# FILED
November 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL, 1998 SESSION

STATE OF TENN ESSEE, ) No. 03C01-9707-CR-00299 ) Appellee ) ) Cumberland County vs. ) ) Honorable John Turnbull, Judge JAMES CHRIST

OPHER TATROW, )

) (Felony Murder, Especially Aggrav ated Appellant ) Kidnapping) )

FOR THE APPE LLANT: FOR THE APPELLEE: JOHN E. APPMAN JOHN KNOX WALKUP P.O. Box 99 Attorney General & Repor ter Jamestown, TN 38556 MICHAEL J. FAHEY, I I LARRY WARNER Assistant Attorney Gener al P.O. Box 601 Criminal Justice Div ision Crossville, TN 38557 425 Fifth Ave. North Second Floor, Cordell H ull Building Nashville, TN 37243-0493 WILLIAM E. GIBSON District Attorney General DAVID A. PATTERSON ANTHONY J. CRAIGHEAD Assistant District Attorney Generals 145 South Jefferson Ave. Crossville, TN 38555

OPINION FILED: ____________________
CONVICTIONS AFFIRMED; CONSECUTIVE SENTENCES VACATED AND REMA NDED
CURWOOD WITT JUDGE1 We have reorganized the issues so that related topics are

addressed together.

2 The defendant also contends that the evi dence preponderates against the jury’s verdict. This court may not reweigh the ev

idence or assess the credibility of witnesses. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990); Therefore we consider only whether the ev

idence is legally sufficient to support the jury’s verdict beyond a reas onable doubt. Jackson v. Virginia , 443 U.S. 307, 317 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). 2 OPINION A jury in Cumberland County Criminal Cour t convicted the defendant, James Christopher Tatrow, of tw o counts of felony murder and t wo counts of especially aggr

avated kidnapping in the dea ths of Ro ger Zammi t and Joh n Harry. The defendant was

also convi cted of two c ounts of premedi tated and deliberate murder of the same victims. The tri al cour t set aside those verdicts, how ever, as the thirteenth juror. See Tenn. R. Crim. P. 33 (f). In the sentencing phase, the jury declined to impose the death penalty or life without parole and sentenced the defe ndant to serve life sentences with the possibility of parole. At the concl usio n of a sentencing hearing, the t rial court ordered the defendant to ser ve tw o consecu tive life sentences concurrently with senten ces o f 22 years for the kidnapping convictions. The defendant no w challe nges the validity of the convictions

and the propriety

of consecutive sentencing pursuant to Rule 3 of the Tennessee Rules of Appellate Procedur e.
On appeal, the defendant raises several issues: 1 1. The evidence presented at tri al was not sufficientto support th e jury verdicts. 2 (Defendant’s issue #2) 2. D efendant’s stateme nt to poli ce wa s taken u nde r circumstances that v iolated Artic l es 1 and 9 of the Tennessee Constitution and the 5th and 14th Amendments to the United States Constitution. (Defendant’s i ssue #4) 3. Photographsof the dead vict i ms were inadmissible because their pro bative value did notoutweigh their inflammatory effect. (Defendant’s issue #3) 4. The trial court erred by overruling3 Tatrow excelled on his high school rodeo team and w as selected Cowboy of the Year in Tennessee for two consecutiv e years. He receiv

ed a rodeo scholarship to UT Martin. A leg injury ended his active participation in rodeo; however, he conti nued to be involved as a s tocker and a judge. 3 appellant’s motion for mistrial a f ter the prosecutor

made an inflammatory remark to the jury during cl osing argument. (Defendant’s issue #5) 5. H olding a second sentencing heari n g afterthe jury imposed a life sentenc e for felony murder viol a tes state and federal constitutiona l provisions against double jeopardy. (Defendant’s issue #8) 6. Th e tria l court erred by refusing to admit jurors’ affi davi ts into evidence at the sentencing hearing. (Defendant’s iss ue #7) 7. T he tr ial court erred in senten cing the appellantto consecutive life sentenc es based on the finding that the defendant had an extensive record of criminal behav io r. (Defendant’s issues # 6 and #9)
Upon review of the record and the law, we affirm the defendan t’s
c onv ictions. The trial court, howev er, made equivocal findings as to whether
consecu tive sentencing is requi red to protect the public from the defendant’s future criminal a cts. Se e State v. Wilkerson , 905 S.W.2d 933, 93 8-939 (Tenn. 1995). Therefore, we vacate the order to run the sentences consecutively and remand the
case in order

for the trial court to make further findings pursuant to Wilkerson and to determine whe therthe life sentences should be ser ved concurrently or consecutively to one another.

I. Facts

A. Facts presented during the guilt phase At trial, both defense and prosecution witnesses testified to the biz a rre events that led up tothe two brutal murders.The record indicates that C hris Tatrow had been an o utstand ing rodeo cowboy, a college student, and a har dworking man who provided f or his fam ily. 3 As result of a painful back injury, however, he began4 At the sentencing phase, Tatrow testified that he went to Harry’s

place because Harry offered to exchange information about his missing belongings for cocaine. 4 taking methamphetamine. At first, he used drugs infrequently, but by late 1994, he
was a heavy

user of m ethamphe

tamine, cocaine , and oth er drugs. He an d his wife separated. After he was fired from his job, he turned to pro v iding drugs to others in order to support his habit. His trailer became “a party place” with people coming and going at all hours and various people “crashing” at the trailer at different times. Although his family continued to chec k on him, he became distant and refused to discuss his activities with them. About two weeks before the killings, w hile Tatrow
was in Texas, someone broke into h is trailer. When h e retur ned, he found a number of items missing includi ng nearly one hundred pri ze belt buckles that he had
won in rodeo events, a Navajo blanket that bel onged to a close friend who had been killed, an antiqueknife collection, his great-grandfather’s c oin purse, a tool box, and several guns. He re ported t he burgla ry to the sheriff’s department and later heard that several people includi ng Roger Zammit, John Ha rry and Bi lly T eal were responsible for the burglary. On the Tuesday before the murders, Tatro w and four others went to the house of Billy Teal. Accordingto a defense witness, Teal and his father held the group

at gun point for

at least a half an hour. The Teals took their photographsand warned Tatrow to forg et about his missing proper ty. In another incident, several shots wer e fired into Tatrow’s home w hile he w as present. One of the shots killed his German Shepherd.

During the afternoon of Thursday, January 12, Kenny Mas on to ok Tatrow to Johnny

Harry’s cabin in the Dry Creek ar ea. 4 Dondie Billings, w ho had been staying at Harry

’s, arrived along

with Christy M ullican and Billings’ boy friend, Roger Zammit. When Zammit op ened the trunk of Billings’ car, Tatrow saw a t ool boxt hat he believed had been taken from his trailer in the burglary. He becam e very angry, and the two men “swapped licks.” The fight ended when Tatrow pulled
a butterfly knife. Then every one went into the c

abin where Tatrow and Harry “cooked” either cocaine or methamphetamine in themicrowave while Mason held5 Phillip Lane Lawrence, J ames Talbert Hendrixson, J r., Michael

Redmon, Jeffrey Sanders and Kenny Mason were indicted for t wo counts of premeditated murder, two counts of felony murder, an d two counts of especially aggravated kidnapp ing. Jimm y Anthony Da n was indic ted for k idnappi ng only, and Bruce Edward Rochefort w as indicted for kidnapping an d aggravated assault. These men were aw aiting trial when Tatrow’s case was t ried.
6 The defense called the other defendants to the s tand but each one refused to testify on Fifth Amendment g rounds.

7 Apparently, Harry was not at home when the men ar rived. 5 a butcher knife and watched Zammit. Tatrow then anno unc ed that they were all going to his house “to party. ” Harry andhis girl friend remained behind whil e Mason took Zammit in his car and Tatrow drove Billings an d Mullican in Billings’ car. O n the way, Tatrow picked up Mike Redmon, who is Billings’ half-broth er, a nd B ruce Rochefort. Amber Frederick, w ho was asleep in the trailer, aw akened when Mason and Zammit arrived. Phil lip Lawrence, J. J. H endrixson, JeffSanders, and Tony Dan arrived later. 5

K en Mason and Dondie Billings described in great det ail the events of the next two days. 6 Amber Frederick and Chr isty Mullican were among those the defendant called. Although some of the details varied, their testimony is surprisingly consistent. As they described the situation, the trailer was in a state of seige, and Mason or someone else constantly sat looking out the front door with a shotgunin hand. Methamphetamine, marijuana, cocaine and oth er drugs were available and
were used cop iou sly by every one who was present. N o one slept more than an hour or two at

a time. Apparently they were convinced that Harryor Billy Teal was coming to attack them. Tatrow w as obsessed with recov ering his belongings. At
one point, he aimed an empty revolver at Za mmit’s h ead and clicked the trigger several times. Zammit was forced to stand wi th his arms

in the air while Rochefort hit him in the ribs and face. At other tim es, Ta trow slapped and kicked Zammit. Apparently Zammit admitted that he kn ew wh ere Tatrow’s .22 rifle w as located because he, Tatrow, and two other defendants drove to McM innville that night and returned with the rifle. Later Tatrow took Zammit and Redmon to Harry’ s place and retrieved some of his belongings. 76 Upon their retu rn, Tatrow and someof the others continuedto abuse Zammit. He was kicked in the face, chunks were cut out of his hair, and he received small incisions to his scalp, his shoulder, and his arms. An e ar lobe was torn w

hen
an earring was forcib ly removed. On the other hand, Zammit was

al lowed to shower, his wounds were tr eated, and an Ace bandage was w rapped around hi s rib s. He ate, and he and Billings lay together in Tatr ow’s bed during

the day o n Friday.

