# FILED
October 29, 1998 Cecil W. Crowson Appellate Court Cle rk IN THE COURT OF CR IMINAL APPEALS OF TENNESSE E

AT NASHVILLE MAY 1996 SESSIO N
STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9510-CC-00324

) ) Davidson County v. ) ) Honorable Walter C. Kur tz, Judge ) ALLAN BROOKS, ) (First degree murder) ) Appellant. ) For the Appellant : For the Appellee : John E. Herbison Charles W. Burson 2016 Eighth Avenue South Attorney General of Tennessee Nashville, TN 37204 and Charlotte H. Rappuhn Assistant Attorney General of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney Gener al and Roger Moore Rene Erb Assistant District A

ttorneys General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1642

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N The defendant, Allan Brooks, appeals as of right following a jury conviction in the Davidson County Criminal Court for first degree murder. The trial court sentenced the defendant to life im prisonment in the custody of the Department of Correction and ordered the d efendant to serve the life sent ence consecutively to an earlier sentence for a dr ug offense. The defendant presents the following issues for our review: (1) whether the collateral es toppel component of t he Do uble Jeopardy

Clause was violated when the trial court allowed the state to seek a conviction for willful, deli be rate, and premeditated murder; (2) whether the evidence is suf ficient to prove all elements of pre medit ated and deliberate murder beyond a reasonable doubt; (3) whether the trial court erred by admitting into evidence the victim’s statem ent that the defendant held a gun to her head during an earlier incid ent; (4) whether a witness’ testi mony that the defendant threatened to kill her constitutes prejudicial error; (5) whether the testimony of Lilly Rose ex ceeded the proper scope of rebuttal; (6) whether the state comm itted prejudicial errors during final argument; (7) whether the trial court erred by de nyi ng the defendant’s request for special instructions; (8) whether

the trial court erred b

y giving the jury a sequential instruction; (9) whether the cumul ative effect of the errors render ed the trial fundamentally unfair; (10) wheth er the trial court erred by ordering the defendant’s sentence to be served consec uti vely to an earlier sentenc e; and (11) whether

the automatic impositio n of a life sentence upon conviction for first degree murder when the state is not seeking3 the death penalty violates the equ al p rotection component of the Tennessee Constitution. We affirm the judgment of conviction.

The defendant was first char ged on January 26, 1990, with fi rst degree premeditated and deliberate m urder, murder committed during the attempt to perpet rate a felony, and burglary with the intent to commit murder of his estranged girlfriend, Amy Peyton. The defendant was convi cted by a jury of first degree premeditated and deliberate murder and was acquitted of the felony murder and burglary charges. The murder conviction was reversed, and the case was r emanded for a new trial bas ed on the trial court’s err

or in jury instructi ons regarding deliberation and premeditation. See State v. Brooks , 880 S.W.2d 390, 393 (Tenn. Crim. App. 1993). At the second trial, which forms the basis f or this appeal, the defendant was found guilty of first degr ee murder and sentenced to life imprisonment.

Cody Albin, who lived i n the apartment directly ab ove the victim, testifi ed that on August 20, 1989, she heard a door slam at abou t 5:02 a.m., and then she heard a man and a woman begin to argue in the apartment below her. Albin said she remembered the time becaus e she always arose at 5:00 a.m . to get ready for work, an d her alarm had sounded when she heard the door slam. She sai d she began to get ready for work, but she stopped to dial 9-1-1 when she heard bloodcurdling screams coming from the woman downstairs. Albin testified that the screaming sounded like someone was being killed. She stated the woman was scr eaming, “No. Please. Do n’t. Stop.” Albin said she als o heard sounds like an object was being thrown from w all to wall. She testified that the noise stopped after five to six minutes, and then there was silence for approximatel y two minutes. She said at the end of the silence, she hear d a gunshot. She stated she knew the s ound was a gunshot because she had dated a policeman and was famili ar with the sound that a gun mak es when it is discharged.4 Colleen Critton testified that she lived in an apartment a few floors above the victim. She testifi ed that she heard screaming at approximately 5:00 a.m. but that she thought initially the noi se was caused by cats. She s aid eventually she looked out her window and saw a little boy, whom she later learned was the victim’s six-year-old son, Josh Peyton, running up the s idewalk and screaming. She said Josh appeared terrified, frantic and scared. She said when she ran downstairs to talk to him, Josh told her his mother was dead. S he said as they walked back to the victim’s apartm ent together, Josh said to her, “You don’t want to go in there. There’s blood everywhere.” She said she took Josh back to her apartment and called the police. She stated Josh did not mention the defendant’s nam e and there was no blood on Josh w hen she found him.
Josh Peyton, who was six y ears old at the time of the s hooting, testified that he witnessed the argument between the defendant and his mother and the shooting. He said his inf ant brother, who is the defendant ’s and the victim’s s

on, was also in the apartment at the time. He stated he was asleep when his mother came home, but the sounds of the defendant and his mother fighting awoke him. He said his mother was screaming, and she told Josh to get out of the house. He said he tried to use the front door but it was stuck. He said the defendant w as hitting his mother, and his mother was trying to hit the defendant. He stated hi s mother had no weapon and was lying on the couch whi le the defendant was hitting her, with her head back and her feet out in front of her on the floor.

Josh said he tried to use the sliding glass door to get o ut but could not open it. He testified that as he was trying to leave, he saw the defenda nt shoot his mother. He said he did not hear anything as the gun dischar ged, but he saw a light come from the gun. He sai d his mother was on the couc h when she was shot, and the5

defendant was beside her with a silver gun in his hand. He said he was uncertain whether the defendant was in the living room the entire time Josh was trying t o open the door, but Josh remember ed the defendant was only in the r oom for a minute after his mother was shot. He said the defendant did not go to anothe r part of the apartment before the defendant left. Josh te stified that he tried to fol low the defendant as the defendant left, but the defendant told h im to go back inside the apar tment.

Josh admitted that when he was interviewed by a police officer the morning of the shooting, he tol d the officer the defendant “shoc ked” his mother and stated he did not mean “shot” as in gunshot when the officer questioned him regarding the meaning of his statement. He testified that this st atement referred to the fact that he saw a light when his m other was shot. Josh said he now realizes his moth er was shot, and the light he saw cam e from the gun.

Officer Raymond Rader t estified that he received a d omestic call to the victim’s apartment at 5:08 a.m. on August 20, 1989. Officer Rader said shortly thereafter he received a sec ond call telling him the same incident was now an emergency. He testified that he arrived four to five minutes later and saw the victim’s body on the couch when he entered the apartment. He said the body w as not moving and there were no vital si gns. He said he did not move the body but noted that the victim’s face and clothing were covered in blood. Officer Rader said he s ecured the scene to prevent contaminati on.

