FILED

December 21, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JUNE SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CR-00406

)

Appellee, )

)

) SHELBY COUNTY

VS. )

) HON. JOSEPH B. DAILEY

ANTONIO L. SAULSBERRY ) JUDGE

& FRANKLIN C. HOWARD, )

)

Appellants. ) (First Degree Murder; Aggravated 

) Robbery)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

STEFFEN G. SCHREINER JOHN KNOX WALKUP

Attorney for Appellant Saulsberry Attorney General and Reporter

295 Washington Avenue, Suite 3

Memphis, TN 38103 PETER M. COUGHLAN

Assistant Attorney General

JOSEPH S. OZMENT 425 5th Avenue North

Attorney for Appellant Howard Nashville, TN 37243

217 Exchange Avenue

Memphis, TN 38103 WILLIAM L. GIBBONS

District Attorney General

JAMES V. BALL

Attorney for Appellant Howard TERRELL L. HARRIS

217 Exchange Avenue J. ROBERT CARTER

Memphis, TN 38103 PHILLIP GERALD HARRIS

Assistant District Attorneys General

Criminal Justice Complex, Suite 301

201 Poplar Street

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED IN PART; REVERSED IN PART; REMANDED

PAUL G. SUMMERS, JUDGE
1

 In the interest of clarity, we address these points of alleged error in a different order. 

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OPINION

The Defendants, Antonio L. Saulsberry and Franklin C. Howard, pursuant

to Tennessee Rule of Appellate Procedure 3(b), appeal as of right their

convictions for first degree premeditated murder, especially aggravated robbery,

and conspiracy to commit aggravated robbery. In addition, Defendants appeal

the trial court’s application of consecutive sentencing. These convictions arose

from the robbery of a Memphis T.G.I. Friday’s restaurant and the murder of its

manager, Gene Frieling. 

Defendants present ten assignments of error: (1) the trial court erroneously

admitted a photograph of the deceased victim; (2) the evidence was insufficient

to show premeditation or intent for first degree murder; (3) criminal responsibility

for first degree premeditated murder is not supported by the proof and the trial

court erroneously charged the jury on criminal responsibility; (4) the trial court

erroneously charged the jury on the elements of first degree premeditated

murder; (5) the trial court failed to charge the jury of the need for moral certainty

to convict; (6) the trial court failed to instruct the jury that a prior inconsistent

statement could be considered for impeachment purposes only; (7) the trial court

erroneously admitted a videotape of the crime scene and commented on the

portion of tape not shown to the jury; (8) the errors made by the trial court amount

to cumulative error, requiring a new trial; (9) the trial court erroneously imposed

consecutive sentences; and (10) the trial court failed to grant a necessary mistrial

based upon an alleged discovery violation by the State.1
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Defendants were indicted by the Shelby County Grand Jury in July of 1995

on charges of premeditated murder in violation of Tennessee Code Annotated §

39-13-202(a)(1), murder committed during the perpetration of a robbery in

violation of § 39-13-202(a)(2), murder committed in perpetration of a burglary in

violation of § 39-13-202(a)(2), especially aggravated robbery in violation of § 39-

13-403, and conspiracy to commit a felony in violation of § 39-12-103.

Defendants were convicted by a jury on February 14, 1997, of first degree

premeditated murder, especially aggravated robbery, and conspiracy to commit

aggravated robbery. 

Following a sentencing hearing, the trial court sentenced Defendant

Saulsberry as a Range II offender to forty years for especially aggravated robbery

and ten years for conspiracy. Defendant Howard was sentenced as a Range I

offender to twenty-five years for especially aggravated robbery and six years for

conspiracy. The trial court ordered all sentences, including life imprisonment, to

run consecutively. 

I. SUFFICIENCY OF THE EVIDENCE

In their second and third issues, Defendants maintain that the evidence

presented was insufficient to convict them of first degree premeditated murder,

by either a theory of direct liability or a theory of criminal responsibility for the

conduct of another. In particular, Defendants claim that the “record is devoid of

any evidence indicating premeditation or deliberation.” Following a careful

examination of the record, we conclude that the State did not present evidence

sufficient to permit a jury to convict Saulsberry of prem editated murder, but we

affirm the premeditated murder conviction of Howard.
2

 The State joined all five men in the same indictment but tried them separately. 

-4-

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings

of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the finding by the trier of fact beyond a

reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insufficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963);

see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing 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. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Holt v.

State, 357 S.W.2d 57, 61 (Tenn. 1962).

In its review of the evidence, an appellate court must afford the State “the

strongest legitimate view of the evidence as well as all reasonable and legitimate

inferences that may be drawn therefrom .” Tuggle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “reweigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W.2d at 836)). Likewise, should the reviewing court

find particular conflicts in the trial testimony, the court must resolve them in favor

of the jury verdict or trial court judgment. See Tuggle, 639 S.W.2d at 914.

The record in this case reveals a cast of five criminal actors: Claude

Sharkey, Clashaun (“Shaun”) Sharkey, Kevin Wilson, Defendant Franklin

Howard, and Defendant Antonio Saulsberry.2 Defendant Saulsberry was
3

 Defendant Howard denied entering the restaurant and denied being armed; however, it is

undisputed that no one else drove to the scene with Claude, Shaun, Wilson, and Howard.

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employed at the restaurant prior to January 28, 1995, the date of this incident.

According to the proof at trial, Claude, Shaun, Wilson, and Saulsberry discussed

robbing T.G.I. Friday’s restaurant (“Friday’s”) the day before the crime. In the

early morning hours of January 28, 1995, after the restaurant closed business for

the prior night, Claude, Shaun, Wilson, and Howard drove to Friday’s and waited

in the back parking lot. 

Friday’s dishwasher John Wong exited the restaurant through its back door

to dispose of the night’s garbage, and the perpetrators used this opportunity to

enter the building. Wong heard one man say, “Shoot the mother . . . ,” referring

to Wong. He was pushed from behind with a gun and ordered to lie down on the

ground, and he complied. 

