### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON Ma rc h 4, 200 8 S es sio n

STA TE OF TENNES SEE v . FREDRICK MI LAN

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty Nos. 03-02389, 04-01712 C arolyn Wade Blackett, Judge

No. W2006-02606-C CA-M R3-CD - Filed September26, 2008

A Shelby County Criminal Court jury

convicted the appellant, F redr i ck Mi lan, of fir st deg ree p re m edit ated murde r and a g g ravated assault, and the trial court se ntence d him to consecutive
sentenc es of life and five y ear s, respe ctively . On appe al, the appe llant contends that (1 ) the trial
court err ed by

consolidating the offe nses; (2) the tr ial court improper ly admitted the victim’s prior
sta te me nt i nto e vid e nce und er t he h ears ay rul e’s for fei tu re by

wro ngdo in g ex cept io n, Ten nes see Rule of Evidenc e 804(b) (6); (3) the trial c o u rt er re d by admitting into evidenc e the 9- 1-1 tape of an

e y e wi tne ss t o th e vic tim ’s mur de r; (4 ) the tr ia l c ourt e rr e d by a dmi tti ng an a uto ps y ph oto g ra phint o evidenc e; (5) the evidence is insufficient to support the appellant’s murder c onviction; and (6) the trial court erre d by order ing consec utive sentenc ing a nd by assessing a five -hundre d-dollar f ine for the ag g ravated assault convic tion. The State contends that the e vidence is sufficient to support the murder c onviction and that the trial court properly order ing c onsecutive se ntencing . Howeve r, the State acknow ledg es that the trial c ourt improperly fined the a

ppellant. Reg arding the a ppellant’s

r e ma in in g is s u e s , th e St a te c o n te n d s th a t t h e a p p e ll an t w a iv e d

th e m b e c a

u s e h e f a il e d to in c lu de them in his mot ion for new trial and that he is not e ntitled to plain er ror r elief. We c onclude that the

e vid e nc e is s uf

fi c ie nt t o s up po rt

the mur de r c on vic tio n a

nd that con se c uti ve se nte nc ingis p ro pe r i n this case. Ne verthe less, we a lso conclude that the trial court c ommitt ed plain er ror a s to the
ag g ravated assault conviction by consolidating the appe llant’s indictments for trial and that the trial

c ourt e rr e d b y imp os ingthe app ell ant’s fi ne . T he re fo re , th e a pp e lla nt’ s mu rd e r c on vic tio n is aff irmed but his ag g ravated assault convic tion and resulting fine a re r ever sed. The case is remande d to the trial court f

or fur ther proc eeding s consistent with this opi nion.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt s o f the Cr im ina l C our t a r e Affir m e d in

P ar t a nd R e ve r se d in P ar t, and t he Ca se is R e m ande d.

N OR MA M C G EE O G LE , J
., delivere d the opi nion of the cour t, in which T H O M A S T. W O O D A LL and D. K EL L Y T HOMAS , J R ., J J ., joined.

Rob e rt B ro ok s (on app eal ) a

nd Sa mue l Pe rk ins (at tr ia l) , M e mph is, Te nn e sse e , f or the a pp e lla nt,-2-

Fr edric k Milan.

Rob e rt E. Coo pe r, Jr., Attorn ey Ge ne ra l and

Re po rt e r; L a c y

Wilb e r, As sis tant A tto rn e y Ge ne ra l; Wi ll ia m L

. G ib b o n s , D is tr ic t A tt o r n e y G e n e r a l; an d

Ch ar le s B e ll
, A s s is ta

n t D is tr ic t A ttorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I. F ac tu al B ac kgr ound

A Sh e lby County g ra

nd jur y ind ic te d th e a

pp e lla nt f or c omm itt inga g g ra

vate d a ssa ult a g a ins t the victim, Pamela Staffor d, on September 26, 2002, and for committing first deg ree preme ditated murder a g ainst her on November 6, 2002. At trial, Wendy Tolbert testified that she worke d with the vic timand kn ew her abo ut s ix y e ars . T he a pp e lla nt w a s th e vic tim ’s bo y fr ie nd , a nd the vic tim ref err ed to him as “Da ddy .” The appellant lived with the victim, a nd the victim confided in Tolber t about problems she w as having with him. On the night of September 26, 2002, Tolbert telephone d th e v ic ti m, b u t th e v ic ti m s a id in a w h is p e r e d v o ic e th a t s h e c o u ld n o t ta lk to T o lbert and tha t the appellant wa s hitti ng her. Tolbe rt could hea r “t h u d n o i s es” and the appe llant arguing in the backg round, and the n the phone “we nt de ad.” Sometime later, the victim telephone d Tolbert fr om the Citg o g a s st a tio n o n H ou sto n L e vy Roa d, and

To lbe rt dr ov e to t he statio n to pic k u

p th e vic tim

. Th e vic timwa s h old inga kit c he n to we l ov e r a cu t on he r a rm . T olb e rt

sa id t he c ut w a s “ pr e tty deep,” was bleeding “pre tty g ood,” and neede d stitches. The victim told Tolbert she had te lephoned the po lic e and

wa nte d to re tur

n to the a pa rtme nt s he sh are d w iththe a pp e lla nt.

Tolbert testified that she drove the victim to the apartment a nd that the police we re the re. The a ppellant’ s wh ite Cadillac Esca lade wa s g one, and T olbert and the victim went inside the
apar tment to speak with the police. The office rs found the knife that the appe llant had used to cut the vic tim , an d the a

pp e lla nt re tur ne d to the a

pa rtme nt. He tol d T olb e rt

tha t “ thi s w a s a ll [T olb e rt ’s ] fault.” Tolbe rt said the victim left the a partment a

nd did not return until November 5, 2002. She was killed the ne x t day , November 6. The victim was supposed to mar ry Chris t o p her H igg s on November

7, 2002, “or that weeke nd.”

On cr o s s -e x am i n at i o n , T o l b er tt es t i fi edt h at t h e v i ct i m wa s af ra i d o f t h e ap p el l an tan d

wanted to leave him but that he told the victim he would kill her mother, fathe r, and brothers if she left. The victim was not having a re lationship with another man while she was dating the a ppellant. On the night the appellant cut the vi ctim’s arm, Tolbert called the victim on the victim’s cellular tele phone betwee n 9:00 and 10:00 p.m. The police a rre sted the appellant that night for cutti ng the vi ctim. The defe nse aske d Tolb er t i f t h e v i ctim told her that the victim paid the appe llant’s bond, and Tolber t said no.

On re dir e c t e xami natio n, To lbe rt te sti fi e d th a t th e vic timpa id a ll o f t he couple ’s bil ls, including the rent a

nd the notes on the victim’s ca r and the appellant’ s Escala de. The appellant wa s abusive, a nd the victim told Tolbert about other instance s of abuse he had com m i t t ed d u ring the-3-

y ear s she had dated him.

Offic er Thoma s Manns o f the Memphis Police De partment testified that on the night of September 26, 2002, he and his pa rtner r esponded to a

domestic violence call at 9935 B arg e Dr ive,
apar tment number 101, which w as nea r the interse ction of H i gh wa y 64 and Houston L evy

Road. The victim met the off

icer s at the door a

n d t o l d t h em she had g otten into an alterc ation with her bo y fr ie nd . T he vic tim sh ow e d the m a tw o- to t hr e e -i nc h- lon g wo un d o n h e r l e ft fo re arm and sa id he had c ut her. Of

fice r Manns located the we apon, a k i t ch en s t ea k knife. The victim gave the of fi c e rs a wr itt e n s ta te me nt. Ac c or din g to t he state me nt, the a

pp e lla nt c a me to t

he a pa rtme nt w ith his pa re nts

. He a

pp ro a c he d the vic tim
, wh o wa s sittin g on the be d, and

sa id, “ [B ]itc h, Iou g ht t o k ill
y ou. You should have picked me up from work.” The victim told the appellant, “ [Y] ou told me not
to c ome , a

nd hungthe ph on e up in my fa c e .” Th e a pp e lla nt the n sai d, “ [B ]itc h, fu c k y ou ” a nd hit the victim o n the left side of her he ad. The victim pled with the appellant not to hit her any more. The victim se cre tly telephoned 9-1-1 on her home telephone beca use the appe llant had broke n her

c e llu lar t e le ph on e . T he vic tima lso te le ph on e d Wen dy To lbe rt

. Whil e sh e wa s ta lki ngwi th T olb e rt , the appe llant came into the be droom and y elled at he r to stop using the phone . The victim hung up,

and the a pp e lla nt tol d he r, “ [Y]ou

make me sic k. I ’m

g oin g to b e a t y our a ss. ” He le ft the be dr oo m, returne d with a knife, and said, “[B]itch, I ’ll kill y ou.” He cut the victim on her left arm, and she ra n

ou t th e fr on t do or

and to t he g a s st a tio n. Of

fi c e r Mann s tes tif

ie d th a t w hil e he wa s f

ini sh inghis

re po rt , the a

pp e lla nt re tur ne d to the a

pa rtme nt. Th e a

pp e lla nt tol d the of

fi c e r t hat he and

the vic tim ha d g ott e n in to a

n a rgume nt, and

Of fi c e r M ann s a

rr e ste d h im.

On c ro ss- e xami natio n, Of

fi c e r M ann s te sti fi e d that he arr ive d a t the a pa rtme nt at 9: 18 p. m. and that anothe r woman w as there with the victim. He offe red to take the vi ctim to a safe location, but she dec lined. The a

ppellant did not give Offic er Ma nns any trouble.