Officer Ronald Wilson

testified that he measured the victim’s apartment and took pictures. He said he noted a footprint on the front do or, and the door latch was broken. He said bloods tains were found on the door l atch, handle, and surrounding areas.6 Officer Richard Winf rey testified that he assi sted in processing the evidence at the victim’s apartment. He said he found a spiral notebook and a pen on the bed in the bedroom, and the pen and notebook both had what appeared to be bl ood on them. The notebook, which was introduced into evidence, con tained a note which stated, “I Allan, am going to kill Amy and myself. I’m sorry but she has messed with my life for the last time[ .] Les, Linda, Mom, Edwar d and especially Preston I l ove you. Allan.” Officer Wi nfrey said he also found a bull et and a copper jacket embedded i n the cushion of the couch, and a shell was found under the victim.

Sergeant Darrell Ryan te stified that he took pictur es and processed the body. He stated the body of the v ictim was on the livi ng room sofa when he arriv ed. He said the pillow was behind the head, blood was on the body , legs, stomach and saturated into the victim’s clothing, and blood was on the victim’s left arm where it flowed from the victim ’s head because of the gunshot wound to her face. He said he rolled the body over and found t he copper jacket that was l ocated between the body and the couch. He stated he saw a bullet exit wound in the back of the victim’s neck and then searched the couch and dis covered the bullet behind the s ofa cushion.
Sergeant John Hunter, an expert in blood spatter analysis, testified that he arrived at the victim ’s apartment while the body was still there. He said it was unusual that there was no high v elocity spatter from th e bullet’s exit wound, but i t may have been because the spatter was caught by the victim’s ha ir. He said blood pooled under the sofa cushions and ran to the floor. He also sai d there was blood on the furniture, ceiling, and w alls. He testified that the blood on the venetian blinds a nd the chair in the living ro

om was expectorant, whic h is blood that is coughed up or spit out of the mouth. He said he found impact spatters on the venetian blind s above the chair, and this spatter type is created when a bloody object impacts something else . He said these spatters indicate the bl ood originally came fro m the area in front of the ch air, and7

the spatters were consist ent with someone being hit w hile seated at or standing in front of the chair. He also stat ed there were transfer and l ow velocity spatter stai ns, and the blood spattering was consis tent with someone being beaten i n the living room by numerous strikes. He s aid a single blow would not cause spattering.
Sergeant Hunter testified tha t he also found transfer stai ns in the hallway that led to the two bedrooms and that the stains were transferred from a bloo dy object that was in motion. He said the stains in the hallway were about torso height and were consistent with a bloody body brushing against the wall while walking down the hal lway. He said he found additional bl oodstains in the bedroom on the door casings, floor, bed, chest of drawers and the cl othes within the drawers.He said these stains were freeflowing or transfer stains. He said the dresser drawer was broken at the joint, which is not necessarily evidence of a struggle but is also con sistent with pulling the drawer out forcefully.
Sergeant Larry Lewis, of the Daytona Beach, Florida Pol ice Department, testified that the defendant was arrested on August 25, 1989, at a m all in Daytona Beach, and the police discover ed at the shopping mall a Toyo ta stolen by the defendant. He said the police found numerous documen ts in the defendant’s name in the car. He said the polic e also found a .357 firearm i n the car, and the weapon had four live rounds. He said two rounds had been fired. He said the police found a small amount of cocaine, a pornographic tape, and some men’s clothin g and toiletry items in the car.
Tommy Heflin, a forens ic sciences agent with the Tennessee Bureau of Investigation, testified tha t he examined the defendant’s gun. He said the gun functioned properly, and the s afety mechanism was wor king. He said the gun was tested to see if it would go off accidentally when hit or dropped, and the test was8

negative. He said when the gun is fired, it ejects a b right flash of light in a ddition to powder and primer residues, and when fired at bare skin, the gun leaves reddish markings or small bu rns called powder tattooin g. He testified that these m arkings show the gun was fired within t wenty-four inches of the tar get. He said heat is creat ed when a gun is fired, and the heat woul d burn one’s hand if it wer e placed on the barrel at the time of firing. He said his tests revealed the copper jacket found in the victim’s apartment was fired from the gun admitted into evidence.On cross-examination, he said it is possible for

one to hold the barrel of the gun while it is fired and not get burned.
Dr. Mona Harlan, the former medical examiner for Davidson County, testified that she perform ed the autopsy on the victim’ s body. She testified that the cause of death was a gunshot wound that entered at the top of the cheek, just outside the left eye, and exited the back of the neck below the hairl ine. She said the barrel of the gun was about three to twelve inches from the victim when she was shot. Dr. Harlan said the victim

suffered bruising to the l ips, gums, and face, tearing of the skin, bruising to the left side o f the chin and cheek, extensiv e bruising on the right si de of her face, black eyes, a star- shaped tear on the right side of her scalp, and a broken nose. She said the victim was probably alive when she received these injuries bec ause dead people usually do not bruise.

Dr. Harlan testified that the victim also rec eived injuries to her ear that were caused by either a si gnificant force or an objec t with an edge being swung at the victim. She said the obj ect could have been a gun simi lar to the defendant’s gun. She testified that the sharp tear wound also could have been caused by impact with the gun. She said the left side of the v ictim’s brain was br

uised, probably by a blow t o the opposite side of the head or a st rike directly over the affected area. Dr. Harl an said the victim had extensive bruising to the lips and split gums that were caused by at least9

three separate impacts to the mouth area. She said that fr om the injuries sustaine d, the victim could have been c omatose, awake and confused, or awake and alert yet weakened before she was shot. She said the only fatal wound w as the gunshot wound.

Dr. Harlan testified that she did a blood and urine anal ysis that showed the victim had something a lcoholic to drink the ni ght of the shooting, but there was not enough alcohol in her blood stream to have affected her be havior. She said the victim had injuries to her arms and hands, and the victim’s arm was probably up agains t her face when she was shot. She tes tified that there were no bur ns on the victim’s hands to indicate that she had her hand o n the weapon when it was fir ed. She said a gunshot residue test was not possi ble because of the amount of blood the victim had on her hands when her body arrived f or examination. Dr. H arlan said when the victi m was shot, she had to have been in a position similar to that i n which her body was found when the police arrived.