Claude, Shaun, Wilson, and Howard continued through the back area of

the restaurant toward the manager’s office, where they encountered bartender

Preston Shea. Shea saw four armed men3

 with ski masks walking toward him

and screaming. He was knocked to the ground by one perpetrator outside the

manager’s office. At least two men entered the office and screamed, “Give me

the money,” and “Where’s the f__king money.” Shea responded by holding up

his wallet and pleading, “Please, God, take the money and go.” He heard bags

of money being passed from person to person above his head and heard one

man say, “Shoot his ass.” Shea then heard a shot from the manager’s office,

where the perpetrators had already taken the money from the victim, Gene

Frieling. 
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Wong, remaining on the floor during the disturbance, also heard one of the

perpetrators demand, “Give me the money—give me the money,” and he heard

Frieling say, “Take it, take it, take it.” Wong heard “[o]ne explosion then two—the

two that I heard, it was like two in one—the swiftness of it that followed

behind—one behind the other.” Then Frieling said, “Jesus Christ, he shot me,

he shot me.” 

Shea had been repeatedly kicked during this episode, and as the men left

the office, he was shot three times—twice in the leg and once in his lower back,

through his bladder and intestines. He then crawled into the office and called

911, but he was too injured to stay with the telephone. As he fell back to the

floor, Wong took the telephone and finished the 911 call. 

Jessica Hoard, a server at Friday’s, also testified for the State. Hoard was

the only other employee still present on the morning of January 28, and she was

in the dining room of the restaurant when the perpetrators arrived. One of the

men ordered her to walk into the kitchen and commanded, “Get on the floor

before I shoot you.” She heard one person say, “W here’s the money,” a couple

of times, and she then heard at least two gunshots. When she believed the

perpetrators were gone and she could safely stand up, Hoard helped John Wong

attend to the wounded Frieling and Shea. Because Frieling was only barely

breathing, the two uninjured employees decided to lift him from a prone position

to an upright position. Frieling remained in this sitting, slumped posture until he

was found by police and determined dead. An autopsy revealed that the cause

of death was a gunshot wound to the heart. 
-7-

On February 9, 1995, Defendant Saulsberry made a statement to police

recounting his involvement in the events preceding the robbery:

It was first brought up on my way home a day before the robbery.

Me, Claude, Shaun, and Kevin [Wilson] were in Claude’s car. He

was taking me home from the neighborhood. And, we were

smoking “bud” (marijuana) on our way home. And, ah, Claude said,

“Hey, what’s up with Friday’s”? I said, what do you mean what’s up

- you’re ready to start working there? Then, he said, “Nall, man,

nall, man, I’m talking about hitting that joint.” I said, man, you’re

crazy than a motherf__ker. Then, he said, “Nall, nigger, I’m

serious!”. So, we didn’t say anything else about that. When we got

to my house, we sat in the car on the parking lot outside my house.

Then, “Little Kevin” said, “What time the joint closes”? And, I said,

at one (1) o’clock A.M. Then, Claude had showed me a silver gun.

And, I said, hurry up and get me out of here. I got out of the car and

Shaun got out with me. Then, I said, Shaun, man, is that boy

serious? Shaun said, “Yes, man, he’s broke, man”. I said, man,

y’all can try that dumb shit if you want too [sic], but I ain’t got nothing

to do with it. Basically, that’s it, really. 

Saulsberry denied telling anyone where the safe was located within the

restaurant or how much money would be available there, but he admitted

informing Claude, Shaun, and Wilson how to gain entry from the back of the

restaurant. The State introduced testimony that Saulsberry was ultimately paid

$50 for his role in the robbery and that he was dissatisfied with this

amount—facts that Saulsberry disputed in his statement. It is undisputed,

however, that Saulsberry was not present at T.G.I. Friday’s the night of the

robbery and murder. 

Defendant Howard was present at the crime scene, and his statement to

police on February 7, 1995, related events at the restaurant:

I was riding with them [Claude, Shaun, and Wilson]. Claude said he

said man we need to go on and do that. I was sleeping in the back

seat and I heard him say we need to go on and do this right. So we

rode up to T.G.I. Friday’s and sat up there in the back part behind

the Steakhouse Restaurant and we went on and walked up there.
4

 Nor, however, can we agree that Saulsberry cannot be retried for felony murder, although this

issue is not before us. The jury was strictly instructed to cease deliberations upon finding

Defendants guilty of premeditated 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 all the way in the back and they ran in the restaruant [sic]

and I heard some shots fired so I ran to the car and they ran to the

car and Kevin [Wilson] said I shot him man I shot him. So we left

and went back to Claude’s house and then we just stayed over there

until the morning came and I told him to take me home. 

According to Howard’s statement, Claude, Shaun, and Wilson were armed when

they entered the restaurant. After the robbery, Howard received a portion of the

proceeds, although the amount is disputed. 

While we agree with both the State and Defendants that this is quite a

typical felony murder prosecution, we cannot agree with the State that the

evidence supports a verdict of premeditated murder against Saulsberry.4 To

support findings of premeditation and deliberation, the State relies on

circumstantial evidence, specifically: 

Given the perpetrators’ commands to each other to shoot the

employees, the murder of the manager after he had done everything

asked of him, and Shea’s testimony that they came back, stood over

him and shot him three times after he had given them his wallet, a

rational jury could find that the perpetrators deliberately went into the

restaurant with a plan.

In our view, more is required to sustain a conviction for first degree

premeditated murder rather than felony m urder. See State v. West, 844 S.W.2d

144, 147-48 (Tenn. 1992); State v. Brown, 836 S.W.2d 530, 540-43 (Tenn.

1992); State v. Boyd, 909 S.W .2d 50 (Tenn. Crim. App. 1995). Cf. State v. Leroy

Hall, C.C.A. No. 03C01-9303-CR-00065, Hamilton County (Tenn. Crim. App.,

Knoxville, Dec. 30, 1996), aff’d by partial incorporation, State v. Hall, 958 S.W.2d
-9-

679, 703-06 (Tenn. 1997); State v. Frank W hitmore, C.C.A. No. 03C01-9404-CR00141, Blount County (Tenn. Crim. App., Knoxville, June 19, 1997). Because

this crime was committed prior to our legislature’s modification of the elements

of premeditated murder, we must analyze these facts under prior law requiring

deliberation as an element of the offense. 

