# FILED
December 12, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE OCTOBER 1997 SESSION

STATE OF TENN ESSEE, ) ) NO. 01C01-9701-CC-00004 Appellee, ) ) MAURY COUNTY VS. ) ) HON. J A MES L. WEATHERFORD , WILLIAM EDWARD WA TKINS ) JUDGE and JONATHA

N DAVIS, ) ) (Felony Murder and Appellants. ) Attempt ed Aggravat ed Robbe ry)

FOR APPELLANT WA TKINS : SHARA ANN FLA

CY (at trial) District Public Defender WILLIAM C. B RIGHT (at trial) 209 W. Madison Street P.O. Box 1208 Pulaski, TN 38478-1208 JOHN E. HERBISON (o n appeal) 2016 Eighth Avenue South Nashville, TN 37204 FOR APPELLA

NT DAVIS : DICK CLAR K (at trial) 3354 Perimeter Hill Dr

ive, Suite 112 Nashville, TN 37211 GUY R. DOTSON (at

trial) 102 S. Maple Street Murfreesboro, TN 37130-3530 GARY M. HO

WELL (on appeal) P.O. Box 442 Columbia, TN 38402-0442 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter ELIZABETH B . MARNEY Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 T. MICHAEL BOTTOMS District Attorney General ROBERT C. SANDERS Assistant

DistrictAttorney

General 10 Public Square P.O. Box 1619 Columbia, TN 38402-1619

OPINION FI LED:
AFFIRMED JOE G. RILEY, JUDGE1 Defendant Davi s’ name is also spe

lled “Jonathon” in va

rious court docume

nts. 2 OPINION

The defendants, William Edward Watkins and Jonathan Davis, 1 appeal jury convictions for one (1) count of attempted aggravated r obbery and two (2) counts of first degreefelony murder.Both defe ndants w ere sent enced to lifeimprisonment foreach count of felony murd e r and three (3) years for the attempted aggravated robbery. The trial court ordered that the sentences run consecutively. On appeal, Watk ins prese nts the f ollowing iss ues for o ur review: (1) whether

there was a fatal variance in the indi ctment and proof as to the name of the victim of the attempted aggravated robbery; (2) whether

the trial court erred in admitting his post-arrest statement after an illegal ar rest; (3) whether

the trial court erred in denying defendant’s motion to sever defendants; (4) whether

the trial court erred i n failing to instruct the jury on second degree murder as a lesser included offense of felony murder; and (5) whether

the tr ial c ourt erre d in impos ing conse cutive sentences. Davis joins in the severance and sentencing issues and raises three fur ther issues forour consideration: (1) whether the trial cour t erred in accepting his transfer from juvenile court to be tried as an adult; (2) whether the trial court erred in admitting his p ost-arr est statement; and (3) whether the evidence was sufficient to support a finding that he was sane at the time of the off enses. We affirm the judgment of the trial court.

FACTS

On March 28, 1994, W atkins borrowed a gun from Lamont Orr. He met
some friends at Columbia Gardens Apartments, and th ey began discussi ng a proposed plan to rob theRichland Inn. Davis approached the g roup and agreed to3

rob the Richland Inn. Watkins gave Davis the .22 cal iber handgun and a ski mask, and they both walked towards the motel. The others in the group decid ed that they did not want to partici pate in any criminal activity and stayed behind. Elwood Sinson, a guest at the Ric hland Inn, wa s meeting a business associate in his room on the ground floor. As he was wa iting for his associate to open the door, he saw Davi s jump from a brick wall on the side of the parkin g lot and walk towards him . Davis quickened h is speed and aimed the gun at Si nson and said, “your money

or your life.”

