           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                         MAY 1997 SESSION
                                                         FILED
                                                       December 11, 1997
STATE OF TENNESSEE,        *       C.C.A. No. 02C01-9608-CR-00267
                           *
                                                         Cecil Crowson, Jr.
      Appellee,            *       SHELBY COUNTY         Appellate C ourt Clerk
                           *
VS.                        *       Hon. Joseph B. Brown, Jr., Judge
                           *
CARLITO D. ADAMS,          *       (First degree felony murder--Two Counts)
                           *
      Appellant.           *




For Appellant:                     For Appellee:

William D. Massey                  John Knox Walkup
3074 East Street                   Attorney General and Reporter
Memphis, TN 38128
(on appeal)                        Karen M. Yacuzzo
                                   Assistant Attorney General
Brett Stein                        450 James Robertson Parkway
236 Adams Avenue                   Nashville, TN 37243-0493
Memphis, TN 38103
and                                John W. Campbell
Wayne Chastain                     Assistant Attorney General
147 Jefferson Avenue               Criminal Justice Complex, Ste. 301
Memphis, TN 38103                  201 Poplar Street
(at trial)                         Memphis, TN 38103




OPINION FILED:__________________



AFFIRMED IN PART; REVERSED AND DISMISSED IN PART



GARY R. WADE, JUDGE
                                      OPINION

             The defendant, Carlito D. Adams, was convicted of two counts of first

degree felony murder and two counts of attempted first degree felony murder. He

received concurrent life sentences for the felony murder convictions. The trial court

imposed Range I, fifteen and twenty-five year sentences for the two attempted

felony murder convictions, to be served consecutively to each other and to his life

sentences, for an aggregate sentence of life plus forty years.



             In this appeal, we have addressed the following issues:

             (1) whether the convictions for attempted felony murder
             qualified as plain error;

             (2) whether the evidence is sufficient to support the
             convictions for first degree murder during the commission
             of a felony;

             (3) whether the trial court properly instructed the jury
             regarding felony murder;

             (4) whether the trial court erred by admitting photographs
             of the crime scene in evidence;

             (5) whether the trial court erred by allowing the victims’
             mothers to give irrelevant testimony during the guilt
             phase of this capital trial;

             (6) whether the trial court erred by permitting cross-
             examination of a character witness concerning the
             defendant’s juvenile arrest and charge for aggravated
             rape; and

             (7) whether the trial court erred by imposing consecutive
             sentences.



             We must reverse and dismiss the attempted felony murder

convictions. Otherwise the judgment is affirmed. The defendant must serve two

concurrent life sentences.




                                           2
              On the afternoon of April 20, 1992, four young men were sitting in a

parked car on David Street in Memphis, smoking pot and drinking gin. Five or six

male assailants approached the car. Words were exchanged. The victims were

robbed at gunpoint and then shot repeatedly; Damond Dawson and Tracy Johnson

died, Tommy Blackman fled to safety, and Eric Thomas was seriously injured but

survived. The defendant acknowledged that he was among the group of assailants

but denied any involvement in the robbery or killings.



              Brenda Hudson, mother of twenty-year-old victim Tracy Johnson,

testified that she last saw her son alive on in the morning of April 20, 1992 when she

drove him to see his infant son. That afternoon, she saw her son lying dead on the

sidewalk on David Street. She buried her son the next Saturday at Newpark

Cemetery. Over objections by the defense, the trial court admitted a photograph of

Johnson prior to his death. Over other objections and offers to stipulate, the trial

court permitted the witness, openly tearful, to identify a photograph of her son’s

body.



              Jonnie Dawson, mother of seventeen-year-old victim Damond

Dawson, testified that her son had been an excellent football player and all around

athlete. She last saw her son alive on April 20, 1992, just after football practice.

Later that afternoon she learned that he had been shot. The trial court allowed the

admission of a photograph of this victim taken while attending church the Sunday

before his death. Over renewed objections and offers to stipulate, Ms. Dawson

identified a photograph of her son’s body, and then informed the jury that he had

been buried at Memorial Park.




                                           3
             Eric Wayne Thomas, who survived the shooting, testified that he had

known the victims Dawson, Johnson, Blackman, and the defendant all of his life.

On the afternoon of the shooting, they were in Dawson’s car parked in his driveway

using marijuana and drinking gin. Dawson sat in the driver’s seat. Johnson was in

the front passenger’s seat. Thomas sat directly behind Dawson and Blackman was

seated next to Thomas. The defendant and three or four other males then

approached the vehicle. The defendant ordered Blackman to exit the car, but he

refused. Another male stood at the front passenger door holding a pistol. When

Blackman got out of the car and ran toward the house, the defendant said “Get him!”

A third male fired four or five shots in Blackman’s direction. Thomas testified that

the defendant was holding a pistol. He said that their assailants surrounded the car,

robbed them of their jewelry and their money, and then shot them repeatedly.

Thomas was first shot in the stomach and then the chest. The assailants started to

leave and then re-opened fire on the front and rear-seat passengers, shooting

Thomas in the leg. As he pretended to be dead, he heard someone say, “I think we

got them.” After the shooting, Johnson managed to cross the street where he

collapsed and later died. Dawson, shot several times, was bleeding badly.