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

deliberation, recognizing that over time, “prosecutors and judges had apparently

fallen into the error of commingling these two elements by using the terms

interchangeably.” 836 S.W.2d at 539. According to the Brown court, this

perception constituted a “substantial departure from the traditional law of

homicide”—a departure which prompted the legislature to redraft the first degree

murder statute to define premeditation and deliberation. Id. at 542. As defined

by statute, a premeditated act was “one done after the exercise of reflection and

judgment,” and a deliberate act was “one performed with a cool purpose.” Id.

(quoting former Tenn. Code Ann. § 39-13-201(b)). 

In light of this legislative clarification and what the Brown court perceived

to be persistent infidelity to the historical foundation of first degree murder, the

court emphatically rejected an amalgamation of the two formerly distinct mental

states. Id. at 543. In addition, the court stated:

[W]e think it is time to recognize . . . that “[m]ore than a split-second

intention to kill is required to constitute premeditation,” which “by its

very nature is not instantaneous, but requires some time interval.”

. . . [I]t is now abundantly clear that the deliberation necessary

to establish first-degree murder cannot be formed in an instant. It

requires proof . . . that the homicide was “committed with a ‘cool

purpose’ and without passion or provocation . . . .”
-10-

Id. (quoting Sentencing Commission Comments to former § 39-13-201(b))

(alterations in originals). In Brown, the defendant’s premeditated murder

conviction could not stand where the State offered circumstantial proof “that the

defendant acted maliciously toward the child, in the heat of passion or anger, and

without adequate provocation.” Id. (footnote omitted). Furthermore, the court

refused to find that repeated blows to the victim can alone support an inference

of premeditation or deliberation. See id. 

In State v. West, decided just six months after Brown, the supreme court

considered a case much like the one at bar. 844 S.W.2d 144 (Tenn. 1992). The

State argued that the defendant’s emotional state and actions after the

crime—calmness, failure to tell others about the crime, and concealment of the

murder weapon—indicated premeditation and deliberation. Id. at 148. Rejecting

this argument, the court explained, “The element of premeditation requires a

previously formed design or intent to kill. . . . Deliberation, on the other hand,

requires that the killing be done with a cool purpose—in other words, that the

killer be free from the passions of the moment.” Id. at 147 (citations omitted); see

State v. Boyd, 909 S.W .2d 50, 54-55 (Tenn. Crim. App. 1995). 

The West court declined to recognize concealment of evidence after a

crime as probative of intent held prior to the crime, stating, “One who kills another

in a passionate rage may dispose of the weapon when reason returns just as

readily as the cool, dispassionate killer.” 844 S.W.2d at 148. While the court

acknowledged that proof of calmness after a crime may be plausible evidence of

premeditation and deliberation, it failed to find any evidence material to show a

calm emotional state and noted that the defendant’s behavior indicated simply
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“indifference to the victim and fear of detection.” Id. Finally, the court rejected

the State’s theory that the defendant left the scene of a heated argument with the

victim, obtained his gun at home, and went back to the scene to kill the victim: 

While the state’s theory may be true, it rem ains only a theory,

because the prosecution has no evidence to support it. No one

witnessed the defendant’s retrieval of a gun, nor does any

circumstantial evidence exist to support this theory. . . . Thus, a jury

would have to engage in pure speculation to conclude that the

defendant had returned to his house in order to get a gun with which

to shoot [the victim]. Although the jury is permitted to disbelieve the

defendant’s testimony, it may not construct a theory based on no

evidence at all.

Id.

In the case at bar, we find no evidence—direct or circumstantial—sufficient

to permit a jury to find prem editation and deliberation on the part of Antonio

Saulsberry, who was not even present when the murder was comm itted. The

record clearly reveals that Antonio Saulsberry did not participate in the actual

robbery; therefore, his conviction must be based upon criminal responsibility for

the conduct of the shooter, rather than direct liability. 

By statute, criminal responsibility requires that a defendant, “[a]cting with

intent to promote or assist the commission of the offense, or to benefit in the

proceeds or results of the offense, . . . solicits, directs, aids, or attempts to aid

another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2). The

record contains some evidence which, if believed by the jury, would at best

support an inference that Saulsberry (1) aided a robbery, with the intent that a

robbery be committed; and (2) intended or expected to receive some proceeds

from the robbery. The record does not, however, contain any evidence that

Saulsberry intended to assist in the commission of a murder, intended that a
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murder take place, or intended to benefit in the proceeds or results of a murder,

whatever they may be. There is no evidence tending to show an intention, or

even an expectation, prior to the robbery, that murder would facilitate the robbery.

Although the State directs our attention to Saulsberry’s statement, in which

he recalls that Claude Sharkey showed him a silver gun, to demonstrate

Saulsberry knew and intended that a m urder occur; we believe this evidence

tends to show only that Saulsberry knew an armed robbery could occur. Next,

the State points to Claude’s statement to Saulsberry, “I’m talking about hitting

that joint.” Here again, we find no evidence to support knowledge of any act

other than robbery, much less intent for any other act to occur. Though murder

is a consequence of many armed robberies, a finding of intent in this case

requires “pure speculation” of the type warned against in West. We again

emphasize that our focus is on whether the evidence is sufficient to support

convictions for premeditated first degree murder, rather than felony murder.

Saulsberry’s premeditated murder conviction is reversed.

 

Likewise, with respect to Franklin Howard, the Defendant argues that all

circumstantial evidence presented by the State to show premeditation and

deliberation is probative only of an intent to rob. The State produced evidence

sufficient to perm it a jury to find that Howard participated in the robbery by

entering Friday’s restaurant carrying a weapon, though this testimony was

disputed. The State offered no proof, however, that Howard murdered the victim

in this case, Gene Frieling. In fact, the only gun found in Howard’s possession

was conclusively determined not to match shells and bullet fragments recovered.
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Therefore, Howard’s conviction must also be based upon his criminal

responsibility for the conduct of the shooter. 