Donna Beavers, a friend of the victim, testified that she met the victim in September 1988 at the bank where they worked together and that they saw each other socially several times each week. She said the victim had dated the defendant before she and the victim were f riends, and the victim s tarted dating the defendant again in the beginning of 1989. She said she and the victim and two men dec ided to go out on August 19, 1989. She said they went to a softball party then to Patrick’s, a local bar

. She said the victim had m ade plans to meet the defendant at Pat rick’s. She testified that when they arrived at the bar, the defendant was there and he and the victim got into an argument. She said the defendant threw a drink on the v ictim then reached for the victim’s drink and punched a man who tried to intervene. She said both men were taken out of the bar. She said when Patrick’s closed, the victim drove them home because she had not had much to dri nk, and at 4:00 a.m. they dropped the victim off at her apartment.10 Beavers testified that the v ictim told her the defendant pointed a gun at her forehead in the parking l ot of Patrick’s in Jul y 1988. She said the victim , who appeared very excited, told her about the incident when Be avers arrived at the victim’s car just after the incid ent occurred. She said neith er she nor the victim r eported the incident to the police. She ad mitted that in the past, other incidents had caused the victim to seek restraining orders on the defendant, and she did not kno w why the victim did not report that particul ar incident to the police. Beavers testified that the relationship between the vi ctim and the defendant was stor my but that on August 18, 1989, the victim told her she and the defendant had decided they w ere going to be friends and date other people. S he said this decision seem ed to relieve the victim . She said she had never seen a gun in the victim’s apartment

.

The defendant testified that he gr aduated with honors from the University of Tennessee and that he had attended o ne year of law school in 1980-81. He said his sources of income before th e shooting included selling real estate, cocaine, and marijuana, and his prim ary source of income dur ing the time he dated the vict im was selling cocaine. He sai d he heavily used cocaine, usi ng a minimum of one gram per day and sometimes as much as one eighth to one quarter of an o unce. He explained that the combination of alcohol and cocaine caused him to lo se his sense of judgment, and he testified about several incidents when he was high on cocaine and his impaired judgment caused him to do ir rational things, such as c onfronting a mugger who had a knife.

The defendant testified that he and the victim had a son together, but they had a sporadic relationshi p. He said he and the victi m lived together at one point, but he asked her to leave his house after an argument. He said they bega n dating again in April 1989, but the victim would start arguments with him when he received c alls from other women. He admitted he consorted with prostitutes, and this caused problems in11

their relationship. The defendant stated their relatio nship was going well in April 1989, but they broke up in July bec ause they began having problems.He said he never pointed a gun at the victim. He said on August 18, 1989, he and t he victim reconciled and came to an agreement to act c ivilly toward each other and to date other people.

The defendant said his friend, Les Rawding, gave him a gun to use for protection from the jealous boyfriend of one of the defend ant’s female friends. He said the gun was usually unloaded. H e said he did not like to have the gun in his home, and it was never in his car.

The defendant testified that on the night of August 19, 1989, he met Les Rawding at the Boardwalk C afé, and he started drinking, doing cocaine and smoking marijuana. He said he l eft to meet the victim at Patrick’s about midnight and when the victim arrived, she was angry because she had inter cepted a message from another female on his answering m achine. The defendant said he and th e victim fought, then a man stepped between them, and the def endant hit the man. He said th e bouncer threw him and the other man out of Pat rick’s, but he got into another fight in the parking l ot with a different man. He said that when he left Patri ck’s at about 12:30 a.m., he w as intoxicated, and he went to other bars to continue drinking.

The defendant testified that when he arrived home between 3:00 and 4:00 a.m., his briefcase, a gun, some cash, and cocaine were missing from his house. He said he suspected the victim and called her, but she denied b reaking into his house and hung up on him. He said he lef t his house to go to the victi m’s apartment to retri eve the missing items at about 5:00 a.m., and he was angry, frustrated, and irritable. He said he had a key to the victim’ s apartment, but he did not bri ng the key with him.12 The defendant testified that he w as in an alcoholic stupor when he arrived at the victim’s apartm ent. He said he kicked in the door because he knew his m issing gun was in the victim’s

apartment, and he knew from experience she would threat en him with the gun. He sai d the victim was standi ng in the living room wh en he entered the apartment. He said he saw his briefcase on the counter and asked he r for his things. He said the victi m reached down into her pock etbook and pulled out a silver object which he suspected wa s the gun. He said he rushed t oward her, they both began to struggle for the weapon, and she bega n to yell, “Help me.” He stated their voices were loud, and he began t o beat her. He said she was trying to hit him, and he was scared. He said he hi t the victim’s head with his head a number of times , but he did not know how many times, and they were both bleeding. He said the gun first discharged early in the struggle, and the bullet grazed his right hand . He said he finally managed to get the gun from the vi ctim, and he placed it on the counter. The defendant testified that the victim then apologized to him, hugged him and said, “I love you. We can work this out.” He said once he relax ed his grasp on her, the vic tim ran to get the gun, and another struggle for the gun en sued. He said they were struggling in front of the couch when she fel l downward toward the couc h, and the gun discharged a second time, hitting her und er the left eye.

The defendant testified that he did not know whethe r Josh Peyton was in the room when the gun was fir ed, but he vaguely remembered stumbling down the hallway afterward to loo k for a pen to write a note. He said he saw Josh whil e he was in the hallway. He said he did not remember writing a note or picking up his briefcase and gun, but he did recall try ing to leave through the front d oor. He said because the front door was jammed, he went to the sliding glass door, removed the rod from the track, and left. He said Josh asked to go with him, but he sent Josh back inside the apartment.13 The defendant testified that he w as in an alcohol and panic-i nduced state of shock. He said he got into his car and drove, eventually ending up in Florida. He said he neither knew nor car ed where he was going, and he had onl y forty or sixty dollars when he left his home to go to the victim’s apartment and had no credit cards, change of clothing, or toilet ry items with him. He said while he was i n Florida, he sent a letter to Les Rawding asking Rawding to tell the police they could find the defe ndant’s body somewhere in the Atlanti c Ocean. He said that although he contemplated suicide, he could not do it. He said h e was arrested several da ys later after he stole a car and a woman’s purse and tried to use the stolen credit card to purchase luggage and men’s clothing.
Les Rawding, the defendant’s fr iend for thirteen years, t estified that he met the defendant at a bar on the evening of Augu st 19, 1989, at about 9:00 p.m. He said he drank with him f or about an hour, and the defendant did not appear to be intoxicated. He said he di d not see the defendant ingest cocai ne that night, and he never saw the defendant become irrational or violent when he used th e drug. He said he did not talk to the defendant agai n until the next morning w hen the defendant called him and told him he had kil led the victim. He sai d the defendant told him he left a note saying he did it, and the defendant said he was leaving. Raw ding said he did not know whether the defendant owned a gun, and he denied giving the defendant the gun us ed to shoot the victim.