              Tommy Blackman, a seventeen-year-old victim, testified that a few

days before the shooting, he argued with the defendant over a basketball game. He

had heard that the defendant was looking for him. He also revealed that he and the

other victims were smoking marijuana and drinking gin in Dawson’s car when the

defendant, accompanied by another male, directed him to get out of the car. When

he did not immediately respond, he saw the male accompanying the defendant draw

a gun. Blackman pushed his way out of the car, knocking the defendant down in the

process, and fled. He then heard someone say “he’s going to the house.” When he

looked back, Blackman saw four or five other males approach the car, heard shots


                                          4
fired, and felt a bullet graze his arm. Later, he found Johnson face down across the

street. Thomas was in the back seat of the car asking for help and Dawson was

slumped over in the front seat. Blackman asserted that no one in the car was

armed with any type of weapon.



             Eric Jones, seventeen years old, lived across the street from Damond

Dawson and was returning home from a friend’s house when the shooting incident

occurred. He saw three males, including the defendant, surrounding Dawson’s

parked car. Two of them had guns. He overheard one of the assailants say, “Drop

it off” just before the car occupants removed their jewelry. He also saw Blackman

get out of the car and run toward the house. An unidentified male crossed the yard

and shot at him and Blackman as each ran inside. Jones could not see whether the

defendant, who was identified at trial, had a weapon.



             Mary Jones, Eric Jones’ mother, lived directly across the street from

the Dawsons on David Street. On the afternoon of the crimes, she heard some

gunshots and looked out her front door. She saw a truck in the street, almost

stopped, blocking her view of the Dawson home. By the time it passed, she saw

two males running along the driveway toward Dawson’s parked car. Both carried

guns and began to shoot as soon as they approached the Dawson vehicle. Ms.

Jones did not see anyone leave the vehicle or run into the house. She did not see

any indication of a robbery.



             Frederick Sansom, of the Memphis Police Department, arrived at the

scene that day at approximately 4:15 p.m. He described the scene, the locations of

victims, spent shells, and blood evidence. He found no weapons in the car. During




                                         5
his testimony, numerous photographs of the crime scene and the decedents were

introduced in evidence over defense counsel objections.



              Dr. O’Brien Smith, assistant professor of pathology at the University of

Tennessee at Memphis and assistant medical examiner of Shelby County,

performed both autopsies. He testified that a bullet went through Johnson’s heart,

causing his death. Dawson sustained five gunshot wounds, and, although he

survived long enough to undergo surgery, the gunshot wounds caused his death.



              Hez Benny Buckner, a witness for the defense, testified that he

received a phone call from the defendant on the day of the shooting, during which

the defendant claimed to have had an altercation with someone; the incident

apparently involved a gun and the other person, who was believed to be Blackman,

supposedly drove by the Adams’ house slowly, as if to shoot. The defendant asked

Buckner to pick up Kevin Shaw and come to his house. At Shaw’s residence, they

were joined by KB, Big D, and Scoot. The group proceeded to Adams’ house. The

six of them walked from the defendant’s home to the Dawson residence on David

Street to talk to Blackman. On the way, Shaw handed Buckner a .25 automatic.

The defendant, walking ahead, apparently did not see the exchange. The

defendant reached the Dawson residence first, approached the parked car, and

opened the rear passenger door. Buckner did not hear the defendant say anything

to Blackman. As the defendant opened the door, KB and Big D ran up to the car

shooting; they demanded gold chains and a beeper. Big D fired shots in the back

seat and KB ran around to the other side of the car to fire shots into the front seat.

After the shooting began, the defendant ran past Buckner, followed by Shaw. At

that point, Buckner ran and was followed by the others. When Buckner looked

back, he saw one male exit the vehicle, run across the street, and collapse.


                                           6
             The defendant claimed that he and Blackman had an altercation while

playing basketball and that Blackman had pulled a gun. When friends had

intervened, Blackman left. The defendant took a detour home because he heard

Blackman was waiting for him on the street. He decided to go talk it out with

Blackman and called Buckner and Shaw to be witnesses. Several other males

unknown to the defendant accompanied them. They walked to the Dawson

residence. Shaw and the defendant approached the victims and asked Blackman to

step outside so they could talk. The defendant testified that he had his back to the

street, when Blackman, looking beyond the defendant, appeared startled and began

to run. A shot was fired. The defendant turned, saw the three unknown males

begin to shoot, and then ran home. He insisted that his only purpose was to talk to

Blackman. He testified that he was surprised by the shooting, did not witness any

robbery, and turned himself in to police upon learning he was being sought.



             On cross-examination, the state impeached the defendant by use of

his unsigned statement to police on the night of the offense. The defendant had

stated that several of the men who accompanied him to David Street had pistols; he

reported then that two men he did not know fired a lot of shots. He told officers that

he took Shaw and Buckner in case he and Blackman fought. He acknowledged to

the investigating officers that he told Blackman to get out of the car. He claimed that

Dawson had then tried to pull out a pistol as his two unknown companions ran to the

car and robbed Dawson. When confronted with his statement, the defendant

admitted that he knew of the robbery and the guns only because Shaw had

informed him of that just before he made his comments to the police.



             The defense asked to call Joseph Terre, Jr., as a character witness.