Sometime during Friday afterno

on or evening, Tatrow and three oth ers left and brought Johnny Harr y to the trailer where th eytied him ‘spreadeagle’ i n a chairin the laundry room. Tatr ow rep eatedly t hrew a knife at the portion of the chairseat that was exposed between Harry’s legs. Later Tatrow told a woman who stopped by

the trailer

for a few minutes that he had tied Harry to a telephone pole and whipped him with a belt. She saw the welt on Harry’s b ack. Later , Tatrow kicked Harry in the chest or chin, and Harry banged his nose on a vanity.Blood spilled onto the carpet. Witnesses no ted that Harr y had a bad gash on his leg which Tatrow bandaged. After tak ing a shower, Harr y lay on a pallet in

the bedroom.

On Saturday morning, Tatrow and Mike Redmon went to a telephone and called Dondie Billings’ par ents. Sometime during the afternoon, Mr. and Mrs. Billings arrived to take her home.Dondie Billings tes tified that Tatrow

gotdown on his knees and swore that he w ould take Zammit and Har ry home as soo n as she and Christy

Mullican left. Billi ngs’ father saw Roger Zammit standing on the porch and told him to stay away from his daughter.
Harry and Zammit were not taken home. Tatrow did take Zammit to find him some pain medication. After taking two Xanaxes and drinking some beer, Zammit passed out, and Tatrow left him s lumped over on the seat of the truck that8 The record indicates that peopl e came and went numerous times.

Several trips wer

e made to purchase food, liquor, and drugs. On Thursday evening, M ason and sev eral others

went out to

eat. Chris

ty Mulli can went hom e to shower and to pick up c lean clothes. 7 was parked in the yard. At about this time, Amber Frederi ck returned. 8 S he was very upset because some of the Dry C reek group were comi ng, and she refused to stay any longer. Tatrow

was furious at her and ord ered the others not to let her
come back. Thirty minutes later, Tatrow’s mother stopped by the trailer to chec

k on her son. She spoke to

him on the porch for a few minutes.At trial she testified that he looked crazy. She knew he was strung out on dru gs. When she tried to talk to him about it, he became enraged, and she left without entering the trailer.

Mason testified that after his mother left, Tatrow “wigged out.” Tatrow wentinto the trailer, grabbed Harry who was lying on the pallet, and started goug ing him in the face with a styrofoam bat. Jeff Sanders kicked Harry in the face and hit him with his fists. Because Harry was bleeding badly, Tatrow ordered them to put him in the bathtub. Mason and Sanders wentoutside and dragged Zammit out of the truck by his hair. At Tatrow’s directi on, Mason applied duct tape to Harry’s and Zamm it’s hands and mouths. He put tape across Z ammit’s eye

s. Zammi t wa s forced to kneel in the tub facing thefaucets, and H arry was crowded i n behind him. Several people including Redmon, Hendrixs on, and Sander

s were in the bathroom. According to Mason, he stepped out for a moment, and when he returned, Zammit had a plastic bag over

his head and a cord around his neck. Tatrow’s knee was in Zammit’s back, and he was pulling hard on the cord. Mason sai d that it looked like Tatrow wa s “ ri di nga b ul l. ” Wh en Zamm it continued to struggl e fiercely, Tatrow asked for a heavy flashlight which Maso n provide d. Tatrow backhanded Zammit three times on the back of the head, and Zammit wilted. Tatrow then walked out

of the bathroom, but when someone said that Zammit wasn’t dead, Tatrow returned and told Harry, wh o was still sitti ng in the tub, to pull on the cord. Harry pulled for
a few seconds while Tatro w laughed. Every

one went into the kitchen leaving Harry sitting in the tub with Zammit’s lifeless body. Mason opened a window because it8

“smelled bad” and turned off the lig ht.

For twenty mi nutes, th e men sat at the kitchen table smok ing cigarettes

and a “joint.” Tatrow then told Mason and t wo others to help him ge t Harry out of the house. He told them to w alk him out

of the front door and into a nearby field. Harry wal ked in front of them, but when they went throu gh the gate into the field, he broke away and ran. After about 30 yards, hestumbled and fell. Tatrow caught up to him, dragged him to his feet , and told him to keep walking. After Harry had taken a couple of steps, Tatrow kicked him in the leg and as he fell, fired one shot with the .22 r ifle into the side of John Harry ’s head.

Over the next several hour

s, the men cleaned the trailer thoroughly and attempted to dispose of the evidence. They removed the blo ody portions of carpet. Both bodies were wr apped first in woven w

ire fencing and then in carpetin g. Tatrow, Redmon, and Hendrixson left i n the truck to dispose of the bodies. Mason hid the revolver across the road in the brush and some dy namite in a nearby culv

ert, and then he and the others to ok the bl oody towels, rags and clothes to Goose Creek where they bur

ned them.
During the early morning ho urs of January 15 , 1995, Dondie Billings reported to the DeKalb County Sheriff’s De partment that Roger Zammit and J ohn Harry were missing. As result of this call, S teve Johnson, the

chief deputy, went to Chris Tatrow’s mobile home at about 4:00 a.m. Tatrow answered the door. Three
men were sittingat the kitch en table dri nking beer and playin g cards. Th e home looked neat and clean. Ta trow admitted that Zammit and Harry had been there. He said that he’d given them “a good whipping” for st ealing some of his stuff and had dropped them off in the Dry Creek area where they were picked up by someone in a bla ck Camaro. The deputy noticed nothing out of the ordina ry in Tatrow’s speech or demean or, and neither Tatrow nor the other men appeared to be intoxicated. He observ ed nothing unusual or out of plac e at the trailer.9 Days passed and neither Zammit nor

Harry returned to their homes. Deputy Johnson spoke with Kenny Mason who had lived at the Tatrow trailer for several weeks, and Mason gav e a statement incriminating himself, Tatrow and several other young men. The police recovered the .357 magnum revolver hi dden
across the road from Tatrow’s trai ler. On Januar y 24, 1995, TBI agents James Moore and Mark Gwyn arr ested Tatrow and too khim to the DeKalb County Jail. From there, he was transferred almost immediatel y to Put nam County. When a team from t h e Tenne ssee Bure au of In vestigatio n pulled t he bodie s of the t wo young men from Center Hill Lake on January 27, Tatrow was in a holding cel l in the Putnam County Jail. That afternoon, M oore and Gwyn served Tatr owwith a warrant to search his truck. A few moments after the agents left the cell, Tatr ow pounded
on the door and asked to speak w ith them again. At 3:53 p.m, he admitted that late in the evening of January 1 4, he strangled Roger Zammit to deat h and then shot John Harry in the head w ith a .22 caliber rifle.

At trial, the medical examiner, Dr. Charles Harlan, testified that it would have taken anyw here from thirty seconds to three and one-half minutes for Roger Zammit to die of

ligature strangulation. Zammit had multiple contusions on his face, lacerations on the back of hi s scalp, and a grooved depression and abrasion around h is neck. He also had t wo shallow incisions on his upper ar m and
one on the left posterior flank. The cuts occurred prior t o death as did the laceration to his bottom right ear

lobe and the small gash behind his right ear. He had no broken ribs. Dr. Harlan o pined that an average siz ed adult is strong enough to str angle someone by placing a knee in the victim’s back and pulling. The doctor reported that Joh n Harry died of a gunsh ot wo un d to the h ead. Harr y had two incision s on his face and another on his left uppe r elbow that was co vered by a Band-aid. He also had some superficial bruises. The single shot to Harry’s head would have rendered him almost in st antaneously unconscious and death would have occurred shortly

thereafter.9 Testimony at trial indi cated that th e defendant wa s using tw

o grams of “crank” a day in addition to a quarter gram of coc aine as well as substantial amounts of other drugs to “mell ow” the highs and to al low him to sleep. 10 In support of his insanity defense, the defendant offered the testimony of Dr. Donna Segar, a physici an who is board certified in toxicology, and Dr. William D. Kenner, a psychiatrist at the St. Louis Psychoanalytic Institute. Dr. Segar testified that regul ar, long te rm use of subst antial amount

s of methamp heta mine and cocaine would completely change on e’s pe rsonalit y. 9 Thought processes become delusional and paranoid. A person under the influence of “crank” or “i ce” often speaks very rapid ly and literally spits out the words thr ough clen ched teeth. Such a person demonstrates increasingly hostile and aggressive behavior and his judgmentwoul d be substantially impair ed. She testified that two g rams of methamphetamine per day is a high dos age and that a person who us ed that amount would experience hallucinations. A common hallucination, according to Dr. Segar, is the belief that insects or bugs are crawling under the skin. Dr. Segar did not examine the defendant but testified from her knowledge and experience.

Dr. Kenner spent several hours on t wo diffe rent days examining the defendant. He extensively interviewed family members and one co-defendant. Of significance were the facts that two members of the defenda nt’s fa mily suffered from depression and committed suicid e, that t he defendant’s marriage had been troubled, and that a work injury to the defendant’s b ack had caused considerable pain. Despite his injury, the defendant had conti nued to work long hours on the job and at home on the family farm. W ithin a few months, a cousin committed suicide and his parents divorced

. After his separation from his wife, his drug use grew to unmanageable proportions, and in October of 1994, he was fired from hi s job. Dr. Kenner testified that

the defendant changed from a likeable, fun-loving person w ho grew angr y b ut never held a grudg e into one who was increasingly cocky and aggressive. He became jumpy and twitchy and was unable to sleep for more than a fewminutes at a time without medication. He experienc ed tactile hallucinations and would sometimes dig at himself with a knife. Dr.Kenner described a person11

seriouslyaddicted to methamphetamine as being very par

anoid and frightened but

“ spoiling for a fight.” Methamphetamine produces an increase of territoria l aggression and cocaine de cre ases inhibitions and impair s judgment. The doctor concluded that at the time o f the murd ers the defe ndant w as suffering from an amphetamine-induced paranoid psychosis that would have a significant impact on his ability to conform his behavior and to self-examine his thinking and actions.

