# FILED
August 26, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE APRIL 1998 SESSION

STATE OF TENNESSEE, * No. 01C01-9610-CR-00419

Appellee, * Davidson County VS. * Hon. J. Randall W yatt, Jr., Judge ADRIAN WILKERSON and * (Especia lly Aggravate d Robbery, STEVEN MURPHY, First Degree Murder, Theft) * Appellants. *

For Appellant Wilkerson : For Appellee : Mark F. Fishburn John Knox Walkup 100 Thompson Lane Attorney General & Repor ter Nashville, TN 37211 (at trial and on appeal) Karen M. Ya cuzzo Assistant Attorney Gener al For Appellant Murphy : 425 Fifth Avenue North Cordell Hull Buildi ng, Second Floor Jeffery A. DeVasher Nashville, TN 37243-0493 Assistant Public Defender 1202 Stahlman Building Nicholas D. Bailey Nashville, TN 37201 and (on appeal) Katrin Miller Assistant District A

ttorneys General David Baker Washington Square, Suite 500 Assistant Public Defender 222 Second Avenue North and Nashville, TN 37201-1649 Karl F. Dean Metropolitan Public Defender 1202 Stahlman Building Nashville, TN 37201 (at trial)

OPINION FILED:___________________________ AFFIRMED AS MODIFIED GARY R. WADE, JUDGE2 OPINION The defendants, Adrian Wilkerson and Steven Mur phy, were convic

ted of especially aggrav

ated robbery, first degr ee murder, and theft over $1000.00. The defendants were sentenced to life imprisonment for first degree mur der. The trial court imposed Range I sentenc es of twenty-five y

ears for especially ag gravated robbery and four years for theft. All sentences are to be s erved consecutively, for an effective sentence of life plus tw enty-nine years.
In this appeal of right, each defendant presen ts the following issues: (1) whether pretrial identification procedures were unnecessarily suggestive requiring suppression at trial; and (2) whether the tri al court erred by ins tructing the jury on parole el igibility. The defendant Murphy presents the following additiona l issues:

(3) whether the evidence is sufficient to support his convictions for especially aggravated robbery and first degree mu rder durin g the comm ission of a felony; (4) wh ether th e trial

court p roperly admit

ted a "life photograph" of the victim; and (5) whether the tri al court properly per mitted a prosecut ion witnes s to testi fy. Finally, each defendant chall enges the length and manner of his sentence.
We affirm the judgment of the trial court but modify the sentence for especially aggr

avated robbery as to eac h defendant.
On the morning of October 6, 1994, the vehicle of Timothy Thomas, a Tennessee State University student, was stolen from the s chool parking lot. Thomas described the car as a 1984 O ldsmobile Cutlass Supreme, bei ge in color with maroon wheels and bearing the license plate , "PUZZLED." As he report ed the3 missing vehicle to campus security, he rec eived word that poli ce had found his car. The steering column had been str ipped and a screwdriv

er, which did not belong to Thomas, was found in the floorboard.

Donald Amos, manager of a chain of mov ie theaters in Nashvi lle, testified that in 1994, he employ ed Keith Davenport to manage the Rivergate 8 Theater. Davenport conducted daily cash transactions of at least $ 3,000.00 at Third National Bank. All monies were carried in bank bags labeled "Rivergate 8." On October 6th, a bank employee i nformed him that Davenport had been r obbed. Police recovered $3,891.00 from two bank bags labeled "R ivergate 8."

Rodman Davenport, the father of Keith Davenport, testified that h e had received word that h is son had been shot during a robbery at Third Nation al Bank. Three hours after his son was transported to Vanderbilt H ospital, he died. Rodman Davenport identified a photog raph of his son and pointed out the bul let holes in the vehicle he drove on the date of his death.
Dorothy Seay, who had just cashed a check at the Thi rd National Bank, was returning to her car when she heard a loud noise. She then observ ed a tan 1984 Oldsmobile Cutlass w ith a dark roof and a dark bra o ver the front grill

travel from Kroger toward the bank and park in two empty p arking spaces near her car. Ms. Seay observed the driver of the Cutlass s top next to a person she late r learned was Keith Davenport,who was getting into a small, white ca r. The driver of the Cutlass, a tall, black man wearing a whit e shirt and dark pants, ex ited the passenger door, shot the victim tw ice, and then stooped to grab the bank bags. When he stood up, he looked at Ms. Seay and drove away from the scene. While she did not see the driver of the Cutl ass or its license plat e, Ms. Seay insisted that she got a4 good look at the robber, onl y twenty to tw

enty-five feet away.She described the gun as a .44 or .357 magnum w ith an eight-inch barr

el and brown handles beari ng two circular emblems.

Ms. Seay provided pol ice with a statement descr ibing the robbery and waited in t he bank c onfere nce room for a pos sible ide ntifica tion. Ask ed to view two men to determine if she recogniz ed either of them from the shooting and c autioned to be very careful in rendering a positiv e identification, Ms. Seay identified the defendant W ilkerson, who was handcuffed and sitting in the backseat of a police vehicle, as the person w ho fired the fatal shot. Later, she i dentified him at the prelimin ary hearin g and then at trial. S he could not iden tify the d efenda nt Murphy.

Estella Parker, a teller at Third National Bank, testified that she he ard a gunshot and looked out the bank w indow. From only fifty

feet or so away, she then heard two more shots and s aw a man holding a gun and two bank bags enter the open passenger door of a slowly moving car. She described the man as a tall, black man with short hai r; he wore a white t-shirt and jeans. Ms.Parker described the car as an older model Cutl ass or Monte Carlo, beige or yellow in co lor with a brown top and dark wheel s, and the murder weapon as dar k brown with a long barrel. She stated that the v ictim fell to the ground w ithin two feet of the tall man. Ms. Parker asserted that nothing blocked her vi ew of the incident. At a show up at the bank, she identified the defendant Wilkerson, standi ng in handcuffs with another man, as the person she saw j ump into the car with the bank bags. Although she was unable to identify the defendant Murphy, she recog nized the gun recover ed by police as that used by Wilkerson in the robbery.