Terre is a school teacher who had taught the defendant history and homeroom


                                          7
classes. Outside the presence of the jury, defense counsel elicited testimony that

the defendant was truthful, honest, and peaceful. The state in turn, inquired as to

his knowledge of the defendant’s prior conviction for grand larceny, his juvenile

adjudication for shoplifting, and his arrest and charge for aggravated rape. After

lengthy discussions, the trial court ruled that if the character witness testified, the

state could inquire as to the witness’ knowledge of these specific incidences. The

defense rested without calling the character witness.



              After the jury returned guilty verdicts on two counts of felony murder

and two counts of attempted felony murder, the penalty phase of the trial was begun

to determine whether the defendant would be sentenced to death. George

Richmond, who lived on David Street, said that the killings had an adverse effect on

his neighborhood, “Everybody is fearful now.” Ms. Hudson, explained that her son,

Tracy Johnson, had been a “very good young man” who never gave her problems

and was respectful of others. He had a child of four months at the time of his death.

Ms. Dawson discussed the plans her son had made the day before his death, and

relayed how he had a renewed determination to do well with his life. She testified

that his death was “the end of her life.”



              Soloman Adams, the defendant’s father, testified that the defendant

worked for him in construction when not in school. He claimed his son was no more

troublesome than any other kid, made good grades, and attended college in hopes

of becoming an accountant. As far as he knew, the defendant had no involvement

in gang activities. He described his son as “scared and just really torn apart”

immediately after the shooting and asked the jury to spare his life.




                                            8
               Vanessa Adams, the defendant’s step-mother, testified that the

defendant was a “good kid” with high aspirations. She expressed her love for him,

asked the jury to spare his life, and asserted that the defendant could be

rehabilitated. Barbara Beloach, employed by Youth Service of Memphis, had

helped the defendant become involved in their summer work program. She testified

that the defendant was a quiet, respectful, and cooperative and could be

rehabilitated. She asked the jury not to impose the death penalty. Loving DuBose,

the defendant’s mother, testified that her son had worked to attend college and that

he had always been respectful. She also asked the jury to spare his life. James

Patterson, the defendant’s brother, also expressed love for the defendant and asked

the jury to spare his life.



               On the morning of the final day of the sentencing hearing, the trial

court received a letter from a juror who stated that she had changed her mind and

no longer wanted to vote guilty for murder; she favored a criminally negligent

homicide verdict. Defense counsel sought a mistrial. The trial court denied the

request but pointed out that the jury would likely be favorable to the defendant

during deliberations as to sentence. At that point, the state sought a mistrial which

the trial court denied.



               The final witness for mitigation was Joseph Terre, the former high-

school teacher of the defendant. Terre testified that the defendant had posed no

disciplinary problems and seemed to be liked and respected by his peers. The

defendant was never disrespectful and seemed to understand the importance of

education. On learning of the charges against the defendant, Terre was astonished.

He expressed the belief that the death penalty would not be appropriate.




                                            9
                                             I

               Attempted felony murder is not recognized as a crime in Tennessee.

The state concedes that, even though the defendant has failed to present this issue

in this appeal.



               Plain error may be noticed and brought to the attention of the appellate

court even though not raised in the motion for new trial. State v. Ogle, 666 S.W.2d

58 (Tenn. 1984). The Tennessee Rules of Criminal Procedure provide, in part, as

follows:

               (b) Plain Error.--An error which has affected the
               substantial rights of an accused may be noticed at any
               time, even though not raised in the motion for a new trial
               or assigned as error on appeal, in the discretion of the
               appellate court where necessary to do substantial justice.

Tenn. R. Crim. P. 52(b). This court is authorized, in its discretion, to consider issues

not properly presented for review “(1) to prevent needless litigation, (2) to prevent

injury to the interests of the public, and (3) to prevent prejudice to the judicial

process.” Tenn. R. App. P. 13(b). Unless errors affect the fairness and integrity of

the trial, they are not generally deemed to qualify as plain. State v. Wooden, 658

S.W.2d 553, 559 (Tenn. Crim. App. 1983). A substantial right is one of fundamental

proportions in the indictment process, a right to the proof of every element of the

offense, and is constitutional in nature. Plain error is imposed only to prevent a

manifest injustice. See State v. Goins, 705 S.W.2d 648, 650 (Tenn. 1986); State v.

Brown, 693 S.W.2d 369, 371 (Tenn. Crim. App. 1985). In United States v. Causey,

834 F.2d 1277 (6th Cir. 1987), the court held the plain error doctrine is limited to

errors “that strike at fundamental fairness, honesty, or public reputation of the trial.

...” Id. at 1281 (citations omitted).




                                            10
              Fundamental to our system of criminal justice is the requirement that

offenses be clearly defined by the General Assembly. “Conduct does not constitute

an offense unless it is defined as an offense by statute, municipal ordinance, or rule

authorized by and lawfully adopted under a statute.” Tenn. Code Ann. § 39-11-

102(a). In 1996, our state’s supreme court ruled that the offense of attempted

felony murder does not exist in Tennessee. State v. Kimbrough, 924 S.W.2d 888

(Tenn. 1996). Thus, the defendant’s convictions for attempted felony murder were

dismissed:

                         Considering that the legislature has already
              enacted specific offenses covering situations in which
              death or injury is threatened or occurs during the
              commission of certain felonies, we conclude that to
              extend the felony-murder rule to cases in which no death
              occurs would ‘extend the scope of the doctrine beyond
              the pale of its statutory design and logical underpinnings.’
              [I]t is illogical that someone could intend to cause
              someone else’s death through negligence or even
              recklessness. ... We conclude that one cannot intend to
              accomplish the unintended. Consequently, the offense
              of attempted felony-murder does not exist in Tennessee.

