon a reduced degree

of proof. W e recently addre ssed this very issue with respec t to T.P.I. 2 .03(a) in

State v. Henning, C.C.A. No. 02C01-9703-CC-00126, Madison County (Tenn.

Crim. A pp., Jack son, O ct. 24, 1997); and we find no reason to deviate from our

conclusion in that case that the ins truction is not co nstitutio nally deficient. See

id. at 9; see also Denton, C.C.A. N o. 02C 01-940 9-CR -00186 , slip op. at 8 (“[W ]e

cannot conclude that the trial court erred by refusing to include the phrase <moral

certainty’ in its ch arge.”).



       In Henning, we noted that T.P .I. 2.03(a) “tracks virtually identical language

of pattern reasonable doubt instructions approved by a majority of the federal

circuits.” Id.; see also Colligno n, supra, at 171 (“Clearly, the instruction with the

most supp ort com es from the Fe deral J udicia l Cente r. Tha t charg e exclu des a ll

referenc e to ‘mor al certainty’ o r ‘substan tial doubt.’”) (foo tnote om itted).



       Rea sona ble doubt instructions not including the term “m oral certainty” have

been more widely used since the Supreme Cour t’s opin ion in Victor v. Nebraska,

511 U.S. 1 (1994), in which the Court expressed concern that the term c ould

have “lost its historical meaning.”       Id. at 13.    There, the Court held “moral

certainty” constitutional within an in struction th at “lends c ontent to th e phras e.”

Id. at 14, 16 (“The instruction thus explicitly told the jurors that their conclusio n

had to be based on the evidence in the case. Other instructions reinforc ed this

                                           -24-
messa ge.”). Because of the changing nature of the ph rase over time , however,

the Victor Court clearly state d that it d id not c ondo ne us e of the phras e in

reason able doubt jur y instruction s. See id. at 16. As the Court noted, “the

definitions of reasonable doubt most widely used in the federal courts do not

conta in any refere nce to m oral certain ty.” Id. at 16-17 ; see id. at 24 (Ginsbu rg J.,

concurring in part and concurring in the judgment) (“I agree . . . with the Cour t’s

suggestion that the term <moral certainty,’ while not in itself so misleading as to

render the instructions unconstitutional, should be avoided as an unhelpful way

of explainin g what re asona ble dou bt mea ns.”).



       In the case at ba r, we are convinced that T.P.I. 2.03(a) is not

constitutionally deficient for lack of the phras e “moral certain ty.” Therefore, we

find no erro r in the trial cou rt’s use of this alternative ju ry instruction .



                  C. Instruc tion on P rior Incons istent State ments

       Defendants’ sixth assignment of error co ncerns the trial cour t’s refusal to

issue a contemporaneous curative instruction to the jury when the prio r

inconsistent statements of Claude Sharkey were introduced for impeachment

purposes. Defendants claim that the judge should have instructed the jury that

the statement could be used only for impeachment, not as substantive evidence.



       Defendants correctly assert that failure by a trial court to issue a

contemporaneous curative ins truction for prior inconsistent statements could,

under some circu mstance s, constitute reversible err or. According to State v.

Reece, 637 S.W .2d 858 (Te nn. 1982), failure to give a limiting instruction creates

revers ible error when “the impeaching testimony is extremely damaging, the need

                                            -25-
for the lim iting ins truction is app arent, a nd the failure to give it results in

substantial prejud ice to the rights of the ac cused.” Id. at 861.



        This case is readily distinguishable from Reece, howeve r. In Reece, the

limiting instruction was ne ver given, not even as part of the general jury charge.

In this case, the jury was instructed at the end of testimony that it could consider

impeaching prior inconsistent statements only for purposes of assessing

credibility.