The State argues that intent can be inferred from the general conduct of

the perpetrators: comm ands by one to shoot the employees of the restaurant, the

fact that the victim was killed despite compliance with the robbery, and the fact

that Shea was shot despite giving them his wallet. Evidence regarding the

severity or cruelty of the act can be relevant to premeditation and deliberation on

the part of the principal actor. See State v. Brown, 836 S.W.2d 530, 541-42

(Tenn. 1992); State v. Leroy Hall, C.C.A. No. 03C01-9303-CR-00065, Hamilton

County (Tenn. Crim. App., Knoxville, Dec. 30, 1996), aff’d by partial

incorporation, State v. Hall, 958 S.W .2d 679, 705 (Tenn. 1997). 

In State v. Frank W hitmore, a principal’s actions cast a circumstantial

shadow of intent onto a companion, in the absence of direct evidence of the

companion’s intent prior to the murder—evidence such as an agreement to kill,

words of encouragement, or assistance in preparatory operations with knowledge

that a murder would occur. C.C.A. No. 03C01-9404-CR-00141, Blount County

(Tenn. Crim. App., Knoxville, June 19, 1997). In Whitmore, a panel of this Court

affirmed the defendant’s conviction for premeditated murder based upon criminal

responsibility where the evidence showed that the defendant drove with Williams,

the principal in the murder, to the victim’s home for the purpose of committing a

burglary and theft. The testimony indicated that the defendant and Williams

intended only to scare the victim with a knife carried by Williams—in fact, they

waited until they thought he had gone to bed before entering. However, the

evidence also revealed that, once inside the house, they encountered the victim,
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and Williams began to fight with him. As the armed Williams wrestled for several

minutes with the victim, who was vigorously fighting back, the defendant moved

through the house searching for m oney. The defendant made no attempts to

stop the struggle or disassociate himself from the enterprise at that point. From

this evidence, we believed the jury could have reasonably concluded that, once

the struggle began within the home, the defendant formed or shared or

acquiesced in the intent that a murder occur. 

We think the resolution of Defendant Howard’s criminal liability for

premeditated murder is governed by the Tennessee Supreme Court’s 1997 case

of State v. Carson, 950 S.W.2d 951 (Tenn. 1997). In Carson, the defendant,

Gary, and Stover met to discuss robbing a TV repair store in Knoxville. The

defendant Carson had been in the store before. He described the layout and

where money could be found. Carson gave a weapon to each of his cohorts.

The trio drove to the store. Carson waited in the car while Gary and Stover

entered the store under a ruse that they needed to have a stereo repaired.

Gary and Stover held two employees, Adams and McGaha, at gunpoint.

They forced the victims into a rear room , searched them, and stole $130 from

Adams. Gary and Stover bound the victims with telephone cord, closed the door,

and told the victims not to attempt to escape. They then fired three shots through

the door and almost hit the victims.

Upon leaving the store, Gary and Stover were surprised to find the car and

Carson gone. They exchanged gunfire with police, and they fled. All three

culprits were later found and arrested.
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Carson was charged like his codefendants. Gary and Stover pled guilty

and testified against Carson. Although Carson did not testify, his police

statement admitted driving his codefendants to the scene but denied knowledge

that a robbery would occur. He said he believed Gary and Stover were going to

the store to sell the guns they brought.

The jury found Carson guilty of aggravated robbery, aggravated assault

(two counts), and felony reckless endangerment. Carson argued on appeal that

he lacked the culpable mental state for the offenses committed by his partners

in crime.

Carson adopted the “natural and probable consequence” rule. See id. at

955. This rule is based on the premise that criminal aiders and abettors should

be responsible for crimes “they have naturally, probably and foreseeably put in

motion.” Id. Carson’s convictions were all affirmed. The Court opined “that the

evidence was sufficient to find that the defendant, having directed and aided in

the aggravated robbery with the intent to promote or benefit from its commission,

was criminally responsible for all of the offenses committed by his codefendants,

to wit: aggravated assault and felony reckless endangerment.” Id. at 956.

We are of the opinion that Carson dictates Howard’s criminal responsibility

for premeditated murder. While in the parking lot and before entering the

restaurant, one of the perpetrators stated, “Shoot the mother . . .,” referring to

Wong. All four perpetrators then entered the restaurant armed, acted with a

common purpose, committed acts of violence against various employees, shot

and wounded one employee, and shot and killed another. Under these
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circumstances, Howard cannot escape criminal responsibility for premeditated

murder by claiming he did not share the criminal intent or premeditation with the

actual triggerman. Hence, we find the evidence sufficient to find Howard guilty

of premeditated m urder. 

 

II. ADMISSION OF EVIDENCE

In their first and seventh issues, Defendants contest the decision of the trial

court to admit a photograph of the deceased victim and a videotape of the crime

scene made by police. They allege that admission of these pieces of evidence

was error, prejudicing their right to a fair trial. We find no error in the trial court’s

decision to admit this evidence. 

A. Photograph of the Deceased Victim

The photograph to which Defendants object depicts the victim after his

death, seated on the floor of the restaurant office. The photograph was taken by

police at the scene and introduced as an exhibit to testimony. Defendants argue

both that the probative value was substantially outweighed by its prejudicial value

and that its admission constituted the needless presentation of cumulative

evidence. Defendants claim that the only possible function of the evidence was

to inflame the jury. We disagree.

Tennessee Rule of Evidence 403 governs Defendants’ claim: “Although

relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” Tenn. R. Evid. 403. In
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Tennessee, we have long “followed a policy of liberality in the admission of

evidence.” State v. Banks, 564 S.W .2d 947, 949 (Tenn. 1978); see State v. Odell

Smith, C.C.A. No. 02C01-9707-CR-00259, Shelby County (Tenn. Crim. App.,

Jackson, Aug. 10, 1998). In this respect, the trial court is entrusted with wide

discretion to admit or refuse a tendered piece of evidence. See State v.

Harbison, 704 S.W .2d 314, 317 (Tenn. 1986); Banks, 564 S.W .2d at 949. 

Our supreme court has prescribed factors for a trial judge to consider when

deciding whether to admit a certain photograph, including: 

the value of photographs as evidence, that is, their accuracy and

clarity, and whether they were taken before the corpse was moved,

if the position and location of the body when found is material; the

inadequacy of testimonial evidence in relating the facts to the jury;

and the need for the evidence to establish a prima facie case of guilt

or to rebut the defendant’s contentions.