Linda Boone, who was in the Third National Bank lobby at the time of5 the shooting, heard two p ops and saw a man lying on the ground in front of her car

. She then observed a black man c arrying a "big g un" lean over the victim and remove a bank bag from underneath h is arm. The robber then got i nto the passenger side of a car she de scribed as a 1982 or 1983 beige Cutlass with burgundy top. Ms. Boone could not identify the driv er or the person who fired the shots and she could not see the l icense plate of the Cutlass.

Grady Welch, who was cashing a check at the Third National Bank, heard two gunshots outsi de the bank, looked out the wi ndow and saw a black man wearing a whi te t-shirt leaning o ver the vict im. He obs erved the robber re ach down for the bag and then run between cars to a beige car with a dark top. W elch could not see the robber’s face and could not see the driver of the getaway vehicle. While he followed the car in his truck, he was unable to see the license plate.

Mark Nelson, who w

as in the parking lot at the time, heard a gunshot followed by two more gunshots. When he saw a woman running in the parking lot toward Kroger, he returned to his car where he saw a cream or beige colored Buick or Regal with tinted windows "flying up the parking lot ...." He could not describe the individuals inside.

Robert Newland, who

was leaving the b

ank just before the shooting, testified that he saw "a unique looking fellow ... black, with red hair" drive by slowly in a tan car. Moments later, he heard gunshots and saw another black man getting into the same tan car. He rec alled the red-haired man dri ving in his direc

tion and saw the license plate "PU ZZLED."

Patty Fought, who lives about one mile from the Third National Bank,6 testified that around noon she w as cleaning house when s he noticed an older model beige car with tint

ed windows and a bra ov er the grill quic

kly stop in front of her house. She detected a lot of movement within the car and when bo th car doors opened, a white man with a dark t-shirt and jeans ex ited on the driver’s s ide. A black man wearing a w hite t-shirt and jeans ex ited the passenger door, hol ding what appeared to be a bundle of material. The t wo men walked towar

d Gallatin Road. Ms. Fought went outside and saw the license plate "PUZZLED"; the car was still running. Ms. Fought called police and talked with Bart Pangburn, the UPS driver, about what she had observed . Within an hour, police drove the tw o to a showup only three blocks aw

ay. Ms. Fought, after v iewing each handcuffed defendant, identified the two men as the same two men who had stopped their vehicle in front of her house. "I didn’t get a good look at their faces when they got out of the car, but I said, they looked li ke the men that got out of the car. . .. [based upon] the clothes they had on, their ... body build and their pr ofile." She positively

identified the defendants again at the prelimi nary hearing. At tr ial, Ms. Fought identified the defendant Wilkerson as the passenger who ex ited the car with the bundl e and the defendant Murphy as the driver.

While acknowledging that she had nev er attempted to identify the men from a group, she testified that she had no dif ficulty in identifying the defendants.

Pangburn testified that he w as delivering packa

ges on Gibson Drive

at about noon on the date of the robbery w hen he noticed two men step outsi de a stalled yellow mi d-sized car with brown vinyl r oof. He recalled that a man of mix ed race, having ver

y light brown s kin, braided red hair, and thick eyeglasses, w alked ahead of the other man saying, "hurry up." The other man , who Pangburn described as black and tall, walked hurriedly and carried a sweatshirt. Pangburn7 then drove his truck pas t the two men and looked in hi s rearview mirr or, recalling that he could see their faces clearly. The man carrying a bundled sweatshirt crossed t he street and place d it in a dra inage dit ch. Pangb urn, who th en drove around the block, saw the d efendants approaching Old Hickory Boulevard. H e then saw a police car, sto pped, and reported what he had obs erved. At a showup, Pangburn recognized the men as the same men who exit ed the stalled car; he expressed no doubt about the accuracy of the identif ication. Pangburn positively identified the defendants at a prelimi nary hearing and at tr ial. He identified the defendant Wilkerson as the man who carried the bundle and the defendant Murphy as the man he had seen walking with Wilkerson.

Just before noon, Officer W illiam Kirby, who had received a radio dispatch that a car suspected to have been used in a robbery had been abandoned on Gibson Drive, found the Ol dsmobile with license plate, "PUZZLED," blocking the south lane of traffic. The passenger doo r was ajar and the steer ing column had been "peeled" by a screwdr iver. He receiv

ed a description from Ms. Foug ht: one black and one white male, between twenty-five and thirty years of age; both were about the same height but one w as heavier than the other. He recalled that Pangburn, who was also on the scene, similarly described the defendant. Pangburn reported that one of the men, who cou ld have been white or b lack, had red hair and that a bundle had been left in the drai nage ditch.

Officer J.W. Davis, who flies the Metro Helicopter, received a radio call reportin g the bank robbery an d a descri ption of the suspe cts. He the n saw two black males walking

north on Gallatin Road near a Kentucky Fried Chic ken; as he circled above, they entered the restaurant. Wh ile conceding that the two men were not behaving suspiciously, Officer Davis reported their location and hovered until a8 patrol car arrived.

Lieutenant Harry Bell,of the Goodlettsville Poli ce Department, was serving a warr

ant when he overheard a r adio dispatch describing the suspects involved in a shooti ng. Lt. Bell then spotted tw o men fitting the suspects' des cription "pushing each other and ... carrying on ... but as they did that they would turn around ... like they were looking to see if someone was following them." Lt. Bell observed the men enter a Kentuck y Fried Chicken.

