### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE February 26, 2002 S ession
STATE OF TENNESSEE v. LAVAY A DEMOND LEE
Appeal from the Criminal Court for Hamilton County Nos. 220674 & 220676 Douglas A. Meyer, Judge

No. E2001-00053-CCA-R3-CD August 5, 2002

The defendant, Lavaya Demond Lee, appeals from his jury convictions of premeditated first-degree murder, first-degree felony murder, and especially aggravated robbery in t he Hamilton County Circuit Court. He received

a life sentence for the

merged murder conviction and a consecutive 20- year sentence for es

pecially aggrav

ated robbery. On

appeal, he compl

ains o f evide ntiary errors, juryinstruction errors, and er

ror in imposin g consecutive sentences. We affirm the convictions; however,
we vacate the order imposing consecutive sentencing and impose the 20-year senten ce to r un concurrently with the life sentence. Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part, Reversed in Part.

J AMES C URWOOD W ITT , J R ., J., delivered the opinio n of the court, in which J ERRY L. S MITH and R OBERT W. W EDEMEYER , JJ., joined. John Allen Brooks, Chattanooga, Tennessee, for the Appellant, Lavaya Demond Lee.

Paul G. Summers, Attorney General & Repor ter ; Mark A. Fulks, Assis tant Attorney Gen

eral; William H. Cox, District Attorney Gen eral; and Rodney C. Strong, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION Roy M. Hunter

was shot and killed outside his Chattanooga business establishment
on the evening of December 9, 1997. Mr. Hunter’s business, Hunter Transport Company, was locatedon Long Street, ac ross from a socia

l establishme

nt v ariously known as Long Street Confectionery or Skeezer’s Lounge. Earlier that day, Mr. Hunter had delive red a trailer to

Newport, Tennessee, and he returned some time between 10:30

p.m. and 11:00 p.m.

He parked his tractor cab
on the street, unlocked the business gate, and was heading for the office door when he was robbed and shot tw ice. The murder weapon was never recovered, and there we re no eyewitnesses to th e actual robbery and shooting.-2- A police investigation led to the arre st o f the defendant and his cousin, Mark Caldwell. The two men, al ong wi th Christy Ash and Claudette Richmond, had been at Skeezer’s Lounge the night of the shooting. The defendant and Caldwell were charged with premeditated, first-degreemurder, felony murder, and especially aggravated robbery; their cases were severe d, and the charges agains

t the de fendant were tr

ied first. The pro

of at trial, viewe

d in the light most favorable to the state, established the following.

Chattanooga

Police Detective William Neblette was the lead homicide investigator assigned to the shooting. He testifiedthat he arrived at the scene on Long Street at 11:24 p.m. Two other officers had already secured the area. Detective Neblette vie wed the victim’s body, which was locatedbetween a van parked in the driveway of the business and a pile of tire parts. He stated that
a wallet and a

set o f keys were on the ground close to the victim’s body. The victim’s brother, Thomas Hunter, testifie

d that his brother ty

pically carried a wallet in his left rear pocket, which he kept buttoned, and that

his broth er carried

his keys in his right front pocket. According to the brot her, approximately two days before the shooting the victim had cashed a company check fo r $1,400 to cover truck expenses.

At trial, Dr. F rank Ki ng, the Hamilton County Medical Examiner, testified and confirmed

that the victim died of multiple gunshot wounds. Dr. King stated that the victim was shot twice. One bullet

entered the left side of the victim’s face and proceeded through the jaw, downward through the neck, and into the right chest. A second bullet entered the victim’s left front hip, passed through a main artery, and exited the victim’s left buttock. Dr. King char acterized the gunshot wound to the face as a “distant g unshot wound,” meaning that the end of the gun was two feet or
more from t

he body when disch

arged. By contra

st, in Dr. King’s opi

nion, the gun barr

el was in contact with the body at the

time the victim was s

hot in the hip. The state’s theory was that the downward

trajectory of

the bullet that ente

red the victim’s f

ace and came to

rest in his right che

st was consistent

with the victim first being shot in the hip, falling to the ground, and last being shot in the face. In ad

dition, because th

e victim’s wallet w

as not b loodie d or otherwise damaged, the state’s theory was that the wallet had been removed from the victim’s left rea

r pocket before

the first shotwas ever fired; otherwise, the shot to the left front hip that exited the victim’s left buttoc

k would have passed thro

ugh the wallet.