Id. 924 S.W.2d at 891-92 (citations omitted). We must, therefore, reverse and

dismiss the defendant’s convictions for attempted felony murder.



                                           II

              Next, the defendant contends that the evidence is insufficient to

support the verdicts of felony murder because the state failed to prove that the

defendant planned and intended to participate in a robbery and failed to prove that

he was criminally responsible for the conduct of the other assailants. The state

counters that the evidence was sufficient to show that the defendant was involved in

a reckless killing during the perpetration of a robbery.



              On appeal, of course, the state is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which might be drawn therefrom.

                                           11
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the

witnesses, the weight to be given their testimony, and the reconciliation of conflicts

in the proof are matters entrusted to the jury as triers of fact. Byrge v. State, 575

S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is

challenged, the relevant question is whether, after reviewing the evidence in the light

most favorable to the state, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d

405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).



               At the time of the offense, felony murder was defined under the 1989

Act as “a reckless killing of another committed in the perpetration of, or attempt to

perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping

or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2) (1991). Robbery was

defined as “the intentional or knowing theft of property from the person of another by

violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (1991).



               In Williams v. State, 51 S.W.2d 482, 483-84 (Tenn. 1932), our

supreme court set forth how the felony murder doctrine operated to hold co-felons

liable for the acts of the principal:

               [W]hen men are assembled for an illegal purpose, the
               commission of an offense by any one of the party in
               pursuance of that purpose is the act of the whole. ... The
               test of responsibility of one member of a party for the
               acts of another member of the party is concert of action
               .... All who join in a common design to commit an
               unlawful act, the natural and probable consequence of
               the execution of which involves the contingency of taking
               human life, are responsible for a homicide committed by
               one of them while acting in pursuance of, or in
               furtherance of, the common design, although not
               specifically contemplated by the parties ....

Id. 51 S.W.2d at 483-84 (citations omitted). The death “must have had an intimate

relation and close connection with the felony, ... and not be separate, distinct, and

                                           12
independent from it....” Farmer v. State, 296 S.W.2d 879, 883 (Tenn. 1956).

Moreover, co-felons are responsible for the “natural and probable consequences” of

the acts of one another “committed in furtherance of such design even though the

killing was not specifically contemplated.” Dupes v. State, 354 S.W.2d 453, 456

(Tenn. 1962). Thus, since 1932, the felony murder doctrine has been interpreted to

require something more than mere presence and participation in the underlying

felony; it has required some level of foreseeability as well as a nexus between the

felony and the killing. On the other hand, the felony murder doctrine has never

required that the defendant “specifically contemplate[]” the killing. Williams, 51

S.W.2d at 483.



              In 1988, the General Assembly altered the statutory requirements of

felony murder, reflecting a strict liability approach: “[e]very murder ... committed in

the perpetration of, or attempt to perpetrate, any [enumerated felony] is murder in

the first degree.” Tenn. Code Ann. § 39-2-202 (1988). In interpreting this statute,

however, our courts have retained portions of the interpretive language found in

Farmer, Dupes, and Williams. See State v. Brown, 756 S.W.2d 700 (Tenn. Crim.

App. 1988); State v. Severs, 759 S.W.2d 935 (Tenn. Crim. App. 1988). To render a

guilty verdict under the 1988 statute, the jury need determine only that the

defendant participated in the underlying enumerated felony. Brown, 756 S.W.2d at

704; State v. Middlebrooks, 840 S.W.2d 317, 332 (Tenn. 1992). In Brown, the

defendant argued that in order to be found guilty of felony murder, the jury must

conclude that the defendant “intended” to cause or assisted in causing the victim’s

death. This court, relying on Dupes, disagreed:

              When one enters into a scheme with another to commit
              one of the felonies enumerated in [Tenn. Code Ann.] §
              39-2-202 and death ensues, both defendants are
              responsible for the death, regardless of who actually
              committed the murder and whether the killing was
              specifically contemplated by the other. ... [A]s long as

                                           13
                the defendant intended to commit the underlying felony
                (in this case, robbery) and death resulted in the
                perpetration of, or attempt to perpetrate, the underlying
                felony, the defendant is responsible for the murder,
                regardless of whether he intended for the victim to die or
                participated in the act of murder.

Brown, 756 S.W.2d at 704-05 (citations omitted). The court in Brown based its

conclusion on Dupes but did not enunciate the “natural and probable consequence”

principle as it was not directly implicated by the issues in that case. Other

interpretive rules of the felony murder doctrine were also applied to the statute. To

sustain a conviction for first degree felony murder, the killing must have been in

pursuance of, rather than collateral to, the unlawful act described by the statute.

Severs, 759 S.W.2d at 938 (citing Farmer, 296 S.W.2d at 883).