In rebuttal, the state

presented testimony

from Dr. Wisam Owais, the medic al director and a psychi atrist at Plateau Mental H ealth Center, and Dr. Bo b Freeman, a psychologist and chief exe cutive officer of the Volunteer Beha vioral Health Care System. Dr. Ow ais and Dr. Freeman intervi ewed the def endant o n two occasions. They reviewed hi s medical records but interviewed no one oth er than the defendant. Dr. Owais con cluded that there was no ev idence ofmental illness and that the defendant was a ble to appreciate the wrongfulness of his acts. Dr. Freeman agreed, but on cross examination, he conceded that the defendant talked about having so me hallucinations. He also stated that taking methamphetamine, Valium, and cocaine at the same ti me would have an effect on one’s j udgment.

Based on these facts, the jury r ejected the defendant’s insanity defense and found him guilty of two counts of deliberate and premeditated murder, two counts of felony

murder, and two co unts of espec ially aggravated kidna pping.

B. Facts in the Sentencing Phas e No issue relates specifical ly to the sentencing phas e of this capital case. However, in order topresent a complete picture of the facts before the trial court at the so-called “second sentencing heari n g,” we briefly s ummarize the testimony presented during the sentencing phase

The defendan t was convic ted of b oth prem editate d and fe lony murder

. To avoid double jeopardy problems, the trial court decided to allow the jur ors to10 The trial judge later announc ed that he was setting as ide the convictions for premeditated and deliberate murder as th e weight of the evidence preponderated against the verdicts. 12 consider only the conviction s for felony murder. 10 The state relied upon the single aggravating

factor, that “the murder w as especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.” Tenn. Code Ann. § 39-13-204(I)(5) (Supp. 1993). The defense presented
numer ou s witnesses, including the defendant, family members, and friends, in mitigation.

The prosecution calledAgentJames Moore as their only witness. He used the charts preparedby the medical examiner to describe the various injuries sustained by the victims. The trial court admitted into evidenc e several additional photographsof the bodies that it had excluded from the guilt phase. Moore testified that the defendant had freely and voluntari ly confes sed to committing the crimes and that he had showed no remorse

.

The defendant presented a thorough and w ell-documented mitigatio n defense. Witnesses described the defendant as a popular l eader who excelled at rodeo and as a su ccessful stude nt in high school. As an adult, he was a hardworking familyman who cared for his tw o young sons, kept a steady job, and loved his work on his par ents’ farm. His par

ents and si ster testified that the defendant was particularly devastated when, as a result of their divorce, his parents sold the farm.They al so testi fi ed to the personality and behavi or changes they observed in the defendantduring the months p rior to the murders. James Ta trow, the defendant’s father, candidly admit ted that he had provid ed his son with methamphetamine when his ba ck hurt. Numerous pictures of the defendant’s family and his rodeo activiti es were admitted into ev idence. When the de fenda nt took the stand, he wept as he d escribed the event s that led up to the two murders. The jury saw part of a v ery recent videotape s howing the defendant playing wi th his two young sons. During the showing, the defendant broke down on the stand and13

begged the judge to turn off the tape.

After deliberating for approximately six hours, the jury found that the state had proven bey

ond a r easonable doubt that the murders were heinous, atrocious, or

cruel in that

they involved tor

ture or serious physi cal abuse beyond that necessary to produce de at h. However, the jury also concluded that the statutory aggravating

circumstance did not

outweigh the mitigating circumstances bey ond a reaso nable doubt and sentenced the defendant to impris onment for life with the possibility of parole.

C. Facts at the sentencing hear ing On October 25, 1996, the tri al c ourt held a sentencing heari ng to determine the appropriate sentences for the t wo especially aggr avated kidnapping
conv ictionsand to decide whether the se ntences should run concurrently o r consecu tively. The probation officer who prepared the presente nce report n oted that the defendant had a misdemean or conviction for malicious misc hief in which he and a friend had dumped a load of manure in a school parking lot. H is testimony also disclosed that the

defendant had begun smoking marij uana seven years prior to the murders and his drug use had esc alat ed to include methamphetamine, cocaine, mushroom and a variety of tranquillizers and pain pills. TBI Agent James Moore testified for a third time. He testifie d that when the defendant made his statementthere were no tea rs and no laughter, and that althou gh the defendant
a ppeared to be anxious, he was n ot remorseful. Tatrow admitted he was th e leader. Not only did he accept r esponsibility for the death s, but in Agent M oore ’s opi n ion, at times he was boasting . The state concluded with t estimony from the victims’ families which descri bed the impact the murders had on the ir respect ive lives. The defendant again expressed his remorse for the killings. He also testified that he had not been involved in any drug activity in jail and that he was interested in purs uing his education whi le serving his ti me in prison. Diane Tatrow , th e defendant’s mother, describedher son’s emotional state on the night the murders11 We discuss the trial court’s sentencing find ings in greater detail in

section V below. 14 occurred and the change that had occurred now that he w as free of drugs.

At the con clusion of the testimony, defense c ounsel moved that variousexhibits and letters i n the court’s file be entered i nto eviden c e. The prosecution objected tothe admission of the affidavits of two jurors who stated that
a twenty-five y

ear sentence was the appropr iate punishme nt. To counter these affidavits, the state offered the affidavits of two other jurors who suppor ted
consecu tive sentencing. After hearing arguments, the trial co urt decided to exclude all juror affidavits “out of an abundance of cau tion.” The trial judge then placed on the record his findi ngs relevant to the aggravating factors and mitigating factors as applied to the kidnapp ings and the crite ria for consecu tive sentencing. 11 The trial court then sentence d the d efendant to serve 22 years for each kidnapping conviction. The court ordered t hat the d efenda nt serve hi s two life sen tences consecutivelyand that the two kidnapping convictions run concurrently with each other and the life sentences.
II. Sufficiency

of the Evidence The defendant admits that he was involved in the kidnappin gs and th at he killed the victims.He contends, however, that because he was suffering from a drug-induced psychosis, he was unable to formulate the requisite mens rea at the time these crimes were commit ted. The stat e argues that voluntary intoxication maynot be used to negate the element of recklessness and that the evidence in the record demonstrate s beyond a reason able doubt tha t the defend ant knowingl y kidnapped and then recklessly murdered the victims. After reviewing the entire record and the applicable law, w e find thatthe evidence presented at trial is legally sufficient to sustain the defenda nt’s convictions.

When an accused challenges the s ufficiency of the evidence, a n12 By statute, a person acts recklessly who acts with respect to

circumstances surrounding the conduct or the result of the conduct when the person is aware of but consciously disregards a substantial and unjustifiable risk 15 appellate court’s standard of revi ew is, whether after c onsidering the evidence in the light most favorable to

the prosecution, any rati onal trier of fact could have found the essential elements of the crime beyond a r easonable d oubt. Jac kson v. Virginia , 443 U.S. 307, 317, 99 S. Ct. 2781, 2789 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt based upon direct evidence, cir cumstantial evidence, or a combination of direct and circumstantial evidenc

e. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim

. App. 1990). Since a jury conviction removes the presumption of innocence with which
a defendant is initially c loaked and replaces i t with one of guilt, a c onvicted defendant has the burden of demonstrating on appeal that the ev iden ce is insuf ficient. State v, Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determining that sufficiency, this court does not reweigh or reevalu ate the evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning the credibility of the

witnesses, the wei ght and value of the evidence, as well as all factual issues raised by the e vidence are resolv

ed by the t rier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The state is enti tled to the strongest legitima te v iew of the evidence and all reasonable or legitimate inferences which may be drawn therefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992).

We first consider whether the defendant’s evidence of heavy drug use may be used to negate the req uisite mental state for felony mur der.

Under the version of the statue in effect at th e time of these crimes, felony murder was d efi ned as “[a] reckless ki lling of another committed in the perpetration of, or attempt to perpetrate any first degree murder, arson , rape, robbery, burglary, theft, kidnapping or air craft piracy.” Tenn. Code Ann

. § 39-13- 202(a)(2) (Supp. 1994). Thus recklessness as a mens r ea was required to

support
a conviction for a death occurring in the course of one of the enu merated offenses. 12that the circumstances exist or the result will occur. The risk must be of such

nature and degree that its di sregard constitutes a g ross deviation from the standard of care that an ordinary person would exerci se under all the circumstances as view ed from the accused person’s standpoi nt. Tenn. Code Ann. § 39-11-302(c) (1991).
16

Ten nessee Code Annotated section 39-11- 503 provides that evidence of intoxication may negate a culpable mental state. Tenn. Code Ann. § 39-11- 503(a) (1997). Subsection (b) of the statu te, howe ver, s

tates: “ If recklessness establishesan element of an offense and the person is unaware of a risk because of voluntary

intoxication, the

person’s unawareness is immaterial in a prosec ution forthat offense.” Tenn. Code Ann. § 39-11-503(b) (emphasis added). The statute defines intoxication as

the “disturbance of mental or phy sical capacity resulting

from the introduct ion of any substance into the body ,” Tenn. Code Ann. § 39-133- 503(d)(1), and voluntary intox ication as intoxication “caus ed by a substance that the person knowingly intr

oduced into the person ’s body, the tendency of which to cause int oxication was known or ought to h ave been known.” Tenn. Code Ann. § 39-13-503(d)(3).