As part of Detective Neblette’s investigation, he interviewed t hree i ndividuals the evening of the shooting. Ossie Poke had been working

that evening at his

automobile

repair shop locatedone and one- half blocks from Skeezer’s Lounge. Mr. Poke told Detective Neblette that he heard two gun shots at approximately 9:30 p.m. Mr. Poke did not investigate at the time, but when he closed up his shop he walke d toward the lounge

and saw the police . Detective Nebl ett e interviewed

and took a recorded statement from Albert Sorrells that evening and another statement the following evening. The third person interviewed was Jesse Deloach, the manager of Skeezer’ s Lounge. Detective Neblette stated that Mr. De loach was the person who called and reported the shooting to the police.1 The defense did not far e much better t

han the st

ate did wit

h Ash and Richmond. Both women had rebuffed defense efforts to inter view the m pretria l.
-3-

At tri al, Detective Neblette related that he first encountered Mark Caldwell the evening following the shooting. Another officer had received a call advising that a person who had been at the lounge the evening that the victim was shot had returned to the lounge. Detective Neblette drove to Skeezer’ s Lounge, and he te stified that he stop

ped Caldwell and ta

lked to him. Caldwell consented to a se

arch of his

vehicle and allowed the police to photograph him. Caldwell was not arrested at that time.

Detective Neblette testified that his first contact with Christy Ash, Caldwell’s sister,
was on January 15, as a

result of an informant’s tip. Detective Neblette and another office

r went to Ash’s apartment. Ash answered the door, but she falsely identified herself as “Belinda.” She told De tecti ve Neblette that Ash was not home. As the

y talked, Detect

ive Neblette spie

d Caldwell walking throug h the apar tment. Detective Neblette called out to Caldwell. Caldwell came to the door, and Detective Ne

blette told him that he wanted to talk with Caldwell’s sister. During the course of the conversation, Detective Neblette also asked about Caldwell’s cousin Claudette.

Based o n partially correct information from Caldwell and “Belinda,” Detective Neblette located Claudette Richmond and interviewed her on January 16. That same afternoon, the police found A sh, and D etective Neblet te interviewed he

r about 2:00 p.m. De

tective Neblette testified that after talking with the two women, he ordered the arrest of Caldwell and the de

fendant. Following the defendant’s arrest, he made inculpator y s tatements that the

state introducedat trial. Officer Steve Coleman had been directed to

transport the def

endant to the jail. Officer Coleman testified that

as he was escorting the defendant toward the jail doors, the defendant told him that “he robbed the man but he didn’t kill anybo

dy.” Similarly, the

defendant spoke

to Detective Gary Blair following the preliminary hearing on the homicide and robber y charges. Detective Blair was assigne d to the General Se

ssions Court, and he

escorted prisone

rs inand out of the courtroom. Detective Blair testified that when he was taking the defend ant to the holding ce

ll
area of the courtroom, the defendant told him that “he had done the crime, but the detective had told some lies.”
Caldwell, who was awaiting t rial, did not testif

y in this case. The state did, however, callAsh and Richmond. Both women were evasive and uncooperative. 1 The first to testify was 23 year-old Christy Ash. She explained that Caldwell is her brother and that the defendant and Richmond are her cousins. Ash testified that on the day of the shooting the defendant, Richmond, and Caldwell came

to her apartment. The group decided to go to Skeezer’s Lounge, and they rode in Caldwell’s vehicle. Ash claimed not to remember who drove. She did, however, finally admit that she saw a gun in the car. The gu n belonged to her br other, Caldwell. A

s for finances, A

sh testified that she had approximately $20 with her that evening and that she could not recall anyone else in the group having money.-4- According to Ash, once the group got to Skeezer’s, the y went inside. She and Richmond played cards and drank. Ash t estified that Caldwell and the defendant went outside periodically

to smoke. Ash said that, after a time, Caldwell came back inside and told the women that “it was time to go.”

Ash, Caldwell, and Richmond left the lounge, and as the y were getting into Caldwell’s car, Ash

said that the defendant came walking from behind the car and got into the rear passenger seat. She further testified that the defendant had a gun wit h him that he placed in the floorboard. Ash related that when she and Richmond questioned the d efendant about what had happened, he replied, “Nothing, don’t worry about it.” At the preliminary hearing, Ash had testified that the defendant

also remarked, “I hope I didn’t kill him.” At trial, Ash initially insisted that she didnot remember testifying that way, but after hearing a portion of the taped hearing and after being warned by the trial court about the penalties for perjury, Ash affirmed that at the preliminary hearing she had so quoted the defendant. In a similarly reluctant fashion, Ash conceded that when she was interviewed

by the police, she told them that while the defendant was in the car, he also said that he “would take the rap” and that he would “tell them [he] did everything.”