Sherry Neal, an ex-gir

lfriend of the defendant, testified that she was in the defendant’s home in the summer of 1988, and she knew the de fendant owned two guns. She said she saw the guns on top of his bed one day. She sai d the defendant told her he carried a gun with him at all times.14 Lilly Rose, the owner of First Class Escort Service in Nashvill e, testified that she knew the defendant for tw o years, and she was famil iar with his telephone number and his voice because he had called her hundreds of ti mes. She said she saw the defendant at Patrick’s on August 19, 1989, an d he appeared to be a little intoxicated. She said she sa w the defendant being escorted fr om the bar but did not talk to him again until s he received a call from him at about 3:00 a.m. She sai d he wanted her to send someone from her escort agency to his house, but she told him they were closed. She said the defendant had no difficulty s peaking, and he made sense and sounded normal.

I. DOUBLE JEOPARDY

The defendant contends that Ashe v. Swenson , 397 U.S. 436, 443-44, 90 S. Ct. 1189, 1194 (1970), precludes a second trial for first degree murder unless this court concludes that evidence in the first trial i s sufficient to support a finding that the defendant formed premeditation and deliberation a fter he entered the victim’s apartment. We conclude that the evidence is sufficient to support such a finding.

In Ashe , the United States Supreme Court explained the process a court must go through to determine whether collateral estoppel is applicable in the contex t of double jeopardy:

Where a previous judgment of acqu ittal w as based upon a general verdict, as is usually the case, this approach requir es a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, char ge, and other relevant m a tter, and conclude whether a rational jury could have grounded its verdict up o n an issue other than that whic h the defendant seeks to foreclose fr om consideration.” Id . (citations omitted). See also State v. Allen , 752 S.W.2d 515, 516 (Tenn. Cr im. App. 1988); State v. Moore , 713 S.W.2d 670, 674 (Tenn. Crim. App. 1985).15 The defendant argues that because he w as acquitted of burglary with the intent to commit murder yet convicted of first degree murder at the first trial, the jury necessarily must have fo und that the defendant did not intend to kill the victim whe n he broke into her apartment. I nstead, he argues that the jury must have found that he formed the intent to kill after he entered the apartment. He contend s that the jury must have found that the intent was formed during the struggle b etween him and the victim and that there was not enough tim e thereafter for the defendant to f orm the deliberation and premeditation necessary for first degree murder. He argues that because there was insufficient evidenc e presented at the first tr ial of premeditation and del iberation, the state should have been preclu ded from trying him for first degree murder. The trial court did not prohibit the state from proceeding on a first degree murder charge but did prohibit the state from pr oceeding on a theory that the defendant formed his intent to murder the victim befor e or while he was breaki ng into her apartment.

We conclude that there is am ple evidence in the first trial from which the jury could have found premedi tation and deliberation. The victim’s neighbor, w ho lived upstairs, testified that she heard sounds of a struggle, then the sounds stopped for two minutes before she heard a guns hot. Also, the state presented a note, written by the defendant, in which he said he was going to kill the victim. The jury could easily have found beyond a reasonable doubt that dur ing this two minute inter val, the defendant formed the premeditation and deliberation necessary to support a first degree mur der conviction. Finally, the testimony of the medical examiner, explaining the many injuries the victim sustained befor e she was shot, belies the def endant’s claim that the shoot ing occurred during a mutual struggle. The medical examiner testified that after the victim received the beating, she coul d have been unconscious, or cons cious yet very weak. Either way, she would be i n no position to engage in viol ent combat with the defendant, as he claimed. This evi dence is sufficient for the jury to have found beyond a reasonable doubt in the first trial that the defendant form ed the necessary premeditati on16

and deliberation after he enter ed the victim’s apartm ent. Thus, the collateral estoppel doctrine of the Double Jeopard y Clause did not preclude the state from retrying the defendant for first degree murder.

II. SUFFICIENCY OF THE EVIDENCE The defendant contends the evidence is insufficient to support his conviction for first degree murder. Specifically, the defendant argues tha t the evidence only supports a second degree murder or voluntary manslaughter conviction because the evidence shows the defendant and the victim were invol ved in mutual combat when the shooting occurred, and thus, there is no evidence of the el ements of premeditation and deliberation. The state ar gues that the evidence is suffi cient to support a finding of intent, premeditation, and del iberation.

Our standard of review w hen the sufficiency of the evi dence is questioned on appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we may not reweigh the evidence, but must presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).
In the light most favorable to the state, we conclude that the evid ence is sufficient to support the defen dant’s conviction for fi rst degree murder. Acco rding to T.C.A. § 39-13-201(b), a del iberate act is one that is “performed with a cool purpose,” whereas a premeditated act i s one that is “done after the ex ercise of reflection and judgment.” We believe there is ample evidence in the record to support the jury’s17

finding of premeditation and d eliberation. The state int roduced evidence from the victim’s neighbor, w

ho lived upstairs, that the sounds of the struggle between th e defendant and the victim stopped, and two minutes later the n eighbor heard the gunshot. The defendant argues that even if this witness’ te stimony is believed, two minutes is not enough time to deliberate and premeditate. However, neith er this court nor our supreme court has delineated a specific tim e period during which deli beration must occur, other than that i t cannot occur in an instant. See State v. Brown , 836 S.W.2d 530, 543 (Tenn. 1992). W ith respect to premeditati on, our supreme court has determined that it can be for med in an instant. See State v. West , 844 S.W.2d 144, 148 (Tenn. 1992). In addition, this court has concluded that both premeditation and deliberation can be formed i n as few as one or two min utes. See State v. David L. Hassell , No. 02-C-01-9202-CR- 00038, Shelby County, slip op. at 4-9 (Tenn. Crim. App. Dec. 30, 1992).