When Officer Melton Elrod entered the KFC rest aurant, he noticed a black male sitting at a table with an elderly white man. He described the black male as wearing a white t-shirt and sweating profusely, but not eating. Officer Elrod also saw a light-ski nned black male with red h air seating himself at a different table. At that point, the defendants were ar rested.
Officer Danny Duncan testified that he handcuffed the defendant Murphy, placed him in the patrol car, and read him hi s rights. He then drov e Murphy to Gibson Drive and the b ank for showups. Officer Dani el Lane, who arrested Wilkerson, drove him to Gibson Dri ve and the bank for showups. During the drive, Wilkerson asked Officer Lane what the charges would be, what ki nd of bond he would have to make, and wheth er he would go to state or feder al prison . Detecti ve Norris Tarkington al so testified that Wilkerson inquired abo ut the possible lengths of sentence for robbery, attempted robbery, and attem pted murder.

Officer David Pugh found a sw eatshirt hidden in the drain age ditch. Inside were a .357 Dan Wesson Arms rev olver and two locke

d "Rivergate 8" bank bags. The revolver

contained three spent cartri dges and three live r ounds. The gun9 had unburned powder on the handle and smelled as if it had been fired r ecently. Officer Pugh found no finger prints on the victim's car but did recover bullet fragments. He lifted two l atent palm prints from the Oldsmobi le.

Gwen Gregory, who examines latent prints for the Metro Police Department, testified that latent palmprint s lifted from the hood of the Oldsmo bile matched those of Murphy. Docto r Ann Bucholtz, the Dav idson County Medical Examiner, testified that the v ictim suffered a lethal gunshot w ound to his abdomen that pierced his live r and that the wound was surrounded by stippling , indicating the victim was shot at close range. Special Agent Steve Scott of the Tennessee Bureau of Investigation concluded that the bullet fragments f ound in the victim's car were fired from the Dan Wesson Arms .357 revolve r.

I The defendant Murphy maintains that hi s right to due process w as violated by the suggestive showup on Gibs on Drive. He does not c hallenge the showup at Third National Bank. Wilkerson cha llenges both of the showups. He claims a due process vi olation and a deprivation o f his Sixth Amendment right to counsel.
(a) Third National Bank Showup

At the suppression hearing, Officer Roll testified that at ap proximately 12:45 P.M., almost one hour after the robbery and shooting, the suspects arrived at the bank for the showup. Officer Roll interviewed Ms. Seay and Ms. Parker individually and kept them separated throughout the identifica tion process. He informed each as follows:

[W]e had a couple of individuals that we w ere bringing to the bank, that I wanted her to realize that just because10 somebody was at the bank, i t wasn't necessarily

saying that we were sayi ng they were inv olved, that -- that she needed to rely on her memory and that -- that she could not feel any kind of pressure .. .. If it was not the person ... that she saw, then w e definitely did not want her to make an identification. Officer Roll testified that the suspects stood on the sidewalk in front of the bank's one-way window

s. According to the officer,Ms. Seay "was v ery confident about her identification [of W ilkerson]. She said there was no doubt in their mind ...." Ms. Seay did not identify Mur phy. Whereas Ms. Parker was "98 percent" certain about the defendant Wilkerson, who was the gunman,she could not identify the defendant Murphy.
Recently, our supreme cou rt ruled that testimony p resented at trial may be considered by an appellate court in deciding the propriety of the trial court's ruling on a motion to suppr ess. State v. Johnny M. Hen ning , ___ S.W.2d ___, No. 02S01-9707-CC-00065, slip op. at 14 (Tenn., at Jackson , June 22, 1998). At trial, both Ms. Seay and Ms. Par ker testified confidently about the accuracy of the identifications.
(b) Gibson Drive Showu p

At the suppression hearing , Officer Sheffield testified that prior to the showup, he told Ms. Foug ht and Pangburn that "two pos sible suspects" had been detained. He recalled informi ng them that they would drive by slowly to see if the "two individuals w

ho were possibly s uspects ... were the ones that they observed leaving the area." He denied doing or saying anything that would

influence the identification process. As he drove by, each witness looked at the suspects and made a positive identificati on. Officer Sheffield stated that neither witness was hesitant and that both seemed positi ve about the identification.11 At the hearing on the motion to s uppress, Pangburn recall ed that police drove him up the street because, "[t]hey needed me to identify the people who they thought might have done -- just they thought, you know, were involved in what happened." He recalled that he and Ms. Fought talk ed about what they had seen and then rode together in the rear of a patrol car to v iew the suspects. The officer drove slowly

and Pangburn was able to see first one suspect and then another. He remembered that he and Ms. Fought identif ied the men "pretty much simultaneous[ly]." Each s uspect was seated in the r ear of a patrol car and Wilkerson appeared to be handcuffed.

Ms. Fought recalled tha t a police officer informed her "that they thought they had the guys they were looking for and wanted us to identify -- see if we could i dentify them. " Her descr iption of the s howup was substantial ly the same as Pangburn's. She admitted ta lking with Pangbur n about what she and he had observed prior to the s howup but denied having been influenced by the conversation.

Following the motion hearing, the trial court ruled as follows: [The sho wup] that was done at the bank by Detecti ve Roll ... the way [ he] handled that matter was tex tbook fashion . He handl ed it just exactly the way it should have been. The people were separate fr om each other when they made the identification. He was very careful, very conscientious and very professional in the way he handled that and the Court found nothing at all about that that was inappropriate. That motion ... was over ruled .... [As for the showup on Gibson D rive] the matter wasn't handled quite the way it ... could hav e been ... I think under all the circumstances here that the way these identifications were made and having listened to both of these witnesses here today were done in such a w ay where they were not unduly influenced .... I think even though they were in the same car, that [Pangburn] testified when they observed these men that they were identified almost simultaneously .... I think that neither attempted to influence the other. ...12 Neither do I find that the officers at tempted to influen ce the ide ntifica tion. ... [The witne sses] have made the identification, have made i t again here today. And the Court is of the opinion th ey made that identification based on what they observed rather than someone trying to influ ence them to i dentify some person. *** [Applying the Neil v. Biggersfactors] I think clearly there was the opportunity of each of these witnesses to view this suspect at the time they said they did. [Ms. Fought] was cleaning