Ashtestified that after they left Skeezer’s, they drove to Krystal to buy some

thing to eat and then proceeded to her apartment. In route to the apartment, Ash stated that the defendant asked Caldw ell to buy him some “p owder, cocaine .” The group, how ever, proceed

ed to th e apartment,and once there Ash told the defendant not to bring the gun inside the apartment. Ash’s boyfriend, Marcus Heard, was at the apartment, and he and Caldwell left

sometime later to p

urchase marijuana. The defendant di d not accompany H

eard and Ca

ldwe ll, who returned about fifteen minutes later. Ash testified that the defendant was quite drunk and that he went to sleep soon after arriving at the apartment. The others stayed up, played cards, and smoked the marijuana.

Claudette Richmond, who was 24 years old at the time, testified that the defendant and Caldwell picked he

r up in North Chattanooga earlier on the day of the sh

ooting. They drove

to As h’s apa rtment, and from there Richmond drove Caldwell’s vehicle to Skeezer’s Lounge. Richmond recalled that during the drive, she passed a gun to Cald

well, who was sittin

g in the back seat.
Richmond’s memory of what took place at Skeezer’s Lounge was sketchy. She testifie d that she d rank and played cards. Caldwell came in and spoke to Ash saying, “Let’s go.” In her statement

to the police, Richmond described Caldwell as “rushing” inside the lounge. After reviewing her statement, Richmond agreed that Caldwell was in a hurry to leave.

Richmond initially

testified that when they lef t the lounge, the de

fendant was with them. She said, “All of us got in the car.” Richmond’s statement to the police and her preliminary hearing testimony were inconsistent with that account. The trial court advised Richmond, as it had withAsh, about the penaltie s for perjury, af

ter which she adm

itted that the defe

ndant was not with themwhen they left the lounge and was not at the car when they got to it. Richmond testified that Caldwell gotinto the driver’s s

eat, Ash took the backseat behind Caldwell, and Richmond sat in the-5-

front with Caldwell. Whe

n the defendant a

rrived and got into

the backseat, Richmond stated that she told him not to sit on her coat. The defendant moved the coat and sat down. Richmond testified that she did not see a gun at that time.

After they returned to Ash’s apartment, Richmond testified that Caldwell produced
some money and divided it four ways. Richmond got some of the money; she was uncertain of the amount but thought it was “over a hundred dollars.” The defendant was asleep at that time, and Richmond did not see him take any of the money. She also cla imed to be unsure if Ash took any money.
The defendant testified in his own defense and presented two witnesses at trial. The 24 year-old defendant admitted receiving some of the robbery proceed s but denied being present when the victim was shot and denied being otherwise involved in the shooting or the robbery.

Accord in g to the defendant, he began the day of the shooting by picking up Richmond and going to Ash’s apartment. “We all sat around,” the defendant related, “had a couple of drinks, smoked some marijuana, and we decided to go down to the lounge.” Earlier that day, the defendant had seen a gun in Caldwell’s car under the floor mat of the driver’s seat. When the group left to drive to Ske

ezer’s, the def

endant saw Richmon

d hand the gun to Cald

well.

At the lounge, the defendant sat with Ash

and Richmond until the

women moved to the back of the lounge to play car ds. Then the d efendant sat alo ne and drank while

Caldwell “mingl[ed] around.” The defendant stated that he went outside once to get fresh air because he was hotand drunk. He had

told Caldwell that he was ready to leave because he was drunk, but Caldwell wantedto stay. Therefore, the defendant

testified, he went to the car, lay down in the back seat, and went to sleep. He woke up when the first gunshot was fired, and the second gunshot prompted him to get out of the vehicle at which time he saw Caldwell runningtoward him. The defendant said that Caldwell told him to

get back into the car, but the defendant refused because he wanted to see what
was happening. The defendant estimated that there were

15 to 20 people in the street; he did not see the victim.