                In 1989, the General Assembly redefined felony murder and added the

culpability requirement of reckless:

                (a) First degree murder is:
                 (2) A reckless killing of another committed in the
                perpetration of, or attempt to perpetrate any first degree
                murder, arson, rape, robbery, burglary, theft, kidnapping,
                aircraft piracy, or the unlawful throwing, placing or
                discharging of a destructive device or bomb.

Tenn. Code Ann. § 39-13-202 (1989) (emphasis added).

                “Reckless” refers to a person who acts recklessly with
                respect to circumstances surrounding the conduct or the
                result of the conduct when the person is aware of but
                consciously disregards a substantial and unjustifiable risk
                that the circumstances exist or the result will occur. The
                risk must be of such a nature and degree that its
                disregard constitutes a gross deviation from the standard
                of care that an ordinary person would exercise under all
                the circumstances as viewed from the accused person’s
                standpoint.

Tenn. Code Ann. § 39-11-401(c) (1989). Our supreme court discussed the policies

that prompted addition of the reckless mens rea:1


        1
          In Tennessee, felony murder is punishable by death. This discussion of the felony murder
statu te oc curr ed in th e con text o f the c ons titution ality of th is pen alty.

                                                 14
              The number of states allowing capital punishment for
              pure felony murder [where no culpability level is required]
              ... is a distinct minority. Tennessee moved out of that
              status in 1989 by amending its first-degree murder
              statute to provide that first-degree murder occurs only
              where a killing in the perpetration of one of the listed
              felonies is reckless.

Middlebrooks, 840 S.W.2d 317, 337 (Tenn. 1992) (citations omitted). Under the

1989 Act, the defendant’s recklessness must be proved independently and cannot

be “presum[ed] from the fact that the defendant was engaged in the commission of

an enumerated offense when the killing occurred.” State v. Frank Whitmore, C.C.A.

No. 03C01-9404-CR-00141, slip op. at 20, (Tenn. Crim. App., at Knoxville, June 19,

1997), perm. to app. filed, (Aug. 20, 1997) (citing State v. Gilliam, 901 S.W.2d 385,

390 (Tenn. Crim. App. 1995)).



              Accomplice liability generally provides another basis for a felony

murder conviction. In 1989, the General Assembly amended our accomplice liability

statute to provide that “[a] person is criminally responsible for an offense committed

by the conduct of another if ... (2) [a]cting with intent to promote or assist the

commission of the offense, or to benefit in the proceeds or results of the offense,

the person solicits, directs, aids, or attempts to aid another person to commit the

offense[.]” Tenn. Code Ann. § 39-11-402. An aider and abettor under this statute

can be held criminally responsible not only for the criminal offense aided or abetted,

but also for any other crime committed by an accomplice as a “natural and probable

consequence of the crime originally aided and abetted.” State v. Carson, 950

S.W.2d 951, 952 (Tenn. 1997). In describing a “natural and probable

consequence,” the court in Carson described that these are “harms [the aiders and

abettors] have naturally, probably and foreseeably put in motion.... A ‘“natural and

probable consequence” in the “ordinary course of things” presupposes an outcome

within a reasonably predictable range.’” Id. at 955 (citations omitted).


                                           15
              In Carson, the supreme court declared in dicta that the “[natural and

probable consequences] principle also has been applied to accomplices under the

felony murder doctrine: ‘A defendant who is a willing and active participant in a

robbery becomes accountable for all of the [natural and probable] consequences

flowing from the robbery and may be convicted of first-degree murder where a co-

perpetrator of the felony is the actual killer.’” Id. at 955, n.5 (emphasis added)

(quoting Middlebrooks, 840 S.W.2d at 336; also citing Dupes, 354 S.W.2d at 456).



              Thus, the question is whether the natural and probable consequences

principle enunciated in Carson as “ha[ving] been applied to accomplices under the

felony murder doctrine” also applies to the 1989 felony murder statute. We hold that

it does. For an accomplice who is not the actual killer to receive a conviction of

felony murder under the 1989 Act the state must prove the following:

              (a) the defendant recklessly participated in the underlying
              felony, Tenn. Code Ann. § 39-2-202 (1989);

              (b) the defendant was reckless as to the killing which
              occurred during the underlying felony, Id.;

              (c) that the killing was not independent or separate from
              the underlying felony, Severs, 759 S.W.2d 938; Farmer,
              296 S.W.2d 883; and,

              (d) that the killing was a natural and probable
              consequence of the underlying felony. Williams, 51
              S.W.2d 483-84; Dupes, 354 S.W.2d 456; Carson, 950
              S.W.2d at 956.



              Basic principles of statutory construction require courts to give effect to

legislative intent without restricting or expanding a statute's coverage beyond its

intended scope. Riggs v. Burson, 941 S.W.2d 44, 54 (Tenn. 1997); Owens v. State,

908 S.W.2d 923, 926 (Tenn. 1995). In examining statutory language, courts should

apply the ordinary and plain meaning. Id. In addition, courts presume that the

Legislature is aware of both its prior enactments and the law as it exists when new

                                           16
legislation is passed. Wilson v. Johnson County, 879 S.W.2d 807, 810 (Tenn.

1994).