her house. All of a sudden a car stops real quick ... in a driving lane in front of her house .... She obviously had

an opportunity to look at the person. And she's testified that her identification [comes from] a profile, from the clothing and the body build. ... [Mr. Pangburn] was o bviously very suspicious the whole time . And so I t hink his a ttentio n was on the se two people. ... I think the prior descri ption that they gave w as [] accurate. ... The level of certainty of the witness at the confrontation, I don't think there's any doubt in their minds, then or now, about w ho these men were .... And the length of time between the crime and confrontation was ... within an hour. *** I think both of these witness es made a conscientious, sincere i dentification based on what they observed, not what someone else said or how they were presented. And your motion on that ground is ... denied.
Our scope of review is limited. A trial court's findings of fact are conclusive on appeal unles s the evidence preponderates otherwise. State v. Odom , 928 S.W.2d 18 (Tenn. 1996); State v. Tate , 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981); Graves v. State , 512 S.W.2d 603, 604 (Tenn. Crim. App. 1973); see Tenn. R. Crim. P. 12(e).

To be admissible as evidence,an identification must not hav e been conducted in such an impermissi bly suggestiv e manner as to create a substanti al likelihood of irreparable misidentification. Simmons v. United States , 390 U.S. 377 (1968). In Neil v. Biggers , 409 U.S. 188 (1972), the Supreme Court held that a13 reliable identification pr ocedure, even though suggestive, will not negate an identification of the defendant. The factors dete rmining whether the pr ocedure was too suggestive to ac

cept as reliable wer

e determined to be the following : (1) the opportunity of the w itness to view the criminal at the time of the crime; (2) the witness' deg ree of attention; (3) the accuracy of the w itness' prior descri ption of the criminal; (4) the level of certai nty demonstrated by the w itness at the confrontation; and (5) the length of time betw een the crime and the confrontation. Id. at 199.
Physical or photogr aphic lineups are the preferr ed methods of identif ication. Either pro cedure h as been d etermin ed to be m uch less s uggestive than a "showup," where the victim is either presented with a suspect or a single photograph of the suspect. State v. Terry M. H enderson , No. 01C01-9401-CR00012, slip op. 5 (Tenn. Crim. App., at Nashville, Oc t. 6, 1994), app. denied , (Tenn., Jan. 3, 1995). A showup cons isting of a one-on-one confrontati on between an eyewitness and a defendant, while not ideal, may meet constitutional guideline s if conducted on-the-scene within a short time of the offense. Johnson v. State , 596 S.W.2d 97, 103 (Te nn. Crim. App. 1979) ( citing Russell v. State , 489 S.W.2d 535 (Tenn. Crim. App. 1972); Bracken v. State , 489 S.W.2d 261 (Tenn. Crim. App. 1972)). "[T]he United States Supreme Court and th is Court have repeatedly condemned the use of showups to establ ish the identification of a person suspected of committing a criminal offense unles s (a) there are imperati ve circumstances which necessitate a show up, or (b) the showup occ urs as an on-the-scene investigatory pr

ocedure shortly after the c ommission of the crime." State v.14 Thomas , 780 S.W.2d 379, 381 (Tenn. Crim. App. 1989) (footnotes o mitted); State v. Moore , 596 S.W.2d 841 (Tenn. Crim. App. 1980); State v. Robert L. Ware, Jr. , No. M-94-161 (Tenn. Crim. App., at Knoxville, July 18, 1995), app. denied , (Tenn., Jan. 8, 1996). A showup is sometimes considered reliable because of the temporal proximity to the offense; it "'fosters the desirable objec tives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same ti me enable the police to resume the s earch for the fleeing culprit w

hile the trail is fresh.' " Moore , 596 S.W.2d at 844 ( quoting Bates v. United States , 405 F.2d 1104, 1106 (D.C.Cir. 1968)).

The trial court found the showu p to be properly conducted a nd concluded that the identifications were reliable. Each

witness had an opportunity to view the defendant under ci rcumstances that would i ndicate attentiveness. The sound of gunshots alerted both Ms . Seay and Ms. Parker t o the incident in the bank parking lot. Ms. Seay, who stood within t wenty-five feet of the defendant Wilkerson, recalled many details about his actions and the weapon he carried and was q uite certain about the accuracy of her identification. Ms. Par ker's description of Wilkerson was also consistent w ith her prior statements and she expressed certainty about the identity of the defendant Wilkerson. The show up was conducted withi n an hour of the shooting. In this instance, the witnesses did not speak to each other about what each had observe d. Each made an identification indepe ndently. Neither witness identified Murphy. In our v iew, the evidence does not preponderate against the trial cour

t's findings. In consequ ence, we find no error by the admission of the showup identification testimony of Ms. Seay and Ms. Parker.

Clearly, the Gibson D rive showup was suggestive. The defendants were handcuffed and sitting i n police cars, the witnesses had discussed what they15 had seen, and their identificati ons were not entirely independent. By the use of the factors in Neil v. Biggers , however, the show up was not so suggestive as to create a likelihood of a misidentificati on. Both witnesses had an oppo rtunity to view the men and had clearly focused their attention on their actions. Ms. Fought and Pa ngburn provided police with consistent descriptions, although they were not particularly detailed. Officer Sheffield testified that each witness positiv

ely identified the defend ants withi n thirty mi nutes of the initi al sightin g. The tria l court ma de extens ive findings. The evidence suppor ts the ruling. In our v

iew, the showup identi

fication testimony of Ms. Fought and Pangburn was properly admitted at trial.

The defendant Wilkerson has also contended that the show ups deprived him of his Six th Amendment right to counsel. He argues that a defendant has a right to counsel at a lineup identification after ar rest without a war

rant, citing Greer v. State , 443 S.W.2d 681, 686 (Tenn. Crim. App., 1969) and State v. Mitchell , 593 S.W.2d 280, 187 (Tenn. 1980).