The defendant testified that he stood outside the car for five to ten minutes. The other members of his group got into the vehicle, and when the defendant be gan to get in, Richmo

nd told him not to sit on her coat. Ric hmond reached ba

ck and moved her c

oat, at which time the defendant stated that he saw a pistol on the back seat. The defendant said that he knocked the pistol into the floorboard. On cross examination, the defendant could not explain how or when Caldwell retrieved the gun from the car or how or when Caldwell replaced the gun inside the car and under Richmond’s coat.
Th e de fendant testifie d that after leav

ing the lounge, the

group stopped at Kr

ystal. The defendant ordered food, and Caldwell paid for it. Thereafter, they dro ve to Ash’s apart ment. The defendant testif

ied that the last thi

ng he remembere

d was going to

Ash’s apartment. When he woke in the morning, Caldwell gave him “a hundred and something odd do llars.” T he defendant-6-

said that he realized the source of the money later in the day w hen he saw “the ne ws flash” on television. He, nevertheless, kept the money because he was “just thinking how high [he] can get off of this money.” The

defendant did

not contact the police about the shooting because he did not want to implicate his cousin. Approximately one week later, the defendant, Ca ldwell, and Ash traveled to Atlanta where they spent robbery money on lodging, food, and clothing.

The defendant testified that when he was arrested on Jan uary 16, he gave an untruthful statement to the pol ice. He claimed t

hat his moti vation was to hide Caldwell’s involvement

in the shooting. The defe ndant ag reed that as he was being taken to jail, he made a statement to the transporting officer. The defendant testified that he said, “I did not kill Mr. Hunter butI took in [sic] some of the money.” The ne

xt day, the defen

dant tried to

commit suicide while in custody. The defe

ndant also

spoke to the court officer at his preliminary hearing. The defendant testified that what he actu ally said to the off

icer was, “If you man enough to do the crime, you gotta be man enough to do the time,” but he added that he “was n ot man enough to do the time for someone else’s crime.”

The defendant concluded his testimony by confessing that he took part of the robbery money. He insisted, howev er, that he did not p

lan with Caldwell to

rob Mr. Hunter an

d that he did not shoot Mr. Hunter.

Albert Sorrells claimed that he was present at Skeezer’s Lounge the evening of the shooting. At the time Sorrells testified for the defense, he was serving an incarcerative sentence for violation of Georgia’s controlled substance ac t, an d his criminal record included convictions for grandlarceny, receiving stolen property, and robbery. Sorrells stated that he was outside the lounge when Mr. Hunter drove up, parked, and headed for his office. Sorrells testified that he saw two men whom he knew walk up to the victim, whereupon a confrontation ensued. Sorrells did not see the actual shooting, but he heard gunshots and watched the two men run back into the loung

e. Sorrells testified that

the defendant was not one of those men. From a photograph, Sorrells identified Caldwell as one of the assailants, and the other assailant was a man named Black.

Sorrells spoke with Detective Neblette later that evening and again a few days later. Sorrells initially told Neblette that he was inside Skeezer’s and did not see what happened. Sorrells testified on cross-examination that he lied to Detective Neblette because he did not feel comfo

rtable talking with him but that he to ld Officer News

ome what actually

happened. Sorre

lls spoke with Detective Neblette a seco nd time in the prese

nce of Officer

Newso me. Even in that statem ent, however, Sorrells never mentioned two individuals; he told the officers that he saw only one person cross the street and that person was named Black. On cross examination, Sorrells claimed that he meant that Black and Caldwell were together and that Black shot

Mr. Hunter. Sorre

lls had testified previously

that he did not see the actual shooting, and when the state pointed out that inconsistency, Sorrells said that when Black was running away after the shooting, Black

had the gun in his

hand. The state also asked Sorrells about the defendant’s presence at Skeezer’s Lounge. Sorrells claimed that the defenda

nt was not with Caldw

ell and, indeed, w

as not at the lounge

at all that night.-7- The defense called Nak

ia Grasty, w ho knew Caldwell, h ad shared a jail c

ell with Caldwell, and had talked wit h Caldwell about the

shooting. At the time

Grasty testifiedat trial, he
was incarcerated in the Hamilton County Jail. Grasty had prior convictions for multiple thefts and aggravated burglary.

Grasty testified that w

hile he and Caldwell were in the same cell, Caldwell began asking questions about dif ferent types of g

uns. The convers

ation eventually l

ed to Caldwell discussing the shooting. Caldwell’s account of the shooting, as related to Grasty, was somewhat muddled. Cald w ell told Grasty that the victim, “dude,” had robbed him and that the defendant proposedthat he and Caldw ell retrieve the money. When they went to get the money, “dude” laughedat Caldwell. Caldwell, who did not find the situation amusing, coincidently had the hammer cocked on his gun and accidentally shot “dude.”