              “The provisions of [the criminal code] shall be construed according to

the fair import of their terms, including reference to judicial decisions and common

law interpretations, to promote justice, and effect the objectives of the criminal code.

[Acts 1989, ch. 591, § 1.]” Tenn. Code Ann. § 39-11-104. The Sentencing

Commission Comments provide as follows:

              The commission intends the language of the sections
              themselves to be an authoritative statement of the law.
              Since some of the terms utilized have been clearly
              defined by judicial decisions, those decisions and
              common law interpretations should be consulted where
              necessary.

Therefore, we rely on the plain language of the statute, the intent of the legislature,

and the common law interpretations of the felony murder doctrine.



              Our code dictates that “[a] person commits an offense who acts

intentionally, knowingly, recklessly or with criminal negligence, as the definition of

the offense requires, with respect to each element of the offense. Tenn. Code Ann.

§ 39-11-301 (emphasis added). Moreover, an intent to punish without the

requirement of a culpable mental state must be clear from the language of the

statute creating the offense. Pappas v. State, 188 S.W. 52 (Tenn. 1916). Here, the

statute expressly requires a reckless mental state as to every element. Tenn. Code

Ann. § 39-13-202 (1989). Next, applying common law interpretations of the statute,

the state must prove that the resulting death was not independent from the felony.

Severs, 759 S.W.2d at 938; Farmer, 296 S.W.2d at 883. And finally, the state must

prove that the killing was a natural and probable consequence of the felony.

Williams, 51 S.W.2d at 483-84; Dupes, 354 S.W.2d at 456; Carson, 950 S.W.2d at

956.

                                           17
              We conclude that the evidence here was sufficient to support the

verdict. The defendant lead his accomplices to the Dawson residence on David

Street. He approached the vehicle first. Thomas testified that the defendant had a

weapon. The defendant ordered Blackman out of the car and, when Blackman

began to run, the defendant yelled “Get him!” Eric Jones testified that he saw the

defendant and two others standing by the car, heard one say, “Drop it off,” and

observed the victims removing jewelry. In his statement to police, the defendant

acknowledged that he called his friends for “back up,” was aware that several of his

companions had weapons, and knew that a robbery occurred. The jury rejected his

claim that he learned of the information second hand some time after the

commission of the crimes. Thus, the evidence is sufficient to show that the

defendant was reckless in his actions, knowingly participated in the robbery, and

acted recklessly in regard to the victims. The evidence is also sufficient to show that

the killings were not independent from the robbery and were a natural and probable

consequence arising from the events. In our view, a rational trier of fact could have

found the defendant guilty beyond a reasonable doubt.



                                           III

              Next, the defendant contends that the trial court erred by failing to

instruct the jury on the foreseeability or proximate cause requirement for felony

murder. In other words, in order for the jury to find the defendant guilty of felony

murder, they also must find that the killings were reasonably foreseeable to the

defendant, not simply conceivable. The state argues that the trial court is not

required to instruct the jury as to foreseeability or proximate cause, citing

Middlebrooks. Rather, for a conviction of first-degree murder during the commission

of a felony, the state contends that the statute “only requires that the murder be

‘committed in the perpetration of’ [the felony].” (citing Middlebrooks, 840 S.W.2d at


                                           18
332). The state also points out that the defendant has waived this issue by failing to

request special jury instructions. See State v. Foster, 755 S.W.2d 846, 848 (Tenn.

Crim. App. 1988). We hold that the jury instructions here were incomplete, but find

the error to be harmless.



               The trial judge is under a constitutional obligation to "declare the law"

to the jury in the jury instructions. Tenn. Const., art VI, § 9. The trial judge has a

duty to give a complete charge of the law applicable to the facts of the case. State

v. Harbison, 704 S.W .2d 314, 319 (Tenn. 1986). It is presumed that the jury follows

the instructions of the trial court. State v. Blackmon, 701 S.W.2d 228, 233 (Tenn.

Crim. App. 1985); Klaver v. State, 503 S.W.2d 946 (Tenn. Crim. App. 1973). To

determine if instructions are erroneous, our supreme court advises us to review the

jury charge in its entirety. State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).

A charge causes prejudicial error “if it fails to fairly submit the legal issues or if it

misleads the jury as to the applicable law.” Id. In Hodges, the court quoted the

advisory language of the United States Supreme Court:

               ‘[j]urors do not sit in solitary isolation booths parsing
               instructions for subtle shades of meaning in the same
               way that lawyers might. Differences among them in
               interpretation of instructions may be thrashed out in the
               deliberative process, with commonsense understanding
               of the instructions in the light of all that has taken place
               at the trial likely to prevail over technical hairsplitting.’

Id. (quoting Boyde v. California, 494 U.S. 370, 380-81 (1990)); see also State v. Van

Tran, 864 S.W.2d 465, 479 (Tenn. 1993).



               The jury charge in this case was lengthy. First, the trial court

instructed as to burden of proof and criminal responsibility for conduct of another.