        Although we are awa re of cases in wh ich federal courts h ave held a limiting

instruction as part of the gen eral jury charge insufficient where the impeaching

testimony is extrem ely dam aging, w e need not deter mine w hether th is issue is

a matter of constitutional or evidentiary import, because Defendants have failed

to properly c ite to the rec ord. See Tenn. R. App. P. 27(g) (“[R]eference in the

briefs to the record shall be to the pages of the reco rd involved .”). In their brief,

Defen dants inform the Co urt that the impeached witness’ testimony can be found

between pages 422 and 450 of the record, but they do not identify which portions

of the testimony they consider damaging and do not establish how improper use

of the testimony prejudice d them . The only gu idanc e prov ided b y Defe ndan ts is

this:

        The testimony of Claude Sharkey can be found in the trial transcript
        from pages 422 thru [sic] 450. (V ol. VII and VIII) The testimony of
        Sharkey occurred on February 13, 1997. A review of that testimony
        clearly leaves room for confusio n by the jury as to what th ey cou ld
        consider for guilt o r innoc ence versus impe achm ent es pecia lly
        where the jury was not charg ed with the proper use of such
        testimony until the afternoon of February 14, 1997, during the
        court’s regular charg e to the jury. It is als o clea r that ce rtain
        statem ents in Sha rkey’s p reviou s state men t if taken as substan tive
        evidence would be extremely damaging to both Appellants.
               ...

                                          -26-
       In the present case if the jury took Sharkey’s statements as
       substantive evidence, which Appellants submit they did, it is an
       understatement to say that it resulted in substantial prejudice.

The whole of Claude Sharkey’s testimony consists of impeachment by prior

inconsistent statem ents. W here D efenda nts fail to mea ningfully cite to the record

such that alleged prejud icial error can be identified, we decline to search the

record fo r it.



                     D. Instruc tion on C riminal Re spons ibility

       Defendants’ third issue for review alleges that the trial court erred by failing

to specifically instruct the jury that it must reach a unanimous decision on the

theory behind their verdict. For example, if a portion of the jury convicted them

as directly liable for the murder, a portion of the jury convicted based upon

criminal responsibility for the conduct of C laude Sha rkey, and a po rtion of the jury

convicted based upon criminal responsibility for the conduct of Kevin Wilson,

then Defendants claim the decisio n wou ld have violated their constitutional right

to a una nimou s verdict.



       This issue is m oot as to D efenda nt Sauls berry. As to Defendant Howard,

we find the argument meritless. In State v. Williams, 920 S.W.2d 247 (Tenn.

Crim. App. 1995 ), this Cou rt did not ac cept a sim ilar argum ent. In Williams, the

victim could not pinpoint which criminal held her down and which one of the two

actua lly raped her. The defendant argued the possibility of a nonuna nimous jury

verdict beca use th e State could not pro ve if he was the a ctual rapist or an aide r.

Our Cour t found that in T enne ssee , unde r our crim inal res pons ibility statute, it

makes no differen ce. A defendant crimin ally resp onsib le for a p rincipa l’s acts is

just as guilty as the principa l actor.

                                          -27-
                       IV. CONSECUTIVE SENTENCING

      In their ninth issue, Defendants argue that the trial court erred in imposing

consecutive senten ces, con tending that the evid ence d oes no t indicate

Defen dants are dangerous offenders with little or no regard fo r huma n life. W e

find no error in the trial court’s consideration or decision.



      This Court reviews the length, range, or m anner of service of sentence

imposed by the trial court based upon a de novo standa rd. See Tenn. Code Ann.

§ 40-35-401(d). However, we owe the trial court’s determination a presumption

of correctness, see id., so long a s the trial cou rt “place[s] o n the rec ord its

reasons for arriving at the final sentencing decision ” and exh ibits com pliance w ith

the statutory se ntencing guideline s and p rinciples.     State v. W ilkerson, 905

S.W.2d 933, 934 (T enn. 1995 ).        Here, the record contains a leng thy and

compre hensive deliberation by the trial court regarding Defendants’ sentencing,

and we therefore accord the sente nce a p resum ption of co rrectnes s.



      Defen dants bear the burd en of sho wing tha t the sente nce is im proper. See

State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1). Defendants allege that the

aggreg ate term of life imprisonment “is quite reasonably sufficient in the terms of

length to ade quate ly punish [Defendants] and to adequately protect society,” but

they have nowh ere identified any err ors comm itted by the trial court or why

consecu tive sentencing is not appropriate in this case. They have failed to carry

their burden.