Banks, 564 S.W.2d at 951. Here, the photograph was accurate and clear; and

although the victim had been moved, the photograph correctly depicted the

position in which he died and was found by police—he was still breathing when

moved. Furthermore, the photograph was not inflammatory or gruesome. No

blood was evident, and no wounds were exposed. 

Defendants’ claim that the value of the photograph could only be to inflame

the jury is incorrect. The State presented three witnesses to this crime, all of

whom testified extensively to the manner in which the events happened, including

the shooting of the victim in his office and the moving of his body to perm it him

to breathe. The introduced photograph served to corroborate this testimony and

to bolster the credibility of the State’s witnesses. For this reason, the photograph
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was relevant yet not needlessly cumulative. See State v. Robinson, 930 S.W.2d

78, 84 (Tenn. Crim. App. 1995). 

B. Videotape of Crime Scene and Victim

The same general policies should be considered by the trial court ruling on

admissibility of a videotape. See State v. Bigbee, 885 S.W.2d 797, 807 (Tenn.

1994); State v. Ronnie Michael Cauthern, C.C.A. No. 02C01-9506-CC-00164,

Gibson County (Tenn. Crim. App., Jackson, Dec. 2, 1996), aff’d by partial

incorporation, State v. Cauthern, 967 S.W.2d 726, 743 (Tenn. 1998). Our

supreme court has stated that “the admissibility of authentic, relevant videotapes

of the crime scene or victim is within the sound discretion of the trial judge, and

his ruling on the adm issibility of such evidence will not be overturned without a

clear showing of abuse of discretion.” State v. Van Tran, 864 S.W.2d 465, 477

(Tenn. 1993); see State v. McCary, 922 S.W.2d 511, 515 (Tenn. 1996) (in dicta).

Although Defendant Saulsberry failed to raise this assignment of error in

his motion for new trial, we will address the issue with respect to both

Defendants. At trial, the State played a videotape for the jury containing scenes

of the restaurant shortly after the police arrived. Defendants present no

argument for exclusion of the videotape, and we find no reason why the tape

would fail to satisfy Tennessee Rule of Evidence 401 for relevancy. Tenn. R.

Evid. 401 (“‘Relevant evidence’ means evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.”). In

addition, we find no prejudice that would substantially outweigh the probative

value of the videotape. See Tenn. R. Evid. 403. 
-19-

Defendants argue that the trial court erred by announcing to the jury that

portions of the tape displaying removal of the victim’s body would not be shown

to them. Defendants claim that by informing the jury exactly what it would not

see, the trial judge prejudiced their right to a fair trial. We disagree and find no

error. The trial judge’s simple statement that the videotape showed removal of

the deceased’s body could not have communicated inform ation of a prejudicial

nature to the jury. Cf. Cauthern, 967 S.W.2d at 744 (affirming by incorporation

this Court’s decision that a videotape of police removing the defendant’s body

from the scene was admissible when it was relevant and when the probative

value did not outweigh the prejudicial value). Therefore, Defendants’ claim of

error regarding admission of the photograph and videotape are without merit.

III. JURY INSTRUCTIONS

In issues three through six, Defendants charge error in the instructions

given by the trial court to the jury. Because Defendants presented only the sixth

issue in their motions for new trial, we are permitted to consider the others waived

as a matter of procedure. See Tenn. R. App. P. 3(e). However, in the interest

of facilitating further review of this case, and because the State did not object, we

have examined all alleged errors. We conclude that Defendants’ claims are

without merit.

Generally, a jury charge “should be considered prejudicially erroneous if

it fails to fairly submit the legal issues or if it misleads the jury as to the applicable

law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing 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 addition, “[i]t is the duty of a trial judge to give a
5

 Tennessee Pattern Jury Instruction 7.01(a) is the proper instruction for offenses committed

prior to July 1, 1995, the effective date of legislative changes to the statute.

-20-

complete charge of the law applicable 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. Crim. App.

1990). This Court also stated in Burkley, “In delivering its charge, a court should

guard against an instruction which would withdraw from the jury’s consideration

any issue or evidence which they are entitled to consider.” 804 S.W.2d at 461.

A. Instructions on Premeditated Murder

Defendants’ fourth issue assigns error to the trial court’s charge on first

degree premeditated murder for two reasons: (1) because the judge used the

phrase, “that the killing was intentional,” rather than “that the defendant acted

intentionally”; and (2) because the element of deliberation was separated on the

page from the other elements of the offense. We find no prejudicial error.

Tennessee Pattern Jury Instruction 7.01(a), the proper instruction for this

case,5

 reads, in relevant part:

For you to find the defendant guilty of this offense, the state

must have proven beyond a reasonable doubt the existence of the

following essential elements:

(1) that the defendant unlawfully killed the alleged victim; 

and

(2) that the defendant acted intentionally. A person acts

intentionally with respect to the nature of the conduct or to a result

of the conduct when it is the person’s conscious objective or desire

to engage in the conduct or cause the result;

and

(3) that the killing was deliberate. A deliberate act is one

performed with a cool purpose;

and

(4) that the killing was premeditated. 
-21-

Tenn. Pattern Jury Instructions 7.01(a) (4th ed. 1995). Because Defendants’

latter argument concerns the visual impact of the instructions on the jury, we

reprint the relevant portion as written in this case:

For you to find the defendant guilty of this offense, the state

must have proven beyond a reasonable doubt the existence of the

following essential elements:

that the defendant unlawfully killed the alleged victim; and that

the killing was intentional. A person acts intentionally with

respect to the nature of the conduct or to a result of the

conduct when it is the person’s conscious objective or desire

to engage in the conduct or cause the result; and 

that the killing was deliberate. A deliberate act is one

performed with cool purpose; and

that the killing was premeditated.

Although the elements “that the killing was intentional” and “that the

defendant acted intentionally” do convey different meanings, we decline to find

the distinction substantial enough to mislead the jury to Defendants’ prejudice.

Consideration of the first elem ent, “that the defendant unlawfully killed the alleged

victim,” should have eliminated any confusion in the minds of the jurors.

(Emphasis added.) Clearly, conviction upon this particular instruction, as

opposed to criminal responsibility, requires a finding that the defendant himself

was the “triggerman.” 

Second, we find no error in the visual appearance of the elements.