After the defense rested, the state recalled Detective Neblette. He testified about his investigative efforts to locate the person who Sor

rells had identifi

ed as “Black.” Ba

sed upon a description provided by Sorrells, Detective Neblet te crea ted several photographic lineups of individuals

with the nickname “Black.” Detective Neblette included

a photograph of Ca

ldwell in
one of the lineups. Sorrells did not pick out Caldwell as one of the individuals he claimed to have seen; moreover, theindividual Sorrells did select from the

lineup had been in

carcerated in

Atlanta at the time of the shooting.

The jury delib erate d, and based upon the proof it found the defendant guilty of premeditated

first-degree murder, felony murder, and especially a ggravated robbe

ry. Because

the state was seeking a senten

ce of life without

the possibility of pa

rolefor the homicide c

onvictions,
a separate pena

lty-phase trial e

nsued. The ju

ry rejected the single st atutory aggravating circumstance advanced by the state that the

victim was killed to i

nterfere with

his ability to actas a witness again st the defendant, see Tenn. Code Ann. § 39-13-204(i)(6) (Supp. 2001); consequently, the defendant’s punishment was fixed at imprisonment for life with the possibility of parole.

At a separate sentencing hearing on the especially aggravated robbery conviction, the trial court sentenced thedefendant to 20 years’ confinement in the Department of Correction to be served consecutively to the jury-imposed life sentence.

On appeal, the defen d ant complains of two evidentiary errors, jury-instruction deficiencies,

and the dangerous offender-based consecutive sentencing. He does not challenge the legal sufficiency of the convicting evidence.

I

We will first address the defendant’s contention that he is entitled to a new trial because of prejudicial rulin

gs by the trial cour

t (1) that restric

ted his ability to cross-e

xamine Christy Ashabout hearsay remarks made by another patron of Skeezer’s Lounge and(2) that permitted the state to cross-examine Claudette Richmond as a hostile witness. We re v iew the trial court’s-8-

evident iary rulings and any limitations on cross-examination for abuse of discretion. See State v

. Dishm an , 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995). Finding no abuse of discretion o r unreasonable r

estrictions, we a

ffirm the trial co

urt’s rulings. During Ash’s cross-examination, the defense sought to elicit that a female named Boobie came into the lounge, went over to Ash, and told Ash that her brother, Caldwell, was outside shooting a gun up in the air. The trial court sustained the state’s hearsay objection to introduction of Boobie’s statemen

t. At trial, the defendant argued for admissibility on the basis that the statement constituted a warning, and on appeal, the defendant urges that the statement qualifies as an excited utterance pursuant to Tennessee Rule of Evidence 803(2).

The state insi sts that the defendant has waived this issue because a party is not allowedto take one position in the trial court (it is a warning) and later advocate a different ground
or r eason on appeal (it is an excited utterance). See State v. Auco in , 756 S.W.2d 705, 715 (Tenn. Crim. App. 1988). Althoug h we agree that a

defendant is not a

t liberty to

meander along the stream of hearsay exceptions in search of a safe ford, we do not believe t

hat the defenda

nt has done so

in this case. Previously, this court has analyzed the admissibility of a hearsay “warning” as an “excited utterance.” State v. Earl T. Jefferson , No. W2000-00608-CCA-R3-CD, slip op. at 4-5 (Ten n. Crim. App., Jackson, Jun. 12, 2

001) (defendan

t’s cousin warned a witness

not to “stick [her] head out the door about 10:30,” bec

ause they were “

going to come bac k through spraying”; no testimony concerning cousin’s demeanor when she delivered the warning such that state f ailed to establish proper foundation for excited utterance).

The state also insists that even if the issue is not waived, Boobie’s statement does not qualify as an “excited utterance.” On this po int, we agree. Evidence Rule 803(2) carves out an excitedutterance exception to the hearsay rule. An excited utterance is defined as a “ statement relating to a startling event or condition made while the de clarant was unde

r the stress

of excitement caused by the event or condition.” Tenn. R. Evid. 803(2). The following foun dational require

ments must be proven before this hearsay exception applies. First, a startling event or condition must be the catalyst for the stress of excitement; second, there must be a nexus between the statement and the startling even

t; third, the uttera

nce must be forthc

oming while the dec

larant is under th

e stress of excitement from the event or condition. State v. Gordon , 952 S.W.2d 817, 820 (Tenn. 1997).