The defenda nt offered the testimony of two ex pert and several lay witnesses

to prove that the heavy use of methamphetamine, coc aine and other drugs ha d cha nged the defendant’s personality, distorted his sense of real ity and impaired his judgment. Although the stat e’s experts

testified that they were unable to find any indication of mental il lness, one of the experts ag reed tha t drug use impairs the ability to make judg ments. However, the defendant has not argued and nothing in the record suggests that hi s drug use and resulting intoxication was anything other than vol unta ry. Therefore, although the evidence was relev ant to negate premeditation and deliberation in the first degree murder charges as well as the “knowing” element of especially aggr

avated kidnapping, the evidenc e cannot be used to negate the element ofrecklessness requir ed to prove felony murder. See State v. James Lloyd Juli an, II , No. 01C01-9511-CV-00371, slip op . at 37 (Tenn.13 This court has also recognized that evidence of a defendan t’s

mental illness that does not rise to the level of an insanity defense may establish a claim of “diminished capacit y” to form a requisite

criminal intent. See State v. Phipps , 883 S.W.2d 138, 148 (Tenn. Crim. App. 1994). 17 Crim. App., Knoxville, Ju ly 24, 1997)(perm. app. file d Oct. 30, 1997); Tenn. Code Ann. § 39-11-503, Sentencing Comm’n Commen ts. 13

We must now determine whether the evidenc e in t he record is sufficientto proved beyond a reason ab le d oubt that the defendant knowingly kidnapped and then recklessly mur dered Roger Zammit andJohn Harry during the perpetration of the kidnappings

.

To prove especially aggrava ted kidnappin g, the state must show that “the accused knowingly removed or confined another unl awfully so as to subst anti allyinterfere with the other’ s liberty,” Tenn. Code A nn. § 39-13-302(a) (1997), and that the removal or confinement was accom plished w ith a deadly weapon. § 3 9-13-305(a)(1) (1997). A person acts knowing ly with respect t o the conduct or

to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the c ircumstances exist. Tenn.Code Ann. § 39- 11-302(b) (1997).

With respect to Roger

Zammit, the evide nce shows that the defendant believed that Zammit had stolen his property or at le ast kn ew where the property could be found. Ken Mason testified that, at Harry’s cabin, the defend ant gave him a knife and told him to hold it and w atch Zammit. Later the defendant had Mason drive Zammit to his trai ler. Alt hough Mason indicated that the defendant never specifically said that Zammit was a pr isoner, there was ample t estimony from Mason and other witnesses that the understanding was that Zammit would not be permitted to depart. The defendant tried to cut hunks out of Zammit’s hair, slashed his arms, kicked him in the fa ce, and threatened him with a .357 pistol. The evidence is equally co mpelling in the cas e of John Harry. The defendant made two18

trips to find John Harry w hom he also suspected of bei ng involved in the burglary of his trailer. The defendant, as well a s others, w ere armed. Harry w as whipped with a belt before he reached the trail er. He was tied in a chair, and the defendant taunted him by

throwinga knife betw

een his leg s. Harry

suffered cuts to his arms and on one leg. Both men were beat en and kicked by others w hile the defendant was present.The record also contains cons idera ble evidence on which the jury could have found that

the use of illegal drugs had s o incapacitated the defendant that he was incapable of acting knowingly at the time of the kidnappings. The trial court instructed t he jury on the use of evidence concerning intoxication, gav

e an appropriateinstruction concerning the defendant’s capacity to form a c ulpab le mental state, and provided the jury with the appropriate defini tions. The jury, as trier of fact, resolves all factual issues raised by the evidence as well as

questions concerning the credibility of the w itnesses and theweight and value of the evidence. St ate v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). In this instance,th e jury resolved the issue in favor of the state.The facts support a con clusion that the defendant knowingly used a deadly weapon to confine both men so as to interfere significantly wi

th their liberty.

The defendant admits that he killed Roger Zammit by strangling him with a cord and that he shot John Harr y in the head with a .22 rifle. Such actions are, at a minimum, reckl e ss. We conclude that a rational juror could have found beyond a reasonable doubt that the defendant knowingly kidnapped Roger Zammit and John Harry in order to obtain information about his missing property or to gain revenge upon them for the burglary and then, during the course of the confinement, recklessly kill ed both men.

The evidence in the record is sufficient beyond a reasonabl e doubt to support the defendant’s convictions for the especially agg ravated kidnapping of John Harry and Roger Zammit and their reckless murders. See Jackson v. Virginia ,19

443 U.S. 307, 317, 99 S. Ct. 2781, 2789 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13( e).

III

. Suppression of Defendant’s Statement The defendant argues that the trial court erred in failing to suppress his confession because the confession w as taken in violation of bo th Article I, Section 9 of the Tennessee Constitution and the Fifth Amendment of the United States Cons tit ution. In this appeal, the defendant specif ically contends that his confession should have been suppressed because (1) he w as s uffering from wi thdrawal symptoms th at critica lly impai red his rea soning and j udgme nt an d prevented a knowing, intelligent and voluntarywaiver of his constitutional rights; and (2) the officers obtained the confessi on through promises and coer cion.

The record of the suppression hearing reveals that agents of the Tennessee Bureau of Investigation arrested the defendant for a ggra vated kidnapping on the morning of January 24, 1995. Agent Moore testified th at they found him sleeping at the home of a friend a nd took him tothe DeKalb County jail. W hen they a dvised him of his right s, he did not request an attor ney; he declined, however, to make any statements. Shortly thereafter, he was t ransferred to thejail in Putnam County. On January 27, the agents visited the defendant to serve him with a search warrant and to take his photograph for booking purposes. By this time, the agents had taken statements from K en Mason and several of the other young men who were involved, and the victims’ b odies had been recovered from Center Hill Lake. Agent Moore testified that neither he nor Agent Gwyn asked him any questions about the

crimes. They served the warrant, obtained his signature, and after taking his photogr aph out in the booking area, they w ent to speak tosome detectives hous ed in another p art of the sam e building.

The defendant’s version of the cir cumstances under which the written statementwas produced varies consi derably from that of the agents. According to20

the defendant, he wasvery ill when the agents arrived. He had last smoked “crank” at abo ut 5:30 a .m. on Ja nuary 24 a nd was now exp eriencin g serious wit hdrawa l symptoms. He was vomiting and s uffering from diarrhea and sever e cramps. He experienced several seizures and fell off the bed. His visi on was bl ur red, he was sweaty, and he had difficulty walki ng. He believed he was going to die. He wanted desperately to return to DeKa lb County becaus e he knew how to get dru gs in that jail. He asked the agents if they could get him sentback to DeKalb. They told him that if he helped them, maybe they could help him.

The defendant was in the holding cell in the jail’s booking area. At the hearing, the book ing off icer testified that the defendant had been placed on “medical watch.” From her chair, she was able to observe him through an eight by twelve window in the door of the cell. She remembered that he was extremely agitated and nervous. He spent a lot of time pacing back and forth in the cell, but she was unaware of any other physic al symptoms. Occasionally, she would ask him how he was doing an d he always responded “okay.” He never asked for a lawyer. Within a few minutes after the agents dep arted, the defendant stopped pacing and began beating on the wi ndow and yelling. She rec

alled that he grabbed his head and shouted, “I can’t take i t any more. I want to confess. Get them back down here.” Within a few minutes, t he defendant was taken to the intox imeter room where the two ag ents were waiting

.

Acco rding to Agent Moore, before they ev en said a word to the defendant, he spontaneously and immediat ely confessed, saying, “ I did it. I kille d them both. I’m the

one that done i

t.” The agents stopped hi m and read th e standard Miranda

warnings. After the defendant signed the written waiver, Moore proceeded to take down the defendant’s version of the kidnappings and murders. Moore said that he asked the defendant very few questions because the defendant’s story was coherent , cogent and logical. The defendant read the w ritten
s tatem ent, initialed a couple of corrections, and signed it. When he asked about14 Ms. Crawford was later appointed to represent the defendant. She

withdrew from the case when she realized that she would have to be a w itness at a suppression h earing. 21 returning to DeKalb County, the ag ents explained to him that they cou ld not arrange such a transfer. During the interv iew, which lasted less than an hour, the defendant showed little emotion and no remorse.In fact, Agent Moore testifie d, he seemed to be boasting.

The defendant testified that he could not remember how he happened to be interviewed. He did not know whether he ask ed to see the a gents again or whether he was jus

t taken to the

intervie w room. The defendant had no recollection of making any statement upon entering the interview room. He did not recall signing any waiver form or heari ng the Mirand a war nings. He said that he w as in a complete panic and wou ld hav e confessed to anything in order to get back to his home county. Moore told him that he alrea dy kn ew the whole story because the defendant’s friends ha d al ready talked. He just needed the defendant’s corroboration. If the defendantwould confess, they would get him back to DeKalb County. Everything, he was assured, would go much better for him if he confessed. The agents mentioned the death penalty and the electric chair s

everal times. Agent Gwyn pla ced a te lephone call ostensibly to arrange for the defendant’s transf er. Moore determined the order in which the statement was taken. Most of the specific details, including the exact quotes, came directly from Moore. Moore would ask the defendant whether someone said something and then he would write it down. The defendant said that he never rerea d the sta tement because he was cryi ng and could not see. Moore, h e c ontended, guided his hand to where the initials were required and to the place w here he wrote his sig nature.

At the request of

the defendant’s mother, attorney Martelia Crawford visited the defendant about thirty minutes after he gave his statement. 14 Ms. Crawford testified that, when she arrived, the defendant appe ared co nfused. He
was sitting on the cot with his knees cla sped to his chest. He complai ned of hot15 Dr. Donna Segar, the tox icology expert, testified at the suppression hearing as well as at trial. Since her testimony concerning the effects of prolonged use of methamphetamine and cocai ne is virtually the same in both settings, we have not included it here.