Though the second element—intent—contains a period prior to its explanation,

so does the third element of deliberation. At a mere glance, the instruction could

be slightly confusing to the jury; but we find that even a careful reading is

unnecessary to clearly understand the instruction.

B. Instruction on Moral Certainty
6

 We also note that the single case used by Defendants to show error by the trial court, State

v. Derek Denton, C.C.A. No. 02C01-9409-CR-00186, Shelby County (Tenn. Crim. App.,

Jackson, Aug. 2, 1996), actually held that giving an instruction identical to the one in this case

was not error. 

-22-

Defendants next complain that the jury instruction on reasonable doubt

violated due process protections. In their fifth issue, briefly consisting of a single

quote, Defendants contest the trial court’s use of Tennessee Pattern Jury

Instruction—Criminal (T.P.I.) 2.03(a).6 Specifically, they argue that omission of

the term “moral certainty” reduced the jury’s perception of the degree of certainty

required to convict to a point less than that required by the Due Process Clause.

We find no violation of Defendants’ due process rights.

“[T]he Constitution neither prohibits trial courts from defining reasonable

doubt nor requires them to do so as a matter of course.” Victor v. Nebraska, 511

U.S. 1, 5 (1994). Furthermore, “so long as the court instructs the jury on the

necessity that the defendant’s guilt be proved beyond a reasonable doubt, the

Constitution does not require that any particular form of words be used in

advising the jury of the governm ent’s burden of proof.” Id. (citations omitted).

Therefore, it seems that, with respect to reasonable doubt, a trial court’s error

must typically be one of commission, rather than omission. There can be no

mistake in failing to employ distinctive words or phrases, so long as the charge

given is complete and accurate. Because we find that T.P.I. 2.03(a)—currently

the alternate reasonable doubt jury instruction for this state—accurately conveys

the level of certainty mandated by In re Winship, 397 U.S. 358, 364 (1970), we

conclude that absence of the term “moral certainty” is of no consequence.
-23-

Our supreme court has expressly perm itted the use of “moral certainty” in

this state’s jury instructions. See Carter v. State, 958 S.W.2d 620, 626 (Tenn.

1997) (“The phrase is permissible if the context in which the instruction is given

‘clearly convey[s] the jury's responsibility to decide the verdict based on the facts

and law.’”) (quoting State v. Nichols, 877 S.W.2d 722, 734 (Tenn. 1994)). Cf.

Austin v. Bell, 126 F.3d 843, 847 (6th Cir. 1997), cert. denied, 118 S. Ct. 1526

(1998) (also accepting a “moral certainty” instruction). We note carefully and

explicitly, however, that our supreme court has allowed use of 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, Shelby County (Tenn. Crim.

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 upheld a “moral certainty” jury instruction when confronted

with defendants’ arguments that the instruction itself, when given, permits a level

of proof lower than that constitutionally required for conviction. See Carter, 958

S.W.2d at 625-26; Nichols, 877 S.W.2d at 734 (use of “moral certainty”

permissible when context further explained reasonable doubt and properly

reflected evidentiary certainty); Pettyjohn v. State, 885 S.W.2d 364, 365-66

(Tenn. Crim. App. 1994); State v. Hallock, 875 S.W.2d 285, 294 (Tenn. Crim.

App. 1993); see also Amy K. Collignon, Note, Searching for an Acceptable

Reasonable Doubt Jury Instruction in Light of Victor v. Nebraska, 40 St. Louis U.

L.J. 145, 171 (1996) (“[A]lthough the Supreme Court hesitated upon the

acceptability of phrases such as ‘moral certainty’ . . . , interpreting courts have
-24-

gleaned only that the instruction must pass constitutional muster having been

read as a whole.”). 

Now, however, these particular Defendants complain that failure to provide

a “moral certainty” instruction also encourages conviction upon a reduced degree

of proof. We recently addressed this very issue with respect to T.P.I. 2.03(a) in

State v. Henning, C.C.A. No. 02C01-9703-CC-00126, Madison County (Tenn.

Crim. App., Jackson, Oct. 24, 1997); and we find no reason to deviate from our

conclusion in that case that the instruction is not constitutionally deficient. See

id. at 9; see also Denton, C.C.A. No. 02C01-9409-CR-00186, slip op. at 8 (“[W ]e

cannot conclude that the trial court erred by refusing to include the phrase <moral

certainty’ in its charge.”). 

In Henning, we noted that T.P.I. 2.03(a) “tracks virtually identical language

of pattern reasonable doubt instructions approved by a majority of the federal

circuits.” Id.; see also Collignon, supra, at 171 (“Clearly, the instruction with the

most support com es from the Federal Judicial Center. That charge excludes all

reference to ‘moral certainty’ or ‘substantial doubt.’”) (footnote omitted). 

Reasonable doubt instructions not including the term “moral certainty” have

been more widely used since the Supreme Court’s opinion in Victor v. Nebraska,

511 U.S. 1 (1994), in which the Court expressed concern that the term could

have “lost its historical meaning.” Id. at 13. There, the Court held “moral

certainty” constitutional within an instruction that “lends content to the phrase.”

Id. at 14, 16 (“The instruction thus explicitly told the jurors that their conclusion

had to be based on the evidence in the case. Other instructions reinforced this
-25-

message.”). Because of the changing nature of the phrase over time, however,

the Victor Court clearly stated that it did not condone use of the phrase in

reasonable doubt jury instructions. See id. at 16. As the Court noted, “the

definitions of reasonable doubt most widely used in the federal courts do not

contain any reference to moral certainty.” Id. at 16-17; see id. at 24 (Ginsburg J.,

concurring in part and concurring in the judgment) (“I agree . . . with the Court’s

suggestion that the term <moral certainty,’ while not in itself so misleading as to

render the instructions unconstitutional, should be avoided as an unhelpful way

of explaining what reasonable doubt means.”). 

In the case at bar, we are convinced that T.P.I. 2.03(a) is not

constitutionally deficient for lack of the phrase “moral certainty.” Therefore, we

find no error in the trial court’s use of this alternative jury instruction. 

C. Instruction on Prior Inconsistent Statements

Defendants’ sixth assignment of error concerns the trial court’s refusal to

issue a contemporaneous curative instruction to the jury when the prior

inconsistent statements of Claude Sharkey were introduced for impeachment

purposes. Defendants claim that the judge should have instructed the jury that

the statement could be used only for impeachment, not as substantive evidence.

 

Defendants correctly assert that failure by a trial court to issue a

contemporaneous curative instruction for prior inconsistent statements could,

under some circumstances, constitute reversible error. According to State v.

Reece, 637 S.W.2d 858 (Tenn. 1982), failure to give a limiting instruction creates

reversible error when “the impeaching testimony is extremely damaging, the need
-26-

for the limiting instruction is apparent, and the failure to give it results in

substantial prejudice to the rights of the accused.” Id. at 861. 

This case is readily distinguishable from Reece, however. In Reece, the

limiting instruction was never given, not even as part of the general jury charge.

In this case, the jury was instructed at the end of testimony that it could consider

impeaching prior inconsistent statements only for purposes of assessing

credibility. 

Although we are aware of cases in which federal courts have held a limiting

instruction as part of the general jury charge insufficient where the impeaching

testimony is extremely damaging, we need not determine whether this issue is

a matter of constitutional or evidentiary import, because Defendants have failed

to properly cite to the record. See Tenn. R. App. P. 27(g) (“[R]eference in the

briefs to the record shall be to the pages of the record involved.”). In their brief,

Defendants inform the Court that the impeached witness’ testimony can be found

between pages 422 and 450 of the record, but they do not identify which portions

of the testimony they consider damaging and do not establish how improper use

of the testimony prejudiced them. The only guidance provided by Defendants is

this:

The testimony of Claude Sharkey can be found in the trial transcript

from pages 422 thru [sic] 450. (Vol. VII and VIII) The testimony of

Sharkey occurred on February 13, 1997. A review of that testimony

clearly leaves room for confusion by the jury as to what they could

consider for guilt or innocence versus impeachment especially

where the jury was not charged with the proper use of such

testimony until the afternoon of February 14, 1997, during the

court’s regular charge to the jury. It is also clear that certain

statements in Sharkey’s previous statement if taken as substantive

evidence would be extremely damaging to both Appellants.

. . .
-27-

In the present case if the jury took Sharkey’s statements as

substantive evidence, which Appellants submit they did, it is an

understatement to say that it resulted in substantial prejudice.

The whole of Claude Sharkey’s testimony consists of impeachment by prior

inconsistent statements. Where Defendants fail to meaningfully cite to the record

such that alleged prejudicial error can be identified, we decline to search the

record for it. 

D. Instruction on Criminal Responsibility

Defendants’ third issue for review alleges that the trial court erred by failing

to specifically instruct the jury that it must reach a unanimous decision on the

theory behind their verdict. For example, if a portion of the jury convicted them

as directly liable for the murder, a portion of the jury convicted based upon

criminal responsibility for the conduct of Claude Sharkey, and a portion of the jury

convicted based upon criminal responsibility for the conduct of Kevin Wilson,

then Defendants claim the decision would have violated their constitutional right

to a unanimous verdict. 

This issue is moot as to Defendant Saulsberry. As to Defendant Howard,

we find the argument meritless. In State v. Williams, 920 S.W.2d 247 (Tenn.

Crim. App. 1995), this Court did not accept a similar argument. In Williams, the

victim could not pinpoint which criminal held her down and which one of the two

actually raped her. The defendant argued the possibility of a nonunanimous jury

verdict because the State could not prove if he was the actual rapist or an aider.

Our Court found that in Tennessee, under our crim inal responsibility statute, it

makes no difference. A defendant criminally responsible for a principal’s acts is

just as guilty as the principal actor.
-28-

IV. CONSECUTIVE SENTENCING

In their ninth issue, Defendants argue that the trial court erred in imposing

consecutive sentences, contending that the evidence does not indicate

Defendants are dangerous offenders with little or no regard for human life. We

find no error in the trial court’s consideration or decision.

This Court reviews the length, range, or m anner of service of sentence

imposed by the trial court based upon a de novo standard. See Tenn. Code Ann.

§ 40-35-401(d). However, we owe the trial court’s determination a presumption

of correctness, see id., so long as the trial court “place[s] on the record its

reasons for arriving at the final sentencing decision” and exhibits compliance with

the statutory sentencing guidelines and principles. State v. Wilkerson, 905

S.W.2d 933, 934 (Tenn. 1995). Here, the record contains a lengthy and

comprehensive deliberation by the trial court regarding Defendants’ sentencing,

and we therefore accord the sentence a presumption of correctness. 

Defendants bear the burden of showing that the sentence is improper. See

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Defendants allege that the

aggregate term of life imprisonment “is quite reasonably sufficient in the terms of

length to adequately punish [Defendants] and to adequately protect society,” but

they have nowhere identified any errors committed by the trial court or why

consecutive sentencing is not appropriate in this case. They have failed to carry

their burden.
-29-

In the interest of justice, however, we have examined the sentencing

transcript and are satisfied that consecutive sentencing is appropriate in this

case. Tennessee Code Annotated § 40-35-115 governs our analysis: 

(a) If a defendant is convicted of more than one (1) criminal offense,

the court shall order sentences to run consecutively or concurrently

as provided by the criteria in this section.

(b) The court may order sentences to run consecutively if the court

finds by a preponderance of the evidence that:

. . .

(4) The defendant is a dangerous offender whose behavior indicates

little or no regard for human life, and no hesitation about committing

a crime in which the risk to human life is high.

Id. § 40-35-115(a), (b)(4). Moreover, 

The proof must also establish that the terms imposed are

reasonably related to the severity of the offenses committed and are

necessary in order to protect the public from further criminal acts by

the offender. In addition, the Sentencing Reform Act requires the

application of the sentencing principles set forth in the Act applicable

in all cases. The Act requires a principled justification for every

sentence, including, 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, Sequatchie County (Tenn. Crim. App., Nashville, June 26,

1997), perm. to app. denied (Tenn. 1998). 

In the case at bar, the trial court explicitly found that Defendants satisfied

the requirements of § 40-35-115(b)(4): 

As to the consecutive request, Mr. Howard does have an

extensive record. And in my judgment, he is clearly a dangerous

offender. He has shown no hesitation to comm it a crime when the

risk to human life was high. 

The facts of this case were so shocking and appalling that it

is inconceivable to me that under any interpretation of the

dangerous offender category these individuals would not be

considered to be dangerous offenders. The facts that are in the

record with regard to all four of them being armed, all four of them

showing up at that back door, single file, marching into the store,

each one having his own responsibility with regard to the completion

of this robbery. The shootings that occurred with Mr. Frieling and

Mr. Shea.
-30-

 Their absolute and total lack of remorse after this is over, as

evidenced by testimony from several individuals of the fact that they

went back to the home of the one individual and played Nintendo for

the rest of the night. That’s just pretty amazing testimony that we

heard during the course of this trial. That individuals after having

participated in a crime of this sort would go back to a house and

play Nintendo for several hours until, I guess, they got sleepy and

went to sleep. It is just -- it’s unbelievable. Clearly dangerous

offenders.

With respect to Defendant Saulsberry, the court stated,

In my judgment, for the same reasons as those I indicated

with regard to Mr. Howard, I think that consecutive sentencing is

appropriate in this case as well. 

The offense is so reprehensible and so atrocious, so

unfathomable, that it is hard for me to imagine anyone defining this,

these individuals, as anything other than dangerous offenders.

The court also found no hesitation to commit an offense when the risk to

human life was high:

I think that’s clearly established. And I think the case law

supports it. I think there were -- well, I know that the record reflects

that there were other individuals in the restaurant, the dishwasher,

the waitress, others who were all put at risk. The potential to -- or

the risk to their life was high. They were very much endangered

during this whole episode, even though they were fortunate enough

to have been spared. So I think that factor clearly applies.

Finally, the trial court specifically addressed whether an aggregate sentence

reasonably related to the severity of the offenses involved. The court stated,

You have a robbery that was taking place, and a store

manager who is saying, here, take the money, doing everything to

comply with what the robbers were asking, and yet was shot. And

then beyond that, the assistant manager, lying on the ground, doing

everything he could to comply with what was being demanded, who

was then gratuitously shot and left to die. 

I mean, I think it is a situation where it is clearly

distinguishable from, for example, a holdup where in the process of

struggling over the money, somebody gets shot or something of that

sort. [That] is all part and parcel of the robbery itself. 

These events were all separate, independent, inexplicable,

inexcusable, outrageous, unconscionable acts that are clearly

distinguishable, I think.
-31-

We also find in the sentencing transcript ample evidence to show that the

term imposed was necessary to protect the public from further crimes committed

by these Defendants. At the time of sentencing, each Defendant had an

extensive history of criminal behavior. In addition, the court found, for both, at

least a limited history of unwillingness to comply with the conditions of a sentence

involving release into the community. Our review of the above evidence is not

affected by our finding of insufficient evidence to support premeditation and

deliberation on the part of Defendant Saulsberry. We are convinced the trial

judge fulfilled his duty in sentencing as to both Defendants.

V. DISCOVERY MOTION

Defendants’ ninth issue assigns error to the trial court’s failure to grant a

mistrial based upon an alleged discovery violation by the State. Defendants

argue that the State did not comply with Tennessee Rule of Criminal Procedure

16, which requires disclosure of certain evidence by the State:

Upon request of the defendant, the state shall permit the defendant

to inspect and copy or photograph any results or reports of . . .

scientific tests or experiments, or copies thereof, which are within

the possession, custody or control of the state, the existence of

which is known, or by the exercise of due diligence may become

known, to the district attorney general and which are material to the

preparation of the defense or are intended for use by the state as

evidence in chief at the trial.

Tenn. R. Crim. P. 16(a)(1)(D). Specifically, Defendants argue that the State

should have produced, in response to their Rule 16 discovery request, a report

of tests performed on the .32 caliber revolver seized from Defendant Howard’s

residence. 
-32-

The State replies first that Rule 16 is inapplicable because the test

performed on the weapon was not a “scientific test” and because the expert

made no “report.” Rather, the State argues, the expert simply observed whether

the barrel of the gun contained residue, to determine whether it had been cleaned

since last fired, and he made only handwritten notes of the result. Although we

do not accept the State’s argument, we need not find this test within Rule 16

because we conclude that even if there was a violation, Defendants were not

prejudiced.

Rule 16 prescribes the remedies for violation of its provisions: “the court

may order such party to permit the discovery or inspection, grant a continuance,

or prohibit the party from introducing evidence not disclosed, or it may enter such

other order as it deems just under the circumstances.” Tenn. R. Crim. P.

16(d)(2). Here, the trial court offered to allow Defendants’ counsel an opportunity

to inspect the notes, which he declined to do. The record reflects that counsel

objected to the existence of the alleged violation, but that he did not, in fact, move

for a mistrial at this point. Although Defendants assert that they moved for a

mistrial, they have not provided a citation to the record to permit meaningful

appellate review. 

Furthermore, the evidence not disclosed to Defendants revealed only that

the gun found in Defendant Howard’s home had not been cleaned since last

fired; the evidence did not reveal when the gun had been last fired. Defendants

have identified no prejudice—they have simply asserted that prejudice

resulted—and we cannot ourselves identify any prejudice. The trial judge was

within his discretion in refusing any request for a mistrial. 
-33-

VI. CUMULATIVE ERROR

We have concluded that only one error occurred and have remedied that

error by reversing one Defendant’s conviction for first degree prem editated

murder. We find no cumulative error warranting further modification.

VII. CONCLUSION

In conclusion, Defendant Saulsberry’s conviction for first degree

premeditated murder is not supported by sufficient evidence, and such conviction

is therefore reversed and his case is remanded for a new trial on the charge of

felony murder as alleged in Counts 2 and 3 of the indictment. We conclude that

the trial court committed no other error. We affirm convictions for especially

aggravated robbery and conspiracy as to both Defendants. W e affirm Defendant

Howard’s murder conviction. Consecutive sentencing is affirmed. This case is

remanded for such other proceedings as may be warranted and consistent with

this opinion. 

_________________________

PAUL G. SUMMERS, JUDGE

CONCUR:

_____________________________

DAVID H. WELLES, JUDGE

_____________________________

JOE G. RILEY, JUDGE
-34-