The instructions then covered the statutory elements of all the offenses charged,

including lesser offenses; there followed instructions on the presumption of


                                             19
innocence, reasonable doubt, credibility of and impeaching witnesses, accomplice

as a witness, direct or circumstantial evidence, and the requirement of a unanimous

verdict. As to the indictment for first degree felony murder, the jury was instructed

as follows:

                  Homicide: First degree murder (killing in the perpetration
                  of other crimes)
                    A person who commits first degree murder is guilty of a
                  felony.
                    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 alleged victim was unlawfully killed;
                    (2) that the killing was committed in the perpetration of
                  or the attempt to perpetrate the alleged robbery; that is,
                  that the killing was closely connected to the alleged
                  robbery and was not a separate, distinct and
                  independent event; and
                    (3) that the defendant intended to commit the alleged
                  robbery; and
                    (4) that the killing was the result of a reckless act by the
                  perpetrators of the alleged robbery.
                                                ***
                  When one enters into a scheme with others to commit a
                  robbery and a killing ensues, all perpetrators may be held
                  responsible for the death, regardless of who actually
                  committed the murder and whether the killing was
                  specifically contemplated by the others. As long as the
                  perpetrators intended that the robbery be committed and
                  a killing during the attempt to perpetrate the robbery,
                  each perpetrator is responsible for the murder,
                  regardless of whether he intended for the victim to die or
                  participated in the act of murder. 2

The omission of the natural and probable consequences language of Dupes, a long

standing articulation of the felony murder doctrine in Tennessee and relied upon by

our courts in Brown and Carson, was erroneous. Because we believe that this

instruction “fairly submit[s] the legal issues” to the jury, the error, in our view, is

harmless.




       2
           This language comes directly from Brown, in which the court relied on Dupes.

                                                  20
                                                  IV

                Next, the defendant claims that the trial court erred by admitting

particularly prejudicial photographs which had little or no probative value. The

defendant bases his argument on the fact that he did not contest that deaths or a

robbery occurred. The state contends that the issue is waived because the

defendant failed to identify which photographs were objectionable and also failed to

include the photographs in the record.3 In truth, the defendant has not identified

which photographic exhibits he opposes. None, however, are so prejudicial as to

warrant a new trial.



                The photographs depict the victims Dawson and Johnson prior to their

deaths. The crime scene, including the location of the car and the position of the

victim Johnson where he fell across the street, appears among the photographs.

Photographs of the car’s exterior and interior and the location of bullets found inside

and outside the car are also included.



                The admissibility of photographs is governed by Tenn. R. Evid. 403.

See State v. Banks, 564 S.W.2d 947 (Tenn. 1978). "Although relevant, evidence

may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury ...." Tenn. R. Evid.

403. The evidence must be relevant and its probative value must outweigh any

prejudicial effect. Banks, 564 S.W.2d at 950-51. Whether to admit the photographs

is within the discretionary authority of the trial court and will not be reversed absent

a clear showing of an abuse. State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim.

App. 1993); State v. Allen, 692 S.W.2d 651, 654 (Tenn. Crim. App. 1985).



        3
          The photographs were in the custody of this court as part of a co-defendant’s record. The
state’s argument in this regard is misplaced.

                                                  21
Photographs of homicide victims, while alive, should not be admitted at trial unless

relevant to a material issue; however, such an error is almost always harmless.

See, e.g., State v. Dicks, 615 S.W.2d 126 (Tenn. 1981); State v. Strouth, 620

S.W.2d 467 (Tenn. 1981).



              In our view, most of the photographs had adequate probative value to

justify admission. The photographs helped support the state's theory that a robbery

occurred and that the victims in the car were unarmed when they were attacked.

None of the photographs were particularly bloody or gruesome. As for the

photographs of the deceased victims prior to their deaths, “it would have been better

had the ‘before’ picture of [the victim] been excluded since it added little or nothing

to the sum total of knowledge of the jury.” See State v. Christopher S. Beckham,

C.C.A. #02C01-9406-CR-00107, slip op. at 19-20 (Tenn. Crim. App., at Jackson,

Sept. 27, 1995) (remanded for sentencing) (quoting Dicks, 615 S.W.2d at 128)

(alterations in original). In Beckham, where photographs of the deceased victim

prior to death were admitted, this court recognized that the “evidence appears to

have been offered by the prosecution for the sole purpose of invoking the sympathy

of the jury.” Beckham, slip op. at 20. Nonetheless, in context of the record as a

whole, the error was found to be harmless. Id. We reach the same conclusion

here. Although the photographs of the victims prior to their deaths should not have

been admitted, we cannot say that the trial court so abused its discretion by their

admission so as to have affected the verdict.



                                           V

              The first witnesses to give testimony were the mothers of the victims.

Ms. Hudson testified that she last saw her son alive as she dropped him off at his

infant son’s home. She also testified about her son’s burial. Ms. Dawson testified


                                           22
that her son excelled at sports and that she had last seen her son alive that morning

after his return from football practice. She implied that her son had attended church

on Easter Sunday prior to his death. Both women were upset by these

circumstances. The trial court, in overruling defense counsel’s repeated objections,

observed that “[Ms. Johnson]’s not giving a particularly graphic display of emotion.

It’s not unusual for what we’re confronted with here today.” “[I]n the Court’s opinion,

[Ms. Dawson] is not being any more or less emotional than is typical under the

circumstances for a general corpus witness in a homicide case. ... She’s not being

hysterical.” The defendant argues that this testimony was totally irrelevant, was

introduced solely to impassion the jury, and qualified as an abuse of the trial court’s

discretion. The state contends that any error was harmless. We must agree with

the state.