Sinson was able to ge t inside the motel room before Davis could do anything further. After the failed robbery attempt at the Ri chland In n, Watkins and Davis decided to rob Lamont Orr. They went to Orr’s trailer, where he lived with his girlfriend, Elizabeth Smith. Orr left with them when Watkins and Davis told him that they wer e going to participate in a cocaine transaction. Orr drove Watkins and Davis to the parki ng lot of Brown’s School. Upon arrival at the parking lot, Davis without any provocation shot O rr in thehead. Orr was also s hot a second time in the head and died as a result of these wounds. Although Orr was seen w ith 15-20 rocks of crack cocaine earlier that day, no drugs were found on his person after his death. Because Smith had seen Orr leave wi th them, Watkins and Davis returned to the trailer. Smith w

as fatally shot once in the he ad. Earlier that eveni ng, Smith
was seen with $ 100. No m oney w as found at the trailer after the homic ide, and there was also evidence that some cocaine was missing from the trailer. Davis was subsequently seen we

aring rings wh ich he claimed he had taken from Smith. Watkins was arrested two days later on an unrelated forgery char ge. After being questioned on the murders, Watkins gave a statement implicating hims elf and Davis in the attempted robbery of Sins on and th e hom icides of Orr and Smith. Davis subsequently confessed to the crimes as well.

After a joint jury trial, both defendants were convic ted of one (1) count of attempted aggravated robbery and two (2) counts

of first degree felony murder. For4

both defendants, the trial court imposed consecutive sentenc es of life imprisonment f or each count of felony murder and thr ee (3) years for attempted aggravate d robbery. From these convictions and sentences, defendant s bring this appeal.

WATKINS - FA

TAL VARIANCE IN THE INDICTMENT A ND PROOF

Watkins contends that the evid ence of the victim’s name at trial differs substantial lyfrom that alleged in the indic tment, and the variance is fatal . The indictment

alleged that the victim of the attempted aggravated r obbery was

“ Edward Sensor.” At trial, the state presented proof that the victim ’s name wa s actually“Elwood Sinson.” The state announced prior to Sinson’s testimony that his name was incorrectly

listed on the indictment. N either defendant objected. This issue was not presente d in Watkins’ motion for new trial. This fa ilure waives appellat e review. Tenn. R. App. P. 3(e); see State v. Walker , 910 S.W.2d 381, 386 (Tenn. 1995). Nevertheless, this issue is without merit. In order for a variance between the indictment

and the proof to be fatal, the vari ance must be both material and prejudicial to the defendant. State v. Mayes , 854 S.W.2d 638, 640-41 (Tenn. 1993); State v. Moss , 662 S.W.2d 590, 592 (Tenn. 1984 ). A variance is not material “where the allegations and proof substantially correspond, the varia nce is n ot of a character

which could have mis led the d efen dant at trial and is not suc h as to deprive the accused of his right to be protected against another prosecution for the
same offense.” State v. Moss , 662 S.W.2d at 592. The defendant has failed to demonstrate that the variance between the indictment and the proof was material. Moreover, defendant has not show n that he was prejudiced by the discrepancy in the victim’s name.

WATKINS - ADMISSION OF STA TEMENT

In his next assignment of error, Watki ns claims that the trial court erred in2 Wedo n ot i mpl y that an arrest of a defendant, pursuant to an arrest warrant, that

occurs within another person’s res idence, without a search warrant, is illeg

al as to the arrested defendant
. Steagald

concerned the rights of

the residential owner , not the arrested person. An arrest warr

ant alone is

sufficient to enter the dwelling in which the suspect lives whenthere isreason to believe he is present. Payton v. New York , 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L. Ed 2d 639 (1980). We also note

the issue of

consent to enter the premises was not litigated during the motion to suppress. Therecord implies that the police were given consent to enter the home of Watkins’ grandmother. 5 admitting his po st-arrest statement into evidence at tr ial. He asserts that he w as illegally arrested in his grandmother’s home without a search warrant. See Steagald
v. United States , 451 U.S. 204, 101 S.Ct. 1642, 68 L. Ed.2d 38 (1981). Therefore, he urges that his confession was “fruit of the poisonous tree” and should hav e been suppressed. In a pre-trial hearing , Watkins moved to suppress his statement on the ground that he was illegally arrested without an arrest warrant. After he presented his evidence in favor of the motion to suppress, defense counsel ack nowledged that there was an arrest warrant, withdr ew his Fourth Amend m ent ground and proceeded on whether or not the confessi on was voluntary. The need for a search warrant was not r

aised in the trial court

. Watkins did not raise this iss ue in his moti on for new trial. Therefore, the issue is waived. Tenn. R. App. P. 3(e). Moreover, the abandonment of the issue in the motion to suppress would ser ve as a waiver of the issue as well. 2 See Tenn. R. App. P. 36(a). This issue has been waiv ed.