                                         -28-
      In the inte rest of ju stice, however, we have examined the sentencing

transcript and a re satis fied tha t cons ecutive sente ncing is app ropria te in this

case. T ennes see Co de Ann otated § 40-35-1 15 gove rns our a nalysis:

      (a) If a defendant is convicted of more than one (1) criminal offense,
      the court shall order sente nces to run c onse cutively or con curren tly
      as provided by the criteria in this section.
      (b) The cou rt may order se ntences to run consecutively if the cou rt
      finds by a p repond erance of the evide nce tha t:
      ...
      (4) The defendant is a dangerous offender 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.

Id. § 40-35 -115(a), (b )(4). More over,

      The proof must also establish tha t the terms imp osed are
      reaso nably related to the severity of the offenses comm itted and are
      necessa ry in order to protect the public from further criminal acts by
      the offend er. In ad dition, the Sentencing Reform Act requires the
      application of the s enten cing p rinciple s set fo rth in the Act ap plicab le
      in all cases. The Act requires a principled justification for every
      sentence, including, of course, consecutive sentencing.

Wilkerson, 905 S.W .2d at 938 ; see also State v. Dale Nolan, C.C.A. No. 01C01-

9511-CC-00387, Sequa tchie Co unty (Te nn. Crim . App., N ashville, June 26,

1997), perm. to app. denied (Tenn . 1998).



      In the case at ba r, the trial court explicitly found that Defendants satisfied

the requ iremen ts of § 40-3 5-115(b )(4):

             As to the consecutive request, Mr. Howard does have an
      extensive record. And in my judgment, he is clearly a dangerous
      offender. He has shown no hes itation to comm it a crime when the
      risk to hum an life was high.
             The facts o f this ca se we re so s hock ing an d app alling th at it
      is inconceivable to me that under any interpretation of the
      dangerous offender category these individuals would not be
      considered to be dangerous offenders. The facts that are in the
      record with regard to all four of them being armed, all four of them
      showing up at that back door, single file, marching into the store,
      each one h aving h is own respo nsibility with regard to the completion
      of this robbery. The shootings that occurred with Mr. Frieling and
      Mr. Shea.

                                           -29-
             Their absolute and total lack of remorse after this is over, as
      evidenced by testimony from severa l individu als of the fact that they
      went back to the home of the one individual and played Nintendo for
      the rest of the night. That’s just pretty amazing testimony that we
      heard during the course of this trial. That individuals after having
      participated in a crime of this sort would go back to a house and
      play Nintendo for several hours until, I guess, they got sleepy and
      went to sleep. It is just -- it’s unbelievable. Clearly dangerous
      offenders.

With respect to Defendant Saulsberry, the court stated,

             In my judgment, for the same reasons as those I indicated
      with regard to Mr. Howard, I thin k that c onse cutive s enten cing is
      approp riate in this case as well.
             The offense is so reprehensible and so atrocious, so
      unfathomable, that it is hard fo r me to imagine anyone defining this,
      these individuals, as anything other than dangerous offenders.



      The court also found no hesitation to commit an offense w hen the risk to

human life was high:

             I think that’s clearly established. And I think the case law
      suppo rts it. I think there were -- well, I know tha t the record reflects
      that there were other individuals in the restaurant, the dishwashe r,
      the waitress, others who were all put at risk. The potential to -- or
      the risk to th eir life was high. They were very much endangered
      during this whole episode, even though they were fortunate enough
      to have been spared. So I think that factor clearly applies.

Finally, the trial court specifically addres sed wheth er an aggregate sentence

reasonably related to the severity of the offenses involved. The court stated,

             You have a robbery that w as taking place , and a store
      manager who is saying, here, take the money, doing everything to
      comply with what the robbers were asking, and yet was shot. And
      then beyond that, the assistant manager, lying on the ground, doing
      everything he cou ld to com ply with what was being demanded, who
      was then gratuitously shot and left to die.
              I mea n, I think it is a situa tion wh ere it is clearly
      disting uisha ble from, fo r exam ple, a h oldup where in the process of
      struggling over the money, somebody gets shot or something of that
      sort. [Tha t] is all part and parcel of th e robbe ry itself.
              These events were all separate, independent, inexplicable,
      inexcusable, outrageous, unconscionable acts that are clearly
      distinguishable, I think.