In addition to the two-minute time frame during which the state’s witness testified that the struggle e nded and the shot was fired, other evidence introduced at trial supports a finding that the defendant had time to premed itate and deliberate. Most damaging to the defendant with respect to premeditation and deliberation is the fact that he wrote a note stating that he was going to kill the v ictim. Although the defendant testified that he wrote the note after the shooting, merely conf using his tenses, the jury rejected his testimony i n favor of the state’s theory . The jury could have concluded that the defendant wrote the note during the two-minute interval , thereby having enough time to premeditate and deli berate. Furthermore, the testimony of Dr. Harl an, showing the victim was in no condition to engage in a violent struggle with the defend ant before she was shot, belies the defenda nt’s claim the shooting oc curred during a mutual struggle. We conclude evi dence of the defendant’s intent, pr emeditation, and deliberation is suffici ent to support his convicti on for first degree murde r.1 The trial co urt d eterm ined the s tatem ent w as a dmis sible as a n ex cited utter anc e he arsa y exc eptio n. See Tenn. R. Evid. 803( 2). The defendant does not c hallenge thi s determinati on.
2 We note that the deference gi ven to the tr ial court under the abuse of disc retion st andard is condit ioned upon the tr ial co urt’s s ubs tantia l com plian ce w ith the proc edu ral re quire men ts of R ule 4 04(b ). Id . The defendant concedes t hat the tri al cou rt follo wed the p rope r pro ced ure f or ad mittin g ev iden ce u nde r Ru le 40 4(b)

. 18 III. PRIOR BAD ACT The defendant contends the trial court erred by admitting into evid ence testimony from the vic

tim’s friend, Donna Beave rs, that about a month before the shooting, the victim told Beavers the defendant held a gun to the victim’s head. 1 He argues the testimony should have been excluded und er Rule 404(b), Tenn. R. Evid., it violated his right to a fai r trial, and it violat ed his confrontation clause r ights.

A. First, the defendant argues the testimony is inadmissible under Rule 404(b), Tenn. R. Evid. Our standard of review on appeal with respect to the admis sion of evidence under Rule 404(b) is whether the trial c

ourt abused its discreti on. See State v. DuBose , 953 S.W.2d 649, 652 (Tenn. 1997). 2 The defendant correctly ar gues that in a criminal trial, evidence of another crime committed by a defendant usually is not admissible because it is irrelevant and preju dicial. See State v. Rickman , 876 S.W.2d 824, 828 (Tenn. 1994). H owever, such evidence may be admissible under Rule 404(b) if it is r

elevant to a litigated iss ue, such as identity, intent, or rebuttal of accident or mistake, and its probative value is not outweighed by the dan ger of unfair prejudice.

We conclude that under the facts of this case, the trial court did not abuse its discretion in admi

tting Beavers’ testimony that the defendant held a gun to the victim’s head. Our su preme court has recognized that evidence of a defendant’s pr ior acts of violence against a victim is admissible under Rule 404(b) because the acts are relevant to show the defendant’s hostility toward the vi ctim, malice, intent, and a settled19

purpose to harm the victi m. State v. Hall , 958 S.W.2d 679, 708 (Tenn. 1997) , cert. denied , 118 S. Ct. 238 (1998); State v. Smith , 868 S.W.2d 561, 574 (Tenn. 1993) . Our supreme court concluded that the probative value of such ev idence is not outweighed by the danger of unfair prejudi ce. See Hall , 958 S.W.2d at 708. In the prese nt case, the trial court admitted the evidence of the defendant’s prior act ag ainst the victim in order to show the full re lationship between the partie s, to show the defendant’s hosti lity toward the victim, and to show the defendant’s malice, intent, and settled purpose to harm the victim. The trial court also determ ined that the probative value of the evidence is not outweighed by the danger of unfair prejudic e. We conclude that the tri al court did not abuse its dis cretion in admitting suc h evidence. Although the defendant complains that the evidence adds nothing probative to th e state’s case, the trial court correctly determined that the evidence is probative of the defendant’s malice tow ard the victim and his intent to do harm to her. Furtherm ore, its probative value i s not outweighed by the danger of unfair prejudice, particularl

y in light of the fact that the defendant admitted to a volatile relationship with the victim.

The defendant also contends that ther e was not clear and convincing evidence that the defendant held a gun t o the victim’s head. In or der for evidence of a prior crime or wr

ong to be admissible under R ule 404(b), the trial cour t must find clear and convincing evidence of the o ther crime. See Tenn. R. Evid. 404(b), Advisory Commission Comment; Hall , 958 S.W.2d at 708; State v. Parton , 694 S.W.2d 299, 303 (Tenn. 1985). In the present c ase, the trial court heard testimony from Beavers that the victim told her the defendant held a gun to her head. Beave rs testified that the victim related the incident to her i mmediately after it occ urred, and the victim see med excited. The defendant presented no evidence that either the victim had a motive to lie when she made the statement to Beaver s or that Beavers had a moti ve to lie when she made the statement in court. W e conclude this issue is without merit.20 B. Next, the defendant argues that the admission of Beavers’ tes timony denied him due process and his right to a fair trial. The defendant asserts that th e test for whether the admission of evidence violated the defendant ’s federal constitutional rights to a fair trial is similar to the balancing test required for the admission of evidence under Rule 403, Tenn. R. Evi d. Because we have already dete rmined that the trial court did not abuse its dis cretion by finding the probat ive value of the evidence is not outweighed by unfair prejudi ce, we conclude that this i ssue is without merit.

C. Finally, the defendant argues that the admission of Beavers’ testimony violated the defendant’s right to confront and cross-exam ine the victim. We di sagree. The United States Supreme C ourt has held that in order t o satisfy the confrontation clause, the state must show the declarant is unavailabl e, and the evidence must bear its own “indicia of reliability.” Ohio v. Roberts , 448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980). Evidence that fall s within a firmly r ooted hearsay exception is co nsidered inherently reliable. Id

.

The trial court admitted Beavers’ testimony as an excited utterance hearsay exception. See Rule 803(2), Tenn. R. Evid. Both the United States Supreme Court and the Tennessee Supreme Court have determined tha t the excited utterance exception is firmly rooted. See White v. Illinois , 502 U.S. 346, 355 n.8, 112 S. Ct. 736, 742 n.8 (1992); State v. Taylor , 771 S.W.2d 387, 393-94 (Tenn. 1989). However, the defendant argues that the Tennessee Sup reme Court also requir es a finding that the evidence is not crucial or devastating. See State v. Henderson , 554 S.W.2d 117, 119 (Tenn. 1997); State v. Armes , 607 S.W.2d 234, 239 (Tenn. 1980) . This court has previously determined tha t the “crucial or devas

tating” requirement is inapplicable when the right to confrontation has been satisfied. See State v. Arnold , 719 S.W.2d 543, 54821

(Tenn. Crim. App. 1986). Even if the requirement w ere applicable, it would be satisfied in this case in light of the fact that the defendant had already admitted to a tumultuous and violent relationship w ith the victim, and there was other evidence presented f rom which the jury could fi nd the defendant guilty of firs t degree murder.