WATKINS AND DA

VIS - SEVERANCE OF DEFENDANTS

Watkins and Davis both contend that the trial court e rred in den ying their respecti ve motions to sever their trials. Each defendant claims that he was prejudiced by the admission of his codefendan t’s post-arrest statement at trial. Before the state pre sented its proof, the trial court deter mined that the confession of each defendant would be admissible at t rial. However,the trial court,6

under the auth ority

of State v. Porterfield , 746 S.W.2d 441, 446 (Tenn. 1988), ruled that portions of each statement which exposed the other defendant to an increased risk of conviction should be redacted. Nevertheless, the redacted versions of each defendant’s statement admitted at trial still implicated the other d efendant in the crimes. A. Tenn. R. Crim. P. 14(c) gov erns the gr anting or denial of a sever ance of defendants. The decision as to whether or not to g rant a severance is le ft to the sound discretion of the

trial judge, and this decision will not be disturbed unless the defendant is unfairly or

unduly prejudiced. See State v. Coleman , 619 S.W.2d 112, 116 (Tenn. 1981); State v. Woods , 806 S.W.2d 205, 21 1 (Tenn. Crim. App. 1990); State v. Kyger , 787 S.W.2d 13, 20 (Tenn. Crim. App. 1989); State v. Hodgkinson , 778 S.W.2d 54, 61 (Tenn. Crim. App. 1989); State v. Wiseman , 643 S.W.2d 354, 362 (Tenn. Crim. App. 1982). Stated in another manne r, a tria l court will not be found to have abused its discretion in denying a severance unless “the defendant
was clearly prejudiced to the point that the trial c ourt’s discretion e nded an d the granting of [a] severance became a judicial duty.” State v. Burton , 751 S.W.2d 440, 447 (Tenn. Crim. Ap p. 1988) (quotin g Hunter v. State , 222 Tenn. 672, 682, 440 S.W.2d 1, 6 (1969)). B. In Bruton v. United States , 39 1 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court held that a n inculpa tory confession of a nontestify ing codefendant is not admissible in a joint trial w ith a defendant who has not confessed his participation in the cr ime. In a later decision, a plurality of

the Court held that an “interlocking” confession of a nontestifyin g code fendant with proper limiti ng instructions

would not offend the defendant’s rig hts under theSixth and Fourteenth Amendments to the United States Constitution. Parker v. Randolph , 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979). The ruling in Parker

v. Randolph based upon “interlocking” c onfessions was later undercut by the Court’s decision in Cruz v. New York , 481 U.S. 186, 107 S.Ct.3 See Lee v. Il linois , 476 U .S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 ( 1986), as to evidence direc

tly admissible

against the def

endant.
4 See Lee v. Il

linois , supra . 7 1714, 95 L.Ed.2d 162 (1987). In Cruz , the Court held thatthe Confrontation Clause of the Sixth Amendment bars the admi ssion, in a joint cr iminal trial, of a nontestifyingcodefendant’s c onfession which incriminates the defendant an d which is not directly admissibl e against the defendant. 3 481 U.S. at 193. This is true even if the jury is instr

ucted not to consider the codefen dant’s c onfession against the defendant, and even if the defendant’s own c onfession is admitted against him. Id

. However, a defendant’ s c onfession may be considered at t rial in order to assess “whether his codefendant’s statements are supported by sufficient ‘indicia of reliability’ to be directly admissibl e against him (assuming the ‘unavailability ’ of the codefendant) despite the lack of opportunity for cr oss-examination” 4 and “ may be considered on appeal in asses sing whether any C

onfrontation Clause violati on was harmless .” Id . at 194 (emphasis added). This holding was foll owe d by our SupremeCourt in State v. Porterfield , 746 S.W.2d at 446, an d this Court in State v. Cameron , 909 S.W.2d 836, 85 2-53 (Tenn. Crim. App. 1995). In the case sub judice , the trial court erred in admitting those portions of the statementof each defendant that implicated the other defendan t in the crimes. However, when each defendant’s confession i s viewedby itself in conjunction w

ith the other e vidence presented, excluding th e codefendant’s confession, the evidence of guilt as to each defendant is o verwhelming. We, the refore , conclude that the Bruton error was harmless

. See State v. Porterfield , 74 6 S.W.2d at 446; State v. Cameron , 909 S.W.2d at 853; T enn. R. App. P. 36(b). C. Watkins further contends that Davis’ confession was inadmissible because it was hearsay, and no hear say exception applies . This issue was not pr esented in the motion for new trial and is waived. Tenn. R.App. P. 3(e). Furthermore, as stated above, its admissi on was harmless as to Watkins. Tenn. R. App. P. 36 (b). D.8 Watkins argues that he was furt her pr ejudiced because the trial court’s redac tions of his statement violated the r ule of completeness. See State v

. Robinson , 622 S.W.2d 62,71 (T enn. Crim. App. 1981). After a review of the entire statement, we find that Watki ns has not shown how “ fairness” required the admission of his entire statement. See Tenn. R. Evid. 106. There is nothing in the excluded portions of Watkins’ statem ent which would mitigate his involvement in the crimes. Furthermore, the j ury was not misled a s to his involvement in the crimes. In short, he has not demonstrated how he was prejudiced by the redactions. At most, this was harmless errror. See State v. Robinson , 622 S.W.2d at 71.

E. In support of his contention that the trial court erred in d enying the motion to
sever the defendants, Davis also arg ues that relevant portions of his statement were redacted. He also claims that he w as prejudi ced by the i ntroduction of evidence that Watkins had escape d from jail. Defendant has failed to make appropriate referenc es to the record and has failed to cite authority to support his argument. Therefore, this issue is wa ived. Tenn. Crim. App. Rule 10(b); State v. Turner , 919 S.W.2d 34 6, 358 (Tenn. Crim

. App. 1995); State v. Hill , 875 S.W.2d 278, 283-84 (Tenn. Crim. App. 1993); State
v. Killebrew , 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988); see also Tenn. R. App. P. 27(a)(7) and (g). Furthermore, defendant has not shown how he was prejudiced by these alleged errors.

WATKINS - FA

ILURE TO INSTRUCT

ON SECOND DEGREE MU RDER

Watkins assert

s that th e trial

court e rred in

fa iling to in struct the jury on second degree murder. He maintains that second degree murder is a le sser grade of felony murder pursuant to State v. Trusty , 919 S.W.2d 305 (Te nn. 1996). He claims that the trial court had a manda tory duty to charg e the jury on lesser grades
or classes of the charged offense as supported by the evi dence, without any9

request by the defendant to do so. See Tenn. Code Ann. § 40-18-110(a). Therefore, he insists that the failure to c harg e the jury on second degr ee murder warrants a reversal and a new trial. This issu e was not presented to the trial court in the motion for new trial. Therefore, the issue is waived. Tenn. R. App. P. 3(e).

DAVIS - ACCEPTA

NCE FOR TRIAL AS A DULT

Davis claims that the trial court erred in accepting his transfer from juvenile court to be tried as an adult. He arg ues that he sufficiently rais ed the issue of

his mental illness. He maintains that once the iss ue of mental illness is rais ed, the state must prove that the defendant is not committable to an institution. He urg es that the state did no t carry its burden; therefore, he should have been tried as a juvenile. A juvenile may be transferred from juvenile court to be tried as an adult if the court finds that there are reasonable grounds to believe that:(1) the child committed the delinquent act; (2)the child is “not committabl e to an institution for the mentally retarded or

mentally ill”; and (

3) “the interests of the

community require that the child be put under legal restraint or discipline.” Tenn. Code Ann. § 37-1-134(a)(4). At the acceptance hearing conducted pursuant to Tenn. Code Ann. § 37-1- 159(d), both the state and Davis presented psychological proof. The state’s expert testified that he saw no evidence that Davis was mental ly retarded or suffered from mental illness. The defense expert diagnosed Davis with situational depression and described him as having “paranoi d tendencies.” Howev er, the defen se e xpert further testified that she found that Dav is was not committable to an institution for the mentally retarded or mentally ill. The trial court specifically found that Davis was not “su ffering from mental illness and he’s not subject to com mitmen t to any institution.” We find that the record supports the findings of the tr ial court that Davis

was not committable. Moreover, the trial court foundan d the record supports that Davis committed the10

“delinquent

act as alleged,” and th at the i nterests of the community req uired that Davis be put under legal restraint or discipline. The tria l court properly accepted Davis to be tried as an

adult. This issue is without merit.

DAVIS - ADMISSION OF STA TEMENT

Davis next claims that the tri al court er re d in allowing his post-arrest statementto be introduced at trial. He b ases this argument on two premises: (1) his statementwas taken in viol ation of Tenn. R. Juv. P. 7(d), and (2) he did not knowingly and v

oluntarily waiv

e his rights due to his

mental state. A. Rule 7(d) of the T ennessee Rules of Juvenile Procedure provides, in pertinent part: If feasible, a parent or guardi an should be present during questionin g. In anyevent, no child havin g been placed in and present in a detention facility shall be interrogated concerning an alleged violation of law unless the child intelligently w aives in writi ng the right to remain silent. Davis contends that his parents were at the poli ce stat ion while he was bei ng questioned, but the officers would not allow him to see his parents. However, it is well-settl ed that the failure to follow this rule will not exclude the intr oductio n of a

validly obtained co nfession in a trial in cr iminal court. Coyler
v. State , 577 S.W.2d 460, 463 (Tenn. 19 7 9); State v. Turnmire , 762 S.W.2d 893, 896-97 (Tenn. Crim. App. 1988); State v. Walker , 729 S.W.2d 272, 274 (Ten n. Crim. App. 1986); see also Raybin, Tennessee Criminal Practice and Procedure

§ 8.12 (1984). Therefore, the only i nquiry becomes wheth er the confession was

the result of a knowing and intelligent waiver of Davis’ constitutional rights

. See State v. Lundy , 808 S.W.2d 444, 44 6 (Tenn. 1991). B. The record of thesuppression hearing is sparse. Neither the defendant nor the officer who took the

confession testified. The only persons who actually testified11

were a clinical psychol ogist, defendant’s mother and de fendant’s step-father. However, other document ation was admitted into ev idence. Davis was two (2) months shy of his eighteenth bir thday when he

was taken into custody and interrogated. The subject s of the su ppressio n hearing were two (2) separate confess ions by Davi s; namel y, a written confession taken at 6:47 p.m. on March 30, 1994, and a tape recorded confessio n beginning at 8:14 p.m. that
same day and ending at 8:35 p.m. There is no is su e as to Davis having been advised of his constitutional rig hts. The issue is whether Davis’ mental state prevente d his conf ession f rom bein g voluntar y. A clinical psycholog ist, who evaluated Davis in August 1995, so me one and one-half (11⁄2) years after the c onfession, opi ned that D avis was a paranoid schizophrenic f unctionin g in the low average range of overall intelligence. He further opined that Davis had ser ious rel ation ship problems and conflict w ith authorit y; was suggestible, gullible and confused; had a learning disability; suffered from delusions and hall ucinations; lacked emotional self-control; and was di strustf ul

. In an atmosphere of interrogation,the psychologist beli eved Davis woul d be fearful of being exploited and w ould have a desire to

escape the situation. In light of Davis’ mental capabilities, the psy chologist did not believ e Davis would under

stand the consequences of confessing and w aiving his constitutional rights. Also admitted at the suppression hearing were the results

of an evaluation of Davis performed by the F orensic Services D ivision of Middle Tennessee Mental Health Institute in March 1995, approxi mately one (1) year after the confession. As
a result of this evaluation, Davis was found capable of adequately defending himself in a court of law in that he unde rstood the charges against him and possible consequencesand was able to advise counsel and participate in his own defense. The ev aluation concluded that a defense of insan ity could not be supported and , further, that Davis did not meet the standards for commitment to a mental heal th institute. Documentation was also introduced r elating toan evaluation performed on May 25, 1994, by The Adolescent Cente r of the Children and Yo uth Programs of12

Middle Te nnes see Mental Health Institute . This evaluation was performed approximately two (2) months after the confession. Davis was found to be alert and oriented, yet suffered from paranoid thoughts and was suspicious of others. His full scale IQ was 92, which placed him within the average range of intelligence. He read at a 12.9 grade level and did math at

a 6th grade level. H e was thought to be
a risk of harm to himself and others; howev er, he did not meet standards for commitment to an institution for the men tally ill. Defendant’s mother testified that Davis appeared to be in “a state of sho ck” and “in a daze” wh en she sa w him at the poli ce station on the night of the interrogation. She did not belie ve he understoo d what he was doing. Davis’ step-father testified that he and his wife were allow ed to talk toDavis
a t the police station. Dav is was able to relate to them what had h appened an d understood why hewas there. Davis appeared to be nervous, but the step-father did not see anything particularly wrong with him on that occasio n. The written confession w as in the handwriting

of Davis. It is conc ise, understandable and details the bas ic facts relating to the ho micides. Likewise, the tape recor ded statementof Davis gives a very clear, detai led accounting of the attempted robbery and the two (2) homicides . There is nothing in the stateme nt to indicate t hat Davis did not un derstand what he was doing.