Carla Pay ne, a deputy cler

k for the criminal court clerk’ s office , testified that the appe llant

was c harg ed with ag g ravated assault as a result of his ac tions o n S ep t em ber 26, 2002. G ener al Se ssi on s Cour

t Cler k J oh n Ry an tes tif

ie d tha t a pr e lim ina

ry he ari ngfo r t

he a g g ra vate d a ssa

ult c a se was scheduled for November 8, 2002. The appellant’s bond was set at fiftee n thousand dollars, and he wa s not to contact or ha rass the vic tim as a condition of his bond.

Christopher Higg s testified that in September 2002, he and the victim bec ame e ng ag ed. The y

wer e planningto ge t married on N ovemb er 9
, 2002. Hig g s did not know the appellant, a nd the victim did not t alk about him. Howeve r, the victim told Hig g s she had be en in an a busive relationship and was no longe r living in he r apar tment. The victim stay ed with her mother, brother
, and Hig g s. Hig g s said that he had two cellular telephones, a persona l phone and a work phone, and that he told the victim to call him on his w ork phone if she was ever in tr ouble. About 9:40 a.m. on November

6, 2002, the victim called Hig g s on his work phone, a nd Hig g s knew im mediately that the victim was in trouble. The victim told Hig g s that she “ne eded me to come help put his clothes in the truck.” She also told Higg s that the appe llant had bee n there but w as go n e. Hi ggs told the vic timhe c ou ld n ot l e a ve wo rk

. Som e tim e la te r, Hi g g s te le ph on e d th e vic tim ’s br oth e r a nd tol d h im that the victim was not answe ring her te lephone, whic h was unusual. Subseque ntly , the victim’s-4-

brother c ontacted Higg s and tol d him that the vi ctim had been s hot. Hig g s went to the hospital and later le arne d that the victim had died.

Victor Staff

ord, t h e victim’s brother , testified that on the morning of Nove mber 6, he

rec eived a telephone c all from C hristopher Higg s, the vi ctim’s fianc é. As a result of t he ca ll, Victor Stafford w ent to chec k on the victim. He sawpolice ca rs at the inter section of Hig hway 64 and Houston L evy

Road but drove to his sister’s apa rtment. On the door, he found “a letter for some ty pe of cour t date that she [was] supposed to have be en g oing to with the defe ndant.” The victim wa s not home, so Victor Staff

ord drove back to the inter section and a sked the police what wa s g oing on. Th e y tol d hi m to go to Th e Me d. Whe n h e arr ive d at th e ho sp ita l, h e le arn e d th e vic timwa s in

s u r g e r y. S h e d i e d

l a t e r t h a td ay.

L isa Turne r testified that a bout 9:30 a.m. on No v ember 6, 2002, she was stopped at the int e rs e c tio n o f H ig hw ay

64 and Ho us ton L e vy Roa d. She he ard

a g un sh ot a

nd c a lle d 9 -1 -1 . Wh ile she wa s on the telephone , Turner saw the vic tim get out of a white E s ca l ad e. Turner

thought the victim had been shot inside the truck beca use the victim was holding a pillow to herself like she wa s trying to stop blee ding. The appellant, who had been driving the Escala de, g ot out and wa s “wa lking

arou n d pretty

rapidly with a g un.” The victim walked in front of Turner ’s ca

r, and the appellant

c a me up fr om b e hin d a

nd sh ot t he vic tima g a in f

ro m a fe w f e e t awa y . T ur ne r sa id that th e vic tim had her back to the appellant when he shot her and that the vi ctim had been t rying to g et awa y from him. The victim fell onto her ba ck and tr ied to g et up. The a ppellant walke d around, w aved the g un, stood over the victim, and shot her in the chest. Tur

ner sa id that the appellant did not have an expression o n h i s fac e and that he looked “like he had a job to do and he did it.” The appe llant walked to the near

by Citgo gas station and talked to a man. Then he g ot back into the Esca lade a nd turned onto Hig hway

64.

On cr oss-examination, Turner testified that she did not see any blood on the victim and was not positi ve that the victim had be en shot in the Esca lade. After the victim g ot out of the Esca lade, the appe llant shot her in the bac k or shoulder a rea . The victim fell down and was ly ing on her ba ck. Th e a pp e lla nt the n sh ot he r in the c he st. Turn e r a c kn ow le dg e d th a t th e a pp e lla nt p ut t he g un to h is head be fore he starte d wavingit around.

Tania Smith testified that on the morning of Nove mber 6, 2002, she w as driving east on Hig hway 64. She approa ched Houston L evy Road and saw the victim lying on the side of the r oad. Smith p ull e d o ve r an d we nt to he lp the vic tim . T he vic timwa s mo anin gand ble e din g , a

nd Smith kneele d down and wipe d the victim’s contac t lenses out of her ey es. The victim was try ing to ge t up , b ut S mith to ld h e r t o b e sti ll. Th e a pp e lla nt w a s h old inga

g un and a pp ro a c he d Sm ith . Sm ith asked him if the victim was okay
, and the appellant said, “I hope she’s dead.” Smit h said she wa s not afra id of the a

ppellant bec ause he was not ag itated and se emed “ indiffer ent.” The appellant g ot ba c k in to the Es c a la de , an d Smith he ard the tir e s sque a l. Smith a sk e d th e vic timwh o h a d d on e thi s, and the victim said either “my ex-boy friend F redr ick” or “my boy friend F redr ick.”

Sherry Trippett testified that on the morning of November 6, she and he r mother- in-law we re-5-

sto pp e d at th e c or

ne r o f H ig hw ay

64 and Ho us ton L e vy . T ri pp e tt s aw t

he vic timru

n a c ro ss t ra ff ic and noticed she was holding a pillow to her side. The victim was weari n g “s l i p p er socks” but no sh oe s and loo ke d li ke sh e ne e de d h e lp. Th e a pp e lla nt g ot o ut o f a

n E sc a la de and

ha d a g un in h is hand. He aimed it at the victim and shot her. Th e v i ct i m fe l l
, go t up, and tried to g et awa y . The appellant wa lked towar d the victim, stood over her, and shot he r ag ain. Trippett saw the appellant talking to two pe ople. He g ot into the Escala de and drove awa y

. Trippett said that she neve r took her e y es off

him and that he “looke d like he had no e motion, that he was just taking c are of business.”

On cr oss -e x ami nation, Trippett testified that she did not see or hea r the a ppellant say

any thi ngto a ny on e and

that he fi re d th e g un thr e e or fo ur tim e s. Tr ipp e tt a ssume d th e a pp e lla nt a lso shot the vi ctim inside the t ruck beca use t he victim was runningawa y from him and wa s holding the pillow. However , Trippett did not see a ny blood. When the appellant shot the victim in the back, the g unshot “flung ” the victim’s body and she fell forwa

rd. The victim stood up, and Tr ippett’s view

wa s b locke d bri efl y

by ano the r v e hic le . T ri pp e tt the n s aw the a pp e lla nt s tand ingov e r t

he vic tim
, who was lying on he r bac k, and hea rd a gunshot.

Ray nelle B altz testi fied that on the morningof Nove mber 6, she w as d ri v i n g a F edEx de liv e ry tr uc k and wa s tr a ve lin g no rt h on Ho us ton

L e vy Roa d. She sa

w the a pp e lla nt a nd the vic tim standing o n t he roa d. At first, she thoug ht the appellant wa s beating the victim. The victim was ho ldi nga pil low to he r sto ma c h, and

B a ltz s tart e d to c a ll 9 -1 -1 . T he a pp e lla nt w a s w a vin g a

g un “ to make sure that ev er y

body knew not to mess with [hi m] .” B altz tol d the 9-1-1 ope rator that the appellant ha d a g un. The a ppellant motioned for the vic tim to get back i n t o t h e E s ca lade, but the vict im k e p t w a lk in g in c ir c le s

. T h e v ic ti m la id d o w n in f r o n t o f B a lt z’ s tr

u c k
, an d th e appellant looked at B altz and turned ar ound. He wa s fac ing a way from the victim and looked like he was ag onizi ng over something . Then he turned a round “a nd just went boom. Ex ecute d her. Fire d in her torso just li ke that.” B altz pull ed into the Citgo pa rking lot, and the appe llant walked into the lot and talked with some people

. Someone asked Ba ltz what was g oing on, and she told the person what she had see n. When she looked up, the a ppellant and the E scala de we re g one.
Robert Mosley , J r., t es t i fi ed that on the morningof Nove mber 6, he was stopped at the intersec tion of Hig hway 64 and Houston L evy Road. He sa w something moving on the r oad, and

a woman r an over

to the object. She pointed to a white Esc alade and said, “ [H] e did it. He did it.” Mosley rea liz ed that the objec t on the road w as a w oman. The Esc alade “too k off,” and Mosley followed it on Hig hway 64. The Escala de turned onto I nterstate 40 w est, and Mosley followed it for

ano the r t wo or thr e e mil e s. He sa id h e ha d to dr ive on e hund re d te n mi le s p e r h our t o k e e p u p w ith the Esca lade. A minivan pulled in fr ont of Mosley , and he ha d to stop following the Cadillac

.

Of fi c e r D a vid Ay e rs of the Me mph is Poli c e De pa rtme nt t e sti fi e d th a t he wa s d isp a tc he d to the intersec tion of Hig hway 64 and Houston L evy

on November

6. A larg e cr owd was pr esent, a nd the vic timwa s ly

ingon the str e e t. O ff

ic e r A y e rs a sk e d th e vic timwh o h a d s ho t he r, and the vic tim said, “F red.”-6-

Donna B uckner

testified that she dated the victim’s brother, B erna rd Staffor d, and knew

the victim about se ven y ear s. She knew the appellant throug h the victim and had known him about two and one-half y ear s. Sometime in S eptember 2002, the appe llant came to B uckner ’s workpla ce a nd talked with her

about re conciling with the victim. On November 6, 2002, the appe llant telephoned Buc kner a

nd told her he ha d “killed the bitch” and had lef t her on the side of

the roa d for de ad. He told Buckne r he shot the victim three times. Buc kner heard a woman in the bac kg round say , “[W ]ho

are y ou talking to, F redr ick, who are y ou talking to? ” The appellant said, “I ’m talking to her sisterin-law” and hungup.