None of these foundational requirements was met in this case. The defendant did not make an offer of proo

f of the circumsta

nces attending the

statement. All that is before u s in the record is defense counsel’s explanation t o the t rial court at a bench conference that “[Ash] gave a statement to the police that th

is woman came in

and told her her brother was outside shooting a gun up in the air.” Accordingly, we hold that it was not e

rror for the tria

l court in this

case to limit the scope of cross-examination of Ash regarding statements made by another patron.

As for the trial court permitting the state to treat Claudette Ri chmond as a hostile witness, the defendant seems to be arguing that the state failed to mov e to have Richmond s

o declared and that the state did not demonstrate that it was “surprised” by her testimony. Initially,2 The trial court sho uld not h ave instruc te d the jury that accessory after the fact to the murder was a lesserincluded offense. State v. Jon Robert G oodale , No. M2000-02140-CCA-R3-CD, sl ip o p. at 6 (Ten n. Crim. A pp., Nashville, Sept. 14, 2001).

3 The op ini on to

wh ich the def

end ant cites f

or this proposit

ion was designated “Not for Cit ation,” when permission

to appea l was den ied by the suprem e court. See Tenn. R. Sup. Ct. 4(F)(1), (2). Furthermore, the jury i n that
case did not convi

ct on premedit

ated f irst-degree murd er; it convicted on the lesser-in cluded offen se of reckless homic ide. The ju ry also co nvicted o n a separa te felony- murd er coun t. -9- we point out that the defendant has failed to cite any authority to support his claim, and we are aware of non e. When a defendant omits references to legal precedent, an issue may be dee med wai ved

. Tenn. R. Ct. Crim. App . 10(b); State v. Chance , 778 S.W.2d 457, 462 (Tenn. Crim. App. 1989).

At any rate, the mode and order of witness interrogation and presentation of evidence
are matters entrusted to the trial court’s sound discretion, including the decision wh ether to allow
a party to examine a witness by leading questions. “When a party calls a witness determined by the court to be a hostile witness, interrogation may be by leading questions.” Tenn. R. Evid. 611( c); see Wilkerson v. Altizer , 845 S.W.2d 744, 746-47 (Tenn. Ct. App. 1992). In the present case, the trial court’s determination that Richmond was hostile is supported by the record and is not an abuse of discretion. Richmond was evasive, reluctant, and uncooperative – ha llm ark signs of a hosti

le witness. Examination by leading questions was proper and altogether reasonable in this case.

II

The defendant in this case was charged in separate c ounts with premeditated firstdegree murder and first-degree murder in the perpetration of a felony. As related to premeditated first-degreemurder, the trial court instructed the jury on the less er-included offenses of seconddegree murder and

voluntary manslaughter. As related to the felony-murder charge, the trial court instructed the jury on the lesser-included offense of facilitation of first-degreemurder and the nonincluded offense of accessory after the fact to first-degree murder. 2 The jury convicted the defendant of both premeditated murder and felony murder, which were then merged into a single conviction for first-degree murder.

The defendant argues that the trial court prejudicially failed to instruct the jury on all applicable

lesser-included offenses to first-degree murder in the perpetration of a felony. He reads
our ca s e law as holding that reversible error automatically occurs when both premeditated and felony murder are charged but the instruction given o n lesser-included offenses covers only the premeditated

murder charge. 3 The state concedes that the instructions were deficient but insists that
no relief should

be for thcoming because the premeditated murder conviction is unaffected by the error and independently supports the judgment.

The defendant did not raise the issue in his motion for a new trial. Tennessee Rule of Appellate Proce

dure 3(e) is spec

ific that in all jury

cases, “no issue presen

ted for review sh

all be-10-

predicated

upon . . . jury instructions granted or refused . . . or other action committed or occurring during the trial . . . unless the same was specifically stated in a motion for a new trial.” Tenn. R. App. P . 3( e). “[O]therwise,” the rule concludes, “such issues will be treated as waived.” Id

. Because the defendant

failed to include

the issue in

his motion for new trial, he has waived the issue on appeal. See State v. Spadafina , 952 S.W. 444, 451 (Tenn. Crim. App. 1996).

Nor does plain error

avail the defendant. Criminal Procedure Rule 52(a) states that “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(a). Whatever may be said about the felony-murder conviction in this case, the evidence was legally sufficient to support
a finding that the shooting of the victim was premeditated, which defeats any claim that an injustice exists requiring c

orrection on app

eal.