At the conclusion of the hearing on the mot ion to suppress, the trial court found that the confessions were freel y, voluntarily

and understandingly made. The motion to suppress was ov erruled. C. The trial court’s deter mination at the suppression hear ing that the confe ssions we re voluntary is pr esumptively correc

t on appeal. State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994). This determination is conclus ive unless the evidence in the recor d preponderates against that fin ding. State v. Smith , 933 S.W.2d 450, 455 (Tenn. 1996); State v. Kelly , 60 3 S.W.2d 726, 729 (Tenn. 1980).13 The te st o f voluntariness for confessions under Article I, § 9 of the Tennessee Constitution is broad and more protective of indiv idual rights than under the Fifth Amendment to the United States Constitution. State v. Stephenson , 878 S.W.2d at 544. In Tennessee, the particul ar circumstances of each case mus t be exami ned as a whole

. State v. Smith , 933 S.W.2d at 455; Monts v. State , 218 Tenn. 31, 400 S.W.2d 722, 733 (1966). The fact that on e suffers from certain mental deficiencies does not necessar ily prevent t hat per son from understanding and waiving consti

tutional rights. See generally, State v. Middlebrooks , 840 S.W.2d 317, 327 (Tenn. 1992); IV Wharton’s Criminal Ev id ence § 643, p. 169 (14th ed. 1987). D. After a careful examinationof th e record, we conclude that the evidence does not prepon derat e against the trial court’s findings that the confessions were voluntarily gi

ven. Certainly, the testimony suggests that Davis indeed had certain mental defi cien cies; however, these deficiencies do not establish that his confessions were invol untary. This issue is without merit.

DAVIS - SANITY

In his next assignment of err or, D avis challenges the s ufficiency of the evidence regarding his sanity. He argues that the state di d not prove beyond a reasonable doubt that he was sane at the time o f the commission of the offenses. A. At the time of the commission of these offenses, i nsanity was a defense to prosecution if “at the time of such conduct, as a result of mental disease or defect, the [defendant] lacked substantial capacity either to appreciate the wrongfulness of [his or her] conduct or to conform th at conduct to th e requirem e nts of the law.”5 Tenn. Code Ann. § 39-11-501 was amended in 1995 to make insanity an affirmative defense requiring clear and convincing evidence. The test for insanity was also modified. 14 Tenn. Code Ann. § 39-11-501(a)(1991). 5 There was a presumption, rebuttable in nature, that the defendantin a criminal proceeding was sane. State v. Jackson , 890 S.W.2d 436, 440 (Tenn. 1994). The defendant had the ini tial burden of showing that sanity was an iss ue. State v. Sparks , 891 S. W.2d 607 , 615 (Tenn. 1995). However, if evidence was adduced dur ing trial which raised a reasonable doubt as to the defendant’s sani ty, t hen sanity of the defendant became an element of the crimewhi ch the st ate had to prove beyond a r easonable doubt. Id . at 615-16 (quoting Graham v. State , 547 S.W.2d 531, 54 4 (Tenn. 1977)). In order to prove sanity, the state was requi red to prove: (1) the defendantwas not “sufferin g from a mental illness at

the time of the commission of the crime,” or (2) the illness proved did not “prevent his knowing the wrongfulness of the act” and did n ot “r ender him substantially incapable of conforming his conduct to the requir ements of the law heis charged with violating .” State v. Jackson , 890 S.W .2d at 440 (quot ing State v. Cl ayt on , 656 S. W.2d 344, 351 (Tenn. 1983)).

B. At the conclusion of the state’s proof, Davis present ed eviden ce from t wo psychologists

and a licensed counselor. Pa t Fitzpatrick, a cou nselor at the Chattanooga Counseling Clinic, testifie d that Davis was extremely paranoid. Dr. Alden Kline, a licensed clini cal psychologist, described Davis as “ actively ps

ych otic,” anxious, tense, paranoid and experiencing auditor y and visual hallucinations. Dr. Kline dia gnos ed him with a “schiz ophrenic reaction, a paranoi d type.” Dr. Kline concluded that Davis’ schizophrenia would have impaired his judgment. Dr. Kenneth Anchor, a psychologi st, also diagnosed Dav is as a p aran oid schizophrenic, characterizedby hallucinations and delusions. Dr. Anchor further testified that th is mental illness was such as to prevent Davis from knowing the wrongfulness of his15

actions and rendered him incapable of conforming his c onduct to the requirements of the la w. On rebutta l, the sta te presen ted test imony from Dr. Amen Azema. He testified that Davis w

as not suffering from mental illness, and an insan ity defense could not be sup ported. Specific ally, Dr. Azema stated that Davis could appreciate the wrongfulness of his behav ior and could conform his behav ior to society and the law. He testified that Dr. Anchor relied upon invalid test results for his diagnosis. Lynn Daniels, a licensed clinical social worker, found no evidence that Davis
was experiencing any thought disorder. Dr. P a lmeda Taylor testified that she conducted a personality inventory test on Davis to determine if he was suffering from a mental dis ease. H er results were inv alid in that she found Davis was “making a conscience [sic] attempt to impress poorly, or . . . to ‘fake bad.’” C. Once Davis and the state had presented their proof, the iss ue of sanity was
a question for the ju ry to deter mine. Th ey w ere able t o weigh and assess the credibility of the ex

pert witnesses onboth sides. The jury wa s properly instruct

ed
on the in sa ni ty

defe ns e. We find that the evidence supports the jury’s finding that Davis was sane at the time of the commission of the off enses. This issue is without merit.

WATKINS AND DA

VIS - CONSECUTIVE SENTENCING

Both defendants conten d that the trial court erred in ordering that their sentences run consecutively. Davis claims that the trial court improperl

y relied upon enhancementfactors submitted by the state. Watkins argues tha t the court did not give proper considerationto consecutive sentencing criteria as

outlined by State v. Wilkerson , 905 S.W.2d 933 (Te nn. 1995). A. This Court’s review of the sentences imposed by the trial c ourt is de novo with a presumption of correctness . Tenn. Code Ann. § 40-35-401(d). This16

presumption is conditioned upon an affirmativ e showing in the reco rd that the trial judge considered the sentencing principles and all rel evant facts and circumstan ces. State v. A shby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden is upon the appealing party

to show that the sentence is improper. Tenn. Code Ann. § 40-35- 401(d) Sentencing Commission Comments. Consecu tive sentencing is gov erned by Tenn. Code Ann . § 40-35-115. A court may order sentences to ru n con secutivel y if the co urt find s by a preponderance of the eviden ce that one or mo re of th e required statutory criteria exist. State v. Black , 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Furthermore, the court is required to determine whether the consecutive sentences (1) are reasonably related to the severity of the offenses committed; (2) serve t o protect the public from further

criminal conduct by the offender; and (3) are congruent w ith the general principles of sent encing. State v. Wilkerson , 905 S.W.2d at 939.

B. The trial court found that both defendants were dangerous offenders “whose behavior indicates little or no regard for human life, an d no he sitation about committing a crime

in whi ch the r

isk to h uman life

is high.” Tenn. Code

Ann. § 40- 35-115(b)(4). We agree. Our de novo

review further indicates that co nsecutiv e sentencing is necessary to protect the public from further criminal cond uct by both defendants. We also find that the sentences are c ongruent with the general principles of sentencing. Although the trial cour t did not make the f indin gs required by Wilkerson , we find that these factors are presentunder our pow er of de novo review. State v. Adams , 859 S.W.2d 359 (Tenn. Crim. App. 199 3). Conse cutive sentencing is appropriat e. This issue is without merit.

CONCLUSION
For the foregoing reasons , the judgment of the trial cour t is affirmed.17 JOE G. RILEY, JUDGE

CONCUR:

JOE B. JONES, PRESIDING JU DGE

WILLIAM M. B

ARKER, JUDG E