16 According to the transcr ipt of the suppression hearing , the booking photographs were admitted as exhibits. They w ere not included, howev er, in the record on appeal. 22 flashes and chills and told her that he was vomiting g reenish-black liqui d and was unable to eat. He seemed very uncomfortable and distraught. His conversation
was disjointed. She had to repeat her questions several times, and it was hard to geta complete answer from him. He showed her the copy of the search warr ant, and, when she warned him not to t a lk to the police, he told her that he had just given a state me nt and that he would be transfer red back to DeKalb County . She told him that he probably would not be moved unless a court ordered the transfe r. 15

At the conclusio n of the hearing, the trial j udge made thorough and specific findings. The court found that (1) the defendant was advised of his r

ights prior to making the statement and that he signed a proper waiver; (2) h e nev er requested the services of an attorney; (3) there was no evidence of deceit or deception on the part of the officers ; (4) nothing indicated that the officers used threats, violence, or

coercion that overbore his will; (5) the defendant had a history of two years of serious

drug abuse and was going through withdrawal at the time he gave his statement; (6) nothing indicated that the d efendant was not functioning in
a normal way duri ng thos e two years despite h is drug use; (6) the book ing photographstaken at the time do not show that he was so distraught he didn’t know whathe was doing; 16 (7) when the d efendan t spoke to Ms. Crawford he was able to tell her about the search w arrant and describe

the agents; (8) the defendant was in a state ofnervousness; (9)the defendant gave a detailed ac count that included statements made by various peopl e and a coh erent description of the event s. Based on these findings, the trial court concluded that the defendant had kn owingly and intelligently w

aived his constitutional

rightsand had voluntarily and freely given his incriminating st

atement.23 It is wel l settled that when a trial court makes finding of facts at the conclusion of a suppression hearing, those facts are accorded the weight of a jury verdict. State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994). The facts are binding on this court unless the e vidence in

the record p reponderates against th em. Questions of credibili ty of witnesses, the wei ght and valu e of th e evidence and resolution o f conflicts of evidence are matters entrusted to the trial judge as the trier of fact. The party prevaili ng in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable a nd legitimate inferences that may be drawn from the evidence. So long as the greater weight of the evidence supports the trial court’s findings, those findings shall be upheld. Odom , 928 S.W.2d 18, 23 (Tenn. 1996); see also State v. Bush , 942 S.W.2d 489, 499 (Tenn. 1997); Stephenson , 878 S.W.2d at 544.

In this ca

se, the e videnc e concer ning th e defe nd ant’s physical and mental condition was heavi ly controverted w ith each side presenting testimony that supported its conten tions. The trial court, how ever, resolved the c

onflicting testimony

in the state’s favor. After exa mining th e record, we cannot conclude that the evidence preponderates against those findings, and this court, the refore, is bound by them.

The Fifth Amendment tothe United States Constituti on provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” The corresponding prov ision ofthe Tennessee Constitutionstates “[t]hat in all criminal prosecuti ons, the accused sha ll not be c ompelled to give evidence against himself.” Tenn. Const.art. I, § 9.Our supreme court has previously held that “[ t ]he significant difference betw een these two provisi ons is that the test of voluntarin ess for confessions under Article 1, Section 9 is broader and more protecti ve of individual rights than the tes t of voluntariness under the F ifth Amendment.” State v. C rump , 834 S.W.2d 265 (Tenn. 1992).

To admit a defendant’s written statement i nto evidence, the statement24

must have been given voluntarily by a defendant knowledgeable of his constitutional rights and accompanied by a valid and knowing

waiver of

those rights. See State
v. Middlebrooks , 840 S.W.2d 317, 326 (Tenn. 1992). The prosecution may not use statements, whether inculpatory or exculpatory, tha t st em from custodial interrogation unless it demonstrates the use of procedural saf eguards t h at effectively secure the privilege against self-incrimin ation. Miranda v. Ariz ona , 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966); Crump , 834 S.W.2d at 268. Here, the trial judge fo und that the agents properly advised the defendant of his rig hts and that he signed a written waiver of thos e rights. Although the trial judge found that the defendant was experiencing withdrawal fro m his pr olonged use of methamphetamine and cocaine, the court also f ound that the defendant was not in such a state that he d id not un derstan d what he was doing. Th e record s hows that, after the defendantmade his spontaneous incriminator y remarks, the agents prevented him from making any further statements until they had advised him of his constitutional rights and obtaine d a wr itt en waiver. Absent an y evidence of overreaching by the police, the waiver is valid. Bush , 942 S.W.2d at 500-501.

A confession mus t be free and voluntary, and it must not be extrac ted by any

sort of threats or viol ence, nor obtained by any direct or implied promises, however slight , nor by the exerti on of an y improper influence or other evidence of police overreaching

. Bram v. United States , 168 U.S. 532, 18 S. Ct. 183 (1897). The issue of voluntariness r equires the trial judge to focus on whether the behavio r of th e state’s agents was s uch as “to overbear” the accused’s will to resist and thus bring

about a confession that was not freely given. State v. Kelly , 603 S.W.2d 726, 728 (Tenn. 1980). In this case, the defendant contends that the agents used deception and co ercion to obtain his statement. Specifically, he allegesthat the y promised to have him tr ansferred back to his home county and tricked him with a phony telephone call. He also alleges that they threatened him with the death penalty and that Agent Moor e virtually dic

tated the statement to

him
u sing info rmation obtained from the statements of other co-defendants. The trial17 The trial court permitted the introduction of the other three

photographs in the sentencing phase. The defendant does not contest the admission of those photographs. 25 judge, howeve r, believe d the testimony of the state’s w itnesses rather than the defendant with respect to these factual issues. He found that no deception occurred and that the age nts m ade no promises or threats. Thi s court does not determine the credibility of the witnesses or weig h their testimony and must, therefore, accept that judgment unless the eviden ce prepo nderates against the holding. Odom , 928 S.W.2d at 23.

If the defendant is capable of making a coherent s tatement concerning his participation in a

crime, the statement is admiss ible even if he were under the influence of drugs at the tim e. State v. Green , 613 S.W.2d 229, 232-33 (Tenn. Crim. App. 1980). When pressed, even the defendant’s expert witness conceded that the statement was coherent, c hronological, and ration al. A tr ial c ourt’s determination at a suppression hearing is presumptively corre c t. State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994). Based on the record before us
a nd cognizant of the appropri ate standard of review, we conclude tha t th e defendant knowingly, i ntelligently and voluntarily ga

ve his statement to

the police. The trial court did not err in admitting the defendant’s sta tement into evidence.

IV. Admissibility of Photographs During the guilt phase of the trial , the trial court allow ed the state to introduce into evidence two photographs of the victims’ bodies taken after they were retrieved from Center Hill Lake. The s tate requested that five pictures be admitt ed. After a jury-out hearing , the trial judge rule d that the prejudicial effect of three of the pi ctu res substantially outw eighed their probativ e value. Two remaining photographs, however, the trial judge ruled were r

elevant and admissible. 17 Neither photograph shows theface of the victim. The carpet i s gone, but both bodies are wrapped in the woven wire fencing. In Exhibit 9, John Ha rry’s body li es face d own on the gravel beach. A wound to the back of his head i s barely visibl e. Exhibit 1226

shows the body of Roger Zammit and includes the cinder block used to weight the body. The cord around his neck is visible alt hough most of his face is hidden. Duct tape is visible in H arry’s hair and arou nd Zammit’s hands.

In this appeal, the defendant argues that the ph otographs, which were taken after the bodi es had been in the lake for approxima te ly twelve days, were gruesome

and inflammatory and offered no additional information or as sistance to the jury. The state contends that the photo gr aphs were probative of the physical torture endured by the victi ms, of the process and detail of the di sposal of the bodies, and as corroboration of the defendant’s confession.

To be admissible, a photogr aph mus t be relevant to some issu e at trial, and the p rejudi cial effect of the p hotograp h must no t outweigh its proba tive value. Bush , 942 S.W.2 d at 514 ; State v. Banks , 564 S.W.2d 947, 951 (Tenn. 1978). The admissibility of photog raphs is within the s ound discretion of the trial court and the court’s determination will not be overturned on appeal ex cept upon a clear showing of an abuse of discretion. Bush , 942 S.W.2d at 514; State v. Bordis , 905 S.W.2d 214, 226 (Tenn. Crim. App. 1995).

Although it is a close question in this instance, we conclude tha t the trial court did not abuse its discretio n in admit ting the p hotograp hs. The p robative value of the photographs is somewhat diminished due to the bodies’ long exposure to lake water ; however, t hey we re r elevant to supplement the testi mony of the medical examiner and to corroborate the details provided by Kenny Mason and the defendant’s statement. See Stephenson , 878 S.W .2d at 542. The photographs
are not pleasant to observ e, but they are not unduly gruesome nor are they misleading. Their probative value is not substantially outw eighed by the danger of unf air prejudice. Tenn. R. Evid . 403; see State v. Banks , 564 S.W.2d at 951. Moreover, even if it were error to admit the photogra p hs, the error would be harmless given the ov

erwhelming proof of the defendant’s guilt.18 The defendant objected to two other r emarks made during closing but has not addressed them on appeal.