The trial court ruled on this ground as follows: [A] person's Sixth and F ourteenth Amendment right to counsel attaches only at or after the time the adversary judici al proceedings have been initiated. And that has been interpreted ... i n Tennessee [to be] when a person is taken before a magistrate and a warrant is issued, which was considered ... a formal charg e. *** So the Court is of the opinion, . .. that the ... right to counsel had not attached at the time of this showup that was within one hour of these men becoming suspects. So that ... will also

be respectfully overr

uled.
A defendant has the right to counsel at all "'critical' stages in the criminal justice proc

ess 'where the result

s might well settl e the accused's fate and reduce the trial itself to a mere formality.'" Maine v. Moulton , 474 U.S. 159, 17016 (1985) ( quoting United States v. Wade , 388 U.S. 218, 224 (1967)); Mitchell , 593 S.W.2d at 286. In Tennessee, an arrest warr ant, or a preliminary hearing if no arrest warrant is issued, or an indictment or presentment, when the charge is initiated by the grand jury, marks the initi ation of criminal charges to which the Sixth Amendment right to counsel attac hes. Mitchell , 593 S.W.2d at 286; State v. Frasier , 914 S.W.2d 467 (Te nn. 1996). Because no formal criminal charges for these offenses had been initiated against Wilkerson, he did not have an unconditional right to have counsel present at the showup. Mitchell , 593 S.W.2d at 287. In consequence, there was no violation of his Sixth Amendment right to counsel.

II The defendants challenge the trial court's instruction to

the jury on parole eligibility. Each contends that Tenn. Code Ann. § 40-35-201(b)(2) is unconstitutionally vague, violates due process by depriving the defendants of a fair and impartial jury, and infringes on constitutional ly mandated separation of powe rs. The state responds that the statute is constitution al and the issue is waived because the defendants requested this ins truction.
The defendants requested a charge as to the range of punishment, Tenn. Co de Ann. § 40-35-20 1(b)(1), b ut object ed to a cha rge on rele ase eligib ility, Tenn. Code Ann. § 40-35-201(b)(2) . The trial court refused to al ter the instruction and gave it in its entirety.

For the offense of especially ag gravated robbery, the defendants would qualify for a sentence of between fifteen to twenty -five years and could be eligible for parole after serving as little as 1.77 years. Upon a conviction for first degree murder, the defendants would receive a life sentence a nd could be eligible17 for parole after twenty- five years. If convi cted of theft, the defendants could be parole-eligible upon s

erving 0.24 years

of a possible sentence between two and four years.
The trial court also charged facilitation as lesser i ncluded offenses. If convicted of facilitation to commit especially agg ravated robbery, the de fendants could serve a sentence betw een eight to twelve years but could be elig ible for release in as little as

0.94 years. For facili

tation to commit first degree murder, the defendants were subject to a se ntence of fifteen to twenty-fiv e years and might be eligib le for pa role aft

er a ser vice of 2.95 years. Co nvicti ons for fa cilita tion of t heft would result in a sente nce of one to two years and p ossible parole eligi bility after service of 0.20 years.Finally, the court instructed that a joyr iding conviction c

arried a sentence of eleven months and tw enty-nine days. The jur ors were instructed that they could "weigh and

consider the meaning of a sentenc e of imprisonment."

In State v. Howard E. Ki ng , ___ S.W.2d ___, No. 02 S01-9703-CR00021 (Tenn., at Jackson, July 6, 1998), the defendant challenged the constitutionality of Tenn. Co de Ann. § 40-35-201(b)(2) (Supp. 1994), claiming the statute violated separation of powers and due process. Slip op. at 5. Th e court upheld the statute:

We conclude that Tenn. Code Ann. § 40-35-201(b)(2) does not violate the Separati on of Powers Clauses of the Tennessee Constitution. Neithe r is the statute impermissibly vague, nor does it require a misleading jury instruction. Additionally, we are satisfied that the jury based its verdict upon the law and evidence, in accordance with the instructions of the trial court. Thus, we find that neither the Due P rocess Clause of the United States nor the Tennessee C onstitution was violated by the jury

instruction given pursuant to the statute. Id. , slip op. at 17. The court w as careful to limit its hol ding to the circumstances of18 the case: Significantly, [the jury members] were additionally

instructed that they w

ere not to attempt to fix punishment for the offense and that the sentencing infor mation was "for your information only. " When the trial court explains, as it did here, that the sentencing, parole, and early release information is not to be considered in the determination of guilt or i nnocence, then certainly no due process violation has occurred. Id. , slip op. at 16 (emphasis added); but see State v. Jason M. Weiskopf , No. 02C01-9611-CR-00381, slip op. at 7 (Tenn. Crim. App., at Jackson , Feb. 4, 1998), app. pending , (May 6, 1998).

In Weiskopf , this court found plain erro r in the jury charge because the jury was instr

ucted they could "weig h and consider the meaning of a sent ence of imprisonment." Weiskopf , slip op. at 8. Under our law, the jury determines the guilt or innocence of the accused but does not determine the length of impri sonment. Id. ; Tenn. Code Ann. § 40-35-201(a). Such an instruction is constitu tionally infirm because the jury is per mitted to base its decision o n information other than that adduced at trial. Weiskopf , slip op. at 9.

Erroneous jury instructions do not constitute reversible error in every instance, however. State v. Bush , 942 S.W.2d 489, 505 (Tenn. 1997). In Weiskopf , the primary issue w as the degree of homicide. Weiskopf , slip op. at 9. The court found harmful error because it cou ld not conclude that the "ridiculously low, earliest rele

ase eligibility dates of 1.06 years and 0.21 ye ars for second degree murder and voluntary mans laughter, as compared to the ea rliest release elig ibility date of twenty-five (25) years for first degree murder ... had no impact upon the jury ...." Id. , slip op. at 10.

Here, the trial court charged the jury w ith the same instruction19 provided in Weiskopf , i.e., that the jury m ay "we igh and

conside r the mea ning of a sentence of imprisonment." The primary issue for the jury w

as identity, not the degree of homicide. The state pres ented a strong case whi ch consisted of numerous eyewitnesses who testified confidently and consistently as to what each had observed. The state present ed numerous items of physical e vidence, including palm prints, clothing, and photographs of the stolen ve hicle. The proof included the murder weapon, which c ontained three spent casings , bullet fragments from the victim's car that w

ere conclusively fired from the murder weapon, and the proceeds of the robbery still cont ained in locked "River

gate 8" bank bags. The defendants present ed no pro of. In ou r view, this wa s not a cas e in which th e jury may ha ve imposed a guilty ve rdict for felony murder in order to ensure the defendants serv ed a greater sentence. Thus, the instruction was harml ess beyond a reasonable doubt. See State v. Michael Dink ins , No. 02C01-9702-CE-00075 ( Tenn. Crim. App., at Jackson, Mar. 12, 1998) (h olding that charging the parole eligibili

ty instruction wa

s harmless error).

III

The defendant Murphy contends that the evidence is insufficient to support the verdicts of g uilt for especially aggravated robbery an d felony murder. On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and all reasonabl e inferences which might be drawn therefrom. 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 trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is challeng ed, 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 es sential elements of the20 crime beyond a reasonable doubt

. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).

At the time of the offenses, felony murder w as defined under the 1989 Act as "a reckless kil ling of another committed in the perpetration of, or attempt to perpetrate any first degr ee murder, arson, rape, robber y, burglary, the

ft, kidnapping or aircraft piracy." Tenn. Code Ann. § 39-13-202(a)(2) (Supp. 1994). To sustain a conviction for felony murde r, "the killing must hav e been in pursuance of, rather than collateral to the unlaw

ful act described by the st atute." State v. Severs , 759 S.W.2d 935, 938 (Tenn. Crim. App. 1988). The death of the victim must have had "an intimate relation and close connection with the felony , ... and not be separate, distinct, and independent from it . ..." Farmer v. State , 296 S.W.2d 879, 883 (Tenn. 1956).
Robbery is defined as "the i ntentional or knowing theft of property from the person of another by vi olence or putting the pers on in fear." Tenn. Code Ann. § 39-13-401(a). Especiall y aggravated rob bery is robbery "[ a]ccomplished with a deadly weapon; and ... [w ]here the victim suffers ser ious bodily injury." Tenn. Code Ann. § 39-13-403(a).

The mental state of intentional is satisfie d "when it is the person's conscious objective .. . to engage in the conduct or cause the result." Tenn. Code Ann. § 39-11-302(a). A perso n acts knowingly "when the person is aw are that the conduct is reasonably c ertain to cause the result." Tenn. Code Ann. § 39-11-302(b). One is reckless "when the person is aware of but consciously disregards a substantial and unjustifiable r isk [and to do so] constitutes a gross deviation from the standard of care that an ordinary person would exerci se ...." Tenn. Code Ann. § 39-21 11-302(c).
Accomplice liability provides a basis for conv iction of the defendant Murphy. Tenn. Code Ann. § 39- 11-302(a). In State v. Maxey , 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994), this court held that the statute attac hing criminal liabil ity for the conduct of another requires the culpable m ental state of intent. Knowing, reckless, and neglig ent mental states are insufficient. Id. For the evidence to be sufficient to sustain a convi ction under the criminal r esponsibility for the con duct of another statute, there must be proof tha t the defendant intended, as def ined in Tenn. Code Ann. § 39-11-302(a), to promote or assist the commiss ion of the offense, or to benefit in the proceeds or results of the offense. Tenn. Code Ann. § 39-11-402(2). In addition, there must be proof that the defendant soli cited, directed, aided, or attempted to aid another t o commit the offense. Id. An aider and abettor under our code may be held responsible not only for the intended criminal offense but also for any other crime committed by an accomplice as a "natu ral and probable consequence of the crime orig inally aided and abetted." State v. Carson , 950 S.W.2d 951, 952 (T enn. 1997).

Taking the facts in a light most favorable to the state, a r ational trier of fact could have found that the defendant Mur phy stole the Cutlass for the purpose of committing a robbery. He then drove the vehic le to the bank parking lot and stopped quickly nex

t to the victim's car

so that the defendant Wilkerson could shoot the victim and grab the bank bags. Murphy fled th e scene in the stolen vehi cle with Wilkerson and the proceeds. Several bl ocks away, Murphy hurriedly abandoned the vehicle and Wilkerson hid the contraband. Murphy ordered Wilkerson, "hurr y up."
The jury may infer the int ent of the accessory from his "pr esence,22 companionship, and conduct before and after the offense ...." State v. McBee , 644 S.W.2d 425, 428-29 (Tenn. Crim. App. 1982). Mur phy's intent to rob the v ictim may be inferred from his actions in stealing and drivin g the car, stopping besi de the victim, making a get

away, waiting

for Wilkerson to hide the proceeds and weapon, and atte mpting to evade aut horities . In our view, a rationa l trier of fact cou ld have found Murphy guilty as an accomplice to especially aggravated robbery and first degree felony murder.

IV

The defendant Murphy also maintains that the trial court err

ed by admitting a "life photograph" of the victim. The state responds that the photograph was properly admitt

ed to prove the identity of the victim.
The admissibility of photogr aphs is governed by

Tenn. R. Evid. 403. See State v. Banks , 564 S.W.2d 947 (Te nn. 1978). "Although relevant, evidence may be excluded if its pr obative value is subs

tantially outweig hed by the danger of unfair prejudice, confusion of the is sues, or misleading the j ury ...." Tenn. R. Evi d. 403. The evidence must be relev ant and its probative v

alue must outweigh any prejudicial effect. Banks , 564 S.W.2d at 950-51. Whether to admit the photographs is within the discr

etionary authority o

f the trial court and wi ll not be reversed absent a clear showing of an abus e. 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). Photographs of homicide victims, while alive, should not be admitted at trial unless relevant to a material i ssue; however, such an error is almost alw ays harmless. See , e.g. , State v. Strouth , 620 S.W.2d 467 (Te nn. 1981).