IV. PRIOR THREAT The defendant argues that the testi mony of the defendant’s former girlfriend, Sherry N eal, regarding the defendant thre atening her, constitutes prej udicial error. During the rebut tal phase of the trial, Neal testified that the defendant told her he carried a gun at all tim es. When the prosecutor ask ed Neal when the defendant made this statement, Neal responded, “On one occasion when he called and threatened to kill me.” Both the prosecutor and the defense attorney immedi ately approached the bench, and the prosecutor told the tr ial court Neal had been ins tructed not to say anything about her past problems with the defendant. The trial cou rt responded by telling the jury to disregard Neal’ s statement, instructing that the statement “has nothing to do with this lawsuit and don’t consider it for any reason whatsoever, don’t consider that in reaching a decision in thi s case.”

The defendant acknowledges the wel l-established principl e that a prompt curative instruction fr

om the trial court general ly cures any error. See State v. Tyler , 598 S.W.2d 798, 802 (Tenn. Cri m. App. 1980). However, he argues that in this case, the trial court’s instruction was ineffectual because the testimony was so prejudicial, it is more probable than not that the t estimony affected the judgment

. See T.R.A.P. 36(b). We disagree. Although Neal’ s testimony was inadmi ssible, the trial cour t gave a prompt curative instruction to the jury, and the jury is presumed to follow the trial court’s instruction. See State v. Brothers , 828 S.W.2d 414, 416 (Tenn. Crim. App. 1991). We do not believe Neal’s testi mony more probably than not affected the judgment in light of the fact that other substantial evidence was presented agains t the defendant.22 V. REBUTTAL TESTIMONY The defendant contends that the testimony of Lilly Rose, own er of First Class Escort Service

s, exceeded the proper scope of rebuttal and inflamed the jur y. Specifically, the defendant t akes issue with Rose’s testimony that the defendant cal led her hundreds of times to sec ure the services of an esc ort. The defendant argues that because he freely admitted to using Rose’s services, her testimony served no purpose on rebuttal. The state argues the testimony is proper because it contradicted sever al statements made by the defendant on direct examination.

Any competent evidence that expl ains, directly repli es to, or contradicts material evidence introduced by the defense or brought out on cross-examination is admissible as rebuttal e vidence. See State v. Smith , 735 S.W.2d 831, 835 (Tenn. Crim. App. 1987). The sc ope of rebuttal lies withi n the sound discretion of the t rial court. Id . The trial court’s decision on the admissibi lity of rebuttal evidence will not be overturned absent a clear abus e of discretion. See State v. Scott , 735 S.W.2d 825, 828 (Tenn. Crim. App. 1987).

Viewed in this light, w

e conclude that the trial cou rt did not abuse its discretion by allowing Rose’s testimony. Her testimony rebuts the defendant’s claim that he was heavily intoxi cated the morning of the shooti ng because she testified that she talked to him that mor ning, and he sounded fine. The fact that she had talked to him hundreds of times befor e is relevant to her being able to explain that she was familiar with his v

oice and knew he sounded normal when he called her before the shooting. In addition, her testimony directly contradicts the defend ant’s testimony in that Rose said the defendant call ed her at about 3:00 a.m. before th e shooting, whereas the defendant said he did not leave a bar to return hom e until after 3:00 a.m. Even if the evidence did exceed the scope of rebuttal, its a dmission is harmles

s in light of the fact that the defendant had already test ified that he consorted with prostitutes.23 VI. FINAL ARGUMENT The defendant contends that the state m ade false statements during closing argument that consti tute prejudicial error. First, the defendant argues that the state misstated the evidence when the prosecutor said the victim’s head an d neck could not have been more than one i nch away from the couch when she was shot. Second, the defendant takes issue w ith the state’s comment dur ing closing argument that deliberation can occur within a period of only a f ew seconds. The state argues that the prosecutor correctly stated the law and did not mi sstate the evidence. The state also argues that any potential prejudice to the defendant was c orrected when the trial court gave a curative inst ruction.

With respect to the defendant’ s contention that the prosecutor misstated the evidence, we note that the defenda nt failed to object to this statement during closing argument. The fai lure to object contemporaneous ly constitutes a waiver of the issue pursuant to Rule 36(a), T.R.A.P. Regardless, the prosecutor’s statement is not so misleading that it was pr ejudicial error. The prosecutor said Dr. Har lan testified that the victim’s neck could n ot have been more than one inch fr om the couch when she was shot, when in fact Dr. Ha rlan said the victim’ s neck could not have been mor e than a few inches from the couch. This discrepancy did n ot prejudice the defendant.

With respect to the defendant’s contention regarding th e prosecutor’s comment on deliberation dur ing closing argument, we h esitate to hold that the prosecutor misstated the law. After explaining that a deliberate act is one tha t is performed with a cool pur pose after some period of r eflection, the prosecutor s tated, “The law doesn’t make any specific amount of time for a period of time for reflection, it could be a few seconds when a per son decides to go.” The defendant objected, and a jury-out hearing was cond ucted. The trial court ov erruled the defendant’s object ion, but it did instruct the jurors that they were to follow the trial court’s explanation of the law,24

not the attorneys’ explanations . The prosecutor then contin ued with closing argument, stating, “The law doesn’t give any specific period.It can be after only a few seconds.”

The prosecutor’s statement of the law was not necessar ily inaccurate. The prosecutor correctly stated that the law does not give any specific period of time during which deliberatio n must occur. Rather, th e case law on deliberation instructs that it cannot occur in an i nstant. See Brown , 836 S.W.2d at 543. A linguistic analysis of whether a few seconds is synonymous with an instant is unnecessary in this case because the trial court gave an immediate curative i nstruction. In addition, the re is no evidence that the prosecutor deliberately tried to mislead the jury, and th ere is ample evidence that would support the jury’s finding of prem editation and deliberation, specifically the two-minute time period before the victim was shot and the defendan t’s own note, stating he was going t o kill the victim. See Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976) . Based on these facts, we conc lude that the prosecutor did not give an erroneous stat ement of the law, but even if she had given an erroneous statement, the defendant was not pr ejudiced.

VII. REQUEST FOR SPECIAL INSTRUCTIONS The defendant argues that the tri al court gave erroneous jur y instructions and erred by denying his requ est for special jury i nstructions. The state cont ends that the trial court’s inst ructions were correct . Initially, we note that in criminal cases, the trial court has the duty t o charge the jury on all of the law that applies to the fac ts of the
case. See State v. Harris , 839 S.W.2d 54, 73 (Tenn. 1992). Anything short of a complete charge denies the defen dant his constitutional ri ght to a trial by jury. See State v. McAfee , 737 S.W.2d 304, 308 (Tenn. Cr im. App. 1997). However, a special instruction need not be given w hen its substance is alread y covered in the general charge. See Edwards v. State , 540 S.W.2d 641, 649 (Tenn. 1976) . We conclude that25

the trial court properly instructed the jury and did not err by denying the defend ant’s special requests.