              Under our rules, evidence is relevant if it has a “tendency to make the

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

probable or less probable than it would be without the evidence.” Tenn. R. Evid.

401. In general, all relevant evidence is admissible; however, evidence, “[a]lthough

relevant, ... may be excluded if its probative value is substantially 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 evidence.” Tenn. R. Evid. 402, 403.



              Ms. Dawson’s testimony about her son’s athletic ability, the implication

that he attended church the previous Sunday morning, and the location of his burial

were not relevant to any issue before the court and should have been excluded.

Likewise, Ms. Hudson’s testimony regarding her grandson, the victim’s infant son, as

well as the place of her son’s internment were also irrelevant and should not have


                                          23
been admitted, particularly during the guilt phase of the trial. In our review of

relevant case law, however, we have found none which mandate a reversal. “A final

judgment from which relief is available and otherwise appropriate shall not be set

aside unless, considering the whole record, error involving a substantial right more

probably than not affected the judgment or would result in prejudice to the judicial

process.” Tenn. R. App. P. 36(b). Although the testimony of the victims’ mothers

was irrelevant, it was harmless and did not affect the judgment.



                                           VI

              The defense proffered Joe Terre, a former teacher of the defendant,

as character witness. After a jury out hearing, the trial court ruled that if the defense

asked Terre about the defendant’s reputation for peace and quietude, cross-

examination would be permitted as to his knowledge of the defendant’s 1986 arrest

and charge for aggravated rape. If the defense inquired about the defendant’s

reputation for honesty, then cross-examination would be permitted as to the

defendant’s 1985 shoplifting charge, and a 1989 conviction for grand larceny. The

defendant argues that the rape charge was too remote and unsubstantiated to

justify admitting it on cross examination. In addition, the defense argues that the

prior arrest for aggravated rape is highly prejudicial.



              In State v. Sims, 746 S.W.2d 191 (Tenn. 1988), our supreme court

made the following observation:

              The State asserts that the cross-examination of the
              defendant’s character witnesses as to her prior arrests,
              which did not result in convictions, was proper. The
              general rule in the majority of jurisdictions supports this
              type of questioning for this specific purpose. Our case
              law would appear to permit such questions after proper
              scrutiny, limitation, and instruction by the trial court. See
              State v. Badgett, [693 S.W.2d 917 (Tenn. Crim. App.
              1985)]. The potential for prejudice in allowing such
              cross-examination, however, is great; and the rule seems

                                           24
              to be regarded as [a] necessary evil by many of the
              courts that follow it.

              Such examination must be accompanied by an
              appropriate limiting instruction to the jury. The arrest
              should also involve an act or crime relevant to the
              character trait at issue.

Id. at 198. Furthermore, there is no special rule for juvenile arrests; therefore, on

cross-examination, the state may inquire as to the witness’ knowledge of any

juvenile arrests of the defendant so long as the arrest is relevant to the character

trait. Stepheny v. State, 570 S.W.2d 356, 359 (Tenn. Crim. App. 1978).



              Although Sims and Stepheny predated the adoption of the Tennessee

Rules of Evidence, nothing in the new rules indicates a change in the policy

regarding prior juvenile arrests. Rule 405, Tenn. R. Evid., governs in this instance:

              (a) Reputation or Opinion.--In all cases in which evidence
              of character or a trait of character of a person is
              admissible, proof may be made by testimony as to
              reputation or by testimony in the form of an opinion.
              After application to the court, inquiry on cross-
              examination is allowable into relevant specific instances
              of conduct. The conditions which must be satisfied
              before allowing inquiry on cross-examination about
              specific instances of conduct are:

               (1) The court upon request must hold a hearing outside
              the jury's presence,

               (2) The court must determine that a reasonable factual
              basis exists for the inquiry, and

                (3) The court must determine that the probative value of
              a specific instance of conduct on the character witness’
              credibility outweighs its prejudicial effect on substantive
              issues.

The Advisory Commission Comments acknowledge that the witness may be asked

about “rumored arrests and charges concerning the defendant. ...” Potential danger

of misuse by the prosecution is the basis for the procedural guidelines set out in

Rule 405. The trial court here complied with that procedure. The prior arrest for

aggravated rape was probative of the defendant’s character for peace and quietude.

                                           25
Although the arrest occurred six years before the instant offense, we cannot say it

was too remote to relate to the defendant’s reputation. See State v. Fry, 35 S.W.

883 (Tenn. 1896) (evidence from six years previous not too remote). Furthermore,

there was no evidence here that the arrest had been expunged. See Sims, 746

S.W.2d at 199. On this record, we find no error.



                                         VII

              The defendant challenges the imposition of consecutive sentences.

The state has conceded that the defendant’s convictions for attempted felony

murder are void. As all consecutive sentences are disposed, we need not address

this issue.



              The judgment of the trial court is dismissed as to the attempted felony

murder convictions. The convictions for felony murder are affirmed.




                                         26
                                __________________________________
                                Gary R. Wade, Judge

CONCUR:



_________________________________
John H. Peay, Judge



__________________________________
Thomas T. Woodall, Judge




                                27