19 The trial judge said that he had almost interrupted the pros ecutor to give a cautionary

instruction but decided that it would only further

call attention to the improper argument. 27

V. Prosecutor’s Inflammat ory Remark The defendant next complains that because of the prosecutor’ s remarks he is entitled to a rev ersal of his conviction s. During closing , the prosecutor said, “Now I submit to y ou, with head bowed, defendant sits before you, a tear now and then. What purpose doe s this serve? Pure theatrics , a show for you . . . . I
can assure you that others hav e cried an ocean of tears. I can assure you that he shed no tear on the night when he br utally murdered two y oung men.” The defendant contends that these rem arks were intended to make the jury doubt the remorse and sincerity of the defendant and to inflame thejury. The state argues, first, that the issue is waiv ed because the defendant failed to make a contemporaneous objection, and, second, that the argument related to the veracity of a witness and was w ithin proper bounds.

We find that the defendant waived this issue alth ough fo r other
reaso n s. Prior to trial, defense c ounsel filed a detailed motion in limine for the purp ose of limiting the prosecuti on’s arguments. The motion w as granted by th e trial court with the limit ation t hat if the state believed that an ar gument within the purview of the motion were appropriate, the prosecutor must seek th e leave of court before making that argument to the j ury. At the first opportu nity after the jury left the court room, defense counsel brought the remark s to the attention of the

trial judge. 18 The trial judge agreed that the remarks were inappropriate and were c overed by the motion in limine. He offered to s ubmi t a su pplemental instruction to the jury. He also requested that the defense submi t a writt en motion requesting a mis trial although he did not intend to grant the motion. The trial judge said he had observed the jury closely during closing arguments. He believed that the improper remarks
were poorlyreceived and would l ikely prove more pr ejudicial to the state than to the defendant. 19 Defense counsel filed the reques ted motion for a mistrial but declined28

the trial court’s offer

to issue a supplementalinstruction as the instruction would only call attention to the improper statement.

Rule 36(a) of the TennesseeRules ofAppellate Procedure prov ides that relief need not be granted t o a party who fails to take whatev er action was reasonably available to prevent or nullify the harmful effect of an error. Inthis case, defense counsel, after taking som e time f or deliberation, declined the trial court’s offerto give a supplemental i nstruction to the jury. The defendant cannot request relieffrom an appellate court when he refused for strategic reasons appr opri ate relief offered by the trial cou rt.

VI. The “Second” Sentencing Hearing At the conclusion of

the sentencing phase of this capital case, the jury sentenced Tatrow to life impri sonment for each felony murder conv iction. On October 25, 1996, the trial court hel d a sentencing hearing to set punishment for the especiall ya ggravated k idnappi ng convicti ons and t o conside r consecu tive sentencing. Tatrow

contends that this “second” sentencing hearing v

iolates state and federal constitutional prov isions against double je opardy because the tria l judge charged the jury in the first s entencing proceeding to consider the mitigati ng circumstances

and the aggravating

circumstances which were raisedby t he evidence during the entire cours e of th e trial . At the later hearing, the state presented no new evidence. Since all of the state’s evidence before the court in the second hearing, the defendant contends, was previously considered by the jury, the defendant contends that he was twice placed in jeopardy upon the same facts.

The argument is an interesting one; however, the protections against double jeopardy

are simply inapplicab le in this instance. The lan guage in the state and federal constit utions ar e similar. Both provi de that no person shall, for the
same offense, be twic

e put in j eopardy

of life or limb. U.S. Const. amend. V; Tenn. Const. art. I, § 10. Our supreme court has held that double jeopardy protects a29

defe ndant from (1) re-prosecution for the same crime after an acquitta l; (2) re
prosecution for the same crime after a conviction, and (3) multiple punishments for the same offense. State v. Denton , 938 S.W.2d 373, 378 (Tenn. 1 996); see also North Carolina v. Pearce , 395 U.S. 711, 717, 89 S. Ct. 2072,2076 (1969).

We are unable to see how the hear ing held on October 25, 19 9 6 violated doub le jeo pardy principles. Double jeopardy principl es do not preclude separate sentencing hea rings for convictions for different offenses. In this instance, the trial court was r

equired to impose sentences for especially aggravated kidnapping and to determinewhether the life sentences imposed by the jury would be served consecutivel

y or concurrently

. See Tenn. Code Ann. § 40-35-115 (1997). The fact that the d ete rmination was made on a different day after additional argumentand upon hearing of testimony from the victims’ families does not create a violation of double jeopardy principles.

Moreover, it has long

been recogn ized that the use of the sa me evidence to determine the range and len gth of a sentence and to determine wheth er that sentence is to be served concurrently or consecutively does not violate double jeopard y. State v. Davis , 757 S.W.2d 11, 13 (Tenn. Crim. App. 1987). There is no prohibition, either statutory or c onstitutional, a ga inst using the same facts and circumstances

to enhance sentences under th e appl icable enhancement factors and to require those sen ten ces to be served consecuti vely. State v. Meeks , 867 S.W.2d 361, 377 (Tenn. Crim. App. 1993). W e are unable to conclude that double j eopa rdy principles prevent the state from using evidence presented in the sentencing phase of a capital case in a lat er hearing to determine w hether consecutive sentencing was appropriate.

VII. Jurors’ Affidavits Included in the defendant’s response to t he s tate’s Motion for Consecu tive Sentencing were the affidav its of two jurors indi cating that these jurors20 The defendant’s brief contains no citation to authority to support

this argum ent. Alth ough we have chosen to address t his issue on its mer its, we remind counsel that issues uns upported by argument, cit ation to authority, or appropriate references to the r ecord may be treated as w aived by this court

. Tenn. R. Ct. Crim. App. 10(b)

. 30 believed that the defendant was capable of rehabi litation and that he should se rve the two life sentences concur rently. At th e sentencing hearing, the prosecution, while arguing that the affid avits we re inadm issible, tendere d affid avits fro m two other jurors who believ

ed that consecutive sentenci ng would be appropriate. After hearing the arguments of both parties, the trial court decided “in an abundance of caution” not to admit into ev idence any of the affidavits.

In this appeal, thedefendant contends that the affidavits should ha ve been admitted as jurors are the exclusive judges of the facts. 20 The state argues th at the affidavits were inadmi ssible pursuant to Rule 606(b) of the Tennes se e Rules of Evidence. Although we find Rule 606 to have little bearing on this matter,
we conclude that the trial court did not abuse its discretion i n refusing toadmit the affidavits into evidence.

Neither portion of Rule 606 provides much guidance in this instance. Subsection (a) of the rule prohibits a juror from testifying a s a witness “before that juryin the trial of the ca se in which the juror is sitting.” Tenn. R. Evid. 606 (a). Because there is no jury involvement in the sentencing hearing, su bsection (a) does not necessarily preclude the admission of the affidavits. Subsect ion (b) p rovide s that, when an inquiry is made into the validity of a verdict or an indictment, a juror maynot testify as “to any matter or statem ent occurring during the course of the jury’s deliberations or to the effect of any thing upon any juror’ s mind or emotion as influencing that jury to asse nt to or dissent from the ver dict or indictment or concerning the juror’s mental proces ses. . . .” Tenn. R. Evid. 606(b). The rule is addressed to a

situation in which a

juror’s affidavit is s ubmitted in connection with
a motion ch allenging t he verdict and seeking a new trial. Tenn. R. E vid. 606, Sentencing Comm’n Comments. The affidavits, i n this instance, were o ffered at31

a sentencing hearing on th e issue of consecutive sent en cing, and they contain nothing that would be of relevance to a cha llenge to th e v al id it y o f a ju ry ve rd ic t. We conclude that Rule 606 neither permits nor forbids the admission of juror affidavi ts in this situation.

Trial courts have, howev er, broad discre tion in determining the admission of evidence. See State v. Hutchinson , 898 S.W.2d 161, 172 (Tenn. 1995); State v. Baker , 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989). This court will not disturb a trial judge’s discre tion to admit or exclude evidence unless it is exercised arbitrar

ily. Baker

, 785 S.W.2d at 134.

As noted above, we find nothing in Rule 606 that forbids the admission of the proffered affidavits. Moreov er, at a sentencing hearin g, traditional rules of evidence are relaxed. Traditionally, any evidence that

the judge deems trustwor thy and probative is admissib le in a sentencing hearin g regardless of its admi ssibility under the rules of

evidence. State v. Ha wk , 688 S.W.2d 467, 472 (Tenn. Crim. App. 1985). Sentencing Commission Comments to Tennessee Code Annotated section 40-35-210 state:

The provision of s ubsection (b) requir e the court to conside ral l of the proof at trial ... [and] ev idence and information offered by the parties on the miti gation and enhancementfactors . . . . This subsection permits the court the greatest latitude in considering all available information in imposing the appropri ate sent e nce and sentence alternative. Tenn. Code Ann. § 40-35-210 (1997), Sentencing Comm’n Comments.

The tr ial judge in this instance, did not give a specific evidentiary
reason for excluding the four affidavits nor did he men tion rele vance or pr obative value. However, we do not conclude that the trial court abused its di scretion.