A. PREMEDITATION AND DELIBERATION

After explaining to the jur y that the state must prove the elements of deliberation and premeditati on, the trial court stated:

A premeditated act is one done after the exercise of reflecti on and judgment. Premeditation means that the intent to kill must have been formed prior to the act itself. It is not necess ary that the purpose to kill preexists i n the mind of theaccused for any definite period of time. It is sufficient t hat premeditation precede the act as long as it wa s the result of reflecti on and judgment. The mental state of the accused at the tim e he alle gedly decided to kill must be careful l y considered in order to determine whether the accused was sufficiently free from excitement

and passion as to be c a pable of premeditation. If the de sign to kill was formed w ith premeditation and deliberation, it is immaterial that the accused may have been in a state of passion or excitement when the design was carried into effect. Furthermor e, premeditation can be formed if the decision to kill i s first formed during the heat of passion, but the accu se d commits the act after the passion has subsided. A deliberate act is one performed with a cool purpose and after

some period of

reflection. Passion is

any of the emotions of the mind refl ecting ange r, rage, or sudden resentment rendering the mi nd incapable of cool reflect ion. The trial court later reiterated that the state mus t prove both premeditation and deliberation.
With respect to premeditation and deliberation, the defe ndant requested the following instructi on:

In order to convict the Defendant for premeditated murder, you must find tha t the Defendant formed the intent to kill prior to the killing, that is, prem editation, and that the Defendant killed with coolness and reflec tion, t hat is, deliberation. The deliberation and premeditation must be akin to the deliberation and premeditation manifested w here the murder

is by poison or lying in wait -- the cool pur pos e must be formed and the deliberate intention conceived in the mind, in th e absence of passion, to take the life of the person slain.26 Del i beration requires some period of reflection, during which the mind is free from the influ ences ofexcitement or passion. Passion and anger mean the same thing in criminal law.
After reviewing the tri al court’s instructi on and the defendant’s requested instruction, we conclude that the trial court proper ly instructed the jury and did not err by denying the defendant’s special request. First, we note that the defendant requested the trial court to instr

uct the jury that the premedi tation and deliberation must be akin to that manifested when the killing is by poison or lying in wait. The defendant correctly argues that our supreme cour t in Brown stated that the deliberation and premeditation must be akin to the delibera tion and premeditation manifested when the murder is b y poison or lying in wait . However, the court cont inued by stating, “Murder by poison or lying in wait, are giv

en as instances of this sor t of deliberate and premedita ted killing, and in such cases no other evi dence of the deliberation and pr emeditation is required; but where the murder is by other means, proof of deliberation and premeditat ion is required .” Brown , 836 S.W.2d at 539-40 (emphasi s added). Thus, the Brown decision does not require a finding that the premeditation and deliber ation be the same as that formed when murder is by poison or lying in wait as the defendant suggests, rather if the premeditation and deliber ation are of such a type, no other evidence of premeditation or deliber ation need be shown. See also State v. Hurley , 876 S.W.2d 57, 71 (Tenn. 1993) (the state mu st prove that killing w as by poisoning or lying i n wait or with premeditation and deliberation) (citations omitted). Thus, the trial court did not err by refusing the defendant’s spec ial request.
The defendant also argues that the trial court did not ade quately address the length of time necessary for the exercise of refl ection and judgment. Although under the first degree mur der statute in effect at the ti me of the offense in this cas e, reflection and judgment relate to premeditation, the defe ndant argues that the trial court27

did not properly instruc t the jury in this regar

d with respect to deliber ation. In either event, the trial court’s

instruction was proper

.
Our supreme court has held that premeditation can be for med in an instant, see West , 844 S.W.2d at 148 (Tenn. 1992), although it has also held th at it is not wise to instruct a j ury of that fact because of the r isk of confusing premedit ation with deliberation, which cannot be formed in an instant. See Brown , 836 S.W.2d at 543. The trial court did not i nstruct the jury that prem editation can be formed in an instant. Instead, the trial court tol d the jury that a premeditat ed act is one that is done after the exercise of reflection a nd judgment. The trial cou rt’s instruction was correct.

Deliberation differs fr

om premeditation in that i t requires proof that the homicide was committ

ed with a cool purpose and wi thout passion or provocation. Brown , 836 S.W.2d at 543. The trial court instructed the jur y that a deliberate act is one performed with a cool pur pose and after some period of r eflection when the mind is free from passion or provocation. In light of the fact that neither this court nor our supreme court has delineated a specific period of time during which deliberation must occur, other than the fact that it cannot be formed in an instant, we conclude that the trial court’s instruction with respect to deliberation was correct. In addition, the trial court’s definition of deliberation is nearly identical to the special instruction the defendant requested.

B. VOLUNTARY MAN SLAUGHTER

Next, the defendant argues that the jury instructions do no t adequately address the degree of provocati on necessary to lower an i ntentional killing from first or second degree murder to voluntary manslaughter. We disagree. The trial court instructed the jury that a conviction for first d egree murder requires a finding that the defendant was free from passion and excitement. The trial court also instructed th e jury28

that voluntary manslaughter requires a finding that “ [i]f the intention and the act ar e the result of impulse and pass ion, the idea of malice is negated. Killing upon a sudden heat of passion without mali ce distinguishes voluntar y manslaughter from mur der in the second degree.” The trial court adequately instructed the jury regarding the degr ee of provocation necessary for premeditated murder and voluntary manslaugh ter.

The defendant argues that the tri al court gave an erroneous i nstruction of the law when it told juro rs that they must determi ne whether the defendant was sufficiently free from

excitement and passion to be c apable of premeditation. The defendant argues that this instr uction is contrary to pr

ior case law indicati ng that the heat of passion brought on by adequate provoca tion need not be so great as to deprive the defendant of all reason, thus rendering the defendant incapable of premeditation or deliberation. See Seals v. State , 62 Tenn. 459, 463 (1874), and Haile v. State , 31 Tenn. 248, 252 (1851). This i ssue is without merit.The trial court’s definition of voluntary manslaughter r estates that given in Brown , 836 S.W.2d at 553. Furtherm ore, the trial court did not i nstruct the jury that the def endant must be completely fr ee from excitement and passion, but r ather that the defendant must be suf ficiently free from excitement or passion. T his instruction is cons istent with the essence of w hat the defendant requested, it is a more accurate statement of the current law, and it is less confusing than the instructi on proposed by the defendant.