In our view, the "li

fe photograph" was improperl y admitted. "[I]t added23 little or nothing to the sum total of knowledge of the jur y." See State v. Christopher S. Beckham , No. 02C01-9406-CR-00107, slip op. at 19-20 (Tenn. Cri m. App., at Jackson, Sept. 27, 1995) (remande d for sentencing). In Beckham , where photographs of the deceased victim prior to death were admitted, th is court recognized that the "ev idence 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. Althoug h the photographs of the victims prior to their deaths usually hav e no probative value, w e cannot say that the trial court so abused i ts discretion by thei r admission so as to have affected the verdict.

V

The defendant Murphy argues that the trial court improperl y allowed prosecution witness Newland to testify and, alternatively, that the trial court should have granted him a continuan ce. The state, however, maintains that the defendant was provided wi

th a summary of Newland's expected testimony three days prior to trial and had an opportunity to interview New

land before he testified.
Murphy relies upon Tenn. C ode Ann. § 40-17-106, which creates the duty for the district att

orney general to endors e on each indictment or presentment the names of the witnesses he intends to summon for the state. It is well settled in Tennessee that this provisi on is directive, rather than mandatory. State v. Hutchison , 898 S.W.2d 161, 170 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 69 (Tenn. 1992); State v. Street , 768 S.W.2d 703, 711 (Tenn. Crim. App. 1988); State v. Crabtree , 655 S.W.2d 173, 177 (Tenn. Crim. App. 1983); Thomas v. State , 465 S.W.2d 887, 889-90 (Tenn. Crim. App. 1970). The purpose of this section is to limit24 the possibility of surpr

ise and to provide the defendant a basis upon which to prepare a theory of defense again st his accusers. State v. Melson , 638 S.W.2d 342, 364 (Tenn. 1982); Street , 768 S.W.2d at 710-11; State v. Roberson , 644 S.W.2d 696, 699 (Tenn. Crim. App. 1982). The failure to list or provide the names of witn esses ne ither d isqual ifies th e witne ss nor e ntitles

the defen dant to r

elief, unless prejudice can be show n. Hutchison , 898 S.W.2d at 170; Harris , 839 S.W.2d at 69; Roberson , 644 S.W.2d at 699. "I n this context, it is not the prejudice which resulted from the witnesses testimony but the prejudic e which resulted from the defendant's lack of notice whic h is relevant...." State v. Jesse Eugene Harris , No. 88-188-III (Tenn. Crim. App., at Nashville, June 7) , app. denied , (Tenn., Aug. 7, 1989). Because Murphy had n otice of the content of Newland's testimony and had an opportunity to interv iew him, we find no prej udice.

The law address ing Mur

phy's a lternative contention , the gr ant of a continuance, is also well settled. The grant or denial of a continuance rests within the sound discretion of the tri al court. State v. Seals , 735 S.W.2d 849, 853 (Tenn. Crim. App. 1987). Its deter mination will not be ov

erturned unless there is "a clear showing of an abuse of discre tion, to the prejudice of the defendant." Woo ds v. State , 552 S.W.2d 782, 784 (Tenn. Crim. App. 1977); Frazier v. State , 466 S.W.2d 535, 537 (Tenn. Crim. App. 1970). Murphy had knowledg e of Newland's testimony and an opportunity to interv iew him. In this inst

ance, the trial court did not abuse its discretion.

VI

Murphy and Wilkerson challenge the length and manner of servic e of their sentences. When there is a challeng e to the length, range, or manner of service of a sentence, it i s the duty of this court to c onduct a de novo review with a25 presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). "If the trial court app lies inappropriate factors or other wise fails to follow the 1989 Sentencing Act, the presumption of correctness falls ." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provi de that the burden is on the defendant to show the impr opriety of the sentence.
Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and - 210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987). The record in this case demonstrates that the trial court made adequate findi ngs of fact.

In calculating the sentence for felony convictions committed be fore July 1, 1995, the presumptive sentence is the minimum within the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210( c) (1990) (amended July 1, 1995 to provide that the presumptive sentence f or a Class A felony as the midpoint in the r ange). If there are enhancement factor s but no mitigating factors, the t rial court may set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A s entence involving both enhancement and mitigating factors requires an assignment of relative weight for the enhancement f actors as a26 means of increasing the sentence. Tenn. Code Ann. § 40-35-210. The sentence may then be reduced withi n the range by any w eight assigned to the mitigating factors present. Id.

At the sentencing hearing , the trial judge found that Wilkerson and Murphy have a history of criminal behavior in addition to that necessary to establish the appropriate range of sentenci ng. Tenn. Code Ann. § 40-35-114( 1). As to Wilkerson, the court found that he had a history of unwillingness to c

omply with the conditions of a sentence invol ving release to the c

ommunity. Tenn. Code Ann. § 40-35-114(8). The court stated that it gave a "great amount of weight" to these enhancement factors, found no mitigators and imposed maximum sentences of twenty-five yea rs for especially ag gravated robbery an d four years for theft.

We affirm the imposition of the maximum sentence for theft. The tri al court, however, err

oneously applied Tenn. Code Ann. § 40-35-210(c) (1995), not yet in effect at the time these offenses were committed, to enhance the sentence for especially aggravated robbery. That statute provides that the presumptive sentence is the midpoint in the rang e rather than the minimum. Thus, ther e is no presumption of correctness as to the sentence imposed fo r the Class A felony of especially aggravated robbery. Our review of that sentence must be de novo .