                                        -30-
       W e also find in the sentencing transcript ample evidence to show that the

term imposed was n eces sary to protec t the pu blic from further crimes committed

by these D efenda nts.      At the tim e of sentencing, each Defendant had an

extensive history of crim inal beha vior. In addition, the court found, for both, at

least a limited h istory of unw illingness to comp ly with the cond itions of a sentence

involving release into the community. Our review of the above evidence is not

affected by our finding of insufficient evidence to support premeditation and

deliberation on the part of Defendant Saulsberry. We are convinced the trial

judge fulfilled his duty in sentencing as to both Defendants.



                              V. DISCOVERY MOTION

       Defendants’ ninth issue assigns error to the trial court’s failure to grant a

mistrial based upon an alleg ed disco very violation by the Sta te. Defen dants

argue that the State did no t comply with T ennesse e Rule of Crim inal Procedu re

16, which requires disclosure of certain evidence by the State:

       Upon request of the defendant, the state shall permit the defendant
       to inspect and c opy or photog raph any re sults or reports o f . . .
       scien tific tests o r expe rimen ts, or co pies th ereof, w hich a re within
       the possession, custody or control of the state, the existence of
       which is known, or by the exercise of due diligence may become
       known, to the district atto rney gen eral and which ar e mate rial to the
       preparation of the defense or are intended for use by the state as
       eviden ce in ch ief at the trial.

Tenn. R. Crim . P. 16(a)(1 )(D). Spe cifically, Defe ndants argue th at the Sta te

should have produced, in response to their Rule 16 disc overy reques t, a report

of tests performed on the .32 caliber revolver seized from Defendant How ard’s

residen ce.




                                          -31-
       The State replies first that Rule 16 is inapplicable because the test

performed on the weapon was not a “scien tific test” and becaus e the expert

made no “report.” Rather, the State argues , the expert simply observed whether

the barrel of the gun contained residue, to determine whether it had been cleaned

since last fired, and he made only handwritten notes of the result. Although we

do not accept the State’s argument, we need not find this test within Rule 16

because we conclude that even if there was a violation, Defendants were not

prejudiced.



       Rule 16 prescribes the rem edies for violation of its provisions : “the court

may order such party to permit the discovery or inspection, grant a continuance,

or prohibit the party from introducing evidence not disclosed, or it may enter such

other order as it deems just under the circumstances.”               Tenn. R. Crim. P.

16(d)(2). Here, the trial court offered to a llow Defe ndants ’ counse l an oppo rtunity

to inspec t the notes , which he declined to do. Th e record reflects tha t counsel

objected to the existen ce of th e alleg ed viola tion, bu t that he did not, in fact, move

for a mistrial at this point. Although D efendants a ssert that they mo ved for a

mistria l, they have not prov ided a citation to the record to permit meaningful

appellate review.



       Furthermore, the evide nce no t disclosed to Defen dants revealed only that

the gun fo und in Defe ndan t How ard’s h ome had n ot bee n clea ned s ince last

fired; the evidence did not reveal when the gun had been las t fired. Defen dants

have identified no prejudice—they have simp ly asserted that prejudice

resulted—and we ca nnot o urselve s iden tify any p rejudic e. The trial judge was

within his d iscretion in re fusing an y reques t for a mistria l.

                                           -32-
                           VI. CUMULATIVE ERROR

       W e have concluded that only one error occurred and have remedied that

error by reversin g one D efenda nt’s convic tion for first deg ree prem editated

murder. We find no cumulative error warranting further modification.



                               VII. CONCLUSION

       In conclusion, Defendant Saulsberry’s conviction for first degree

premeditated 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 murd er as a lleged in Counts 2 and 3 of the indictment. We conclude that

the trial court committed no oth er erro r. W e affirm convic tions fo r espe cially

aggravated robbery and cons piracy as to both D efendants. W e affirm Defendant

Howard’s murder conviction. Consecutive sentencing is affirmed. This c ase is

remanded for such other proceedings as may be warrante d and c onsisten t with

this opinion .




                                        _________________________
                                        PAUL G. SUMMERS, JUDGE


CONCUR:




_____________________________
DAVID H. WELLES, JUDGE



_____________________________
JOE G. RILEY, JUDGE

                                       -33-
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