C. SECOND DEGREE MU RDER Finally, the defendant argues that the trial court did not provide a sufficient instruction relative to second degree murder. He contends that the trial court’s instructions do not explain the law applicable to a killing done in anger or passion that is insufficient to reduce the k illing to voluntary ma nslaughter. We conclude that this issue is also without merit . After explaining the elem ents of second degree murder, the trial court instructed the jury , “If one person upon a sudden im pulse of passion without29

adequate provocation and disconnected with an y previously formed design to kill, kills another willfully and m aliciously, such kil ling is unlawful and is murder in the second degree.” The trial court went on to distinguish second degree murder from voluntary manslaughter stating, “Killing upon a sudden heat of passio n without malice distinguishes voluntary manslaughter from murder in the second degree.” Essent ially, the defendant argues that the trial court should have instruc ted the jury that if the inte nt to kill is formed in passion and executed without time for the passion to cool, it is murder in the second degree. The trial court may not have used the exact wording th e defendant requested, but the substance of the trial court’s i nstruction encompasses the defendant’s request. We conclude the trial court did not err by denying th e defendant’s special requests.

VIII. SEQUENTIAL INST RUCTION

Next, the defendant argues that the trial court erred by instructing th e jury to consider lesser incl uded offenses only after unanim ously determining that the defendant was not guilty of the greater offense. This court has twice reject ed this argument. In State v. Rutherford , 876 S.W.2d 118, 119-20 (Tenn. Crim. App. 1993), this court determined that a sequential jury charge di d not prevent the jury from fulfilling its duty to determine the degr ee of homicide. This cour t reached the same conclusi on in State v. Raines , 882 S.W.2d 376, 381-82 (Tenn. Crim. App. 1994). We view these cases to be controlling.

IX. UNFAIR TRIAL

The defendant asks this court to conclude that the cumulative effect of all the alleged errors resulted in the defendant being deprived of a fair trial. See State v. Cadle , 634 S.W.2d 623, 626 (Tenn. Cr im. App. 1982). In consider ing our rulings as to the above issues, we conclude there are no errors that cumulatively would ri se to the30

level that would deprive the defendant of a fair trial. See Rosenthal v. State , 292 S.W.2d 1, 4-5 (Tenn. 1956).

X. SENTENCING

The defendant contends that the trial court erred by ordering him to serve his sentence consecutive to a previous conviction for the sale of cocaine . Specifically, he argues that the trial cour t gave no basis for finding the defendant to be a dangerous offender, see T.C.A. § 40-35-115(b)(4), nor did the trial court find confinement is necessary to protect the publ ic from further cri minal conduct by the defendant. See State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995) . The state argues that the record supports a finding that the defendant is a dangerous offend er, and in the alternative, that a consecuti ve sentence is proper consi dering the defendant’s history of criminal activity. See T.C.A. § 40-35-115(b)(2).

Appellate review of sentencing is de novo on the record with a presumption that the trial court's determinations are correct. T.C.A. § 40-35-401(d). As the Sentencing Commission Comments to this secti on notes, the burden is now on the defendant to show that the sentence is improper. This means that if the trial court followed the statutory sentencing procedure, made finding s of fact that are adequately supported in the record, and gave due consideration an d proper weight to the factors and principles that are r elevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a different result wer e preferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, "the presumption of correctness which acc ompanies the trial court's action is conditioned upon the affirmative s howing in the record that the trial court considered the sentenci ng principles and all re levant facts and circums tances."31

State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991) . In this respect, for th e purpose of meaningful appellate review ,

the trial court must place on the record i ts reasons for arriving at the final sentencing decis ion , identify the mitigating and enhancementfactors found, state the specific facts supporti ng each enhancement factor fou nd , and articulate how the mitigating and enhancement factors have been e valuated and balanced in determining the sentence. T.C.A. § 40-35-210(f) (1990). State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1995).

Also, in conducting a de novo review, we must consi der (1) the evidence, if any, received at the tr ial and sentencing hearing, ( 2) the presentence report, ( 3) the principles of sentencing and arguments as to sentencing altern atives, (4) the nature and characteristics of the criminal conduct, (5 ) any mitigating or sta

tutory enhancement factors, (6) any stateme nt that the defendant made on his ow n behalf and (7) the potential for rehabilitati on or treatment. T.C.A. §§ 40-35-102, -103 and -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

The trial court’s only

finding with respect to c onsecutive sentencing was when the trial judge stated “ the facts . . . are suffici ent to convince me that [the defendant] is a dangerous offender .. . .” This court has previously determined tha t a trial court must prov

ide “a principled justi

fication for every sentenc e, including, of course, consecutive sentences.” Wilkerson , 933 S.W.2d at 939 (citations omitted). Based on the record before us, the trial court did not cons ider all relevant sentencing principles. Thus, our review of sentencing is de novo on the record with no presumption of correctnes s. See Ashby , 832 S.W.2d at 169.
Nevertheless, we conclude that the record supports a consecutive sentence. There is no questi on but that the defendant’s behavior indicated little or no regard for human life and that he had no hesitation abou t committing a crime in which32

the risk to human life w as high. See T.C.A. § 40-35-115(b)(4) . In addition, the sentence is necessary to pr otect the public against further criminal conduct by the defendant and the consecutive sentenc e reasonably relates to the s everity of the offense committed. See Wilkerson , 905 S.W.2d at 939. The evidenc e shows that the defendant viciously beat the victim before shooting her in the face while the victim’s two small children were in the apartment. In additi on to brutally beating then mu rdering the victim, the defendant admitted a long history of buying, selling and u sing cocaine. He admitted driving while under the influence of alcohol and drugs. He admitted at least two assaults. In light of these facts, we determine that a consecutive sente nce is appropriate.

XI. EQUAL PROTECTION

Finally, the defendant argues that in first degree mur der cases when the state is not seeking the death pen alty, the automatic impos ition of a life sentence that follows a conviction vi olates the equal protection com ponent of the Law of the Land clause of Article I, Section 8 of the Tennessee Constitution. Specifically, the defendant argues that because not all fi rst degree murders shar e equal moral culpabilit y, the sentencing judge should be given discretion as to whether t o impose life impris

onment following a conviction f or first degree murder . This court has previ ously held that under a rational basis test, the automatic imposition of a life sentence under T.C.A. § 39-13- 202(b) does not violate Arti cle I, Section 8 of the Tenness ee Constitution. See State v. Ray , 880 S.W.2d 700, 706 (Tenn. Crim. App. 1993). We decline the defend ant’s invitation in the present c ase to reverse this court ’s prior determinati on.33 V. CONCLUSION In consideration of the foregoi ng and the record as a whole, w e affirm the judgment of conviction.

________________________________ Joseph M. Tipton, Judge

CONCUR:

____________________________ Gary R. Wade, Presiding Judge

____________________________ William M. Barker, Special Judge