III During its deliberations,

the jury inquired o

f the trial court: “If two people c ommit
a crime where someone

is murdered and only one person commits the actual murder, are both parties equally guilty for the murder under the law and subject to the same punishment?”

The trial court brought the jury in and responded as follows: “The Court’s response is yes. Under the fe

lony murder count,

if two people commi

t a robbery, both p

arties are equa

lly guilty for a murder committed in perpetration of the robbery.” The trial court added, “So you can retire and add that with your other charge and continue your delibera tions. ” The defendant never objectedto this supplemental instruction, and it was not registered as a ground in his new t rial motion.
Now, on appeal the defendant argues in a conclusory fashion that the supplemental instruction was co

nfusing and that it

was not reduced

to writing. The defendant’s complaints are untimely, and our review has been waived. See Tenn. R. App. P. 3(e), 36(a); State v. Hall, 8 S.W.3d 593, 603 (Tenn. 1999).

Our independent r

e view, moreover, convinces us that the instruction was notconfounding. As for whether the supplemental instruction needed to be reduced to writing, we
are stymied because none of the trial court’s written instructions are included in the record; therefore,
we cannot determine

, in the first instan

ce, whether the

supplemental instr

uction was reduc

ed to writing. Our revi

ew thus impeded, w

e will not disturb the

trial court’s ac

tions.

IV
Last, the defendant

complains about the imposition of conse cutive sentencin

g for his convictions. The thrust of the de fendant’s argum

ent appears to

be that in classifying the defendant
as a “dangerous offender,” the trial court failed to make findings relative to the need to protect the public against further criminal conduct and to the aggreg

ate sentence being reasonably related to the severity of the crimes.-11- When a defendant is convicted of one or more offenses, the trial court must determine if the sentences shall be served concurrently or consecutively. Tenn. Code Ann. § 40-35-115 (1997). Consecutive sentencing may be imposed in the discretion of the trial court upon a determination that one or more of the

following criter

ia exist: (1) The defendant is a profe s sional criminal wh o has knowingly devotedsuch defendant’ s life to criminal a cts as a major so

urce of livelihood; (2) The defendant is an offender whose record of criminal activ

ity is extensive; (3) The defendant is a dangerou s m entally abnormal person so declared by a competent psychiatrist . . .; (4) The defendant is a dangerous offender whose behavior indicates littleor no regard for

human life, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is

convicted of two (2) or more statutory offenses involving sexual abuse of a minor . . .; (6) The defendant is sentenced for an offense com mitted while on probation; or (7) The defenda

nt is sentenced fo

r criminal contem

pt.
Id

. § 40-35-115(b)(1)-(7) (1997). In addition to these criteria, consecutive sentencing is subject to the general sentencing principles providing that the length of a sentence should be “justly deserved in relation t o the seriousness of the offense” and “

no greater than t

hat deserved fo

r the offense committed.” Id

. §§ 40-35-102(1), -103(2) (1997); see State v. Imfeld , 70 S.W.3d 689, 708 (Tenn. 2002). Moreover, in State v. Wilkerson , 905 S.W.2d 933, 937-38 (Tenn. 1995), the supreme court artic ulated two additional requirements for consecutive sentencing under the dangerous offe nde r category; the trial court mus t find consecutive

sentences are r

easonably related to the severity of the offenses committed and are necessary to protect the public from further criminal conduct. See id. 70 S.W.3d at 708 (need for the additional W ilkerson findings arises in part because “dangerous offender” category “is the most subjective and hardest to apply”).

At the conclusion o

f the sentencing h

earing in this

case, the trial court ordered that the defendant’s esp

ecially aggravated robbery sentence be served consecutively to his life sentence. The trial court’ s findings appear in the record as f

ollows:-12- I do find, under con

secutive sentenc

ing, number 4, that h

e is
a dangerous offender, because they had his billfold. If they were there just to rob him, there wa s no need for them t

o execute him, so he did indicate little or no regard for human life, so I will make that
a consecutive 20-year sent ence to t he life sentence that the jury imposed on the first degree murder.