Dr. Te resa Campbell testified t hat in 2002, she wa s an assistant medica l examiner for Shelby County and per forme d the victim’s autopsy on November

7. The victim rec eived thre e or f our g un sh ot w ound s. On e bu lle t e nte re d th e mid dle of the vic tim ’s ba c k to the le ft of he r s pin e . I t hi t a piec e of the spine, enter ed the r ight c hest cavity , perf orate d the rig ht lung, a

nd exit ed nea

r the victim’s rig ht ar m p i t

. T h e v ictim also had a de ep g razing wound to her buttocks. Anothe r bullet

cause d a wound to the side of the victim’s le ft leg and to he r upper thigh. Dr. Campbell could not tell which wound was the entranc e wound a nd which wa s the exit wound. The vic tim tested neg ative fo r a lc oh ol a

nd dr ug s, and sh e die d o f mul tip le g un sh ot wo un ds

. Dr . Cam pb e ll cla ssi fi e d h e r d e a th as a homicide . On cr oss-examination, Dr. Campbell testified that there wer e no entr ance wounds to the front of the victim that could have been cause d while the victim wa s ly ing flat on h er back with the appellant standingover he r. Howe ver, the victim could have be en lying on he r side.

Ray Davis, the a

ppellant’s father, testified f or the a ppellant that sometime in 2002, he wa s in M e mph is a

nd wa s v isi tin g fr om T e xas. Th e a pp e lla nt t e le ph on e d a

nd a sk e d D avis to pic k h im up from wor

k and take him home. Davis picked up the appellant and then picked up D avis’ wife
, w h o w a s n o t t

h e a p p e ll an t’ s mo th e r

. D a v is an d h is w if e dr o v e th e a

p p e ll an t t o th e a

ppellant’s
apar tment on Highw ay

64. When they

arr ived, Davis a

nd his wife sa t i n t h e l i v ing r oom, and the victim said something to the appe llant. The appe llant and the victim we re in a back be droom, and the appe llant came into the living room. The victim went into t h e k i tchen a nd returne d to the be dr oo m. T he a

pp e lla nt a nd Da vis le ft the a

pa rtme nt, and

the a pp e lla nt g ot i nto his Es c a la de wh ile D a v i s an d h i s w i f e g o ti n t o D a v i s ’ c ar

. T h e a p p e l l an tl e d

D a v i s an d

h i s w i f e b a c k t o t h e e x p r e s s w a y, and the appellant told Davis he was going to his sister’s house. Davis st ated that he did not see any cuts or bruises on the victim and that he did not hear the appe llant fig ht with her.

On cr oss-examination, Davis testified that when he , his wife, a nd the appe llant arrive d at the
apar tment, the appellant a

nd the victim were “say

ing some thing ba ck and f orth to eac h other” and the victim was talking in a loud voic e. Davis decide d he and his w ife should le ave, and he asked the appellant to le ad them back to the expressway

. Davis never went to the back bedroom o f t he
apar tment.

Cosandra Milan, the appellant’ s sister, testified that on the night of September 26, 2002, she

re tur ne d h ome to f

ind the a pp e lla nt s itt ingon

he r por c h. He wa s c ry

ingand sa id h e ha d g ott e n in toB ec au s e t h e wi t n es s a n d t h e appe l l an t h av e t h e s ame s u r n ame , w e h av e ch os en t o u t i l i ze h er f i r s t n ame f

or 1

c la rity. W e m e a n no d isre sp e c t t o this ind ivid u a l.

-7- an ar g ument with the victim. He told Cosandra that he “tor e [the victim’s] cell phone up,” and he 1 asked Cosandr a to drive him bac k to the apar tmen t s o h e co u ld apolog ize to the victim. The appellant told Cosandr a he had done nothingbut break the victim’s telephone. Cosandr a drove the

a pp e lla nt b a c k to the a

pa rtme nt, and

the y we nt i ns ide . T he po lic e were th ere a nd imm e diate ly

arr ested the a

ppellant fo r as s ault ing the victim. Cosandra telephone d her mother , and her mother told her to telephone Cos an rd a’ s s i s ter, who w orked f or a bondingcompany , to arra ng e for the appellant’ s bond. The appellant g ot out of jail the next day . Cosandra sa id she did not post his bond.

Cosandra te stified that the appe llant and the victim continued to see eac h other afte r the alleg ed assault. On November 6, 2002, the victim telephone d Cosandra a nd asked he r to bring the appellant to the victim’s apar tment so the vi ctim and the appellant c ould take the Esc alade and have

owner ship transfer

red to the appellant. Cosandra drove the appellant to the apar tment and droppe d him off. L ater

that morning , she re turned to her home and sa

w SW AT car s there. T he police a sked her if she had see n the appellant, and she told t hem she ha d not seen him since that morning . L ater , the appe llant telephoned Cosandr a and told her his location. Cosandra, her mother, L ieutenant Ronnie Thompson, and a de tective went to Ra lly ’s restaur ant on Hickory Hill Road. The appellant did not know Cosandra wa s go i ng to bring the police. Cosandr a and the police pulled into the parkinglot, and the appe llant walked into the lot. He sa w the police a

nd approa ched Cosandr a. He

was c rying a

nd asked he r if the victim was okay

. He said he “didn’t mean to do it,” and Cosandra told him the vi ctim was in critica l condition. The police g ot the appellant something to drink and

arr e ste d h im.

On cr oss-examinatio n , C o s sandra testified that on September 26, the appe llant was living part-time at Cosandra’s sister’ s house and pa rt-time at her

mother’s house

. S h e s tated that the appellant ha d a white Esc alade but that the victim had the truck on the night of Sept em ber 26. Cosandra did not k n o w h o w t h e appe llant got to her home. She stated that she did not know
any thing a bout the conditions of the appe llant’s bond for the ag g ravated assault and that she did not know any thing a bout the shooting on Nove mber 6.

Trac y Pitt man, the Dire ctor of Risk M anag ement for Memphis Bonding Company , testified that he kept r ecor ds for the c ompany

. Acc ording to the appellant’ s bail bond for the a g g ravated assault cha

rg e, the victim and Cosandra Mi lan s igne d the bond ag ree ment on September 27, 2002. On cr oss-examination, P ittman testified that Quenita Milan, the appellant’ s sister, wrote the bond. He sa id the victim ha d posted bonds for the appellant previously

. Pitt man had pr oof of the vic tim’s identification for

the prior bonds, but he did not have proof of her identification for the September 27 bond.

Mary J eff erson testified that she knew the appellant as “Fat” and the victim as “Pam.” On the morning of Nove mber 6, she w as on Hig hway 64 and approac hed Houston L evy Road. She saw-8-

a truc k “we aving and bobbing
, stopping, and weaving and bobbing .” She re cog nized the truck and saw the appellant and the vi ctim inside. She said they wer e “duc king a

nd pointing . . . like fussing

and arguin g a t e a c h o the r o r s ome thi ng .” Jef fe rs on la te r l e arn e d the po lic e ha d arr e ste d th e a pp e lla nt. She acknow ledg ed that the Escala de had tinted w indows and said she could not r emember i f t he windows wer e rolled dow n when she saw the a ppellant and the vic tim.

The a ppellant testified that he met the victim in 1999. He was marrie d at the time and ha d
tw o c hil dr e n. Ho we ve r, his wi fe le arn e d ab ou t his af fa ir wi th the vic tim and kic ke d h im o ut o f t he ir home. The a

ppellant and the vic t i m re n t ed an apa rtment, and the le ase w as in the victim’s name. The c ouple also boug ht two Cadillac Esca lades a nd a L exus. Alt houg h the appe llant owned his own trucking company

and made betwee n two hundred fifty thousand and thre e hundre d thousand dollars
per y ear , he had a ll of the vehicle s put in the victim’s name so his wife could not cla im them.

The a ppellant testified that on September 26, 2002, he had been driving a truck a ll week a nd had bee n awa

y from home. He telephoned the victim and told her to pick him up at the truck y ard. Th e vic timsa id she wa s not co min g , an d he a sk e d he r how he wa s g oin g to g e t home

. She tol d h im, [W ]ell, I don’t know. Call somebody .” The appellant tele phoned his fathe r, and his father picked him up. W hen the a

ppellant, his father , and his fathe r’s wife g ot t o the apa rtment, the appe llant chec ked his mail and we nt into the bedroom wher e the victim was talking on her c ellular tele phone. He a sked her

why she would not pick him up, and they “had some word s b ac k and for th for a minute.” The a

ppellant snatche d the victim’s ce l l u l ar t elephone and “stomped it.” H e lef t the bedroom a

nd exchang ed dirty

clothes in his travel ba g for c lean c lothes. Then he w ent to the be dr oo m do or

and a sk e d the vic tim if sh e wa s g oin g to s pe a k to the a pp e lla nt’ s f a the r. Th e vic tim said she would be the re in a minute. The victim walked to the door of th e l i v i n g room and spoke with the appellant’ s family . The a ppellant and the victim argued aga in, and the appellant’s father tol d h im, “ Ithi nk

it’s ti me for y ou

to c ome on

and sh owme the hig hw ay .” Th e a pp e lla nt l e d h is fathe r and his father’s w ife to the hig hway and then dr ove to Cosandra Milan’s house.

The a ppellant testified that he pa rked dow n the street f

rom Cosandra’ s house and dr ank bee r with some of hi s brothers. Then he walked to Cosandra’ s house and sat on her porch. He was c rying and thinking a

bout what had ha

ppened w ith the victi m . When Cosandra g ot home, the appe llant asked he r to t ak e him back to the a partment. As they

approa ched the apar

tment, they

saw police

car s. They

continued on to the apar

tment be cause the appellant ha d not done any thing but bre ak the victim’s cellular te lephone. Cosandr a and the ap p el l an t we nt inside, and the police a rre sted the appellant f

or assa ulting the victim. L ater , the appellant telephoned the victim from jail and aske d her w hy she had him ar

rested. T he victim told hi m t h at he had br oken her telephone a

nd that she

wa s ma d. Th e ne xt day , the vic tim pa id the a pp e lla nt’ s bon d. Af

te r the a lle g e d ass a

ult , th e vic tim continued to live in the apartment, but the appellant moved out. He lived with his sister and spent some nig hts with his ex-wife. He stated that he did not know how the victim g ot cut on September 26.

Th e a

pp e lla nt te sti fi e d that a ft e r the Se pte mbe r 26 inc ide nt, he and the vic timc on tin

ue d to

see e ach othe r. He said that if the victim had a restra ining order ag ainst him, he did not know about-9-

it. He and the vic tim were pla nning to g et m arr ied on November 17, and he ha d boug ht her two or three diamond ring s alrea dy

. On November 6, they wer e g oing to ha ve owner ship of

the Esca lade
t ra n s fe rr ed i n t o t h e ap p el l an t ’s n am e a n d we re go i n g t o b u y

t h e v i ct i m an o t h er

en gage m en tri n g. Cosandra dr ove the a

ppellant to the victim’s apar tment, and the victim asked the appellant if he had chec ked with a lawy er about g etting a divorce from his w ife. Then the appellant and the victim left in t he wh ite Es c a la de . T he a pp e lla nt w a s d ri vin g , a nd the vict im accuse d h im o f h a vin g se x with

so me on e e lse . T he y

sta rt e d arguin g , and the vic tim hit the a pp e lla nt in his e y e

. Th e a

pp e lla nt t old the victim he was g oing to “ beat [her] ass,” a nd the victim put a gu n to his head and sa id she was
g oing to shoot him. They strug g led over

the g un, and the a

ppellant t ook it from her. When they g ot to the intersec tion of Hig hway 64 and Houston L evy Road, the appe llant stopped the truck a nd the victim turned to g et out. The a ppellant re ache d for he r, and the g un “we nt off.” T he appe llant and the victim got out of the truck. At first, the appellant testified t hat he told the victim, “B ring y our ass bac k here

. You s hot.” Howeve r, he then t estified that he did not know the vic tim had been shot and aske d her, “ I s y ou shot? ” The victim fell down on one kne e and r olled over. She le t go of the pillow she had bee n car

rying, a nd the appe llant saw blood nea r her shoulder.

Th e a pp e lla nt t e sti fi e d th a t “ e ve ry

thi ng jus t we nt bla

nk ” and tha t he loo ke d a

ro un d b ut c ou ld not think. He denied standing over the victim and shoot ing her. He sa id that he did not remembe r shooting he r ag ain but that he must have done so. The appe llant said that he put t he g un to his head and that h e d i d n o t k n o w why he did not pull the trigg er. H e ra n to the g as station, saw a man he knew, a nd told the man about shooting the victim. He aske d the man what to do, and the man sa id, “Go. L eave . Run.” The a ppellant went ba ck to the Esca lade a nd drov e aw ay

. He stated that he called a police office r he knew, L ieutenant Be rry hill. He acknow ledg ed driving one hundred t en mil e s p e r h our, bu t sa id he did so on Hi g hw ay 64 , n ot t he int e rs ta te . H e sa

w a tr uc k c ha sin g him
, pa rk e d h is E sc a la de a t an e mpt y ho us e , jumpe d o ut o f t

he Es c a la de , a

nd ra n. Th e a pp e lla nt u se d h is cellular telephone to call L ieutenant Be rry hill aga in. The off

icer was unavailable, a

nd the appe llant left his phone number

so the office r could call him. The appellant then c alled his y oung est sister, and she pic ked him up and drove him to Hickory Hill Road. The appe llant talked with L ieutenant Be rry hill over the phone, a

nd they ag ree d to meet at the Rally ’s re staurant on Hic kory Hill. The

a pp e lla nt w a lke d to the Ra lly ’s pa rk inglot and saw C os and

ra ’s and L ie ut e n a nt B e rr y hil l’ s tr uc ks pu ll into the lot. Offic er Ronnie Thompson w as with L ieutenant Be rry hill. The appellant ap proac hed L ieutenant B err

y hill’s truck and g ot inside. He wa s cry ing, a nd the offic ers told him the victim was
g oin g to b e ok ay . T he of fi c e rs too k h im t o th e po lic e statio n, and the a pp e lla nt g a ve a state me nt. He a c kn ow le dg e d th a t he sh ot the vic tim bu t de nie d do ing so wi th int e nt or pr e me dit a tio n. He a lso acknow ledg ed that he c ould have shot the vic t i m in the head if he had w anted to kill her. The appellant sa id he had a prior felony conviction for a drug offe nse and a prior fe lony

conviction for writing a bad c heck.

On c ro ss- e xami natio n, the a

pp e lla nt a c kn ow le dg e d th a t he pa sse d th e wo rt hle ss c he c k w hil e he wa s ear

ning a lot of money

. He also acknow ledg ed that it was possible the victim cut her self on September 26, 2 0 0 2
, in

o r d e r to s e t h im

u p

. H e s tate d

th a t h e d id

n o t k n o w an y th in g a b o u t t he conditions of his bond for the a g g ravated assault cha rg e. Be tween September 26 and November 6, 2002, the victim continued to live in the ap ar t m en t b u t sometimes spent the night at her mother’ s-10-

house. The a

ppellant ac knowledg ed that eve n though he and the victim wer e g oing to be marr ied

on Novem ber 17, the vic timwa nte d to tr ans fe r o wn e rs hip of the Es c a la de to h im. He a lso

a c kn ow le dg e d th a t in

his state me nt t o p oli c e a ft e r t he sh oo tin g , h e did no t me nti on that th e vic tim hit him i n the Esca lade, pointed the gun at him, o r t h re at en ed t o kill him . The a ppellant said that afte r the victim hit him and pointed the g un at him, he was ma d. He took th e g un from her and

re a c he d o ve r. Th e g un fir e d, and the vic timg ot o ut o f t

he tr uc k. Th e a

pp e lla nt t old he r t o c ome back, a nd the victim star

ted to w alk back to the truck but fe ll. The appe llant stated that he did not

re me mbe r t

he vic timg e tti ngup and

that he r s ho e s w e re in t

he tr uc k. He sa id h e ne ver to ld Tania S m i t h h e h o p edt h e vi ct i m wa s d ea d
, an d h e d en i edt el ep h o n i n g Do n n a B u ck n er af t er t h e s h o o t i n g. The jury convicted the appellant of first deg ree preme ditated murder and ag g ravated assault.

II. Ana lys is

Th e a pp e lla nt argue s that ( 1) the tr ia l c ourt e rr e d b y c on so lid a tin g the ind ic tme nts fo r t ri a l; (2) the tr ial court improper ly admitt ed the victim’s prior stateme nt about the September 26, 2002

a ssa ult int o e vid e nc e un de r t

he he ars ay ru le ’s fo rf

e iture by wr on g do ing e xce pti on , Te nn e sse e Rul e of Evidenc e 804(b) (6); (3) the trial cour t erre d by admitting L isa Turne r’s 9-1- 1 tape into evidenc e; (4 ) t he tr ia l c ourt

e rr e d b y a dmi tti ngan a

uto ps y ph oto g ra phint o e vid ence; (5) the e vid e nc e is insufficient to support hi s murder conviction; and (6) the trial cour t erre d by order ing c onsecutive
sentenc ing and by assessing a five-hundre d-dollar fine for the ag g ravated assault conviction. The State contends that the e vidence is sufficient to suppor t the murder conviction and that the tr ial court
proper ly order ed conse cutive sentencing but acknowle dg es that the trial c ourt improperly fined the appellant. Reg ardingthe appellant’ s rema ining issues, the State contends that the appellant wa ived the m be c a

us e he fa ile d to inc lud e the m in his mot ion fo r ne w tr ia l and that he is no t e nti tle d to p la in

err or re lief. We conc lude that the evide nce is suff icient to support the convictions and that

consec utive sent en ci n g is proper in this case . Howeve r, we also conc lude that the trial c ourt committed plain error

as to the ag g ravat ed assault conviction by consolidating the appe llant’s indictments f

or trial and that the trial court err ed by imposing the appellant’ s fine. There for e, t he
ap p e ll a n t’ s mu r d e r c o n v ic ti o n is a f

f ir me d b u t h is a g g r a v ate d a s s a u lt c o n v ic ti o n an d r e s u lt ing f ine

are reve rsed.