Evidence must be probative and trus tworthy to be admitted in a sentencing hearing. State v. Mackey , 553 S.W.2d 337, 33 4 (Tenn. 1 977); Jerry21 The trial court ordered that the two 22-year sentenc es for especia lly ag grava

ted kidn apping run concurrentl y to each other a nd to the life sentences. 32 Lynn Hopson v. Sta

te , No. 03C01-9

308-CR-002

49, slip. op

at 4-5 (Tenn.Crim. App., Knoxville, Sept. 27,1994), perm. app. denied (Tenn. 1995). The decision to impose concurrent or consecu tive s entences lies exclusi vely with the tr

ial court. Evidence presented in a sentencing hearing should provi de the trial court wi th the facts necessary to make a determi nation according to the legal requirements

found in the statutes. Evenvictim impact statements, which are permitted by Tennessee Code Annotated section 40-38-202, ar e defined as “a statement pro viding information about the financial, emotional, and ph ysical effects of the crime on the
v ictim and th e victim’s family . . . .” Tenn. Code Ann. § 40-38-203 (2) (1997) (emphasis added). The opinion of a juror on the subject of consecutive sentencing is no more relevant than the opinion of any one else. In this instance, the affidavits expressed the opin ions of i ndividua l jurors as to the pro priety of consecut ive sentencing. Not surp risingly, the two obtained by the state were completely opposite to those offered by the defense. The four mutuall y contradictory affidav

its would have been of no assistance to the finder of fact. They could not have made the existence of any fact that w as of consequence to the trial court’s determination
more probable or less probable.Tenn. R. Evid. 401. Simply put, the affidavits were irrelevant. The trial judge did not abus e his discretion by excluding them at the sentencing hea ring.

VIII

. Consecutive Sentencing

In his final issue, the defendant contends that the trial court erred in ordering him to serve his tw o life sentences consecutiv ely. The defendant, who was 28 when he was sentenced, will not be eligi ble for parole until he is ove r

75 years old. 21 In essence, the defendant argues that consecutiv e sentencing undermines the jury’s decision to

sentence him to lif e sentences with the possi bility of parole. He also argues that, because the trial court found that he had previously been a dependable, honest, well-behaved citizen who maintaine d full employ me nt and who33

had, except for a single mis demeanor conviction, a cle an criminal record, it was error to impose consecutive sent ences. The state, however, points to the defendant’s history of extensive use of illegal drugs, the

need for deterrence, and the torture and bruta lit y of the cr imes as am ple justi ficatio n for con secutive sentencing. We c onclude that because the trial cour t affirmatively found that
consecu tive sentencing was not r equired to protect socie ty, State v. Wilkerson , 905 S.W.2d 933 (T enn. 1995) , as interpreted by the bul k of opinions from this court, precludes the use of consecutive sentences.

At the conclusion of the sentencing hearing, the trial cour t found that six enhancement factors applied to the especially aggrav ate d k idnapping convictions: (1) the defendant has a previo us history of criminal behavior; (2) the defendant was a leader in the commission of the offense: ( 5) the defendant treated
or allowed the victim to be treated withexceptional cruelty ; (6) the injuries infli cted
were particularlygreat; (10) the defendant had no hesitation about committing the crimewhen the risk to human li fe was high; and (16) the crim es were convicted under circumstances in which the potential f o r bodily injury to a victim was g reat. See Tenn. Code Ann. § 40-35-114 (1), (2), (5 ), (6), (10), (16). As mitigating factors, the trial court found that the defendant had acted under some prov ocation and that there were some grounds that t ended to excuse or

justify his acts. See Tenn. Code Ann. § 40-35-113 (2), (3) (1997). However, the tri al court found that the provocation
was comparativelyweak and the grounds w ere insubstantial and so acc orded these factors little weight. As the defendant has not challenged the applicability of any of these factors, and he does not complain about the kidnappi ng sentences imposed by

the trial court, we need not review either the factors or those sentences in any detail.

In conjunction withthe enhancement and mitigating factors, the trial court also made the followin g factual findings:

1. The defendant had b een a good family man prior to being overtaken by drugs.34 2. The defendant wasa good steady worker who had maintained regular employ ment until four months prior

to the commission of the offenses. 3. The defendant had been a better than average citizen. 4. The defendant showed genuine remorse for his crimes. 5. The defend a nt has the ability to rehabil itate hi mself.

The trial court also concl uded th at the defendant’s behavior leading up to and during the commissi on of the crimes indicated little or no regard for human life, that the d efendant had no hesitation about committing a crime when the risk to human life is high, that the circumstances wer e aggravated, and that th e length of the aggregate sentences were reasonably related to the severity of the offenses. Offsetting these findings, how ever, the court found that the d efendant was capable of rehabilitati on and that, if he remained drug free , society would not need further protection from crimi nal behavior on the part of the defendant.

Wit h respect to the consecutive sentencing criteria, the trial cour t found that the defend ant, despite his four-month imme rsion i n buying and selling drugs, was not a professional cr iminal

. Se e Tenn. Code Ann. § 40-35-115(b)(1 ). The trial court also concl uded t hat the defendant was not a dangerous off ender. However, relying upon the defendant’s extensive and admitted record of drug use, the trial judge believ

ed that t he facts of the case r equired consecutive l ife sentences. He concluded:

As I found above, the D efendant’s record of criminal activity is ex

tensive. In addition, hecommitted two aggravated first degree murders which were heinous, atrocious and cruel. Were I to se nt ence concurrentl y, i t would be the equiva lent of sendin g a message to the Defendant and to DeKalb Count y that you get one murder free.
When an accused challenges the l ength, range, or manner of service of a sentence, it is the duty of t his court to conduct a de novo review with a22 Those criteria are: (1) The defendant is a professional crimi nal who has knowingly

devoted himself to criminal acts as a major source of livelihood; (2) The defendant is an offend er whose record of criminal activity is extensive; (3) The defendant is a dangerous mentally abnormal person so declared by a competent psy chiatrist who concl udes as a result of an investigation prior

to sentencing that the defendant’s criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless 35 presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d)(1990). This presumption is "condit ioned up on the af firmati ve showing in the record that the trial court consider ed the sentencing principl es and all relevant facts andcircumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conduc ting our re vi ew, we must consider all the eviden ce, the presentence report, the sentencing pr inciples, the enhancing and mitigatingfactors, counsels’ arg umen ts, the appellant’s statements,the nature and character of the offense, and the appellant’s potential for r ehabilitation. Tenn. Code Ann. §§ 40-35- 103(5), -210(b) (1990); State v. Ashby , 823 S.W.2d at 169. The defendant has the burden of demonstrating that the sentence is improper. Id

. In the event the record fails to demonstrate the appropriate c onsideration by the trial court, appellate review of the sent ence is pu rely de novo . Id . If our review re flects th at the trial court properlyco nsidered all relevant factors and the record adequatel y supports its findings of fact, this court must affirm the sentence even if we w ould have preferred
a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

In this instance, the

trial court appropriat

ely referred to the

sentencing pri nciples and painstakingly made the appropriate factual findings.Therefor e, w e deferto the trial court’s factual findi ngs and presume these findings to be correct. However, given the trial co urt’s factual findings, w e find that the trial court erred in applying the law to those finding s and in im posing consecutive sentences in this instance.

Consecu tive sentencing may be imposed i n the discretion of the trial court upon a determination that one or more o f the criteria listed i n Tennessee Code Annotated section 40-35-115(b) exist. 22 Consecutive sentences, however, shouldindifference to conse quences; (4) The defendant is a dangerous offender whose behavior indi cates little or no reg ard for human life, and no hesitation about committing a crime in which the ri sk to human life is high; ( 5) The defendant is convicted of two (2) or more statutory offenses involving sex ual abuse of a minor with consider ation of the aggravating circumstances arising from the relationship between the defendant and victim or v ictims, the time span of defendant’s undetected sexual acti vity, the nature and sc

ope of the sexual acts and the extent of the resi dual, physical and mental damage to the victim or victims; (6) The defendant is sentenced for an offense committed whil e on probation; or (7)The defendant is s entenced for criminal contempt. Tenn. Code Ann. § 40-35-115(b) (1997).
36 not be routinely imposed ev en for the offender

whose record of criminal activity is extensive. Tenn. Code Ann. § 40-35-115, Sentencing Comm’n C omments; State
v. Taylor , 739 S.W.2d 227, 230 (Tenn. Crim. App. 1987); State v. David L. Ma yes , No. 03C01-9610-CR- 00365 (Tenn. Crim. App., Knoxvil le, Sept. 9, 1997); State v. Roscoe C. Smith , No. 01C01-9502-CR-0003 1, slip op. at 10 (Tenn. Cri m. App., Nashville, Oct. 12, 1995). Moreover, the consecuti ve sentencingfactors “cannot be read in i solation from other provisions of the Sentencing Reform Act of 1989.” Wilkerson , 905 S.W.2d at 937.

In State v. Wilkerson , our supreme court promulgated tw o additional requi re ments for cons ecutive se ntencin g: (1) the c ourt mus t find th at conse cutive sentences are reasonably related to the severity of the offenses committed and (2)
are necessary to protect th e publ ic fro m further criminal conduct. 905 S.W.2d at 937-38. We recognize that in Wilkerson , the supreme court was c onsidering the “dangerousoffender” criterion, and that it is not cogently cl ear that Wilkerson applies to those cases involv ing one of the other six criteria. See State v. David Keith Lane , No. 0 3C01-9 607-CC-00259, slip op. at 11 -13 (Tenn. Crim. App., Knoxville, June 18, 1997), perm. app. granted (Tenn. 1998).

The principles of sente ncing, however, include the notion that any punishmentimposed should be necessar y in order to pro

tect the publ ic from a defendant with a lengthy hi story of criminal conduct. Tenn. Code Ann.§ 40-35- 102(1); State v. David L . Mayes , No. 03C01-9610-CR-00365, slip op. at 8 (Tenn.23 See e.g. , Walter Powers v. State , 942 S.W.2d 551 (Tenn . Crim.

App. 1996) (extensive record of criminal behavi or); State v. Jernigan , 929 S.W.2d 391 (Tenn. Crim. App. 1996) (sexual abuse of a minor); State v. Kenneth W. Jackson , No. 02C01-9704-CR-00159 ( Tenn. Crim. App., Jackson, May 5, 1998) (extensive record of criminal behavior ); State v. Samuel Myron Carter, Jr. , No. 01C01-9705-CR-00173 (Tenn. Crim. App., Nashville, Apr. 7, 1998) (record of extensive criminal behavior); State v. Larry Blair , (Tenn. Crim. App., Nashv ille, Apr. 7, 1998) (record of ex tensive criminal behav

ior); State v. Zachary L. Barnes , No. 01C01-9704-CC-00138 ( Tenn. Crim. App., Nashvil le, Mar. 5, 1998) (extensive record

of criminal behavior and offense c ommitted while on probation); State v. Anthony Jason Merlo , No. 01C01-9611-CC-00471 ( Tenn. Crim. App., Nashvill e, Feb. 23, 1998) (extensi ve record of criminal beha vior and offense committed while on probation) ; State v. Noah Gene Noble , No. 02C01- 9701-CC-00060 (Tenn. Crim. Ap p., Jackson, Jan. 30, 1998) (e xtensive record of criminal behavior); State v. P ercy Brown , No. 01C01-9701-CR-00015 ( Tenn. Crim. App., Nashvill e, Nov. 5, 1997) (sex ual abuse of a minor); State v. Carl E. Campen , No. 01C01-9512-CC-00433 ( Tenn. Crim. App., Nashvil le, Oct. 24, 1997) (extensive r

ecord of criminal behavior ); State v. David M. Cantrell , No. 01C01-9 604-CC-0 0136 (Te nn. Crim. App., Nas hville, Oct . 24, 199 7) (extens ive record of criminal behavi or); State v. Phyliss Ann McBride , No. 01C01-9606-CC00269 (Tenn. Crim. App., Nashv ille, Oct. 24., 1997) (ex tensive record of crimi nal behavior and offense committed whi le on probation); State v. Stanley Law son , No. 01C01-9607-CR-00320 (Tenn.Crim. App., Nashvil le, Oct. 24, 1997) (sexu al abuse of a minor); State v. Bobby Teaster, No. 03C01-9611-CC-00405 ( Tenn. Crim. App., Knoxville, Sept. 26, 1997) (extensive record of criminal behavior); State v. Charles W. Sanderson , No. 01C01-9608-00384 (Tenn. Cr im. App., Nashville, Sept. 9, 1997) (extensive recor

d of criminal behavior); State v. David L. Mayes , No. 03C01-9610-CR-00365 ( Tenn. Crim. App., Knoxvi lle, Sept. 9, 1997) (extensive r

ecord of criminal behavior ); State v. Charles He nry George , No. 01C01-9512-CC-00407 (Tenn. Crim. App., Nashville, Mar. 13, 1997) (extensive record

of criminal behavior); State v. Gary W. Witherspoon , No. 01C01-9 511-CC-0 0381 (Te nn. Crim. App., Nas hville, Oct . 17, 199 6) (extens ive record of criminal behavi or); State v. Roscoe C. Smith , No. 01C01-9502-CR37 Crim. App., Knoxville, Sept . 9, 1997) Asnoted in Lane , one of the principles of the Act is to assure that defendants be punished “by the imposition of a sentence justly deserved in relation to the seriou sness ofthe offense,” Tenn. Code Ann. § 40-35- 102(1)(1997), and that “the sente nce impose d should be no greater than that deser ved forthe offense committed.” Tenn. Code Ann. § 40-35-103(2) (1997); State v. Davi d K eith Lane , slip op. at 13. Moreov er, the ultimate purpose of
consecu tive sentencing is to protect the public. State v. Wilkerson , 905 S.W.2d at 935; Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976); State v. Roscoe C. Smith , N o. 01C01-9502-CR-00031, sli p op. at 10 (Tenn. Crim. App., Na shville, Oct. 12, 1995).

Since Wilkerson , the weight of precedent in this court favors the use of the two additional requirements in all consec utive sentencing cases. 23 We00031 (Tenn. Crim. App., Nashv ille, Oct. 12 , 1995) (pr

ofessional criminal and extensive record of cr

iminal behavior); State v. Jeffery Dion Webb , No. 01C01- 9409-CC-00327 (Tenn. Crim. Ap p., Nashville, Oct. 4, 1995) (professional criminal). Other consecutive sentencing cases do not refer to the “additional” Wilkerson requirements, e.g. , State v. David L. McClure , No. 01C01-9505-CR00145 (Tenn. Crim. App., Nashv ille, Apr. 30, 1997) (sex ual abuse of a minor) or have held that Wilkerson held that consecutive sent encing as a dangerous offender requires the applicati on of the two requirements. State v. James Ray Bartlett , No. 01C01-9509-CC-00302, slip op. at 16 (Tenn. Crim. A pp., Nashville, Apr. 7, 1998).

24 The record isn’t entirely clear as to the court’s reasons for declining to find the defendant a dangerous offender. The cour t found that the defendant had shown little o r no regard for hu man life and n o hesitation ab out committin g a crime when the risk t

o human life was high. How ever, these findings appear to pertain more to the kidnapping convictions than to the c onvictions for felony murder. Obviously these two factors would exist in any felony

murder case. On the other hand, had the trial court found the defendant a dangerous offender, we observe that the r ecord may well hav

e supported the finding. The two homicides occurred not as two parts of one inci dent, but as two discrete acts that were separated by a time for reflection and conferen ce with the defendant’s friends. Different means of killing helpless victims w

ere employed. However, finding the defendant a dangerous offe nder only brings the case square ly within the

rule of Wilkerson , and consecutive sentenci ng would not be authorized where the c ourt finds that the longer i ncarceration is not necess ary to protect the public. 38 recognize that our supreme court has grant ed permission to appeal in Lane , and ultimately this issue will be resolved by that cou rt. However, in the meantime we are boun d by this cou rt’s prece dents. T herefo re, conse cutive lif e senten ces may b e imposed in this case only if the extended sentences reasonably relate to the severity of the offenses and an extended sentence in this case is required to protect the public against further criminal conduct by the defendant.

The trial cour

t ma de ext ensive findings of fact. First the court concluded that four months ofimmersion in drug-rel ated activity did not qualify the defendant as a professional criminal and that the defendant w as not a dangerous offender. 24 See Tenn. Code Ann. § 40-35-11 5(b)(1) ,(4) (1997). Based on the defendant’s daily use of illegal drugs for more than a year, the court found that the defendant had a exte nsive record of criminal behavi or. See Tenn. Code Ann. § 40- 3 5-115(b )(2) (1997). It found that the circums tances surrounding the commi ssion of the crimes were aggravated and that the murders were especially brutal and cruel and that two consec utive life sentences were reas onably related to the sev erity of39

the offenses. The record overw helmingly supports the

se findings.
However, the trial jud ge found that the defendant, prior to becoming addicted to drugs, ha d been a “better than average” citizen. He descri bed the defendant as a “good family man ” and “a hard, steady wor ker” until he was overtaken by drugs. The trial judge found that the defen dant’s remorse for his crimes wa s genuine, and that the defendant was capable of rehabilitation. The defendant h as re mained close to his parents and sister throughout, and their support forhim has been unwavering. At the sentencing hearing, close friends also testified to the ir affection for the defendant and express ed a belief in his ability to redeem his life. An affidavit from the she riff of Pu t nam Co. indicated that the defendant had been cooperative and had posed no problems during his nearly two years of incarce ration in the county jai l. The defendant, who said he had been completely drug-freesince his arrest despite the availability of drugs in jail, testified to h is intent to

continue hi s college education w hile he was

serving his time. Th e trial judge was able to obser ve the de fendant and the other witnesses, and he clearlyaccredit ed the de fendan t’s testim ony. Of critical significance to this court’s review, t he t rial court found that the defendant w as capable of rehabilitation and that, as long as the defendant was drug free, extended sentences were not required to protect the public.

The trial court, therefore, did not clearly determine whether extended sentences wer e r equired to protect the public from further criminal acts by this defendant. The trial court’s finding is conditional and hedges the outc ome on the defendant’s fut ure, unf oreseeable success in av oiding drugs. This co nditional finding averts the manda

te of Wilkerson

.

W e note that previously this court, “under our power o f de nov o review,” has itself made fact findings in support of the appl ication of the Wilkerson requirements, see State v. Ricky Dean Cole , No. 03C01-9604-CC-00171, slip op.40

at 6 (Tenn. Crim. App., Knoxv ille, July 29, 1997), but such a de novo finding was made in the absence of findings on the issue by the trial court. In the pr esent case, the trial court made many mater ial findings based upo n extensi ve live test imony, including the testimony of the defendant. Although the proportionality of the le ngth of the sentence to the severity of the offense is obviously appropriate for de novo appellate review, the second Wilkerson requirement, which i nvolves the questi on of the de fendant’ s amenability to rehabilitation, is more fact-driven. W e are generallyin no position to second-g uess a trial judg e who heard testimony from witnesses, which in this case included the defendant. In such a situation, we must defer to the trial court to c larify the conditio nal find ing it mad e relative to the need for a lengthy sentences to protect the public.

T her efore, we vacate th e trial cou rt’s impo sition of consecut ive
s entenci ng and remand the case in order for the trial court to make appropr iate fin din gs under Wilkerson and to de termine whethe r the def

endant’ s two l ife sentences shall be served concurrently with or consecutively to each other.

Conclusion Our review of

the record and the law has di sclosed no error requi ring reversal of the defendant’s convictions, and we af firm his convictions. The imposition of consecutive sentences, ho wev er, is vacated. We remand the case to the trial court for further proceedings pursuant to thi s opinion.

__________________________ CURWOOD W ITT, Judge
CONCUR:

______________________________ PAUL G. SUMMERS, Judg e

______________________________41

JERRY L. SMITH, Judge