The defendant Murphy has an extensive criminal history. As a juvenile, he was pl aced in an intervention pr ogram for malicious destruc tion of property and truancy.He also committed third deg ree burglary and w as placed on probatio n. The sa me year he was adjudi cated fo r maliciou s destruc tion of p roperty, grand larceny, and v

iolation of probation. As an adult, he incurred a plentitude of charges, many of which resulted in convicti ons. For example, he w as convicted of27 possession of a weapon with intent to go armed in 1989, r eckless endangerment and two instances of theft of property in 1991. In 1993, he was conv icted of several counts of theft and placed on probation. The instant offenses occurred in 1994, while he was on probation. Murphy refused to provide any information regarding his mental or physical health or employment or family bac kground.
The defendant Wilkerson also has a lengthy cr iminal record. In 1991, he was arrested and conv icted of resisting arr

est and driving on a s uspended license. He also acc umulate d misdem eanor co nvictions for thef t of prop erty, possession of a weapon, driv ing on a revoked lic

ense, criminal impersonati on, and a probation violation. Wilkerson le ft school in the tenth grade and has a history of marijuana, cocaine, heroin and alcohol abuse. He adm itted to selling cocaine as his livelihood.
The defendants' sentences for especiall y aggravated rob bery warrant enhancement. Wilkerson has a history of cr iminal convictions and criminal behavior, Tenn. Code Ann. § 40-35-114(1), and a history of un willingness to comply with conditions of a sentenc e involving rel ease to the community, Tenn. Code Ann. § 40-35-114(8). Murphy likewise has a history of criminal convictions and behavior, Tenn. Code Ann. § 40-35-114(1), and he was on probation whi le these offenses were committed, Tenn. Code Ann. § 40-35-114(13). Beginnin g at the minimum in the range, which is fifteen years, and givi ng great weight to these enhancement factors, we arrive at a sentence for each defendant of twenty -one years for especially aggr

avated robbery.

Prior to the enactment of the Cri minal Sentencing Reform Act of 1989, the limited classifications for the imposition of co nsecutive sentences were set out in1 The first f our crit eria are f

ound in Gray . A fif

th category

in Gray , based on a speci fic number of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion

. See Tenn. Code Ann. § 40-35-1 15, Sentenci ng Comm ission Comments. 28 Gray v. State , 538 S.W.2d 391, 39 3 (Tenn. 1976). In that case our supreme court ruled that aggravati ng circumstances must be pr esent before placement in any one of the classifications. Later,in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), the court established an addition al category for those defendants convicted of two or more statutory offenses involving sexual abuse of minors. There were, however, additional words of caution :

[C]onsecutive sentences s hould not routinely be impos ed . . . and . . . the aggre gate maxim um of co nsecutive terms must be reasonably r elated to the severity

of the offenses involved. Taylor , 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the holdings in Gray and Taylor ; consecutive sentences may be imposed in the discretion of the t rial court only upon a determination that one or more of the following criteria 1 exist:

(1) The defendant is a professional criminal who has knowingly dev

oted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose r ecord of criminal activity

is extensive; (3) The defendant is a dangerous ment ally abnormal person so declared by a c ompetent psychiatrist w ho concludes as a result of an inv estigation prior to sentencing that the defendant's cr iminal conduct has been characterized by a pattern of repetitive or compulsive behavior w ith heedless indifference to consequences; (4) The defendant is a dangerous offe nder whose behavior indicates little or no regard for human l ife, 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 involv ing sexual abuse of a minor with consideration of the aggrav ating circumstances ari sing29 from the relationship between the defend ant and victim or victims, the time sp

an of defendant's undetected sexual activity , the nature and scope of the sexual acts and the extent of the residual, p hysical and mental damage to the victim or victims; (6) The defendant is sentenced for an of fense committed while on probatio n; (7) The defendant is sentenced for cr iminal contempt. Tenn. Code Ann. § 40-35-115(b).

In Gray , our supreme court ruled tha t before consecutive sentenci ng could be imposed upon the dangerous offender, as now defined by subsec tion (b)(4) in the statute, oth er conditions must be present:(a) that the crimes inv olved aggravating ci rcumstances; (b) that consec utive sentences are a neces sary means to protect the public from the defendant; and (c) that the term reasonabl y relates to the severity of the offenses.

In State v. Wilkerson , 905 S.W .2d 933, 938 (T enn. 1995), ou r high court reaffirmed those principl es, holding that consecuti ve sentences cannot be required of the dangerous offender "unl ess the terms reasonably relate[] to the severity of the offenses committed and are nece ssary in order to protect the public (society) from further cr iminal acts by those per sons who resort to ag gravated criminal conduct." The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutive sentencing adopted i n State v. Woods , 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human process that neither can nor should be reduced to a set of fixe d and mechanical rules." Wilkerson , 905 S.W.2d at 938.

The trial court ordered the defendants to serve each sent ence consecutively, inc

luding the life sentence, for an effective sentence of life plus30 twenty-nine year

s. The trial court found Wilkerson to be a dangerous offender with an extensive crimina l history who had no regard for human life. Tenn. Code Ann. § 40-35-1 15(b)(2) , (4). As f or Murphy, the court ruled tha t he had a n extensive criminal history and committed the offenses while on proba tion. Tenn. Code Ann. § 40-35-1 15(b)(2) , (6). In ou r view, the co urt's dec ision to im pose con secutive sentences is more than adequatel y supported by the rec

ord. These offenses involved aggravating circumstances and the length of sentence is reasonably related to the severity

of the crimes involved which resulted in a s enseless and random loss of life. That the defe ndants committed a crime of violence with the use of a weapon justifies a lengthy period of incarceration in order to protect the public from future harms.

Accordingly, the j udgment of the trial court is affirmed. The defendants' sentences for especially aggravated robbery

are modified to twenty-o ne years. As a result, th e effec tive sente nce for e ach def endant i s life plu s twenty-f ive years.

__________________________________ Gary R. Wad e, Judge
CONCUR:

________________________________ Thomas T. W oodall, Judge

________________________________ L.T. Laff erty, Special Judge