F ir st, we mus t a dd

re ss t he State ’s c la im re g ard ing the a pp e lla nt’ s hav ingwa ive d mo st o f h is issues by failing to include them in his moti on for ne w trial. Fa ilure to raise an issue of e rror , other than suffic iency

of the e vidence or sentenc ing, i n a m o t i o n fo r a ne w trial wa ives that issue for purposes of a

ppellate r eview. See Tenn. R. App. P. 3(e). The a ppellant filed a

motion for new tria l and an amende d motion for new trial. Our revie w of the motions conf irms that the appellant f

ailed
to a lle g e any

e rr or s r e g ard ingthe c on so lid a tio n o f t he of fe ns e s, the vic tim ’s he ars ay state me nt, L isa Turner ’s 9-1-1 tape, or the autopsy photogr aph. Howe ver, this cour t may analy ze any err or under the plain er

ror doc trine.

Tenne ssee Rule of Criminal P roce dure 52(b) provides that this court may addre ss “[a]n error which has aff

ecte d the s ubstantial rig hts of an acc used .

. . at any time, even thoug h not raised in the motion for a new

trial . . . wher e nec essar

y to do substantial justice.” See also Te nn. R. Evid. 103(d).-11-

We m ay on ly c on sid e r a

n is su e a s p la in e rr or

wh e n a ll f

ive of the fo llo wi ngfa c tor s a

re me t:

(a ) the re c or d mu st c le arl y e sta bli shwh a t oc c ur

re d in the tr ia l c ourt ; (b) a clea r and unequivocal rule of law must have been br eac hed; (c ) a substantial rig ht of the accused must have bee n adver sely aff ecte d; (d ) t h e ac cused did not wa ive the issue for tactica l rea sons; and (e) consideration of the err or is “nec essar y to do substantial just ice.”

State v. Ad

kis so n, 89 9 S. W.2 d 6 26 , 641 -4 2 (T e nn . Crim . App . 199 4) (f oo tno te s omitt e d) ; se e a lso State v. Smith, 24 S.W. 3d 27 4, 28 3 (T e nn

. 20 00 ) (a do pti ng the Ad kis so n te st f

or de te rm ini ngpla in

err or). F urthermor e, the “ ‘“pla in error ” must be of such a gr eat mag nitude that it probably chang ed the outcome of

the trial.’” Adkisson, 899 S.W .2d at 642 (quoting United States v. Ker ley , 838 F.2d 932, 937 (7th Cir. 1988)). We will consider w hether any of the wa ived issues war rants plain er

ror relief

.

A. Consolidation of the Offe nses

The State filed a

pretria l motion t o consolidate the se parate i n dictments for trial, a nd a hear ing w as held on the motion. At the hea ring , the S tate informed the t rial court that as a c ondition of the a ppellant’s bond for

his ag g ravated as s au lt charg e, the a ppellant was pr ohibited from hara ssing, tele phoning, or communicating with the victim. Neve rtheless, on November 6, 2002, he went to the victim’s apa

rtment and shot her at t he Highwa y 64/Houston L evy

Road intersec tion. The State argued that the indictments should be consolidated be cause failure to do so “would cre ate a chronolog ical void in the pre sentation of the c ase a nd that void w ould likely

result in signific ant jury confusion.” The S tate also argued that evidenc e of eac h of t he crimes would be admissible to prove motive, identity , and intent. The de fense argued that the indictments shou l d not be consolidated b e c a u s e th e c r im e s w e r e n o t p art o f a c o mm o ns c h e me o r

p la n

. I n a w r itte no r d e r , th e tr ia l c o urt g ra nte d th e State ’s mot ion , s ta tin g that “th e of fe ns e s ten d to sh owa

c omm on sc he me or

pla n to c a us e

s e r io u s b o d il y

h ar m o r d e a th to th e v ic ti m. ” T h e f

ir s t r e qu ir e me n t f

o r p la in e r r o r , th a t t h e r e c o rd must clearly

establish what occ urre d in the trial court, ha s been satisfied.

Next, we must determine whe ther a n unequivoca l rule of law

has been br eac hed. Te nnessee Rul e of Cr imi na l Pr oc e dure 8( b) sta te s th a t tw o o r m or e of fe ns e s ma

y be joi ne d in

the same indictment if the offe nses constitute parts of a common scheme or plan or if they are of the same or simil ar c hara cter

. See Tenn. R. Crim. P. 8(b)( 1), (2). Tenne ssee Rule of Criminal Proce dure 13( b) provides that the trial court may order sever ance of offe nses prior to trial if such seve ranc e could be obtained on motion of a de fenda nt or the State pursua

nt to Rul e 14. See Te nn. R. Crim. P . 13(b). Rule 14(b)(1) provides that “[i]f t wo or more offe nses have been joined or consolidated for

trial pursuant to Rule 8(b), the defe ndant has the right to a severanc e of the offenses unless the offense s

are part of a

common scheme or plan a nd the evidence of one would be admissi ble i n the trial of the oth e rs .” Es se nti a lly , “ any qu e sti on a s to wh e the r of

fe ns e s shou ld be tr ie d sep arate ly purs ua nt to Ru le 14(b)( 1) is ‘re ally

a question of evidentiary

rele vance .’” Spice r v. State, 12 S.W.3d 438, 445 (Tenn. 20 00 ) ( qu oti ngState v. Mo or e , 6 S.W. 3d 23 5, 239 (Te nn . 1 99 9) ). As su c h, the tr ia l c ourt mus t-12-

de te rm ine fr om t

he e vid e nc e pr e se nte d th a t:

(1) the multipl e offe nses constitute parts of a common schem e or plan, (2) e vidence of ea ch offe nse is r eleva nt to some material issue in the trial of all the other

offe nses, and ( 3) the probative value of the evidenc e of other offenses is not out weig hed by the pre judicial eff

ect that admission of the evidenc e would have on the def endant.

Spicer, 12 S.W.3d at 445 (citations omitt ed).

Ty pic a lly , c omm on

sc he me or

pla n e vid e nc e te nd s to fa ll i nto on e of thr e e c a te g or ie s:
(1 ) o ff e ns e s th a t r eveal a di sti nc tiv e de sig n o r a re so sim ila

r a s to constitute “ s ig n a tu

r e ” c r im e s ; ( 2 ) o f

f e n s e s th a t a

r e p art o f a la r g e r, continuing pla

n or conspira cy ; and (3) of fense s that are all part of the

same c riminal transac tion.

Moore, 6 S.W

. 3 d at 2 4 0

. The a ppellant’s off

enses we re not “ signature” crimes. More over, the y

wer e not part of the sa

me cr iminal transaction. Ne il P. C ohen et a l., Tennesse e L aw of Evidence
, § 4.04[13] (5th ed. 2005) (stating that “cr imes admitted as part of the ‘same transac tion’ should be lim ite d to tho se so ine xtri c abl y c on ne c te d in tim e , p la c e , o r m ann e r t

hat th e jur

y wo uld be un a ble to comprehe nd the essential nature of the char g ed crime without he aringthe evidenc e of the ‘other’ crime” (citing Claiborne v. State, 555 S.W.2d 414 (Tenn. Crim. Ap p

. 1 9 7 7 )) . There fore
, c o n s o l i d a t i o nw a s p r o p e r o n l y i f t h e o f f e n s e s w e r e p arto f

a l ar g e r , c o n t i n u i n g p l ano r c o n s p i r a c y.

“The larg er, c ontinuing plan c ateg ory encompa sses g roups or se q u e n c e s o f c r im es committed in order to a chieve a common ultimate goal or pur pose.” State v. H allock, 875 S.W.2d 285, 290 (T e nn . Cr im. Ap p. 19 93 ). I t r e qu ir e s p ro of of “ a wo rk ingpla

n, op e ratin g tow ard s th e futur e wi th such forc e as to make probable the crime for which the defe ndant is on trial.” State v. Hoyt , 9 28 S.W .2d 935, 943 (Tenn. Crim. App. 1995), overruled on other grounds by Spicer v. State, 12 S.W.3d 438 (Tenn. 2000) . Previously , this court has stated that “ the larg er, c ontinuing plan c ateg ory has ty pic a ll y b e e n r e s tric te d to c ases involving crime spr ees, w here the def endant c ommits sever al cr imes quite closely

in time to one another .” State v. Allen Pre ntice B ly e, No. E2001- 01375-CCA-R3-CD, 2002 WL 31487524, at *6 (Te nn. Crim. App. Nov. 1, 2002).

I nitially
, we note that no evidenc e wa s prese nted to the trial cour t at the motion hearingand that the trial court based its ruling only on counsel’s a rguments. Thus, the State prese nted no proof at the consolidation hea

ring that the offe nses wer e par t of a common scheme or plan. F urthermor e, even ta king into conside ration the e vidence prese nted at trial, we cannot conclude that the offe nses

wer e par t of a lar g er c ontinuing plan or conspirac y . The proof

established th at o n S eptember 26, 2002, the appe llant and the victim g ot into an argument at their a partment a

nd that the appellant c ut the victim’s arm. On November 6, 2002, the appellant and the victim were trave ling in the Esc alade when they

g ot into an argument and the a ppellant shot the victim. After the v i ct i m go t o u t o f t he-13-

truck, the a

ppellant re peate dly

shot her. As noted in the a ppellant’s brie f, the only

simil arity betwee n the cr imes is that they

involve the same pe rpetrator and victim. Thus, the trial cour t should not have
g rante d the State’s motion to consolidate, and a clea r and une quivocal rule of law w as bre ache d.

The a ppellant adamantly

objected to the State’ s motion. Therefor e, he did not wa ive the issue for tac tical re asons. Fina lly , with reg ard to the ag g ravated assault convic tion, we conc lude that

a su bs tanti a l r ig ht o f t

he a pp e lla nt w a s a dv ers ely

a ff e c te d a nd that c on sid e ratio n o f t

he e rr or is

n ec es s ar y to do substantial just ice be cause the fa cts detailing the appe llant’s brutal killing of the victim were highly

prejudicia l. Howeve r, consideration of the er ror is not nec essar

y to do substantial justice as to the murde r convic tion because the evidenc e ag ainst the appe llant is so compelling that the trial cour

t’s err or probably did not chang e the outcome of the trial for that conviction. There fore
, the appe llant is entitl ed to plain er ror r elief a

nd reve rsal of his ag g ravated assault convic tion but not the murder

conviction.

B. F orfe iture by Wrongdoing

Next, th e a

p p e ll an t c o n te n d s th a t t

h e tr ia l c o u rt e r

r e d b y a d mi tt in g th e v ic ti m’ s s tate me nt about t he S eptember 26, 2002 assault i nto evidenc e. Befor e Of fice r Manns testified f

or the State, a jury -out hea

ring was he ld reg ardingthe statement t h e v i ctim made to him on September 26. Offic er Ma

nns testified that the victim g ave a written statement in which she d es cr ibed the appellant’ s assault. He the n rea d the statement a loud. The S tate requested to mark the statement as

an e xhibi t, a

nd the de fe ns e ob

je c te d, arguin g that the state me nt wa s hea rs ay and ir re le va nt. Th e State contende d that the statement wa s admissible under Te nnessee Rule of Ev i d en ce 804( b)(6) , the forf eiture by wrong doing e x ception to the hea rsay rule. The State explained to the trial court that “if a person is responsible for the inability of a pe rson to be pre sent to testify , that they , in essence
, g ive up their rig ht to confrontation.” T he trial c ourt ag ree d with the State, concludin g t h at “the defe ndant ca

nnot profit from the f

act that she ’s unavailable.” Dur ing his testimony , Offic er Ma nns

rea d the statement for

the jury in which the victim de scribed how the appellant cut her arm on the night of September 26. O n appea l, the appellant c o n t en d s that the forf eiture by wrong doing exception does not apply

in this case bec ause the trial court fa iled to make the r equire d finding that the a pp e lla nt k ill e d th e vic timin o rd e r t o p ro c ur e he r u nava ila bil ity a s a wi tne ss.

Hea rsay is de fined a s “a state ment, other than one made by the dec lara

nt while testify ing at the tr ia l o r h e ar in g , o f

f e r e d in e v id e n c e to p r o v e th e tr u th o f th e matt e r a s s e rte d

. T e nn. R. Evid. 801(c) . Gene rally , hear say statements ar e inadmissible unless they fall under

one of the rec og nized exceptions to the hearsa

y rule. Te nn. R. Evid. 802. The “for feitur e b y wr o n gd o ing” exception allows the admission of a he arsa y statement “ag ainst a party that has eng ag ed in wrong doing that was intended to and did pr o cu re the unava ilability of the de clar ant as a

witness.” Te nn. R. Evid. 804(b)( 6). “Eve n intentional misconduc t, suc h as killing a witness, does not qualify

unless done for the purp o s e of proc uring the witness’s unava ilability .” Ne il P. C ohen et a l., Tennesse e L aw of Evidence § 8.39[2] [c] (5th ed. 2005). I n deter mining whether hearsa

y is admissible under the rule, the trial cour

t must co n d u ct a j u ry -out hea ring and “f

ind that a pre pondera

nce of the evidenc e establishes 1) that the de fenda nt was involved in or responsible for procur ing the unavailability of-14-

the dec lara

nt; and 2) that a de fenda

nt’s actions we re intende d, at least in par t, to procure the abse nce of the de clar ant.” State v. Ivy , 188 S.W .3d 132, 147 (Tenn. 2006)

.

I n I vy , the def

endant, Da

vid I vy , was fr equently

violent toward his g irlfriend, L aKi sha Thomas. I n May

2001, Thomas ca lled the pol ice to her apartment and told the responding office r that I vy had thre atene d to kill her beca use she wanted to e nd their relationship. I d. at 139. On J une 6, 2001, another

office r re sponded to a call and found the vic tim with a cut on her he ad, bruises on her chest, and a black ey e. I d. Thomas told the office r that I vy had attacke d her a nd had thre atene d to kill her. I d. After the second inc ident, Thomas’ c ousins drove her to the police depa

rtment, wher e she swore out a war

rant a g ainst I vy

for a ssault. I d. En route to and from the criminal justice ce nter, Thomas an d her c ousins saw I vy following them. I d. at 140. Afte r swea ring out the war

rant a nd leavingthe justice ce nter, Thomas a nd her c ousins stopped at a li quor st ore, w here I vy approa ched Thomas and thre atene d to kill her if she “‘ put the police in his business.’” I d. Two day s later, Ivy shot Thomas to death. I d. At trial, both of t he officer s who had responde d to Thomas’ ca lls testified that T ho ma s to ld t

he m I vy ha d thre a te ne d to kil l he r, and on e of the of fi c e rs te sti fi e d a

bo ut T ho ma s’ phy sical injuries. I d. at 139. Thomas’ re latives also testified that they saw Ivy pull Thomas’ hair, that T ho ma s to ld t

he m I vy ha d k ic ke d in

he r d oo r a

nd ha d b ro ke n he r furn iture , a nd that T ho ma s to ld them I vy would allow her

to leave he r ap ar t m en t fo r onl y one hour e ach da

y . I d. The trial c ourt

a llo we d th e he ars ay

te sti mo ny un der

Rul e 80 4( b) (6 ). I d. a t 14 6. Th e jur y c on vic te d Ivy

of fi rs t deg ree preme ditated murder and sente nced him to death.

On appe al, this court held that the pr oof did not establish by a pre pondera nce of the evidenc e t h a tIv y a c t e d w i t h t h e i n t e n t t o p r o c u r e T h o m a s ’ u n a v a i l a b i l i t y a s a w i t n e s s

. S e e S t a t e v

. D a v i d Iv y, No. W2003-00786-CCA-R3-DD, 2004 Te nn. Crim. App. L EXI S 1154, at *40 (Jackson, Dec . 30, 2004). In rea ching this conclusion, our court noted that the war rant for I vy ’s ar

rest wa s not ex ecute d until after Thoma s’ death and that there was no e vidence I vy was e ven aw are that a wa

rra nt had bee n i s s u ed

. I d

. Ou r s u

p re m e c o u rt , h o we v er , agr ee d wi t h t h e t ri al co u rt , s t at i n g,
The pre pondera

nce of the evidence supported the t rial court’s finding that I vy kil le d T ho ma s to pr e ve nt h e r f ro m c on ta c tin g po lic e a

bo ut h is
ag g ravated assault on J une 6, 2001. I vy followed Thomas a s she dr ov e to a

nd fr om t he Crimi na l Just ic e Ce nte r i n M e mph is, Tenne ssee, to swea

r out a warra

nt ag ainst him that was never serve d. He kil le d h e r onl y

tw o d ay s late r. Gi ve n th e se fa c ts, we dis a g re e wi th the Court of Criminals Appe als’ view that Rule 804(b)( 6) re q uired that I vy had to know about the issuanc e of an arr est war rant for the
ag g ravated assault; moreove r, there was no re quirement that Ivy ’s

so le int e nti on ha d to be pr e ve nti ng Th oma s fr om te sti fy ing against him in a proce eding based on the ag g ravated assault.

I vy , 188 S.W .3d at 147; see a lso St ate v. B rooks, 249 S.W.3d 323, 328-29 (Tenn. 2008).

I n the re cently -dec ided ca se of Giles v. California, ___ U.S. ___, 128 S. Ct 2678 (2008), the-15-

United States Supreme Court explained fa ctors a state court can c onsider whe n deter mining whe ther

a de fe nd ant k ill e d a

vic timwi th t

he int e nt t o p ro c ur e the vic tim ’s un avai la bil ity a s a wi tne ss. Although G iles analy

zed forfe iture by

wrong doing in ter

ms of its a

pplication to the Confrontation Cla us e rathe r t

han the r ule a g a ins t he ars ay , th e Court ’s e xplanatio n is sti ll h e lpf ul i n o ur ana ly sis

. As the Supreme Court state d,

Where such a

n abusive rel ationship culminates in murder, the

e vid e nc e may

su pp or t a fi nd ing that the c ri me e xpre sse d the int e nt t o isolate the victim and to stop her fr om reporting a b u s e t o the authorities or c ooperating with a criminal prose cution--r ender ing he r prior stateme nts admissibl e under the forf eiture doc trine. Ear lier abuse, or threats of abuse, intended to dissuade the vict i m fr om

resor ting to outs ide help would be highly rele vant t o this inquiry , as

wo uld e vid e nc e of on g oin g c ri min a l pro c e e din g s at whi c h the vic tim would have be en expected to testify

. ___ U.S. at ___; 128 S. C t. at 2693.

Turning to the instant case, the evidenc e esta blished that on the nig ht of the assa ult, the appellant cut the victim. L ater , the appellant returne d to the apar tment to find the victim and Wendy Tolbert ther e with the police. T he appe llant told Tolbert that “t h is was all [Tolbert’s] fault,” de mon str a tin g tha

t he wa s u

ps e t th e vic timha d c on ta cte d To lb ert fo r h e lp. Th e e vid e nc e a lso established that af

ter the a ssault, t he appe llant and the victim stopped living tog ether . The

a p p e l l an t ’ s p r e l i m i n ar

y h e ar i n g w a s s c h e d

u l e d t o t a k e p l a c e o n N o v e m

b e r 8
, 2 0 0 2
, j u s tt w o d a ys afte r he k il le d

th e v ic ti m. O nth e d ay o f th e v ic ti m’ s d e a th
, h e r

b r o th e r f o u n d a le tt e r o nh er apar tment door, appa

rently to remind her that she was to a ppear in court for

the hea ring . I n light of this evidence , we f

ind that the appellant killed the victim, a t le ast in pa

rt, with the intent to procure her f rom testify ing a g ainst him at the preliminary hear ing a

nd t h at t h e v i ctim’s statement wa s admissible under the f

orfe iture by

wrong doing e x ception to the hear say rule. The ref ore, r eadingthe
state me nt f

or the jur y a lso did no t vi olate the a

pp e lla nt’ s ri g ht to c on fr on ta tio n. Se e Gi le s,
__ _ U .S. at ___, 128 S. Ct. at 2688; C raw ford v. Washington, 541 U.S. 36, 54, 124 S. Ct . 1354, 1366 (2004). An unequivoca l rule of law was not bre ache d, and this issue does not war rant plain e rror

relief

. C. 9-1-1 Tape

The a ppellant contends that the trial court e rre d by allowing a 9-1-1 audiotape to be admitted int o e v id e n c e

. T h e r e c o r d c le ar ly e s ta b li s h e s w h a t o c c u r

r e d in th e tr ia l c o u rt: A f

te r Ch r is to p h er Hig g s testified, the State informe d the trial cour t that it would be calling L isa Turne r to testify and that it wa nted to pla

y the audiotape of Turne r’s 9-1- 1 call for the jury . The de fense objected, a rg uing that the tape w as re dundant bec ause Tur ner w as g oing to testify

about what she witnessed on November 6. The defense also argued that the t ape was hi g hly prejudicia l. The State c ountere d that

on the ta pe , T ur ne r d e sc ri be d the e ve nts a s the y we re ha pp e nin g , g ivi ng the jur

y “ a ve ry g oo d ti me fr a me of wh a t w e ’r e ta lki ng a

bo ut. ” Th e tr ia l c ourt lis te ne d to the ta pe , c on c lud e d it wa s n ot u nf a ir ly-16-

prejudicia l, and ruled it wa s admissible.

O na p p e a l
, t h e a

p p e l l an tc o n t e n d s f

o r t h e f i r s tt i m e t h a tt h e t a

p e w a s i n a d m i s s i b l e h e a r s a y. We ha ve listened to the audiotape. The tape beg ins with a 9-1-1 dispatche r answe ring L isa Turne r’s call. Turne r immediately states, “The re’ s a man in fr ont of me. He has just shot h i s wi fe . She’s laying he re.” Turner

beg ins telling the dispatcher what is happening and say s,”I am sca red to de ath. Idon’t know if I should move or not.” The dispatche r transf ers he r ca ll to the fire depa rtment, and Turner tells a second dispatcher , “He ’s just shot his wife two or t hree times. She’s laying he re dy ing in the road.” After the appellant leave s the s cene , Turner informs the dispatche r that she is g etting out of her c ar a

nd g oing to c heck on the victim. A commotion can be he ard in the backg round, and Turner ’s voice tr embles as she tells the dispatcher , “She’s still breathing .” Turner ’s statements we re hear say but w ere admissible a s excited utter ance s. See Tenn. R. Evid. 803(2) . Moreove r, we ag ree with the trial court that the statements wer e not un fa i rl y p rejudicial. There fore , a cle ar a nd unequivoca l rule of law was not br eac hed by the trial court, and the r ecor d does not support a finding that the admission of the 9-1- 1 tape wa s plain err or.

D. Autopsy

Photogra ph

Th e a pp e lla nt c on te nd s th a t th e tr ia l c ourt e rr e d b y a dmi tti ngan a

uto ps y ph oto g ra phint o evidenc e. At the c onclusion of W endy Tolbert’s direct t estimony
, the S tate re quested to show her

an autopsy photogr aph of the victim. The defe nse objec ted, stating that “[w]e’ve alre ady stipulated that the woman wa s dead” and arg uing that the phot og raph was i rre levant. The State claimed that the photog raph w as nece ssary in or der for Tolbert “to tie in the identity of who the a

utopsy was on.” The State de cided that it would have the photogr aph mar ked for identification but that it would be shown to the medica l examiner during her testimony and marke d as an exhibi t a t that time. The trial
court a sked to see the p h o t og raph a nd said, “I

would pref

er that y ou do it that way , beca use I ’m h a v i n g a p r o b l e m w i t h yo u [ p u b l i s h i n g ] i t t o t h i s j u r

y r i g h tn o w

. ” D u r i n g D r

. C a mp b e l l ’ s t e s t i m o n y, the State showed the photogr aph to her , and she te stified that it wa s a “photogr aph of the woman ide nti fi e d to me a s Pame la Sta ff or d th a t I too k at th e a

uto ps y .” Th e State mov e d th e ph oto g ra phint o evidenc e as a

n exhibi t over the de fense ’s re newe d objection.

On a pp e a l, t he a pp e lla nt co nte nd s tha t the ph oto g ra ph wa s irr e le va

nt be c a us e the de fe ns e did

no t qu e sti on

the ide nti ty of

the bo dy on wh ic h D r. Campb e ll p e rf or me d th e a uto ps y . We a g re e wi th th e a p p e ll an t th a t th e p h o to g r a p h h a d li tt le p r o b a ti v e v a lu e

. Se e St a te v

. B an k s , 5 6 4 S. W. 2 d 947, 95 1 ( Te nn . 1 97 8) . H ow e ve r, the ph oto g ra phis a c los e up of

the vic tim ’s fa c e , s ho ws ver y lit tle blood, and is not g ruesome. There fore , introducing the photog raph into evide nce pr obably did not aff ect the r esult of the trial. Consideration of the err or is not nece ssary to do substantial justi ce, a nd the appe llant is not entit led to plain err or re lief.

E. Sufficienc y

of the Evidenc e

The a ppellant contends that the evide n ce is insufficient to support his first deg ree murder

c on vic tio n b e c a

us e the e vid e nc e fa ils to s ho w th at he pr e me dit a te d k ill ingthe vic tim . T he Sta te-17-

argues that the e vidence is sufficient. We ag ree with the State.

When a n appellant ch al l en g es the suff iciency of the convicting evide nce, the standard f or

re vie w b y a n a

pp e lla te c ou rt

is “ wh e the r, a ft e r v ie wi ng the e vid e nc e in the lig ht m os t f a vo ra ble to the prosec ution, any rational trier of fact could have found the essential elements of the crime beyond

a re a so na ble do ub t.” Ja c ks on v. Vi rg ini a , 44 3 U. S. 30 7, 31 9, 99 S. Ct. 27 81

, 27 89 (1 97 9) ; T e nn . R. Ap p. P. 1 3( e ). Th e S tat e is e nti tle d to the str on ge st l e git ima te vie w o f the e vid e nc e a nda ll

rea sonable or le gitimate infere nces w hich may be dra wn there from. State v. Cabba ge, 571 S.W.2d 832, 835 (Tenn. 1978). Questions conce rning the credibility of wit nesses and the weight and value to be af forde d the evidenc e, as well as all fac tual issues raised by the evidenc e, ar e re solved by the trier of fac t. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997) . This court will not rewe igh or

ree valuate the evidenc e, nor will this court subst itute its infere nces drawn f rom the circ umstantial evidenc e for those infer ence s drawn by the jury. Id. Bec ause a jury conviction re moves the presumption o f i n n o ce nce w ith which a def endant is initially cloaked a t trial and re place s it on
appea l with one of guilt, a convicted defe ndant has the burden of demonstra ting to thi s court that the evidenc e is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982)

. First deg ree murder is the pr emeditated a nd intentional killi ng

o f anothe r per son. Tenn. Code Ann. § 39-13-202( a)( 1). A pre meditated killing is one “ done af ter the e x erc ise o f re fl ection and judgme nt.” Tenn. Code A nn. § 39-13-202( d). The e lement of pre meditation i s a question of f act for the jur

y . State v. Davidson, 121 S.W

. 3 d 600, 614 (Tenn. 2003) . Although the jury may not eng ag e in spec ulation, it may infer pr emeditation from the ma nner a nd circ umstances surr ounding the killing. State v. B land, 958 S.W .2d 651, 660 (Tenn. 1997). Our supreme court ha s delineate d

sever al circ umstances f

rom which a

jury may infer pr emeditation, includi n g , but not lim ited to, de c laratio ns of

the int e nt t o k ill , e vid e nc e of the pr oc ur e me nt o f a

we a po n, the us e of

a de a dly

wea pon upon an unar

med victim, the particula

r cr uelty of the killing, pr epar ations befor e the killing for the pur

pose of c oncea ling the c rime, and c almness immediately afte r the killing. I d.

Take n in the light most favor able to the State, the evidence shows that the appe llant and the vic tim we re tr a ve lin g in the Es c a la de on the mor nin g of No ve mbe r 6. Th e y g ot int o anargume nt, and the a ppellant stopped the truc k at the interse ction of Hig hway 64 and Houston L evy Road. As the victim turned to g et out of the pa sseng er side of the truck, the appellant shot her . Ble eding and clutchin g a p i l l o w t o her side, the unarme d victim walked aw ay . The a ppellant g ot out of the E s c a l a d e an d

o r d e r e d t h e v i c t i m t o g e tb a c k

i n t o t h e t r

u c k
, b u tt h e v i c t i m c o n t i n u e d t o w a l k a w a y. The appellant aimed at the vi ctim and shot her in the ba ck. The appellant c ontends that the evide nce shows the shooting w as “spontane ous.” Howe ver, Ray nelle B altz testi fied that just b ef o re the appellant shot the victim, he looked like he was a g onizi ng over something, evidence that the

a pp e lla nt e xer c ise d re fl e c tio n a

nd jud g me nt b e fo re he sh ot h e r. He the n w a lke d o ve r t o th e vic tim
, stood over her , and shot her a third time as she wa s ly ing on the g round. Tania Smit h ran to the victim’s aid, and the a

ppellant calmly walked up to Smith a nd told he r that he hope d the victim was dead. Smith testified that she wa s not afra id of the appe llant beca use he w as not ag itated and se emed ind if fe re nt. Al tho ug h th e re wa s n o e vid e nc e that th e a pp e lla nt m a de de c lara

tio ns to k ill the vic tim be fo re the sh oo tin g , h e thr e a te ne d to kil l he r on Se pte mbe r 2 6. Gi ve n th e a pp e lla nt’ s p ri or thr e a t to kill the victim, hi s use of a deadly wea pon on the unar

med victim, the particula r cr uelty of the-18-

kil lin g , a nd the a pp e lla nt’ s c a lmn e ss i mme diate ly a ft e r the kil lin g , we c on c lud e that the e vid e nc e is sufficie nt to support the appellant’s f irst deg ree preme ditated murder conviction.