We cannot extend to these meager remarks the presumption of a correct sentence. See State v. Hooper , 29 S.W.3d 1, 5 (Tenn. 2000) (presumption applies when trial c ourt follows statutory sentencing procedure, gives due consideration and proper weight to the factors and principles set out under the sentencing law, and articulates findings that are adequately suppo

rted by the recor

d); State
v. Ashby , 823 S.W.2d 155, 169 (Tenn. 1991) (“[T]he p resumption of cor

rectness which accompanies the trial court’s action is conditioned upon the affirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circumstances.”). Accordingly, our review will proceed de novo without a presumpti on of correctne

ss.
The defend ant does not have a particularly len

gthy or escalatin

g criminal history. Th e convictions that appear in the presentence report are for misdemeanor

offenses, such a

s driving with
a suspended license, opera ting a vehicle without registration, disorderly conduct, assault, and criminal trespass. The presentence report does reference a juvenile petition involving carrying a gun
on school property, but the noted disposi tion is 50 hours of co

mmunity service; no other information is reflected.

The trial court relied exclusively on the “needless” shooting of the victim as demonstrating little or no regard for human life. This consideration is certainly pertinent and supported by the e vide nce that considering the pristine condition of the wallet when found by the police, it obviously had been removed from the victim’s left rear pocket before he was shot through the left hip. Even, however, with evidence that an offender’s actions demonstrated little or no regard for human life, consecutive sentencing does not automatically follow. See Imfeld , 70 S.W.3d at 708 (proof of little or

no regard for

human life shows that defendant is dangerous offender, “but it may notbe sufficient to su

stain consecuti

ve sentences”). To c onclude otherwis e contravenes Wilkerson ’s view of sentencing as a “human process that neither can nor should be reduced to a set of fixed and mechanical rules.” Wilkerson , 905 S.W.2d at 938. We, therefore, reject the notion that consecutive sentencing is always appropriate whenever a death occurs during the course of a r obbery.

We believe that the person who shot the victim after robbing him evinced a quality of dangerousness that could warrant consecutive sentencing. O ur concern with the proof in the present case, however, is the uncertainty about whether the defendant was this person. To be sure, his culpability for the homicide is supplied, a t least, by the theory of complicity, but while being responsible

for the crime of another, on the one hand, renders the accused guilty of the crime, on the other hand it does n

ot per se supply the elements for consecutive sentencing.4 Some the def enda nt’ s pr etr ial st ate ment s al so i ndi cat e t hat he did not s

hoot the vic ti m. -13- Hadthe trial court affirm atively found as a fact that the defendant shot the victim after robbing him, we might well have deferred to the finding because there is a basis in the record via the defendant’s statements to support the finding. 4 In ruling on the consecutive issue, however, the trial court said the victim was shot after “ they had his billfold” and that “there was no need

for them to execute him.” (Emphasis added.) Thecomments suggest that the lower court made no finding that the defendant a

ctually shot the vic

tim.

Furt hermore, both the trial judge and the jury declined to apply more seve r e consequences to the defendant’s conduct when t h ey could have done so by ascribing a more egregious culp ability to hi m. In other words, we note that the trial court refused to enhance the length of the defendan

t’s sentence bas

ed on enhanceme

nt facto r (5) tha t the defendant “treated or alloweda victim to be treated with exceptional cruelty during the commission of the offense.” See Tenn. Code Ann. § 40-35-114(5) (Supp. 2001). Also, the trial court applied as a mitiga tin g sentencing factor that the defendant appeared somewhat remorseful and that he was “sufferingfrom
some mental condition.”

According to clin

ical psychologist D

avid Solovey, who te

stif ied at t he sentencing phase of the first-degree murder prosecution, the defendant suffers from s everal emotional disturbances, which led to t wo sui cide attempts before his arrest in this case and one further suicide attempt af

te r he was jailed on the homicide charge. Finally, we note that in the sentencing phase of the murder trial, the juryrejected the state’s contention that life without the possibility

of parole was an appropriate sentence based upon the statutory aggravating circumstance that the murder was committed to prevent the defendant from being arrested or prosecuted. See Tenn. Code Ann. § 39-13-304(i)(6) (Sup p. 2001) (the “murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another”).

In making our de novo review from the s ta ndpoint of the relevant sentencing principles and guidelines, and given a lack of finding that the defendant personally shot the victim, coupledwith his lack

of a violent

criminal record, we are simply not persuaded that protecting the public against further criminal conduct by the defendant requires service of a 20-year se ntence consecutively to a sentence of life with the possibility of parole.

For all the foregoing reasons, we affirm the defendant’s convictions but reverse the imposition of

consecutive sentencing. Upon remand, the especially aggravated robbery judgment shallbe modified to reflect that service of the 20-year sentence is

concurrent with the first-degree murder sentence.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE