# FILED
December 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON JUNE SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710- CR-00406 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. DA ILEY ANTONIO L. SA ULSBERRY ) JUDGE & FRANKLI N C. HOWARD, ) ) Appellants. ) (First Degree Murder; Aggravate d ) Rob bery)
ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF SHELB Y COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : STEFFEN G. SCHREINER JOHN KNOX WALKUP Attorney for App ellant Saulsbe rry Attorney Generaland Reporter 295 Washington Avenue, Suite 3 Memphis, TN 38103 PETER M. COUGHLAN Assistant Attorney General JOSEPH S. OZMENT 425 5th Avenu e North Attorney for App ellant Howard Nashvill e, TN 37243 217 Exchange Avenue Memphis, TN 38103 WILLIAM L . GIB BONS Distri ct Attorney General JAMES V. BALL Attorney for App ellant Howard TER RELL L. HAR RIS 217 Exchange Avenue J. ROBERT CARTER Memphis, TN 38103 PHILL IP GE RALD HAR RIS Assistant Distri ct Attorneys General Criminal Just ice Complex, Sui te 301 201 Poplar Street Memphis, TN 38103 OPINION FILED ________________________ AFFIRMED IN PART; REVERSED IN PART; REMANDED PAUL G. SUMMERS, JUDGE1 In the inte rest of clari ty, we add ress these p oints of alleged error in a different order. -2- 

# OPINION

The Defe ndan ts, Anto nio L. Saulsberry and Franklin C. Howard, pursuant to Tennessee Rule of Appell ate Procedure 3 (b ), appe al as o f right the ir convicti ons for fi rst degree pr emeditated murder, esp ecially aggravated robbery, and conspiracyto commit aggravated robbery. In additi on, Defendants appeal the trialcourt’s applicat ion of consecutive sentencing. These convictions arose from the robbery of a Memphi s T.G.I. F riday’s resta urant an d the m urder of its
mana ger, Ge ne Frieling
.

Defen dants p resen t ten as signm ents o f error: (1 ) the trial c ourt er roneo usly admitted a photograph of t he deceased vict im; (2) the evidence was insuff icient to show premeditat ion or intent for first degree murde r; (3) crimina l respons ibility forfirst degree premeditated murder is not supported by

the proof and the t rial court erroneous ly charged the jury on crimina l responsibility; (4) the trial court
erron eous ly charged the jury o n the elements of f irst degr ee premeditated murder; (5) thetrialcourt fai led to charge the jury of the nee d for mo ral certainty to convict; (6) the t rial cour t fail ed to inst ruct the j ury that a prio r inconsi stent statementcould be consi dered for i mpeachment purposes only; (7) the trial court
erron eous ly admitted a vi deotape of thecrime scene and commented on the portion of tape not sho wn to the jury; (8) the er rors made by the t rial cour t amount to cumulative error, r

equiring a new trial ; (9) t he trialcourt err oneously imposed
consecu tive sentences; and ( 10) the trial court failed to grant a necessar y mistri al based upon an alleged discovery violat ion by the State. 1-3- Defen dants were indic ted by the Shel by County Grand Jury in July of 1995
on charges of premeditated murder in vi olation of Tennessee Code Annotated § 3 9-13-202(a )(1), murder committed duri ng the perpetr ation of a

robbery i n violat ion of § 39-13-202(a)(2), murder committed in perpetrati on of a burgla ry in violat ion of § 39-13-20 2(a)(2), espec ially aggrava ted robb ery in violation of § 39- 13-403, and cons piracy to commit a felony in viol ation of §39-12-103. Defen dants were convicted by a jury on Febru ary 14, 1997, of fir st degree premeditated murd er, esp ecially a ggrav ated ro bbery , and c onsp iracy to c omm it aggrava ted robb ery.
Followinga sentencing hearing, the t rial cour t sentenced Defenda nt Saulsberry as a Range II offender to for ty years forespecially aggra vated robbe ry a nd ten years f

or conspirac

y. Defendant Howard was sentenced as a Rang e I offender to twenty-five years for especi ally aggr avated robber

y and six years for conspiracy. The trialcourt order ed all sentences, incl uding life imprison ment, to
run con secutively.

I. S UFFICI ENCY OF THE EVI DENCE In their second and third issues, Defend ants maintai n that theevid ence presen ted was insufficient to convict t hem of first degree prem editated mu rder, by either a t heory of

direct lia bilit

y or a theor

y of cri minal responsi bilit y for t he conduct of another. In partic ular, D efend ants c laim th at the “r ecord is devo id of any evidence i ndicati ng premeditati on or delib eration. ” Followi ng a careful
exam ination of the re cord, w e con clude that the State d id not present evidence suff icient

to permit a jury to con vict Saulsberry of prem editated mu rder, but w e affirm the premeditate d murder convict ion of Howard.2 The State joi ned all fiv e men in the

same indic

tment but trie

d them separa

tely. -4- T ennessee Rule of Appell ate Procedure 13( e) prescri bes that “[ f]indi ngs of guilt in cri minal acti ons whether by the trial court

or jury shall be set

aside if the
ev idence is i nsuffic ient to s upport the f inding by t he trier of fact beyond a reasonab le doubt.” Ten n. R. App. P. 1 3(e). In additi on, because convi ction by
a trier of fact destroys t he presumption of innocence and i mposes a presumption of guilt, a convicted criminaldefendant bears the bu rd en of showing t hat the evidence was insu fficient. McBee v. State , 372 S.W.2d 173, 176 (Tenn. 1963);
see also State v. Evans , 838 S.W.2d 185, 191 (Tenn. 19 92) (cit ing State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1976) , and State v . Brown , 551 S.W.2d 329, 331 (Tenn . 1977)); State v. Tug gle , 639 S.W.2d 913, 914 (T enn. 19 82); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).

In its rev iew ofthe evidence, an appellate court must afford t he State “t he strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate inferences

that may be d rawn therefrom .” Tug gle , 63 9 S.W.2d at 914 (cit ing State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978)) . The court may not“reweigh or re-eval uate the evidenc e” in the rec ord belo w. Evans , 838 S.W.2d at 191 (citi ng Cabbage , 571 S.W .2d at 836)). Likew ise, should the review ing court find particular conf licts i n the trial testimony, the court must resolve them in favor of the jury ve rdict or trial cou rt judgm ent. See Tug gle , 639 S.W.2d at 914.

The record in this case r eveals a cast of five criminal act o rs: Claude Sha rkey, Clashaun (“Shaun”) Sharkey, Kevin Wilson, Defendant Frankl i n Howard, and Defe ndant Anto nio Saulsbe rry. 2 Defendant Saulsber ry was3 Defendant Howard denied entering the restaurant and denied being armed ; however, it is

undisputed that no one else drove to the scene w ith Claude, Shaun, Wilson, and Ho ward. -5- employed at the rest

aurant pri or to Janua ry 28, 1995, the date o f this inciden t. According to the p roof at tr ial, Claude, Shaun, Wilson, and Saulsberr y discussed robbing T.G.I. Friday’ s re staurant (“Friday’ s”) the day before the c rime. In t he early morning hours of January 28, 1995, after the restaur

ant closed busines s for the prior night, Cl aude, Shaun, Wilson, andHoward drove to Friday’s and waited in the bac k parking lot.
Friday ’s d ishwasher John Wong exited the restaurant through its back doo r to dispo se of th e nigh t’s garbag e, and the perpetra tors used this oppo rtunity to enterthe buildi ng. Wong heard one man say, “Shoot the mother . . . ,” r

eferri ng to Wong. He was pushed from behind wit h a gun and ordered to lie down on t he ground , and he comp lied.
Claude, Shaun, Wilson, and Howard cont inued through t he back area of the restaurant towa rd the man ager’s office, where th ey encountered bar tender Preston Shea . S hea saw four armed men 3 with sk i mas ks wa lking to ward h im and screaming. He was knocke d to the ground by one perpetr ator outsi de the manager’s offi ce. At least two men entered t he office and screa med, “Give me the money,” and “

Where’s the f__kingmoney.” Shea responded by holding up his wallet an d pleading, “Please, God, take the mo ney and go .” He heard bags of money being passed fr om person to person above his head and hear d one
man say, “Shoot

his ass.”

Shea then hea rd a shot fr om the manager’s off ice, where the perpetr

ators ha d a lready taken the money from t he victi m, Gene Frieling.-6- Wong, remaining on t he floor during the disturbance, al so heard one of t he perpetrators dema nd, “Gi ve methemone y—gi ve methe money,” an d he heard Frieli ng say, “Take it, t ake it, take it.”

Wong heard “[o] ne explosion then two—the two that I heard , it was like two in one— the swiftne ss of i t that foll owed behind—one behind the ot her.” Then Friel ing said, “Jesus Christ , he shot me, he shot m e.”

Shea had been repea tedly kic ked d uring th is episode , and as th e men left the office, he was shot thr ee times—twice i n the leg and once in his lower back, through h is bladder and i ntestines . He then crawl ed into th e officeand called 911, but he was too injured to stay wit h the tele phone. As he fel l back to t he floor, W ong too k the telep hone a nd finishe d the 91 1 call.

Jessica Hoard, a server at Friday’s, al so testified for t he State. Hoard was the only other

employee stil l present o n the morning of Januar y 28, and she was in the dini ng room of the restaurant when t he perpetrators arrived. One oft he
men ordered her to wa lk into the kitc h en and commanded, “Get on the f loor before I shoot you. ” She heard one person say, “W here’s the m oney,” a coup le of ti mes, and she then heard at least t wo gunshots. When she believ ed the perpetrators were gone and she could safely stand up, Hoard helped John Wong attend to the w ound ed Frie ling an d She a. Bec ause Frielin g was only barely breathing, the two uni njured employees decided to li ft him fr om a prone positi on to an upright p ositio n. Friel ing remained i n this si tting, slumped posture unti l he
was found by police and determined dead. An autopsy reveal ed that the cause of death was a g unsho t wound to the hea rt.-7- On Februa ry 9, 1995 , Defe ndant Saulsberry made a statement to police recounting his invo lvement in the e vents preced ing the robbery: It was fi rst brought up o n my way h ome a d ay before the rob bery. Me, Claud e, Sha un, an d Kev in [W ils on] were i n Clau de’scar. He was taking me h ome from the neighbo rhood. And , we were smoking “bud” (marijuana) on our way home. And, ah, Claude s aid, “Hey, what’s up with Friday’ s”? I sai d, what do you mean what’s up

- you’re ready to start w orking there? Then , he sa id , “Nall, man, nall, man, I’m tal king about hi tting t hat joint.” I said, man, you’re crazy than a motherf__ ker. The n, he s aid, “N all, nigg er, I’m serious!”. So, we d idn’t say an ything else about tha t. When we got to my house, we sat i n the car on t he parking l ot outside my house. Then, “Little Kevin” s aid, “ W hat tim e the join t closes” ? And, I said , at one (1) o’cl ock A.M. Then, Claude had showed me a sil ver gun. And, I said, hurry up and get me out of her e. I got out of the car and Shaun got out with me. Then, I sa id, Shau n, man, is t hat boy serio us? Shaun said, “Yes , man, h e’s broke , man”. I sa id, m an , y’all can try t hat dumb shit i f you want too [sic] , butI ain’t got nothing to do with it. B asically, that’s it, really.

Sau lsberry denied tel ling anyone wher e the safe was l ocated withi n th e restaurant

or how much money would be a vailabl e there, but he admitted informing Claude, Shaun, and Wilson how t o gain e n try fr

om the back of the restaura nt. The State int roduced testi mony thatSauls berry w as ultim ately pa id $50 for h i s role in the rob bery a nd tha t he wa s dissa tisfied w ith this
amou nt—fa cts that Saulsberry disputed in his statemen t. It is undisputed, however, that Saul sberry was not pr

esent at T.G.I. Fr iday ’s the ni ght of the robbery and m urder.

Def enda nt H owar

d was pre sent at t he c ri me scene, and his statementto police on Februa ry 7, 1995 , related eve nts at the re stauran t: I was riding with them [Claude , Shaun , and W ilson]. Claude said he said man we nee d to go on and do that. I was sleeping in t he back seat and I h eard h im say we need to go on and do thi s right . So we r ode up to T .G.I. Friday’s and sat up there in the back par t behind the Steakh ouse R estaura nt and w e went o n and w alked up ther e.4 Nor, however, can w e agree that Saulsberry can not be retried for felony murder, although this issueis not before us . The jury was stric tly i nstructed to cease delibera tions upon finding Defendants guilty of

premeditate

d murder. When the jury found them guilty of premeditated murder, it did not

render any further

verdicts on homicide

charges. This does not equate to an acquittal. State v. Burns , S.W.2d Appendix (Tenn. 1998). -8- I stayed allthe way in t he back and they ran in the restaruant [sic] and I heard some shots fir ed so I ran to the car and t hey ran to t he carand Kevin [Wilson]said I shot him man I shot him . So we le ft and went back to Claude’s house and then w e just stayed over the re until the m orning ca me an d I told him to take m e hom e. According to Howard’s statement, Claude, Shaun, and Wilson were armed when theyentered the res taurant. After the robb ery, Howard received a por tion of the procee ds, althou gh the a moun t is disputed
.

W hile we agree wi th both the State and Defendants that this i s quite a typicalfelony murder prosecuti on, we can not agr ee with the State that the evidence supports a ve rdict of premed itated murde r against Sau lsberry. 4 To
su pport finding s of pre med itation a nd de liberatio n, the S tate reli es o n circum stantial evid ence, sp ecifically: Given the perp etrators’ co mm ands to each o th er to s hoot the employees, the murder of the manager af ter he had done ever

ything asked of him, and Shea’ s testi mony thatthey came back, stood over him and shot him thr

ee times after he had give n them his wallet, a rationaljury could find that the pe rpetrators deliberate ly wen t into t he restaurant

with a pl an.

In our view, more is requir ed to sustain a convict ion for fi rst degre e premeditated murder rather than felony m urder. See State v. West , 844 S.W.2d 144, 147-48 (Tenn . 1992); State v . Brown , 83 6 S.W.2d 530, 540-43 (Tenn. 1992); State v. Boyd , 909 S.W .2d 50 (T enn. C rim. App . 1995). Cf. State v. Leroy Hall , C.C.A

. No . 03C0 1-9303 -CR-0 0065, H amilton C ounty (T enn. C rim. App ., Knoxvill e, Dec. 30, 1996), aff’d by partialincorporat ion , State v. Hall , 958 S.W.2d-9-

679, 703 -06 (Te nn. 199 7); State v. Frank W hitmore , C.C.A. No. 03C01- 9404- CR
00141, Bloun t Cou nty (Te nn. C rim. A pp., Kn oxville , June 19, 1997). Because this crime was c omm itted prio r to our le gislatu re’s m odif ic ation of the eleme nts of premeditated murder , wemu st analyze these facts under prior law requiring deliberatio n as an eleme nt of the offe nse.

In State v . Brown , our supreme court re-examined pr

emeditation and deliberat ion, recognizi ng that over time, “prosecutors and ju dges had a ppare ntly fallen into the error of commingling thes e two el ement s by usi ng t he t erms interchan geably.” 836 S.W.2d at 539. Accordi ng to t he Brown co urt, this perception constituted a “substantial departure f rom the tradi tional l aw of hom ic id e” —a departure which prompted the legislatur e to redraft t he first

degree murder statute to define preme ditation an d delibera tion. Id. at 542. As def ined by statute, a premeditated act was “one done after the exercise of reflecti on and judgm ent,” and a deliber ate act was “one performed w ith a cool purpo se.” Id. (quoting former T enn. C ode An n. § 39-1 3-201(b )).

In light of this legislative clarificatio n and what the Brown court perceived to be persistent infidelity t o the h istori cal foundat ion of fi rst degree murder , the court emphaticall y rejected an amalgamation of t he two formerl y disti nct mental states. Id. at 543. I n additi on, the court stated: [W]e think it is time to rec ognize
. . . that “ [m]ore than a s plit- second intenti on to kill is required to constitute preme ditation,” wh ich “by its very nat ureisnot

instan tan eous , bu t requi ressometi me inte rval.”

. . . [I]t is now abundantl y clear that the deliberation n ecessary to establish first-degree murde r canno t be fo rm ed in an in stant. It requiresproo f . . . that the homi cide was “committed with a ‘ cool purpos e’ and w ithout pas sion or pro vocation . . . .”-10-

Id. (quoting Sentencing Commission Comments to former § 39-13- 201(b) ) (altera t ions in origi nals). I n Brown , the defendan t’s premedi tated murder convicti on could notstand where the State offered ci rcumstantialproof “t hat the defendantacted maliciously toward t he child, in the heat of passi on or anger, and without adequate provocation.” I d. (fo otnote om itted). Furthermore , the court refused to fi nd that repeatedblows to the vi ctim can alone support an inference of prem editation o r deliberatio n. See id
.

In State v. West , decided just six m onths after Brown , the suprem e court considered a case much like t he one at bar. 844 S.W.2d 144 (Tenn. 1992). The State argued that the de fendan t’s emotio nal state a nd action s afte r th e crime— calmnes s, failure to tellothers about the crime, and concealment of t he murder weapo n—in dicated p remed itation and deliberatio n. Id. at 148. Rejecting this argument, the court expl aine d, “The element of premeditation requi res a previo usly form ed des ign or intent to ki ll. . . . Deli beration, on the other h and,
re quires that the killing b e done with a coo l purpose —in oth er words , t hat th e kill er be free fr

om the passions of the mom ent.” Id. at 147 (cita tions om itted); see State v. Boyd , 909 S.W .2d 50, 54 -55 (Te nn. Crim . App. 19 95).

The West court d ecline d to rec ogniz e con cealm ent o f evidence after a cri me as probati ve of intent held prior to the crime, stating, “One who kill s another in a pass ion ate rage may dispo se of the weapon when r eason returns j ust as readily as the cool, dispassionate kill er.” 844 S. W.2d a t 1 48. W hile the court acknowledged that proof of calm ness after a crime may be plausibl e evidence of preme ditation an d delibera tion, it failed to find any evidence materia l to sh ow a calm emo ti onal s tate an d note d that th e defe ndan t’s beh avior ind icated simp ly-11-

“ind ifference to the victim and fea r of detection.” Id. Finally, the court rejecte d the State’s t heory that the defendant

left the scen e of a hea ted argu ment w ith the victim, obta ined his g un at ho me, an d went b ack to the scene to kill the victim: W hile the sta te’s the ory m ay be tr ue, it rem ain s o nly a theory, because the pros ecuti on has no evidence to support i t. No one witnessed the defendant ’s retrieval of a gun, nor does any circumstant ial eviden ce exis t to sup port this theory. . . . Thus, a jury would have to engage in pure speculati on to conclude t hat the defendanthad re turned to his hous e in order to get a gun with which to shoot [th e victi m]. Although the jury is permitted t o disbeli eve the defen dant’s testi mon y, it may not construc

t a theory

based on no eviden ce at a ll. Id.

In the case at bar, we find no evi dence—direct or circumstant ial—suffi cient to perm it a jury to fin d prem editatio n and delibe ration o n the p art of A ntonio Sauls berry, who wa s not eve n prese nt when the mu rder was comm itte d. Th e record clearly

reveals t hat Antonio Saul sberry di d not parti cipat e in the actual robbery; therefor

e, his conv iction must be based upon criminalresponsibi lity for the con duct of the shoote r, rather tha n direct liability.
By statute, crim inal respo nsibility require s that a de fendan t, “[a]cting with intent to prom ote or as sist t he c ommi ssion of t he offense, or to benefit in the proceeds or result

s of the o ffense, . . . solicits, d irects, a ids, or a ttemp ts to aid another pe rson to com mit the offense.” T enn. Cod e Ann. § 39 -11-402(2). The record contains some evi dence which, i f believ ed by the jur

y, wou ld at best support an inference that Saulsberry (1) ai ded a robbery , with the intent th at a robbery be committed; and (2) intended or expected to r

eceive s ome proceeds from the robb ery . The record does not, however, contain any evi dence that Saulsberry intende d toass ist in thecomm ission of a mu rder, intend ed that a-12-

murder take place, or intend ed to bene fit in the proceeds or re sults of a murd er, whatever

they maybe. T here is no evi dence tending to show an intent ion, or
even an expe ctation, prio r to the rob bery, th at mu rder w ould facilitate the robbery.
Although the State directs our attent ion to Saulsberry’s statement, in which he recalls that

Cl aude S harkey s howed him a silve r gun, to de mons trate Saulsberry knew a nd intend ed that a m urder oc cur; we b elieve th is evide nce tends to show only that Saulsber ry knew an armed robber y coul d occ ur. Next, the State point

s to Claud e’s st atement to Sauls berry, “ I’m talking about hi tting thatjoint. ” Here again, we find no evi denc e to support knowledge of any act otherthan robbery , much less intent for any ot her act to occur. Though murder is a consequence of many armed robberies, a f inding o f intent i n this case requires“pure specul ation” of the type warned against i n West . We a gain emphasize that our focus is o n whether the e vidence is sufficient to su pport convicti ons for premed itated first degree m urder, rath er than felony m urder. Saulsberry’ s premeditatedmurder convict ion is reversed.
Likewise, with res pect to Frank lin How ard, the Defe ndan t argue s that a ll circumstant ial evidence prese nted by the Sta te to show premedi tation and deliberat ion is probative only of an intent to rob. The State produced evidence suffic ientto perm it a jury to fin d that H oward particip ated in the robbery by entering Friday ’s resta urant c arryin g a weapon, though t his test imony was disputed. The State offered no proof, however, t hat Howard murdered the victim in this case, Gene Frieling . In fact, th e only gun found in Howard’ s possession
was conc lusively determined not to match shell s and bullet fragments recov

ered.-13-

Therefore, Howard’s convi ction must al so be based upon hi s cr imi nal respon sibility for the co nduct o f the shoo ter.

The S tate argues t hat intent can be infer red from the gener al con duct o f the perpetrators: comm ands b y one to shoot the employees of the re staurant, the fact that the victim was killed d espite compliance wit h the robbery, and the fact thatShea wa s shot desp ite giving them his w allet. Evidence re garding th e severity or cruelt

y of the act

can be relevant

to premeditation and deliberat ion on the p art of t he principal a ctor. See State v . Brown , 836 S.W.2d 530, 541-42 (Tenn. 1992); State v. Lero y Hall , C.C.A. No. 03C01-9303- CR-00065, Hamilton Coun ty (Tenn . Crim. A pp., Kno xville, Dec. 30 , 1996), aff’d by par tial incorporat ion , State v. Hall , 958 S.W .2d 679 , 705 (T enn. 19 97).

In State v. Frank W hitmore , a pri ncipal’ s actions cast a circ umstantial shadow of intent

onto a companion, i n the absenc e of direc t evidence of

the
com panio n’s intent p rior to the murd er— eviden ce su ch as an ag reem ent to k ill, words o f encou ragem ent, or ass istance i n preparator y operati ons with knowl edge thata murd er would occur. C.C.A. No. 03C0 1-9404 -CR-0 0141, B lount Co unty (Tenn. Cri m. App., Knoxvi lle, J une 19, 1997). In Wh itmore , a panel of this Co urt affirmed the defendant’s convicti on for premeditated murder based upon criminal respon sibility where the evi dence showed tha t the defendant drove wit h Williams, the principa l in t he murder, to the vi ctim’s home for the purpose of

committing a burglary and theft. The testimony i ndicated t hat the defenda nt a nd Wil li ams intended only to scare the vi ctim with a knife car ried by Will iam s—in fact, t hey waited until they thought he had gone to bed befor e e nteri ng. However, t he evidence also reveal ed that, once inside t he house, they enc ountere d th e vi cti m,-14-

and William s bega n to fight with him. As t he armed Williams wrestl ed for sever al minutes with the victim, who was vigorously fight ing back, thedefendant moved through the hou se sea rching for m oney. T he defe ndant m ade no attemp ts to stop the struggl e or disassoci ate himself from the enterpri se at that point. From this evidence, we be lieved the jury could have reasonably concluded that, once th e struggle bega n within the hom e, the defenda nt formed or shared o r acquie sced in th e intent tha t a murd er occu r.

We think the re solution o f Defend ant Howar d’s cri minal li abilit y for premeditated murder is governed by the T enne ssee Supr eme Cour t’s 1997 case of State v. Carson , 950 S.W.2d 95 1 (Tenn. 1997). In Carson , the defen dant, Gary, and Stover met to discuss robbi ng a TV repair store in Knoxvi lle. The de f endant Carson had been in t he store befor e. He described the layout and where mone y could be fo und. Carson gave a weapon to each of his cohorts. The trio drove to th e store. C arson w aited in th e car w hile Gary and Stover entered the st

ore under a ruse t hat they needed t o have a stereo r

epaired.
Gary and Stover

held t wo em ployees , Adam s and M cGah a, at gunp oint. They forced the victims into a rear room , searche d th em, and s tole $130 f rom Adams. Gary and Stover bound t he victi ms with tel ephone cord, closed the do or, and told thevicti ms not to attempt to escape. They t hen fired t hree shots t hrough the door and almost hit the vi ctims.
Upon leaving t he store, Gary and Stover were s urprised to find thecar and Carson gone. They exchanged gunf ire wit h police, and they f led. Allthree culprit s were later

found and arrested.-15- Carson was charged li ke his cod e fendan ts. Gary an d Stove r pled gu ilty and tes ti fied against Carson. Alt hough Carson did not testify, his police statementadmitted driving his co defend ants to the scene but denied knowl edge thata robbe ry would o ccur. He said he believed G ary and S tover were going to the store to sell the gu ns they b rought.

The jury found Carson guilt y of aggravated robbery , aggra vated assa ult (two counts), a nd felony r eckless endangerment. Carson argued on appeal that he lacked the culpable mental state for the offense s co mmi tted by his partners in crime.

Carson adopted the “natu ral and p robable conse quenc e” rule. See id. at 955. This rule is based on the premise that criminal aiders and a bettors shou ld be respo nsible for crim es “the y have natura lly, prob ably an d fores eeab ly put in motion .” Id. Carson’s convi ctions were all affirmed. The Court opi ned “that t he evidence was suffi cientto find thatthe de fenda nt, havin g direc ted an d aide d in the aggravated robbery wi th the intent t o promote or benefit from it s commission,
was crimin ally resp onsib le for all of the off enses committed by his codefendants, to wit: aggravated a ssault and felon y reckless end angerm ent.” Id. at 956.

We are of the opi nion that Carson dictates H oward’s criminal re spons ibility forpre me ditated m urder. While i n the parki ng lot and before enteri ng the restaura nt, one of the pe rpetra t ors stated , “Shoot th e moth er . . .,” referring to W ong. All four

perpetrators then enter ed the restaur

ant armed, actedwith a
common purpos e, com mitted acts of viol ence against various employees , shot and wound ed one emplo yee, and sh ot a nd killed another. Under these-16-

cir cumstances, Howa rd cann ot escap e crimina l respons ibility for prem edita te d murder by claimi ng he did not shar e the crimi nal inte nt or premeditation wit h the actual triggerman. Hence, we find the evi dence sufficient to find How ard guilty of prem editated m urder.

II. ADMISSI ON OF EVIDENCE In their fi rst and seventh issues, Defendants contest the deci sion of the tri al court to adm it a photograph of t he deceased vict im and a videotape of t he c ri me scene made by police. They allege t hat admission of these pieces of

evidence
was error, p rejudic ing the ir right to a fair trial. W e find n o error in the tria l court’s decision to adm it this evidenc e.

A. Ph otogra ph of th e Dec ease d Victim The photograph to which Defendants o bject d epicts the victim after his death, seated on thefloor of the restaur

ant offi ce. The photograph was taken by police at the sceneand introduced as an exhibit to testi mony. Defendants ar gue both that the pr

obative value was substant ially outweighed by its prejudic ial val ue and that its admissi on constituted the needless prese ntation of cumulative evidence. Defendants cl aim that th e only po ssible functio n of the evi dence was to infl ame the jury. We disagree.

Tennessee Rule of Evidence 403 governs Defen dants’ cl aim: “Alt hough relevant, evidence may be excl uded if its pr obative value is subs tantially outweighed by the danger of unfair pr

ejudice, confusion of the issues, or misleading the jury , or by consi derations of undue de lay, waste of time, or needless presentati on o f cum ulative evide nce.” Te nn. R. E vid. 403. In-17-

Tennesse e, we have long “f ollowed a pol icy of l iberality in t he admission o f evidenc e.” State v. Banks , 564 S.W .2d 947 , 949 (T enn. 19 78); see State v. Ode ll Smith , C.C.A. No. 02C01-9707- CR-00259, Shelby County (Tenn. Crim. App. , Jackson, Aug. 10, 1998). In this resp e ct, the t rial cour t is ent rusted wit h wide discreti on to adm it or refus e a ten dered piece of evid e nce. See State v. Harbison , 704 S.W .2d 314 , 317 (T enn. 19 86); Banks , 564 S.W .2d at 949
.
Our sup remecourt has pre scribed factors for a trialjudge to consi der when deciding whethe r to adm it a certain ph otograp h, including : the value of photograp hs as evidence, that is , their accuracy and clarity, and whether they were taken before thecorpse was moved, if the posit ion a nd locat ion of thebody when found i s material ; the inadequacy of testimoni al evidence in relat ing the facts to the jury; and the need for

the evide nce to estab lish a pr ima fa cie cas e of gu ilt or to rebut the defendant’ s contentions. Banks , 564 S.W .2d at 951 . Here, the photog raph wa s accura te and clear; and
a lthough the vict im had been moved, the photograph correct ly depicted the positi on in which he di ed and was found by pol ice—he was stil l breathi ng when moved. Furthermore, the photograph was not infl ammatory or grues ome. No blood w as evide nt, and no wound s were e xposed
.

Defendants’ claim that the value o f the ph otogra ph co uld on ly be to in fl ame the jury is incorrect. The S tate presented three witnesse s to this cri me, a ll o f whom testif ied extensively to the manner in whi ch the events happened, incl uding the shoo ting of th e victim in his offic e and the m oving o f his body to perm it him to breathe. The i ntroduced photogr aph served to corroborate t his test imony and to bolster the credibility of the Sta te’s witnes ses. For this r eason, the photograph-18-

was relevant

yetnot needlessly cumulativ e. See State v. Robinson , 930 S.W.2d 78, 84 (T enn. C rim. App . 1995).

B. Vid eotap e of Cr ime S cene and V ictim The same general poli cies should be considered by t he trialcourt rul ing on admis sibility of a video tape. See State v. Bigbee , 885 S.W.2d 797, 807 (Tenn. 1994); State v. R onni e Michael C authern , C.C.A. No. 02C01- 9506-CC-00164, Gi bson Coun ty (Tenn . Crim. A pp., Jack son, De c. 2, 1996 ), aff’d by pa rtia l incorporat ion , State v. Cauthe rn , 967 S.W.2d 726, 743 (Tenn. 19 98). Our supr eme court has stated that “t he admissibil ity of authentic , relevant videotapes of the crime scene or v ictim i s within the sound discr etion of the tri al judge, and his ruling on the adm issibility of such evidence w ill not be overturn ed without a clear showin g of abu se of disc retion.” State v. Van Tran , 864 S.W.2d 465, 477 (Tenn. 1993); see State v. McCary , 922 S.W.2d 511, 515 (Tenn. 19 96) (in dicta).
Although Defendant

Saulsberry failed t

o raise thi s assignment of error in his motion for new trial , we will address t he iss ue with resp ect to both Defendants. At tri al, the State played a videotape for the j ury contai ning scenes of th e restau rant short ly after the poli ce arrived. Defendants pr esent no argument for exclusion of the vi deotape, and we f ind no reason why t he tape would fail to satisfy Te nness ee Rul e of Eviden ce 401 for rel evanc

y. Te nn. R. Evid. 401 (“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to t he determinati on of the action
m ore prob able or les s proba ble than it w ould be without the evidenc e.”). In addition, we find no pre judice that wo uld subs tantially outweigh the pro bative value of the videotap e. See Tenn . R. Evid. 40 3.-19- Defenda nts argue that the trial court erred by announcing to t he jury t hat portionsof the tapedisplayi ng removal of the victi m’s body woul d not be shown to them. D efen dants clai m that by inf orming the j ury exactly what it would not see, the trialjudge prej udiced their right to a fair t rial. We disagree and find no
error. The trialjudge’s si mple statement t hat the vi deotape showed removal of the de ceas ed’s body co uld not ha ve com munic ated inform ation of a prejudic ial nature to the jury. Cf. Cauthern , 967 S.W.2d at 744 (affi rming by incorporation this Court’s deci sion that a videotap e of po lice removi ng the defendant ’s body from the scene w as adm issible when it was relevant and w hen the prob ative value did not ou tweigh the pr ejudici al value) . Therefore, Defendants’ cl aim of error rega rding ad mission of the pho tograph and vide otape a re withou t merit.

III . JURY INSTRUCTI ONS In issues thr

ee through s i x, Defendants charge error

in the i nstructi ons given by the trial court to the jury. Beca use De fendan ts presen ted only the sixth issue in thei r motions fo r new trial, we are permitted to c onsider the oth ers waived
as a ma tte r of proce dure. See Tenn. R. App. P. 3(e). However, in t he interest of facilitatin g furthe r review of this case, an d beca use the State did not object , we have exa mi ned all alleged erro rs. We c onclude tha t Defendan ts’ claims are without m erit.

Genera lly, a jury char ge “should be con sidere d preju dicially e rrone ous if it fails to fairly submit t he legal issues or if it mis leads the jury a s to the applic able law.” State v. Hodges , 944 S .W .2d 34 6, 352 (Ten n. 199 7) (cit in g Graham v. State , 547 S.W.2d 531 (Tenn. 1977), and State v. Forbes , 918 S.W.2d 431, 447 ( Tenn. Crim. App. 1995)) . In addi tion, “ [i]t is the dut

y of a trial j udge to give a5 TennesseePattern Jury Instruction 7.01(a) is the proper instruction for offenses committed prior to July 1, 1995, the effective date of legislativ e changes to the statute. -20- comp lete charge of the law a pplicable to the facts of a case .” State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986) ( citing State v. Thompson , 519 S.W.2d 789, 792 (Tenn . 1975)); see State v. Burkley , 804 S.W.2d 458, 461 (Tenn. Cri m. App. 1990). This Court also stated in Burkley , “In delive ring its c harge , a cou rt shou ld guard against an i nstructi on which would wi thdraw fr om the jury’ s considerat ion any issue or

evidence whic h they are ent itled t o consider. ” 804 S.W.2d at 461.

A. Instr uctions on Premedi

tated Murder Defendants’ fourth issue assigns err or to the tri al court’s charge on fi rst degree premeditated murder for two r

easons: (1) because the judge u s ed the phrase, “that the killing was inten tional,” rathe r than “tha t th e defen dant acted intentionally”; and (2) because t he element of del iberati on was separated on t he page from the other elem ents of the offense . We find n o prejudicial error.

Tennessee Pattern Jur y Instr uction 7.01(a ), the pr oper in structio n for this case, 5 reads, in re levant pa rt:

For you to fi nd the defendant guilty of this offense, the sta te must have proven beyond a reasonable doubt the existence of the following essenti al elements: (1) that the defend ant unlaw fully killed the a lleged victim ; and (2) tha t the defen dant ac ted intentio nally. A per son ac ts intentiona lly with respec t to the na ture of th e con duct o r to a res ult of the co nduc t when it is the pe rson’s conscious o bjective or desire to enga ge in the c onduc t or cause the resu lt; and (3) that the killi ng was del ib erate. A del iberate act is one performed wit h a cool purpose; and (4) that the killing was p remed itated.-21-

Tenn. Pattern Jury Inst ructions 7.01(a) (4th ed. 1995). Because Defendants’ latter argume nt concerns the vi sual impa ct of t he inst ructi ons on the j ury, we reprint the relev

ant porti on as written in thi s case: For you to fi nd the defendant guilty of this of fen se, the sta te must have proven beyonda reasonable doubt the existence of the following essenti al elements: th at t he defendant unl awfully kill ed the all eged victi m; and that the kill ing was i ntentiona l. A person acts inten tionally with respect to the nature of the c onduct or to a re sult o f the conduct when it is the pe rson’s conscious o bjective or desire to engage in t he conduct or cause t he result; and thatthe killing wa s delibera te. A delib erate act i s one performed wit h cool purpose; and that the k illi ng was premeditated.
Although the elements “ that the k illi ng was intent ional” and “thatthe defendantacted intentionally” do convey different meanings, we decli ne to find the distinction s ubstan tial enoug h to misle ad the jury to Defe ndants’ prej udice. Considerati on of the first elem ent, “that the defendant unlaw fully kil led t he alleged victim,” should have el iminated any confusion i n the minds of the jurors. (Em phas is added.) Clearly, conv iction upon this par ticula r instruction , as opposed to cri minal responsi bilit y, requi res a findi ng that the defendanthims elf was the “triggerm an.”
Second, we find no error in t he visual appearance of the elements. Though the second element—intent—contains a period pri or to its explanati on, so does the third elem ent of d elibera tion. At a mere glanc e, the in structio n cou ld be slightly c onfus ing to th e jury; bu t we find that eve n a ca reful rea ding is unnecessary to clearly understand theinstruct ion.

B. Instruc tion on M oral Cer tainty6 We also note that thesingle case used by Defendants to show error by the trial court, State v. Derek Denton , C.C.A. No. 02C0 1-9409-CR-00 186, Shelby County (Tenn. Crim. App., Jackson, Aug. 2, 1996), actually held that giving aninstruction identical to the one in this case was not err

or. -22- Defen dants next com plain that t he jury i nstructi on on reasonable doubt violated due pro cess pro tections. In their fifth is sue, b riefly cons isting o f a sing le quote , Defendants contest the trial court’s use of Tennessee Pat tern Jur y Instruction— Criminal (T.P .I.) 2.03(a). 6 Specifically, they argue t hat omission of the term “moral certainty” reduced the j ury’s per ception of

the degree of certainty required to convic

t to a poi nt less t han that requi red by the Due Proces s Clause. We find no violation of Defendants’ due process rights.
“[T]he Constitu tion neithe r prohibits trial c ourts from defi ning re ason able doubt norrequires them to do so as a matter o f course.” Victor v. Nebraska , 511 U.S. 1, 5 (199 4). F u rthermore, “so long as t he court in structs t he jury on t he
n ecessi ty that the defendant’s guilt beproved beyond a r easonable doubt, the Cons ti tution does not requi re that any particul ar form of wor ds be used i n ad vising the jury of the governm ent’s burden o f proof.” Id. (citat ions omitted )

. Therefore, it seems that , with r espect to reasonable doubt, a trialcourt’s error mu st typical ly be one of commission, rat her than omissi on. There can b e n o mistake in failingto employ di stinct ive words or phrases, so l ong as the charge given is complete andaccurate. Beca use w e find th at T.P .I. 2.03( a)— curren tly the alternate reason able doubt jury instruct ion for this state—a ccurately conve ys the level of

certaint y mandated by In re W inship , 397 U.S. 358, 364 (1970) , we conclude that

absence of the term “moral certainty” is of no conseq uence.-23- Our sup remecourt has e xpres sly perm itted the use o f “mor al certa inty” in this state’s jury ins tructions. See Carter v. State , 958 S.W.2d 620, 626 (Tenn. 1997) (“The phrase i s permissibl e if thecontext in which the inst ruction i s given ‘clearly convey[s ] the jury's res ponsib ility to decide the verdict based on the fac ts and law. ’”) ( quoting State v. Nich ols , 877 S.W .2d 722, 734 (Tenn. 199 4)). Cf

. A ustin v . Bell , 126 F.3 d 843, 8 47 (6th C ir. 1997), cert. deni ed , 118 S. Ct. 1526 (1998) (also accept ing a “moral certaint y” inst ruction)

. We note carefully and explicitly, however, t hat our supreme cour t has all owed use o f the term, not encouraged its use. But cf. State v. Jose Holmes , C.C.A . No. 02C01- 9505- CR00154, Shelby County (Tenn. Crim. App., Jackson, Dec. 10, 1997); State v. Derek Denton , C.C.A. No. 02C01-9409- CR-00186, Shel by Co unty ( Tenn . Cr im. App., Jackson, Aug. 2, 1996) (both expressing a preference for T.P.I. 2. 03, rather than T.P.I. 2.03(a )).

Our courts have u pheld a “m oral certainty” jury in structi on when confronted with defendants’arguments that the inst ruction itself, when given, permits a leve l of prooflower tha n that con stitutionally req uired for co nviction. See Carter , 958 S.W.2d at 625-2 6; Nicho ls , 877 S.W .2d at 734 (u se o f “moral certainty” perm issible when context f urther expl aine d reas onab le dou bt and prope rly ref lected evidentiary certainty); Pettyjohn v. State , 885 S.W.2d 364, 365 -6 6 (Tenn. Crim. A pp. 199 4); State v. Ha ll ock , 87 5 S. W.2d 2 85, 294 (Ten n. C ri m. App. 1993); see also Amy K . Collignon , Note, Searching for an Acc e ptable Rea sona ble Doub t Jury Ins truction in Light of Victor v. Nebra ska, 40 St. Loui s U. L. J. 145, 171 (1996) (“[A]lt hough the Supreme Court hesi tated upo n th e accep tability of phrases su ch as ‘mora l certainty’ . . . , interpreting courts have-24-

gleaned only that the i nstruction must pass c onstitut ional muster having been read as a whole .”).
Now, howeve r, these pa rticular De fendan ts com plain that fai lu re to provi de
a “moral certaint

y” inst ruction also encourages co nvicti on upon a reduced degree of proof. W e recently addre ssed this very issue with respec t to T.P.I. 2 .03(a) in St ate v. Henning , C.C. A. No. 02C01- 9703- CC-001 26, Ma diso n Count y (Te nn . Crim. A pp., Jack son, O ct. 24, 1997); and we find no reas on to deviate from our conclusion in that case thatthe ins truction is not co nstitutio nally deficient. See id. at 9; see also Denton , C.C.A. N o. 02C 01-940 9-CR -00186 , slip op. at 8 (“[W ]e cannot conclude that the t rial cour t erred by

refusingto incl ude the phrase 

### < moral certainty’ in its ch arge.”).

In Henning , we noted that T.P .I. 2.03(a) “ tracks vi rtuall y identi cal language of pattern re ason abl e dou bt i nst ruc ti ons appr

ove d by a majorit

y of the federal circuits.” Id. ; see also Colligno n, supra , at 171 (“Cl early, the inst ruction with the most supp ort com es from the Fe deral J udicia l Cente r. Tha t charg e exclu des a ll referenc e to ‘mor al certainty’ o r ‘substan tial doubt.’”) (foo tnote om itted).

Rea sona ble do ubt instructions not includi ng t he term “m oral certainty” have been morewid ely

use d si nce theSupr

eme Cour t’s opin ion in Victor v. Nebraska , 511 U.S. 1 (1994), in which t he Court express ed concern that the term c ould have “lost its historical meani ng. ” Id. at 13. There, the Court hel d “moral certainty” constit ut ional within an in struction th at “lends c ontent to th e phras e.” Id. at 14, 16 (“The i nstructi on thus expli citly told the jurors t hat their con clusio n had to be based on the evi dence in the case. Other inst ructions reinforc ed this-25-

messa ge.”). Because of the changi ng nature of the ph rase over time , however, the Victor

Court clearly state d that it d id not c ondo ne us e of the phras e in
re ason able doubt jur y instruction s. See id. at 16. As t he Court noted, “the definit ions of reas onable d oubt most widel y used in th e federal courts do not conta in any refere nce to m oral certain ty.” Id. at 16-17 ; see id. at 24 (Ginsbu rg J., concurring in part and concurring i n the judgment) (“ I agree . . . with t he Cour t’s sugg est ion that t he t erm 

### < moral certainty, ’ while not i n itself somisleading as to renderthe inst ructions unconstit utional, should be avoi ded as an unhelpfulway of explainin g what re asona ble dou bt mea ns.”).

In the case at ba r, we are convinced t hat T.P.I. 2.03(a) i s not constit utionally defici ent for lack of the phras e “moral certain ty.” Therefor e, we find no erro r in the trial cou rt’s use of this alternative ju ry instruction
.

C. Instruc tion on P rior Incons istent State ments Defendants’ sixth assignmentof error co ncerns the trial cour t’s refusal to is sue a contemporaneous curat ive inst ruction t o the jury

when t he prio r inconsistent statements of Claude Sharkey were i ntroduced for impe ac hment purposes. Defendant s claim that

the judge should have instruc ted the jury

that the statement coul d be used only for impeachment, not as substant ive evi dence.

Defend ants correctly assert that fail ure by a trialcourt to issu e a contemporaneous curative ins tructi on for pri or inconsi stent statements could, undersome circu mstance s, constitute reversible err or. Acc ording to State v. Reece , 637 S.W .2d 858 (Te nn. 1982), failure to give a limit ing inst ruction c reates
revers ible error when “t he impeaching testimony is extr emely damaging, t he need-26-

forthe lim iting ins truction is app arent, a nd the failure to give it res ults in substantial prejud ice to the rights of the ac cused.” Id. at 861.

Thi s ca se i s re adi ly

disti ngui shab le f rom Reece , howeve r. In Reece , the limiti ng instruction was ne ver given, not even as part of the generaljury char ge. In this case, the jury

was instru cted at the end of testimony t hat it could consider i mpeaching prior inconsistent statements only for purposes of assess in g credibility.
Although we are awa re of cases in wh ich federal courts h ave held a li miting instruct ion as part of the gen eral jury c harge ins uffici ent where the i mpeaching testimony

is extrem ely dam aging, w e need not deter mine w hether th i s issue is
a matter of constit utional or evi dentiary import, because Defendants have failed to properly c ite to the rec ord. See Tenn. R. App. P. 27( g) (“[R] eference in the briefs to the recor

d shall beto the pages of the reco rd involved .”). In their brief, Defen dants inform the Co urt that theimpeached witness’testimony can be found between pages 422 and 450 of th e record, but they do not ident ify whi ch portions of the testi mony they consider damaging and do not establish how improper use of the testi mony prejudice d them
. The only gu idanc e prov ided b y Defe ndan ts is this: The testimony of Claude Sharkey can be found in t he trialtranscri pt from pages 422 thru [sic] 450. (V ol. VII and VIII) The testimony of Sharkeyoccurred on Februar y 13, 1997. A r

eview of that test imony clearly leaves room for confusio n by the jury as to what th ey cou ld consider

for guilt o r innoc ence versus impe achm ent es pecia lly where the jury was not charg ed with the proper use of such testimony

until the a fternoon of February 14, 1997, duri ng the court’s regul a r charg e to the jury. It is als o clea r that ce rtain statem ents in Sha rkey’s p reviou s state men t if taken as substan tive evidence would be extremely damaging to both Appellants.

. . .-27- In the present case if t he jury took Shar key’s statements as s ubst antive evidence, whi ch Appellants submit they did, it

is an understatement t

o say that it resulted in substant ial prej udice. The whole of Claude Sharkey’s testimony co nsists of impeachment by pri or inconsistent statem ents. W here D efenda nts fail to mea ningfully cite to the record such that alleged prejud icial err o r can be ident ified, we decline to search the record fo r it.

D. Instruc tion on C riminal Re spons ibility Defendants’ third i ssue for rev iew alle ges thatthe trial court erred by failing to specifically instruct the jury that it must reach a unanimous deci sion on the theory behi nd their verdict. For example, if a port ion of thejury conv icted th em a s dir ectly l iable fo r the murder, a portion of the jury

convicted based upon criminal responsibi lity forthe conduct of C laude Sha rkey, and a po rtion of the jury convictedbased upon criminalrespo nsibil ity for the conduct of Kevin Wilson, then Defendants clai m the decisio n wou ld have violated their constit utional right to a una nimou s verdict.

This issue is m oot as to D efenda nt Sauls berry. As to Defendant Howard,
we find the argument meritl ess. In State v . Wil li ams , 920 S.W.2d 247 (Tenn. Cri m. App. 1995 ), this Cou rt did not ac cept a sim ilar argum ent. In Williams , the victim could notpinpoint which cri minal held her down and whi ch one of t he two actua lly raped her. The defendant argued the possi bilit y ofa nonuna nimous jury verdictbeca use th e State could not pro ve if he was the a ctual rapist or an aide r. Our Cour t found that in T enne ssee , unde r our crim inal res pons ibil ity statu te, it makes no differen ce. A defendantcrimin ally resp onsib le for a p rincipa l’s acts is just as guilty as the principa l actor.-28- IV. CONSECUTIVE SE NTENCING In their ninth i ssue, Defendants argue that t he trialcourt err ed in imposing
consec utive senten ces, con tending that the evid ence d oes no t indicate Defen dants are dangerous offenders with lit tle or noregard fo r huma n life. W e find no err

or in the t rial cour

t’s consi deration or

decision.

This Court reviews the length, range, or m anner o f service of sentence imposed by the trial court based upon a de novo standa rd. See Tenn. Code Ann. § 40-35-40 1(d). However, we owe the tri al court’ s determinati on a presumption of correctness, s ee id. , so long a s the trial cou rt “place[s] o n the rec ord its
reasons for arr iving at the fi nal sentenci ng decision ” and exh ibits com pliance w ith the statutory se ntencing guideline s and p rinciples. State v. W il k erson , 905 S .W.2d 933, 934 (T enn. 1995 ). Here, the record contains a leng thy an d compre hensive deliberat ion by the t rial cour t regardi ng Defendants’ s entencing, and we therefore accord the sente nce a p resum ption of co rrectnes s.

Defen dants bearthe burd en of sho wing tha t the sente nce is im proper. See State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1). Defendants all ege that the aggreg ate term of life impriso nment “is quite reas onably suff icient in the terms of length to ade quate ly punish [Defendants]and to adequatel y protect society, ” but theyhave nowh ere identified any err o rs comm itted by the trial court or why
consecu tive sentencing i s not appropri ate in thi s case. Theyhave failed to carry their bur den.-29- In the inte rest of ju stic e, ho wever, we have ex amined the sentenci ng transcr iptand a re satis fied tha t cons ecutive sente ncing is app ropria te in this case. T ennes see Co de Ann otated § 40-35-1 15 gove rns our a nalysis: (a) If a defend ant is conv icted of more than one ( 1) criminal offense, the court shal l order

sente nces to run c onse cutively or con curren tly as provided by

the criteria in t his secti on. (b) The cou rt may order se ntences to run consecutively if the cou rt finds by a p repond erance of the evide nce tha t:

. . . (4) The defendant is a danger ous of fender whose behavi or indicates little or no regard for human life, and no hesitation about committing a crime in whi ch the ris k to human life is high. Id. § 40-35 -115(a), (b )(4). More over, The proofm ust also establish tha t the terms imp osed are reaso nably related t

o the severi ty of t he offensescomm itted and are necessa ry in order

to protect

the publi c from furt her criminalacts by the offend er. In ad dit ion, t he Sentencing Reform Act requires t he applicat ion of the s enten cing p rinciple s set fo rth in the Act ap plicab le in all cases. The Act requires a principled just ificati on for every sentence, i ncluding, of course, consecutive sentencing. Wilkerson , 905 S.W .2d at 938 ; see also State v. Dale Nolan , C.C.A. No. 01C01- 9511-CC-00387, Sequa tchie Co unty (Te nn. Crim . App., N ashville, J une 2 6, 1997), perm. to app. deni ed (Tenn . 1998).

In the case at ba r, the trial court explicitly found that Defendants satisf ied the requ iremen ts of § 40-3 5-115(b )(4):

A s to th e consecutive request, Mr . Howard does have an extensive record. And i n my judgment, heis clearly a dangerous offender. He has shown no hes itation to comm it a crime when the riskto hum an life was high. The facts o f this ca se we re so s hock ing an d app alling th at it is inconceivable to me that under any interpr etati on of the dangerous o ff ender category these indi viduals woul d not be considered to be dangerou s offenders. The facts that are in the record with regar

d to all four of t hem being armed, allfour of t hem showing up at that ba ck door , singl e file, marching into the store, each one h aving h is own respo nsibility with regard to the complet ion o f thi s robbery. The shootings t hat occurred with Mr. Fri eling and Mr. Shea.-30- Their absolute and total lack of remorse after

this i s over, as evidenced by testi mony from severa l individu als of the fac t that t hey went back to t he ho me of the one i ndividualand played Nintendo for the rest of t he n ig ht. That ’s just pret ty amazi ng test imony th at we heard during the course of thi s trial . That individuals af ter havi ng p artici pated in a cri me of this sor t would go back to a house and playNintendo for

several hou rs unt il, I guess, they got sleepy and went to sleep. It is just -- it’s unbelievabl e. Clearl y dangerous offenders. With respect to Defendant Saulsberr y, the cour

t stated, In my judgment, for the same reasons as t hose I in dicated with regard to Mr. How ard, I thin k that c onse cutive s enten cing is approp riate in this case as well. The offense is so reprehensibl e and so atroci ous , so unfathomable, that it is hard fo r me to imagine anyone defining this, these individual s, as anything other t han dangerous offenders.

The court also found no hesitation t o commit an offense w hen the risk to human life was hi gh:

I think that’ s clearly establ ished. And I think t he ca se la w suppo rts it. I think there were -- well, I know tha t the record reflects thatthere were other individuals i n the restaur ant, thedishwashe r, the waitr

ess, ot hers wh o were all p ut at ri sk. The potenti al to -- or the risk to th eir life was high. They were very much endangered during this whole episode, even though they wer e fortunate enough to have been spared. So I think t hat factor clearly applies. Finally, the trial court specifically addres sed wheth er an agg regate sentence reasonably r

elated to the severi ty of t he offenses i nvolved. The court stated, You h ave a robbery that w as taking place , and a store manager who is sayi ng, here, take t he money, doing everything to comply with what

the robbers wer

e asking, and yet was shot. And then beyond that, t he assistant manager, lyi ng on the ground, doi ng everythi ng he cou ld to com ply with what was being demanded, who was then gratuitously shot and left to die. I mea n, I think it is a situa tion wh ere it is clea rly disting uisha ble from, fo r exam ple, a h oldup where in the process of struggli ng overthe money, somebody gets shot or somethi ng of that sort. [Tha t] is all part and parcel of th e robbe ry itself. These events were al l separate, ind ep endent, inexplicabl e, inexcusabl e, outrageous, un conscion ab le acts that are clearly distinguishable, I think.-31- We also fi nd in the sentencing transcri pt ample eviden ce to show that the term imposed was n eces sary to protec t the pu blic from furt her crimes committed by these D efenda nts. At the tim e of s entencing, each Defendant had an extensive history of crim inal beha vior. In additi on, the court found, for

both, at least a limited h istory of unw illingness to comp ly with the cond itions of a sentence involv ing rele ase into t he community. Our r eview of t he above evidence i s not affectedby our fi nding of i nsuffic ient evi dence to support premeditat ion and deliberati on on the part of Defendant Saulsber ry. We are convince d the tri al judge fulfi lled his duty i n sentencing as to both Defendants.

V. DI SCOVERY M OTION Defendants’ ninth issue assigns error to the trial court’s failure to grant a mistrial based upo n an alleg ed disco very violation by the Sta te. Defen dants argue thatthe State did no t comply with T ennesse e Rule of Crim inal Procedu re 16, which requi res discl osure of cert ain evidenceby the State: Upon request of the defe ndant, thestate shal l permit t he defendant to inspect and c opy or photog raph any re sults o r reports o f . . . scien tific tests o r expe rimen ts, or co pies th ereof, w hich a re within the possession, c ustody or cont rol of t he state, the existence of which is known, or

by the e xercis e of

due dil ige nce may b ecom e known, to the district atto rney gen eral and which ar e mate rial to the preparati on of the defe nse or are i ntended for use by t he state as eviden ce in ch ief at the trial. Tenn. R. Crim . P. 16(a)(1 )(D). Spe cifically, Defe ndants argue th at the Sta te should have produced, in response to their Rule 16 disc overy reques t, a report of tests perf

ormed on the .32 cal iber revolver sei zed from Defen dant How ard’s residen ce.-32- The State repl ies fi rst that Rule 16 is i napplicabl e because t h e test perform ed on the weapon was not a “scien tific test” and becaus e the expert made no “report .” Rather, the State argues , the expert simply obser ved whether the barrel of

the gun contai ned residue, to determine whet her it had be en cleaned since lastfired, and he made onl y handwri tten notes of t he resul t. Al though we do not accept t he State’s ar gument, we need not f ind this test wit hin Rule 16 because we con clude that even if there was a violati on, Defendants wer e not prejudiced.

Rule 16 pres cribes the rem edies for violation of its provisions : “the court may ordersuch party t o permit the d iscovery or inspect ion, grant a cont inuance,
or prohibit

the party f rom introduci ng evidence not disclosed, orit may enter such otherorde r as it dee ms just und er t he ci rcumst ances .” Te nn. R. Cr im . P. 16(d)(2). Here, the trial court offered to a llow Defe ndants ’ counse l an oppo rtunity to i nspec t the notes , which he declined to do. Th e record reflects tha t counse l objected to the existen ce of th e alleg ed viola tion, bu t that he did not, in fact, move fora m istr ial at this point. Although D efendants a ssert that they mo ved for a mistria l, they have n ot prov id ed a citat ion to therecord to permit meaningful appellate review.
Furthermore, the evide nce no t disclosed to Defen dants revealed only that the gun fo und in Defe ndan t How ard’s h ome had n ot bee n clea ned s in c e last fired; the evidence did not rev eal when the gun had been las t fired. Defen dants have identified no prej udice—they have simp ly asserted that prejudi ce resulted—and we ca nnot o urselve s iden tify any p rejudic e. The trial judge was within his d iscretion in re fusing an y reques t for a mistria l.-33- VI. CUMULATI VE ERROR We have concluded t hat only one err or occurred and have remedied t hat
erro r by reversin g one D efenda nt’s convic tion for first deg ree prem edita te d murder. We find no cumulat ive erro r warranti ng further modificat ion.

VII . CONCL USION In conclusion, Defendant Saulsber ry’s conv iction for f irst degr ee premeditated murder is not supported by suffi cient evi dence, and such convict ion is therefor

e reversed and hi s case is remanded for a new tri al on the char ge of felony murd er as a lleged in Counts 2 and 3 of the i ndictment. We conclude that the tr ialcou rtcomm itted no oth er erro r. W e affirm convic tions fo r espe cially aggravated robbery and cons piracy as to both D efendants. W e affirm Defendant Howard’s murder convi ction. Consecutive sentencing is af firmed. This c ase is remanded for such other proceedi ngs as may be warrante d and c onsisten t with this opinion
.

_________________________ PAUL G. SUMMERS, JUDGE
CONCUR:

_____________________________ DAVID H. WELLES , JUD GE

_____________________________ JOE G. RILE Y, J UDGE-34-