F. Sentenc ing

Th e a pp e lla nt c on te nd s that the tr ia l c ourt e rr e d b y or de ri ngc on se c uti ve se nte nc ingbe c a us e he does not have an extensive c riminal history and bec ause the circ umstances of the offe nses do not j u s t i fy h is classification as a dang erous of

fende r. The a

ppellant also conte nds that the trial cour t

err ed by assessinga five-hundr ed-dollar fine a g ainst him. The State acknow ledg es that the fine was improper but conte nds that consec utive sentenc ing is a p p ropriate in this case. Althoug h we have

re ve rs e d th e a

pp e lla nt’ s a g g ra

vate d a ssa

ult c on vic tio n, we wi ll a dd

re ss h is sen ten cing iss ue s to fa c ili ta te fu

rt he r ap pe llate re vie w. We ag re e wi th t he State and

c on c lud e that th e tr ia l c ourt c ou ld

n o ti mp o s e afi n e i nt h i s ca s e b u tt h at t h e t ri al co u rt p ro p er l y o rd er edco n s ec u t i v e s en t en ci n g.

Offic er Ray

mond Russell Til ton of t he Memphis P olice De partment testified that while the appellant wa s being held in jail on the char g es in this case, he substantially assisted the police depar tment in a fede ral investig ation of public cor ruption involving deputy jailers. Of fice r Tilton said the investig ation could not have be en succ essful without the appe llant’s assistance , and he a sked the cour t to take the appellant’s assis tance into consideration for sentencing

. On cr oss-examination, Of fi ce r Ti l t o n ac kn o wl ed ged t h at i n re tu rn fo r th e ap p el l an t ’s h el p , o ff i ce rs agr ee d

t o “l et t h e J u d ge know about his assistance to help him out in hi s sentencingif he wa s found g uilty of the c harg es ag ainst him.”

The State introduce d the appe llant’s prese ntence re p o rt i n t o evidenc e. Ac cordingto the
repor t, the then thirty -seve n-y ear -old appe llant had an a dult son and two minor children, g raduated from hig h school, and c ompleted t ru ck d riving school. I n the re port, the appe llant stated that he suffe red f rom hig h blood pressure , diabetes, a n irregular hear

tbeat, acid ref

lux
, and depr ession and

wa s takin g va

ri ou s me dic a tio ns fo r h is a ilm e nts . H e c ha ra c te ri zed his ph y sic a l he a ltha s f

a ir and his mental hea lth as g ood and stated that he wo rk ed for ML G Truc king f or three months in 2002 and owned his own fle et of trucks from 1998 to 2002. The repor t show s that the appellant has two prior felony convictions for drug offe nses and ten prior misdemeanor convictions, including convictions for violating the bad c heck la w, assault, unlawf

ul possession of a wea

pon, disorderly conduct, a nd driving without a license.

The trial c ourt sentenc ed the a ppellant to five y ear s for the agg ravated assault convic tion. See Tenn. Code Ann. § 40-35-112( a)( 3). As to consec utive sentenc ing, the trial court state d that the appellant’ s criminal re cord w as “somew hat” e x tensive. S ee T en n. Code Ann. § 40-35- 115(b)( 2). Reg ardingthe appe llant’s being a dang erous of fende r, the trial c ourt noted t h at t he cir cumstance s surrounding t h e offe nses wer e ag g ravated, that conf inement for a

n extended period of time wa s

ne c e ssa ry to p ro te c t th e pu

bli c , a nd tha t th e le ng th of

the se nte nc e s r e a so na

bly re la te d to the of

fe ns e s. Spe c if ic a lly , th e tr ia l c ourt

state d a s f

oll ow s:

The Court finds at this time that the s entenc e for the murder-19- one and the ag g ravated assault will be serve d consec utive in light of the fa cts that wer e produc ed at the tr ial, which show that there was no question that this defenda nt had ver

y littl e or no r egar d for human life, as to the f

act of how the victim was killed
, as t o t h e facts that

wer e testified to during the trial in te rms of the ag g rava ted assault and what occ urre d o n t hat nig ht the [vi ctim] suffe red that ag g ravated assault, the cir cumstance s surrounding this c onviction for the murde r

as we ll as the aggr av ated a ssault, all led and we re linked to e ach other.

The trial c ourt order ed that the a ppellant serve the sentenc es conse cutively and imposed a f

ivehundred- dollar fine f

or the a g g ravated assault convic tion.

Appellate r eview of

the length, ra nge or ma nner of service of a se ntence is de novo. See Tenn. Code Ann. § 40- 35-401(d)

. In co n ducting its de novo review , this court considers the following fac tors: (1) the e vidence , if any, re ceive d at the trial a nd the sentenc ing hear ing; (2) the
prese ntence report; ( 3) the principles of sentenc ing and ar guments as to sentenc ing alterna tives; (4) the nature and cha

rac teristics of the c riminal conduct involved; (5) evidenc e and information offe red by the parties on enhanc ement and mitigating fac tors; (6) any sta tement by the appellant in his own behalf ; and (7) the potent i al fo r re h ab ilitation or treatment. See Te nn. Code Ann. §§ 40-35- 102, -103, -210; see also State v. Ashby, 823 S.W.2 d 166, 168 (Tenn. 1991) . The burde n is on the appellant to demonstrate the impropriety of his sentence . See Te nn. Code Ann. § 40-35- 401, Se nte nc ing Com mis sio n Com me nts

. Mo re ov e r, if the re c or d r e ve a ls tha t th e tr ia l c ou rt a de qu a te ly considere d sentenc ing principles and a ll releva nt fac ts and circumstance s, this court will acc ord the trial court’ s determ i n at i o n s a pre sumption of corre ctness. Id. a t (d); Ashby, 823 S.W.2d at 169.

Te nn e sse e Cod e Anno ta te d sec tio n 4 0- 35 -1 15 (b )( 4) pr ov ide s f or c on se c uti ve se nte nc ingif “[t] he def endant is a dang erous offe nder whose behavior indicates littl e or no re g ard f or human life, and no he sit a tio n a

bo ut c omm itt inga

c ri me in w hic h th e ri sk

to h uma n li fe is h ig h. ” I n o rd e r t o

su pp or t c on se c uti ve se nte nc ingba se d u po n a de fe nd ant’ s b e inga

da ng e ro us of

fe nd e r, a c ourt mus t find that “(1) the sentenc es ar e nec essar y in order to pr otect the public from fur ther misconduct by the def endant a n d (2 ) ‘the te rms are rea sonably related to the seve rity

of the off

enses.’ ” State v. Moore, 942 S.W.2d 570, 574 (Tenn. Crim. App. 1996) (quoting State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)). Moreove r, trial cour ts must m ake spe cific f

indings re g ardingthese Wilkerson fac tors befor e imposing c onsecutive se ntence s. State v. L ane, 3 S.W.3d 456, 461 (Tenn. 1999)

.

I n this c ase, the court specific ally addre ssed the Wil kerson fac tors and stated that the manner in which the victi m wa s as s aulted and killed supporte d those fac tors. We ag ree . The a ppellant inflicted a deep cut on the victim’s arm on Septembe r 26, and she moved out of their a partment. She had only returne d to the apar

tment one day

befor e she w as kille d

. On Novembe r 6, the a ppellant shot the v ic ti m i nth e E s c a la d e , s h o t h e r in th e b a c k a s s h e a tt e mp te d

to f le e f r o m h im
, an d

s tood over he r as he shot her a third time. Consec utive sentenc ing is a ppropriate in this case.

Reg ardingthe appe llant’s fine, a rticle VI
, section 14 of the Te nnessee Constit ution provides-20-

that no fine more than fifty dollars can be assessed ag ainst a def endant “ unless it shall be assessed by a jury of his peer s, who shall assess the f ine at the time they

find the fa ct, if they

think the fine should be more than f

ifty dollars.” We have revie wed the jur y instructions in this case, and the instructions only asked the jury to de termine g uilt or innocenc e. The instructions did mention a fine. L ikewise, the jury ’s verdic t only made finding s of g uilt and did not im pose a f ine, and nothing in the

rec ord indicate s the appe llant waived his rig ht to have the jury set his fine. Ther efor e, the tria l court was without authority

to assess a f

ine in this case.

III. Conclusi on

B a se d u po n th e re c or d a

nd the pa rt ie s’ br ie fs we re ve rs e the a pp e lla nt’ s a g g ra vate d a ssa

ult

c on vic tio n and re su lti ng fi ne and re mand the c a se fo r re tr ia l. Th e a pp e lla nt’ s c on vic tio n for f

ir st deg ree preme ditated murder is affirme d.

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NORMA McGEE OGL E, J UDGE